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Monday Message 06.12.21

Meeting with the Justice Secretary

On 25th November, I met with the Secretary of State for Justice. It was our first opportunity for direct engagement and I ensured that he was left in no doubt as to the mood of the criminal bar as we await the imminent publication of the CLAR, already much delayed and yet urgently required for us to understand whether government is likely to be serious about redressing the longstanding pay shortages that are driving our advocates out of criminal work.

The key messages conveyed in the course of a frank, but constructive, exchange included: firstly, our firm and legitimate expectation that the CLAR must be published before Parliament rises on 16th December. There can be no good reason for holding back publication and it is essential that our members have sufficient time to digest the review and its recommendations before government responds and the statutory consultation begins in the new year. We now know that the Justice Secretary finally received the report on 30th November. Timely publication is a critical test of good faith, not least because the review is already a year and a half overdue. I reminded him that the 94% support for industrial action in 2019 was only suspended in order that an acceptable settlement on fees would be achieved through the latest CLAR; secondly, that he needs to act urgently to stem the daily haemorrhaging of criminal advocates from both sides of the court if there is to be any meaningful effort to reduce the backlog and to shorten the concomitant delays in trials. It is now abundantly clear to everyone that the principal impediment to progress is no longer the physical capacity of the crumbling court estate, but the dearth of barristers and judges needed to dispose of cases and to keep the system from melting down. Without a significant increase in fees, I made clear that the accelerating exodus of lawyers from criminal practice will continue unabated to the detriment of victims, defendants and witnesses; thirdly, that deepening frustrations over restrictions in the use of CVP for procedural hearings and the continuing absence of a national protocol, in conjunction with the operation of dysfunctional listing practises, serve only to encourage criminal advocates to migrate to other areas of work or to exit the independent bar altogether.

Each of these three core concerns was reiterated to the Under-Secretary for Justice whom I met on 1st December. There can therefore be no uncertainty in government as to the level of expectation amongst our members. Both time and goodwill are fast expiring, and they know that our ongoing cooperation in combatting the backlog is contingent on seeing swift and concrete progress on our pay and conditions.

Winter Conference

I am delighted to report that this year’s CBA winter conference on 27th November was a huge success and was supported by a robust attendance from our members. That so many attendees had to work on trial preparation in between sessions was a reminder of just how dedicated and over-stretched we all are. The focus was on ‘Serious Sexual Offences’ and covered a range of topics from charging policies and disclosure guidelines to developments in the law on consent and sentencing.

As ever, we are grateful for the time generously given by our expert speakers, and to those involved in organising the event including Tracy Ayling QC, Director of Education and Aaron Dolan, our indefatigable CBA Administrator. Government has repeatedly stated that RASSO cases must be given urgent priority in clearing the backlog. Perhaps they should take heed of the alarming statistic cited by Sue Hemming from the CPS to the conference, that they have lost between 22%-25% of their rape panel advocates over the last three years as a result of barristers moving away from criminal work. Along with mounting reports of trials and other hearings being aborted for lack of advocates in court, the evidence is now irrefutable: that the crisis in human capacity at the criminal bar is manifestly hurting the most vulnerable in our society. Both the responsibility and the solution lie with government. It is an unavoidable reality that I addressed in my speech to close the conference.

Home Affairs Committee – Prosecution of Rape Cases

While government struggles to place a true value on the immense contribution made by our advocates to keeping the criminal justice system afloat, Parliament continues to recognise the unparalleled experience and expertise that we offer in understanding why that same system is chronically failing to deliver justice in some of the most distressing cases that come before our courts. On 1st December, the Home Affairs Committee called for oral evidence from the CBA on the investigation and prosecution of allegations of rape and other serious sexual offences. This followed the publication of our CBA paper on the challenges faced by the prosecution and defence in dealing with RASSO cases.

Our Vice-Chair, Kirsty Brimelow QC, provided a cogent and compelling account of systemic failure and underscored the central and inescapable truth: that it is the lack of adequate resourcing that accounts for almost every problem encountered in such prosecutions.  A recording of the session can be accessed here.

Hats, Scarves & Gloves

It is nothing short of a national embarrassment that court buildings up and down the country are literally disintegrating for lack of upkeep and repair. Each one of us has a story to tell about leaking pipes, falling ceilings, crumbling walls, clogged toilets, blocked sinks, and failed heating systems. As the Lord Chief Justice commented to the press on 23rd November, “It is well known that many of our court buildings are in a pretty desperate state . . If you do not mend the gutters, sooner or later you have got to replaster the walls”.

Every week, we receive alerts from our members about the dilapidated state of our courts. Reports of plummeting temperatures at Inner London, Bournemouth, Bolton, Sheffield, Maidstone, the RCJ and even the much-vaunted super court in Manchester, leading to closures, disruption and extreme discomfort for advocates, staff, jurors and judges. This is no way to run a criminal justice system and no human being should be required to tolerate working conditions that force them to wear extra layers of clothing just to stop them from freezing. Please continue to notify the CBA of your experiences and examples of decrepit buildings so that we can show the public the reality of our working lives. Email to [email protected]

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