Weekly Round Up – 25.02.13
Headlines
Personal Email: [email protected]
• The Culture within the CPS exposed
• Justice Minister Identifies the Problem but not the solution
• An Utterly Appalling Breach of the Cab Rank Rule
• Raising Questions in the House
• Our Jury System
• The Realities of Life at the Bar. Enough is Enough, Guidance Given.
• The True Concerns of Baroness Deech
• A Tribute to Peter Beaumont QC, recently retired Recorder of London
• Do Right Fear No One: Chairman’s Comment
• Chambers subscriptions direct
1. The Culture within the CPS exposed
The following email was leaked to the CBA, Chair of the Bar and the Circuit Leaders last Friday.
“From: [redacted]
Sent: 15 January 2013 18:11
Subject: The tick and star system
Dear All
Please can I encourage you all to adopt a system devised by and his team at Isleworth when we were LAUs?
This is a system of putting a tick or a star * on the right hand corner of your brief backsheet after completion of the PCMH when the case has been set down for trial.
The tick is an indication that this case should be briefed out to the external bar and the star is an indication that the case should be briefed to a Crown Advocate.
The reason for doing this is to give the clerks back at Drummond Gate a helping hand when they are faced with the mountains of briefs from all of the 5 Crown Courts.
The way we worked this system at lsleworth and Harrow was as follows:
Tick .we would tick the cases that we didn’t want to do – ie messy ,troublesome cases with lots of complications. We also -would tend to tick the low earners – burglary, going equipped category E, F and H offences.
Star * we would star the cases that we wanted to keep in-house so the higher earners – category B – robbery with a weapon, PWIT’s or category J – indecent images. We would also try and keep in house cases m here we could anticipate that they would end up cracking either because the evidence was weak and not likely to Improve or the witnesses were not going to turn up.
The tick and star system acts as a guide to those who have the unenviable task of allocating the brief post PCMH.
Obviously we are keen for advocates to progress and develop their skills and we would encourage everyone to be proactive in seeking out trials that they want to do in order to develop themselves. In that situation where you have done the PCMH and you want to do the trial .star* the brief and e-mail the clerks or your line manager and ask for that trial to be allocated to you.
Kind regards,”
We are all appalled if not surprised by this practice and we have issued the following statement:
LEAKED EMAIL SHOWS CPS PUTS COST FIRST, QUALITY SECOND WHEN PROSECUTING SERIOUS CRIMES – BAR LEADERS
The Bar Council, which represents barristers in England and Wales, along with the Criminal Bar Association and Circuit Leaders have today published evidence that the Crown Prosecution Service (‘CPS’) has adopted deliberate practices not to instruct the correct advocate for a given case if there is a financial interest to the CPS in keeping the work in-house.
An internal CPS email reveals beyond doubt what the Bar has long thought to be the practice in terms of how the CPS instructs advocates, namely:
1. Complex, difficult or ‘messy’ cases requiring a superior level of expertise are briefed out to the independent Bar – especially if they are likely to be poorly remunerated, and
2. Cases which are weak or likely to be particularly profitable are to be kept in-house, which will lead to misleading figures as to how cost effective in-house CPS advocates are.
Maura McGowan QC, Chairman of the Bar Council, also speaking on behalf of the Criminal Bar Association and all the Circuit Leaders, said:
“The public interest demands that the correct advocate is instructed to prosecute a case based on skill and the complexity of the case. Today, we are able to show, with incontrovertible evidence that the CPS is deliberately acting against the public interest and the best people are not being used to prosecute serious crimes.
“The emergence of the CPS in-house advocate and the focus on cost and budget rather than quality of advocacy is a serious blow to the criminal justice system. We would never have known for certain that this practice was going on, without the evidence that we are publishing today.
“The public and the Bar might justifiably believe they have been misled.
“Both Michael Turner QC and I have informed the Director of Public Prosecutions on the topic. He has offered his apologies and has stated in terms that this communication was unknown to him or anyone in his office and does not represent any general policy. He has promised a full investigation.
“We await that investigation to see whether the stated method of instruction in the attached email is indeed limited to the five North London Courts or if the notion of dividing work with cynical disregard for standards is more prevalent than we have been led to believe.
“Whilst, of course, we accept the Director’s word that it does not represent policy, it exposes a culture that has grown up within the CPS that is driven by cost and cost alone. The instructions contained in the email an utter disregard for ensuring that cases are prosecuted by those with sufficient experience and skill to do so.
“Equally, whilst recognising that the Bar is best equipped to deal with cases, it encourages the use of in-house advocates wherever possible. It is clear to us that, in introducing CPS cuts, no proper impact assessment was carried out. A culture such as the one exposed by this email cannot be dealt with by proclamation alone. The only remedy is to fund the service adequately. We would urge the Government to recognise that their present regime of cuts neither serves the victims of crime nor presents value for money for the taxpayer.
“We have written to the Lord Chancellor and Secretary of State for Justice and the Attorney General to make them aware of this practice.”
2. Justice Minister Identifies the Problem but not the solution
Justice Minister Damien Green astutely identified that the endemic delays in our Court system were unacceptable HERE
His solution? To “address the causes of inefficiency by working together with the police, judiciary, Crown Prosecution Service and court services.”
That is not going to get him very far, why will he not consult the defence community? This week yet another case at Southwark Crown Court collapsed after 6 weeks because of disclosure problems, Damien Green puts the blinkers on. We have been pointing out the reason for the delays in the system for the last 9 months, here is a brief reminder:
Delays caused by a system of disclosure that is now broken almost beyond repair. I was invited to discuss with the Directors Office modification to the Criminal Procedure Rules. I was present with Brain Altman QC and a senior solicitor. They informed us that it was their intention to expand upon their system that only one lawyer would be tasked with understanding the non-disclosed material in a given case. That lawyer would not be trial counsel and would invariably not be present during the trial. We pointed out that in those circumstances the Crown’s continuing duty of disclosure could never be met. Their response was to enquire whether we could suggest any modification to the Criminal Procedure Rules which would cure that situation. You can guess our response.
Delays caused by translators originally provided by Applied Language Solutions who cannot speak the language of the defendant. Applied Language Solutions is a private company that employed translators without qualification or CRB check. They obtained the contract by falsely claiming they had reputed translators on their books, when they did not. Their contract has been taken over by Capita Translation Services, who provide the same service or lack of it.
Delays caused by a partly privatised prison service, which has cut so many corners to maximise its profit it has one van servicing five court centres.
The Government is currently proposing to return half of all Magistrate’s Court prosecutions to police officers. Some of you reading this will remember how disastrous that system was some 30 or so years ago, which led to the formation of the Crown Prosecution service.
Sadly this myopic approach is happening all over the public sector. Sir Bruce Keogh the NHS chief announced today that he wants consultants to work a seven day week HERE
Mr Flynn, a consultant obstetrician and gynaecologist in Swansea, gave the blindly obvious response by saying there is little justification for demanding that consultants – other than those in accident and emergency – work at weekends.
One argument often advanced is that seven-day working is necessary to meet the demands on the NHS and reduce waiting times. But, he says, consultants are frustrated by their inability to make the service they offer more efficient. Financial and organisational systems get in the way. “It flies in the face of all logic to reward a system that is not using its existing resources to best effect over five days by giving it the opportunity to mismanage them over seven,”
“Any clinician can tell you off the top of his head three things that will make their clinic more efficient. Any surgeon can tell you three things that will make his or her operating lists more efficient. It is time the NHS listened to the doctors who can tell it how to solve these problems and stopped just throwing a longer working week at it.”
Hear Hear ! Mr Flynn. If you only speak to the people who are the cause of the problem you will never find the solution.
3. An Utterly Appalling Breach of the Cab Rank Rule
One of our members sent us THIS during the week.
Whilst this case dates back to 2006 it provides an example of the most flagrant discrimination, which we hoped could not be displayed by any barrister. Sadly this case proves we are wrong. This kind of behaviour has no place at the Bar and we will do everything in our power to route it out and stamp on it. If any of you know of any other such examples let us know in the usual way.
4. Raising Questions in the House
Last week I have been identifying our friends and allies in Parliament. This has given us the opportunity to suggest questions that should be asked. Let us know what you would like to be asked and we will endeavour to achieve it. Those questions that are asked and the answers to them we hope to subsequently publish on a weekly basis. Email, tweet, blog.
5. Our Jury System
The failure of the Vikki Pryce jury to agree has provoked a lot of nonsense about ridding our society of the jury system The question that many have picked up on as supposedly demonstrating the idiocy of the Pryce jury was question No 5 “ Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it”. Even a fairly dim barrister should recognise that this was not a question asked by the entire jury. Look at how the question is phrased. I suggest this was a question asked to deal with a single juror who refused to be told by the others that he/she could not take such matters into account. They asked 10 questions in all which were all perfectly sensible. How dare people suggest this should give rise to concerns about the jury system. What because they couldn’t agree? We suspect the Country is split down the middle on this one. Would any one of us want to live in a democracy where in the Crown Court the sole fact finder, in a case brought by the State was an employee of the State? Certainly I don’t.
6. The True Concerns of Baroness Deech HERE
An example of how ennoblement can go to one’s head. One had rather hoped that the head of the Bar Standards Board would be having sleepless nights about seeking to introduce a supposed Quality Assurance System, which she herself accepts is not in the public interest. Instead we see that her primary worry appears to be that her title does not open as many doors as she clearly thinks it should. Am I dreaming or aren’t the Bar Standards Board meant to be standard bearers for equality and diversity. This is their mission statement on the topic:
Equality and diversity
We recognise that in promoting and safeguarding the highest standards of legal education and practice, we have both moral and legal duties in respect of equality and diversity practice.
We aim to ensure meaningful compliance with equalities legislation in every aspect of our work, to demonstrate best equalities and anti-discrimination practice and to embed the principles of equality and fairness into the day to day running of BSB business.
In order to meet this core aim, we work hard to ensure:
• Equality is embedded into all aspects of our work
• Our standards apply evenly and fairly to those whom we regulate whether employed or self employed
• Staff recruitment and deployment decisions are in line with our strategic aims and the corporate plan, as well as reflecting equality and diversity
• Ensuring that equality and diversity issues are taken into account in our own working practices
• Promoting greater diversity in the profession at senior levels and across different areas of practice
Clearly, the Baroness does not seek to apply these principles outside of the Bar Standards Board.
7. A Tribute to Peter Beaumont QC, recently retired Recorder of London
In the excitement of last week I stupidly forgot to mark the retirement of Peter Beaumont QC. Brian Altman QC was onto me like a flash to berate me for my error. As so often, out of court, Brian was of course right.
His Honour Judge Peter Beaumont Q.C. retired as Recorder of London on Tuesday 12th February 2013. At 10 o’clock that morning a valedictory was held for him in Court 1 of the Old Bailey, at which the Lord Chief Justice spoke for the judiciary, and I spoke on behalf of the Bar, with Peter responding.
There was an enormous turnout, with standing room only. Present also were Lord Justice Thomas, Mr Justice Fulford and Mr Justice Sweeney, as well as present and retired judges of the Old Bailey, resident judges from other London court centres, members of the Bar, City officials and staff, Old Bailey staff and of course Peter’s wife, Annie, and his close family and friends.
All were present to mark their respect for a man who had shaped the character of the Old Bailey, and had set an extremely high standard of excellence for the Court.
He served the office of Recorder of London with the utmost distinction and character. He will always be remembered with great fondness as a fair and humane judge, a fine lawyer, blessed with natural authority, and, above all, as a kind-hearted, generous and gentle man. He will be greatly missed.
We all wish him a long, happy and healthy retirement.
Brian Altman Q.C.
First Senior Treasury Counsel
Chairman of the CCC Bar Mess
We all concur with Brian’s words and join in wishing Peter a long and happy retirement.
8. Do Right Fear No One: Chairman’s Comment
I received the following email from one of our members. The plea he makes you will be all too familiar with:-
Dear Mike
I am afraid I am at my wits end. I have recently seen the much darker side of HMRC in their quest to pursue the Bar. I have been hectored, laughed at and had the most personal questions and suggestions made of and to me, by a clearly motivated new group of middle aged women masquerading as tax collectors. The upshot is that the “deal” i struck with the Revenue just 10 days ago has been derailed by the LSC deciding to not pay me over £14,000 of a quite legitimate and carefully submitted bill for a case I did in Manchester last year.
I read with care your carefully worded and measured report each week. But enough is enough.
What we, at the coal face, need is guidance from our. We need guidance about what we can do.
I am asked, for a 2 month case starting in 2 weeks, to make a series of admissions as to contact between telephones. The evidence has not been served so as to bring it within the AGFS – it is served on disc and will not be counted as part of the ppe. It amounts to several thousands of pounds off the brief fee.
I am asked to agree timelines, based on observation evidence of which there is scant reference in the prosecution witness statements, without the prosecution serving any observation logs.
I am asked to agree witness statements which are littered with hearsay evidence without any hearsay application been made.
I am asked to agree telephone attributions, based mainly on telephone downloads an analyst has seen, which have not been served as prosecution evidence within the ppe definition.
I am asked to agree bad character evidence based on a 2 page pro forma application backed up by a one page extract from the PNC
I am asked to ensure a trial of 11 defendants on a conspiracy to supply cocaine is completed within three weeks.
It is quite clear to me that the CPS are now managing their cases with not only the cost to themselves being a factor, but also the cost of the defence.
I can of course refuse to make any admissions. However, the judge can made case management orders. he has the power to make costs orders.
As I am first on the indictment, currently without a junior, although one has been applied for, there will be an awful lot of work to do doing the trial.
This type of work has conventionally been done at night and weekends.
The scenarios I have described are common and occur in pretty much every case I have done for the last 2 years, and affect pretty much every barrister in the criminal courts.
What I need is guidance. What the profession needs guidance.
Do I make the admissions? Do I work 2 – 3 hours per night?
Or do I say no. I won’t.
Because unless and until our value and importance to the Criminal Justice System is recognised, we as a profession are doomed.
Today, the jobbing barrister fears more the BSB or the Legal Ombudsman than he does a spiteful judge. It would be of great comfort to have some guidance from our last remaining hope of saving the profession.
Yours as ever,
The guidance I gave to this member I share with you all.
The relevant parts of our Code of Conduct are as follows:-
302. A barrister has an overriding duty to the Court to act with independence in the interests of justice: he must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court.
303. A barrister:
(a) must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person (including any colleague, professional client or other intermediary or another barrister, the barrister’s employer or any Authorised Body of which the barrister may be an owner or manager);
(b) owes his primary duty as between the lay client and any other person to the lay client and must not permit any other person to limit his discretion as to how the interests of the lay client can best be served;
It will be all too apparent from the lead piece in this email that there are many in our profession who have lost sight of these fundamental principles. We at the independent Bar should never do so. As incompetence becomes ever more apparent in the prosecution of cases those defending should never submit to pressure, for where ever applied, to cut corners for the sake of an easy ride. We should never make admissions of fact or advise our clients to do so where the material upon which those admissions are based are kept from us. We must always give ourselves the proper time to assimilate material on behalf of our client and if we are denied that because of late service, we must say so. The strength of the independent Bar is that it will not be bullied into unacceptable working practices by those who fail in their job in the first place. Equally, we have the right to be paid for the work we do, and if the CPS invent scheme after scheme whereby that payment is effectively avoided, we should not do the work unless and until appropriate guarantees are given. The CBA will back to the hilt any if its’ members who stand up for the fundamental principles by which we live and breath.
9. Chambers subscriptions direct
This initiative has now tripled our paid up membership to 3,099. We are pretty sure the Criminal Bar is well over 5000 so can we ask for your further help to get our paid up membership to an all-time high. Thank you.
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