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CBA Monday Message – 22.05.17

Chair’s Update: 
Francis FitzGibbon QC

The State of Things:
This week I heard from an advocate whose Crown Court trial floated for 4 days before being adjourned, because there was no Judge or jury available. In another Court, two serious sex offence cases could not go ahead because there were not enough RASSO prosecutors. In another, a broken thermostat turned the building into a sauna, the (outsourced) contractor did not attend, calls to HMCTS didn’t help and the jury had to be sent home, twice. Such a waste of money. This is why the CBA says to politicians and anyone who will listen that investment in IT isn’t enough. Accumulated cuts have brought criminal justice to its knees. The people aren’t there to do the work and the fabric is collapsing. This is not they way to make things right for victims of crime.
Put HMCTS’s pilot scheme to one side, and consider the ungoverned practice of ‘flexible operating hours’ that currently plague many advocates. At a meeting of the Bar Council on Saturday, people spoke of: a Magistrates Court that sat till 9pm before giving a decision; a Crown Court that repeatedly listed a case at 7.15am; the tendency of Judges to sit beyond 1pm but restart before 2pm, while video link conferences are arranged during the lunch break; listings at 9.15 and not before 3.45. Extreme examples, or a pattern of disregard for the people who attend Court because they have to, as Judges, advocates, staff, or participants in cases?
For reasons already aired in previous messages, we are firmly of the view that the HMCTS scheme will not help.
The CBA is not about featherbedding its members or interfering with our professional duties to Courts and clients. We believe that unreasonable hours and conditions for all those who work in the criminal courts do not serve the public interest. How reliable is a verdict reached at 9pm? Do tired and demoralised advocates give a better service than fresh and well-motivated ones? Should we tolerate people quitting the profession because they cannot combine their care responsibilities with the tyranny of Court hours and the inadequate pay they get?
We think that a well-run court system would have at least the following working practices as standard: 

  1. No warned lists.
  2. Shorter and fixed sitting hours, with exceptions only when the need arises.
  3. Listing arrangements that genuinely recognize advocates’ availability.
  4. A cut-off time of day for sending and receiving emails relating to on-going trials.
  5. Catering facilities for all Court users in all Courts.

These are hardly revolutionary things to ask for.
The judicial qualities of independence, discretion in decision-making, and – when called for – mercy, are precious indeed but probably don’t help sell advertising in the media. Lavinia Woodward is the tabloids’ dream story: an attractive young woman, Oxford and Cambridge, sex, drugs and violence – and a remark by a Judge that was taken out of context. Accurate and informed reporting be damned. The real and rather dull story is: HHJ Pringle QC applied the Sentencing Guideline. It is there is to ensure consistency, not to prescribe the sentence. The Oxford Judge has made at least preliminary findings that the levels of harm and culpability were low; and he has given the young woman time to deal with her drug problem on the basis of a ‘determination and/or demonstration of steps taken to address addiction or offending behaviour’ before he decides on her sentence. If the story has traction because people believe that Oxford students get a break when others less fortunate do not, the belief needs to be firmly rebutted. The judicial oath is a promise to ‘do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will’.
If you are interested in the likely impact of Brexit on criminal justice, here is something I’ve written for the London Review of Books. In a nutshell: continued co-operation on things like the EAW and the various forms of data-sharing relies on maintaining common standards of data protection; if we depart from EU data protection rules, we risk losing that co-operation; keeping up with them inevitably means at least equivalence – in perpetuity –  as they change and evolve under the jurisdiction of the European Court of Justice.  A bit of a paradox if Brexit means not the UK is not bound by that Court’s decisions.
There’s another aspect to Brexit: our system of justice as a whole is a great and prestigious national asset and a money-earner in the commercial and financial sectors. We take the rule of law seriously. Judges are independent and not corrupt.
An investor putting money into UK plc will want reassurance that if some one steals it, they will be caught and dealt with properly. Criminal justice, therefore, should be promoted and supported as strongly as civil. Centres of excellence, like Southwark Crown Court, should not have leaking roofs or be threatened with closure. The SFO is another one, for all that may be said about its setbacks. It seems odd, at least, to plan to abolish it and fold it into the larger bureaucracy of the National Crime Agency, on the basis that this will ‘improve intelligence sharing and bolster the investigation of serious fraud, money laundering and financial crime’, as the Conservative election manifesto proposes.
PPE: ‘Served’ Evidence:
Here is a new High Court decision on what counts as ‘served’ evidence. The key part is paragraph 50. Only ‘served’ material counts, but material may be served informally, eg during a trial, and that counts. The decision is essential reading.
SEC Advanced Advocacy Course 2017 –Scholarship awards available to the criminal bar:
Monday 28th August – Saturday 2nd September 2017
Keble College, Oxford.
Five Scholarships with awards up to £1K are available to junior members of the Criminal Bar Association.
Twenty full scholarships are available.
Closing date for applications is Friday 16th June 2017.
Further information and the application process is available HERE or by contacting Aaron.

Final Reminder – Lecture by Sir Brian Leveson:
Space is filling fast for Sir Brian Leveson’s lecture on advocacy at the Old Bailey tomorrow night in the Old Bailey Bar Mess (23rd May). Please make a booking via Aaron. We are delighted that Sir Brian has agreed to give the lecture.

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