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CBA Monday Message 18.03.19

Chair’s Update:
Chris Henley QC



The Monday Message provides a forum to raise issues that matter to you. It is read widely. It is not deliberately designed to be relentlessly gloomy but it is intended to be honest about what is going on. We receive many e-mails and reports from you, which we pursue privately, and will never feature in the MM. We don’t put material or complaints in the public domain unless we conclude that it is justified and that this is the most effective way of letting the light in and making a positive difference. (And we always ask your permission first). We do not underestimate the discomfort this sometimes causes, but very recent experience has demonstrated that the Monday Message has considerable traction.


At this point I would like to thank Her Honour Judge Laing QC, the Recorder of Brighton and Hove, for her positive and open-minded engagement, in response to an issue highlighted in last week’s ‘Message’. Most Judges are sympathetic to our concerns, and want to help in so far as they can. It is easy for us to forget that the cuts put them under huge pressure too.


There is a serious and urgent retention crisis for women at the criminal bar, which in the end will only be solved by proper levels of remuneration. Linked to this but also as a freestanding issue our working conditions have rapidly deteriorated over the last few years; many of us never stop, and we can no longer afford the breaks which are essential to our well-being and effectiveness. Fees for prosecuting are appalling, bordering on the financially immoral, and in many instances pound for pound lower than they were 20 years ago. Brief fees for defending in the most complex, and evidence heavy cases have been all but erased in too many categories, and are beginning to drive successful senior juniors out of the profession, demoralising talented junior juniors who see nothing ahead worth striving for, and pushing an increasing number of us to the brink of IVAs and worse.

I received this message from a Head of Chambers at the end of last week: ‘We have had two resignations from Chambers today. One Senior and one middle ranking junior. They haven’t gone to other Chambers, they have left the Bar because the cuts have made the future entirely unsustainable. I fear there will be many more across the Bar.’


The Barristers Benevolent Association now receives more desperate approaches than ever, but most of us struggle on in a stressful silence; embarrassment and fear of fatally undermining professional reputations inhibiting us from seeking the help we need. On this topic this BBC programme ‘Barristers on the Brink’, dealing with the impact on our mental health of the work that we do, is essential listening. Listen to it here. (Afua Hirsch, the journalist behind the programme, used to be at the Bar. Her book ‘Brit(ish): on Race, Identity and Belonging, should also be read widely by those working in the Criminal Justice System).

None of this is your fault. We rely on those in a position to do something about fees and our working conditions to recognise what needs to be done, and to act. The publicly funded Bar and solicitors, not just in the criminal courts, but in the family and civil courts, are fundamental to safeguarding, protecting and promoting this country’s freedoms, rights and democratic values. Justice may not hold the same dear place in the public’s hearts as the NHS or schools, but it is barely less important. Without the means to enforce them those rights cease to have full meaning. A two tier system is not in the interests of a healthy, cohesive, inclusive society. In the criminal courts expertise is required on both sides of the court to ensure fair trials and reliable outcomes. Victims need this no less than defendants.


It is therefore beyond miserable to read that the New Economics Foundation has calculated that on the numbers provided in the Chancellor’s ‘Spring Statement’ delivered last week the Ministry of Justice’s budget will be 51% lower than it was in 2010. This was described as an ‘eyewatering’ reduction in the report on this in The Times. The prisons’ budget sits within the MoJ’s remit, and is not easily susceptible to cuts, and nor should it be – the prison population remains high and pretty stable, and is certainly not falling in line with the large decline in volumes of cases going through the Crown Courts – so the burden of such savage cuts falls elsewhere, particularly on legal aid, both its scope, the financial qualification thresholds and the rates. The LASPO review provided little more than a dribble to fill a dried up lake.

The MoJ knows what needs to be done to make good the glaring deficits to AGFS Scheme 11, and we have sent the new DPP a list of 10 reasonable ‘requests’ for improvements to the guidance on fees for prosecution advocacy, so that we can begin addressing the injustices in the assessment of those fees. CBA officers and other members of the Executive will be holding a strategy day next weekend to draw together the many strands which we have been highlighting over the last few months.


It is right to bring to your attention that the first meeting of the ‘Criminal Legal Aid Review Defence Advisory Panel’ (CLAR) convened by the MoJ was held last week. The Bar Council, Young Barristers Committee, the Circuit Leaders and the CBA are represented on the panel, as are solicitor groups. We need to participate in this process, at least for the time being. All involved are sceptical, and we have made this very clear to the MoJ. We are not interested in rearranging deckchairs. More money is desperately needed to make fees for Police Station Advice and Representation, for Magistrates Court, Youth Court, and Crown Court work fit for purpose. This assurance has not been given. There is as yet no commitment to increase the criminal legal aid budget. The aims of the review are said to be to devise “Fee schemes that pay fairly for work done, support market sustainability, drive effective case progression, align with wider system reforms, and ensures access to justice”.The plan in essence is come up with a new template and hope the Treasury will fund it

The Bar’s two principle concerns are to do with money, obviously, and the time this process might take. There is no scope to move any money around within AGFS. No fee is currently too high. Brief fees need sorting out immediately, and this could be done quickly. But the ambition to reconfigure LGFS, for example, and at the same time to address the chronic underfunding of fees for police station work, and for work in the Magistrates and Youth Court, is a substantial and challenging undertaking. This will take much longer and is bound to prove controversial. Bar representatives, consistently, argued at the first CLAR meeting that the obvious flaws in AGFS should not be delayed whilst much more complex issues are debated. The fee schemes are in very different stages of evolution. We can’t wait for 2 years or more to make the necessary changes.


When renewing your Bar Council subscription please be sure to pay the Bar Representation Fee. It is optional and many of us don’t. But the BRF is the only means by which the Bar Council is able to devote resources to political lobbying and economic analysis which is so important when we make our case to the MoJ, the Treasury and politicians generally, that much more investment is required in the CJS. It was made a decisive difference last time. Renewal also provides the opportunity to make a modest donation to the Bar Pro Bono unit. If we all gave just £30 this would add up to a significant sum.


I have been asked to publicise the ‘Lawyers for a People’s Vote’ pre-march breakfast at Garden Court Chambers at 10.30am on Saturday 23rd March. This Saturday’s ‘Put It To The People’ march starts at Marble Arch at 12.00. Sadly, I have had to explain to the organisers that it would not be right to use the Monday Message to promote this sort of nakedly political event. But I did point out that legal aid lawyers will of course be looking forward to the Brexit dividend which is sure to be the result of the inspired decision to leave the EU.

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