CBA ‘Monday’ Message 28.05.19
Chris Henley QC
‘THERE IS A DIFFERENCE BETWEEN
SOMEONE TELLING YOU
THEY VALUE YOU AND
VALUING YOU’ (Rupi Kaur, only very slightly adapted)
The response to the ballot so far has been overwhelming but we need every single one of you to vote. Be brave, but true.
PROSECUTION FEES: IMMEDIATE ASKS:
- PAY FULL REFRESHER FOR DAY 2 OF ALL TRIALS. NO MORE FREE DAYS.
- PAY FULL FEES FROM AUTHENTIC DAY 1 OF THE TRIAL.
- PAY DAYS OF LEGAL ARGUMENT ONCE LISTED FOR TRIAL AS REFRESHERS IF CASE IS THEN ADJOURNED.
- PAY ADDITIONAL FEE FOR WRITTEN WORK. END FREE WORK.
- PAY ALL STAND OUT FEES AT HIGHER RATE; ABOLISH £55 FEE.
- INCREASE £46.50 AND £60 FEES TO MINIMUM OF £100.
- DO NOT INSTRUCT DISCLOSURE JUNIORS UNLESS 2 COUNSEL ARE ALREADY INSTRUCTED. NO MORE JUNIORS ON THE CHEAP.
- ENHANCE DISCLOSURE JUNIOR’S DAILY RATE IF ATTENDING TRIAL.
- PAY FOR THE REVIEW OF UNUSED MATERIAL. END FREE WORK.
- END THE IRRATIONAL COLLAPSE OF REFRESHERS POST 40 DAYS.
AND COMMIT TO ENHANCE SIGNIFICANTLY ALL BRIEF FEES BY 1st OCTOBER:
Whichever way you choose to vote the most important thing is that the ballot result reflects the authentic voice of the Criminal Bar. Together we will change things for the better. Our ambition is no less than securing your future, the future of the independent Criminal Bar, and safeguarding the future of a properly funded, high quality Criminal Justice System. Be part of that ambition.
When voting there is no need to answer every question, though most of you will want to do so. If you only defend or only prosecute then only answer the questions that apply to you. Your answers will be confidential. There can be, and is, no pressure to vote in any particular way. The Criminal Justice Summit and training days, if you vote for them, will be held during the working week. It we take action it will be with a purpose.
Valuing is a doing word. If you prosecute you will have received an email from the CPS urging you not to support action and blandly stating ‘we strongly reject the suggestion there is any kind of CPS policy to ‘screw down’ the Bar in fees’. You will judge the accuracy of this assertion for yourselves, from your own experiences. There has been no announcement that there will be an immediate internal investigation, which is so urgently required, or any public apology for those of you who have suffered financially, or a promise to review favourably any and every fee you have a legitimate grievance about. The unsigned email has irritated many of you – ‘This kind of rubbish, not even sent by someone who is prepared to give their name, has made me more inclined to vote in favour of action!’
At the highest level of the organisation the CPS knows that there has been appalling treatment of the Bar, in part because the CBA has been directly taking examples of shabby behaviour to the CPS Chief Executive (and to be fair to him several have now been resolved positively), but also because they continue to deliberately enforce a policy not to pay you properly. The fee guidance is gratuitously mean and unreasonable, requiring you to work unpaid for huge numbers of hours. We have asked many times over the last six months for this to change but previously we have done so in private. We have held up to the corporate face of the CPS real life examples of what is happening to you, day in day out, but the answer has been a consistent ‘no, no and no again’. This is why we are balloting.
So please, no more talk of ‘valuing’ the prosecution advocates who work so hard for you and the wider public interest every hour that the criminal courts are open, and beyond, deep into their private lives. Do the valuing or be honest that you will only make the modest changes we are seeking when you have been dragged over the line by action, having delayed as long as you possibly can. The CPS statement does not even identify a date by which any improvements to fees will be delivered. Every barrister who prosecutes is entitled to know when any increases will actually go live. So give us that date by Friday at noon, and a clear commitment that no existing fee will be reduced, or another message will be going out letting the Bar know that once again you have refused to commit to do these very simple things.
In the meantime read this example of how much you are valued……
‘In [date] I was leading a conspiracy to ******* case at X Crown Court. The centre piece of our case was the phone evidence. The phone schedules before the jury were around 500 A3 pages in total. It took days to go through them and then the cell site expert gave evidence over several days. When the jury was in retirement the defence rightly raised with the Judge that the underlying material for the phone schedules which everyone had had to check (I had to get the schedules redone several times because they were initially inaccurate before the trial) should be be served as evidence and be included as pages of exhibits on an NFE sheet. Her Honour Judge ***** agreed and ordered the CPS to do this.
To cut a long story short I could hear the colour drain out of the caseworker’s face when I told him this over the phone. It was not his fault at all and privately he told me he completely agreed with the Judge and us. However he was under immense pressure from the auditors/business managers to resist this, I felt sorry for him as the pressure he was under was obviously so acute. The reason? Because the additional pages would ensure the case would then became enhanced under the CPS fee scheme. So at the auditors/managers behest he kept sending NFE sheets which were designed to to pacify Judge ***** and the defence but avoid us being paid our enhanced fee which we were obviously owed in such circumstances. Each time the defence complained and Judge ***** agreed with them. It then got sent up to London (it was a CPS ***** case) for a real big cheese to find a solution, eventually he told the caseworker how to complete the NFE sheet which finally meant the defence were satisfied and got their PPE. However we were still screwed as it made it clear these extra pages were “electronic” evidence. As a result I got underpaid nearly £7, 000 and my junior nearly £4, 500.
We had a a discussion and my junior’s advice to me was that if I fought it/complained to Judge ***** I would probably never be instructed again. I took his advice and I firmly believe now having read your Monday Message he was absolutely right. So we got vastly underpaid for a extremely difficult and complex case we did so much work on.
It is an abusive and coercive relationship whereby the CPS shamelessly exploit us, by which I mean the organisation as a whole and the senior management. The individual lawyers and caseworkers we deal with are in the main hard working, committed, talented and fair minded individuals but they have to follow the directives from on high because like we don’t want to risk not getting instructed again they don’t want to risk getting disciplined/losing their jobs.’
‘I was not long ago prosecuting an historic sexual abuse case with mountains of 3rd party material. The case itself was already difficult and time-consuming, leaving aside the 3rd party material. The Reviewing CPS lawyer sent me a series of emails including all the 3rd party material – hundreds and hundreds of pages – and asking me to review it.
I rang the CPS lawyer and explained that I simply did not have the time to perform this task. This was my diplomatic way of saying that it was not my task to perform and that review of such material is without doubt a litigation function of the CPS. They have delegated it for years now to the police and if they can’t get them to do it ask counsel instead to do it for free, as usual.
When I said I could not review the material the lawyer started shouting at me on the phone saying, “Well I’m not **** paid to review all this” in a really shirty and wholly unprofessional manner. I was sorely tempted to say “And neither am I” but I didn’t and it wasn’t the point because it is not counsel’s duty to review the whole of the third party material full stop.
In what world is anyone expected to spend many hours or days reviewing material without being paid for it. Totally absurd. I did not report the CPS lawyer or complain about him to his managers because of the invidious consequences to my practice which we all know would follow, extremely tempted though I was.’.
Valued and treated properly? We have so many other examples. The whistleblower was telling the utterly miserable, unvarnished truth from the heart of the CPS.
We want to avoid action, we really do. We want get on with doing a committed, professional job in every case, but we also want to be ‘actually’ valued. Kaur values. This is surely not too much to ask for: professional security, being valued and a viable financial future. That’s all. This is what you are voting for.
TOMORROW A MESSAGE ON DEFENCE FEES.
AND OTHER STORIES….
The CBA’s Spring Conference, held on Saturday 18thMay, was another brilliant event, and a complete sell out. The CBA Education committee puts in a huge amount of time organising our conferences, curating the themes and arranging the speakers. Thank you to James Mulholland QC, Sophie Shotton, William Davis, Helen Dawson, Aska Fujita, Paul Jackson, Paul Jarvis, Bo-Eun Jung, Charlotte Newell, David Ormerod QC and Monica Stevenson. You’re all amazing. And thank you to all the fantastic speakers (Rudi Fortson, you are a very bad man).
English PEN, which campaigns to support freedom of expression in the UK and around the world, is crowdfunding to save the copy of Lady Chatterly’s Lover hand-annotated by Lady Dorothy Byrne, the wife of the Hon. Sir Laurence Byrne, who presided over the obscenity trial of Penguin Books in 1960. You know the one: ‘Would you approve of your young sons, young daughters – because girls can read as well as boys – reading this book?Is it a book that you would have lying around in your own house? Is it a book that you would even wish your wife or your servants to read?’
’ – Mervyn Griffith-Jones, leading counsel for the prosecution.
This was a watershed moment in our legal and cultural history. The centre of censorial gravity shifted decisively (these aren’t remotely original observations, but they are nonetheless true). The publication of ‘LCL’ resulted in similar obscenity prosecutions in Japan and India, and bans in Australia, Canada, and the USA. This slightly dog-eared paperback, cover price 3/6 and covered in scribbles, is one of those precious objects which opens up history. It would be a tragedy if we lost it. If you felt like donating to PEN’s fundraising effort
Philip Larkin had a little something to say on the matter….
Sexual intercourse began
In nineteen sixty-three
(which was rather late for me) –
Between the end of the “Chatterley” ban
And the Beatles’ first LP.
PARTY-TIME 21st JUNE:View more news