CBA Monday Message 16.10.17
Chris Henley QC
As Our System Creaks, Junior Practitioners Bear the Brunt:
The CBA is a member driven organisation. The CBA exists to protect and promote the interests of its members, and the Criminal Justice System generally. As officers of the CBA we listen, consult, reflect and then lead, supported by the larger Executive Committee.
The welfare of junior practitioners at the criminal bar is one of our top priorities. We have received a surge recently of complaints of bad listing practices; 25 cases all listed at 10.00am, a two hour part-heard multi-handed sentence hearing listed at 9.15am behind a part heard trial (the court cells not even being open until 9.30) which wasn’t reached until mid-afternoon, three different trials listed in the same court on the same day. We have had extremely pressured (and increasingly fed up) junior barristers contacting us for advice, struggling with the child care and financial consequences of such practices. Others have decided not to accept briefs in certain courts. In busy lists cases should always be staggered or time marked. Many courts do this for us, and our clients and witnesses. But shabby listing seems to be on the increase. It abuses our professionalism and saps goodwill to list multiple cases at the same time. Many judges and recorders are embarrassed by what is going on and express regret to counsel who arrive promptly but then have an unreasonable but entirely predictable wait to get on (and may have had to pay for peak time travel).
The statistics say it all. There are 50% fewer junior barristers of 0-5 years call than there were 10 years ago. Life for those with caring responsibilities has always been challenging; it is fast becoming close to impossible. Our courts run on a generous supply of goodwill and flexibility from advocates and solicitors. The criminal courts would seize up without it. A huge amount of unpaid time is gifted by our members to the CJS. The abolition of travel expenses for most courts and many hearings being unremunerated add to the difficulties. It is becoming harder and harder, and more and more stressful to make a living. The junior bar has been haemorrhaging talented women, in particular, over the past few years. Many concerned words have been spoken at very senior levels about diversity and social mobility. If these words have meaning there now needs to be action. The Bar Council under Andrew Langdon QC’s leadership has issued a protocol on court sitting hours. This should be applied and embedded.
As part of Mental Health Day last week some of the legal press has focused on behaviour in the courtroom. Criminal proceedings can at times produce a high octane environment. Volumes of work and professional anxieties affect all of us – Bar and Bench. Most of the time Bar and Bench behave with courtesy and respect towards each other; but sometimes not. This is especially so when our system is under the amount of strain that it is at present. It is important to understand the impact of unpleasant behaviour and its consequences. Targets and other administrative pressures must not overwhelm or relegate the interests of justice, and the ability of CBA members, whether prosecuting or defending, to do a proper professional job.
We recognize, and appreciate, that most Resident Judges are very sympathetic to the current plight of junior criminal barristers, keen to assist and wholeheartedly opposed to practices that damage morale, like the proposed FOH pilot. But we want to be able to edit that sentence from ‘most’ to ‘all’.
We are monitoring the listing situation and we need your help. Please continue to send through details of bad practice and its impact to us at [email protected] or [email protected] so that we can gather the evidence.
The Kalisher Lecture:
On a lighter note it was a pleasure to hear Sir Brian Leveson deliver the Kalisher lecture in the Old Bailey bar mess last Tuesday. The subject of the lecture was advocacy, and was full of insight, practical advice, illuminating anecdote and humour. The three winners of the Kalisher essay competition were there in person to collect their awards. It was heartening to see this senior Judge engage with the Junior Bar so directly.
The result of the CBA’s online consultation on practitioners’ preference for Archbold or Blackstones is interesting. 597 members responded. 75% said they prefer to use Archbold, 20% Blackstones and 5% said they had no preference. These results will of course be communicated to the senior judiciary. Putting to one side the respective merits of the publications, we repeat our previously expressed concerns about how last year’s decision was taken; at the last minute, when many of us had already committed to purchase one or other, and the complete lack of consultation. It is another sign of the times that until relatively recently most courts had copies of both texts readily available, and the only ambition was to benefit from as much legal wisdom as possible to ensure the correct decision on whatever point was in issue.