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Monday Message 01.09.14

CBA Chairman’s Update:
Tony Cross QC

Monday 1 September 2014


E: [email protected]
T: 07860 692693
Levelling the Playing Field
Football references and my year in office.
My first foray into the world of the MM was met with the following from one correspondent, “Football in the first line is an immediate turn-off for many people. I didn’t read the rest.”
Sadly I am afraid they will continue and why not when last Saturday  the Mighty Clarets secured their first point of the season. However I cannot guarantee that each week will bring a Monday Message. It seems to me that the necessity for weekly updates are currently unnecessary. I promise though that you will be kept informed of the work of the CBA. Next week in any event is an international week and I shall be away. Mark Fenhalls will be in the chair and he will deliver his message. I have asked Jaime Hamilton to deliver an alternative message in the third week of September. We are a broad church and long may that remain.
And so to business.
It is necessary to remind you all of the Overriding objective.
1.1 (1) The overriding objective of this new code is that criminal cases be dealt with justly.
(2)    Dealing with a criminal case justly includes―
(a)    acquitting the innocent and convicting the guilty;
(b)    dealing with the prosecution and the defence fairly;
(c)    recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
(d)    respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
(e)    dealing with the case efficiently and expeditiously;
(f)     ensuring that appropriate information is available to the court when bail and sentence are considered; and
(g)    dealing with the case in ways that take into account―
(i)     the gravity of the offence alleged,
(ii)     the complexity of what is in issue,
(iii)    the severity of the consequences for the defendant and others affected,
and (iv) the needs of other cases.

Laughable really isn’t it. Our system is in crisis. We know it, Government know it and the Judiciary know it. There are though some simple solutions to the sort of problems that Justin Gau speaks of in his piece HERE and typified by the hard-hitting prose of Jaime Hamilton in his blog HERE.

Those who have the best skills, who are best able and have the infrastructure to prepare cases should do so and should be paid properly so to do. This is the role of the defence solicitor. Solicitors who cannot do so have no business practicing criminal law.

In a similar way every day, there are examples of the CPS being unable to serve papers on time or at all, failing to properly review cases, failing to make proper disclosure, CTLs not being extended because of slow or no action on the part of the prosecution and, inevitably, people who should be in custody being released and victims either not getting the satisfaction of proper convictions . These failings cause scandalous delays in our system.
My manifesto

“As it exists now, the market could scarcely be argued to be operating competitively or in such a way as to optimise quality. The group of providers who are manifestly better trained as specialist advocates are taking a diminishing share of the work, and are being beaten neither on price nor on quality.
Solicitors are bound, for good reason, to be influential in the choice of advocate. The fact that there are now internal commercial interests at stake makes it even more important that the process by which an advocate is assigned should be above reproach.”

I promised that I would do my damndest to allow barristers of talent to do the work currently being done by others. Until publicly funded work is done by the most able then justice for victims and defendants is being denied.

There was a time when every big case had the best Leaders and Juniors. When every case of weight had the best teams usually served by the best solicitors. Is that the position currently? In some cases of course it is. Some solicitor firms have no HCAs. They know of the real value of the specialist bar. My cry is not a cry for war with HCAs; it is a cry for war against injustice. Currently the Bar are being denied the opportunity to compete for all work for a variety of differing reasons. This must change and together with Nick Lavender QC and his successor Alistair MacDonald QC I am determined to press for structural changes to ensure that the Bar get an opportunity to obtain these briefs, prosecution and defence alike.
I regularly receive correspondence from Junior counsel complaining of questionable practices concerning referral fees and the like which are ruining their lives. (My article in this month’s CBQ will deal with one such story in detail.) The time has come to do something about it. Open competition is the best way to guarantee that lay clients get the best possible representation.
Electronic Evidence
My inbox groans under the weight of complaints about the service of evidence electronically. I have asked Simon Csoka QC to deal with this subject. He is to liaise with Ra Healey QC. He will report back to the Exec at our meeting on the 24th September. The principle is clear. You must be paid for this material. You are doing the work and going unpaid. This topic is fast moving from a case-to-case approach to a matter of policy. I hope we can reach a solution before it becomes a problem to the efficient disposal of business in accordance with rule 1.
The future
The CBA justifiably takes pride in its training and education programmes. We have the best brains at our disposal without a doubt. I hope to announce an exciting training initiative in education. James Mulholland QC and his team will soon be working on a new training initiative.
My predecessor.
Last year it was a privilege to work alongside NL QC. He became and I hope will remain a friend for life. I now have the opportunity of working with Mark Fenhalls QC. We shall not be able to please you all but we will do our very best.
Tony Cross QC

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