Monday Message – 27.03.23
“No counsel is entitled to refuse to act in a sphere in which he practises, and on being tendered a proper fee for any person however unpopular or even offensive he or his opinions may be.”
So said Lord Reid in the House of Lords, around 50 years ago, in the case of Rondel v Worsley.
Practising members of the Criminal Bar prosecute and defend criminal law cases under the extreme pressure of a backlog, foisted on them by years of legal aid and court funding cuts. They see the best and worst of society as they play their essential role in delivering justice, within a legal framework, regardless of the identity or cause of the defendant.
Last week, a “Declaration” was made by a diverse group of students, solicitors, academics, and barristers from various jurisdictions. It states that they will withhold their “services” supporting “new fossil fuel projects” and “action against climate protestors exercising their democratic right of peaceful protest”.
This document quickly saw it trailing a doubling down of commitments to refuse to prosecute protestors.
The most prominent public commentary was by those not qualified to prosecute anyone.
The range of signatories – some retired, some without any rights to appear in any court or to give any legal advice – pulls away the curtain of headlines to reveal a performative, protest document.
It is a magician’s trick.
Engaging with the substance of climate change and global warming and identifying means to legally empower those who have an action against a corporation causing environmental damage is more meaningful than posturing to a fantasy future of instructions suddenly arriving from BP or a career in criminal law and entry onto the CPS panel.
The document may be well-intentioned, but it is ill-thought out.
It would maintain some credibility if it did not pretend to be something it is not.
It is not about the cab-rank as the signatories will never be a position of refusing cases.
The cab-rank rule
The cab-rank rule is rooted in protection of access to justice for the poor and vulnerable. It levels the playing field when those on the other side have wealth and status.
It also provides protection to those who prosecute the popular and defend the unpopular.
The “cab-rank rule” (rules C29 -C30 of the Code of Conduct) requires a self-employed barrister instructed by a professional client to accept instructions in areas where the barrister professes competence irrespective of (i) the party on whose behalf s/he is briefed or instructed (ii) the nature of the case and (iii) any belief or opinion which s/he may have formed as to the character, reputation, cause, conduct, guilt or innocence of that person.
Solicitors are not bound by any such rule. And it does not apply to international work.
Erskine’s summary of the cab rank rule in his defence of Tom Paine still echoes over the centuries:
“From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end”.
Although Erskine actually was utilising the rule to distance himself from Paine, he exposed the difference between private morality and public morality which is the cab rank rule.
Criminal barristers quietly work in the court rooms ensuring that the despised as well as the lauded are represented and that trials are fair.
The prosecution and defence link to provide the backbone of a strong rule of law; a rule of law that does not exist in many of the countries that are the worst perpetrators of climate change.
Arguments often are successful challenging the bringing of prosecutions against protestors and precedents are set which anchor our liberal democracy.
In recent years we have seen increased association of barristers with clients, already pilloried in press; a dangerous mechanism to heap censure upon barristers who are skilfully and courageously discharging their duties to court and client.
Tragically, the UK has not avoided a history where such association has been linked to serious harm, including murder.
In our modern online world, death threats and online abuse rapidly multiply. They inflame and burn fiercely.
Stop using the Criminal Justice System as a political football
Lawyers and commentators from across the political spectrum need to step away from bashing the criminal justice system into a political football.
Otherwise, it will roll across the field of gesture politics, lined with lofty declarations, to be kicked by the lynch mobs against barristers.
Huge congratulations to all our new KCs who are being sworn in at Westminster Hall today.
You are part of a new era.
Enjoy the day!
CBA on Tour
I can confidently report that the hospitality of the North East, as represented by Trinity Chambers, is excellent.
With huge thanks to Toby Hedworth KC, Head of Chambers at Trinity Chambers, Newcastle and to Tim Harris, Chambers’ Director and all the wonderful staff at Trinity who accommodated our Executive meeting and then cajoled people to meet with us over a drink in chambers.
Thanks also to the barristers who travelled from as far as Leeds to meet and exchange their views. A particular thanks to the CBA’s North Eastern Circuit representative, Chris Moran.
Finally, thank you to the most junior practitioners who took the time to meet us.
You were wonderfully inspiring, and I left Trinity feeling hopeful about the future of the Criminal Bar.
After further meetings with the Ministry of Justice and Ministers, the final part of the deal which relates to special preparation and wasted preparation is in part implemented. There will be a further review in July. The value of the deal is maintained as the government committed to ensuring that the £3.3 million is paid out over the Spending Review.
The Statutory Instrument is laid today and will be in force in three weeks.
It provides an additional bolt-on fee of £62 plus VAT for all trials and cracked trials and wasted preparation where the advocate has to return the brief.
The special preparation category has been widened in line with the deal to include audio visual material and written work.
At this stage, as the MoJ fee calculation is small, it is important that the bolt-on fee is the same for leading juniors, silks and juniors.
However, the government has not implemented the additional hourly rate where work is over three hours and flatly refused to do so due to its concern that the £3.3 million would be overspent.
The government has agreed to review the fee in July when it will have some data.
Minister Freer has sent a letter today setting out in writing the government’s commitment to the legal aid increases. and in response to many meetings and also in response to the letter I wrote to the .
A few thoughts on the letter
Engagement by the Ministers is demonstrated by the detail and amount of correspondence, in addition to regular and in-depth meetings.
We have sought to work with the Ministry of Justice, be realistic about its breaches in the urgent timescales, whilst holding it to implementation of the deal.
But, in the letter a few points:
- the data reference on unused material does not refer to the full timeline of when “accelerated measures” came into force,
- it does not reference the MoJ’s reliance on a midline figure of between £4 million to £11 million.
- The hourly rates- based escape mechanism does not create any more of an administrative burden on practitioners and the LAA than the unused material model.
- Minister Freer makes no mention of the deal or the breaches of the deal.
- The tropes that the backlog is due to Covid have returned.
- CLAAB remains without a Chair -but there appears to be some movement towards appointment process -the CBA has submitted suggestions. This is swiftness with wings of clay.
You can observe yourselves that this last part of the deal has been a battle pitched at different levels over the weeks.
I and our team from the remuneration committee, alongside members of the Bar Council remuneration committee and the CLAAB sub-committee, utilising the services of Professor Chalkley, continue to try to assist the MoJ with the reality of our work as against legal aid funding. It is a new way of communicating for both the Criminal Bar and the MoJ.
We extend our hands but curl them into fists when required.
The increases to legal aid to barristers since October 2022 so far have realised in payments totalling £7.5 million.
Your action and courage and dedication to the criminal justice system, dragging the government to this point, will not be airbrushed away.
The Statutory Instrument
The Explanatory Memorandum accompanying the S.I. includes as below:
“The new fixed fee will remunerate special (where the advocate is required to conduct an activity which goes beyond the usual preparatory workload of a case) and wasted (where the advocate has committed time in good faith to preparation but is then required to return the brief for reasons beyond their control) preparation. 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. The Government has committed to reviewing the implementation of this fee, commencing in July 2023.
Regulation 2 of these Regulations inserts paragraph 18A after paragraph 18 of Schedule 1 of the 2013 Regulations to provide for enhanced remuneration for additional preparation. It provides for a fee of £62 plus VAT per case payable to the trial advocate in respect of all such preparation.
These Regulations also clarify that, for the purposes of identifying the “trial advocate” in paragraph 26(4A) (payment of fees to trial advocate) that “trial” excludes any cross-examination or re-examination to which paragraph 13A(3)(b) of Schedule 1 (fee for video recorded cross-examination or re-examination) applies.”
International Work and Government
I attended the Justice Minsters’ Conference: Supporting the ICC and its Investigation into the Situation in Ukraine hosted by Secretary of State for Justice Dominic Raab MP and Mrs. Dilan Yesilgöz-Zegerius, Minister of Justice and Security of the Netherlands.
I thank the Secretary of State for Justice for the invitation.
The value of criminal barristers of England and Wales was recognised in conversations with Ministers of Justice across European jurisdictions.
The UK government is belatedly beginning to recognise the positive contribution our criminal Bar makes to the UK’s international reputation. It is a reputation which has been besmirched over the past years in the political sphere.
There is an opportunity for new beginnings in government approach to the Criminal Bar as well opportunity to benefit Ukraine with the expertise of criminal barristers.
CBA International Sub-Committee
The revival of the International sub-committee continues under the chairmanship of Peter Carter KC.
And the spotlight this week is on Peter who writes:
“International events continue to dominate the headlines. People and governments affected seek immediate humanitarian aid, but also more enduring legal solutions. Ideally, such input will provide reparation and processes for holding individuals to account for criminal acts. It will assist in creating rule of law structures to make deterrence and accountability effective.
We need members with international criminal law experience, or an interest in acquiring experience, to volunteer to become full members of the sub-committee, or to agree to assist as and when help is needed.
Working alongside the Chair of the CBA, we set out some provisional priorities, one of which is the proposed war crimes tribunal (ICC or ad hoc) for crimes committed by, and in the conduct of, the armed conflict in Ukraine. In addition to the jurisdiction of the ICC and the courts of Ukraine, there is also discussion surrounding the establishment of an international ad hoc or a Nuremberg style tribunal for the Crime of Aggression.
At this early stage, opportunities are opening to train lawyers to conduct such cases. We are keen to engage with both prosecutors and defence lawyers to develop a common ethos of fair trials in accordance with international standards.
Too often overseas training funded by governments or international bodies is confined to prosecutors. We know the value of shared professional standards between defence and prosecution in adversarial proceedings. And we know how to teach them.
Other areas we intend the sub-committee to address are – (1) the death penalty – a continuing source of injustice in states with which the UK has friendly relations; (b) corruption – there is a proposal for an international anti-corruption court; (c) anti-slavery and human trafficking; (d) holding corporations to account for gross negligence manslaughter by ignoring safety rules (often combined with corruption) such as is alleged to have contributed to the fatal consequences of the earthquakes in Turkey and Syria.”
Peter intends to hold a meeting/event at the end of April at which speakers will discuss the contribution (paid and pro bono) which members of the CBA can make to assist with rule of law projects internationally.
Labour and Criminal Justice
I attended the Labour party’s launch of its Criminal Justice “Safer Streets”. I was invited to the subsequent roundtable discussion chaired by the Leader of the Opposition, Sir Keir Starmer MP alongside Yvette Cooper MP. I thank them for the invitation.
I raised at that meeting that increases to legal aid had to continue, for the retention and recruitment of criminal barristers, and pointed to the absence of reference to legal aid in the Crime Mission document.
I reiterated the message that I give to government.
It is pointless investing hundreds of millions in victim support when their cases collapse at the court building as there are not enough barristers left to conduct the trials.
Reverse the lens and invest in the barristers who are repairing the floor of the criminal justice system; the ceiling having long since collapsed.
The HRW film festival appears to have been successful, and our members benefitted from free and discounted tickets.
The current partnership is with Global Investigations Review on 27 April 2023 (08.45 – 14.45) which looks at the UK enforcement landscape.
GIR Live: London Spring
Join Matthew Nunan, Gibson Dunn & Crutcher and Jonathan Peddie, Baker McKenzie for a dedicated session about policy on 27th April 2023 in the Allen & Overy offices in London.
They will bring their experience working in-house at a bank and previous FCA experience to help you navigate the future of UK enforcement for your clients.
This session will cover HMRC and OFSI strategies for the year ahead and, examine how the senior leadership changes at FCA and SFO will affect enforcement.
We also have 2 event delegate tickets to pass onto our under 7 years’ call practitioners. Please contact Aaron or Zayd Ahmed, CBA YBC Chair, if you are interested.
Work continues as to assistance that the CBA can establish and provide for barristers.
We are receiving many messages of exhaustion of criminal barristers and our Executive and CBA YBC is discussing how the most junior are best empowered to take agency over their workload as well as addressing courts where the listing is too much for the barristers dealing with the people behind the case names.
Barristers are skilled at presenting their client’s issues and presenting a clear case but don’t always analyse in the same way their own needs, working conditions and limits. We will be feeding in the results of the recent survey to the SPJ.
Look after yourselves and each other.
The Criminal Bar is a brilliant profession which thrives on excellence.
We will continue to fight to raise it up, one heavy and powerful step at a time.
Kirsty Brimelow KC
The Criminal Bar Association