Monday Message – 31.10.22

Halloween might be associated with spooky decorations, bobbing for apples and carving pumpkins but it is the observance of Allhallowtide in the liturgical year. It is the start of a dedicated remembrance of the dead including saints (hallows), martyrs and all those who have gone before.

In the two weeks since the CBA voted to accept the negotiated deal and suspend its action, we have seen the political passing of another Prime Minister and Lord Chancellor and the return of a Lord Chancellor, namely the Rt Hon Dominic Raab MP.

The past and present
At the time of the CBA ballot which concluded on 10th of October 2022, I advised members of the importance of both political and economic climate. I also stressed urgency and recommended the deal. Looking over the hill whilst taking care not to hurtle over the cliff edge is a fundamental to the sort of action we undertook but also to resolution of that action.

Fast forward and I now am responding to many enquiries to reassure members that the deal is not being withdrawn. The Ministry of Justice (MoJ) continues to work alongside the CBA, and I am in almost daily contact with the key civil servants. The first CLAAB meeting went ahead on 28th October 2022; its composition is not finalised.

Whilst the deal on AGFS is a start, the CBA also is commencing work, led by the junior Bar, on improving Magistrates’ Court fees. Where junior barristers are earning poorly, responsibility lies with Chambers to ensure that this is rectified by enabling their exposure to, and instruction in, better paid work. It is crucial that the better fees from legal aid also reach the juniors. This will be considered further this week at the Heads of Chambers’ meeting.

New Lord Chancellor
I have written to the Deputy Prime Minister and Lord Chancellor, the Rt Hon Dominic Raab MP congratulating him on his appointment and requesting a meeting to further discuss the deal which, as I have pointed out, now is government policy. I am hopeful that this will be a fresh start.

The CBA has shown considerable goodwill. And is behaving honourably. Indeed, I thank the previous Lord Chancellor the Rt Hon Brandon Lewis CBE MP for his message on twitter on 25th October 2022 where he publicly acknowledged and recognised the importance of the Criminal Bar. I also appreciated his message thanking me for discussing and negotiating “so honourably.”

I thank him for his rapid action in meeting the Vice-Chair of the CBA and I, authorising the opening of negotiations the following day and then acting to provide a deal which was a substantial positive movement from Government.

Political Support for the Criminal Bar
The Justice Select Committee, and particularly its Chair Sir Bob Neil MP, played a vital role through the rapid reconvening, upon the request of the CBA, to receive evidence on the CBA action.

The leader of the Young Criminal Bar Committee, who I invited to give evidence alongside myself, gave important evidence.

I have referred to this event previously and do so again as it was an important session that undoubtedly helped influence the opening of negotiations.

Meetings with MPs in the weeks leading up to this stage also greatly assisted. And these meetings were held alongside us at the CBA, by you, our members. And so, thank you to you all. And for your ongoing work and meetings.

Keep us informed as we continue to maintain our presence in Parliament. You will be aware that rapid progress does not happen in a vacuum but is the result of many strands being brought together.

Time to Heal
We have enjoyed seeing each other again inside court buildings rather than outside on the steps of the courts. Your sacrifice and dedication both to the action throughout the year and to working for those people who make up each single case now has been publicly appreciated – twice – by our former Lord Chancellor in his short term in office.

This appreciation needs to be turned into long-term reform. Criminal barristers and solicitors who work in legal aid are the NHS of the criminal justice system. We shrug off the horrors we encounter or try and shake from our heads the images of the victims – the young, the elderly, the trafficked, the vulnerable. We take in our stride the need to metaphorically and sometimes literally hold the hand of our clients who might be mentally unwell, frightened or fighting drug withdrawal. We blink away the tears of families and friends of loved ones who are in the dock, in the witness box and on the mortuary slab. And we sacrifice ourselves to deliver justice for those in their time of need and crisis.

But to be strong as individuals as well as a profession we must continue to support each other. We too need to heal from the past year and past weeks.

We should never again have to fight so hard for a functioning criminal justice system.

But let us now unify as we move forward. We retain our power as we have demonstrated that we can and will act if required.

There will be bumps and potholes. But finally, we are travelling along the road of immediate investment and long-term reform.

And we are away from the cliff.

Backlog
I attended the Crown Court Improvement Group, chaired by the Deputy Senior Presiding Judge of England and Wales, Lord Justice Edis. It is a dynamic group and is ready to receive your feedback of issues across the criminal justice sector.

Some of you have communicated issues with opening links for digital material on the DCS or a lack of ease at booking rooms for client conferences at certain prisons. The CCIG aims to address and solve these issues.

Please keep us informed, particularly in relation to unrealistic listing of trials. Please also communicate ideas and suggestions. Sometimes, it takes only small practical adjustment to make our lives easier and less stressful.

Silks Panel and Hardship Fund
The Silks panel remains ready to assist with specific pressures or queries you have as we work on cases pending before the Crown Court.

The hardship fund remains open for application.

Please do not reach a point of desperation before applying.

Other News/Meetings
I am very much looking forward to seeing friends and colleagues on 16th November 2022.

Meetings this week
Bar Conference – This year’s theme “Future Proofing the Bar” takes place from 23rd November – 26th November as a hybrid event. The full programme and booking details can be accessed here.

Progress of Deal Implementation

Update on 15% increase on backlog cases
Today the statutory Instrument (S.I.) comes into force for the uplift of 15% on AGFS 11/accelerated measures backlog cases. According to MoJ data, this is 97% of the backlog cases. Its implementation – which includes the changes to the IT systems- has been carried out in the shortest time indicated to be possible, in accordance with the deal.

However, over the previous 3 weeks there has been a faltering over the 8 older schemes due to the £2million expense of the reconfiguring the IT systems for obsolete schemes. We had been told that a work around was being sought and the MoJ has been attempting to continue with its work through some political upheaval.

The MOJ has confirmed that it intends to lay a further S.I. in November 2022 which will permit those cases under AGFS scheme 11 (orders dated on or after 31st December 2018) and the previous LGFS scheme which have yet to have had (completed) a main hearing by the date of the S.I., to receive an uplift in accordance with the terms of the S.I. laid on 30th September.

The CBA is informed that there are 54 cases which are pre-December 2018. They will not receive the uplift. These cases will not be those of barristers who are our most junior as those barristers would not have qualified in 2018.

The MoJ accepts that there also are cases in November which will complete their main hearing before the new S.I and so will not be eligible for the uplift.

There have been ongoing meetings with the MoJ over these failings.

The value of the uplifts relating to any further previous, pre- 2018 schemes and the value of any uplifts under previous schemes that were due to be paid during November will be added to the £3m fund assigned to special and wasted preparation. This value is expected to be £212,000.

In summary, this situation has occurred as the MoJ will not reconfigure its IT systems at the much higher expense than the value of the affected cases.

The MoJ is taking the steps outlined above to ensure that the overall value of the deal remains whilst avoiding expense on reconfiguring IT systems for limited the schemes pre-December 2018 which would cost far more than the expenditure and then be obsolete.

We encourage the barristers in the 54 affected cases to contact us if they require further information.

We also point to the Hardship Fund which remains open and available for applications.

When is the Main Hearing?
We have received queries in relation to the “main hearing”.

The Ministry of Justice has set out in writing that if a trial commences before the Statutory Instrument comes into force but concludes after that date, the case will receive the uplift.

Section 2.1 of the remuneration regulations define the main hearing as ‘the trial’.

The main hearing date will be the final date of the trial regardless of when it commenced.

The Criminal Legal Aid (Remuneration) Regulations 2013 (legislation.gov.uk)

CLAAB
The first meeting of the Criminal Legal Aid Advisory Board took place on 28th October 2022. Its composition is being finalised and a Chair is yet to be appointed. It has been expedited in line with the deal. It was chaired by Daniel Flury, Acting Director of Access to Justice Policy.

I attended on behalf of the CBA together with Vice-Chair Tana Adkin QC alongside the Chair of the Bar Council and representatives of the Law Society, Cilex, LAA, MoJ, LCCSA and CLSA. The focus of the first work of CLAAB is the detail of the implementation of fees for special preparation and written work and wasted preparation, as recommended by CLAR, and section 28 Youth Justice and Criminal Evidence Act 1999. This focus is on improvements to fees for the junior Bar.

There will be a committee set up from the Criminal Bar to report to and inform CLAAB by 11 November 2022. This key Committee of course will include a representative/s of the Young Criminal Bar who will work alongside barristers who also continue to advocate for the junior Bar.

CPS Fees
I am in regular contact with the DPP.

The CPS is pursuing the uplift of CPS fees in line with the increase to defence fees. Undoubtedly, political uncertainty over recent weeks has not assisted. The DPP will be giving evidence to the JSC tomorrow.

We will update you as soon as there is further news, and we maintain a close eye upon the issue and developments.

Conclusion
Movement now is tangible and measurable, and we no longer are restricted to shouting about injustice from the sites of the crashes. We are travelling forwards. And we remain in strength as we travel together.

Thank you for all your support.

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