His Honour Nigel Lithman QC retired as a Circuit Judge just a few months ago and has just released his book "Nothing Like the Truth: The Trials and Tribulations."

In his engaging style, Nigel Lithman tells Baines Law about the crisis facing the Criminal Bar and the Criminal Justice System: the lack of investment in the  decaying court systems and the reasons why trials do not go ahead.  He talks of the 60,000 backlog in criminal cases yet to be tried and suggests remedies of his own.

He explains that barristers are leaving the profession because they are grossly underpaid and, all too often, they are subject to bullying from some members of the judiciary who suffer from "judgitis".  

Barry Baines:

Welcome! This is Barry Baines from Baines Law, a legal miscellany where we regularly podcast about cases and legal issues, as well as talking to professionals and others who have experience of our legal system.

He is well-known among his peers as a fearless and outspoken, as well as entertaining, advocate, and a fair-minded judge.

His work as a barrister included participating in over 100 murder trials, targeted assassinations, salt poisoning, and Britain's largest Ponzi fraudster. As a Recorder, he sat at the Old Bailey, and as a Crown Court Judge, he presided mostly in Luton and St. Albans, dealing often with drug-related, gang trials. He retired from the Circuit Bench in August of this year, and his book, Nothing Like the Truth: The Trials and Tribulations, was recently released.

We extend a very warm welcome to his Honour Nigel Lithman QC.

Welcome, Nigel. Thank you very much for joining us today.

Nigel Lithman QC:

You're very welcome.

Barry Baines:

First of all, many congratulations on the publication of your book, Nothing Like the Truth. Could you start by telling us what the book's about and why you wrote it?

Nigel Lithman QC:

The book is an honest account of my life through the courts, through me being a junior silk, and then on the bench. And in order for me to tell the truth about what goes on in the courts and the criminal justice system, I've seen it from all sides, both sides of the bench, and in front, and behind it. I appeared in 100 murder cases whilst I was in silk, and I thought there was a lot of truth to be told, and a lot of controversy to be dealt with, and I wanted to do it in my voice, and in my funny style. And I think that's what I've done.

Barry Baines:

Well, from the reviews I've read so far, that seems to be so.

Nigel Lithman QC:

Thank you.

Barry Baines:

And the book must have been some time in the making, I take it?

Nigel Lithman QC:

Well, the book actually was during the lockdown period. It was about four months. I was surprised because it was the first time I've written a book. I've written plenty of articles. And I was surprised that there was only a relatively limited amount of time that you could concentrate and do it during the day, so it was two or three hours a day for four months. But after that, the agony of the publication began. And then of course, the dedication, as you're trying to promote it and sell it, which continues even till today.

Barry Baines:

I should think there's some interesting lessons to be learned there from anybody who wishes to write a book apart from anything else.

Nigel Lithman QC:

Yeah. Yeah.

Barry Baines:

So you deal in the book with some of the perplexing difficulties you've encountered. It's clear from anybody who practices in law that under investment in the court structure, and the criminal justice system has been taking place now for a long time under successive governments, so it's more than a party political issue.

Nigel Lithman QC:

Yeah.

Barry Baines:

When you were Chairman of the Criminal Bar Association, you took on the Minister of Justice, Chris Grayling, at the time.

Nigel Lithman QC:

Yeah.

Barry Baines:

Would you like to tell us something about that: what you set out to achieve? What you actually achieved?

Nigel Lithman QC:

When I say the Criminal Bar, although I was Chairman of that, it was the same feelings within the solicitors' side of the profession as well, enough was enough. And the state of remuneration was well-known. And the key figure that was used then was earning £46 a day, which is just of course unacceptable for anybody and everybody. And with that in mind, Chris Grayling then made it clear that he wanted to cut the Legal Aid Bill by another £220 million. I made it clear that that was unacceptable and simply told him, because I was prepared to meet with him and did, and simply told him, and there was no question that he would believe it, that we would go out on strike, and we would bring the court process to a halt, one way or another.

And I wasn't bluffing. I made it abundantly clear, we would do that in progressive ways. First of all, with a half-day strike, and then a day, and then two days, and so on. And it was after a day and a half, that the best way to put it without being too immodest, is that he hoisted the white flag and said, "Enough is enough," and then said that he would no longer do it.

Now that was a way to stop further diluting of the remuneration. But what I expected and hoped would happen, was that you would then go on an upward curve in order to try and increase people's earnings, but that didn't happen. And I went off to the bench for four years. And when I've come back, it's just déjà vu. It's the same thing happening all over again. And I think, and I'm sure, that the leaders of both sides of the profession will make it clear to the Ministry of Justice that this is unacceptable.

Barry Baines:

Yes, it's clear isn't it that the Criminal Bar is in greater jeopardy than ever at present. Just recently, we've seen judges complaining: for example, a case was adjourned the other day because the Crown was unable to bring a prosecutor.

Nigel Lithman QC:

Well, if you implement and oversee a system in which you've seen 15% of your workforce leaving over a period of two or three years, what else is going to happen? They simply aren't going to be able to man the court, not man the court. And that is on top of every other issue that they have. And it spreads from the lavatories... It's on the Crown Court, which have been in the same state of chaotic disrepair for 20 years, right through to the backlog of 60,000 cases that there is no prospect that they are able to cope with things while this is going on.

Barry Baines:

It's extremely difficult now, isn't it? As you say it. I was going to come onto the buildings and the facilities because they affect everybody, from judges, barristers, witness, victims, and jurors, and the system plainly can't go on like this, can it, without something happening?

Nigel Lithman QC:

Yeah. Well, I was happy to write to the manager of the court where I sat, St. Albans, to invite her to come with me and celebrate the second anniversary of the death of a fly that had been sitting on a window ledge on the first floor in Stairwell Five. But my point was, if this fly is celebrating its second anniversary and you can't cope with that, how are you going to be able to cope with COVID?

And I said, will you provide me with Perspex? And the answer was, no. So, I bought my own. I said, "Will you provide the witness box with Perspex? And they said, "No." I said, "That's fine." And in that case, witnesses will not be giving their evidence from the witness box. I'm prepared to live for the bar and for the criminal justice system, but I'm not prepared to die for it. And that's how I dealt with that. But top to bottom, the system is rotten. It has to be said.

Barry Baines:

Well, those are really clear examples of course. But even before the pandemic, the court centres were being closed and the backlog of cases was accruing. You've said now 60,000 or so. Situation now is far worse and the pandemic is being blamed. In your view, is that another example of nothing like the truth?

Nigel Lithman QC:

Well, I'm afraid it is. It is nothing like the truth. Because what it does, as a matter of convenience, is to try and shift the blame in a political way, from the realities of what's happened, and to really whitewash the fact that what took place for more than a year before the pandemic was wholly unacceptable and unaccountable, which was the cutting of court sitting days for all criminal courts.

But the members of the public aren't entirely stupid. What they would expect is a court building, if it's got six courts, to sit with six courts on five days a week with six judges, one per court. If a particular court is going to sit for 20 days as the public expects, and then suddenly they're told they can only sit for 15, what is going on? It's just ridiculous.

Barry Baines:

And so, how do you see this backlog of 60,000 being tackled, if at all? Do you think prosecutions will be dropped in many cases?

Nigel Lithman QC:

So that's an unacceptable system and you've got to do what you can to make it better. And there are ways you can make it better. One is through remote hearings, and two is through remuneration.

Barry Baines:

I was going to ask you about technology. And so, I think that brings us naturally to it. The other thing of course is, you're going to have difficulty with witnesses' memories a couple of years down the line.

Nigel Lithman QC:

Absolutely. There's no way that anything is true, other than justice delayed is justice denied, for every accountable reason. Why should rape victims have to wait for two years to be giving their evidence? What are the chances that witnesses will be able to be found and stay on side in order to come forward? Why should your son or daughter who is wrongly accused of a trial wait two years in order to be heard? These are all the wholly unacceptable consequences of what takes place, but let's get onto technology. Barry, I'm particularly concerned that I'm not being funny, and my book is funny!

Barry Baines:

We're being too serious, I can see! But I was going to say-

Nigel Lithman QC:

It's a very odd mix. I can try and inject some humour, but this was not a funny situation, of course, at the time.

Barry Baines:

It's not a humorous subject, absolutely agree. Assuming that appropriate investment is made - and that's a big assumption, I know - how far do you think technology's going to be able to assist with this backlog?

Nigel Lithman QC:

But everything else, right through to sentencing, preliminary hearings, can be done remotely. And if that happens, then you free up the courts to hold the trials. You provide the advocates with the ability to do more than one hearing from their home or their office in more than one court because these are digital. You make the prisoners happy because they will not have to bring their belongings, which they do, with them to the court in order possibly to be shipped back to another court. Which of course is something that happens.

Remote hearings is an answer. It's not a substantial answer, but it's not minimal. It will make a decent difference. The second thing is remuneration. This is a nettle that has to be grasped. When HGV drivers were on strike and there was talk of improving the yards and showering facilities, showering facilities is not going to get people to drive HGV lorries. HGV drivers do that. In fact, the amount of money they're seeking sounds so mouth watering, I'm thinking of trying to get up into a cab myself. But not withstanding that, you've got to try and encourage the lawyers back into the system.

And they will only do that if you pay them more. And that seems to be anathema for the government. You have saved £300 million, I think it is, during the lockdown. You have said that there is to be half a billion added to the Legal Aid budget by the government. Put this money into lawyers' fees, and they all come back. Because whilst in my time, the figure that was the headline figure was £46, the figure that's come out from the Audit Council is, that's £12,000 per year net in the first three years for those coming into the criminal justice system. They can't live on that money.

Barry Baines:

That's quite appalling, isn’t it?

Nigel Lithman QC:

And frankly, with their debts, they don't deserve to live on that money.

Barry Baines:

Okay. Thank you, Nigel. I wonder if, finally, we can turn to the subject of bullying of advocates in the courts.

Nigel Lithman QC:

Well, if there are any instances, which there are, then it is just wholly unacceptable. Not everybody is a robust person who has been in the profession all of his life and he is able to cope with that. These are people who are coming into the profession. And if they're going to be knocked about by a judge because of his own feelings of inadequacy, then that's wholly wrong.

I've got a chapter in my book called Judge-itis, and I do enjoy and think it's one of those that the criminal advocates will really enjoy.

In fact, can I just give you this extract from it? I ask, what are its symptoms? First, is the temptation that certain judges find irresistible to shout at those that appear before them. In front of one judge at Southwark, I was always tempted to a look around me when he spoke. Had he asked, "Why?" I would've replied, "I was certain there must be a dog in the courtroom." Not that anyone would speak to a dog the way he barked at people. He once told me in the middle of a submission to sit down.

I explained calmly, that after 18 years as one of Her Majesty's Counsel, he could safely assume I knew when I should sit and when I could stand. This was a moment for standing, and I'll continue to stand until it's time to sit.

But that, coming from me, is something I'm prepared to do and to take someone on who is notoriously suffering from judge-itis. And I end the chapter by saying, "You know who you are, stop it." And that is what they must do. It is unacceptable. Equally, I have seen cases of judges behaving appallingly. Where a member of the bar telephoned me for advice, and I gave him advice. I then had the judge ring me because he was concerned that he'd gone too far. He said I was anxious. He said he was anxious, I'm sorry, that this member of the bar would report into the Lord Chancellor.

And there was no need to be anxious about that. Let me tell you straight away, he has reported you to the Lord Chancellor. You better think about what you're going to say to the Lord Chancellor. So, it's unacceptable, and it's got to stop, and people must try... And I know, of course, it's difficult. Of course, it's difficult. You've got people in your hierarchy that you can speak to. In the same way as well-being. Well-being's got to be funneled through mentoring and an openness, which will actually rectify or help rectify these weaknesses in our system.

Barry Baines:

Well, thank you, Nigel. I'm sure every member of the bar and anyone connected with the courts will be thrilled to hear what you've had to say today.

Nigel Lithman QC:

Good.

Barry Baines:

There's plenty there for debate, and-

Nigel Lithman QC:

They can always ring me and talk to me about it.

Barry Baines:

Yes. Have you got a contact? Any way you would like to give people?

Nigel Lithman QC:

If they're on social media, they will see me on all of the channels, and they can privately message me on any of the channels.

Barry Baines:

Thank you very much for talking to us today.

Nigel Lithman QC:

You're very welcome, Barry.

Barry Baines:

Thank you for listening to Baines Law. Listen out for future podcasts, where we will continue to discuss issues of interest to the legal community. If there is a professional perspective that you would like to share, get in touch via our website at www.barrybaines.com. You can also follow us on Twitter @baineslaw. We look forward to presenting to again very soon on Baines Law.