Monday Message 12.08.19

Chair’s Update:
Chris Henley QC

 

 

‘As you enter positions of trust and power, dream a little before you think’, Toni Morrison

I was forwarded a document this week which made me feel inspired but at the same time a little angry. The Central Family Court has issued a draft wellbeing memorandum. It starts with six simple statements:

1.  ‘The Central Family Court and all who work or practise here value the well-being of everyone. 

2. We should be running as simple a system as possible consistent with the rules.  Complexity is the enemy of well-being.

3. Everyone is trying to do their best most of the time.   Criticism may sometimes be necessary but rarely improves performance. 

4. Contested litigation, and especially a courtroom, is a stressful environment, particularly for those who are not used to it.  Everyone must understand this.

5. Everyone is entitled to respect, all the time.  

6. There is no place for aggression.’

You might well ask what is so remarkable about any of this, who could disagree?

The answer is that if there was a genuine commitment in the courts that we practise in to statements like these, certain practices that disfigure life for us at the criminal bar would have to be addressed and changed. Sure enough the memorandum goes on to deal in turn with (1) sitting hours(not before 10.00am, not after 4.30pm unless prior agreement and no one is inconvenienced), (2) proper breaks at lunchtime (‘Everyone needs a lunch break so the court should rise for an hour at lunch time’, and variations to a break between 1 and 2 should not be made without warning), (3) considerate, realistic listing, (4) emails (‘Practitioners may send their emails when they like but there is no need to reply after 6 pm or before 8 am’), even (5) listing clashes and cross-courting (Lawyers must be committed to cases, but must juggle their commitments and judges and magistrates must understand this and be understanding. This applies when listing cases and on a day by day basis).

It is inspiring that such positive, focused, realistic and humane leadership is being shown in the family courts, at the very highest level. These enlightened, thoughtful ‘wellbeing ground rules’ are authentically designed to ensure that as far as possible the wellbeing of the barristers and solicitors, court staff, and indeed Judges who work in the family courts is protected as much as possible. These modest adjustments will bring very substantial wellbeing dividends. This is what we desperately need in the criminal courts. This memorandum gives the lie to any suggestion that these things are in some way unrealistic, too hard or impractical.

We are routinely kept waiting for significant amounts of time as delays caused by unforeseen problems, or over-optimistic listing, change the court’s published running times. We accept this as part of life. But on occasion if any of us, particularly junior juniors, keeps a court waiting for as little as five minutes there can be hell to pay, letters from Heads of Chambers demanded, wasted costs threatened. These threats, that’s what they are, invariably peter out and the stress and distress caused is to absolutely no useful purpose, but just imagine for one moment being met with an understanding smile and words like ‘don’t worry, it was only five or ten minutes, I doubt it was your fault, these things happen. Please don’t give it a moment’s further thought’. Imagine if this was the invariable response. Then on everyone would happily go, rather than more time being wasted as the bone isn’t dropped. The stress caused must surely also impact on performance in the immediate aftermath, perhaps unsteady the represented party, and knock confidence in the fairness of the whole thing. There will, of course, be very rare occasions when a different approach is required but these are very rare. Junior juniors being instructed to cover more than one mention, which usually can be done with no difficulty, and is essential to keeping it all going, are given a much harder time if things go wrong than silks being absent from very serious trials for unconscionable amounts of time.

The Bar Council, the CBA and Circuit Leaders like Kerim Fuad QC have repeatedly pressed the case for sitting hours and email protocols. Sarah Vine championed these issues as the CBA’s first Wellbeing Officer; Valerie Charbit is now doing this invaluable work for all of us. The sad truth is that your wellbeing is not being prioritised. It is not being respected. It does not appear to matter sufficiently to those with authority over the criminal courts who could issue a memorandum of similar insight, wisdom and respect to the one drafted by the Central Family Court.

Courts that take proper account of the wellbeing of those working in them are so much more productive and run much more smoothly than courts where we are all made slaves to early starts, late finishes, doing without breaks, and constant pressure to work overnight to achieve minimal time savings. That’s when things go wrong or get missed. Giving space to the advocates within the normal working day when issues need dealing with makes for much better outcomes.

We do extremely challenging, important, stressful work. Work that is no longer paid well enough for most of us to be able to build in, in advance, the breaks that we sorely need. Modern fee levels make the cost of childcare almost unsustainable. The unpredictable hours, and sudden removal and re-fixing of cases put our personal lives under intense, unreasonable strain, and make keeping important ‘outside work’ commitments so difficult (GP, dentist, hospital appointments, school events etc). It is almost impossible to switch off from the work we do. Our work matters so much and we are so committed to it, but from much of the correspondence the CBA receives, too many of you are paying too high a price. A wellbeing memorandum signed off at an appropriately senior level is urgently needed, displayed prominently in every court centre, or better still at the door to every court room. This would transform the current culture. We don’t have HR departments, we never fail to attend during a trial, we won’t be paid if we need time off, but we do deserve a few very modest wellbeing bottom lines.

This space will be made available to anyone in a position of authority who wants to defend or explain why these these things are not possible to set out explicitly and achieve as part of mainstream practice in the criminal courts.

’THE THICK OF IT’, IS IT BACK? 

It seems to be ‘crime week’. The ‘£350million a week’ scribes have been picking up their biros once again.

The lead news story this morning has been the government’s announcement that £2.5billion will be spent on creating 10,000 extra prison places (which works out at £250,000 per place). Putting aside the complete lack of information about timescales, or how this juicy figure was calculated, it’s worth remembering that exactly the same thing was announced in 2016 –  10,000 new places were then to be built by 2020, a figure which was more recently slimmed down to 3000 new places by 2023. There is unlikely to be clarity on how these two figures are to be reconciled, or when. But that’s to miss the point of the announcement. Acknowledging complexity and providing accurate detail would torpedo the impact of the headline message. We also heard that prison sentences need to be and will be made longer and harsher. So I suppose, plucking an example from the air, if you conspire to have someone beaten up you will be looking at significantly longer jail time.

Closer to home the CPS will be allocated an extra £85m over the next two years to ‘increase capacity and effectiveness’. Of course any increase is welcome and will make some difference. But this is a relative drop in the ocean compared to the scale of the cuts since 2010. Every year the CPS is having to survive on reductions of close to £300m to its annual budget compared to funding levels 10 years ago. A serious commitment to improving capacity and effectiveness would produce multiples of the figure announced today, and a commitment to maintain and increase this level of funding for 10 years or more rather than just two. The massive cuts visited to all areas of criminal justice, which can be measured in the billions, mean that now only 7.8% of crime reports result in prosecutions.

Sentences for serious and violent crime have increased very substantially in recent years. You wouldn’t know it from the words being spoken today. As the number of prosecutions have almost halved, the prison population has nevertheless remained as high as ever, and much higher than in comparable European jurisdictions. Average sentences have been increasing significantly, otherwise the total number incarcerated would be in decline, in line with falling volumes of cases. This may or may not be a good thing but it is a fact. More and more 18 to 25 year olds convicted of murder involving the use of knives are receiving life sentences with minimum terms in excess of 25 years. Yet at the same time more and more young people are carrying knives, more and more are becoming victims of knife crime, and more and more are ending up in prison serving very long sentences for other serious offences. Drug crime is being displaced to county and coastal towns and villages where the policing infrastructure barely exists. Local police stations and courts are concrete tumbleweed; more young lives are being ruined as a result. Local youth services disappeared many years ago. Of course recruiting extra police officers is important but let’s get real about how far numbers have fallen and how long it will take for any difference to be felt on main street. An open minded look at how other modern democracies deal with crime and punishment, and investing in opportunities for young people would be a good start. Instead the biros decide that more stopping and searching, inevitably involving a highly disproportionate number of young black men, will energise the voters, so that goes up on a ‘Post-it note’.

This all has the feel of election planning satire, and positioning around the fall out from a ‘no deal’ Brexit. The populist rhetoric will continue until the crunch comes. This is clearly ‘crime week’. A ‘people versus parliament’ election is being talked about. The little group who meet at 7.55am are no doubt very pleased with themselves, and their clever messaging.

The people who have been most affected by the cuts to the police, court closures, and general degradation of the criminal justice system won’t see much change from what’s been announced so far. Much, much more is required. Their streets and children won’t be any safer. Their 999 calls won’t be answered any faster. The retreat from the vigorous investigation of mainstream crime won’t be reversed. Complainants who are currently losing faith in the process won’t have their faith restored. Suspects released under investigation for many months won’t suddenly have robust decisions made about their cases. Because none of these ambitions lie behind today’s announcement. Sadly, they are all little to its true purpose. Rhetoric is so much easier than actually doing.

Roger McGough might have had all this in mind when he wrote ‘The Leader’….

‘I wanna be the leader
I wanna be the leader
Can I be the leader?
Can I? Can I?
Promise? Promise?
Yipee, I’m the leader
I’m the leader

Ok what shall we do?’

Yours,

Chris Henley QC

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