Monday Message 25.11.19

KNOCK KNOCK
WHO’S THERE?………..
ABSOLUTELY NO-ONE:

Well, the absence of significant recognition amongst the political parties as to the continuing collapse of the criminal justice system was not a surprise. After having waited for the final political party to produce its manifesto, there was nothing. We have noted the views expressed by some of the political parties, but the overall position is that it simply underlines the fact that they are all long on words and short on action. We need a cohesive programme of positive investment.  A little here and a little there is no good nor is it sufficient. Is the age of austerity really over? If the answer is yes, shine a bright light on the criminal justice system and the unsung hero’s who make it happen.

BAR CONFERENCE 2019:

It was a privilege to represent the profession on Saturday where I was part of a panel in which the leaders of each professional body were in conversation. As part of the preparation, our chair Jon McLeod, who coincidentally did a brilliant job, asked each for a pithy quote incorporating a wish for the profession. I leave it to you to judge if it was pithy. I did ad lib but frankly, I could have gone on for days.

In anticipation of the startlingly underwhelming approach of the political parties I said the following by way of an introductory “wish”
In the time -honoured way, albeit we were all sat behind a table, I did stand to deliver this:

I would like politicians to stop treating criminal justice as a political football
I would like politicians to stop making this the subject of political soundbites
I would like politicians to stop making policy decisions omitting to understand how they are going to be implemented
Yes, invest in the recruitment of police, some 20,000, which is 43,000 in reality on present attrition rates
Yes, invest in the ability to improve the quality of rape prosecutions and support,
BUT stop failing to recognise the powerhouse that delivers all of this, that is, the criminal courts
The Courts, the Judges, the lawyers
Judges demoralised, practitioners demoralised, shouldering all of this
Buildings falling apart
If the courts are not sitting they cannot deliver justice
So what do I wish for?
Give us more sitting days so that there is access to justice
Improve the pay for junior members of the Bar so that when they travel to court their expenses are covered
Give us buildings that work
Above all invest in our criminal justice system 

I know that there was so much more I could have said but that was my opening gambit.

OLIVER TWIST:
PLEASE SIR, I WANT SOME MORE
700 sitting days is not enough:

The analogies with the tale of Oliver Twist have been crossing my mind recently.
Sent to the workhouse; for that read the dilapidated courts,
Underfed and undernourished; for that read the junior bar,
Asking for more; read for that, the lack of sitting days.
Does this analogy fit? Looks like a yes, to me!
The tentative raising of the wooden bowl, to the fat corpulent Mr Bumble saying “please sir, I want some more”

There was a happy ending for Oliver, let’s hope so for the Bar, the courts, the criminal justice system.

In simple terms an additional 700 days is not enough. The backlogs are growing. There are pinch points at courts all over the country, Teesside, St Albans, Reading to name but a few. We have been highlighting some of them. It cannot be right that courts are not sitting and victims of crime, witnesses and defendants are all having to wait so long for a determination of their fate.

It is incredible to think that we now have in the system, juveniles, who as the delays in the system mount, pass their milestone birthdays and move from one regime to another.

Why should an elderly pensioner victim of fraud be pushed down the list, having to wait once the case has finally been charged, to up to and over a year for the trial?

After all the political handwringing about vulnerable witnesses, are we not surprised when rape complainants drop out even after the alleged perpetrator has been located?  When one adds it to the unacceptable position of RUI’s, the situation is fast becoming a national joke.

Each Crown court knows what its respective backlog is; they do not rely on the quarterly statistics published, BUT the fact remains and the issue is not going away, that there is now a growing and dangerous backlog, with further cases poised to come into the system. From information we have had access to, see last week’s MM, the Institute for Government report and wider crime statistics in general, we know that there is an uptick in crime. So what is going to happen when the new police officers are appointed and there is a drive to tackle sexual offences?

PLEASE SIR, I WANT SOME MORE.
WE NEED MORE SITTING DAYS:

Treasury driven and treasury implemented. The question we would like answering is, with the savings generated from the cuts in legal aid, from the slice and dice approach to fees and the sale of Crown Estate assets, such as Blackfriars where is the money going? Why are we not investing some of this in more sitting days? More to the point why won’t you?

LISTING AND THE REMOVAL OF CASES:

Waiting for a trial date and then having it unceremoniously taken out of the list is fast becoming the scourge of the junior and senior bar. The Bar cannot survive this. There are instances of a junior’s practice being decimated by this indiscriminate policy. We know listing is finding it tough but some communication with the clerks in advance would not go amiss.

WHAT WE NEED YOU THE BAR TO DO:

This is a request to you and we need you to really press this home.  The fact is that every case that reaches the Crown Court deserves to be heard. There ought to be no such thing as a priority case. Do not let the already unsatisfactory listing situation pull the wool over your eyes. Make yours a priority case. Tell the court the problem with witness’s, with child care arrangements put in place and now having to be broken; work arrangements made, such as for a small business which once set will have consequences if messed around; Age and health issues of witnesses. Identify and elaborate on those problems. Counsels availability is one of the issues.  Please ensure that these go on the record. It is very important that should you be in court, as a mention and fix or indeed you are resisting an application to take the case out that you make these known. And please tell us.   One area of concern is the delay in youth cases, resulting in children passing age thresholds and being tried in the Crown Court or for more serious offences. We are collecting a dossier and we need examples.

BLACK FRIDAY PRIZE:

I have promised a bumper edition and we have an embarrassment of riches. I want more a la Oliver!

Please send to the link below and so as to entice you and to reward you for all your patience I am offering as part of the run up to and to put you in the mood for Christmas, a magnum of Champagne for the example that I believe is particularly bad incorporating a period on RUI, delayed listing etc. It takes a moment of your time, please send me the details. I have so far had some outrages.

Slightly off the theme but still on the subject of making life unbearable, this week I have been told of counsel almost refused entry to prison because of the shoes that they were wearing, relocating a prisoner hundreds of miles from the court so that neither the solicitor or counsel could have a conference and fees issues which I will be taking up

None of this is ignored. Keep sending in direct.

YOUTH JUSTICE:

Some of you may be very familiar with this some of you may not, so this is a gentle reminder
that in serious and complex cases, children are entitled to be represented by two lawyers, a solicitor and an advocate (a barrister or a solicitor with higher rights). You can seek a Certificate for Assigned Advocate (Certificate for Counsel) Where the Certificate is granted, Legal Aid will extend to the provision of an advocate in the case (this includes both barristers and solicitors with higher rights).

The regulations cover applications for an assigned advocate rather than for an advocate with a particular level of expertise. The extra funding available once a Certificate for Assigned Advocate is granted should allow those representing children in relevant cases to instruct advocates with experience in youth justice and the particular area of law to which the case relates. Applications can only be made when a child is charged with an indictable offence. Applications will be granted where the relevant court determines that because there are circumstances which make the proceedings unusually grave or difficult, representation by an advocate would be desirable. In R v Grant-Murray and Henry; R v McGill, Hewitt and Hewitt [2017] EWCA 1228 the Lord Chief Justice commented that “it would be difficult to conceive of an advocate being competent to act in a case involving young witnesses or defendants unless the advocate had undertaken specific training.” (paragraph 226).  Sex cases tried in the youth court are an example of the type of case in which a certificate for an assigned advocate is usually granted.

I know many of you attend the youth courts. Do not forget this provision.

ABUSE AT COURTS:

May I draw your attention to this please: If you have experienced abuse, violence, or threats of violence either at court or outside it or  online/in social media, would you please contact Sharon Beattie [[email protected]] or Sam Mercer at the Bar Council  [[email protected]]. At present they are looking to see if practitioners are experiencing such abuse and what, if anything can be done to help. Please do not remain silent.

FILM OF THE WEEK:

OLIVER – the David Lean version. The best. The inside of the workhouse is like the majority of the courts. Watch it and see if you disagree!

AND NOW I AM OFF TO THE WORKHOUSE

Onwards and upwards