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CBA Monday Message 18.12.17

Chair’s Update:
Angela Rafferty QC

We hoped to make this last message of the year light hearted and festive. However the case of Liam Allan reported this week is grim and the stuff of our nightmares.

A young man, studying criminology, on bail for 2 years and on trial for 3 days for multiple rape and sexual assault could right now be behind bars. He could be spending Christmas with sex offenders, on the sex offender register and with years of his life stretching ahead of him, locked up.

The police and CPS failed to disclose to him or his lawyers material which, when it finally emerged, undermined the case so profoundly that no further evidence was offered. He is not guilty and is now with his family, hopefully starting the process of recovery from the mental torture and fear he has suffered. The things he has lost cannot be regained – his studies were disrupted, he was stopped from going to his job and he no doubt endured the suspicion of others who think a criminal charge is the same as a criminal conviction.

There will be a review; the Director of Public Prosecutions has apologized in a national newspaper. She describes the late disclosure as ‘regrettable’ and states there will be a ‘management review’. She says “cost considerations play no part in decisions over disclosure”. We will all have our own views about that.

We have said in comments this week that we fear unconscious bias stops the police and CPS impartially and thoroughly investigating and scrutinising complaints in sexual offence cases. It should be remembered that it is not the job of the police or CPS to judge the truthfulness or otherwise of any allegation made.

The deluge of sexual allegations in the system is well known. If the criminal justice system is to cope and cope properly then funding must be found to ensure that there are proper investigations, a proper filtering system for cases that have no merit and a proper approach by the police and CPS to disclosure issues.

The MOJ this week published a report into the use of previous sexual behaviour evidence in trials. It concludes that:
“We are now confident that the introduction of sexual history evidence by the defence is exceptional”. We knew this and said so. We will continue our work to ensure ill advised and knee jerk amendments to complex legal provisions are scrutinised.

We hope that the rights of falsely accused and vulnerable defendants will also be protected in the same way. The crisis in the system and the chronic lack of resources and funding throughout it allow corners to be cut and mistakes to be made that have implications for the rule of law and for the lives of the individual caught up in the system. Liam Allan is one such victim. There may well be more.

I know that this case will have sent a chill down all our spines. Not least because we have been warning for many years that disclosure failures and lack of resources will lead to miscarriages of justice. There are reviewing lawyers and police officers who do know the rules and who are diligent, fair and assiduous in applying them. If they are swamped by work and demoralized we know how they feel.

The joint report of Her Majesty’s Inspectorate in July this year  tells of systemic failures and says at paragraph 11.4 ‘Non-compliance with the disclosure process is not new and has been common knowledge amongst those engaged within the criminal justice system for many years. Until the police and CPS take their responsibilities in dealing with disclosure in volume cases more seriously, no improvement will result and the likelihood of a fair trial can be jeopardised”.

Take disclosure seriously. Now. Those in power have failed to listen, or worse, have metaphorically rolled their eyes when we speak about the importance of a fit for purpose, functioning justice system and the rule of law.

I would like to publicly recognise and commend the barristers involved in this case and all the independent barristers and solicitors who prosecute and defend daily up and down the land. But for them this case may have had a very different ending.

Those of you who go to court today to face the depressing, repetitive and humiliating arguments over disclosure and page counts will know that the case of Liam Allan demonstrates why we do it. When we get ignored about the effects of public cuts or called unrealistic idealists, we will remember that sometimes we are all that stands between the innocent citizen and the prison gate.

Quality of Working Lives and The Flexible Operating Hours pilot:
The South-Eastern Circuit and The Criminal Bar Association are conducting an independent survey of the Memberships on The Quality of Working Lives and The Flexible Operating Hours pilot.

We have commissioned a University to assess the raw data and provide empirical evidence in order to produce a final report on 26th January 2018.

This survey must be undertaken before Friday 12th January.

Please encourage all practitioners to complete this important survey over the course of the next four weeks.

Survey End date:  Friday 12th January.

End of Year Thanks:
I would like to thank the CBA Officers & Executive committee members for their hard work this year. The Education Committee has delivered an excellent programme for which we are extremely grateful. We would like to thank all those who are Lead Facilitators and Facilitators for the Vulnerable Witness training events which is a truly remarkable effort undertaken for free and on their own time.

We would also like to thank our keynote conference speakers Singh LJ and Mr. Justice Nicol and all the excellent contributors to our lectures, conferences and training events – too many to mention but all are due sincere thanks. We thank the Old Bailey for continuing to host our events and mock trials and BPP, College of Law for their assistance with our Educational programme.

Finally, a big thank you is due to Andrew Langdon Q.C who has led the Bar Council with principle and courage this year.  His reasoned opposition to the issues that threaten the Bar has been implacable. We welcome Andrew Walker Q.C next year to carry on the good work.

The CBA office is closed from the 19th December to the 3rd January. If there are any major announcements about AGFS or anything else, we have communication and reactive strategies in place and will ensure the membership is notified directly.

If there are any urgent matters over the Christmas period, please do contact Donal Lawler at [email protected].

Finally, despite all the doom and gloom, we hope that our members find time to rest and recuperate over the Christmas period and emerge fresh in 2018. Please remember our designated wellbeing service for members and all their dependents.

0800 169 2040.

To gain access to the Health and Wellbeing Portal you will require the below login credentials:

Online Portal:
Username: CBA
Password: Wellbeing

Happy Christmas, I wish us all the very best for 2018.

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