CBA Monday Message 29.04.19
Chris Henley QC
This week’s message will principally focus on our strategy for action on fees for the next few weeks. A group of us met on Saturday to take stock and map out our next steps.
(There is also a book giveaway at the end of the message for those who make it)
A hundred yards or so from the Old Bailey is a tiny but beautiful park, ‘Postman’s Park’. It’s more like a public city garden. Most have no idea it’s there and rush straight past. If you go in you will find something fascinating, evocative and special; G.F. Watts’ ‘Memorial to Heroic Self Sacrifice’. Under a simple wooden veranda is a wall crammed with beautiful plaques commemorating ‘everyday heroes’ who ‘lost their lives trying to save another’. The plaques record their names and, very simply, what they each did.
G.F.Watts, a Victorian artist, unveiled the memorial in 1900. The title plaque, the finest of all, includes these words ‘The material prosperity of a nation is not an abiding possession; the deeds of its people are’. I was there the other day and almost in the shadow of our most famous court I thought of what we are likely to be embarking upon. Maybe a little grandiose but please read on. If and when action becomes necessary we will be making a sacrifice, it will cost us, there will be risks, but we will be doing so to save something enormously special; a high quality criminal justice system built on quality, integrity, and the highest standards of fairness, and which depends upon equal access to the pool of the best available advocates
We aren’t looking for fame, and certainly not fortune, but we have concluded that unless we run into the burning house (like ‘Amelia Kennedy, aged 19, died in trying to save her sister from their burning house, Oct 18 1871’, or ‘Alice Ayres who by intrepid conduct saved 3 children from a burning house in Union Street at the cost of her own young life, April 24 1885’), or try to stop the runaway horse trampling the CJS (‘Elizabeth Boxall, aged 17,who died of injuries received in trying to save a child from a runaway horse June 20 1888’), or try to prevent a high quality system sinking without trace (‘David Selves aged 12 of Woolwich supported his drowning playfellow and sank with him clasped in his arms, September 12 1886’) or, last one I promise, barristers of integrity being hit by the resource starved express hurtling towards us from Petty France (‘Daniel Pemberton, a railway foreman, aged 61 ‘surprised by a train when gauging the line hurled his mate out of the track saving his life at the cost of his own, Jan 17 1903’), what was the finest and fairest criminal justice system in the world will disintegrate beyond repair.
THE MILESTONES AND THE CPS REVIEW:
The Prosecution Fee Survey Results have been forwarded to Max Hill QC, the DPP, and Paul Staff, the Chief Executive of the CPS, with a very blunt covering letter from me. I won’t publish that letter for the moment but unless things change radically I will be sending it out for you all to see next week. We have a further formal meeting with the CPS senior team on 7th May. This is likely to be a watershed moment. You have made it crystal clear what needs to be done now, and the scale of investment required following the review. For the time being I will summarise the letter’s contents. You need to know the position being taken on your behalf by your representative body.
We have no confidence on current information that the CPS review of fees will deliver an outcome satisfactory to the Bar anytime soon for the following reasons:
- The CPS has refused to agree to any of our immediate asks to deal with blatant daily injustice in the assessment of counsel’s fees. Fees as low as £46.50 or £55 for a day in court and hours of preparation are set to continue. This is surely a compelling articulation of an ongoing lack of seriousness in treating you properly?
- Fees have not increased for 20 years, and in 2012 there was a 5% cut. We have, as you would expect, insisted on a commitment that as part of the review process no fee is reduced. The review must only be about which, and by how much, fees need to go up. A pretty modest request given the history? Otherwise we simply rearrange an inadequate number of threadbare, broken deckchairs. The CPS response is to refuse to give a commitment that no 20 year old fee will be reduced. This too is surely depressingly revealing?
- There is no information, even in outline terms, how much new investment is proposed. We have made it very clear that anything less that about £60 million will be insufficient. Inflation has risen by more than 62% since 2001. We need clarity on this. Even £60 million would not restore fees overall to 2001 levels. The silence on this could even mean there is no in principle commitment to increase the advocacy budget overall.
- This is not a personal criticism of the CPS Chief Executive, who has served the CPS faithfully and well for many years, but you need to know this when judging how much confidence you should have in the substance of the recent review announcement. Paul Staff, who is in charge of the review of fees will be retiring from the CPS in July. No successor has been identified. So part way through the review process the individual in charge will be walking away. A new person as yet unidentified will be taking over. With the best will in the world how does this work?
- Finally, the review, if it does result in a proposed uprating of fees will in fact form the basis of a CPS bid to the Treasury for more funding. So even if the review delivers what we need in terms of a properly funded scheme, there is no guarantee that the money will be forthcoming, and this reality might well serve to inhibit the ambition of the review. The vague hope expressed to us is that a new fee scheme will be in place by the end of the current financial year. So we might have to wait for anything for almost a year, with absolutely no sense of what that might be.
We have made it clear that for all of these reasons what has emerged so far is just not good enough. Not close to being so. It is more obvious than ever that our immediate asks need to be implemented. You do not feel valued or supported, and are not even paid for much of what you do. You work extremely hard in the public interest, as all advocates do, delivering justice every day in Magistrates’, Youth and Crown Courts across the country. You deserve much better. It is shocking that we are in this position.
As a reminder of the commitment we always give and the casual contempt we are so often met with. I received an e-mail last week from one of you who was booked in early April to prosecute a serious rape case, in which a vulnerable child was the complainant, with the PTPH about 3 weeks later. Papers were received just before Easter and the case was fully prepped and e-mails exchanged, albeit at the cost of a day booked out to spend with his family. Then at 4.15pm the day before the PTPH chambers are contacted and told that the case has been double booked and the case was taken away from him. And of course an empty diary the next day.
HEAD OF CHAMBERS MEETINGS AND TRAINING DAYS:
So the 7th May will be a key date. There is still time for the CPS to make the necessary decisions to avert what will otherwise follow. More than 90% of those of who responded to the survey, on a very very high turnout, stated that if all reasonable attempts at persuasion fail then reluctantly they are prepared to take action. There will be no contest in any public debate about the level of fees. There are always gasps when people are told of the pitiful state of things, both for the defence as well as the prosecution.
Later this week, we are meeting again with the Ministry of Justice with regard AGFS. The issues in relation to defence fees are well understood and need immediate fixing. We can’t go on with flat inflexible brief fees in long, complex and high volume of evidence cases. Our proposals to deal immediately with the most extreme problems can be viewed again here. We will report back imminently.
We will also be convening Heads of Chambers meetings. We want to, and will, hold meetings outside London too but there will be dial in facilities provided for the meetings.
With regard to action (if mandated and unavoidable and following consultation with Heads of Chambers and Circuit Leaders), no returns and ‘Training Days’ on an escalating basis are under consideration following feedback from the membership. No final decisions have been made. We appreciate some of you will be nervous about what lies ahead, concerned about the impact on your future relationship with the CPS, and nervous about the financial implications.
STRENGTH AND PROTECTION:
There is strength and protection to be found if we all individually choose to act together. None of you can be forced, or pressured into doing anything. But as more and more of us look ahead at an increasingly bleak future, and as chambers dependent principally on publicly funded work struggle to survive, the time to draw a line and stand up for ourselves and the public interest has surely come.
Someone needs to care, genuinely, viscerally care about the appalling state of our Criminal Justice System. Victims of crime are being horribly let down on a huge scale. The police and CPS are being starved of resources on a scandalous scale. The latest crime statistics as reported last week repeat the upward direction of travel for violent and serious crime, as fewer and fewer cases reach court. Criminal solicitors are facing extinction, and the brightest young barristers doing crime are leaving in ever increasing numbers.
So if you need inspiring, go to Postman’s Park. You are unlikely to get a plaque but you will forever remember and be able to say I made a difference, what has come after this will be so much better than before.
A POEM AND A FREE BOOK:
This week’s poetry recommendation chimes beautifully with the theme of today’s MM.
It is ‘Ithaka’ by C.P.Cavafy.
Read it; see if you agree. You can perhaps discuss it’s meaning after the ‘Wellbeing’ event which takes place this Thursday at 6.00pm at The Old Hall, Lincoln’s Inn. (It’s all so seamlessly linked!).
Five copies of the just published ‘Youth Justice Law and Practice’ by Kate Aubrey-Johnson, Shauneen Lambe and Jennifer Twite will be sent to the first five of you (5 years call and under), who very regularly appear in the Youth Court who e-mail in. If you are not one of the lucky five there is an ongoing 20% discount available for CBA members.
FINALLY (PARTY, CONFERENCE):
The Legal Aid Minister Lucy Frazer QC MP has very kindly offered to address the on Saturday 18th May at 4.30pm. The line up is a particularly impressive one, with the Attorney-General Geoffrey Cox QC MP making the keynote speech at 9.15am and fantastic speakers throughout the day. We are very grateful to every one of them. Tickets are selling fast.
Tickets are also on sale for the which will be held on Friday 21st June 2019, in the Sunset Room, at Sea Containers (incredibly cool and funky venue overlooking the Thames, with a fabulous staircase especially for Judy Khan QC).View more news