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CBA Monday Message 19.11.18

Chair’s Update:
Chris Henley QC




We continue to receive many e-mails from you raising serious unhappiness about the operation of the new AGFS scheme. You want to know when the promised £15million investment will be delivered, and what it will look like. Although Andrew Walker, Caroline and I have been working constructively with senior civil servants, in the end this will be a decision made by the Lord Chancellor, and the Minister. I believe they do value the independent Bar, are listening and a positive decision is imminent. We have set out our case in very clear terms, and explained in detail the impact of the scheme particularly in relation to juniors. We are expecting to meet with the Lord Chancellor in the next few days.


There was very good news on Friday about Flexible Operating Hours. And perhaps a positive indicator generally. HMCTS will not be proceeding with FOH in the criminal courts. Three CBA leaders have successively argued, consistently and in very cogent terms, why this was an unworkable and discriminatory proposal. The Minister took the time and trouble to phone me to explain that they had listened to us and had been persuaded that this was not an initiative that should be pursued in the criminal courts. I thank her publicly for that.


However, more prosaic listing issues continue to cause problems. A recent incident exemplifies the problem.

It has been reported to me that a serious trial, which has been fixed since June, was moved, the working day immediately prior to trial, without warning to another court centre more than 80 miles away from its original venue. The journey to the new venue is not straightforward; by car it takes at least 2 hours, and by train about 2 ½ hours. One of the barristers affected is the mother of a one year old child, recently returned to work. Another has two school aged children. Their routines are now in distressing disarray. The local prosecution in-house advocate pulled out of the case. A barrister therefore had to pick up the brief at the last minute, and no doubt worked flat over the relevant weekend to be ready to open the case. The negative practical and emotional impact on witnesses, defendants, and their families when these things happen is inevitable.

This sort of event is demoralising at very best, but at worst it has been causing talented barristers to throw in the towel. in recent Monday Messages I have published extracts from two letters I have been sent, from women who have had enough.

I hope that the recent announcement on FOH is a positive indication of a desire for change, and a recognition that the profession must be, and deserves to be, treated as a serious and respected partner in bringing that change about.


The full report, published last Thursday, can be read here.
As you might expect the present holder of the office takes an uncompromising approach to disclosure failings. The culture needs to change, but also there needs to be significant investment on both sides if the early engagement of which the report speaks, of defence practitioners, particularly of solicitors at the pre-charge stage, and advocates post charge, is to be delivered. The Attorney understands this well, both for litigators and advocates, and refers to it at pages 32 and 34 of the report.


On Saturday I addressed the CLSA annual conference, which was a fantastic event, well-attended and with a strong line up, opening with the SPJ. I was welcomed warmly. Julia Smart, of Furnival Chambers, gave an excellent presentation, which was very well received. Bill Waddington spoke in stark and moving terms about the inevitability of system collapse without a change of approach. Bill also talked about Barristers and solicitors working together to fix things. This was a theme that was at the heart of my address too.

Solicitors face many similar challenges to the Bar. We have a serious retention crisis; for criminal solicitors recruitment has fallen of a cliff, as the age profile data of duty solicitors graphically indicates. Fees in the Magistrates court and for attending police stations are far too low, spend on both having fallen by about 50% since 2011/12. There are an increasing number of brilliant organisations which attempt to intervene post-conviction, like the Centre for Criminal Appeals, but nothing can ever be an effective substitute for a comprehensive nationwide network of high quality criminal solicitors providing advice and representation at the ouset of proceedings at all levels of seriousness. The rule of law requires it.

On Friday night I had a brilliant time with many solicitors and barristers marking the 70th Anniversary of the LCCSA, and indeed the 70th Anniversary of the ground-breaking White Paper which heralded the introduction of the Legal Aid and Advice Act 1949. This paper written by Sir Henry Brooke in 2017 is essential reading on the subject. The Crypt was packed, Jeremy Dein reprised his ‘Strictly’ routine (several times, without even being asked). Jon Black, the current president, spoke in compelling terms about the state of criminal legal aid, and launched this powerful film.

Watch it! Share it!

I now have flu!

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