Monday Message 09.01.23
The end of 2022 saw the traditional Christian celebration of Christmas and holidays for other religions, including Hannukah. And then the Western Christian calendar moved to the Epiphany and the Eastern Christian Calendar marked the Theophany. Many of us have Ukrainian guests and so started Christmas again on 7th January, following the Julian calendar. Others with Latin American origins celebrated the “Día de Reyes” (The Day of Kings, a reference to the Biblical Magi). And of course, many historians believe that celebrating Christmas in December is linked to the pagan tradition for the winter solstice around December 21st.
And so, whether you were celebrating paganism, religion, culture or simply taking a holiday, I hope that all had a break. It can be a difficult time of year. The blank grey skies and rain hurling down onto black suits and coats and bags as we travel to courts is a soggy justice setting. And it is a time of loss for many as well as an opening of optimism as last year’s calendar is cleared out with the tree.
The CBA kicked through end and start of the year by highlighting the crucial fundamental fairness floor of parity funding for prosecution and defence barristers and the crisis deepening by the current position of prosecution barristers paid around 20% less than their defence counterparts. We led the beginning of the year .
The MOJ and HMCTS already have the evidence about exponential rises in ineffective trials due to prosecution shortages in the year to June 2022 and the CBA has been provided with examples on a weekly basis since the autumn.
As Sky reported last week “Official figures show that in the year to June 2022, 314 rape and serious sexual offences were “ineffective”- meaning they could not go ahead on the day – because of a lack of court rooms, judges, defence advocates or prosecution barristers, up from 109 in the previous year. The amount of prosecution “no-shows” were 15 times higher than the previous year and 10 times mor than the yearly average for the past seven years, according to CBA analysis of the data”.
Here are some of the other articles on the issue since the New Year.
Further to a meeting this morning, 9th January 2023, the DPP has informed us that their business case to the Treasury for funding for parity of fees in line with defence has been referred to the Efficiency and Savings Review. This is in line with the Autumn budget announcement and is not specific to the CPS or justice sector.
For those of you not following the politics, according to the House of Lords library:
“In the delivered on 17th November 2022 the government announced a new . The government stated that the review would “target increased efficiency, reprioritise spending away from lower-value programmes, and review the effectiveness of public bodies”.
The purpose of the review is to with savings reinvested in priority areas. As part of the review the government noted in the autumn statement that the chief secretary to the Treasury and the minister for the Cabinet Office would “work with all the cross-cutting government functions and departments to drive up professional standards, accelerate progress on innovation and automation, and further reduce waste and duplication”.”
My update is that the result of the examination by this Review will be communicated by the beginning of February 2023. Meanwhile, the CBA is continuing to work with the CPS and has a further meeting today on the operational implementation of the increase if successful.
What alternative to not increasing prosecution fees?
If the funding is not made available, the basic question to the Treasury (and to the CPS) is which serious, complex cases does it wish to adjourn for another year or more or which cases will it decide cannot go ahead at all?
Rather than waiting until adjournment at court, it would be more transparent and accountable for communication to made by government and CPS to witnesses, victims, families, and complainants that their trial has been selected not to go ahead as there is insufficient funding for a prosecution barrister to prosecute the case.
Will the choice land on rape allegations, fraud of the vulnerable and/or elderly or murder?
Barristers continue to work for the justice system, but our members increasingly are choosing not to prosecute.
Of course, prosecutors require to be paid the same as those defending in the same trial. It is hoped that this principle – not disputed at any level- is implemented urgently. But we must wait for a few weeks more for a reply from HMT.
Better Case Management and Court Listings
The Better Case Management Revival Handbook is published today and comes into effect from 16th January. Through the CCIG, the CBA was given the opportunity to input into the Handbook and we took that opportunity. You will be expected to know its contents and apply them. Let us know how it functions and whether it is a revival. Thanks to the Judges who led this work, HHJ Martin Edmunds KC, in conjunction with the other judicial members of the CCIG, HHJ Peter Blair KC, HHJ Nicholas Dean KC, HHJ Rosa Dean, HHJ Heather Norton and HHJ Samantha Leigh.
There also is a CCIG progress report which outlines the work of the CCIG up until the end of 2022.
Importantly there is a new Listing Advice document (see particularly §7-9) which contains advice to Resident and Presiding Judges when exercising their judicial function of Crown Court listing.
We also continue to communicate with Resident Judges and in relevant meetings with your specific issues. Please do keep giving us the information of difficulties you encounter in both magistrates and crown courts. It is anonymised unless we contact you with a specific request. Your voices are listened to at the highest level.
We have a further meeting with the SPJ tomorrow.
The year 2023 also will provide important professional development opportunities and the CBA’s Education and Training Committee met again recently to continue planning the programme for the year. Please save the date for the Spring Conference in Manchester at the Lowry Hotel. Dinner is on 31st March 2023 and the Conference is on 1st April 2023. I look forward to seeing you there.
We are reinvigorating the CBA’s work on diversity and social mobility and will be working to examine barriers encountered specifically by black pupils and, as always, seek to provide remedies. We are delighted that former Treasurer Laurie-Anne Power KC is leading this crucial work.
There is much engagement from our most junior barristers, and – alongside working on fees- we continue to seek contributions to the many consultations and policy papers that are published.
I would like to better utilise the CBA’s talented barristers to use their skills to tackle harm and influence policy. I was successful in this regard when I was Chair of the Bar Human Rights Committee when our team of barristers provided expert evidence to Parliament Select Committees on legal strategy to stop Female Genital Mutilation. This resulted a law that introduced FGM protection orders which continues to be successful in preventing girls being taken overseas to be cut. Between 2019-2020 I worked with Amnesty Denmark and Denmark’s government in changing the rape law in Denmark to consent based legislation. The law of England and Wales was referred to as a model.
Jeremy Waldon referred to the rule of law as “one star in a constellation of ideals that dominate our political morality.”
Do continue to contact and volunteer. There is much interesting and important work.
The UK is supporting investigation into human rights violations in Ukraine, including evidence gathering in Ukraine. Some of this work would be well suited to junior barristers and the CBA would like to be able to provide details of those who are interested. Contact us.
January and February 2023 are key months for the implementation of the remainder of the deal accepted by the CBA in October 2022. Despite some bumps in the road, the work alongside the MoJ with junior and senior representatives of the CBA has been rapid, positive, and dynamic. Barristers have benefited financially in short-term with the end of 2022 seeing an MoJ estimated £12 million having been paid in AGFS and LGFS fees from the deal.
The Hardship Fund remains available for those who are experiencing or are concerned that they may soon experience hardship. Don’t wait until it becomes difficult. Apply and/or reapply.
Thank you to all the chambers, firms and individuals who contributed to the Hardship Fund. The generosity of the Bar and those who acted out of public interest remains humbling.
Finally, we continue to focus on well-being and working conditions. There was a meeting between HMCTS and the CBA last week and this is settled into monthly communication. Our silks panel remains in place to assist you with issues that you might have at court.
I am aware of some tragic losses to the Criminal Bar. Really sad news reached us that Michaela Bonsu died at the end of the year. And also distressingly, James Gelsthorpe died far too young. If you wish to send condolences, we will ensure that they are sent to the families.
These are terrible reminders that life can be unexpectedly cut short. But also, the contact made to the CBA shows that we are a large family and mourn for those we have worked alongside, chatted to, and fought against in court.
I wish you all a happy, healthy, and successful 2023. At each twist and turn and nosedive of the criminal justice system, the best of the Criminal Bar continues to shine. Thank you.View more news