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Monday Message 07.11.16

Chairman’s Update: 
Francis FitzGibbon QC


As I’ve said before, the CBA is not a political organisation.  We believe in the rule of law, and we will speak out if it comes under attack from any quarter – as it has now.
On Thursday the Lord Chief Justice ruled in Miller that the Government could not lawfully trigger Article 50 of the Lisbon Treaty to begin Brexit, without the authority of Parliament. The judgment has nothing to say about whether Brexit is a good or bad thing. The Court looked at the long history of the Royal Prerogative and found that it could not be used in the way the government wants. The decision is based on ancient principles of English common law: you could scarcely hope to read a more British judgment.
It set off a torrent of appalling and highly personal abuse of the judiciary from newspapers and some of the more intemperate politicians who took to the airwaves. We condemn it unreservedly, as an attack on Judges is an attack on the rule of law itself. Judges do not speak in public to defend themselves: their judgments should be defence enough. They should able to rely on a Lord Chancellor who can uphold the oath of office and ‘…respect the rule of law, [and] defend the independence of the judiciary.’ Some newspapers are now turning their fire on the Supreme Court Justices, no doubt hoping to delegitimize the result of the appeal – if they give same the answer.
A line has been crossed with the recent media attacks. A UKIP councillor has publicly called for protests outside the private addresses of the three Judges who decided Miller. Farage has made veiled threats of bringing people out on the streets. Public life and discourse seems to have been infected with a virus of hatred and mendacity that can do more damage than these individuals could ever imagine – unless that is what they desire.
The government itself defines ‘extremism’ (in the Prevent Duty Guidance for England and Wales) as ‘as vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs’.

On Saturday, the Bar Council passed a resolution condemning ‘… the serious and unjustified attacks on the judiciary arising out of the Article 50 litigation. It regrets the lack of public statement by the Lord Chancellor condemning these attacks and calls upon the Lord Chancellor to do so as a matter of urgency. A strong independent judiciary is essential to a functioning democracy and to upholding the rule of law.’ Within hours, the Lord Chancellor responded by saying ‘the independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality. In relation to the case heard in the High Court, the government has made it clear it will appeal to the Supreme Court. Legal process must be followed’.  That’s fine so far as it goes, but regrettably it doesn’t go far enough.

I do not believe that any Cabinet Minister is activated by malice towards the judiciary. But neither the Lord Chancellor nor the Prime Minister have done what they ought to do, and unreservedly condemn both the calling of judges ‘enemies of the people’, the demands for their dismissal, and the making of their blameless personal lives into objects of reproach.  Ministers may not fully understand that this is not mere ‘tittle-tattle’, as the Solicitor General described it to the Bar Council on Saturday (although, in fairness, he also described the worst of the reporting as ‘beneath contempt’). Standing by and saying nothing may not be meant as such, but is likely to be seen as tacit approval for what has gone on, and encouragement for more of the same. In these disturbed times, dignified silence doesn’t work because there are too many people who will see it as a green light.
Joint Enterprise
It was already a big week for the Lord Chief Justice before Miller. On Monday he dismissed all 12 of the applications and appeals in the post-Jogee joint enterprise test cases: R v Johnson and others [2016] EWCA Crim 1613.  
Johnson will no doubt generate much activity by academics and practitioners. For what it’s worth, here is my take on it.  The decision will disappoint those who thought that Jogee would make it easy to quash historic convictions once the Supreme Court recognised that the law took a wrong turn in 1982. The Lord Chief Justice has reaffirmed that the only basis for allowing an in-time appeal is a finding that the conviction was unsafe: a retrospectively ‘wrong’ legal direction does not automatically render the conviction unsafe – every appeal is intensely fact-sensitive. If the correct joint enterprise direction would have made no difference to the outcome, the conviction will be safe. In practice, if there was evidence of foresight by the secondary party, then the jury may well have inferred the intention that the law now requires to be proved, and an appeal will fail. As Mr Jaggers says, ‘Take nothing on its looks; take everything on evidence. There’s no better rule.’
In out-of-time cases, exceptional leave to appeal is needed, with an ‘extra hurdle’ to get over – showing that the applicant has suffered ‘substantial injustice’ – before the Court will consider whether the conviction was unsafe. There is particular sensitivity about crimes of violence: ‘If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, [establishing substantial injustice] is likely to be very difficult’ (21).  The Court rejected the proposition that the categorisation of a killing as murder rather than manslaughter would necessarily amount to substantive injustice, but they did hold that ‘it is…not material to consider the length of time that has elapsed. If there was a substantial injustice, it is irrelevant whether that injustice occurred a short time or a long time ago. It is and remains an injustice’ (21).
I’ve always thought that Jogee would have a greater impact on charging decisions and on-going trials than historic cases. Johnson does not take the law far beyond Jogee. Those of us advising on old cases will have to be extremely careful not to raise false hopes.
More on Appeals – Counsel Travelling from Outside London
Master Egan QC, the Registrar of Criminal Appeals wishes us to know that the Court of Appeal will assist Counsel travelling to the RCJ to appear in unpaid renewal applications:
Pro Bono Court at 2pm
The List Office of the Court of Appeal Criminal Division is now listing some renewed applications for leave at 2pm. This is to address the additional travel costs that Counsel outside of London must incur when they support a renewed application for leave on a pro bono basis.
The 2pm listing means that Counsel in those cases do not also have to incur peak rail fares in attending a 10am listing and is intended to put them on a more equal footing with London based Counsel; particularly if this is a factor in deciding whether to support such an application.
Rosina Cottage
On behalf of the CBA I offer warmest congratulations to CBA Executive Committee member Rosina Cottage, the Legal 500’s Silk of the Year for 2017.
Future Bar Training
This is important. The BSB is consulting about what to do with the BPTC course, which is widely thought to be unfit for the purpose of training graduates to be barristers. I want the Bar to be seen as a desirable and viable career for able students from all backgrounds. Training must be accessible and affordable, with the requirements of high achievement in teaching and outcomes taken as read. We should aim to have successors who are better than we are. We can help by engaging individually with the consultation.
The BSB are making the following presentations:
Nottingham: 9 November 2016 (Nottingham Trent University);
Birmingham: 10 November 2016 (University Law Birmingham);
Cardiff: 16 November 2016 (Cardiff University); and
Bristol: 17 November 2016 (University of West England).
More Consultations
The Young Barristers’ Committee is consulting the profession on remuneration of junior counsel in the Magistrates’ Courts. The survey will be open for 6 weeks. 
The Sentencing Council has opened a consultation on proposed guidelines for breaches of court orders. Volunteers needed.
CPD Webinar
The BSB’s webinar, introducing the new CPD regime, is at 1pm on 10 November. You can register here. Live sessions in Cardiff on 7 November and Winchester on 15 November.
More Sad News 
The CBA notes with sadness the death of John Aspinall QC, of Church Court Chambers. The funeral is on 11 November at 4pm at Poole Crematorium, followed by a reception at Spetisbury Village Hall.

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