Monday Message – 17.04.23
“What have you done for mankind today?”
This was the question Donald Ferencz reported to have been asked of him and his siblings as children when their father returned home from work in the evening.
The father was Ben Ferencz who died on April 7th 2023, aged 103 years’ old. He was the last surviving prosecutor of the Nuremberg trials.
At Nuremberg, Ferencz became chief prosecutor for the US in the trial of 22 officers who led mobile killing squads known as Einsatzgruppen, part of the Nazi SS. The squads targeted Jewish people, Gypsies and others in European countries occupied by Germany. They actualised more than a million deaths.
Ferencz’s opening speech was sown with these words:
“It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenceless men, women, and children”.
The horror that did not then have the name of genocide was addressed by Ferencz:
“This was the tragic fulfilment of a program of intolerance and arrogance. Vengeance is not our goal, nor do we seek merely a just retribution. We ask this court to affirm by international penal action man’s right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law,”
He repeated the case of a plea of humanity to law over 60 years’ later before the International Criminal Court when he delivered the closing prosecution speech in 2011, at the first trial before the ICC in the Hague, of the Congolese warlord Thomas Lubanga Dyilo.
He then was 92 years’ old.
But what of the question to his children?
The reply was remembered by Donald as being along the lines of having done the washing up, but he also recalled out of the tangles of domestic life a strong message of wanting to leave the place as he would have liked to have found it, a better place.
Barristers in criminal law each day shrug on their gowns and wigs and step into the courtroom with a piece of humanity in their hands. They apply the criminal law framework to the facts and explain the actions of their clients in ways that cannot be articulated by the sometimes withdrawing and battered person in the dock. They prosecute the rapes, the murders, the terrorism cases and the frauds of the elderly, the trusting and the vulnerable.
What have you done for mankind today?
The answer is before the public and increasingly is being recognised.
You have delivered justice.
It is within each you and you should be proud.
Crown Court Open Days
It was a grey drizzly day at Wood Green Crown Court on 6th April 2023 and nudging onto public holidays.
I blinked at the line of people from the court door snaking along the pavement.
I flashed back in trauma to being at the back of queue in the days before the magical Bar Council barrister card (renewal from 24th April, by the way) but then snapped back to the present and the phenomenon which is Crown Court Open Days.
Wood Green Crown Court was attended by 1300 members of the public.
The CBA stall was expertly organised by our junior barristers, Anneka Sinclair Jenns and Clara Sibanda and they deftly answered questions from a constant flow of people. Some of those people were students with their hearts set on the Criminal Bar.
Shaun Wallace of The Chase fame and, of course, the Criminal Bar fame tirelessly provided autographs and photos.
The Mayor of Haringey, the High Sheriff for Greater London, the Deputy Lieutenant for Haringey and the MP for Wood Green and Hornsey were in attendance. The MP even publicly acknowledged the importance of legal aid, after a few quiet words with yours truly.
Criminal barristers, including South – Eastern Circuit Leader Leon Kazakos KC- prosecuted and defended in mock trials with one Judge embracing her acting skills as a defendant in the dock.
I spent much of the day at the front door, a bewigged spectacle, happily crouching down for children to touch my wig, repeatedly denying that it was made of sheep’s wool, silk or plastic and telling anyone who would listen about the life of a criminal barrister.
I also am told that around 2000 people attended Norwich Crown Court and 3000 went to Winchester.
Following my own advice of having a photo taken with someone who makes you look good, here’s a photo with the Metropolitan Task Force horses PH Yonkers and PH Wilbur and Resident Judge HHJ Noel Lucas KC.
The public cares about its Criminal Justice System
The backlog of cases is at 62,440 with one in eight being alleged sex offences. It is the first time that the backlog in rape cases has passed 2,000.
Even if political parties have demonstrated little care for our once great criminal justice system, they should pause over the numbers of people spending an Open Day at courts and, if this is the only sorry driver, rethink an approach that there are no votes in criminal justice.
These were communities across the country placing their arms around each other and around our criminal justice system.
They care.
Court Working Conditions
Let us know your favourite Crown Court café and also courts where there is real need for refreshments.
Contractors need to be attracted by a business case and we can help officials demonstrate that there is a market.
Baby steps around the need for a cup of tea but we’re linking where required to examine our day to day working.
Prosecution Fees Increase
In a letter on 14th April 2023, the DPP and Interim Chief Executive, have confirmed my previous message that increases to prosecution fees will come into effect from 2nd May 2023 here.
The CPS position is that this is the expedited two-month timetable once meetings had concluded. We worked to get implementation as soon as possible.
All changes will apply to existing and new cases from 2nd May 2023 and to new or ongoing VHCC stages. Currently software changes are being made and tested.
In addition to the work from September 2022 setting up a working group with the CPS on the required fee increase, the CBA has continued to work on the detail. In summary:
- All CPS fee rates increased by 15%, including the GFS, the VHCC and magistrates’ court and Youth court arrangements.
- an increase to VHCC Led Junior rates to pay the equivalent of the revised VHCC Junior Alone rates.
- A 10% case uplift for sentence hearing where multiple cases are sentenced on the same day.
- Introduction of a new fixed fee of £670 ex. VAT for section 28 cases. This is subject to review (as is the AGFS bolt-on)
- Streamlined Forensic Reports within the GFS page count.
There remains further work to be done and the CPS has committed to reviewing payment on sentencing notes with full assessment/discussion between the CPS and CBA/Bar Council in June 2023.
Thanks to the CPS team, particularly Michael Hoare and Tristan Bradshaw and to Adrian Vincent from the Bar Council and to Tom Little KC and Louise Oakley from the CBA and Bar Council Remuneration Committees.
Defence Fees
Trust is slowly earned, but we have paused digging the grave of reason.
Potential names of an independent Chair CLAAB now have been submitted to Ministers.
The next meeting of CLAAB is on 25th April 2023.
The bolt-on fee related to the last part of the deal applies to Representation Orders from today, 17th of April 2023. It is unsatisfactory – although the benefit should most land on our Juniors.
There will be a further review in July 2023.
The breach relates to the non-implementation of the further payment where there is over three hours’ work and a limitation on the wasted preparation payment.
In Minister Freer’s letter dated 27th March 2023, he at least committed to breaking away from the past pattern of underspend (bold added) and the pressure remains on for all money committed in the deal to be spent over the Spending Review:
“The Lord Chancellor committed to expending an additional £3.3million on fees for preparation during the current Spending Review (SR) period. Given our Crown Court case volume forecasts, I anticipate implementing a fixed fee of £62 (+VAT) is the fastest way to expend the funding and will enable the MoJ to disburse the full amount by the end of the period. The Legal Aid Agency will implement a straightforward claiming process to promote a high level of take-up by practitioners.”
And:
“The Government remains committed to harnessing the principles described in CLAR and CLAIR, in consultation with the CLAAB, to optimise advocate remuneration for publicly funded defence work with the aim of supporting Covid recovery, wider criminal justice reform, and sustainability of the professions. It is clear to me that the Criminal Bar played a pivotal role in the Courts’ return to a stable footing as the country emerged from lockdown, and erosion of the case backlog which had accumulated during the Covid period. I welcome the open, collaborative approach adopted by the CLAAB to date, and trust this will endure as we strive to realise our shared long-term goals.”
The bolt-on is supplemental to existing claims that can be made for special and wasted preparation.
Executive CBA
We held an urgent Executive meeting on 4th of April to discuss the breach of the last part of the deal.
As I expressed, the breach is not being ignored.
The Executive confirmed that we should set up a National Zoom as I trailed in my last Monday Message. The options we considered at Executive level will be further discussed.
I also will be able to take questions and clarify information.
Keep an eye on your inboxes for details.
Meanwhile, we continue to work with officials and politicians to progress.
The value of the deal remains adhered to; and the impact of the latest part means that the total increase to defence legal aid is upwards of 17%.
CBA Podcasts
The CBA is launching a podcast series from tomorrow.
It is called “Criminal Justice Matters” and is the CBA’s examination of the criminal justice system.
It is an insider account from those who know.
The first episode is a discussion between Laurie-Anne Power KC and myself.
I will interview barristers, students, Judges, experts, politicians, NGOs in the forthcoming episodes.
Episode One is called “Strike Action” and will be available here from 18th April 2023.
This is a first. It is new.
Please support the series and engage to help us get better. Hashtag it and get behind it.
We want it to be the start of educational communication, myth busting and some inspiration for those who might want to stay or join us at the Criminal Bar. It also aims to influence and affect change.
We have a list of topics we will cover but do contact us with ideas of content and speakers.
Bar Council Pupillage Data
Over the past five years the number of pupillages advertised by Authorised Education and Training Organisations for pupillages with criminal practice has remained static, increasing marginally from 210 in 2018/19 to 218 in 2022/23.
This is cautiously positive news although we are seeking more data which will assist with the extent of the retention challenge which we all feel and experience.
The predominant areas of practice in which the number of pupillages advertised has decreased over the past five years are:
- Employment (by one)
- Professional negligence (by two)
- Public law (by six)
This data should be read alongside the Bar Standards Board statistics.
Education
Another well-attended event on social media took place on 13th April 2023. With thanks to Charlotte Newell KC and Paul Jarvis, Joint Chairs of the CBA’s Education Committee.
Thanks to our speakers the Secret Barrister, Danny Robinson KC, Bar Council Ethics and James Rossiter, the CBA’s communications director.
The Secret Barrister has secured his place as the Criminal Bar’s national treasure.
We all are watching for the rabbit to drape a silk jacket over his bunny shoulders.
The next CBA education seminar is here
CBA Conference
We are looking forward to the dinner on 9th June 2023 and the Conference on 10th June 2023.
Please do come to meet and spend time with colleagues and friends, support the CBA and also learn. Sadly, I’ve realised that I actually never will be too old.
Book here and spread the word!
Reading Crown Court and Listing
Resident Judge Heather Norton KC provides her Spring Update from Reading Crown Court here:
{The listing proposals seem sensible but let us know your thoughts}:
“In the light of the relaunch of BCM and the SPJ’s guidance on listing; and having spoken to several sets of chambers, we are going to trial a new way of listing. We cannot see any way in which we would be able to operate effectively without a warned list, but as of January 2024:
- We will trial a one-week warned list rather than a 2-week warned list; and
- We will only list 5 cases in each 1-week warned list; and
- We will only put cases into a warned list that have a time estimate of 1-3 days
Our hope is that this will greatly increase the chances that a warned list case will be called in; and if it is called in on a Tuesday or Wednesday, it removes the risk that a judge or jury that cannot sit into week 2, will still be able to take and complete the case.
All other cases will be given either a fixed trial date, or given fixed-floater (backer) status.
All fixed or fixed-floater cases will be given a PTR 5 weeks before the trial date.”
International
I am attending a roundtable meeting with Indian Judges this evening, on the kind invitation of the Bar Council, following the CBA’s ongoing work to open up opportunities of international criminal work to our talented criminal law barristers.
Those who have expressed interest in the CBA International Committee have been noted as the committee is rapidly revived. Thank you.
Meeting with the Lord Chief Justice and Attorney General
Both meetings are happening this week.
If this were your dream dinner party, but sadly without the food, alcohol, music and within a business setting, what would you want to ask?
Criminal Bar Association Young Bar Committee
Please complete the survey here
Global Investigations Review
This conference is at Allen and Overy on 27th April 2023, focussing on financial crime enforcement and investigations. Two free tickets to the CBA junior Bar have been taken up. There remains a 10% discount for CBA members, and it might be one that you can persuade your chambers to invest in for further attendance by juniors. Further details are here.
Women in Criminal Law
A plug for WICL. And why not? They are wonderful.
Mentoring breakfast at The Happenstance in Paternoster Square 9-10.30 am on 19th April. RSVP here.
Final Words
Leibniz dreamt of a universal language that would depict thoughts so clearly that all problems would solve themselves. Criminal Justice would be a breeze in joined up logical MoJ calculations. Sadly, the universal calculus died with Leibniz in the early 18th century, amidst ridicule.
Means to achieving ends remains a solid step towards rationality, and our instrumental reasoning can be turned effectively on ourselves as well as on our cases in court.
I remain ahead and alongside, with my actual and electronic door open.
Keep delivering justice for mankind, keep fighting for each other and for our criminal justice system, keep communicating and keep well.
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