Monday Message 09.05.16
Mark Fenhalls QC
My thanks to all those who contributed to and helped prepare the CBA Response to the “Guilty Plea” consultation.
You can read it HERE.
As I wrote two weeks ago, it is critical that all advocates make sure that the Courts enforce the CPRs as to what should be served in advance of PTPH and credit should not be lost if there are any shortcomings in the approach of the Crown.
Enforce the Rules and we can show everyone what is, or is not, working.
Thank you also to those who organised and spoke at the CBA “Serious Sexual Offences” conference on Saturday.
It was a superb day with a list of terrific speakers: McGowan J, HHJ Lees, HHJ Rook QC, HHJ Lucraft QC, Angela Rafferty QC, Caroline Hughes (of the London CPS RASSO team) and Dr Geoff Debelle.
Court of Appeal Users Group Report
Once a year the CACD users group meets. It is attended by various organisations including the CBA and CALA (Criminal Appeal Lawyers Association].
My key points to note from the recent meeting are these:
“Loss of time” directions are being made more often. The fact that counsel has advised on appeal is no answer. Read the case Gray.
The time limits are going to be ever more strictly enforced. “My fault, sorry” will no longer be acceptable, if it ever was. You need to give substantive reasons why the appeal is late. Read Wilson.
If you are taking over a case where others have previously been advised you cannot assume (as too many do) that the world stops. Pre-existing timetables are likely to continue to run. Make sure you comply with the rules concerning contact with previous representatives. Read the case McCook.
The CACD will welcome your involvement if you are taking over grounds previously advanced by an unrepresented defendant if you are clarifying (and if appropriate narrowing) the issues to those you consider properly arguable. Stay in close touch with the Registrar and his team and explain what is going on. It is surprising how many do not.
Be careful about the increasing use of phones by people in prison, which some may be using to try and contact their lawyers. The number of micro-phones designed to beat the body scanners that are being seized in prison is increasing year by year (up 30% between 2013 and 2014 – I don’t know about the 2015 figures). Solicitors are most at risk and the Law Society has apparently issued guidance. But any barrister (or their staff) doing a “direct access” case must be alert to the problem and the various communication offences relating to prisons.
Special Court judgments awaited soon on texts and looking at sentences on historic sex offences. Read Fanning on inconsistent verdicts HERE. You have only to note the constitution of the Court to see how important the case is. I thought para 18 is particularly worth reading for what it may represent about the CACD’s approach across a range of other areas.
Video-link. This is now being used much, much more often. Serving prisoners are not being brought to the court and are watching their appeals over the screen. For many this is highly desirable, because they are not having long journeys to London and risk days or weeks of processing afterwards separated from belongings as they wend their way back through the system to wherever they were before. But so far there is in insufficient provision for advocates to speak to clients after the hearing and explain what has happened. This can cause great practical problems for communication with clients. The CACD is alert to the problem and will do its best to fix as soon as it can.
DCS and the Court of Appeal. More of this below in another context. The DCS is coming to the CACD but I do not know the timescale. In the meantime, the Court does need you to think about how to take your cases from the Crown Court to the CACD. You will need to be as precise as possible about the dates and timings of the rulings/ evidence that the Registrar will need to track down and or what papers might be needed. The most obvious examples are where there are early directions or a split summing up, or where there has been a stand down report the evidence given by the probation officer, or the written directions/ routes to verdict given to the jury… each case will of course be different. As the Court gets used to dealing with DCS cases practice is likely to evolve swiftly, so keep asking.
A number of members have written concerned that they have not been “passported” to the new scheme because of low earnings caused by maternity leave. I am pleased to say that all those who did not make the earnings threshold but had so far written to the CPS with their “appeals” (if that is the right word) against non-invitation explaining have had the financial requirements waived and been re-admitted to the lists.
There is absolutely no desire on the part of the CPS to disadvantage anyone who has been away from practice for good reason. If any of you want help or guidance on this subject, drop me a line.
If you are part of the large majority who have been “passported”, please fill in your acceptance forms by the end of this month. Otherwise you will drop off the list at the end of the year.
The evidence we have gathered about what is or is not working has been genuinely welcomed by the powers that be. It has been anonymised, subject to a little editorial tweaking from me – usually to remove some of the most colourful adjectives – and submitted. But this is an ongoing process and I want you to keep writing.
Let me give you one example of something sent through last week.
At Ipswich. My PTPH finished 20 minutes ago. The judge pressed save when having completed the PTPH form. The computer is still showing the moving circle. He has risen. Court staff are on the phone to the DCS help desk, but are in a queue. No further case in the list can be done until this is sorted. Meanwhile a court room full of counsel and defendants, and the follow on trial witnesses, are waiting….
This sort of contribution is exactly what we need if we are going to get things fixed. Keep sending in the examples with as much detail as possible to Aaron please.
May I reassure you that the problem with multi-handed cases and the PTPH forms is well and truly on the radar of all the senior Judiciary and there is a real desire to devise a technical / practical solution urgently. More news soon I hope.
In addition to everything you can find on CBA website, in previous messages, SPJ letters and elsewhere, we hope to arrange training for members who are not yet comfortable with the DCS soon.View more news