Monday Message 06.03.23
The 8th of March is International Women’s Day
It grew from a day in 1908 when 15,000 women marched through New York City calling for shorter working hours, better pay and the right to vote. Sound familiar?
The following year the Socialist Party of America declared the first National Woman’s Day. In 1910 at an International Conference of Working Women in Copenhagen, Clara Zetkin, an advocate for women’s rights, suggested there be a yearly International Women’s Day. It was first celebrated in 1911 in Austria, Denmark, Germany, and Switzerland.
Bread and Peace
The date of the 8th of March apparently is taken from a strike by women in Russia in 1917 when they demanded “bread and peace”. This does seem to be a demand which has not dated. International Women’s Day became official in 1975 when adopted by the United Nations.
Women at the Criminal Bar
The Criminal Bar Association and Bar Council have changed from my yeardirects as a junior on the Executive Committee of the CBA, the Bar Council Public Affairs Committee and as a Young Spokesperson, over two decades ago, with my seat at the table but on occasions feeling that I was in a highchair.
At the end of 2022, the CBA for the first time had all female Chair, Vice-Chair and Treasurer. I now am the sixth woman Chair, and our Young Bar Committee barristers predominantly are women.
However, we urgently need to retain and to reverse the attrition of women on the climb up through the profession.
Practising at the Criminal Bar can be a rewarding career and one which has produced many of the Bar’s most inspiring figures. As the use of CVP and increases to legal aid start to assist finances, we need to reengage with that memory as we continue shaping medium and long-term reform.
We need you, criminal barristers, to get out there and spread the message as to why you still do the job and to encourage students to come to the Criminal Bar.
The exodus of women criminal barristers in the middle of their professional life– one reason drawn from Bar Council evidence to CLAR was that income flatlined at 8-12 years’ call- points to air at the heights of the profession that women cannot breathe.
Some oxygen is being offered through the reverse mentoring scheme of the Judiciary.
Also, in 2022 the number of women applying for silk was a record 78, although the number appointed was only 36. In 2021, the figures were 72 and 45 respectively. However, women were more successful than men; 47% were appointed, compared to 29% of men.
The CBA’s Social Mobility and Equality and Diversity Committees travel to schools and are partnering with the Judiciary on reverse mentoring, which has had the deadline for applications extended until Friday 10th March.
Please contact Aaron and/or Grace Ong, Melanie Simpson KC, and Laurie-Anne Power KC if you would like to join the Social Mobility and Equality and Diversity sub-committees and/or take part in the reverse mentoring.
Change happens when we work together.
The final part of the deal for payment for special preparation and wasted preparation should have been brought into force in February 2023.
It seemed a long way off in October 2022, didn’t it?
But here we are and, as I informed the CBA Executive and the Heads of Chambers’ meeting this week, the Statutory Instrument has not been brought into force, nor laid. This is a breach of the deal under which the action of the Criminal Bar is suspended.
I had a meeting with Parliamentary Under Secretary of State for the Ministry of Justice, Mike Freer on 28 February, with the Vice-Chair of the Bar Council also in attendance, where I went back over the detail of this part of the deal. This has been ongoing with Ministry of Justice officials for several weeks. At one stage we were engaged in three meetings a week.
Minister Freer followed up his oral assurances, that there is no rowing back by government from the deal but rather complexities resulted in delay, in writing on the 3rd of March here.
I continue to stress that the government has had five months and holding up your side of the bargain is not complex.
In summary, the Ministry of Justice officials raise a possibility (and all things may well be possible) that there will be overspend of the £3.3 million committed to this part of the deal.
We have pointed out to the MoJ that it has a history of modelling which produces inflated figures. This reality gap needs again to be pinched as it widens between assumption and practice and failure to do justice to understanding as set out in CLAR.
This now has been set down again in writing for the Minister.
A solid fact check on MoJ spend is “Accelerated Asks” which was implemented prior to CLAR. One legal aid reform was to pay for unused material a 1.5 hour rate in all cases claimed to cover 0-3 hours, and at an hourly rate for claims for over three hours.
The table on the top of page 7 of their Impact Assessment at the time, estimated that in a “steady state” the expenditure on this element of AGFS would be £4m-£11m. The actual AGFS expenditure from April 2021-March 2022 was: £1,098,351 for 0-3 hours claims, £ 879,381 for over three hours claims resulting in a total of £1.97m.
And it cannot all be blamed on Covid. There are other examples.
The CBA team is working alongside the Bar Council; thanks to Jo Cecil, Professor Chalkley, Richard Christie KC, Tom Little KC, Louise Oakley, Dan Oscroft and Jason Sugarman KC. The wider CBA remuneration committee also is squeezed for all its expertise and comprises our most junior.
The final part of the agreement, itself following the recommendation of Sir Christopher Bellamy in CLAR, has been committed to by the Deputy Prime Minister and again by Minister Freer at our recent meeting.
It is false economy to create blocks at this stage when the government should be doing all it can to attract and retain barristers.
Government should be sensitive to any action that could push a fresh exodus from the criminal bar.
The Attorney General agrees.
She recently gave evidence to the Justice Select Committee:
“We all need to do everything we can to ensure that the pipeline for the legal profession continues to be a strong one and encourage young people as well as older people entering the profession to understand that criminal work can be very rewarding in financial terms as well as in other ways, and that it is a career worth having.”
Also, it is a devastating waste of public money for trials not to go ahead due to the lack of a barrister as well as being devastating to complainants, victims, witnesses, and defendants. A high-level criminal justice system is a flat necessity. Actions that promote and secure a basic functioning criminal justice system should not meet resistance.
The bolt-on fee for section 28 cases has been in force since the 1st of February 2023. You may recall that we succeeded in averting a material breach of this part of the agreement and Minister Freer emphasised the government’s commitment in a letter.
A review will take place in the Spring. This review is with a view to increasing the bolt-on figure from the deal.
Timeline – defence and prosecution
As the Minister’s letter sets out, the government is seeking to lay the Statutory Instrument “within a few weeks”.I am in contact with for the MoJ’s Policy and Strategy Group Director General, Jerome Glass and a further meeting is being finalised. I replied in detail to the letter the same day.
I recently attended a meeting with the DPP, CPS and Bar Council.
The increase in prosecution fees is due to be implemented in early April.
After five months CLAAB remains without a Chair. There is increasing concern that there is a lack of political will to properly address medium and long-term reform of the criminal justice system. CLAAB is central to lifting the criminal justice system out of the ongoing crisis.
The CBA continues to work with MPs and encourages all to communicate with the CBA and utilise the Parliamentary process. A special cheer to Sarah Forshaw KC who now has put this issue on the floor of the House of Commons.
Conservative MP, Rehman Chishti asked the following question in the House of Commons Chamber:
“With regards to addressing the backlog and engagement with the legal profession, having spoken to leading criminal lawyers such as Sarah Forshaw of the [sic] King’s counsel, they raised this specific question with me: when will the government appoint the chair of the Criminal Legal Aid Advisory Board, which was set up in October 2022, nearly a year after recommendations by Sir Christopher Bellamy’s independent review. Is there to be another year’s wait before this appointment takes place?”
Minister Freer, replied:
“The appointment of the chair following the independent review. Is currently being considered by the secretary state and announcement will be. Made in due course. The board has met and continue to do its work and is working effectively whilst we decide on the best form of chair in the meetings.”
Reaching through the smoke, the facts are that the interim Chair had been Daniel Flury. As of the 10th of February, he is no longer is in position as Acting Director of Access to Justice Policy and instead has been moved to HMCTS as Director of the South Eastern Circuit. Previous government commitment had been that the announcement of the process of appointment would be made in February 2023. This has not happened.
Daniel Flury played a crucial role both in the negotiations and then in driving forward the increase of legal aid fees reaching barristers. He was in communication with myself whenever required which included days and hours outside any working contract. The Criminal Bar owes him recognition and thanks and I send those thanks.
All in the criminal justice system and political system know – or should know unless they have their heads in Alice -in- Wonderland rabbit hole – that assertions blaming barristers’ action for the backlog are not only deeply flawed but are demonstrable nonsense.
Many of you communicated both anger and weariness that Minister Freer and the Lord Chancellor recently stated that the backlog is due to the CBA action.
Back to some myth busting
Even before the pandemic struck, by March 2020, the backlog already had rocketed 23% to 41,000. This was caused by deliberate Government cuts from 2019 to the number of days that Judges could sit. Further, the Government pursued a policy of selling our court estate and profited by £264m since 2010 by selling off 164 court buildings. That money should have been reinvested in the criminal justice system, but it wasn’t.
Covid accelerated the crisis that was already there. The pandemic added another 46% to the size of the backlog taking it to over 60,000 by June 2021. It barely reduced since then with barristers’ all out action only starting on the 5th of September and concluding on the 11th of October, which of course contributed to the backlog, but in relatively small numbers with barristers also making exceptions for cases with vulnerable witnesses/defendants.
In 2022, the Public Accounts Committee, described the Government evidence as a “meagre ambition” to reduce the backlog to 53,000 cases by 2025 and “unconvincing”.
It is not any more convincing to start again blaming barristers’ action as causing the backlog; particularly when they are working extremely hard to properly represent and prosecute people whose cases are in the backlog.
It is hoped that this rhetoric stops as it does not assist anyone.
The CBA always remains open to apologies.
A new arrangement agreed with the Executive Committee is that, unlike the other sub-committees, the Chair of the CBA YBC will have a standing invitation to attend our Officers’ meetings.
Its priorities include pay and treatment of barristers in the Magistrates Courts and in the Youth Courts.
Survey and Burn-Out and Clerks
Raised at meetings has been concern at pressures placed on barristers due to the workload.
We need to know more to properly address this. Please complete the survey.
I also am seeking to set up meetings with clerks and Circuit Leaders across the country to better identify the issues, particularly in relation to our most junior practitioners. Increasingly, there is concern about burn- out.
The clerks across the Criminal Bar also deserve much praise for how they are working incredibly hard with huge lists of cases and trying to satisfy all.
Please also contact Aaron and/or Jonathan Higgs KC or Tana Adkin KC with any well-being issues. Information will be appropriately and confidentially handled.
Our wonderful education team, chaired by Charlotte Newell KC and Paul Jarvis, continues to organise brilliant seminars. The next one is this Wednesday 8th March on The Use of Intermediaries for Young Defendants; the access link will be circulated on the day..
Sadly, the Spring Conference will be postponed (new date to be announced) due to a rail strike on the same day. A further announcement will be made very shortly. Thank you to those who already had signed up to attend and please don’t give up on us because of strikers!
Please hold the date of the 8th and 9th of June 2023.
A second Treasury Counsel Pathway was formally announced on the 1st of March 2023.
The CPS is running a MS Teams launch event on Thursday the 16th of March 2023 at 5:30pm, to outline the scheme and answer questions. Those wishing to book their place, should email [email protected].
Ukraine – those who have expressed interest in working on justice matters from Ukraine, please send CVs to Aaron.
The annual Human Rights Watch Festival is taking place on the 16th – 26th of March at the Barbican Cinema. The CBA is a presentational partner for two films: THEATRE OF VIOLENCE, about the landmark International Criminal Court trial of former Ugandan child soldier Daniel Ongwen, and SEVEN WINTERS IN TEHRAN which highlights the ways courts can be weaponised against women in Iran.
The films also will be available on the HRW streaming site.
You can get discounted tickets with code: CHANGE23 which will give (appropriately) 15% off film streaming tickets.
We have two free tickets for the Barbican for our U7 call barristers. If you are interested, please contact Aaron and names will be selected in a shuffle.
Retention Roving Ambassador
We had a meeting of the Heads of all the sub-committees to identify areas of overlap and better working arrangements and support and communication. It was inspiring to hear from all as they set out their ideas and planning for the Criminal Bar.
Each committee has a core issue of retention at the Criminal Bar. The Retention Committee therefore was dissipated in favour of the appointment of Elizabeth Marsh KC as a Roving Ambassador on retention. She will communicate and co-ordinate strategy and action between the various sub- committees. We are delighted and thank her for her long and ongoing service to the CBA.
The CBA constitution also is being revised to modernise and to reflect the growth of the the CBA. Thanks to Caroline Haughey KC for stepping in to chair this and to the committee.
Thanks to all the Chairs of the sub-committees and all those working on those sub-committees on our behalf.
Final Thanks to Criminal Barristers
Final thanks to all barristers practising in criminal law, to those who have stayed, to our most junior and to those who are coming into criminal law who are our future.
The CBA is you; our members and its strength is our barristers’ strength and our barristers’ strength is the strength of us all.
Be proud of everything you have achieved over the last year.
Keep well, keep professional and keep communicating.View more news