CBA Monday Message 25.03.19
Chris Henley QC
‘Land of the Free’
I have just returned home from a sublime evening with Cate Blanchett. Ok, it wasn’t just me and Cate. It was the Kalisher Trust play reading event to raise funds for the Kalisher Trust’s scholarship and schools outreach programme. I would never use the word terrific, because I’m not Desperate Dan, but it was. Another example of many good people giving their time and of course money, to make a difference. Two previous Kalisher Scholars from single parent families on council estates spoke passionately about the transformative difference their awards had made. Would they have made it through the BPTC and pupillage without them? Quite possibly not? How many others from similar backgrounds don’t make it, or don’t feel able to try? And how many do and then just can’t sustain life at the criminal Bar on the low fees they are being paid? Martin Shaw, Judge John Deed to most of you but forever Doyle to a few of us, emphasised the issue of low incomes for junior criminal barristers impacting on diversity in his introductory remarks. The senior judiciary were well represented in the attentive audience, together with some MPs and the DPP. .
There has long been a debate about whether voluntary giving risks letting government off the hook if it fills gaps in key areas that the state should be providing for. This argument rather supposes that if charities walked away the state would be forced or shamed into acting. The better argument surely is that the valuable work of organisations like the Kalisher Trust must continue, any life changed is a precious event, but its example should be much better supported by government where the positive good that is being done can be seen so clearly.
‘An adequate supply of skilled and determined lawyers’
Similar thoughts about these tensions also reverberated last week when reading the latest judgment of Sir James Munby, the recently retired President of the Family Division. Although a family law case the Judge’s core observations about the conduct of the state will resonate across all areas of publicly funded work. This was a case of profound importance to the parties, where mistakes had been made by the County Court office and two District Judges, but legal aid was denied to assist those parties in putting the matter right when confronted by another arm of the state. Barristers and solicitors stepped in, working for free, to provide the advice and representation in the High Court required to deliver the humane, and legally correct solution. They could not possibly have achieved this without the pro bono support of the lawyers concerned. The judgment includes these words:
‘May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work. There can be no higher call on the honour of the bar than when one of its members is asked to act on behalf of a client facing the might of the state. The bar, I am sure, will never fail in its obligation to stand between crown and subject. And the same of course goes for the solicitors’ profession……What I was faced with here was the profoundly disturbing fact that P does not qualify for legal aid but manifestly lacks the financial resources to pay for legal representation in circumstances where, to speak plainly, it was unthinkable that she should have to face the Queen’s Proctor’s application without proper representation. The State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created to the goodwill, the charity, of the legal profession…….It is deeply wrong and potentially most unfair that legal representation in a case like this, where it is a vital necessity, is available only if the lawyers, as here, agree to work for nothing.’
The gaps left by vanishing legal aid are being exploited by unregulated, unqualified, and sometimes legally incompetent McKenzie friends, who, however well-meaning some may be, don’t know what they are doing. They whisper sweet legal nothings in the ear of the desperate whilst emptying their wallets and messing up their cases. What started in 1970 as an innovation allowing genuine ‘friends’ to provide voluntary assistance has now become a mini and on occasions venal industry. Despite the urgings of senior Judges the government fails to act to outlaw the practice or at least insist upon proper regulation and indemnity insurance (though they might well be uninsurable). In the latest example damages of £260,000 were awarded against a negligent adviser. The problem is that if you don’t know what you’re doing you probably don’t know you don’t know (as Donald Rumsfeld might have said).
This is a very circuitous route to the issue of proper fees, and the importance of and the link to quality. There is not the slightest doubt that the current state of remuneration for prosecution and defence work is putting in jeopardy the future ‘supply of skilled and determined lawyers’.
A sustainable living?
It is frankly impossible to make a sustainable living doing standard rate prosecution work. I speak to more and more people who are getting out of prosecution work altogether. A prominent QC told me the other day that she stopped prosecuting several years ago, ‘the rates were too often ridiculously low, the arguments about payment were endless, and the demands and lack of support were becoming completely unreasonable’. In serious case after serious case prosecution QCs are refused juniors, and senior juniors are refused a junior even when up against multiple QCs. These refusals are not about justice, or whether the criteria for two counsel have been met, or even if the CPS lawyer agrees and argues internally that the demands of the case make the instruction of a second counsel essential. This approach is driven by the audit function within the CPS putting the cash squeeze above all other considerations. It has never been worse. This is not an agenda that is in the interests of the public generally, or the victims of serious crime in particular.
This from an e-mail I received last week ‘A short while ago I was instructed the night before trial to prosecute a serious county lines drugs conspiracy. The CPS wanted someone senior and so I was instructed. I worked until 3.30am on the first night and then spent three days at court sorting out the case which the CPS had not prepared properly. A jury was sworn and two days were spent arguing law and effectively saving the case for the CPS. On the third day the case was adjourned and re-fixed for a date I could not do. I was paid a total of £165. I have not prosecuted a trial since and shall not do so because it can be financial suicide.’£165 is the £55 adjourned trial fee per day, ie x3, and not a single penny for any of the preparation. Can anyone out there understand why the state’s prosecution authority would want to treat the people they depend upon to prepare and present serious, complex cases so, so badly? Once you deduct 30% from the fee £55 is less than you would pay a teenage babysitter for a few hours sitting on your sofa checking their Instagram.
The issues with defence fees are well known and the examples keep hitting my inbox.
We will not continue to dash ourselves against the financial rocks for very much longer.
CBA officers and a few other members of the executive met yesterday for several hours to map out a way forward. We have identified a series of requests to the DPP for immediate action to improve fees for prosecution work. We will have a response on Monday 1st April. You will be informed of the outcome. Similarly, we are entering the final stages of consultation with regard to AGFS and will provide an update next week.
Lifts, Perfume bottles, Tampons and a Fork
I will leave the issue of out of order lifts for another time. Perhaps they have gone virtual and are now only accessible remotely through an online portal. The same goes for toilets and sinks ‘closed for maintenance’ but left unrepaired for week after week with no information about when the maintenance might happen. Complaints about silly and sometimes humiliating searches at certain Magistrates courts continue to come in. The perfume bottles which get confiscated aren’t offensive weapons in disguise. They are bottles of perfume. The fork seized from a barrister at Ipswich was for his lunch not his opponent. The nonsense with tampons and sanitary towels has nothing whatsoever to do with security. It is just nonsense. The sooner we have ID cards rolled out everywhere the better.
East West Street
Finally, if you do nothing else this week listen to Professor Phillipe Sands QC, on Radio 3’s Private Passions broadcast on Sunday at 12.00; it’s available to download or on the iPlayer. It is full of extraordinary stories, insights, humanity and the most wonderful music. (And then read the book. Copies of ‘East West Street’ will be sent to the first ten of you of five years call and under to e-mail Aaron).View more news