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CBA Monday Message – 24.07.17

Chair’s Update: 
Francis FitzGibbon QC


We had a wide-ranging discussion about FOH at the Executive Committee Meeting last week, and afterwards, which demonstrated the strength of feeling of CBA members and their representatives. The scheme is fundamentally flawed and lacks support from advocates.
Despite the welcome appointments of Lady Hale as the President of the Supreme Court and Lady Justice Black as an SC Justice, and the promotion of Lady Justice Asplin to the Court of Appeal, there’s no reason to revise Lord Sumption’s 2015 estimate that the senior judiciary will need 50 years to achieve gender equality. This is an outcome that the misconceived and misnamed ‘Flexible Operating Hours’ scheme will only help to bring about, by choking off the careers of women (and not only women) at the Bar.
A barrister has written to me as follows:
I will not be participating in the pilot anyway, because either my barrister husband or I will not be able to continue in this job over the next few years if this pilot is rolled out. Our youngest daughter is 4, and will need childcare either side of school for some years to come. For me and people like me there is nothing to be gained from participation in the pilot. We would just be paying extra childcare costs in order to hasten our own departure from the profession. 
This surely is not what HMCTS wants to hear, but this barrister is not alone – she speaks for anyone with care responsibilities for the young, or the old, or the sick, and who cannot begin to afford ‘flexible’ paid care to fit the ‘flexible operating hours’. The brute fact is that people like her will be driven out of a profession that already loses far too many talented women because the pay and career structures are inimical to a balanced life, if the choice of work is family law, crime, or anything publicly funded.
If HMCTS don’t get it, it’s not for want of telling them. It’s not just about diversity, or the difficulties for advocates. Here is what Angela and I wrote to them a couple of weeks ago:
We do not accept that there is so great a problem with the current arrangements as to make the real-time testing of FOH a proportionate or necessary response. We believe that the pilot itself will be destructive of diversity and will give an inaccurate picture of the scheme if it is scaled up. We believe that research, consultation and modelling, without the experiment, will give reliable answers to the questions that you have asked.
On some of the specifics…If as proposed the Crown Court’s morning shift ends at 1.30 and the afternoon begins at 14.00, all those involved will have to move very fast to keep to the timetable. Suppose a witness begins her evidence at 13.00, and has not been cross-examined by 13.30 – if the morning session continues, all the arrangements for the afternoon will be delayed; there will be less time for staff to have a break; the afternoon shift may have to be extended, with knock-on consequences for all – take one example: transport of prisoners back to prison, where a van collects from more than one Court. 
If you have double shifts, you are committed to rigid cut-off times. But they don’t work either. The 13.00 witnesses will have to come back another day. She may be vulnerable, or have a job or some other good reason why it’s unreasonable for her to come back. The trial will be lengthened and costs will increase. 
This is a case of what can readily be foreseen without the experiment.
If you exclude the difficult cases from the pilot, you won’t solve the cut-off problem, but you will get a result that is inaccurate because there are so many difficult cases.

We will need to pay overtime to staff to come in early and work late, to support the pilots. Costs will increase and will be passed on to barristers – there is no one else to charge. That will put great pressure on sets and individuals who are already under financial pressure because of the cuts to legal aid, and may push some out of business altogether. Again, a readily foreseeable consequence of the pilot. It’s not necessary or proportionate to the aim of the pilot to expose barristers to this kind of financial risk.
As discussed with you, the proposition that the scheme can be ‘voluntary’ for advocates ignores the professional obligations of barristers: the ‘cab rank’ principle. We are simply not at liberty to turn down an instruction because it may interfere with our non-professional arrangements. To suggest otherwise is to invite barristers to flout their own professional rules. Even if such a thing were possible, the consequence is likely to be that those with care responsibilities will have to make an invidious choice between working and discharging those responsibilities. Not only will they lose income – as you know, we are only paid a fee for each case – but others without those responsibilities will get the work instead. A barrister’s practice depends on relationships with solicitors, and they can be disrupted permanently if the barrister of choice becomes unavailable, or in this case ‘volunteers’ not to take the case that the solicitor has offered. You already know who will suffer from this, and who will gain. You do not need to experiment in real time to understand what the effect of FOH will be.

As Crown Court advocates, we see everyday, systemic inefficiencies that can be remedied without the use of the FOH experiment. They include: courtrooms that are unused for lack of judges or recorders; recorders who have limited time available are given trials that predictably overrun; interpreters fail to attend or are unsuitable; remand prisoners arrive late or not at all; some Courts have backlogs while their near neighbours have emptier lists; without a defence panel scheme, advocates are instructed in cases beyond their competence and they waste time; warned lists waste everyone’s time.
In our view, unless HMCTS fixes problems like these first, they will continue to beset the Courts and will make any FOH scheme still more irksome. Fix them and you may find that FOH as presently envisaged is unnecessary; or at least wait and see.  Otherwise we believe you are merely setting up something to fail, for no tangible benefit and at the risk of doing more harm than good.
In the interests of balance, here is the blog that HMCTS have launched, to explain the scheme. 
Read it and send them your comments. The SE Circuit will be shortly publishing a paper by His Honour Judge Hillen, the resident judge at Blackfriars Crown Court and host to the pilot, giving his account of the scheme.
The CBA reminds advocates that to the extent that the pilot scheme is voluntary, no one can be made to participate in it. They should do all they can to ensure that their cases stay out of an FOH list if they cannot reasonably attend. We also remind you that there is no ‘cab-rank’ obligation to take a return from an advocate who becomes unavailable. It would be unconscionable for those without external responsibilities to take advantage of people like the woman who wrote to me, by moving into their work while they are looking after children or other family members. A vice of the scheme is to open the door to this sort of practice by forcing people like my correspondent to choose between working and being a good parent. She might be the Lady Hale of the 2030s, but not if this scheme goes anywhere, because she will be off.
The CBA will support and defend any member who chooses not to participate in the pilot or does so and runs into difficulties, either with listing, in Court, or within their chambers. There may be pressure on more junior barristers to take part: we will be there for you. Please see the Guidance document that we have produced.
This is no case of protecting vested interests: it’s not as though the present infinitely flexible Court hours are tolerable – hence the Sitting Hours Protocol. It’s not just or even mainly about us. We welcome genuine efforts to make the Courts work better so that they serve the public better. FOH is not such an effort. Far from being in the ‘best spirit of the justice system’ by testing evidence, as the HMCTS blog optimistically puts it, HMCTS are behaving like a client who is convinced that their own wildly implausible case is a winner.  They insist on giving it a go despite unwelcome but objective and independent advice from their counsel that it will lead to defeat, expense and humiliation. You know what comes after hubris.
It will give me no satisfaction if the scheme fails – its failure will be a waste of time, expense, and spirit. Still less do I want it to fail and yet be represented as a success – as HMCTS did with their attempt to bring double shifts to Croydon Crown Court in 2010, which went nowhere (Evaluation report here). I want HMCTS to think again about starting it and to heed the advice they are getting: not to make anyone admit defeat but to recognise there is another and better way to achieve what we all we want in a modern court system.

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