CBA Monday Message 30.10.17

Chair’s Update:
Angela Rafferty QC

This week saw two major announcements about criminal justice. Both were made on the same day. This message will therefore be longer than usual.

Litigator Graduated Fee Scheme
The consultation response was published at 3pm on 24th October and can be found here.

In essence the suspended 8.5% fee cut will not be made but will be replaced by all PPE pages over 6000 moving to the ‘special preparation’ regime. The plan to revise fees for court appointed advocates has not been implemented, yet.

Our solicitor colleagues are still absorbing the effects of this development. We plan to hold meetings with them in the near future. They have pointed out, with force, in both their official responses and on social media that 97% of the feedback received by the MOJ opposed the 6000 page plan.

The LCCSA ‘regrets the decision taken by the Ministry of Justice to announce yet another cut”.  The CLSA described how it was “appalled” and highlighted the likely ill effects on the solicitors’ profession and access to criminal justice in its announcement.  The solicitors’ profession is a substantial national asset. You can find the CLSA response here and the LCCSA response here.

Our press release in response to this announcement was sent to all of you and can be found here.

AGFS
We await the response to the consultation into our fees – it could be imminent. I do want to remind the Ministry of Justice what Michael Gove, then Lord Chancellor, said in January 2016. Our profession too was described as a  ‘substantial national asset’. The Ministry, it was said, was ‘particularly committed to retaining a vibrant independent bar’ in order to ensure the highest quality advocacy in our courts.

We truly hope that this view still prevails at the Ministry of Justice. Our present Lord Chancellor appeared before the Justice Select Committee this week.

He said, as he has said before, that there are no crocks of gold for legal aid. However it looks like the disastrous effects of LASPO may be becoming apparent. We ask for proper, fair remuneration for the difficult and important work we do. We are not asking for a crock of gold – we ask for investment in the substantial national asset that is our profession.

‘Flexible’ Operating Hours
24th October also brought the FOH proposals back into sharp focus, with the publication of a new prospectus on the HMCTS blog. This sets out the design and principles behind the proposed scheme and makes for interesting reading. Please see here.

The pilots are still planned and likely to begin in February 2018. All the listening that has been going on has not concluded that this is a bad idea, tried and failed before. It is still hoped by HMCTs that something can be gained from FOH – even though it is said it is not really a major part of the reform programme. Once again we reiterate our opposition to this scheme.  Our working group will publish its response to the 19 questions.

For those who don’t know, the stated aims of all court reform is said by HMCTs to be  “Citizen-centred, accessible, proportionate and segmented, just, transparent, sustainable and future proof’. We consider that this scheme fails in every one of these areas.

The CEO of HMCTs gamely and refreshingly engages with ‘stakeholders’ on social media. She says that her department has much more central and important reforms to implement, including the common platform. Yet still this unpopular, divisive and controversial idea persists. We ask that there is a re –think.

This would show our members who fear for their practices because of this scheme that those in power really do listen. The goodwill would be immense. The reform programme would be reinvigorated and not mired in controversy. We could try to work together.
“Stakeholder” views (which includes us) must be received by the 1st December deadline.

Magistrates Court Fee Practices
We have written to all Heads of Chambers seeking clarity that Chambers are aware of the protocol and actively implementing it.

The YBC report can be viewed here and the Bar Council protocol viewed here.

Section 41 Survey
Please can you spare us the time to take this survey, if you have not done so already.  It can be found here.

The data we have been given by members is already providing invaluable insights into how this section is used in practice. We really need all who work in serious sexual offending cases,  on both sides,  to take part. One of our constitutional aims is to assist with consultation in relation to reform of the law.

This survey is one way that our members can have a direct input. We will be preparing a CBA “Position Paper” about this topic once the survey closes which will be at 9pm on 6th November.

Youth Justice
The Justice select committee has published its report into disclosure of youth criminal evidence. Here it is.

The report begins with this; “The impact on people in England and Wales of disclosing their childhood criminal records, including after they have become adults, has been the focus of concern for many years”. It concludes “we find it a matter of regret that the laudable principles of the youth justice system, to prevent offending by children and young people and to have regard to their welfare, are undermined by the system for disclosure of youth criminal records, which instead works to prevent children from moving on from their past and creates a barrier to rehabilitation”. The Supreme Court will deal with two cases challenging the current disclosure regime next year.

The Ministry of Justice have noted this report, It will no doubt consider it alongside The Lammy Review and the Taylor Youth Justice Review report. We at the CBA intend to continue our work to raise awareness and prestige of work with young people, campaign for proper remuneration and help barristers become specialists through training in this field.

The BSB has published its youth registration plans
The BSB has announced a number of rule changes including the requirement to register if a barrister undertakes youth court work. These rules will be referred for approval to the Legal Services board in November for implementation in February 2018. Read the proposals here.

Advocacy and the Vulnerable training: an update
As CBA members will know, the Ministry of Justice announced a commitment in 2014 to ensuring that all publicly-funded criminal advocates appearing in serious sexual offence cases would have undertaken training specifically focused on working with vulnerable witnesses. The Advocacy and the Vulnerable course was subsequently developed by the Inns of Court College of Advocacy and the Rook Working Group, designed to be delivered by a voluntary network of Lead Facilitators and Facilitators attached to all the Circuits and the four Inns of Court.

The Bar Council, which is working with the providers to record numbers and liaise with the MoJ, is pleased to announce that over 1,000 members of the Bar have now completed the course. The ambition that all criminal barristers will have done so by the end of 2018 is still in place, and we are grateful to all those trainers, staff and enthusiastic delegates who have worked hard to ensure that the profession is well-placed to rise to this challenge.

Although the training has not yet been made mandatory, this is still understood to be the intention. The Court of Appeal has in any case noted in R v Rashid (Yahya) [EWCA Crim 2] (18th January 2017), that an advocate acting in a case involving young witnesses or defendants “will have undergone specific training and must have satisfied himself or herself before continuing to act for the defendant or in continuing to prosecute the case, that the training and experience of that advocate enabled him or her to conduct a case in accordance with proper professional competence”. This is also in line with the forthcoming roll-out of s.28 of the Youth Justice and Criminal Evidence Act, as previously reported in the Monday Message.

The Bar Council is therefore recommending that people sign up to a course as soon as possible to avoid finding that later courses are over-subscribed and having to turn people away.

Members can register directly with their Circuit or Inn, with the exception of South-Eastern Circuit members, who will have their training provided either by their Inn or a Facilitator in their chambers (please ask your training coordinators). You can view the Inns’ upcoming dates at the following links:

Inner Temple’s newly-released training dates  (17th March, 20th March) are here.

Lincoln’s Inn training dates (9th December, 13th January) are here.

You can register your interest for Gray’s Inn training here.

Middle Temple’s next dates are 1st December, 24th January, 27th February; there is currently no specific web page available but you can contact them via their website here.

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