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CBA Monday Message 15.04.19

Chair’s Update:
Chris Henley QC




Last week’s Message was written by David Lammy MP so I didn’t have the opportunity to say thank you to Katy Thorne QC and all at WICL for inviting me to their first anniversary dinner. It was simply the best legal dinner I have ever been to. The positive, supportive, optimistic atmosphere was incredible. I was lucky enough to sit next to the Rt Hon Lady Justice Heather Hallett (I hope she was as thrilled with the seating plan), the Patron of WICL, who gave the keynote address. Her speech was full of humour, wisdom, experience and solidarity. Lady Justice Hallett’s words about the central importance to our international reputation of a high quality CJS – “It is therefore in the interests of UK plc and all our interests to treasure the criminal justice system” – were widely reported in the press, and enthusiastically received inside the packed room. I don’t know much about things legal so instead steered our conversation to the independent cinema in Rye, of which she was a founder investor/supporter, walking dogs on Camber Sands and the Rye International Jazz Festival.


Lady Justice Hallett talked passionately about the need for a proper balance between work and home life, and the challenges and pressures we all face to achieve a semblance of such balance. I don’t know if we will ever benefit from a protocol or memorandum endorsed by the senior judiciary providing guidance on proper boundaries; maybe we don’t need one (although it would help so much), we just need to support each other. Each chambers needs to support and empower its members to be able to say ‘no’, with clear policies on what can generally and sensibly be expected of us. Of course emergency and exceptional events will continue to require flexibility, and of course we will continue to work late into the night and through much of the weekend, when in the thick of a case or preparing our next one or for an imminent conference, that is a fundamental part of the professional life we have chosen, but this should be on our terms.  An excellent template for a chambers’ policy on emails has been produced by 25 Bedford Row.

Too often artificial and unnecessary demands and deadlines are placed on us when the truth is it can wait, or the court should be carving out time, sitting a little later or rising a little earlier so the necessary work can be done without impacting so adversely on already overworked and underpaid advocates.  Which brings me to……..


Bar leaders meet the CPS Chief Executive and his team later today to discuss the crisis in prosecution fees. We hope to get a better understanding of what he actually intends to do, both immediately and in terms of significant new investment underpinning a review of all fees. As you know we have been surveying your views.  You are speaking with a clear, unified voice on both what you need and expect, and what you would be prepared to do if it becomes necessary. The level of responses has been extraordinary. I won’t reveal numbers just yet but by Friday it was better than more than a hundred Valentine’s Days, and rising by the hour. Spread the word and share the link with others who prosecute but who might not currently be members of the CBA. (And whisper in those few ears that maybe now is the time to join the professional body campaigning on their behalf).  Take the Survey here.

AGFS has not gone away and whilst there is a Review of Criminal Legal Aid from cradle to grave in all areas, with representatives of the Bar and Solicitor groups involved, we need the most egregious problems to be addressed now. We cannot wait until the end of the Review, hoping against all experience that it will report on time in June 2020, then wait again as specific proposals are drafted and informally consulted upon with the professions, and then wait again for the formal statutory consultation to be open and then close 3 months later, and then wait again for the government’s response to the consultation to be published (which took 13 months last time), and wait again for the Statutory instrument to be laid and wait again for the date from which the new fees will apply, and then wait for those cases to which the new fees apply to finish and be billed, and then paid. Sorry, that was a punishingly long sentence. In fact, maybe that’s not so inappropriate.

We have known the obvious and serious flaws in the structure of the new AGFS scheme as soon as we saw it in late February last year. The extra investment, following our action in the early summer, whilst of course welcome, did nothing to address flat brief fees or remuneration for cracks, which are inadequate in almost every case, but particularly the most serious. I drafted a note for the Senior Presiding Judge in January setting out recent history and the far reaching negative consequences of the new scheme. You can read it here, and if you think it would be useful to provide to Judges in your current or future cases so that they can better understand the issues please feel free to do so.

We have toured the country listening to your views. The concerns you articulated were consistent everywhere. Junior juniors are concerned that they are now being pressured to take on cases beyond their experience, as more senior colleagues are no longer prepared to do them. Clerks have said the same thing. Juniors are also experiencing a squeeze on the work they usually do because again flat fees mean that it makes more financial sense to do several short, straightforward cases rather than a more demanding long one, with all the added complexity and pressure that single case would involve. This is destroying career progression, and is undermining the link, absolutely fundamental to justice, between the most able/experienced advocates doing the most demanding/serious work.

The CBA working group has designed temporary, ‘sticking plaster’ solutions to address these obvious problems pending the outcome of the full Review. They may not go far enough for some, but they are rational, clear, proportionate to the problem and if implemented they would radically and positively transform the structure of AGFS. Please read them here and communicate your views by emailing [email protected]. PPE is not the only proxy of complexity, as you will see we have identified others, but there must be a number of PPE thresholds to reflect the substantial extra preparation time, and detail cases with thousands of pages of evidence involve, compared to cases with two or three hundred. Properly remunerating cracks would encourage early preparation and resolution of cases; the current structure does the absolute opposite.
We have consistently raised these issues with senior civil servants at the MoJ and have received this document from the MoJ team this morning to share with you. It sets out their thoughts on the Review and our concerns. Read it here.  Its tone is welcome but we need the immediate solutions long before the Review is likely to deliver.


In September (in fact on my birthday) I wrote about acting pro bono with Abigail Bright at an inquest for the family of a man who had died whilst in custody at HMP High Down. The inquest jury agreed with the submissions we advanced on behalf the family that his death was preventable; the medical care and record keeping which might well have made the difference was deficient. It was an eye-opener because whilst there was no legal aid for the family, who were the only party whose sole interest was to establish the truth of what had happened (which we ultimately did), there was generous funding available to provide solicitors and counsel for the the MOJ, responsible for the prison, the Health Authority, the duty GP and the prison officers, to protect their respective positions. I was reminded of this when I read last week that in 2017 the MOJ spent £4.2 million representing prison officers at inquests, which was 46 times more than the £92,000 provided to the families of those who died in custody. This must change. Without lawyers fearlessly seeking the truth on behalf of bereaved families, the truth will often remain obscured and beyond reach. Relying on the goodwill of solicitors and barristers acting pro bono is just not good enough.


The CBA applauds the ‘Lunchtime Drop In’ sessions which are taking place at a number of Crown Courts across London over the next few weeks: at Snaresbrook in the library today, and then again on 13th June & 17th July, as Southwark on 25th April, at the Old Bailey on 17th May, and at Wood Green on 21st May. This excellent initiative will allow you to discuss any issues you have about the way the court is run with the list officers, operations managers, security managers, and building champions at these busy courts. We often have a moan, but much better to have a conversation. They will appreciate it, we will all benefit from it, so please take up this opportunity.

Minka Braun, and I, prompted by Minka, wrote to HHJ Usha Karu to raise, politely, the somewhat inadequate state of facilities for female advocates at Inner London. I am lucky enough not to have direct experience of their loo, but the arrangement sounds less than charming. We have received a detailed and thoughtful reply from Judge Karu, which makes it clear that the much larger and better appointed (albeit not really 21st century) advocates’ robing room on the second floor is not intended to be a male only space. The common room on the first floor, is equally available to all. This is an old building with obvious issues, but the best of the facilities are meant to be used by all of us. Let the revolution begin. Judge Karu’s letter can be read here.


This week I was going to recommend:
a novel – ‘The Mars Room’, by Rachel Kushner, about a female prison in America and the stories of how the inmates ended up there,
a play – ‘Downstate’ at the National’s Dorfman, a genius but unsettling examination of the lives and punishment of four recently released sex offenders living in shared accommodation in Illinois. (Believe me, see it if you possibly can, the whole auditorium stood to applaud at the end),
a poem – ‘The Smile’, by William Blake.
a film – The Sisters Brothers.

But I have decided to make just one recommendation, a song, to just one person. The song is the gorgeous, truth telling ‘Same Love’, by Macklemore, and the person who should have it on permanent loop is the Sultan of Brunei.


Have a very Happy Easter, any spare cream eggs gratefully received. I’m going to catch up on the whole of Fleabag season 2.

The MM will be back on Monday 29th April, but the results of the Survey will be announced on Tuesday 23rd.

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