‘Monday’ Message – 29.08.23

On the stroke of midnight on 31st of August 2022, I moved from Vice-Chair to Chair of the CBA. This week signals the end of my year as Chair.

Sadly, I was not imbued with the magical powers of Salman Rushdie’s Midnight’s Children, born at the moment of India’s independence at midnight on 15th August 1947.

I did however have my expertise and the support and dedication of our most talented practitioners.

I became Chair at the time of complete and indefinite walk-out by criminal barristers, in accordance with a ballot on 22nd August 2022.

The former Lord Chancellor, Brandon Lewis MP came into office on 5th September 2022. I contacted him immediately, directly, and also through political contacts. Within three days, a meeting was fixed. On the same day, Queen Elizabeth II died. The country went into mourning. We cancelled our demonstrations outside the courts. The meeting was postponed.

I led over 150 barristers, magnificently supported by the Common Sergeant, to lay a wreath at Gray’s Inn chapel, where Prince Charles as he then was, is a Bencher. It was a mark of respect. The images of barristers wearing weepers became part of the national story.

The meeting was refixed for 20th September 2022. Negotiations were opened the next day.

The negotiations with the Ministry of Justice ranged over a week and the offer from the MoJ was put to ballot after we had hit the ceiling, and then pushed beyond the ceiling, with additional commitment squeezed at the final table meeting in the Lord Chancellor’s office.

During this process the CBA held a national zoom, the third since my taking up of office.

I made it clear to the membership that we had a small window of opportunity to take the deal. I fought against those who sought to undermine me. I salute the courage of those who publicly condemned behaviour which does not have a place in a high-level profession and thank those who privately messaged support; to keep going. I understood the anger, but it was misdirected.

My last negotiations between State and civilians had been in Colombia in 2012-2013, seeking a public apology from the State for its treatment of a massacre.

The civilians were a Peace Community of Cacao farmers in San José de Apartadó. On 21st February 2005, seven of the community were macheted to death, including three children. The negotiations involved Ministers, the former President, and the 17th Brigade of the Colombian Army. The Brigade came to the table tethered to its bloody collaboration with paramilitaries. On 10 December 2013, former President Santos issued a public apology and asked for forgiveness of the farmers for the stigmatisation of their community as Farc, by former President Uribe,

As I look back on my year with the CBA, I reflect on both the achievements of the CBA and the dark times that it encountered.

Ultimately, the Criminal Bar unified. There is no space for the vainglorious. Work in Colombia is not directly comparable to negotiations for the Criminal Bar, but it underlines that the quality of forgiveness remains one to guard.

The ballot closed at midnight on 9th October 2022.

The membership voted to accept the deal.

We also did not leave our solicitor colleagues behind in the negotiations, even though they were not in the room, and we did not represent them. We and the MoJ ensured that the increase on the backlog also applied to LGFS.

On 11th October 2022, the courts sprang back to life.

The latest figures from the MoJ on spend on AGFS fees over the last 10 months is:

• On “backdated”/backlog: £17,042,740
• On the new cases post 30th September 2022: £3,178,777

The total is £20,221,517.

Within two weeks, Brandon Lewis MP had been replaced as Lord Chancellor by Dominic Raab MP.

Former Lord Chancellor Dominic Raab made it clear that he would not have agreed this deal but committed to honouring it.

We intensified ongoing work with the CPS to support its case for additional funds to obtain an equivalent increase for prosecutors. We also focused on the magistrates’ courts.

On 4th February 2023, after referral of the CPS to the Efficiency and Savings Review, the increase to prosecution fees to achieve parity to the increase to defence fees, was announced by the DPP, Max Hill KC, with implementation on 2nd May 2023.

He acknowledged that the CBA had been critical in achieving the outcome.

On 21st April 2023, the revolving door of the Lord Chancellor and Secretary of State for Justice’s office turned again, with Alex Chalk MP entering.

On 11th August 2023, the Lord Chancellor Alex Chalk KC MP announced £220 million investment in the court estate over the spending review period. It is a significant increase on recent previous maintenance allocations. This was the result of representations across the legal profession, with a huge contribution from criminal barristers and, ultimately, strong action from the Lord Chancellor.

It could not have come too soon for Harrow Crown Court which currently stands closed due to safety reasons.

A new guidance for Magistrates’ granting of certificates for assigned advocates in the Youth Court is near completion and will be published in September 2023.

The Criminal Bar was bleeding internally as well as externally when I stood up to my elected position.

It is strong as I hand over to incoming Chair Tana Adkin KC and to Vice Chair Mary Prior KC. We have worked together for the benefit of the members with a supportive Executive and Heads of Chambers committee, as well as a collaborative Bar Council and excellent Circuit Leaders.

I wish Tana and Mary every success in their leadership of the criminal bar. I remain a shoulder to lean on and a listening ear if ever needed.

Thank you also to the DPP, Max Hill KC for his fast and detailed responses and to the CPS team for their willingness to do what they can to support their and our prosecuting barristers. Issues are addressed from a perspective of resolution. Work continues.

I step away content that it has been a successful term for our members.

I could not have done it without those who stayed by my side and, practically, were prepared to work all hours on the deal with the MoJ and the subsequent implementation.

It has been my privilege to lead.

Thank you.

A Reminder of the Year

Sacrifice

I do not underestimate the sacrifices made by members who engaged in the action. I know your stories.

You all made a difference by strengthening our hands when we entered the negotiations. You were beside me.

Thank you.

The Hardship Fund remains substantial, and it will be used for educational purposes for our juniors.

Thank you to all who contributed to it.

Select Committees and Wider Public Engagement

One of my aims was to make the CBA central to political decision making and a trusted source for media. Quite simply, our barristers needed to engage more with the press, to counter false claims about the criminal justice system.

I have my own experience of giving evidence before Select Committees and so I reintroduced it as a mechanism for the CBA.

We gave evidence at four select committee sessions over my time as Vice-Chair and Chair. The Justice Select Committee, in particular, excelled in its role, led by Chair Sir Bob Neill MP.

I also re-established ties with legal charities and NGOs and sought opportunities for our members on the international stage, as I had promised in my manifesto.

Fees – a review and update

The amount of increase in AGFS fees, quickly followed by the increase of prosecution fees is unprecedented. Also, court conditions should start to improve with the additional investment, giving space to drill down into lack of appropriate conditions for those with disabilities- seen and unseen.

In addition, we have been able to start to drive medium and long-term reform through CLAAB, as well as return to engaging in consultations on important criminal justice policy.

The Recap

Autumn 2022

• 11th October 2022 first S.I. was laid and in force 31st October 2022- that applied 15% increase to AGFS 11/accelerated asks for cases between 17th September 2020 and 29th September 2022 and with a main hearing (this can be the last day of the trial) after 31 October 2022.

• 23rd December 2022 the second SI was in force for the 8 older AGFS and LGFS schemes (3% of cases) which covers cases from 31st December 2018 (a reminder that previous backlog demands during the action did not go back so far; these are cases pre-CLAR):
  • The loss of value here was £293000 and rounded up to £300000 and added to the money ringfenced for special preparation and wasted preparation.
  • 54 cases, pre-31st December 2018, would not receive an uplift; Executive agreed that barristers in those cases should apply to hardship fund.
  • This was ahead of phase two of CLAR. The government’s final response to CLAR was on 7th December 2022.

The increase to defence fees in the government impact assessment at the end of 2022 was 17%.
The impact at the end of 2023 is awaited. It will only increase as bolt-on fees take effect.

New Year 2023

• Section 28 bolt on fee of £670 plus VAT was laid on 31st January 2023 and in force on 1st February (after our pressure and responsive action from Minister Freer).
• Currently – the review is with the Lord Chancellor. On 8th June 2023, I drafted the response to the MoJ document, supported by the CLAAB AGFS sub-committee. I anticipate that the bolt-on fee will increase due to the data on spend on section 28 supporting the CBA arguments that there will be an underspend of £4 million in the SR period without the increase. Fundamentally, it is required for victims, complainants, and defendants in sexual offences cases.
• On 27th March 2023 the special preparation/wasted preparation S.I – part of the last part of the deal brought in with the value being maintained. This was an additional bolt-on of £62 plus vat to all trials and cracked trials and wasted preparation where the advocate has returned the brief. It is wholly insufficient. However, the explanatory memorandum is important in introducing the principle of payment a modern way of working (emphasis added):

“This is in recognition of both the work on preparation for ineffective trials and the increase of the scope and volume of written and audio-visual material work requirements. Currently advocates can be paid for special and wasted work in particular circumstances and this fee expands the categories of work covered and includes consideration of digital, video, audio-visual material, and written work. “

• Currently – the MoJ agreed to bring its review forward from the Autumn to July. I drafted the response to the MoJ paper dated 20th July 2023. Again, an increase should take place due low spend on new cases. I have tried several times to secure a further meeting with the Lord Chancellor. However, it has not been possible over August.

CPS Fees

• The increase in CPS fees came into effect on 2nd May 2023. A reminder of the increase is in the letter from the DPP and Interim Chief Executive, dated 14th April 2023 here.
• All changes apply to existing and new cases from 2nd May 2023 and to new or ongoing VHCC stages. In summary:

• All CPS fee rates increased by 15%, including the GFS, the VHCC and magistrates’ court and Youth court arrangements.

• an increase to VHCC Led Junior rates to pay the equivalent of the revised VHCC Junior Alone rates.

• A 10% case uplift for sentence hearing where multiple cases are sentenced on the same day.

• Introduction of a new fixed fee of £670 ex. VAT for section 28 cases. This is subject to review (as is the AGFS bolt-on)

• Streamlined Forensic Reports within the GFS page count.

Currently -the CBA is working with the CPS on achieving parity where there is a difference in payment between prosecution and defence, with prosecution being paid less. There are many cases where prosecution is paid more than defence. The two fee schemes are different, and the work is detailed.

Medium and Long-term Reform

• CLAAB was set up on 12th October 2022. It has had four meetings to date, with the latest being on 20 July 2023.  I have pushed the importance of diversity feeding into decision making of CLAAB at each meeting and ensured that our juniors are part of the AGFS sub-committee which provides recommendations to the Board.

• HH Taylor was appointed as independent Chair of CLAAB. She chaired the last meeting.

• Special preparation/wasted preparation fees, reclassification of offences and linked considerations are at the heart of ongoing and future CLAAB work.

The CBA Executive, the CBA YBC and Sub-Committees. Thank you.

I increased the number of Executive meetings to monthly and tried to embed better communication between leadership and sub-committees, between sub-committees themselves and between members and leadership. We started consideration of updating the constitution and incorporating communication protocols. Feedback from Chairs has been positive, and I have enjoyed working alongside them.

The Chair of the CBA YBC now has a standing invitation to the Officers’ meetings, which were held weekly for the majority of the year. This has worked well, with the full support of the Executive.

The Junior Bar

The CBA YBC has assisted providing a summary of issues faced by juniors. This was particularly useful when I had meetings at court centres and before the meetings of the CCIG.

Thank you to Zayd Ahmed for his work as Chair and to each of the CBA YBC: Rhia Abikhalil, Soraya Bauwens, Grace Cowell, Sebastian Cox, Ilana David, Jennifer Devans-Tamakloe, Amy Hazlewood, Stephanie Painter, Josephine Teale, and Amber Walker and to all the juniors supporting their vital work.

The inaugural Chair’s Essay’s Award for the Under 7 years’ call was a success and I hope it continues.

My message all year is that wearing a barrister’s gown is not dressing in a magic cloak. To maintain our value, our quality consistently must be high, whilst appreciating the pressures on all.

Sub-Committees

Thank to our Chairs and members of the Sub-committees: Jonathan Higgs KC and Tana Adkin KC (well-being), Peter Carter KC (international) Mary Prior KC supported by John Riley (RASSO) Melanie Simpson KC and Eleanor Mawrey (equality and diversity) Grace Ong supported by Laurie-Anne Power KC (social mobility) Charlotte Newell KC and Paul Jarvis (education), Richard Christie KC (remuneration) and to our roving retention ambassador Liz Marsh KC and to Caroline Haughey KC for chairing the constitution committee.

Thank you to the officers who have been alongside me during a very difficult year, particularly Mark Watson, Secretary who stepped up when required and Vice- Chair Tana Adkin KC, Assistant Secretary James Oliveira-Agnew, and Treasurer James Gray.

They care about the Criminal Bar and give their time to serve its members.

Thank you to the Executive.

Particular thanks to Nick Barraclough and Kennedy Talbot KC, former Treasurer Laurie-Anne Power KC, Tana Akin KC, Jo Cecil, Lou Oakley, Sam Parham, John McNamara, Richard Christie KC, Daniel Oscroft, Tom Little KC, and Anna Soubry who worked on fees and provided important additional links to members.

Thank you for all the support from barristers at Doughty Street, particularly to dear Issy Forshall KC, who no longer is with us.

Staff and Clerks

Thank you to communications director, James Rossiter for his hard work and unfailing responsiveness to media enquiries. Thank you to CBA administrator, Aaron Dolan. This year he was responsible for organising the first CBA social event for four years held in July in London, as well as the Manchester conference. Both were huge successes.

Thanks to the clerks at 5 KBW and to Geoff Carr, Martin Secrett and Mark Essex, Chair and members of the Institute of Barristers’ Clerks.

Thank you to Matt Butchard and all clerks at Doughty Street who stepped in to help with my diary when all meetings seemed to clash, and I didn’t know where I was going!

There will be others I should have included here. You know who you are. I’ll buy you a drink!

Education

Our Education sub-committee led a fantastic programme of events.

The Education Conference was held in Manchester. It was the first-time outside London for at least a decade. It remains one of the best conferences I have attended, such was the quality of the speakers.

It was encouraging that our attendees were predominantly our juniors.

Criminal Justice Matters Podcasts

I was delighted to launch the podcasts.

This series primarily has been aimed at inspiration and retention of criminal barristers, together with a myth busting episode on rape and serious sexual offences trials.

Listen to our latest here – looking at the stars and the trailblazers, their stories and what they have learned along the way.

This week, I interviewed Jeremy Dein KC and Nina Grahame KC. The following two episodes are interviews with Jaime Hamilton KC and Laurie-Anne Power KC and with Courtenay Griffiths KC.

Thanks to Treasurer James Gray for his excellent input and practical assistance.

Senior Judiciary and the CBA

A first for the CBA was a meeting between the Senior Presiding Judge Andrew Edis LJ and HHJ Chris Kinch KC and the entire membership.

Members had the opportunity to directly raise their concerns. There then was a follow up meeting with one of our juniors from the CBA Executive, Genevieve Reed, and the SPJ, with me in support.

I thank the SPJ and also the LCJ for their open-door policy to the CBA. Thanks also to Crown Court Judges across the country who have responded to issues raised by barristers in a constructive manner, seeking remedies.  Thank you to the Chief Magistrate.

Well-Being

The CBA protocol now is a reference document for all Judges after meetings with the SPJ. The CPS well-being for prosecutors of RASSO cases now is available to the Bar as well as internal lawyers.

CBA Tour

The CBA completed its tour around all Circuits, with a visit last week to the Western Circuit and to Bristol. Thank you to The Recorder of Bristol HHJ Peter Blair KC and the Judges who joined to meet and speak to me about challenges and to receive feedback from CBA members.

Good news is that the robing room (really) will return to its former home in the main building and your voices were heard on listing issues, as well concern at being made to join the end of the queue to enter the court.

Also, huge thanks to Ray Tully KC and Guildhall Chambers (thanks also to Anna Vigars KC), who hosted an excellent turn out of barristers to come and speak to me. The hospitality was really appreciated, and I was heartened by the number of junior barristers who attended including pupils.

Courts

During the year, I met with Resident Judges and discussed issues.

I finish the year with a meeting with HHJ Rosa Dean, the RJ of the largest Criminal Court in Europe, Snaresbrook Crown Court. The good news is that warned lists are due to cease and there will be further changes in the Autumn which will increase the use of the courts. The list office is for in person contact and barristers are encouraged to speak to the listing officers personally.

There is a reminder to re-read the Better Case Management Revival handbook.

HMCTS and Listing

On 25th August, I attended the final Legal Professional Court Recovery meeting, expertly chaired as always by Jason Latham. James Keeley and Soraya Bauwens are our juniors’ representatives.

HMCTS is working to pilot a new Case Coordinator role to improve case management in the Crown Court and improve listing. The pilot will run from October 2023 for 18 months at eight Crown Court locations that are currently being finalised.

Common Platform

A meeting is being organised for September with Daniel Flury of the MoJ and the CBA tech team, led by Paul Keleher KC.  The CBA has a strong relationship with Daniel which goes back to legal aid negotiations. He was missed when no longer working in legal aid, although the regular meetings with all MoJ officials continues to be appreciated. It is encouraging that he will be dealing with the Common Platform.

LAA

There is strong line of communication with the LAA, and we have been able to successfully forward and resolve individual complaints of non-payment. Obviously, this is not sustainable and the LAA needs to change its system so that there is a presumption that, when a barrister is billing for a trial, the barrister was in court, rather than a default of the barrister needing to prove it. The current position is demoralising and takes up resources of all. It was identified in CLAR as needing change.

Partnerships

The CBA has worked effectively and efficiently alongside the Bar Council and Circuit Leaders.

I send thanks to Chair Nick Vineall KC and Vice-Chair Sam Townend KC as well as Head of the Bar Council Remuneration Committee, Jason Sugarman KC.

Thank you for the support of the Circuit Leaders, Jaime Hamilton KC, Michelle Healey KC, Leon Kazakos KC, Jo Martin KC, Caroline Rees KC and Jason Pitter KC.

Thank you also to the fast and detailed responses from the DPP and willingness for the CPS team to do what it can to support its prosecuting barristers. Issues are addressed from a perspective of resolution. Work continues.

Policy

When I stood for election, I set out in my manifesto that I would attempt to spotlight issues around the imprisonment of women and children.

The Youth Court guidance and survey on the sentencing of pregnant women is delivery of that policy in the time that I have had as Chair. I am proud of the work that is ongoing.

Consultation responses concerning open justice and RASSO will be delivered in September.

Jonathan Eley

Jonathan Eley from KCH Garden Square in Nottingham died on 14th August 2023 after illness. His funeral is on 30th August 2023 at Great Glen Crematorium.

His wife, Annabel has asked no black ties.  John was a complete gentleman and a persuasive and compelling advocate.  We send our condolences to Jonathan’s family and friends and to KCH Garden Square.

We have lots far too many of our friends and colleagues at the Criminal Bar this year.

Final Words

I conclude my tenure at a time when the Prime Minister pledged that he would do “whatever it takes” to keep the public safe.

It doesn’t take very much in monetary terms.

Continued increased funding of legal aid is needed to attract back the barristers we have lost. Without barristers to prosecute and defend, cases will continue to be adjourned into distant years, with victims, complainants and witnesses giving up, giving up on criminal justice.

There is still much to do.

It takes only a small number of dedicated people to implement change. Finding the right people is always the challenge.

They may not be the ones that you imagined.

I’ll sign off with wise words from the film Babe where the farmer said to the pig, after he had overcome the challenge of being a cute pig in a dogs’ world, to win the sheepdog trials, “that’ll do, pig, that’ll do”.

That’ll do, indeed.

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