Monday Message 02.12.24

On Saturday, instead of spending precious time with their families, over a hundred and fifty criminal Barristers, at their own cost, made their way to Inner Temple to increase their knowledge and understanding of criminal law at the CBA Winter Conference.

This was the last conference that Charlotte Newell KC will preside over as Director of Education for the CBA. Charlotte has worked tirelessly for the CBA Education Committee for 15 years and we have all benefited from the education that has been provided. We are grateful to all our speakers, our helpers and the Education Committee for a brilliant learning experience. We are immensely grateful to Aaron Dolan for organising all of our CBA events with great professionalism and skill.

This was a moment to marvel at the talent and experience within the room and to be immensely proud of the criminal Barristers who, despite all the difficulties in the criminal justice system, remain determined to be the very best.

Sitting days

On the last working day of November 2024 one in four Crown Court rooms were not hearing cases. They were closed. That is 123 out of 492 Crown Court rooms in England and Wales. When the Lady Chief Justice addressed the Justice Select Committee she explained that the Judiciary had recently discovered that (according to HMCTS) the Crown Court could sit 113,000 days each year.  The judiciary believed that the maximum sitting days were 107,700. The current allocation, fixed by the previous Government was 106,000 days. After discussion, the Government permitted another 500 days. This new Government has made a public commitment to cut Crown Court backlogs but has not provided any additional funding to turn words into action.

The LCJ said that the Judiciary have been obliged to take drastic action due to limits on sitting days. Resident Judges have had to take cases which are fixed for trial before April 2025 out of their lists, and cancel sittings for Recorders. The removed cases are then listed years ahead, 2026-2028. These cases include the Government’s high priority cases involving rape and of violence against women. The fee for prosecuting rape cases remains much lower than the fee for defending them but when a prosecuting criminal Barrister cannot be found, the CPS will pay double for a KC to prosecute that case. Short term gain for long term pain as the CPS budget is depleted.

Courtrooms and entire court buildings will not be used for significant periods. Dedicated courts which were used solely to reduce the backlog of RASSO cases are now closed. The LCJ said “Think about criminal barristers who have cases taken away from them, when the criminal bar is already suffering.”

Why is this happening? It is not about saving money. This will cost more money in the long run. This is short term political expediency. The people of England and Wales pay the price because justice is delayed or denied altogether. A criminal justice system which does not function well means that those who allege that they have been raped, assaulted, burgled, robbed, defrauded, either wait for years and years for justice or give up and walk away from the system. Part of the price that society pays is the reduction in skilled and experienced criminal Barristers to prosecute and defend these cases. Criminal Barristers are also giving up.

The crisis in the prisons has not been fixed. The previous Government built 6,000 prison cells but closed 5,500 cells which means a net increase of 500 cells. Currently the prisons are receiving an additional 80 people per week, which amounts to 4,500 a year. That leaves little flexibility. This may well increase with the additional sentencing powers of Magistrates. There are 17,662 prisoners on remand, who are clogging up the system, which amounts to about 20% of the prison population. There are 2,694 prisoners who are subject to IPP sentences. Of these, 1095 have never been released and 1,599 have been recalled to custody.

Let us think about criminal Barristers. When the CPS triumph successful prosecutions of serious criminal cases it would demonstrate respect if they praised or thanked the criminal Barrister who conducted the trial. When thanking the agencies within the criminal justice system for working together on a project, it would be respectful for politicians to thank the criminal Barristers who have undertaken that work. The only new Minister who did that, Heidi Alexander MP, has been moved to the Ministry of Transport. We wish her every success in her new role and await news of her replacement. At the moment the role is vacant.

We at the Criminal Bar have been obliged to wait until our numbers have been significantly depleted before we have been valued but, even now, Government whilst championing short term policies and ambitions, fails to recognise and accept that without investment in the courts and trial process there is no point in arresting more people because unless they are in custody their cases are never going to be heard.

Equality and Diversity

We are one Criminal Bar. Our students who wish to have a career at the Criminal Bar, whether that is at the employed or self-employed Bar, our pupils, our junior and senior practitioners must all be able to work in an environment where their individual characteristics are valued and where we are all given the same opportunities to succeed. Mutual respect is the cornerstone of a thriving and dynamic profession. Part of the mechanism of ensuring that happens is not to tolerate inappropriate conduct of any kind by a member of the Judiciary or a member of the Bar to any other person. In the same way that we are fearless and independent when representing people within the criminal justice system, we must fearlessly protect the future of our profession to ensure recruitment and retention of talented individuals.

We often try to understand how things seem from the perspective of our clients. We must try to understand how things seem through the eyes of mini pupils, pupils, junior and senior practitioners. We must be mindful of our status and in the eyes of those who depend upon us for training and professional development. We must demonstrate kindness and respect for all. Where we see conduct which falls short of that we must tackle it.

In addition, whilst we appreciate that with the levels of work as they currently are, everyone is stressed and frustrated, no one should take their frustrations out on criminal Barristers. We can only do our best work if we are treated with courtesy and respect. We will only truly reflect the society in which we live if we each respect the professionalism of each other. We await with interest the decision of the Bar Standards Board on their consultation and the part it will play in making a difference in the years to come.

Common Platform

We seek to collate positive and negative experiences of signing in to common platform cases. We are advised that the difficulty that many of us face when unable to sign in because a case has been moved from one court room to another late the day before the hearing is not known as a problem within the bodies responsible for implementation and improvement. Do please email us at [email protected] of your experiences. We are grateful to Alex Greenwood from the Wales and Chester Bar for agreeing to collate and consider this material.

DAPO Pilot

The DAPO pilot has launched today in Greater Manchester, the London Boroughs of Croydon, Bromley and Sutton and with the British Transport Police.

Guidance for legal professionals is available for lawyers on the judiciary website at Pilot starts for Domestic Abuse Protection Orders – Courts and Tribunals Judiciary, together with family and civil DAPO order templates (this link works best via Google Chrome).

The following may also be of interest:

For completeness, you may recall that amendments to the Magistrates’ and Crown Court Rules and CrimPRs have been made some time ago:

If you do have any questions on the DAPO pilot, other than legal aid, please do not hesitate to contact them at [email protected].

CBA Response to the Consultation on Contempt of Court

Please see our response to the contempt of Court consultation. Our thanks go to Nick Worsley KC, Samuel Skinner and Julia Faure Walker for this paper.

CBA Response to the Sentencing Consultation on Miscellaneous Amendments

Many thanks to Andrew Thomas KC and his team for the excellent response which has been drafted on behalf of the CBA to the Sentencing Consultation.

Leon Kazakos KC

Leon has been an exceptional Circuit Leader whose focus has been entirely on the membership of the SEC. He has worked collaboratively with the CBA throughout his term. We applaud and appreciate his dedication, commitment and skill in ensuring that the SEC has thrived under his leadership. It has never been for him about self-gratification.

Leon is a superb advocate but, at least as importantly, has always been there for every circuit member. Whatever his next challenge is, we will always be here to support him and we thank him for his service on our collective behalf.

Claire Davies KC

The CBA congratulates Claire on her well-deserved appointment as Leader of the South Eastern Circuit and looks forward to working with her in the years ahead. Claire will work tirelessly on behalf of the entire membership of the SEC and we will be here, working beside her in these difficult times ahead.

Racial Disparity in charging decisions within the CPS

The Crown Prosecution Service’s role is to make fair and objective decisions free of any bias. That goal is not being met. There are racial disparities in the legal decision making of the CPS. This is illustrated in recently published data.

In 2023 the CPS undertook research into its charging decisions which demonstrates that across England and Wales defendants with ethnic minority protected characteristics are twice as likely to be charged than white British subjects. The differences varied by offence type. Ethnic minorities were twice as likely to be charged with violence and homicide. The research was unable to explain why the disparities were there. Further research has been undertaken and it does not point to any one clear reason for disproportionality.

More direct and definitive negative language was used in the paper work for ethnic minority suspects by the police and the CPS. Ethnic minority suspects were described more often in respect of their physical actions and white suspects more often by their words.  Their actions were described in more negative terms. CPS areas with more ethnically diverse working age populations showed lower levels of disproportionality. A working group was set up and an action plan has been developed.

Although the report on racial disparities is concerning, the CPS have tackled this issue, been transparent about the problems and have determined to fix it. We respect their efforts to exact change.

The Removal of the Right to Jury Trial

Reducing the current backlog of cases in the Crown Court and ensuring that it does not continue to increase will take time and substantial financial investment. It will also require the input of the criminal Barristers who are the key workers who will be tasked to collaborate with the Government and the many Court users to make this work.

The CBA therefore look forward to being treated with respect, consulted and considered in any new scheme. There is a move afoot to remove the right of trial by jury for a number of offences which carry sentences of imprisonment of two years or less. This is to save money and attempt to minimise the increasing backlog in the Crown Courts. With a national shortage of criminal Solicitors and Barristers, a national shortage of Legal Advisers in the Magistrates Courts and ever increasing backlogs in both it is not clear who will present these cases.

As this possibility was revealed this morning in the media it is no doubt to de debated and considered at length. What is plain is that the group likely to be adversely impacted by this removal of the right to jury trial are those of ethnic minority. We know that currently the police and the CPS accept that there are racial disparities in the decisions to charge and in the manner in which statements and reports are written which mean that those with ethnic backgrounds are not treated as fairly as white people. We know that there is a concern that the Judiciary impose longer sentences on those with ethnic backgrounds than white people.

No motive has been found within the research for any of these differences but there is also no evidence based explanation for these disparities. However, what we do know is that people with an ethnic minority background are not treated differently from white people by juries. In the Lammy Review it was revealed that there was greater disproportionality in the number of Black people in prisons here than in the United States.

The disproportionate numbers represent wasted lives, a source of anger, mistrust and a significant cost to the taxpayer. The economic cost of overrepresentation of ethnic minorities within the courts, prisons and Probation service was estimated in 2017 at £309 million a year. Our justice system must work fairly. Trust in the criminal justice system is essential. Removal of jury trial without adequate safeguards may exacerbate the existing problems.

Noel Philo

For any practitioner who has not been fortunate enough to meet Noel Philo who practices on the Midland Circuit, you have missed out on meeting a truly special barrister who has always been welcoming and supportive of us all. Noel gained his degree at Oxford in 1958. he was admitted as a Solicitor in 1966 and was an equity partner until 1974. Noel used his experiences in the Royal Fusiliers to develop a mixed practice of criminal law and Courts Martial work.

He now primarily defends. He has been a long term member of the CBA. Very soon he will celebrate his 90th birthday. We at the CBA thank him for his service and wish him a very happy birthday. Noel still practices with skill and great eloquence. We are fortunate to have him within our profession.

Yours,

Mary Prior KC
Chair of The Criminal Bar Association.

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