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Monday Message – 09.11.15

Chairman’s Update: 
Mark Fenhalls QC


Better Case Management and Digital Case System
Last Tuesday HHJ Martin Edmunds QC delivered the delivered the CBA’s “Ann Goddard Memorial Lecture”.    It was an extremely useful and practical tour of the substantial changes that have begun and will continue over the next few months running up to the national roll out in mid-January.  The lecture was filmed and will be made availble on the CBA website later this week.  The speech he delivered can be read HERE

Martin has also been kind enough to write a short piece on the new technology appearing in our Crown Courts.  It is an abridged version of a briefing prepared for Judges and Recorders.  You would be foolish not to read it now.  Please make sure everyone in your chambers knows about the changes and begin to debate the implications for how chambers are run and the changes you may wish to make to how cases are managed by clerks and barristers alike.

Two Tier
I am told that 69 procurement areas out of 85 have been injuncted under the procurement law challenges.  I also understand that aggrieved solicitors have issued a letter before claim in a potential JR.  I do not know when, or if, proceedings will be issued.  But the consequences for everyone in the CJS appear daunting.  Imagine in an area with four contracts that a firm came fifth and it believes that proper marking would put it second or third.  If it succeeds in winning a remarking of its application and jumping up the ladder then the firm that was fourth before falls off.  That firm will then want a remarking to see if can displace another who is one notch further up…   and these are not dry academic issues.  This is an existential struggle for many high quality firms (and the people in them), whose businesses are about to be destroyed or changed beyond recognition.  

The CBA’s dismay about the consequences for the justice system from TT is well known.  Every blog or post I have read from proponents and opponents of the scheme confirms my earnest hope that a better alternative can be devised and proposed as soon as possible.    

The Consultation:  “Preserving and Enhancing the Quality of Criminal Advocacy.” 
Tonight at Middle Temple Geoffrey Rivlin is delivering a lecture entitled “50 years in the law”.  I have no need to plug the event as it is fully booked.  But it is a welcome opportunity to remind you of the Rivlin Report that was published last year.  Any advocate thinking about the terms on which they want to respond to the MoJ Consultation should include the Rivlin report and all the sources and references in their thinking.
None of you need generalities from me about the scarcity of public resources or the critical importance of the CJS to our country.  Set out below are some personal views but these should not be taken as an official CBA position.  However enough of you have asked what I think and so here are some thoughts.  Whether you agree or disagree with me, please respond. 
But before I say anything, it is worth repeating what I have said before publicly:  I do not think it matters whether advocacy in the Crown Court is conducted by barristers or solicitors, so long as the public has access to a high quality service delivered by people who are well trained, chosen for the right reasons and independent. 
Qs 1 – 4, the proposed panel scheme
I welcome the Government’s proposal to create a panel scheme for publicly-funded criminal defence advocacy work. The market is not functioning properly and poor advocates (barristers and solicitors) should not be appearing in cases beyond their abilities, or when far better qualified advocates (barristers and solicitors) might be available and there is no difference to the public purse in what it pays for the advocacy required.  The Government (on behalf of the public) is quite entitled to create a purchaser’s scheme that does its best to optimise quality of service to the public.
I think the CPS model has worked pretty well overall and is a good starting point.  The criteria for each category in a panel scheme must be clear, objective and fair to all advocates.  The mechanism must be administered by the professions independently of the LAA and MOJ and must operate so that no advocate is inhibited from fearlessly representing his or her client’s interests.  The Bar Council and Law Society should be ultimately responsible for the selection process, though how they choose to delegate the responsibility is a matter for discussion.
The scheme should operate nationally, though it probably makes sense to administer it regionally as was done for the CPS scheme.  Four grades plus Silks seem about right to me.  I would not impose quotas on the numbers in each category.  The quality standards ought to be the only restriction.
Qs 5 – 7, proposals to prevent abuses of the system 
I agree that ‘financial incentives cannot be allowed to dictate the choice of advocate’ (para 44 of the consultation).  The best possible advocate for the case should be instructed, regardless of the financial interests of the lawyers involved.
There must be a statutory ban on referral fees.  No case should be sent to a particular advocate (barrister or solicitor) because s/he is paying any fee for it.  “Administration fees” are just referral fees dressed up in another way.  I am told many stories about such fees, varying between 15 – 50% of the advocacy fee.  The alleged parallels with chambers expenses are wrong. These arrangements should be banned.  It is apparently argued by those in favour of such arrangements that they are justified by real work that is being done by the litigator over and above what s/he should be doing in any event when doing their job as litigator.  If anyone maintains this position, then I would be delighted to see the evidence.
The new Bar Standards Board Handbook (January 2014) introduced a reporting requirement for all barristers who have reasonable grounds to believe that another member of the Bar has committed serious misconduct (rC66).  A failure to report another barrister for serious misconduct also amounts to serious misconduct (gC96.8).  Assuming the conduct is banned and/ or that the SRA could be persuaded or made to take the issue seriously, we should think about whether or not this should be extended to a requirement to report all lawyers in either profession who are engaged in such conduct.
Qs 8 – 11, client choice
A series of things should take place.  Warned lists must end so that the lay client has a far better chance of having his advocate of choice present at trial.  Fixed dates concentrate the minds of all parties, witnesses, client and lawyers and cases are more likely to be effective.  This one change would do more than almost anything else to promote the principle of “case ownership” and foster the “duty of engagement”.  Having to end up with a last minute substitute advocate should become the exception rather than the rule in most cases.
Ultimately it is probably transparency that is the key, whether you rely on a form, a question at court or any other mechanism.  Put the question this way to any lay client:  “have you been told that you have been recommended X because s/he is the best available, or Y because the solicitor has a financial interest in sending the work to Y (whether barrister or solicitor)?”  X or Y should get the work because they are of the right grade on the panel and because they have been chosen for their skills rather than because the work provider benefits financially.
The best way to strengthen client choice would be to properly remunerate summary justice and criminal litigation generally so that the incentive to use the advocacy fee to cross subsidise is taken away. 
Qs 12- 15, impacts
If you think that a self-employed bar is a valuable public resource then you will care about long term sustainability.  Unless we can attract talented advocates from all parts of society and give them a chance to flourish then decades of hard work and progress will be reversed and the profession will once more become a hobby for those with enough private means to pay their way.  Many of my friends speak (rightly) with no little pride about being the first person from their comprehensive school to go to the Bar.  But what was possible 20+ years ago is becoming increasingly daunting and impossible.  Unless we do something urgently we will no longer attract and retain people who are not from wealthy families.  If you think that the measures proposed in this consultation might help, then spell it out clearly
I had the singular pleasure and privilege, tinged with sadness, of listening to Ed Rees QC say “good bye” at his retirement party on Friday evening.  Amongst the very many funny stories he told he spoke movingly about how the barrister’s lot can be a lonely and insecure place.  It was timely therefore that I received an email late last week relating to the Bar Council’s “Wellbeing Survey”.   
Late last year barristers responded in record numbers to the survey, the first of its kind to assess the mental health of a whole profession in any country.  It was hoped that 300 would participate; in fact 2,500 did demonstrating perhaps how important an issue this is.  This is the report published in May 2015.
Salient results include…

  • 1 in 3 find it difficult to control/stop worrying
  • 2 in 3 feel showing signs of stress equals weakness
  • 1 in 6 feeling in low spirits most of the time
  • 59% demonstrate unhealthy levels of perfectionism
  • Psychological wellbeing within the profession is rarely spoken about 

The Bar Council wants to do something about this and has a working group (including representatives of the Inns, Circuits and SBAs) that aims (i) to improve barristers’ wellbeing and resilience; (ii) to improve chambers’ management practices and understanding of Wellbeing and mental health; and (iii) to improve support available to those in crisis.
The working group is anxious to identify what assistance might be of most benefit to the profession, and to put together the most useful material and resources it can.  It wants to hear from you about, for example, about stress, anxiety, mental health which has had an impact on your professional life, how those issues were handled and whether they could have been better managed with access to resources from the Bar Council or from within chambers.  If so, what resources would be of particular value (e.g. a confidential helpline, online advice and resources, a formal confidential reporting structure within chambers, etc).
Please email Sam Mercer [email protected]at the Bar Council with examples or ideas.  Feel free to entirely anonymise the account, so no individual or organisation is identified in it.  All details will be kept entirely confidential and no response will be disclosed without the consent of the author.
“What does the Bar Council do for me?”   
Until three years ago I was not really sure what the answer to this question might be.  Now I know that the answer is “an extraordinary amount that I used to take entirely for granted”.  Each year we have to pay one element (the Practicing Certificate Fee – PCF) and we have the option to pay the other (the Bar Representation Fee – BRF).   This is because section 51 of the Legal Services Act 2007 limits – who knows why – how funds raised from the PCF may be used.
The Bar Representation Fee is only £100 – less than one cup of coffee a week.  You will all remember that the way the PCF is now calculated has been significantly altered this year to benefit those on lower earnings.  This means that the Bar Council needs the income from the BRF all the more.  The BRF may be used to reduce the tax paid on net income.  Please, if you possibly can, all pay the BRF when you renew next year…

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