Monday Message – 16.11.15
Chairman’s Update:
Mark Fenhalls QC
Networks at Court and BCM
Many of you wrote last week complaining about a link and difficulties in registering for the new internet network at certain crown courts. I used this link HEREand followed the instructions. The starting point is that you have to send an email to [email protected], giving your name, email address (NOT cjsm), and a contact phone no.
On a separate but related note, please see the latest BCM newsletter from the SPJ HERE.
“Electronic Evidence and PPE”
In August the Bar Council was invited to intervene in the CACD in R v Furniss, a renewed application for permission to appeal against conviction, to be heard on 13th October 2015. The President had indicated that he would review the page count ruling of Haddon Cave J, having regard to the conflicting first instance authorities (R v Napper [2014] 5 Costs LR 947 and R v Manning & others (unreported, 3rd April 2015 in the Crown Court at Manchester.) But in due course Fabandoned his application and the hearing did not go ahead.
Now the Bar Council has been invited to make written representations in a forthcoming costs appeal on 24th November. It will make submissions on general principles, not on the facts of the appeal. These submissions have been prepared by Alexandra Healy QC (she chairs the Remuneration Committee). I am delighted to have this chance to thank her for the vast amount of work she has done for all of us on this vexed topic over the years. All advocates owe her a great debt. In the context of this letter, I cannot begin to do justice here to the range of arguments and evidence, but I will mention a few key elements.
When the graduated fee structure was devised telephone (and banking) evidence was routinely served as hard copy evidence. This is not accepted everywhere and it is probably the key question that needs to be settled. Such material (unlike CCTV for example) was never meant to be included in the base fee.
In 2012 when payment regulations were amended, assurances were given to the Bar Council (and the Law Society), that the ‘status-quo’ would be maintained in response to concerns raised about telephone and banking evidence. The MoJ wrote to Parliament stating that the new practice was not intended to change the status quo, as far as what should or should not be paid. The Bar Council and CBA have always maintained that since evidence of this type would previously have been served in hard copy, it ought to be remunerated as PPE in accordance with the LAA’s own guidance.
Unfortunately this has not always happened and this has given rise to disquiet and distrust on the part of some practitioners. Over the years, there has been a well-documented, relentless drive to reduce the fees paid to the publicly funded criminal Bar, but at no time was this move to digitization meant to lead to a further assault on the level of those fees.
On the 5th February 2015 the LAA issued guidance“Claiming Electronic Evidence as Pages of Prosecution Evidence (PPE) – Supporting Evidence following the Costs Judge decision in R v Napper.”
This guidance indicates that telephone evidence (for example) would ‘ordinarily be counted as PPE’. To that extent it is welcome and all advocates would be wise to address the guidance in their fee claims. But it remains a source of aggravation to many that the Guidance imposes significant bureaucratic and administrative burdens on the advocate in providing supporting evidence to establish that claim. Such complexity is wholly alien to the formulaic, administratively simple process that it meant be captured in the calculation of a graduated fee.
Two Tier
For those who missed Friday’s email, the Government announced that “two tier” has been postponed to 1stApril. The procurement law challenge(s) are listed for an application next Wednesday to join the cases together so that they can be dealt with as group litigation. There is more detail in last Friday’s law gazette article.
The aggrieved solicitors launched JR proceedings last Thursday. Any reader of this column who wants to support the JR challenge can join the “Fair Crime Contracts Alliance”. Membership costs £100 and payment made to: Edwards Duthie client account , sort code 205304, account number 73614131. The payment reference should be your name followed by TEN39/2. It must be a personal decision for each of you whether or not you wish to contribute in this way.
A Plug
Next Saturday the Centre for Criminal Appeals and the Criminal Appeal Lawyers Association are holding a one day conference entitled “Criminal Appeals in the Age of Austerity”. There is an impressive range of speakers and organisations on display and even the promise of the AGM for anyone interested in joining CALA.
CBA Executive Committee Elections
Please make sure that when the time comes that you vote.
We have six candidates for the 2016 CBA Executive Committee Election and five available seats.
Over 7 Year’s Call:
Paramjit Ahluwalia – Garden Court Chambers
Keir Monteith – Garden Court Chambers
Sarah O’Kane – Goldsmith Chambers
Under 7 Year’s Call:
Emma Fenn – Garden Court Chambers
Michael Polak – Churchcourt Chambers
Colin Witcher – Churchcourt Chambers
You may cast your vote by logging into the CBA website and voting via the link in your summary page. In the alternative you can submit a hard copy vote, please print off the ballot form HERE and return to the address on the Ballot form before the closing time at 16.00 on Friday 27 November 2015.
Thanks
Last Monday I had the great pleasure of attending the LCCSA’s AGM dinner as a guest of the Association. A number of new officers were elected and I would like to wish them well for the year ahead.