Monday Message 12.12.22

As many of you shake the snow off your shoes and rub your cold fingers, you will reflect that the weekend contained December 10th, marking International Human Rights Day, the date of the United Nations General Assembly’s proclamation of the Universal Declaration of Human Rights on 10th December 1948.

This Declaration was the world’s howl against the atrocities of World War II. It did not pretend to be a treaty or statement of legal obligation, but rather was described by Eleanor Roosevelt as an “international Magna Carta of mankind”.

Fundamentally, everyone has a right to an effective legal remedy, and everyone is entitled to a fair and public hearing by an independent and impartial tribunal. The UNDHR and ensuing treaties focused on guarantees of due process, necessary for defence against criminal charges.

We are in a dark place in our jurisdiction to have been reduced to advocating for funding to ensure that there are barristers to prosecute cases.

A fair trial means fairness to both sides.

If we don’t have sufficient prosecutors, our justice system is reduced to an aspiration.

Basic stuff.

Meetings

And so we are busy; with calls and meetings with civil servants, and politicians and Judges. And we continue to listen you with your first-hand experience of the daily court function and disfunction. Please continue to contact [email protected]

Here are a small number of in person meetings over the last two weeks:

Deputy Prime Minister

On 1st December our Vice-Chair, Tana Adkin KC and myself met with the Deputy Prime Minister and Lord Chancellor, Dominic Raab MP. He expressed that he valued the Criminal Bar. On this footing, I addressed the lack of increase to prosecution fees, required additional money into section 28 cases, magistrates’ courts and crown courts’ listing and working conditions, further work opportunities for junior criminal barristers. The meeting expanded over an hour and was positive and constructive. The Permanent Secretary, Antonia Romeo, was also in attendance.

Attorney General

On 6th December 2022, we had a meeting with the Attorney General, Victoria Prentis KC.

We also urged upon her the deepening crisis of trials in the Crown Court not proceeding due to lack of barristers to prosecute and that parity of fees to those now paid to the defence is fundamental.

Both Attorney General and Deputy Prime Minister are expected by the CBA to make representations to the Treasury for an increase in fees for prosecution.

Crown Prosecution Service

I communicated further with the Director of Public Prosecutions and met with the relevant senior CPS team, led by Chief Crown Prosecutor, Dr. Grace Ononiwu CBE, who have confirmed that they have taken steps to apply for the increase and will update later in the month. The DPP’s position remains the same as it has been all year – that increase to prosecution fees should follow the increase that was secured for defence fees. Meanwhile, the CBA, through its renumeration committee, has brought together a team of barristers to work on CPS fees and continues to hit the frozen economic ground running.

I raised with both DPM and AG that proceeds of crime funds should be utilised to increase prosecution fees. This money also is the focus of a recent Law Commission report looking at funding of defence fees.

Access the Law Commission Report

Inevitably, this may be longer term and there are legitimate arguments against moving towards the public criminal justice system having to generate its own funds. Ministers cannot profess compliance with core duties to protect all citizens equally from harm and to fulfil an obligation to investigate that harm and yet fail to properly fund prosecution.

Further meetings with the MoJ on this topic are commencing today.

Lord Chief Justice and President of the King’s Bench Division

I met with Lord Burnett of Maldon and Dame Victoria Sharp in a wide-ranging meeting where I also raised the exigency for prosecution fees to be increased to the same level as defence fees. As you know the judiciary are unable to comment on matters relating to fees. However, both Judges restated their already public support for a vibrant and independent Bar. I presented our concerns about the stress that Barristers are experiencing and the court working conditions. In relation to court recovery the LCJ spoke about the work of the Crown Court Improvement Group, of which I am a member representing the Criminal Bar.

It is hoped that you will embrace the improvements that this group will be able to make in the Crown Court, especially around case management. The LCJ also pointed to the Better Case Management Handbook, which the CBA has been able to input into, which will be published early next year.

Positively, we have agreed to meet regularly going forward to discuss issues relating to the Criminal Bar.

Chief Magistrate

The Vice-Chair of the CBA and myself raised with Senior District Judge Paul Goldspring, issues of late listings of trials in magistrates’ courts. He investigated the specifics that we provided and is offering his time to any other issues raised by our members. He expressed his commitment to well-being of Barristers and reiterated that there is no stealth extended operating hours in play. And so do continue to get in touch with any issues!

The Northern Circuit and Manchester

A huge thanks to the Judges at Manchester Crown Court (Crown Square), led by Resident Judge HHJ Dean KC who, on 5th December 2022, gave generously of their time speak to me from the judicial perspective and consider listing.

And further thanks to Lincoln House Chambers and Andrew Thomas KC who organised an informal catch up between members of the Northern Circuit and myself.

Your Views

Are juniors now doing too many FCMHs or mentions and not getting the trial work?
Let us know.

We are working with Heads of Chambers, clerks, and judiciary to best support our most junior around their practices as well as finance and well-being.

We must retain and attract barristers to criminal law work. Also, we must keep the standards high and ensure that our most junior barristers have the opportunity to progress in their work. The two often are linked.

The Deal

The second statutory instrument was laid on 2nd December 2022, two days later than I had been assured. See my previous Monday Message for details.

The S.I. comes into force on 23rd December 2022.

The Criminal Legal Aid (Remuneration) (Amendment) (No. 2) Regulations 2022 (legislation.gov.uk)

The value of the cases affected by the delay will be paid into the Special preparation/wasted preparation/written work part of the deal. The amount is £293,000 and the MoJ will round it up to £300,000.

Response to CLAR consultation

The government’s response to CLAR was published on 30th November 2022, in keeping with its timetable, and a year and a day since CLAR was first published.

The Response can be accessed here

The estimated barristers’ additional fee income is 16% (with AGFS at 17% – table Y).

Pride in the Criminal Bar

Working in legal aid at the Criminal Bar, sights move to better paid work. The fees and working conditions must continue to improve as we progress the implementation of the long-term reform of the criminal justice system.

I cannot thank enough those of you who are working not only on individual cases but also to maintain and preserve our profession.

On 31 December 2022, our first Asian female High Court Judge, Dame Bobbie Cheema-Grubb, finishes her term as Presiding Judge of the South Eastern Circuit.

Having heard my voice for so many months, I thought you might like to hear from her unique perspective. And take pride and courage:

Here is her exit message; from her to you:

It has been a bruising year. No one would have predicted quite the turmoil the criminal justice system has faced in these twelve months since Christmas was cancelled at the last moment and while the Covid pandemic is still a recent event. The criminal bar has had to pull together in exceptional ways and as a life-long criminal barrister watching from not very far away, I have felt proud of the way it has acquitted itself. When I go into court, whether to hear a high-profile case or to do a list of sentences, I see the same daring, fearlessness, and allegiance to justice as I did when I started in practice more than 30 years ago. Juniors who step up to take on the difficult legal arguments, the same integrity providing opposing authorities to the point they wish to pursue. I sit in wonder, watching and listening as members of the bar conjure convincing speeches out of the thinnest material. When representing the vulnerable, the sick and the hopeless, the determination to see the case through however difficult the client, case, opponent (or judge) may be. In one of my jury trials a defence silk demonstrated that barristers still have the power to stun the entire court into silence, in a dramatic gesture during her speech she flung open her gown to reveal a t-shirt bearing the legend “Hear no shit, Speak no shit, Take no shit.” Encrochat had come home. At the case dinner (a complete joy), I was delighted to be provided with my very own copy (as was my clerk.) Long live the criminal bar. Long live its sense of humour, esprit de corps, and devotion to be the best, and make friends afterwards whether you win or lose.

Don’t neglect meeting together in chambers or in the Inns. Do always hold the door open for the next one in. Continue to slip into court to watch all the cases before the one you are in and make friends with the ushers and clerks, they will do you favours and remember you, if you only let them.

And when you are trudging home to open the next digital case remember to switch the computer and your smart phone completely off sometimes. Especially when Christmas bells are ringing, and the only cancellations are of the railway type.

Final Words

In a diary piece in The Times last week, it was written that our Deputy Prime Minister is well- known to have a black belt in Karate but lesser well-known is that I also climbed the belts in Kung fu. I did not propose that we actually have a spar over fees. But we are doing everything else.

Keep the door open. Keep the ladder down. Be kind to yourselves and to each other. Stay professional. And keep sending us the evidence.

Forthcoming Events 

Midland Circuit 

Next stop Birmingham!

I will be coming to speak to and meet members of the Midland Circuit at St Phillips Chambers on 20th December 2022 from 6pm.

It will be straight after the final Heads of Chambers’ meeting of the year.

Please come along. I will answer all your questions and hope that you can share your challenges so that we remained fully informed of what is going wrong in your courts and then move to remedy. And stories of where a court performs well also assists other courts and might help our responsive judiciary.

CBA Executive Meeting and Festive Drinks

The last CBA meeting is on 15th December 2022 at Inner Temple

This will be followed by drinks at Inner Temple and dinner at Tempio Restaurant from 20.15hrs.

Please let Aaron know if you can attend the drinks/dinner.  It is a thank you for all your work for the CBA as well as an opportunity to speak to each other without a screen sapping out our personalities in transmission.

Results of CBA Executive Election 

Thank you to all who stood for the Criminal Bar Association Executive and congratulations to those elected.

To those not elected – your commitment is much appreciated.

Wood Green Crown Court

This is a lovely idea from HHJ Dodd KC. On Thursday, the 15th of December at 4.15 pm, after the courts have risen, the plan is to gather in the ground floor atrium, near the lifts for carols and readings. Culminating in some mulled wine and the inevitable mince pie. All faiths, and none, are most welcome.

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