Monday Message 24.02.20

FEES UPDATE:

Last week we met with MOJ to discuss the consultation round which is imminent regarding MOJ’s proposals for the accelerated asks.  We understand that MOJ are intending to release the consultation very shortly so please watch this space.

ACTIVE ENGAGEMENT:

You will be able to provide written responses to the consultation, but there will also be round table discussions out on circuit, so that you can make your views known in person. It is likely that these will take place in:

• London
• Bristol
• Cardiff
• Birmingham
• Newcastle
• Manchester

This, of course, is subject to confirmation and dates will be advised. This type of discussion in the recent past has been extremely effective. We cannot emphasise enough that it is so important for there to be as many people as possible engaging in not only the round tables, but in the consultation process generally.  This will be your opportunity to express your views, considered thoughts and perhaps, in some instances, solutions to some of the issues which will be raised.

The payment system of legal aid fees not only has to change but has to be updated; there is clearly a need for the wider reform of the Advocates’ Graduated Fee Scheme and so the more input that you can provide the better informed the MOJ will be as to what life is like as a criminal practitioner and where it can be improved. We have an improved working dialogue with the MOJ and the Lord Chancellor is keen that practitioners have a say. Take this opportunity to express your views. We have been setting out in clear terms what is needed and so we need you to engage please. The three immediate asks are merely the beginning.

We need a thriving criminal Bar with independent advocates who are beholden only to their clients and indeed the Court.  We do not want to see the profession withering away. Thus, your engagement in this process will ensure that the criminal Bar has a very positive future.

COURT SITTING:

As usual the story is one of lack of Court time. It is shocking.

MAIDSTONE CROWN COURT:

Counsel informs us that two of their PTPHs listed at Maidstone for 21.02.20, both of which were likely to be guilty pleas, were taken out of the list the day before at lunchtime because of “trials overrunning and shortage of courts” (only 5 sitting); both matters were moved to a day which was inconvenient to counsel, where counsel was instructed to prosecute the sentence of a 14-year-old after trial/plea of serious sexual offences. The Court refused to re-fix for counsel’s convenience the hearings even by one day without any apology or acknowledgement.

UNHELPFUL AND COUNTERPRODUCTIVE:

This approach is just wholly unhelpful in circumstances where counsel has been involved in proper case preparation, discussions with the solicitor, discussions with the clients and a fixing of the barrister’s diary such that the barrister is able to conduct a practice. Never mind other court users.  The wanton disregard for the work that counsel is undeniably putting into their cases is frankly outrageous and needs to stop. There is an increasing habit of those who are under pressure in listing not even to have the courtesy, or perhaps time, to pick the phone up to counsel’s clerk and inform them that this is going to happen. We would ask Resident Judges to encourage wherever possible communication with counsel’s clerks and allow flexibility. We are all under pressure.

SPIES ARE US – WARWICK CROWN COURT:

Each week I write in the message as to the lack of court sitting and the fact is that this topic is not going to go away. We are all particularly grateful to counsel who bother to write in: it is all logged and so I can report that last week an email was received indicating that at Warwick Crown Court three of the four courts were empty on

• Monday 17th February
• Tuesday 18th February
• Wednesday 19th February

On Thursday 20th February only two out of the four courts were sitting. How on earth do those in charge ever expect to see the backlog of cases reduced and complainants have their cases heard in a timely way?
It beggars belief that the recruitment, induction and training of Judges, which is expensive and has to be to a high standard, is not being maximised. How on earth is that a proper use of time and resources??

JUSTICE AT BREAKING POINT ACROSS THE BOARD – JUSTICE ON THE CHEAP:

The following is from an individual who I am anonymising because they sit as a Deputy District Judge. They have sent in an extremely apposite email. The information is that they, along with their colleagues, received a few weeks ago an email telling them that there would be no sitting dates during March 2020 and that any provisionally arranged dates in February would be cancelled; apparently there was no budget left for fee-paid DJs in this financial year. No doubt, it would be anticipated that any consequent shortfall in court cover could be met by Lay Justices provided, of course, that there are sufficient legal advisers available. However, that is not an answer.

At that Magistrates’ Court (I have the name of that court but to protect the identity of the DDJ I am not naming it), in one court there were 30 cases, and other courts were manned by a DJ and DDJ and Lay Justices. The listing was heavy in all courts. This particular DDJ completed their list at 5:15 having sat from 10:00 with a reduced short adjournment; other courts had to sit well beyond 5:00pm.

The complaint, amongst others, includes the effect on an individual having to manage 30+ cases; so what on earth is going to happen at the back end of February and March when Lay justices have to dispense fair and reasoned justice if similar listing is repeated? I am reliably informed that those types of figures handled by professional Judges are not unusual.

Thus, unhappily, it appears that the Magistrates’ Courts are suffering from the same problem that the Crown Court has been experiencing, i.e. a lack of proper funding. Our correspondent writes that a cynical person may conclude that the money to fund DDJs has been switched across to the Crown Court. Whether that is right or not is only part of the problem. High-handed and without consultation decisions lead to a distinct feeling of a lack of value in the system. Battle fodder or a sausage factory, however one wishes to term it, it is not good.

JUDICIAL COMMENT – CASE TAKEN OUT:

We all know that Judges are constrained by their role and cannot comment on the appalling situation at the Crown Court. I am not going to name the Judge but there was such an apology in Court. A case – a highly sensitive case involving professional defendants – which dated back to October 2018 and which had a listing date in February, was administratively put back by a day and then listed for a mention to fix; the Judge apologised in open court, saying that there was not enough court sitting time, that the trial could not be accommodated and that there was no Judge (or indeed Recorder) to hear the case. That case was adjourned to September and four counsel had their diaries for the week decimated, never mind the hours of preparation wasted simply because the court could not accommodate a case on the date set at a PTPH in August 2019.

Is this really for real? YES. It is utterly undermining of confidence in the justice system. No wonder complainants, witnesses, judges and barristers are at their wits’ end; which leads me to invite you all to consider very carefully the issue of wellbeing and the lack of a wellbeing protocol in the criminal courts.

WELLBEING PROTOCOL:

In short there is nothing for the criminal Bar.

The wellbeing of barristers in the criminal courts is not a priority and indeed does not appear to be considered as a proper and appropriate safeguard. This is particularly disappointing when one looks at the incredible forward-thinking protocol established in the Family Division.

We need to ensure that we have a protocol in place for the criminal Bar; the wellbeing memorandum by the family court covers sitting hours and emails. Now of course agreement as between barristers individually when emails are sent is a matter for those barristers, but there are some junior barristers who do not feel able to stand up and express concern as to the emails sent at all hours during a case, and these include emails from the Judiciary.

We really do need to encourage the senior members of the profession, and indeed the senior members of the criminal judiciary, to recognise the fact that there has to be a proper work/life balance. Small adjustments in how we practice in our daily lives can provide massive breathing space. We have to transform the current culture of working 24/7. Even large city firms with enormous private client bases are indicating that there is a moratorium, a cut off time for emails.

How is it that the criminal justice system, when it is so busy protecting members of the general public, is not able to regulate itself, by encouraging the adoption of protocols whereby this matter is discussed in court, so that everybody understands the ground rules, so that it becomes something not to be ashamed or embarrassed about, but is something to be encouraged and recognised?

In a trial that I have recently been conducting, counsel was having to email at 2am and 3am and indeed I regret to say that I was one of those responding and working at such hours and then going on to conduct a full day in Court. Attached is a link and we are inviting all practitioners to send in examples of when they have found themselves emailing late at night, dealing with skeleton arguments and not having adequate time even to draw breath.  There has to be, and soon, a culture change. Email us.

FILM OF THE WEEK:

RAY AND LIZ – It is tough and gritty – the backdrop is Thatcher’s Britain and story of a family torn apart by poverty and neglect.

Onwards and upwards