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CBA Monday Message 04.02.19

Chair’s Update:
Chris Henley QC




More of you than ever before are contacting us to share stories of the collapsing Criminal Justice infrastructure. This is not happening by accident it is the result of very deliberate political policy to starve our once revered system of adequate funding. Pork barrel politics might get Theresa May’s Brexit deal over the line, but a few pork scratchings for us will not repair the damage done by years of neglect to our Criminal Justice System: police, CPS, Courts, prisons, probation, criminal solicitors, and the criminal Bar.


Recorders have been receiving letters telling them that due to severe budgetary constraints there will be very limited opportunities for them to sit (and therefore complete the mandatory number of sitting days) in the Crown Court for the time being. The MoJ does not have the money to keep the criminal courts open.

What this means in hard reality is that the capacity in the Crown Court is being artificially squeezed by MoJ policy. Across the country courtrooms are now ‘dark’, not because there isn’t work to occupy them, but because the government refuses to fund them. This is why over and over again you are being hit by fixed trials taken out at the last minute and re-fixed months down the line. I gave some examples last week. Here’s another: a knife point robbery on a taxi driver fixed in July 2018 to be tried on 22nd January 2019, taken out at 4pm on 21st January, now re-fixed for 19th August (a nice family friendly date for all the parties).

I have many more examples and the disingenuous explanation is always a lack of available Judges. Like musical chairs, Judges keep disappearing. But Recorders want to sit.

At one court centre last week two fixed date trials were listed as floaters, with no prospect of the trials being reached, given how crammed the other ‘open’ courtrooms were; of course five of the courtrooms at this court centre were dark and empty. One of these trials had a victim who had been flown in from India, the other a witness who had travelled from Italy.  The system is beyond broken. A busy and expensive psychiatrist attended the same court centre last week for a s41 MHA sentence hearing that the Judge a week earlier had directed be listed at 10.00am, because the psychiatrist was only available in the morning. The case, which also required the attendance of three psychiatric nurses, was listed at 12.30, inevitably ran into the afternoon and meant that the psychiatrists afternoon list was compromised. Shocking.


How must it feel to be a victim of crime, or a witness or a defendant, whatever the seriousness of the case, to be treated in this utterly contemptuous way. You gear yourself and make contingency plans up for a potentially life-changing event, or you are about to face court to have your voice heard, you are dreadfully nervous, friends and family rally round, perhaps they have had to arrange to take time off work, or organise childcare, to support you and then what happens, the night before, unforgivably, the system, probably via the solicitor or a police officer, says it’s now being adjourned, and for months. Of course, there’s no compensation or apology. Will the witnesses be prepared to do it again, the court is likely to be tough on them if they refuse, will the victim or complainant lose faith, and decide its better to draw a line and withdraw, as many do? But hey, if they do, another case can be chalked off.

A question I am asked is whether the trial is being taken out without any hearing, for example being listed for trial but with no witnesses to allow all the parties to take immediate stock of the situation, to save money, or to avoid blemishing the stats? It might sound selfish to raise the consequences for the advocates who will have devoted many hours to preparing these cases for trial. Judges, CPS lawyers, the police, and court staff, will receive their normal daily pay if the trial doesn’t go ahead, but we will not, and probably not for several days, and occasionally for several weeks to come. It was no surprise therefore on Friday at the Fraud Lawyers Dinner to meet so many very able barristers, particularly women, who had left the Bar to go in-house. They had loved their careers at the Bar, but the remorselessly low fees, shoddy working conditions and shabby practices had driven them away.

Are we supposed to keep pretending that all is well?


In one of the largest regional court centres in the country the Resident Judge has ordered that no longer will instructed counsel be allowed to be present at key pre-trial hearings by video-link from another court. This modest innovation has been a professional lifesaver for many of us allowing professional continuity for the client, proper case ownership, efficient progress at hearings, and should be embedded as standard in the modern court system we aspire to.

For all the fanfare about substantial investment in modernisation and transformative IT, it seems yet again on the ground the reality is so very different. We hope there will be a change of heart at the court centre concerned.


Tomorrow evening the CBA will be holding meetings in Bristol, and Cardiff with Richard Atkins QC, the Chair of the Bar. Please sign up to attendand let us hear your views on the whole range of pressing matters which urgently need addressing.

On Thursday we have been invited to meet Max Hill QC, the DPP, to discuss the way forward on prosecution fees, and on Friday we will be visiting the LAA HQ in Nottingham to discuss taxation issues, like TNPs being paid rather than full refreshers, the beginning of trials, Special Prep, and Electronic Evidence.


David Lammy MP has agreed to write a Monday Message in the near future. His words to the profession, Judiciary and politicians, addressing progress since the publication of his Review, could not be more timely. Figures published last week by HMIP gave us the depressing news that for the first time the proportion of BAME inmates in Young Offender Institutions aged 18 and under has passed 50%. He has made his feelings very clear about the disappearance of Magistrates Courts from local communities, like the area he represents (50% of Mags Courts have closed since 2010), it will be interesting to see if he has anything to say about the likely disproportional impact of imposing knife crime prevention orders on children as young as 12 yrs. More police, and youth clubs might be, just might be a better way of saving this generation. Harsher sentencing has had no impact.

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