Monday Message 01.02.21

Criminal Barristers are committed to their professional duties which, inevitably, place considerable physical and psychological demands upon their working lives. However, in the face of a defunded criminal justice system, many are forced to work relentlessly, into the night and throughout weekends, to protect the needs of the most vulnerable in our society at significant cost to their own wellbeing and that of their families, leaving aside the absence of further remuneration. Whilst, for many, the profession of a criminal barrister is a vocation, advantage is being taken of our goodwill instead of ensuring proper funding is put in place. This dedication has resulted in criminal barristers papering over the cracks in an increasingly fractured criminal justice system at great personal expense. We have said before that practitioners are running on vapours to keep the system going. Our court working practices have pushed members to breaking point with many departing the profession. The criminal justice system cannot afford to have a broken Criminal Bar. It is in the mutual interest of both the system and those operating within it that the working practices of the Criminal Bar are repaired. To that end, the CBA set up the Judicial Liaison Committee last year. One of its roles has been to develop a formal protocol and reform what, in effect, have become unsustainable working practices. Next Monday, a four-week consultation, launched in the form of a survey, will commence in relation to the protocol. I share the rest of this week’s Monday Message with a commentary from Jonathan Higgs QC and Tana Adkin QC, Joint Chairs of the Committee. Remember, this is your Criminal Bar, your professional working life. This is your time to change the way we work and to ensure that the Criminal Bar and the criminal justice system continue to survive and to serve society.

Yours,

James Mulholland QC
Chair of the CBA

The Judicial Liaison Committee writes:

On 14th of July 1910, Chief Inspector Dew discovered the remains of a female body concealed in the cellar of 39, Hill Drop Crescent, Camden Town. Enquiries were made of the tenant, but he had already departed, and was on a transatlantic liner. Having considered all the available evidence, and applying the code test as it was then, a pre-charge advice was delivered within 48 hours. It was two words long: “Arrest Crippen”. For the first time ever, modern technology was used in the form of a wireless telegraph to inform the ship’s captain, and when Crippen and his young mistress arrived in Canada 31st of July, Chief Inspector Dew himself was there to arrest him. A month later and they were back in London.  Many of the country’s leading medical experts, including the renowned pathologist Sir Bernard Spilsbury, were called at the trial, giving highly controversial evidence identifying the body, ageing the time of death, and establishing the cause of death as a particular poison – Hyocine. Dr. Crippen on oath challenged the entirety of the Crown’s case. The trial was sensational and lengthy by contemporaneous standards – five days. The trial judge was the Lord Chief Justice. The Crown were represented by three counsel, as were the defence. After 25 minutes of deliberation, the jury returned a guilty verdict on 22nd October, less than two months after Dr. Crippen’s return to England.

How times have changed…

Different modern technologies have transformed the criminal justice system and the lives of those that work within it. It was not so long ago that the only way to communicate with Chambers was to wait in a queue for the public telephone, with a pocket full of 10p coins. The combination of word processing, emails and then smart phones which instantly notify you of any development in a case have undoubtedly brought with them benefits, but at a terrible cost to the working lives of criminal barristers. The Criminal Procedure Rules now require written notice and often counter notices for all manner of evidence; legal arguments are required to be put in writing and misleadingly called skeleton arguments when in truth they are full written submissions; and the sheer volume of material in even straightforward cases would have been unthinkable even 30 years ago. In addition to all that, the persistent and long-term under resourcing of the system has led the ever compliant Bar to cope with more and more material in less and less time. It has for many years now been a cultural norm that barristers are expected to work through the night, get up to travel miles as well as working through long days and then straight through the weekends.   Our representatives have tried in vain to persuade the various stakeholders that the situation was out of control, but the warnings have fallen on deaf ears. It has been obvious to those working under that pressure that the system is at or beyond breaking point. Coinciding with the huge additional workload outside of court hours, the hours of court sitting have been creeping ever longer. The problem affects all areas of criminal practice both Prosecution and Defence. Although ultimately a trial judge will need to give defence counsel more time if absolutely necessary, there is always the real likelihood that a trial judge may significantly disadvantage the prosecution if it does not comply with whatever time limits are set. Similarly, it is virtually impossible for junior counsel to stand up against what can appear to be little more than exploitation of their goodwill

The problem is not exclusively that of the courts, however, and we as a profession must acknowledge a degree of complicity, at least by some of our number. A small minority of our number may seek an advantage by being free to stay up later than their opponents – often in effect gaining an advantage against those with other commitments. Similarly, there are occasions when juniors may be called upon by their leaders to work unreasonable hours, perhaps to the leader’s personal advantage. Pupils, who are inevitably in a position of great vulnerability, can on occasions be called upon to work far beyond what should be expected of them.

The effect of this excessive workload is felt across the Criminal Bar, but it is particularly harsh on those with family and caring commitments. In simple language, it is discriminatory. It puts off people coming into the profession and it is a major factor in retention.  An exhausted and demoralised profession does not best serve the public. We must not allow this to continue.

Much of what is set out above has been said before but there is real cause to believe today that the situation is going to change. There are several reasons for real optimism, if we seize this opportunity.

We are not alone. Those practising at the Family Bar will be very familiar with these pressures, but there is a key difference. The current President of the Family Division, Sir Andrew McFarlane, has since taking over in 2018 made wellbeing a genuine priority in family courts, and he has directed courts to issue well-being protocols. The Central Family Court issued such a protocol in October 2019; read it here. Please take the trouble to read it. It is short, simple and reasonable. Her Honour Judge Thomas, the Designated Family Judge for Birmingham, issued a similar protocol in January 2020, read it here.  She said in her introduction that all those working in the system “must ensure they are mindful of their own wellbeing” in order to continue serving the families and children who come before the court. She went on to say that electronic communication “tempts many into a ‘by return, 24-7, last minute’ culture of working”. The President reiterated his support on 8th January, in The Road Ahead – 2021; read it here.

The CBA Judicial Liaison Committee was already working hard on a very similar protocol in 2020, but then the coronavirus pandemic turned the world upside down, and the issue was yet again put on hold. But that was nearly a year ago; as the criminal justice system has tried to get back on its feet, it has become increasingly clear that those who keep the criminal justice system running will not be able to do so in the long term unless their well-being is properly protected and a reasonable work/life balance restored. In the recent words of Sir Andrew McFarlane, in The Road Ahead-2021, “it is a marathon not a sprint”.

One of the other reasons that the Bar has not been able to control its own working practices has been the lack of protection offered by our own code of conduct. While the cab rank rule allows us to decline work if it would require us to work outside “ordinary working time” – see rC30 – there has never been any definition of what that means, and without definition it has been impossible to rely upon it. The Code of Conduct is overseen by the BSB, and they have not always been perceived as our friends – indeed their overriding duty to the public prevents them being so – but we are hopeful that, as part of their Equality Review, they may be able to provide proper definition to what “ordinary working time” means; if we had this, it would have the real effect of empowering us to say “No” to excessive demands. Similarly, it is clear that many if not all of the judiciary are increasingly aware of this problem, and enlightened and farsighted enough to see that there needs to be real change.

We have completed our own protocol; read it here. It is short: 15 paragraphs, many of which are one sentence long.   Please compare it to the Family court protocols – it closely mirrors them, and deliberately so. It is above all else reasonable. It makes clear that the Bar will always be flexible to accommodate the best interests of those we serve, whether prosecuting or defending, and it is not intended to operate as any form of work-to-rule. What it does do, however, is to set reasonable limits on what we can ordinarily be expected to do whilst keeping amongst our numbers the widest possible cross section of the society that we serve.

We intend to consult widely, and to seek the support of as many stakeholders as possible, and we are hopeful that once they understand what we are seeking to achieve, they will indeed support it, but most of all we need to consult you, our membership, on behalf of the entire Criminal Bar. Please take the trouble to read in full the protocol, and most importantly to discuss it with your colleagues. Momentum and full engagement are vital to success.

We intend to consult widely, and to seek the support of as many stakeholders as possible, and we are hopeful that once they understand what we are seeking to achieve, they will indeed support it, but most of all we need to consult you, our membership, on behalf of the entire Criminal Bar. Please take the trouble to read in full the protocol, and most importantly to discuss it with your colleagues. Momentum and full engagement are vital to success.

Finally, can we point out what we hope is clear from the protocol itself. This is about general well-being. The simplicity of that message is its strength. It is not about remuneration. Undoubtedly, the underfunding of our profession has added greatly to the stresses that we face, but that must be a separate argument, albeit surely an unanswerable one, and it is being addressed separately and forcefully by others. Nor is it about the merits of Extended Operating Hours; that too is a separate argument, and it too is being addressed separately and forcefully by others. It is not about Covid safety – that is also being addressed elsewhere, and hopefully is temporary. The need to protect our wellbeing is permanent. Finally, we have all seen the dramatic increase in the use of remote hearings; another example of modern technology affecting the criminal justice system. That too is the subject of separate discussions.

We hope that many Chambers will want to hold meetings within Chambers to help explain the issues before individuals respond to us. Once you have digested it all, please do respond. It will not take you very long; and it may change your lives.