Monday Message 22.04.13

Headlines:

• Do Right Fear No One: A Proposed plan to Resist the destruction of our legal profession
• The CPS is exposed once more
• Barrister 999 posts a very good piece on PCT
• The BSB starts to lose those who serve it best, and Sam Stein QC reveals the lengths to which they are prepared to go to impose a system which is not in the public interest.
• How the system is losing those who serve it best
• Justice for Sale Meeting 22^nd May
• Spring Conference: Birmingham 27^th April
• Bar Remuneration Committee Reports
• The Sunday Express comes out fighting
• Poetic Justice from our youngest contributor
• Visit the CBA blog for additional info and comment

1.         Do Right Fear No One: A Proposed plan to Resist the destruction of our legal profession.

Now you are all aware of what is proposed by the present consultation it is time to suggest what we should be doing to resist these proposals which will lead to the destruction of the legal profession. We will, of course, respond to the consultation and continue to explore potential judicial review proceedings. We will continue to talk to politicians of every political hue, at least those who are sufficiently open-minded to want to listen. This approach is beginning to bear fruit (see Robert Buckland MP’s stance in the Sunday Express). The strategy we set out below assumes that both the BSB and the Government ignores the representations we make. It was passed unanimously by the Executive Committee of the CBA, on Tuesday, which was very well attended and had full Circuit representation.

 

a)      In the first place we must unite not only amongst ourselves but with our sister profession. Unity is strength. To that end, we are close to forming an umbrella group comprising the CBA, CLSA, LCCSA, SACHA and the BFG (Big Firm Group). Three quarters of the solicitors’ profession doing criminal work will be joining the dole queue if these proposals come to pass. We anticipate that none of you believe this is in the public interest. We therefore propose to do everything we can to assist them resisting these changes.

 

b)      Ballots on the rejection of QASA are now live on all circuits. QASA As you now must understand QASA is not a robust Quality Mark system but simply a device which paves the way to restrict client choice to a single provider and wipes out silks from the publicly funded sector. This, together with PCT, is the death warrant for the publicly-funded criminal Bar and our sister profession. Consider therefore very carefully how you vote. We suggest there can only be one answer.

 

c)      We want all of you to understand what BVT truly means for the profession. To that end, the CBA will be organising either one meeting, or, more likely, a series of meetings, around the country. The Northern Circuit have taken the opportunity to call a meeting to that end today. Rick Pratt QC, Circuit Leader, and Tony Cross QC, who have organised this day, have made it clear this is NOT in any form any kind of “industrial action”. This is a day called to educate, inform and garner the views of Northern Circuiteers.   If we may say so, they approach the matter with great tact and sensitivity, letter to Judiciary HERE. Unfortunately, it is apparent that the judiciary are either not willing or not in a position to assist.  If the CPS think it appropriate to take a day off for their sports day  

it can hardly be said that this kind of meeting is inappropriate. If we are to take any form of collective direct action it must, if it is to be effective, be nationwide, and be conducted in association with our sister profession. The CBA is talking to the criminal solicitors’ representative bodies to ensure that such action is properly planned and co-ordinated.

 

d)     The changes to the AGFS are equally ruinous. The ‘harmonisation’ of the fees for a guilty plea, a cracked trial and a trial are iniquitous: at the same time ‘blaming’ the lawyer for the client’s choice of plea, and, at the same time nakedly attempting to put financial pressure on those lawyers to get their client to plead guilty. Whither the BSB and the pursuit of the principles of professional ethics in the Legal Services Act now? Silence, of course. The ‘tapering’ proposals are similarly designed to put pressure on advocates (and litigators) to cut corners and get cases done more quickly. What price the overriding objective of convicting the guilty and acquitting the innocent? We call it Justice for Sale, and that is the banner for the meeting on 22^nd May. Barristers doing the shorter (and not so short) non-VHCC cases simply cannot make a living at these rates of pay, and, again we suggest that instructions should be refused. Of course, since legal aid fees were ‘un-deemed’ a few years ago, it is perfectly lawful for any barrister to refuse to accept ANY case (even now) and, if the CBA has its way; that is precisely what will happen. Such a stance will also have the advantage of not requiring the Western and Midland Circuits to fight the QASA fight alone.

 

2.         The CPS is exposed once more.

John Hardy QC represented a private client at Isleworth CC (in an entirely minor case, though its minor status does not reduce its significance for a man of good character.) After a PCMH, a PTR was ordered by the Court. Following umpteen requests (and perfectly proper requests) for disclosure, which were not even acknowledged, let alone answered, he turned up for the PTR and the CPS failed to supply an advocate. At a subsequent hearing they conceded through Counsel, that they were liable for wasted costs.

 

In out of time submissions to the Court on the issue of costs this is what they had to say, one presumes with the imprimatur of the DPP.

 

“As a general observation, whilst responsibility was of course accepted by the Crown for the failures as outlined at the last hearing, it was nonetheless made clear that these failures were born out of the unmanageable workload currently being undertaken by the CPS, coupled with a steady decrease in financial resources directed at that organisation. The Crown would therefore ask that this overriding point be borne in mind when the question of quantum is decided.

 

Further, over and above the observations as to the defence’s requests for reimbursement detailed below, the Crown observes that a proposed total of £       in costs unnecessarily incurred seems excessive, bearing in mind that the matter has not yet even reached trial, as well as the likely cost to the taxpayer of the entire trial process that would have been incurred had the defendant taken advantage of legally-aided representation. The Crown of course do not question that these are sums in fact incurred by the defendant. However, it is submitted that, given the difficulties currently being born by the CPS outlined above, the granting of costs in the order requested would go beyond redressing a party for work unnecessarily undertaken (as discussed at the last hearing), and would become excessive.”

 

Might we suggest that the DPP be this frank with Mr Grayling and the public it serves, so that he, and it, can understand the dire state of our prosecution service.

 

3.         Barrister 999 posts a very good piece on PCT

Barrister 999 posted this excellent piece on PCT HERE.  We look forward to reading more.

 

4.         The BSB starts to lose those who serve it best, and Sam Stein QC reveals the lengths they are prepared to go to impose a system which is not in the public interest.

Jonathan Kinnear QC who has served the BSB and the profession so well for many years, resigned last week in disgust. Read what he had to say HERE.

 

When, you may ask, will the BSB start to listen to common sense?

 

            On 17 April 2013 09:54, Simon Myerson <> wrote:

Hi Andrea,

My apologies for tonight.  I had hoped to make it, but I am dealing with my Circuit’s response to the latest proposals, and the only time we can meet this week is tonight at 530. 

I have some comments on the Agenda items, which I would be grateful if you would relay. 

[X chambers]: I agree with the proposals. I think we need to look at a power to prevent barristers engaging non-qualified individuals, as per the SRA. For the time being, the Head of Chambers is responsible but that doesn’t deal with the protection of the public point. 

[Y solicitors]: I am against ATO status because the new proposals are not very different from the old. 

[Z chambers]: I am in favour. 

Congratulation to [name] and [name]: I am in favour!

More contentiously: Advocacy Training: Test to be applied. I am wholly against for the following reasons:

1.        QASA is a thoroughly bad scheme. I have written about it on my blog and you can find the link here – http://pupillageandhowtogetit.wordpress.com/2013/04/07/questions-to-which-the-answer-is-obviously-no-part-1-does-qasa-measure-quality/. I say that not to encourage traffic, but to make the point that I have read it in detail. If QASA is a bad scheme, we should not be aligning our own standards with it. The best that the BSB has thus far said is that QASA is the best we could get because we have to negotiate with the other professions. Regardless of the wisdom of that stance, if that is the best the BSB can say about it, why on earth would be seek to enshrine it for all?

2.    Imposing QASA standards via the Inns would take it further than the criminal bar and into all areas of practice. One of the key points about QASA is that Silks must be quality assessed against the same standards as juniors. That diminishes the value of status of Silk. Whilst the government wants to do this to drive costs down in criminal cases – for which it largely pays – the legal system earns £20.9 BILLION pa for the UK economy (source: our beloved Lord Chancellor in March this year). A great deal of that money comes because of the confidence in the Bar and its senior practitioners. We would be barking mad to undermine that confidence by imposing the QASA standard on anyone, let alone those who are to to be subjected to it in normal professional life. 

3.    QASA does not have the confidence of the profession. Really respected figures, such as Nigel Pascoe QC have called it a bad scheme. The Northern Circuit has balloted its members and has recorded only 2 votes in favour and about 450 against. The North Eastern Circuit has voted against QASA. The indications are that the SE Circuit will do likewise. The BSB is at serious risk of boxing itself in as it is and should not take the further risk of allying its own view of advocacy standards with QASA. 

4.    We have always striven to be a Regulator which is responsive to those we regulate. The BSB’s current stance to criminal practitioners is that if they do not sign up to QASA they will not be permitted to do publicly funded work. Assuming all questions about the legality of this and how it interacts with the Code of Conduct are answered in the BSB’s favour, it would still be a bad idea. If QASA then turns out to have insufficient judicial support (there are very large Crown Court Centres where the Judges have made it quite clear they will simply not assess people) there will have to be a retreat. The BSB ought not to mire itself any more deeply than it already is. 

5.    The BSB is too much invested in QASA for this decision to appear to be anything more than sacrificing pupils and the profession to the current political campaign. Ruth Deech has – foolishly in my view – dismissed those against QASA as a noisy minority. That is so evidently inaccurate and patronising as to persuade huge sections of the Bar that this is now personal for the BSB. That is woeful leadership and we should not have to die in a ditch because of it. The profession was looking for a transparent debate on QASA and a willingness to understand its concerns and address them. Instead it has had lectures and patsies being put up to explain why everyone is wrong. None of those patsies make a living from criminal law. The anger is intense and a decision along the lines proposed will serve only to convince even more people that the BSB is not regulating, so much as campaigning, threatening and enforcing. In the end we will be perceived as the SRA for barristers and good people who currently assist the BSB will not do so. They will be replaced by the kind of people who do not mind going to war against their own profession and I do invite everyone to step back a pace and ask which of their colleagues that might be, and whether that is how they wish the BSB to be. 

I have always been involved in the regulatory side of the profession and I have always promoted and defended the BSB on my circuit and more widely. I believe in self-regulation, with lay oversight and participation. But simply having that process does not mean the aim is achieved – we also have to make good decisions and this would be a bad one.  

My own clear preference would be to do so and to impose a standard which we can actually rely on and measure. The QASA standard for level 1 advocates involves 78 separate assessments. The first 3 deal with the critical area of accepting instructions beyond competence (a disciplinary offence) and are not measurable as regards pupils in their 1st 6. 4 standards are concerned with skeleton arguments which – if drafted – would require the assessors to be familiar with the case. 14 standards deal with xic and xx and would therefore require the exercise to be a fully-fledged mock trial, involving attacks on witnesses credibility and character. 7 standards deal with case progression and would require at least one PCMH to be included in the assessment. 5 standards deal with vulnerable and expert evidence. 5 standards deal with sentence. 6 standards deal with client communication. The exercise involving all these standards could not be completed properly in less than 1 day and would involve volunteer clients and witnesses. Otherwise we eliminate 51 of the 78 standards and the exercise is meaningless. 

I know of not a single set of Chambers which plans to bring its own assessments into line with QASA – and I have asked. The paragraph above does not touch on the argument that the standards themselves are overwrought, overly concerned with process rather than quality, unmanageable and largely meaningless. I am simply addressing the administrative issues and the impossibility of doing what the Committee is being asked to do. 

If, as a fall-back position, the Committee prefers to postpone full discussion of this topic then (as things currently stand) I would be available for the September meeting – which will have to be moved because it falls on the eve of Rosh Hashannah and will thus be inconvenient for a number of us (not to mention being non-diverse!). I am in the High Court in Leeds on the June date. If we decide to impose our own standard I would be delighted to volunteer to be part of a group helping to set it. 

I have confined this email to you and Sam in the first instance, because I am aware that the proposal is signed by both of you and I did not want to launch into this without emailing you both first. However, I would like this email to be put before the committee members tonight as it is what I would have said had I been able to attend. 

Best.

From: STEIN SAM <[email protected]>
Date: 18 April 2013 18:37:19 BST
To: Simon Myerson <[email protected]>
Cc: Andrea Clerk <[email protected]>
Subject: Re: Tonight

Dear all,

Simon is a very good hardworking member of the PSC who provides a real resource for Northern-end pupillage problems to be worked on and resolved. It is rare that he can attend the meetings but he always contributes to our email debates that often are the only way of solving the time limited problems that we deal with.

Simon is also a passionate anti-QASA voice. I agree with Patricia that we should not overreact to the tone and take on board the good points. We can deal with the harmonisation of the pupillage training/QASA at a later stage. We have bigger fish to fry and we must sort out the advocacy pass test asap as this is a disaster waiting to happen.

In the midst of the submission or rant from Simon he mentions that the judges are unlikely to join in with our QASA plans. This echoes what I said at a meeting with Vanessa, Oliver and Vicky that if the judges are being persuaded by their mates not to take part we are going to be screwed. This must be addressed very soon through the LCJ and Thomas LJ. If the judges won’t take part and tell the bar that they won’t the bar will be able to reasonably say that the system does not work. The knock on effects are too awful to contemplate. Let’s use Simons missive as a useful warning that should compel attention to this problem.

The determination to plough on in face of overwhelming argument against QASA must raise the question “ What is in it for them” ? Certain it is, that a wish to protect the public interest can-not be any part of the motivation.

 

5.         How the system is losing those who serve it best.

Many of you know an exemplar of our profession, Nigel Rumfit QC. His was lost to our justice system some three years ago as a Recorder. With his permission I publish his resignation letter HERE.  When many follow what is far more than a principled stance, there will be no replacing them. So much for a policy of seeking short term headlines which ultimately cost the public many more millions that are ever saved.

6.                  Justice for Sale Meeting, 22^nd May.

Please come in your droves.

A meeting to consider the consultation document open to Solicitors and Barristers will be held at:

Friends Meeting House, Euston       

22nd May at 2:00pm

Registration from 1:30pm

The meeting will be addressed by representatives of the CLSA, LCCSA, LAPG, SAHCA, The Law Society and the Criminal Bar Association.

Full details HERE

 

7.                  Spring Conference, Birmingham, 27^th April.

While you may not be interested CPD points at this point in the year, you may be interested in your future. This will give you an opportunity to gain an understanding of what is to come, and to express your views.

 

University of Birmingham

Saturday 27th April 2013

6 CPD

Further details and how to book HERE

 

8.                  Bar Remuneration Committee Reports

The Bar Remuneration Committee publishes excellent reports, which are only read by 100 people. We suggest they are worth a view HERE.

 

9.         The Sunday Express comes out fighting

There are still those who say we are not getting the message out there. I beg to differ. If the Sunday Express is sufficiently concerned to publish this, many may follow.  Read the article HERE.

 

10.       Poetic Justice from our youngest contributor

Maisie Cohen, the brilliant 12 yr old daughter of Ross Cohen of Furnival Chambers, knows our system is in trouble and sent me her thoughts in this poem. Sometimes our children can say things rather better than we can. I hope this is the starter of more such contributions. Well said Maisie,

 

LONG LIVE THE LAW

 

Imagine a life without any law,

Pickpockets and thieves would just want more,

Criminals and bad people ruling the streets,

Everyone’s goal would be to lie and cheat.

 

The judges, the lawyers and the solicitors too,

sadly they would have no more cases to do,

The courts would be empty, and the seats would be bare,

The prison cells would be open and no-one would be there.

 

I wouldn’t feel safe even at home,

I’d feel anxious and nervous when all alone,

What if a burglar came knocking at my door?

Screaming and shouting and just wanting more.

 

We are lucky today that we are all safe and sound,

Criminals and bad people are not to be found,

May we live protected and free forever more,

 

LONG LIVE THE LAW!

 

11.       Visit the CBA blog for additional info and comment

The Monday message is becoming akin to a weekly newspaper. It is an onerous task and I will often miss some important stuff. Our blog hopefully picks up the stuff that I miss so be sure to visit HERE.

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Do Right Fear No One

Michael Turner QC

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