Trials and tribulations: A career in the criminal courts

A conversation with Nigel Lithman QC is far more frank than could be expected from most members of the judiciary. As the silk who, as its Chairman, led the Criminal Bar Association strike in 2014, and then sat as a Circuit Judge, he is remarkably outspoken.

The path to the Bench

As far as background is concerned going from technical college to the Bench via the life of a busy and successful Queen’s Counsel was, at the time, an unusual path. So how did he manage to do so? On this, Lithman QC recollects: “Well, I suppose things started with the fact that in my family, if you couldn't stand the sight of blood, then you were likely to become a lawyer of one sort or another. At one stage, my family had representatives from every part of the criminal justice system. We had Barristers and solicitors. We even had a stenographer in the days when proceedings were recorded manually. But for some time, we were missing a defendant. Fortunately, a distant cousin came to our rescue. ‘Bingo – we had a full house.  As for education I went to a posh school in Essex, if that's not a contradiction in terms. We had a big family crisis when I was in my late teens and that put me in a bit of a whirlwind. I ended up going to a technical college to read Law. What I wanted to do was go to Cambridge to read English, but Cambridge had different ideas. As it happens, I think that was the making of me, because I may well have been impossibly arrogant if I had studied there. As it is I wear as a badge of honour the fact that I'm able to tell those entering the legal profession that, after going to a technical college, it is possible to be a relatively successful criminal barrister, and finally a judge.”

As for his own path to practice, Lithman QC drily reflects: “I joined the Inner Temple because it had a nice big car park. In 1976 when I was Called, I was offered pupillage on a train – but I refused it, not because I have anything against trains, but because I was also fortunate enough to be offered a place with Seddon Cripps at 1 Harcourt Buildings. In those days, you had a one in three chance of being accepted as a tenant. On day one, my first rival came in and offered his view over chambers’ tea on the question of Property Act matters. Back then, pupils weren’t allowed to have views and even if they had them certainly not express them either at teatime or indeed any other time. So that was his prospects gone. On the second day, the other rival came in without a jacket and was smoking. So that was the end of him. All I had do was turn up every day for a year and keep my nose clean and I'd be in.  No easy task for me – but I managed. I then spent six years there until I decided I firmly wanted to go over to doing criminal work. As I had built a practice in Essex the move that was natural was to go to 3 Hare Court, which eventually became 2 Bedford Row and took me to a to a career of crime, and progressively more serious crime. When I took silk, I was doing heavy defence work – which could be dark and cold. It was a diet of murder and mayhem.”

Getting through the day

Against the backdrop of this practice profile, it’s perhaps unsurprising to find an ironic sense of humour, with Lithman QC admitting: “I have to say there wasn't a day when I haven’t laughed during my career. I know it's difficult to say that when we're dealing with such terrifying issues, where the natural order of things are turned on their head. But there was always one way or another, the scope for laughter. I'm sure part of it was gallows humour. It was the inevitable need for a release from the traumas of the cases. I always said, the day I stop laughing, I will retire. Well, actually, I didn't stop laughing and I didn't retire. I must have become if not the oldest appointee judge certainly one of the oldest in history, because you have to be a maximum of 65 and able to offer ‘them’ five years before retiring at 70. I took the job four days before my 65th birthday and left at the age of 69. I assumed that I would go and sit in Essex, after all much of my work as a junior had been there and I had also been leader of the Bar Mess there. So where did they send me? Luton. Ludicrous. In fact, I had a very nice time with Judge Richard Foster there, and then Michael Kay QC at St Albans. They represent the fact that solicitors and barristers can make equally good judges, or indeed equally bad ones. At both places, I aspired to be not just someone that refers to himself as a true friend of the criminal advocate but actually was one. Their practices and remuneration were high on my priority list.”

Solicitors – and strikes

On his experience of solicitors in his time on the Bench, Lithman QC adds: “My view of solicitors, and their role in the criminal justice system, has grown and grown – and particularly flourished during the time that I was a judge. Often, I called on the services of the local solicitors who gave freely of their time, often literally, to represent those that fell through the wide cracks in legal aid representation. Over the years, I have learned just how special a criminal split profession is and happily from where I sat all advocates were treated the same.”

Both branches of the criminal profession were pulled sharply into focus in 2014, at the time of the CBA strike – of which Lithman QC, then Chair of the CBA, was the ringmaster. Recalling events which led up to the strike, he contemplates: “…Christopher ‘failing’ Grayling knew what he was dealing with. I was matter of fact. I was calling for a one-day strike first and then a two-day strike, and so on, until we got what we wanted. And that's what happened. We wanted to ensure that there were no further cuts and that’s what we achieved.  The balloted Bar chose to accept the deal offered to me although While some solicitors felt that they'd been abandoned, I had to keep in mind that I was put in office to represent the Bar, and I took my mandate from them. Fortunately, solicitors also succeeded ultimately in their quest in that period. It shows that with strong leadership, provided the government is left in no doubt as to what's demanded, they will almost certainly buckle, because the advocates can bring the criminal justice system to a halt if they want. I have every confidence in the Chairman of the CBA and Law Society President being able to achieve like successes if called upon to flex their muscles. It is beginning to look like in 2021 that will be necessary.”

Of the burgeoning backlog of criminal cases, Lithman QC is of the view that the only way it will be reduced is by the pincer action of clearing out all matters from the courts that can be dealt with remotely, whilst introducing a remuneration package that will bring back the numbers to the profession whom hardship has driven away. On CVP, Lithman QC opines: “In 2015, Lord Justice Leveson was urging the criminal justice system to come to its senses and realise that many cases should be dealt with remotely. When the opportunity arose during covid-19, a certain percentage of CVP hearings were held. But then again with classic mixed messaging the MoJ indicated that lawyers should come back to court. Everyone is inconvenienced. lawyers and prisoners alike. I hear tales of advocates being castigated because they asked for CVP hearings. Judges actually need to be strong on the message that, provided there is no interest that runs contrary to justice, there is a clear matter of convenience to hold hearings by way of CVP wherever possible. As for CVP, rather than Teams or Skype, I'm about as conversant with different platforms as I am when I arrive to get my train at King's Cross. But I know moving into the future that more and more remote hearings is where we must go. That’s the first thing. The second is, just as with HGV drivers and doctors, so it is with the criminal justice system. It is not the shortage of facilities that matters – it is the shortage of advocates. A wage of £12,000 for the first three years post-qualification is untenable.”

On the new Secretary of State for Justice, Dominic Raab, Lithman QC notes: “Well, he is a lawyer, isn't he? At least we have gone back to the idea that the Lord Chancellor should be from the ranks of those who have a legal background. But what people will naturally ask is ‘what experience can Raab have of the hardship of the criminal advocate when he was cushioned in his experience by working at Linklaters?’ The government says they are intent on levelling up. Well, at the moment, to level up criminal advocates with other branches of the profession will involve climbing Everest and K2.”

The full story…

These opinions are typical of Lithman QC, who describes his forthcoming book, “Nothing Like the Truth: The Trials and Tribulations of a Criminal Judge” as: “A candid, eye opening, and, he hopes, entertaining account of life in the criminal courts, the ‘trials and tribulations’ from junior days to a QC and then to sitting on the Bench. I wrote it as I wanted to provide insight into the realities of working in the criminal justice system, the pressures involved, what we really think but do not say. It is funny – but deals with issues that are usually considered too controversial to ventilate. The title says it all.  Witnesses take an oath to tell nothing but the truth. What the court is treated to is nothing like the truth. In 100 per cent of criminal trials someone, if not everyone, tells lies. It is a stark truism that Judges and many advocates, presume not the innocence of those that are before them – but, in fact, their guilt. And so what has arisen is a degree of cynicism as to a Defendant’s innocence. The questions that arise are, where does the cynicism come from? How is it coped with, and is it possible, in these circumstances, for a defendant to receive a fair trial?

Much has been drawn, he says, on the inherent imbalances in criminal justice: “As is often reflected on, until 1898 you couldn't give evidence in your own defence, whilst in the 1970s the courts were just a battlefield between defendants and the police. Guess where the Judge’s sympathies lay? Then there was the history of the legal system with the types of judges that were thrown up. Those who were hanging judges, cruel judges – and now I'm afraid their modern successors, those that suffer with judge-itis. Being rude to advocates is actually a Chapter of my book that I think the profession will be interested to read, as well as the demand I make of such judges…”

Wellbeing and the way ahead

Many other issues and episodes of his rich and varied life are also ventilated in the book – including, last but not least, Lithman QC’s concerns as to the sustainability of the profession in terms of wellbeing support and mental health: “Many people, unbeknown to many others, experience wellbeing issues. I had my own brush with depression about 15 years ago, when an episode of hypochondria led me to test every doctor in this country and abroad to find out what was wrong with me. They concluded that I was spending too much time with Dr Google on the internet. I was one of the lucky ones, my hypochondria went as suddenly as it arrived.” He also advocates the need for strong mentoring programmes in places of work, be they chambers or solicitors’ offices: “During my career I was deeply saddened by four people taking their own lives. We must take these matters really seriously and ensure that any inward sneering that used to accompany mention of mental health is banished forever.” Finally, he adds: “To find not one job but two that I loved so much was not just a blessing but frankly a miracle”.

Nigel Lithman QC (retired Circuit Judge and author) was interviewed by Chaynee Hodgetts, our features & opinion editor and mature pupil barrister with Nexus Chambers: amazon.co.uk/Nothing-Like-Truth-Tribula>ons-Criminal/dp/1913532720 (out 25^th November)