Monday Message 05.09.16
Francis FitzGibbon QC
Welcome back. I hope everyone has had a decent break from work and its many pressures.
This is long Monday Message: there’s a lot to catch up with, and as this is my first MM as your Chair, please bear with me while I set out what I see as the priorities and challenges for us in the coming twelve months.
Before that, a few words in praise of Mark Fenhalls QC: his Messages over the last year only show the tip of the iceberg of his work on our behalf, which began in the dark days of 2014. His exceptional skills as a communicator and negotiator have won the respect of judges, officials, administrators, the leaders of all branches of the legal profession, and the media. He has made numerous quiet and unheralded interventions on behalf of junior practitioners in difficulties. His energy is legendary, his ego non-existent. It’s never been about him, but about us and the people we serve. We’ve been lucky to have him and I expect – no, I insist – that he will continue to play an active role on our behalf. He’s a hard act to follow.
Now, on to business:
The ‘overriding objective’ of the CBA has been and always will be to serve the public interest by promoting and protecting the highest standards of advocacy in the criminal courts. While we are of course a representative body that is ready to defend our members, we are not and must not be seen as guardians of vested interests that do not benefit the public we serve.
Here are the main items on the agenda, as I see it:
First, the reform of AGFS and its counterpart, the introduction of defence advocacy panels:
The Byzantine complexity of the present payment scheme distributes the limited public funds that are available in the wrong way – as we all know. It is especially harsh for the more junior advocates, and turns people away from criminal practice. When the Criminal Bar ceases to be a viable profession for all but the moneyed, the future pool of senior advocates and judges will be drained. Above all, a bad system of payments is not in the public interest, and it’s not in our interest either.
The Bar Council, the Circuit leaders, the CBA, and the representative solicitor groups have been working for many months on the architecture and the details of the new AGFS scheme. The aim is to produce a fair and durable system of payments which does away with the anomalies of the present scheme, where payment is largely based on the volume of paper and not on the work we actually do. The MOJ have welcomed the professions’ initiatives, but for reasons beyond our control, those responsible for making the ultimate political decisions have had, shall we say, other priorities. At the time of writing there is no reason to think that the new ministerial team in the MOJ will depart from the broad policy lines set out in last year’s Quality in Advocacy consultation paper. I share your frustration over the slow pace of change, and will do whatever is necessary to get us over the line without excessive delay.
At the same time, the solicitors’ groups and the MOJ are reviewing the Litigator’s Graduated Fee Scheme (LGFS). We have no direct role in this, but we are keeping fully in touch with developments and giving assistance when it is sought.
For a clear and depressing account of the mess that legal aid is in, and why it has real value to society at large, you can do no better than to read Sir Henry Brooke’s blog. Since retiring from the Court of Appeal he has become the doyen of legal bloggers, and he should be a compulsory follow for those of us who use Twitter.
Defence panels and AFGS reform go hand in hand – but whether they can be come into being at the same time is unknown at present. Again, there is a broad consensus about the advantages of a purchaser’s quality assurance scheme for defence advocates, and about the outline scheme that has been proposed – with excellence as the hallmark. It will put people of the right – high – calibre into the right work. It will apply to all criminal advocates, both solicitors and barristers. While the players in the AGFS reform are the professions and the MOJ, the defence panel scheme brings in the judiciary and the regulators as well; inevitably therefore the process is more complex. The CBA will continue to push for prompt resolution, again working alongside the Circuits and leadership of the Bar Council.
If anyone doubted that a quality assurance scheme that demands and identifies excellence in advocacy – and nothing less – is needed, look no further than the sad tale of the self-styled ‘Lord Harley of Counsel’, who has now been struck off the solicitors’ roll. This sort of thing is a rarity, thank goodness. But it’s a truism to state that financial pressures drive unethical behaviour. Hard to understand, therefore, how the Solicitor’s Regulation Authority’s relaxation of the rules against touting for work will make the profession as a whole more ethical or will enhance its public reputation: see this perceptive article by Robin Murray.
Another obstacle to the would-be criminal barrister is the BPTC, which costs about £19,000. The colleges that profit from the students who sign up in hope are undoubted beneficiaries – the students, less so. The CBA wants to make a career in criminal advocacy attractive to prospective barristers and will be working with others to reduce or mitigate the financial barriers. We must encourage talented people from more diverse backgrounds to come to the criminal Bar.
The coming months will see major changes in the regulation of the whole legal profession. I firmly believe that the Bar should continue to have its own regulator, and that the cost of the practising certificate should continue to cover the BSB and the services provided by the Bar Council. The system is cost-effective and it works. I anticipate that we will spend a lot of time on ensuring that we are regulated in a fair, efficient, and proportionate manner. An immediate test will be how the BSB carries out its plan to reorganise CPD for the Bar – which threatens to add substantial and unneeded burdens to practitioners, with little or no tangible benefit. See the BC-CBA joint response to the latest consultation HERE.
The Bar Council’s Wellbeing at the Bar project is incredibly important – please follow the link and support it in any way you can. The CBA is a sponsor and we want to develop it as a key resource for the profession.
We are repeatedly told that Brexit means Brexit, but we have no idea what it means, certainly not for our work. It is bound to mean something. All sensible definitions gratefully received.
Other current issues:
BCM & DCS:
We continue to make instances of bad (and good) practice known to the powers that be, through the local and national implementation teams (LITs and NIT). They listen. They know the system is young and not free of blemishes. They want to improve it. Please keep sending in your horror stories and love stories – anonymity guaranteed if requested. When dealing with ‘your-client-knows-if-he-did-it’ types, bear in mind this Judge, in 1862, who did his best to stop a man pleading guilty to a capital offence:
There is growing concern that the April 2016 iteration of the Criminal Practice Direction discriminates unfairly against defendants who need the help of an intermediary. For example, paragraph F3.20 provides that “A trial will not be rendered unfair because a direction to appoint an intermediary for the defendant is ineffective”. A bit sweeping, you might think. Members are asked to report instances where they think a defendant has been badly disadvantaged by the Court’s failure to appoint an intermediary, or any case where an intermediary has been appointed and then the appointment is withdrawn.
You may well be asked to advise prisoners about the prospects of quashing their convictions, post-Jogee. The Court of Appeal is due to give judgment next term on a group of cases which will decide what ‘substantial injustice’ means in practice (§100 of the Supreme Court’s judgment). Also, it’s worth bearing in mind that limited legal aid is available to solicitors for advice for applications to the Court of Appeal (out-of-time) or the CCRC, subject to means. In some cases that can be extended, at miserably small rates, to Counsel. Some representatives are telling people that they can only advise privately. That’s wrong.
Western Circuit Women’s Forum:
The Western Circuit Women’s Forum is being launched to confront the stubborn statistics relating to retention and advancement of women in the profession: detail about these statistics and the forum is to be found HERE. The Forum is being launched at an event in Winchester on 13th October from 5.30pm with excellent speakers drinks and an hour CPD. To register and for any further information about these initiatives please contact Kate Brunner QC.
Prosecuting Advocates’ Contact with Witnesses:
Like it or not, this is now CPS operational policy. We are liaising with the CPS to ensure that a suitably qualified member of their staff is present for all meetings with witnesses. Please keep us informed of any problems that arise.
Bar Council Election:
The annual election to the BC is about to start. Details are HERE. I used to be a bit cynical about the BC, but having seen up close the quality of the work it does on the Bar’s behalf, and the dedication and skill of its leaders, I recognise how vital it is for our profession. It has served the Criminal Bar particularly well. Please don’t just think about standing for election, but do it – especially the most junior members, whose voices and insights are urgently needed.
The Annual Bar & Young Bar Conference takes place in London on 15 October 2016. These Conferences are fascinating, with a varied programme of events, seminars, and learning opportunities. You can even attend a session about Courtcraft, Judgecraft and Casecraft by Sarah Vine and me.
Mac users having difficulty should find this guide by Mark Barrington helpful (he is the Programme and Project Management Consultant at CPS HQ).