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CBA Monday Message – 03.07.17

Chair’s Update: 
Francis FitzGibbon QC

Nothing has been decided as yet. The new Ministers in the MOJ have a daunting set of tasks, including prisons and Brexit-related matters as well as AGFS. The meeting with MOJ on 28th June was constructive and the dialogue continues. Please be assured that the CBA is keeping the pressure on for a significantly better settlement on AGFS.
Some things don’t collapse under the weight of their own contradictions – the capitalist system, for example. The Flexible Operating Hours scheme is beset by such obvious contradictions even before the pilot has even started, that one wonders what value it can possibly have as the model for re-ordering our ways of working. The Crown Court sitting day of 10-ish to 4.30-ish (though stretched and in need of greater stability) was not hit upon by accident, but because it serves the needs of those who use or work in the Court. Some clarity, at least, about the ambitions and aims of the pilot would be very welcome. Good will is running out fast.
Chris Henley QC will take up the post of CBA Vice-Chair on 1st September 2017, following the withdrawal of Simon Spence QC, the only other candidate in the election. Simon explains his decision to withdraw here. I respect him and his decision, which cannot have been easy, and thank him for his willingness to put his name forward as a candidate. It is not difficult to complain about things from the side-lines, but it takes a degree of commitment to offer oneself for a leadership role.
The anxiety caused by last week’s events prompts a re-statement of our position about the division of roles between litigators and advocates in criminal justice. It has served the public well for many decades. It is tried and tested. It works. Litigators do much of the heavy lifting that makes advocacy possible, and a lot of their work is invisible to advocates – such as attending to family members of clients, travelling long distances to take statements, not to mention discharging the heavy regulatory burdens most of which barristers are spared. If we take what they do for granted, we should not. On the other hand, the Bar is a body of independent specialist advocates who prosecute and defend, at modest public expense for the value they provide, and in so doing play an indispensable role in the justice system – even or particularly in these straitened times.
For me, it has been a priority to maintain good relations between the CBA and the solicitors’ representative bodies. That does not mean we agree about everything – we naturally have some different priorities. Having good relations means being clear and upfront about the differences, and working together when there is common cause.
Twixt Devil & Deep Sea
An advocate has told me about a difficult situation in which he found himself. He attended a Magistrates Court for a trial, without enough evidence having been served for proper instructions to be taken beforehand. He received the remainder 15 minutes before the trial was due to start. Having barely sat down with his client to go through the new witness statements on which he needed to cross-examine, the case was called on. He asked the Magistrates for an adjournment of 30 minutes to continue taking instructions – to which the Crown objected, despite the late service being their fault. The Magistrates refused the application. He indicated that he felt he could not properly represent his client, indicated he would have to withdraw, and withdrew.
Some one else appealed the Magistrates’ decision to the High Court. The Magistrates were criticised for refusing to give the advocate time, but he too was criticised for withdrawing. Has anyone been in a similar position?
In the context of the CPS Inspectorate’s latest report, this failure is not surprising, though to use judicial language, it’s ‘disappointing’. Here’s what the Inspectors say about disclosure:
4.28 We assessed that the duty of disclosure of unused material was complied with fully by prosecutors in 56.9% of applicable cases within the file sample. This was an improvement on the previous inspection when only 34.8% of cases met expectations, although there is still significant room for improvement. CPS disclosure was hampered by the standard of police compliance with their disclosure requirements, which has been a long-standing issue. In this inspection it fell below the required standard in 40.7% of cases, a slightly worse result than last time (38.5%). In 19.5% of those cases the police did not supply a schedule, in 18.3% the items were poorly described, and in 15.4% they were wrongly listed…
4.29 In one CPS Area a lack of understanding on the part of police disclosure officers as to how to deal with unused material (in conjunction with the operating mechanisms of the police IT system) resulted in no Streamlined Disclosure Certificate (SDC) being produced as required, or a blank one being produced in error. This highlights the need for the CPS to provide feedback on disclosure failings and to work more effectively with the police to drive up performance, both by disclosure officers and their supervisors…
4.30 The disclosure record sheet (DRS) was completed fully and accurately in only 45.6% of cases. The CPS has revised its guidance and it is now no longer necessary for prosecutors to complete a DRS where the case is straightforward, provided a note of the rationale is added to the file. In the very rare cases where we saw such an appropriate endorsement we marked this as fully meeting expectations.
CBA Bursary 2017
Applications are invited for awards from the Criminal Bar Association Bursary Fund.
Major Bursaries of up to £5,000 will be awarded to successful applicants. Other bursaries will include subscriptions to the leading practitioners’ textbooks.
The award competition is open to members of the CBA who have been in independent practice for no more than 3 years from the start of pupillage. The fund is designed to assist practising barristers from financially disadvantaged backgrounds.

Please complete the application form (copies can be downloaded HERE) and return it, together with a reference from the applicant’s Head of Chambers, to the CBA Administrator, Aaron Dolan [email protected] by 2nd October 2017. The application form requires details of background and means together with a reference from the Applicant’s Head of Chambers (or pupil supervisor if a reference from the Head of Chambers is unavailable). 

Should you have any questions, please contact Aaron

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