Monday Message 27.01.20

ADVOCATE

I thought I would bring to your attention just something a little different from the usual faire in the MM. I would like to shine the spotlight on ADVOCATE. Advocate was founded as the Bar Pro Bono Unit in 1996 by Peter Goldsmith QC. There were 350 pro bono barristers involved, now it is upwards of 4000. In 2019, there were over 2000 applications for help. The fight for justice needs to go on.

Our practising certificates will soon be due for renewal. When you renew there will be a chance to donate to Advocate. This funding is incredibly important because it makes up 40% of their income. On behalf of the CBA I urge you to make that selfless donation.

We at the Criminal Bar support access to justice and this is one of the ways that we can participate. I know that many of you give up hours of precious time already but there will be those who as yet have not had the opportunity. There are very vulnerable people who need strong determined lawyers like you to help. The Justice system is in crisis. Whilst those that control the purse strings are prepared to lay waste to the fundamental principle of access to justice for all, we can help avoid a catastrophe. It only takes a little time.

Mr Justice Knowles is the Chair of Advocate and is quoted as follows:

“You can find yourself working hard. Then devoting yourself to your family. Then being in great demand. And then realise that you left something behind. You left some people out. Vulnerable people. You personally could have made a difference.

Advocate can help you make that difference, to make that promise of shared commitment to devote some of our work to the service of the most vulnerable.

If you make that promise today, you will remember it. It will always celebrate this time. It may bring gratitude from someone you have helped that has a quality you will not experience elsewhere.”

FEES:

MOJ – AGFS

We are making progress.

Last week we had a positive meeting with MOJ to thrash out detailed proposals on the accelerated asks. We all know that not all problems can be solved at this stage, but real and urgent improvements are needed on each of our asks if the criminal bar is to survive. We will be having further detailed discussions this week, so that MOJ can produce proposals to be put out for consultation in February. We are keenly aware of the timetable, slippage and the concerns of the profession and both sides are working hard to get this done asap.  Work also continues more generally with the overaching CLAR, due to report in the summer.

CPS

Continuing last year’s regular engagement, we had this year’s first major meeting with the CPS.  There will be a comprehensive spending review this year, which means that we will need to make a business case for the further funding which is necessary for prosecutors. Last year saw the first real increase to prosecutors’ pay in eighteen years, with funding allocated to many of our key asks.

You will recall that the second tranche of fee improvements are due to come into force later this week, with an implementation date of 1st February 2020 (GFS Scheme E). This includes:

• Increases in a range of daily (refresher) fees;
• Introduction of additional payments for the prosecution of multi-defendant cases for all advocates (defendant uplifts);
• Increases in some brief fees, for trial and guilty plea cases, for junior advocates;
• Payment for consideration of unused material (bolt on fee and then hourly rate);
• Fixed fee payment for bad character and hearsay applications;
• Adjustments to the Very High Cost Case scheme;
• Changes to the MOG, reflecting specific concerns and issues; and
• Increase in rates paid to advocates prosecuting in magistrates’ courts and the Youth Court, with Youth Court work recognised as more complex work.

For full details.

We hope that these improvements will continue to make a very real difference to the membership.

This was an extremely welcome move (and long overdue), but we need to make sure that other key issues are not left by the wayside.  For example, brief fees, enhanced banding and hourly rates were unable to be addressed in either stage 1 or 2.  As such we continue to be engaged in the CPS 2020 review and seek further improvements.  The provisional list of issues for consideration can be found here.

Amongst other things we are also looking at the Manual of Guidance definitions and decision tree (e.g. instruction of Queen’s Counsel, two counsel).

In the coming months, we will be holding meetings with prosecutors to hear about the issues which are most concerning you. Please start thinking about this now – keep a log of examples which are particularly egregious. Your help is vital to making the case for a better funded justice system.

Candidly, there is a good working relationship with both teams but we have to press those issues which matter to the Bar and we are doing that forcefully.  We will continue to keep you updated on the wider issues with the CPS.

YOUTH ADVOCACY – Inns of Court College Of Advocacy and CBA:

Anyone who ventures into the youth court or has to deal with young witnesses and defendants will know that this is a complex area. It is not for the legally, poorly educated advocate but presents as a very challenging and technical environment in which to work. Youth courts are now retaining jurisdiction of an increasing number of serious cases where young people are involved. These courts are increasingly populated by children who ‘display a wide range of complex needs and more limited communication skills’

Many of those needs as we often find when we meet them are hidden and, if left unidentified the likelihood of a good outcome for the child at the centre of the case is much less likely.

The ICCA is embarking on a project to work with the CBA and experts in the field of youth justice, adolescent brain development and trauma in young people, to develop a national training course for youth justice advocates.

The technical side of advocacy is not just in the examination of witnesses but is also in the sentencing exercise. It is said that there are too many cases where children are incorrectly sentenced because of a lack of understanding of the basic differences in provisions.

The course will focus on both legal and procedural provisions and will include a blended learning session combining science and practice. There will also be a strong advocacy element to the training.

We will keep you updated on this.

WHAT NO COURTS ? THE INEFFICIENCIES GO ON:

The CBA commends yet again the report from Kate Brunner QC, leader of the Western Circuit as to the effect that reduced sitting has. It is essential reading. The picture is replicated across the country.

A BARRISTERS UNHAPPY LOT
As reported:

Cardiff Crown Court: 2-day Trial fixed to begin Wednesday 22nd January. PTR listed the previous week. Both sides confirm Trial ready. Fixture confirmed by court. Not a hint that there was a problem. Judge and Crown aware defence is represented by London counsel. London counsel travels up day before trial. Expensive train and hotel, but pre-authorisation granted for reasonable travel expenses for trial so will be reimbursed. Once settled into hotel, get the late afternoon call – trial stood out, not enough judges. No hint of this at last week’s PTR. Counsel will no longer be reimbursed for train and hotel as LAA authorisation states that it only applies for the trial or main hearing, and of course no trial was listed. Not to mention being out of court for 2 days, for nothing. The joyous life of a criminal barrister…

THE FLOATING SENTENCE
As reported:

Wood Green: The matter was listed as a floating sentence and listed no before 11 am. The defendant did not attend and was not represented because the court had not notified his solicitors of the hearing (the date had not been fixed in the lower court). The case was called on at 3.15 pm and was adjourned for 7 days. The barrister had to wait 3 hours excluding lunch.

THE ADJOURNED FIXED BUT NOW FLOATING TRIAL
As reported:

Nottingham Crown Court
Monday 20th January 2020. Trial fixed in June 2019 at the PTPH. The defendant a doctor charged with sexual offences that dated back to December 2017. Interviewed March 2018 but not charged until February 2019. Trial counsel travelled from London. Trial now listed as a floater. Case stood out as the other trials stood up. No other date offered that week for trial. Relisted October 2020. Client wept in disbelief, suspended since arrest. Counsel had had to return a trial to attend but on the basis that they could fix their professional diary had arranged an urgent conference on one of the evenings of the trial. Counsel remained to conduct the conference for which no fee was due.
Who had to break the news to the witnesses?

Whether you are a complainant or a defendant any allegation has an unquantifiable impact upon life.

Today Guilford is sitting one out of five courts, Inner London five out of 10.

This is becoming an utter joke but no one is laughing.

Let us not forget the profession. Just how is anyone expected to operate a professional practice, manage the strains of professional life and frankly shoulder the income loss? Self-employed is not a euphemism for stupidity. Someone has to start taking notice.

Both James and I are meeting with the Senior Presiding Judge this week. We look forward to that meeting and we will continue to press home the problems that this causes for practitioners, complainants and support staff as well. Jodie, yours will be in the list. Nigel yours too.

Please email us

We would like a large post bag this week so that we can take live examples to meetings.

Statistics just do not reflect the position.
And the answer is …. INCREASE SITTING DAYS, OPEN THE COURTS.

THE COURT ESTATE:

Could someone go on to Ebay please and order the parts for the lift at Leicester Magistrates which has been broken for several weeks now. Disabled Court users who can’t climb stairs cannot get into court.

FILM OF THE WEEK:

Personally, I have felt like a bit part player in THE SHAWSHANK REDEMPTION this last week, but this week’s recommendation is a cult classic: HAROLD and MAUD. Check out the driving!

Movie buffs keep sending in your recommendations.

Onwards and upward