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CBA Monday Message 03.09.18

Chair’s Update:
Chris Henley QC

I want to start my first Monday Message by paying tribute to Angela Rafferty QC’s leadership over the past year. Angela has led us with exceptional courage, charisma and commitment.  She has been highly effective: leading action to achieve new investment in AGFS for the first time, raising the public profile of our work and the reality of our professional lives, and relentlessly driving home the message that our precious Criminal Justice System is at breaking point after years of savage cuts. Too many of our prisons are brutal, lawless and crumbling places, the CPS suffers from years of chronic underfunding, our probation service has been run ragged by incompetent outsourcing, and a tick box culture for engaging with some very vulnerable people who need much better (many Judges have lost confidence in non-custodial alternatives for serious offences), police numbers have fallen by a third as demands on them increase, our courts deal with declining numbers of cases as crime rises, solicitor recruitment and retention levels are in crisis, and social mobility at the Bar is going into reverse as many talented young practitioners leave the profession, particularly young women, as remuneration levels and working conditions have made life unsustainable.

I have re-read Angela’s first message from last September. The principal priorities were ‘concerns about the new AGFS scheme’, resisting the Flexible Operating Hours pilots then proposed for October 2017, which have ‘been tried before and failed….we have kept repeating there is no good reason to try it again – it will have a disastrous effect on diversity and the working lives of all in the Criminal Justice System’, Social Mobility at the Bar and the attrition rates for young women and those with caring responsibilities, and enhancing the importance of Youth Justice.

Much has been achieved and yet the challenges are just the same. The misconceived Flexible Operating Hours pilots have not materialised. Indeed, one of the ‘pilot’ courts, Blackfriars, is now earmarked for closure. We have made the case against these wrong-headed, rigid and inflexible proposals repeatedly for all the obvious and compelling reasons that do not need restating here. We will do so again should we have to.

The new AGFS scheme occupied a great deal of energy and focus over the last 12 months. The scheme has too many flaws which need addressing, for example, flat brief fees regardless of volumes of material served results in unreasonably low remuneration in too many instances. A brief fee of £700 or £1300 (which includes payment for the first day of the trial) to prepare a case involving 5000 or 6000 pages of important evidence, sometimes more, is not adequate. The CPS fee structure recognises that there needs to be an ‘escape’ provision once a certain evidence threshold is reached; AGFS requires something similar. Fees in cracked trials and pleas in high volume cases are also a particular problem. There is still no payment for the consideration of unused material. This has to change.

The CBA will continue to co-ordinate, channel and champion your concerns but we need real life examples of cases which exemplify the injustices the new AGFS structure causes. We need to build a strong evidence base to present when the scheme is reviewed in 18 months time. That work needs to start now. The e-mail address [email protected]continues to be available to receive this information or comments.

AGFS Consultation Document:
Since beginning the first draft of this message the government has published its consultation paper on how to allocate the extra £15m our action secured. It is by no means enough. Of course we wanted greater levels of investment, and made it clear that there will be further action if the review does not deliver on assurances given on future increases in funding, but there are real positives, particularly for junior juniors. A minimum refresher floor of £350, and the same fee if a trial is stood out is a real improvement on the old scheme (the relevant fee pre-April was £130). We wanted it to be higher, £375 or £400, regrettably this was just not possible on the current budget. But together with payment for the second day of all trials, and payment for all ancillary hearings, this means that those beginning to embark on Crown Court advocacy will earn more than before. There are significant enhancements to brief fees in many categories, for example 14.1 human trafficking, and in fraud and drugs all but the highest volume cases, are remunerated at a more realistic level. We argued forcefully to move several offences out of the standard category, for example assisting an offender, and this has been done. We will continue to make the case that further investment is required. Please take the time to respond to the consultation. It is vital that the government is left in no doubt about the continuing strength of feeling on the issue.

Criminal advocates at all levels earn nothing like comparable colleagues doing private work. I have said before that publicly funded criminal lawyers, solicitors and barristers, have become completely ‘decoupled’ from those working in the private sector. Our overheads have risen dramatically as fee levels have fallen sharply. The substantial employment benefits – pensions, holiday pay, maternity/paternity pay, sick pay etc – are only idle daydreams for us. Angela’s hard work and interventions like the Secret Barrister’s brilliant book have transformed the public’s understanding of our working lives. Many high profile media commentators of all political hues now write sympathetically and enthusiastically about the importance and quality of the work that we do. Dedicated professionals like Julia Smart and Narita Bahra, both involved in cases which collapsed due to disclosure failings, have shown a very dedicated, human face to the public.

Prosecution Fees:
I want those who prosecute to know that we intend focus on their fees, which are too low too often. This is work that carries a heavy responsibility and needs to be undertaken by advocates of the highest quality. It is a very positive thing that Max Hill QC, an extremely effective past Chair of the CBA, and Head of one of the leading sets of criminal chambers has been appointed the new DPP. Of course he will have many competing priorities and pressures immediately to attend to but we will be through his door early to put prosecution advocacy fees high on his list. The Government needs to back him with a serious commitment to invest in this vital public service.

Crown Court Visits:
Every month I will visit a Crown Court centre to meet the resident Judge to discuss matters of mutual interest; what we need from them and what they would like from us. My first in August was a short meeting with HHJ Goldstone QC at Liverpool. This is a Court Centre which is working well. Judge Goldstone QC spoke enthusiastically of the quality of the advocates appearing in his court and I can speak from my experience over the past 4 months about the warm, constructive relationships that exist between court staff and the Bar.  I know not all court centres can say the same. It tends to be the same few that generate complaints and demoralise us. I am about to write a letter to the Resident Judge at a large Court Centre that has caused particular unhappiness in recent times. This letter is about very poor behaviour by a Judge there which motivated counsel on all sides to write to the CBA about that Judge’s conduct. The CBA will do all it can to address such problems. So if there is a court centre any of you think merits a visit please let us know. Positive feedback is just as welcome.

The Lammy Review:
I am determined that the Lammy Review, its searing analysis, conclusions and recommendations, is taken seriously. It must not be a box ticked and then forgotten; it must be a living set of bench marks against which the entire Criminal Justice System should judge itself. We should all feel serious discomfort that institutionally at all levels and in all parts of the Criminal Justice System, the treatment of and outcomes for minority ethnic defendants, particularly for young black men, is so shamefully different. Michelle Nelson is convening a group to look at how we can take this forward. Over the summer I read Bryan Stevenson’s book ‘Just Mercy’, about his work as a campaigning attorney in Alabama with death row prisoners, and children sentenced to die in prison. What it describes is shocking, desolate and magical almost in equal measure. The wilful or casually indifferent wickedness of the state and its agents is almost unimaginable. The resilience of those on the receiving end often equally so. We are a very long way from the events Bryan Stevenson narrates. The Bar’s independence, and the Judiciary’s independence is a vital bulwark to the racist populism which has driven much of what the book describes (or indeed any noisy populism). And yet all systems have a blindspot when it comes to its own flaws. Sentencing guidelines designed to achieve consistency, have undoubtedly produced sentence inflation which has seen an increase in the prison population. And it took 20 years for the decision in Jogee to correct the ‘wrong turn’ the law had taken. The cries of shocked and pained relief from families in the Supreme Court that day have not been matched by a determination to put the life-blighting mistakes, which must have been made, right. Instead hurdles have been placed to limit appeals based on the erroneous legal directions. This is, of course, nothing like the world Bryan Stevenson describes. But the consequences of the ‘wrong turn’ were disproportionately visited on the same social group, whose families were so visible at the Jogee hearing. We all need to think carefully about that. Felicity Gerry QC, Jogee’s leading counsel, gave the second in the new CCRC lecture series in July. It is worth a read, particularly on the issue of finality and how appeals should work after the abolition of the proviso.

For those of you still reading, I wanted to start with a longer message than will usually be the case, to give you a sense of my priorities for the year ahead. Events will of course happen. For the CBA to thrive and make the differences you want, we need you. You need us to lead with clarity, purpose and confidence. The CBA needs you to get involved, to share your thoughts, and to get behind us. It will be an interesting year. You can contact me at [email protected].

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