Monday Message 05.12.16
Francis FitzGibbon QC
CBA Winter Conference
The event was, as usual, well attended, and graced with a series of excellent speakers from academia, practice, and the judiciary. For those who did not attend in person, the written materials and a video recording of the event will be available via the CBA website before 15th December.
It is vitally important for us to keep informed and up to date on developments in law and practice. By doing so we can only improve the service we give the public. By giving the best possible service, we play our part in maintaining the rule of law, which appears to have a host of enemies at this time. Now it is the turn of the Supreme Court justices to face the popguns and rubber knives of the more rabid parts of the tabloid press, on the eve of the Brexit appeal.
Lord Atkin wrote this, in a private letter:
How little the public realise how dependent they are for their happiness on an impartial administration of justice. I have often thought it is like oxygen in the air: they know and care nothing about it until it is withdrawn.
The problem is that the torrent of lies and innuendo creates an atmosphere of hostility, and may encourage some at the fringes to take up real guns and real knives. Don’t think it can’t happen here. If you think the editorial content is bad, try reading the below the line comments.
A Shot Across our Bows
When an advocate starts off by saying ‘briefly’, I die a bit inside because it invariably heralds half an hour of waffle. If it is brief, there’s no need to say it is. If it’s not necessary to say something, it’s necessary not to say it. One of the many reasons I could never be an LJ is a lack of patience – but even they are showing signs of impatience with verbosity in written submissions, in two recent cases.
In R v James  EWCA Crim 1639, in October, Rafferty LJ issued a plea for brevity and warning about the effects of prolixity
47. These two unconnected renewed applications have been heard together because they illustrate the problems caused by over-lengthy grounds or skeleton arguments such that the administration of justice in this Division is imperilled. Some members of the profession, if we may say so, need to sharpen their wits and their pencils and remember the quotation variously attributed: “I had to write a long letter because I hadn’t time to write a short”…
60. It essential this increasing difficulty in the Court of Appeal (Criminal Division) should be controlled. Various obvious risks, of which the Applicant is or should be aware, arise. The court might, if Grounds are inexcusably prolix and not consolidated after a warning shot by the Registrar refuse an application on the basis that no Ground was identifiable. Where a renewed application entirely lacks merit and should not have been advanced, one reason prompting that conclusion might be the volume of the Grounds. The adverse outcome for the Applicant can then, as is well known, include a loss of time order. In some cases the court might consider ordering an applicant to bear the costs of a Respondent’s Notice. These are but examples of outcomes either in play or as likely to be contemplated. They do not constitute an exhaustive list of dispositions open to the court.
In November, Gross LJ voiced the same concern in Brandford, Karemera & Alford  EWCA Crim 1794, about the
66. …length of written submissions from counsel. In respect of Brandford, we were provided with a 39 page submission for the conviction appeal and a further 15 page submission for the sentence appeal. In respect of Alford’s renewed application for leave to appeal sentence, we received a 26 page submission (incorporating 7 pages of transcription of the judge’s sentencing remarks) plus a 9 page addendum. Karemera’s renewed application for leave to appeal sentence generated a 27page submission. Written submissions of this length are, with respect, unnecessary, unhelpful and, in our view, unacceptable. It is much to be hoped that this issue will soon be addressed, robustly.
In a similar vein, the Court of Appeal in Thelwall  EWCA Crim 1755 has held that in sentence appeals
21…The citation of decisions of the Court of Appeal Criminal Division in the application and interpretation of guidelines is generally of no assistance. There may be cases where the court is asked to say something about a guideline where, in wholly exceptional circumstances – and we wish to emphasise that these are rare – the guideline may be unclear.
Historic Sex Cases – Footballers
The new wave of allegations about historic sexual abuse of young footballers will test whether any lessons have been learned from recent institutional failures. The investigators must avoid two errors: ‘automatic belief’ that led to the injustices exposed by Sir Richard Henriques’s report on Operation Midland, and the neglect and indifference that allowed abuse to continue in Rotherham. The Home Secretary has announced a plan by which police officers investigating ‘complex crimes against the vulnerable’ will need to obtain a ‘licence to practise’. A consultation is imminent.
A bigger question is whether the criminal justice system – police, prosecutors, defence lawyer, Courts, prisons – can cope with more and more such cases at a time when people and resources are already stretched to their limits. The public’s rightful expectations will be unmet unless the system has the capacity to deal with the multiple demands placed upon it.
Payment for Ground Rules Hearings
In a costs appeal watched closely by the CBA and the Bar Council, Costs Judge Rowley has rejected the Legal Authority’s contention that attendance at a GRH should be paid as a standard appearance fee (£87). The Costs Judge decided that in the absence of a specific provision in the Criminal Legal Aid (Remuneration) Regulations 2013, GRHs should be treated as hearings to determine the admissibility of evidence. The full/half day’s fee for a junior is currently £238/£130 (see para 24 of Schedule 1 of the Regs).
Criminal Procedure Rules
The CPR and the Practice Direction play an ever more important part in our working lives. We are regularly warned not to ignore them. The power of the Lord Chief Justice and the CPR Committee to make them comes from Part 7 of the Courts Act 2003. They look and feel like law, yet they have not been subject to Parliament’s scrutiny, or to forensic debate with competing arguments settled by a Judge in public. Most are everyday management tools to make cases run better; some are more controversial. I wonder what CBA members think about the process that generates them – an ad hoc committee appointed by the Lord Chief Justice which meets and makes its decisions in private.
Poaching & Bogus Legal Aid Transfer Applications
Solicitors complain of interlopers getting prison visits and poaching their clients on the basis of fictitious complaints. While such behaviour is a matter for the Solicitors Regulation Authority, we must also be careful not to lend ourselves to bogus applications to transfer legal aid.
The CPS have sent a helpful and detailed response to queries sent on behalf of the CBA about problems with the new system. We are grateful to them. The Senior Presiding Judge and the National Implementation Team are also aware of the problems, and are alive to the need to get things right.