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Monday Message 01.08.16

Chairman’s Update: 
Mark Fenhalls QC


Quite a lot to cover in this, my last “message”, so please indulge me as we wander from the High Court bench, a crucial work opportunity with the CPS, Archbold vs Blackstones, through some important developments concerning BCM/ DCS, to new IDPC guidance in the Magistrates Court, reform, standards and finally to the delights of Sir Edward Marshall Hall KC.

Mr Justice Lavender – some recent history
There were several appointments to the High Court bench announced last Friday, but one gives me particular pleasure to mention.  As Chairman of the Bar in 2014 Nicholas Lavender QC was in the eye of the storm during the most difficult period of conflict with the Ministry of Justice as we fought against the destructive and damaging proposals made by the then Lord Chancellor, Chris Grayling MP. 

The criminal Bar fought throughout with a spirit of collective strength and unified purpose.  Our willingness to stand behind our principles and decline work was a critical moment in our history.  I was elected vice chair in July 2014 and it was then that I had the privilege of seeing Nick in action.  You could not have wished for a doughtier champion of the publicly funded Bar.  Nick was relentless and unyielding in his efforts to show the civil servants and politicians why they were so wrong.  By way of example, under his watch the “Research and Data Working Group” was launched.  The ultimate report blended Bar Council and MoJ data and showed how the income of self-employed practitioners had gone off a cliff.  Data replaced anecdote and showed the civil servants that we did not “cry wolf”.  We told them the truth.  It was this work as much as anything else that I think convinced the Government that the cuts to AGFS should not be reintroduced.

We managed to stop the rot and since then we have sought to rebuild – you all know the story of the successes: the Government consultation last October on “Preserving the Quality of Advocacy”, the welcome for the profession’s proposals for reform, the end of the existential threat of two tier in January, the end of the existential threat of two tier in January, the reversal of some of the most absurd of the Grayling measures…  promising progress until the politics of 2016 intervened with periods of purdah and upheaval.     

Nick’s work has continued unabated under his successors. So if you ever wonder what the Bar Council does for you, I can promise you that staff and leaders are working for you ceaselessly, often quietly and seldom acknowledged.  Nick exemplified the “one Bar” ethos and without leaders like him our position would be even more perilous than it is.  So I am delighted to be able to publicly thank him for his service as Chairman and to congratulate him on a richly deserved appointment.

CPS secondment opportunities in the London
I hope all of you have received this notice through your clerks. 

CPS London is offering secondment opportunities at up to level 3 work, including in the RASSO unit.  I am delighted to say that the proposed arrangements are much more flexible than they have ever been before.  I am told that this flexibility has emerged out a suggestion that I made to the DPP three months ago. 

I am heartened by the imagination the CPS has shown and hope that this will make such opportunities more accessible to “returners” (often mothers) looking to rebuild careers and others who may wish to work part time for whatever reason.  The CPS is absolutely committed to making these arrangements a success and I hope there is substantial interest. 

Please think about fellow members of chambers who may be planning a return to work soon and might interested but may not read this message.

Archbold vs Blackstones 
A week or so ago it was announced from on high that the Judicial Executive Board had made a decision that Blackstones would be the standard text on the bench of Crown Court Judges from the end of this year.  One rationale is said to be the supposed quandary that members of the Bar faced about whether to take Archbold or Blackstones to Court. 

You may have a different experience, but I have never heard of anyone being in such a quandary.  It may (or may not) be that it is the right switch to make, but I simply do not know why the professions were not consulted.  I do not know the extent or effectiveness of the consultation with the Crown Court Judiciary.  I have no wish to turn this in to a sequel to Batman vs Superman – not least because I know and admire both editors and I have not seen the film anyway. But given we use the books every day of our lives it would have been nice to be asked what we think. 

The Chair of the Bar Council has made enquiries on our behalf.  I have written too expressing my disappointment that the profession was not consulted.  I suspect we will not learn much more before the autumn now, but we will let you know what we can.

BCM and the DCS
Last week Francis and I attended a meeting under the auspices of the Criminal Procedure Rules Committee hosted by the DPP that was looking at the complaints made by solicitors and barristers about the adequacy of the “Initial Disclosure of the Prosecution Case”.  Please read HERE for my earlier message on the subject of adherence to the CPRs. 

Please read here for the CLSA “protocol” on the topic.  The SPJ and Chief Magistrate were amongst those present.  The professions could not have been clearer in our expression of views about the damage caused to the system by inadequate or dilatory attitudes towards IDPC.  After all, none of us ever want to adjourn cases – who wants to reduce the financial viability of our careers even further?  Sometimes however goodwill and ability to paper over the cracks can only go so far and we have to seek an adjournment… 

Some of you may know about this troubling “guidance”apparently issued to some Magistrates Court in Kent – for all I know similar documents may exist elsewhere.  We have asked for it to be withdrawn or reviewed.  The message has been heard.  CPS has just published this guidance on what its lawyers can and cannot do in the Magistrates Court. In short it should help defence advocates stop the Crown using material it is has not been willing to disclosed in advance.  This is a welcome clarification and improvement.

Two more important notes arising from a meeting last week of the National Implementation Team for BCM.  The MoJ has at last granted the money to create a new PTPH form for multi handed cases.   I am told that this involves quite lot of tricky technical work.  A user group (including the Bar) based in Leeds – one of the experienced early adopter courts – is testing ideas this week.  The ambition is to have the new form in place by the end of this year.

I hope also that another project for a sensible notification system for the DCS will also be completed in a similar period – so that we get an automatic email or alert when another ‘invitee’ loads something on the system.

Please continue the feedback re DCS / PTPH review being conducted for SPJ.  If you write and explain what it wrong about the system, efforts will continue to be made to fix it.

Judicial Hotline to the LAA
There is a telephone number (or two) which is available to all Resident Judges on which they can contact the LAA and try to resolve knotty legal aid issues.  I gather that all RJs will have had the number re-circulated by the Friday 5th August.  Do invite Judges to use it if it means you can avoid an adjournment or make sure you will get paid.

Listing Delays and BCM
I read every appalling example of bad listing that is sent to me and add it to the pile of “feedback” – how I have come to hate that word – that I send regularly to the NIT. 

There are early signs from the data that BCM is having a positive effect.  The number of hearings per case is dropping significantly and backlogs are clearing in some areas.  Serious and grown up efforts are being made to understand why some parts of the country operate better than others.  The stinging criticism of the Public Accounts Committee continues to resonate.  You can find the data tool to look at delays and court usage in your area HERE

The goal of course is to clear the backlog and reach a nirvana where only those cases that will be a trial are listed for trial and the idea of a warned list is an ugly and distant memory… Meanwhile, please keep the reports of bad practice coming in – and if any one has instances of exemplary good practice, we’d like to hear about them as well.

Quality and Standards
I hope I will be forgiven a closing anecdote.  Three months ago I went to the BBC to do some radio interviews for local radio stations about the experience of the jurors in the Hillsborough Inquiry.  It was of course a privilege to pay tribute to their extraordinary public service.  But my point now is rather different. 

Over the course of an hour and thirty minutes I was interviewed by 12 different journalists from around the country, each interview lasting 7 or 8 minutes with a short break in between each.  The experience was fascinating.  It was exhausting for a start, but most illuminating was the varying standard of questioning.  All the journalists had the same brief and the same opportunity. 

Each had planned their own questions.  Some were well prepared and listened carefully and invariably I emerged from these interviews with a real sense that I had communicated my thoughts properly.  Others were less well prepared and did not listen to my answers.  The interviews felt stilted and I emerged feeling dissatisfied with the result.  It was an extraordinary (certainly unique for me) experience and it rammed home for me the remarkable difference between a high quality questioner and a second rate, ill-prepared one. I am not saying that 8 minutes is enough to secure (or give) the answers you want or need, but it is plain that in addition to proper preparation, the constraint of time is a marvellous aide to concentrating on what is truly important.  It is a lesson that will remain with me for the rest of my career.
Something for the sun lounger, while the jury is out, or even that long slow train journey… 
Sally Smith QC specialises in medical law.  But she has taken a break to write a marvellous book about a legendary and maverick figure of the criminal Bar – “Marshall Hall:  A Law unto Himself”.  Whether you want a paper copy to sit on the shelf behind your desk, where the paper briefs used to be before the advent of DCS, or you prefer a download on an e-reader, may I recommend Sally’s book for the sultry moments of the next month or so, whether you are lucky enough to be in the sunshine or continue to labour on in an inadequately air-conditioned court building. 

The book covers an almost unrecognisable era.  But so much of what Sally writes about the role of the advocate and the pressures faced more than 100 years ago still resonates today.  We face an increasingly stressful world, where the digital systems both help us do far more, but also massively increase the burdens.  Chambers can become financially more efficient as people operate off laptops and tablets and travel to chambers less often, but perhaps at the cost of social cohesion. 

We must guard fiercely the well-being of our friends and colleagues who may become more isolated and stressed as a direct consequence of the digital revolution.  The intensity of our lives is demanding and unrelenting, but our role, the job we do, continues to be vital to the health of the nation.     

And so thank you
Barring extraordinary developments, this is my last Monday Message.  Francis will email you all on Monday 5th September. 

It has been an honour to do what I can to help represent our precious profession over the last two years.  Getting to know so many of you around the country, to have worked closely with past Chairs, Circuit Leaders and your CBA representatives who strive tirelessly to try and help, it has all been a real privilege.  Thank you for affording me the opportunity. And none of us could function without Aaron who is quite simply wonderful. 

I cannot tell you how grateful I am to the various CBA officers who have helped me so much… Tom Payne, Emma Nash, Richard Bentwood, Sarah Vine, Chris Henley QC, Donal Lawler.  The time and effort they put in on your behalf is quite remarkable. 

I know they and others will continue to support our next Chairs and am delighted to be able to say that in Francis and Angela you are in great hands.

Finally – most importantly – I would like to thank my family for their forbearance this year.  Our job is a difficult one and requires our families to make considerable sacrifices as we disappear into work in the evenings and weekends.  Whatever any of us manage to achieve in our working lives is not done in isolation and I owe them a huge debt that is not easily repaid.

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