Monday Message 01.02.16
Mark Fenhalls QC
BCM/ DCS/ Future of Criminal Litigation
Our new Senior Presiding Judge, Lord Justice Fulford, will be delivering a lecture in the Bar Mess of the Old Bailey tomorrow, Tuesday 2nd February. You can find the SPJ’s recent BCM newsletter of 29th January HERE. It explains the Child Abuse Image Database (“CAID”), which is now available to all Police Forces and the changes in procedure for how such cases will be dealt with by the police, CPS and Courts. It is required reading for anyone who deals with such cases. Please come along to listen, learn and ask questions.
Demise of two tier
The abandonment of two-tier marks a victory for good sense, but is in no sense a triumph. Almost no-one in the profession welcomed the scheme in theory; its implementation bred unnecessary divisions and rancour; the procurement process was botched; solicitors who won contracts will feel justifiably aggrieved; both winners and losers wasted time, energy, and money, for nothing. At unknown public expense, everyone is back where they started, and whatever plans they made six months ago are redundant. Businesses have gone under, and good people have been driven out of the profession. So, no triumph. The public interest has not been well served.
That said, the profession and the public owe a debt of gratitude to the many people who in their different ways contributed to the removal of this unworkable and dangerous scheme. Determined solicitors did much of the heavy lifting by exposing its innate shortcomings, and took on the great burden of litigation against the government. But we should not lose sight of the role played by the recent Chairs of the Bar Council and the Circuit Leaders, and the CBA itself. All have been unsparing in their criticism of the policy and argued against it for several years now.
Nevertheless, in spite of everything, there is a positive outcome from the ruins of two-tier: what the whole profession has now is the chance to produce a sensible and durable method of funding criminal defence litigation. Not one designed to serve the narrow sectional interests of a particular group or sub-group; it must be based on long-term strategic thinking about where the real hard work is done to make the criminal justice serve the public, who does it, and hence where precious public resources should be concentrated.
The CBA is available to assist in formulating (and if necessary constructively criticising) plans and proposals, with no hidden agenda.
If you have not yet a moment to read the Secretary of State’s announcement you should. In the House of Lords on Friday there was a short debate, following the Urgent Question tabled that morning in the Commons. Here is one excerpt that should give us all a sense of confidence. It has taken us years to get here, but politicians, civil servants press and public increasingly seem to accept what we have all known for some time.
Lord Clinton-Davis (Lab): The amount of complacency about changes in legal aid is absolutely bewildering. I speak as somebody who, in earlier life, was much involved with criminal legal aid. At the moment, there will be immense difficulties in recruiting young solicitors to do this work. I hold the view that it is desperately unsatisfactory. I hope the Minister will not again get up and say that economies have to made in legal aid. The economies that have already been made are devastating.
Lord Faulks: There is no complacency on the part of this Government. This Government value the contribution that solicitors make to system as a whole, particularly those who work in criminal legal aid. The noble Lord is quite right: rates are not what they were and, as a profession, it has considerably fewer attractions than it once had. It is important that we continue to encourage able practitioners to go into areas where legal aid is the main source of funding. However, we have to bear in mind the interests of the taxpayer. We have constraints put on us by the Treasury. I particularly pay tribute to those who, despite the difficulties that are encountered, nevertheless pursue careers in this less profitable area of the profession. Our profession is often characterised as being full of ambulance chasers and fat-cat lawyers. These lawyers are very much not in that category.
On Friday I spoke to a young very junior tenant in chambers, who said to me “I simply cannot believe it. For the first time in my career I feel hopeful about my future.”
I have no more interest in picking over the bones of the past and recent events. I am solely concerned about the future of the CJS and how we create a sustainable market for quality advocacy and litigation. And above all how we make sure that the most able young men and women actually want to come into our professions and with good enough prospects to keep them for the long term.
That Young Barrister’s Future
The proposed replacement for AGFS was designed by barristers (young, middle aged and even older) from all over the country to try and fairly reward the work done by trial advocates (be they barristers or solicitors), to restore some sense of career progression and to better reflect the era of digital cases, and BCM. Anyone who tries to suggest that it is an attack on by the senior bar on the potential earnings of the junior bar is talking complete rubbish. Nothing could be further from the truth. As we implement BCM and DCS, it is time to consign arguments over page counts to the dustbin and replace it with certainty over payments and an end to ‘freebie’ court hearings. Trials are of course what we mostly do and what we are here for. This new scheme seeks to reward work done for undertaking trials. I have yet to hear anyone mount a principled objection to the scheme.
The Leveson Review produced many very welcome recommendations. One aspect that we have not debated enough is how to foster and promote the “Duty of Direct Engagement” that is key to a much healthier (and more efficient) CJS. Next time you are waiting for a jury, a train or have been put back somewhere down a list because a defendant is late, do have another look at section 2.3 starting at page 10. The Review understood that the current payment schemes do not help. Paragraph 185 is the key one:
“185. In some cases, that (duty of) engagement will involve substantial negotiation between defence practitioners and the CPS not only in relation to a guilty plea but also as a means of reducing the issues so ensuring that any trial is as effective and efficient as possible, eliminating the waste that is so often evident in trials with witnesses being brought to court and then not required, issues floated (or threatened) and then abandoned and insufficient focus on the true issues which require detailed investigation. It seems to me that this work has the potential to benefit the system so very positively that it must be recognised financially.”
Is there any evidence yet that this work is actually benefiting the system positively? I think there is. Anecdotal evidence from the early adopter courts around the country report increased %s of guilty pleas at PTPHs as Judges and practitioners get used to these new processes. (One wag told me that the acronym in fact stands for “Pressure To Plead Hearings” but while this is quite amusing, it is unfair.) But it is critical that a reliable and robust assessment of these numbers is kept by the MoJ/ HMCTS, so that we can measure how it is working. Only then can we all start to campaign to reverse the corrosive and damaging effects of the Treasury’s approach to the MoJ budget in recent years. These numbers are crucial to showing that we are stripping delay out of the system, reducing anxiety on witnesses and complainants, shortening times to trial, which are all crucial objectives if we are to maintain high public confidence in our CJS.
I am only too well aware that it is hard work and good will on the part of the professions that has enable the BCM system to start to work at all. The Judges know it too. None of your representatives loses an opportunity to inform and educate the MoJ.
We have this chance to replace AGFS and LGFS how should we do it and incorporate proper remuneration for the “duty of engagement”. Such a chance may not come around again for many years.
We think it is imperative to join up the thinking about early engagement with proper remuneration for litigators – from the call-out to the police station through to verdict at the Crown Court. The advice and work done in advance of a client’s decision whether or not to plead guilty is something that is overwhelmingly under the control of the solicitor who sees him at the police station, in the prison, has built the relationship and has prepared the proof of evidence. How on earth can we expect to embed the duty of engagement if, as now, the payment structure is weighted towards trials where evidence is called, and away from these early, critical stages of the case?
The harsh reality is that most litigators do not attend trials and do not contribute much to the trial process once it has started. They are no longer required to turn up to be paid and few do. As always the honourable and dedicated few are the exception that proves the rule.
Many solicitors have told me that without the LGFS from big trials, their businesses would not survive. This is deeply unfair to all solicitors and damages the public interest. I stress, it is essential that the money in the LGFS is not reduced. But it is equally essential that it is redistributed to make sure that the duty of engagement and the other desperately underfunded cases in the lower courts are properly rewarded.
Last week I wrote something that I think is worth repeating:
“Let’s say there are 10 beans paid by way of LGFS for a paper heavy crown court trial. Would it not be better if, say, 3 beans were payable for the completion of the proof and defence statement in time for an effective PTPH and the 6 beans were spread across all magistrates’ court and youth court cases? The final bean might be payable to those litigators who attend trials and do any necessary work during them. Overall costs do not change, but the perverse incentive that leads to bigger cases becoming valuable commodities if they go to trial would disappear. So much of the anecdotal evidence about unethical behaviour surrounds these big cases. If the same money is spread amongst all the smaller (and usually equally important) cases, then these damaging distortions would disappear.”
The more I think about it, the more obvious (and compelling) this answer seems to me. But of course I have never run a solicitor’s office and I may have missed any number of things. This is why it is so crucial that all firms, small, medium and large, must contribute to the representations made about what the replacement scheme should look like.
And so if we achieve this objective (or at least make some significant progress) and remove from the Crown Court lists all those cases which are capable of compromise and should not be trials, think about all the beneficial effects on clients, witnesses, your diary… even the last refusnik list officers who resist the moves to abolish warned lists would have no choice but to comply.
Over the weekend it was announced that the Prime Minister has asked David Lammy MP to investigate evidence of possible bias against black defendants and other ethnic minorities in the CJS. The CBA welcomes the announcement and will be delighted to offer such assistance as we are able.