Weekly Round Up – 04.03.13
CBA Chairman’s Update: Michael Turner QC
Headlines
Do right, fear no one: Chairman’s Comment
- A case of the emperor’s new clothes. Is the CPS really saving the tax payer money? A follow up on the leaked email.
- More rights stolen: CPS to dictate defence representation.
- The New Silks List.
- The Criminal Justice Board: A classic example of why nothing will ever change.
- No fat to be cut in BSB budget? We make some helpful suggestions.
- The LSB and the Cab Rank Rule
- A Vote of Thanks to Gillian Jones, past secretary.
1. Do right, fear no one: Chairman’s Comment
The bad news stories are relentless. Silks may disappear altogether; politicians and civil servants alike delude themselves and the public that they are achieving things in the public interest. The quango’s that regulate us grow fat on our income whilst doing little of use. The obvious chaos created is then investigated- this time by the new Criminal Justice Board which seeks to consult everyone who causes the problems in the first place but not those who might know how to fix it.
This is a story sadly replicated in every walk of public sector life. I learnt recently that the Brook Trust and the Terrence Higgins trust are to lose their funding. The extraordinary advice they give is going to be handed to Serco, who it seems will run a sexual health advice service from a call centre in Glasgow, its employees giving advice from an algorithm sheet. The danger is that short term politics has abandoned building lasting structures that will serve society in the future. It is all about a headline and a superficial quick fix. We are not going to change this thinking by a quiet talk in a back room. We must join forces with all those affected by this wrongheaded approach, the tide will only turn if the politician thinks votes might be lost and the civil servant their job. The Justice Secretary said on Sunday “ It is inevitable that Labour’s Human Rights Act has to go”. Presumably because the current health service and justice policy are neither compatible with the right to life or a fair trial.
2. A case of the emperor’s new clothes. Is the CPS really saving the tax payer money. A follow up on the leaked email.
Keir Stamer QC, the DPP made an appearance at the Bar Council GMC on Saturday. He announced that the ‘tick and star’ system was not policy and that he was continuing his investigation. He stated that he would re-iterate the policy which was to brief in house and to the independent bar based on the suitability of the case, with an eye to value but no more. What was troubling was the discovery of a report dated March 2012 by Michael Fuller QPM HMC Chief Inspector of the Crown Prosecution Service.
In his forward he states as follows:
“Whilst this follow-up inspection identified good practice, the inspectors found that the effective implementation of the advocacy strategy is being hindered by two factors, namely: the oversupply of crown advocates that has arisen as a result of an almost open access policy to the crown advocate grade; and the local approaches to allocating work which appear to be based on the pursuit of the maximum amount of savings in counsel fees, rather than achieving and developing good quality advocacy . Neither seems consistent with the strategic intent to develop a rounded cadre of skilled, quality, in-house advocates.“
Myself together with all the circuit leaders and Maura McGowan QC, challenged the DPP on the basis that it was time to admit that the CPS was a broken machine, which was costing the tax payer more money than ever before. This in part was based on information to be found in the cited report which revealed the following statistics:
Crown Court Sessions and Fee Savings
Fee savings: explanatory note
The majority of cases currently prosecuted by the independent Bar in the Crown Court are paid for using the Graduated Fees Scheme (GFS) counsel fees guidance. A small number of cases where the time estimate for trial exceeds 40 days, or where more than two trial advocates are instructed, are excluded from the GFS and are dealt with under the Very High Cost Case (VHCC) fee scheme .
Where Crown Court work is undertaken by a CPS crown advocate, CPS advocacy costs are calculated using actual salary costs of the advocate plus 10.5% uplift for corporate costs, this figure is then multiplied by the time spent on preparing and presenting the case. Under the GFS different fees are paid for different types of work, and fees are not related to the total length of time it takes an advocate to complete the work required. Total fees savings are calculated by subtracting the CPS costs from what the GFS cost would have been, had an external advocate being used to prosecute the case. This means that in some particular types of hearings where the time to undertake the work required is reduced, the savings against costs are often increased. For example, in the Crown Court, the fees that can be claimed when a defendant pleads guilty on the morning of the trial are in fact higher than they would have been had the trial lasted five days. It is therefore to the CPS’s financial advantage to allocate an in-house advocate to a hearing where it is believed that the defendant is likely to plead guilty at the door of the court.
In relation to non-contested hearings, a plea and case management hearing attracts a higher fee than other non-contested work and the nature of the work means that a number of cases can be undertaken on the same day. This high volume of work would attract significant fees which are higher than the fee for a short trial.
The figure of a £26 million saving was quoted in the Times on Monday last week. It does not represent the reality. Take 2009, the net saving figure taking into account salary with an uplift for corporate costs is just shy of £8.5 million. That however does not include the employee package i.e. pension, sick pay etc. If you factor that in the saving figure disappears completely. Then you have to factor in the cost of disasters happening all too frequently around the country. The most recent is a trial at Southwark which has collapsed after 6 weeks due to the most appalling disclosure and attracting serious criticism of the in house CPS junior. There is a wasted cost application in the wings for £1/2 million. The trial was five handed and must have cost in the region of £3 million. There is to be a re-trial. That is a picture replicated around the country. The reality is that the current system is costing the tax payer upwards of £50 million more on a conservative estimate. The DPP resolutely defends the system and stated that the independent Bar causes as many problems as his own in house advocates. Is that accurate or is this a case of purported savings resulting into an overall greater cost to the taxpayer?
3. More rights stolen: CPS to dictate defence representation.
How terrifying is this: The Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013.
Criminal proceedings other than before a magistrates’ court
18.
(1) Subject to paragraphs (2) to (6), in relation to any criminal proceedings that are not before a magistrates’ court, the right of an individual conferred by section 27(4) of the Act does not include a right to select a Queen’s Counsel or more than one advocate.
(2) The relevant court may determine that an individual can select a Queen’s Counsel if that individual’s case involves substantial novel or complex issues of law or fact which could not be adequately presented except by a Queen’s Counsel, and either—
(a)the exceptional condition is met; or
(b)the counsel condition is met.
(3) The relevant court may determine that an individual can select two junior advocates if that individual’s case involves substantial novel or complex issues of law or fact which could not be adequately presented by a single advocate, including a Queen’s Counsel alone, and either—
(a)the exceptional condition is met; or
(b)the prosecution condition is met.
(4) The relevant court may determine that an individual can select a Queen’s Counsel and a junior advocate if that individual’s case involves substantial novel or complex issues of law or fact which could not be adequately presented except by a Queen’s Counsel assisted by a junior advocate and either—
(a)the exceptional condition is met; or
(b)the counsel condition and the prosecution condition are met.
(5) The relevant court may determine that an individual can select three advocates if the proceedings relate to a prosecution brought by the Serious Fraud Office and the relevant court determines that three advocates are required to represent the individual.
(6) If the proceedings described in paragraph (5) are in the Crown Court, that court must also determine that the individual’s case involves substantial novel or complex issues of law or fact which could not be adequately presented by two junior advocates, or by a Queen’s Counsel assisted by a junior advocate, and either—
(a)the exceptional condition is met; or
(b)the prosecution condition is met.
(7) In this regulation—
“the counsel condition” means, in relation to particular criminal proceedings, that a Queen’s Counsel or senior Treasury Counsel has been instructed on behalf of the prosecution;
“the exceptional condition” means, in relation to particular criminal proceedings, that the individual’s case is exceptional compared with the generality of cases involving similar offences;
“the prosecution condition” means, in relation to particular criminal proceedings, any of the following circumstances—
(a) two or more advocates have been instructed on behalf of the prosecution;
(b) the number of prosecution witnesses exceeds 80;
(c) the number of pages of prosecution evidence exceeds 1000; and
“prosecution evidence” means all witness statements, documentary and pictorial exhibits and records of interview with the individual and with any other defendants which form part of the committal or served prosecution documents or are included in any notice of additional evidence.
You soon will only be able to instruct a silk in a murder if the case is in some way exceptional or if the CPS choose to instruct a silk.
You do not need much imagination to see how these rules could be manipulated to deny defendants the representation they deserve in serious cases. There is also a strong rumour being spread by those in power that the next move will be to remove the financial distinction between silk and leading junior.
The sugar coated pill that goes with this is they will re-distribute the saving to the junior Bar. Believe that if you want, but know it will in fact destroy the Bar at the most junior level. As we have pointed out before the market place will be skewed, the silks will take the leading junior work, they will move down a level and so on and the real will be the most junior at the Bar. Both this and proposed Statutory instrument are real threats to the future and stability of the Criminal Bar. There is no consultation, no dialogue and no principled approach underpinning these measures. We are making our best efforts in trying to inform Parliament of the counter arguments and how ultimately this is not the right course.
4. The New Silks List
The New silks list. We congratulate all and invite them all to join us in the trenches.
5. The Criminal Justice Board: A classic example of why nothing will ever change.
Membership of the Board includes:
- Damian Green, Minister for CJS and Policing (Chair)
- Helen Grant, Minister for Courts and Victims
- Oliver Heald, Solicitor General
- Baroness Doocey
- Baroness Newlove, Commissioner for Victims and Witnesses
- Winston Roddick Qc PCC for North Wales
- Frances Done, Youth Justice Board
- Alex Marshall, College of Policing
- Peter Lewis, Crown Prosecution Service
- Peter Handcock, HM Courts & Tribunals Service
- Mark Castles, Association of Police & Crime Commissioners
- Helen Edwards, Justice Policy Group, MoJ
- Stephen Rimmer Crime & Policing Group, Home Office
- Kevin McGinty, Attorney General’s Office
- Jim Barker-McCardle, ACPO CJS Lead
- Matthew Coats, Legal Services Commission
- Michael Spurr, National Offender Management Service
- Keith Bristow, National Crime Agency
- The following member of the judiciary sits on the Board as an observer
- Lord Justice Gross, Senior Presiding Judge & Chair of the Criminal Justice Council
Not a single one of us who they call “the defence community” have been invited to contribute. We raised this with the Solicitor General and the Attorney on Saturday. The Solicitor General at first suggested that we had not been invited to protect our independence. The Attorney on the other saw a flaw is this argument and indeed said he saw the force in the point of never consulting those who might actually know how to fix that which is broken. He promised to raise the matter with Damien Green. We are happy to engage and keen to maintain a fair, stable and efficient Criminal Justice System.
6. No fat to be cut in BSB budget? We make some helpful suggestions.
Baronness Deech announced at Bar Council on Saturday that there was no more fat to be cut from the BSB budget. Might we suggest that she thinks again?
Do the BSB need to be housed in £2 m offices in Holborn? Could they just as well do their work from less well heeled offices away from the metropolis.
If they understood the concept of light touch regulation would they need the staff they have?
I am sure you can answer these questions as well as I can.
7. The LSB and the Cab Rank Rule
You will remember the ridiculous report attacking the cab rank rule prepared by John Flood and Morten Hviid on behalf of the LSB.
The Bar Council put in a FoI request of the LSB to discover how much of our money was spent on this. The answer: a staggering £21,000. If any of you can suggest lawful ways of riding ourselves of this quango which simply invents pointless work for itself in order to justify its existence I would be eternally grateful.
8. A Vote of Thanks to Gillian Jones past secretary
Gill’s last meeting was last week. She has served the CBA as secretary under both Max Hill and I. We could not have asked for a more dedicated, conscientious, ever cheerful secretary. Gill could not have made any greater effort when I took over to ensure that I was aware of everything I needed to do. Thereafter she has been ever present, never failing to be the first to volunteer when a job needs to be done. All CBA members should be very grateful for all her hard work. I certainly am. Thank you Gill.
Personal Email: [email protected]
CBA NEWS/EVENTS
Thomson Reuters Professional Pioneers group for QCs and Leading Juniors specialising in Criminal Law:
This group is designed to provide a forum where a small number of representatives from leading criminal chambers can come together to exchange views and ideas in the context of the ever changing legal services market. We envisage 15 to 20 attendees at any one session and Thomson Reuters’ role is to facilitate. Working closely with the group, we’ll pull together sessions based on the topics that matter to the Criminal Bar. Sessions will take place twice a year in the evening over drinks and will feature a guest speaker.
The first such event will be Monday 11th March, from 6 until 8pm and it will take place at Thomson Reuters’ offices on Hatton Garden. We are delighted to confirm that our speaker will be Paul Shipley, IT Director, HM Courts & Tribunals Service. Paul will be discussing “The future of the courtroom: What will it be like in 5-10 years’ time?”
We have just a couple of spaces remaining for this event and would like to invite QCs and Leading Juniors to please contact Sian at [email protected] if the event is of interest. Once you have registered your interest, we will send you a formal invitation with full details.
Old Bailey Lecture:
‘The guilty plea discount, extended sentences and life sentences – How and why changes have been and will be made’
Speaker Robert Banks
Tuesday 5th March 2013, 5:15pm
The Old Bailey
1 CPD expected
To secure your place, please email Aaron.
The Law Reform Committee and the Criminal Bar Association jointly present an evening debate: ‘Protecting free speech: A Public Interest Defence for the Media?’
Large Pension Room, Gray’s Inn, London, WC1R 5ET
Wednesday 20 March 2013
18:00-20:00; followed by a drinks reception
Speakers:
Max Mosley
Gavin Millar QC
Gillian Phillips (The Guardian)
TBC
Chair: Lord Justice Hooper
£10 in advance (or £15 on the door) to include drinks and canapés
CPD Accreditation – 2 hours expected
CBA Members can book online www.criminalbar.com
The CBA Spring Conference
University of Birmingham
Saturday 27th April 2013
6 CPD expected
Further details and how to book HERE
CBA Annual Dinner
Middle Temple
Friday 10th May 2013
Further details and how to book HERE
CBA Bursary – Our Fund Raising
The Chairman and Committee are pleased to announce that the Bursary Scheme, which was launched in September, has already proved beneficial to several of our members. The scheme is already being supported by the following Criminal Sets who have kindly agreed to pay £500.00 each year for the next three years in order to support the scheme.
- 2 Bedford Row
- 25 Bedford Row
- 9 Bedford Row
- 23 Essex St
- Garden Court Chambers
- 18 Red Lion Court
- 3 Raymond Buildings
- 9/12 Bell Yard
- Furnival Chambers
- 2 Hare Courts
- Carmelite Chambers
If you Chambers would like to contribute and assist with the Bursary Scheme, please contact the Treasurer, Thomas Payne at [email protected]
Health Support and Advice for the Bar – Law Care
LawCare provides an independent and confidential service which assists members of the Law Societies of England and Wales, Scotland, Northern Ireland, Ireland and the Isle of Man; the Institute of Legal Executives; the Bar Councils of England and Wales, the Republic of Ireland, and Northern Ireland; the Faculty of Advocates in Scotland; the Department of Justice; the Institute of Barristers Clerks; and the National Association of Paralegals. This is a confidential advisory service to help lawyers, their immediate families and their support staff to deal with the health issues and related emotional difficulties that can result from a stressful career as a lawyer, or working with lawyers. LawCare is there to support and assist you, too. LawCare offers you the opportunity to discuss problems that are interfering with, or have the potential to interfere with, your work performance and / or your family life and to seek to help in resolving these problems. Through LawCare, help is available to those who are suffering from stress and/or depression, or who have alcohol, drug or other dependency concerns, or eating disorders.
There is a helpline which is open 365 days a year:-
9am – 7.30pm, Monday to Friday
10am – 4pm Saturday, Sunday and UK Bank Holidays
0800 018 4299
Further details can be found on the website here.
Other News
Criminal Law Week – updates (issue 9):
Key updates from this week’s issue of Criminal Law Week:
Loss of control – whether normal rules of voluntary intoxication apply to this defence: R. v. Asmelash, C.A. (CLW/13/09/4).
Alternative verdict – Court of Appeal decision, plus editorial comment, on alternative verdicts in the context of offences against the person: R. v. Nelson (CLW/13/09/1).
Preparatory hearings – whether judge can revoke an order that a hearing is to be treated as a preparatory hearing: R. v. Y. (D.G.) and Z. (S.B.), C.A. (CLW/13/09/2).
Costs – new part of Costs Law Reports digested, including two cases on what constitutes a “retrial” and the impact of retrials on time limits (CLW/13/09/6-9).
Bar Provider Reference Group
The LSC and Bar Council will jointly host a series of regional ‘Bar Reference Group’ events in February and March 2013.
These events will be held in each circuit following a successful pilot meeting in the South Eastern circuit, held at the Bar Council’s office in October 2012.
What will we cover?
The events will follow a similar format to this pilot meeting, and will give barristers and solicitor advocates a chance to talk to senior LSC staff about:
- the creation of the Legal Aid Agency on 1 April 2013
- the implementation of the ‘Legal Aid, Sentencing and Punishment of Offenders Act’, 2012
- our performance in processing your applications and claims
- the piloting of LSC Online, the digital system for dealing with civil certificated work
- the expansion of our Bar Contract Management Team.
Further information can be found HERE.
The Autism and Criminal Justice system
The Autism and Criminal Justice system Project has been set up to increase awareness of autism and to assist in building capacity in the CJS to assist those who are vulnerable due to autism. It aims at a three-way knowledge exchange between criminal justice system practitioners, academics, and leading charities. It is funded by the British Psychological Society and led by a project team. As part of their research the team has devised a survey aimed at those including barristers who have had experience in dealing with those with autism. They would be greatly helped if as many barristers as possible who have had such experience would answer the survey HERE. The outcome of the research and of the Project can only be of benefit to the Bar in being better able to deal with vulnerable clients and witnesses and to enable the criminal justice system to accommodate them.
Other Events
Sentencing of sexual offences: consultation event
7 March 2013, 10.00 – 12.00hrs
Lancaster University, Bailrigg, Lancaster, LA1 4YW
Legal practitioners with experience of dealing with sexual offences are invited to attend a consultation event on proposed new sentencing guidelines.
The event, taking place on 7 March at Lancaster University, will give legal practitioners and law enforcement colleagues the opportunity to discuss the proposed approach for judges to take in sentencing rape, sexual assault and offences involving indecent images of children.
Sentencing Council member John Crawforth, formerly Chief Executive for the Greater Manchester Probation Trust, will be chairing the event.
The new guideline is proposing a broader approach to assessing the impact on victims, as well as considering the full context of an offender’s behaviour and motivation, such as abuse of trust. It also reflects the increased use of technology in offences involving indecent images of children, sexual exploitation and grooming.
The Sentencing Council is looking to legal practitioners to feed in their experience in how offending is developing and whether the factors identified in the draft guideline are right.
Please respond by 1 March to [email protected] if you wish to attend.
See the consultation at: http://sentencingcouncil.judiciary.gov.uk/consultations-current.htm. To request a hard copy or further information email the Office of the Sentencing Council.
International Crime Conference 2013
Tuesday 19 March 2013
9.30am-5.15pm
London EC1N 8HN
Further information is available here