Monday Message 28.11.22
“I publish you barrister”. These were the words that solemnly landed on each bowed head as 58 students were called to the Bar in Gray’s Inn: students no more. They stood together, diverse, and equal at the start of their careers.
It was a moment where we joined in pride at this new generation of barristers and in the profession that they had joined. And later we discussed justice, injustice, violation of rights, reparation of rights and how the study of legality had marked the road to their spot in the hall, being applauded by their families and friends and by us slightly court weathered Benchers.
The night before, I was at the Institute of Barristers’ Clerks dinner where we showed our thanks for their hard work in their jobs for and alongside barristers during this time of “backlog”- a word that does heavy lifting. Underneath those letters are 75,000 defendants and tens of thousands of witnesses and victims, coercively within the criminal justice system, waiting.
Each day we are entrusted by society to hold lives in our legal hands, inspect the evidence around lives destroyed and play our part in delivering justice. And to a high standard. And our work remains with those people. The Gray’s Inn students were reminded of the responsibility they will carry.
I was reminded again of this responsibility last week when I received an email from a man who had been a witness (a complainant) in an historic sexual offences case that I had prosecuted in 2005. The victims were children at a school. He had taken the intervening years to process the trial and guilty verdicts and wanted to thank me. You all will have received similar communications of thanks over the years and perhaps, like me, you keep them. A small reminder of why we give so much of ourselves to the criminal justice system.
But it should not be a binary decision between work and personal life, with the dividing wall marked earnings and working conditions. As we build legal aid earnings, long-term reform must link and join these two parts of a life.
Urgently, there continues to be insufficient barristers to prosecute and/or defend in cases and we must retain those we have and replenish our numbers with the same high-quality barristers relied upon by the public and government from our future generations.
Prosecution Fees
Last week, the Vice-Chair and I met with the Senior Presiding Judge, Edis LJ and made him aware of prosecuting barristers’ concerns that currently there is no timetable from the CPS to increase prosecution fees in line with the defence.
This was raised in the context of the fundamental necessity for there to be prosecution counsel available to prosecute trials to reduce cases in the backlog. It was pointed out that there is a risk that prosecution barristers will stop accepting prosecution cases.
After regular contact with the DPP, urging and supporting the same, a further meeting is being arranged this week with the senior team at the CPS. The up-to-date position remains that the CPS informs that, currently, it does not have the budget to increase prosecution fees in line with the increase secured by the CBA through its negotiations with the Ministry of Justice. The principle of increase is agreed with the CPS. Previously, it was optimistic that the budget would be obtained to match the MoJ increase. We continue to advocate on behalf of our members and will keep you informed.
Listing and the SPJ
There were a record 6,852 trials deemed ineffective for the year to 30th June 2022.
The greatest reason for ineffective trials has been over listing of trials, recorded by HMCTS as “insufficient cases drop out/floater/backer not reached” which resulted in a total of 1,324 trials adjourned.
To give some context, the total number of ineffective trials due to overlisting is today running at around third more than during the year before Covid when 1,006 trials were similarly adjourned at the last moment due to over listing.
Listing issues were raised at the meeting with the Senior Presiding Judge and the SPJ indicated that he will be issuing Listing Advice to Resident Judges in early January 2023. Further, an updated Better Case Management Handbook is due to be circulated to judiciary in December 2022 with final publication in January 2023.
Magistrates’ courts issues of cases commencing late and sitting late, sometimes until after 7pm, were put before the SPJ who has requested that CBA members provide detail of the courts and particulars of cases where this is happening.
I also am meeting the Chief Magistrate this week.
It is important that there is an evidence base to complaints that circulate from members so that we can identify patterns and remedy.
After the SPJ meeting, specifically, a listing complaint was raised concerning Inner London Crown Court where an appeal hearing with a time estimate of one hour was fixed to commence at 4.30 pm on 25th November 2022. I have been promptly informed by the Resident Judge that this was an unfortunate blip in listing -rather than judicially directed -and there is no move by stealth to extended operating hours. Rather, pressurised list offices might sometimes fall into error. Communication between us all clearly remains key.
Keep providing us with your issues at [email protected] and we will work to obtain solutions both on a court by court basis and also address patterns of concern.
Further, the Crown Court Improvement Group, chaired by the SPJ, which I attend on your behalf, remains a useful forum for input of problems you encounter from prison to court and so do let us know.
Well-being
The CBA, specifically through our Chair of CBA well-being committee, Jonathan Higgs KC, requested that the SPJ consider the CBA well-being protocol with a view to its endorsement, as is the position in the Family Division. The SPJ has indicated that he will consider the protocol afresh.
In addition, and importantly, if members are experiencing bullying or harassment at the Bar, please contact us through the silk panel who will be able to assist with immediate advice as well as collect evidence for further referral.
The Bar Council’s Talk to Spot remains available. There was a helpful discussion about well-being at the Bar Conference on 26th November 2022, which will be available for you to watch online.
Meeting with the Lord Chancellor and the Attorney General
A meeting between the CBA and the Lord Chancellor has been confirmed for Thursday 1st December. We will place prosecution fees at the forefront of the discussion.
The Lord Chancellor gave evidence before the Justice Select Committee on 22nd November 2022. Whilst it was clear that the CBA would not have secured the deal it achieved under the previous Lord Chancellor if more time had gone by – or possibly any deal at all- the Lord Chancellor stated that he would abide by the deal out of good faith. He also showed some understanding of “some of the frustrations” of barristers, adding “but we now do have a reform agenda that is motoring forward. The money is coming through, and we’ve shown we’re serious about it.”
A formal meeting is to follow with the Attorney General. However, I also was afforded a discussion with her at the Bar Conference by the Chairman of the Bar, Mark Fenhalls KC. Again, prosecution fees were raised.
The Deal
In a meeting on 25th November 2022, the Ministry of Justice has confirmed that on 30th November 2022, the second Statutory Instrument which will apply the 15% uplift for cases back to December 2018, will come into force.
On the same day, the Government response to the CLAR (or CLAIR as preferred by the Lord Chancellor) consultation will be published. It is anticipated that it will consider future AGFS reform including value and structure of brief fees and refreshers.
The newly established CLAAB will meet again in the first week of January 2023 to discuss the work carried out by the CBA/Bar Council Committee on special preparation/written work and wasted preparation and section 28 fees. This is keeping to the expedited timetable in the deal -with February and January 2023 being the key months for implementation of additional money.
In light of queries on billing, the LAA will produce additional guidance where the two statutory instruments further to the deal can be clearly referenced.
Meanwhile, I recommend that members and clerks read my previous Monday message. We also remain happy to continue assisting with individual queries.
CBA RASSO Working Group Request
Would you please be kind enough to send your positive or negative experiences of the section 28 procedure to Aaron for compilation by the 7th of December 2022.
Our RASSO team would very much appreciate your personal experiences of conducting or not conducting these cases including whether you have for some reason stopped conducting these cases. Further, what type of adjournment is there in between section 28 recording and trial? Plainly our focus so far in 2022 has been in ensuring that the fee structure changed. Whilst this is ongoing, we also must consider the legal, financial, and emotional consequences of this work
Hardship Fund
It remains open. Please apply. Don’t hesitate. It is confidential and completely non-judgemental!.
Notices
Peter Clement
Many of you will know Peter and will remember how his Chambers and other barristers joined to urge that emergency rescue services continued searching for him for as long as was possible. Sadly, he was never found.
He was a wonderful and kind person and fair barrister. He is a loss to the profession and is greatly missed.
Please join in the celebration of his life.
Women in Criminal Law
WICL are hosting a further breakfast on Wednesday 30th November in central London. All WICL members are welcome to attend. Book here.
Reminder – Treasurer
Nominations close on Friday 2nd December at 1600hrs.
Final Words
For the first time since 2019, the CBA Executive met in person for its monthly meeting. It was a hybrid meeting to maintain accessibility for those outside London.
Communicating in a room reinforced it as a fundamental requirement to respectful discussion and elimination of misunderstandings. Ironically, it facilitates progress. Basically, we were delighted to meet in the same actual space. It reminded us of why we dedicate so much to our profession.
Our work lives are about the people in the criminal justice system but also about the barristers who are our colleagues and friends. We share the same vision and many of us seniors have been through the same challenges and so are able to share a few words of encouragement and help. Unity across the profession remains key. Together we are pushing for a different story in history and driving change.
Technology obviously brings advantages, but also carries stresses. It is a help to remove ourselves from isolating situations where we hammer out messages on keyboards and shout our frustrations into WhatsApp groups. We can start to lose how to disagree and debate professionally. And so, go into your chambers or meet up with other barristers. Reconnect. Remember back to yourself on Call night. Summon back that pride and those dreams of making a difference that directed you to practise in the public sector. And above all be kind to yourself and to your colleagues.
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