Monday Message 12.09.16
Francis FitzGibbon QC
The days are getting a bit shorter, and so are the Messages (this one, at least).
Appeals – Beware
You may well be used to getting requests directly from prisoners or their representatives to advise on appeals, often many years after they have been convicted at trials in which you did not act for them. The Jogeedecision has prompted a surge of these. In Lee  EWCA Crim 2928, McCook  EWCA Crim 734 and Achogbuo  EWCA Crim 567, the Court of Appeal has criticised newly instructed representatives for a variety of failings. In response, the Bar Council has produced this extremely useful Guidance Note.
Blackstone v Archbold
I’m sorry that there is still a lack of total clarity about whether Blackstone is to be the official reference book for the Crown Court, at a time when people are thinking about ordering the next edition of one or the other. I hope to have more to report in time for the next message.
Last summer the horrifying picture of the washed-up corpse of a 3-year-old Syrian refugee prompted Sean Jones QC to start a crowdfunding project to support Save the Children. It’s called ‘Billable Hour’ – the idea is that you give what you would charge for an hour of your professional time. It raised nearly £200,000 from an initial target of £7000. Things have got no better for children escaping horrors in Syria (and elsewhere) so Sean is having another fundraising drive. The details are HERE.
Kate Mallison & David Howker QC
This summer we lost two admired and much loved members, Kate Mallison and David Howker QC.
Kate was one of the movers behind the Bar’s wellbeing programme, and a powerful advocate especially in child abuse cases – a significant and too little acknowledged source of distress for practitioners. She was tough-minded and not afraid to speak her mind, and she was also exceptionally kind to young barristers, as I recall well from many years ago.
David died suddenly while on holiday with his family in August. He was 56, at the height of his powers as an advocate, and a warm and engaging human being. Not least among the things he did for the profession was taking on the responsibility of being a named litigant in the QASA judicial review proceedings Here is what his friend and Head of Chambers, Jonathan Laidlaw QC, has written about him:
The son of a Blackpool market porter, David came to the Bar via grammar school and Birmingham University. Called in 1982 he quickly found a tenancy in what was then Seddon Cripps’ chambers in Harcourt Buildings before joining us at Hare Court a few years later. As a junior David was one of the Standing Counsel to HMRC and much of his practice then was in tax fraud. He took silk in 2002 and quickly developed a first-class defence practice not just on the South-Eastern circuit but in Birmingham (where he was based for some years) and also in the North West. David’s modest profile on the website – he hated such things – belied his considerable ability. He was a superb jury advocate. But there was much, much more to him because his presence in any large multi-handed case brightened the whole thing up for all; for the other silks and juniors who were co-defending, for his opponents, for the judges and the court staff. His sense of calm, along with his considerable reputation and the high professional standards he demanded of all, also ensured that cases of this sort which might have descended into torrid and ill-tempered weeks or months in court progressed far more smoothly than might otherwise have been expected. David’s ability to talk to all, to really understand a jury and the twinkle in his eye together with his complete lack of pomposity and self-importance, secured countless unexpected outcomes for so many of those lucky enough to have been represented by him. Outside court, as all who knew him will remember, he was capable of reducing his friends and colleagues to tears with his mischievous sense of humour and his endless stories, all told brilliantly. Away from work David had a long-standing love of music stretching back to his Northern Soul days and of art in all its forms. Our sense of loss at Hare Court cannot, of course, compare to that of his wife Shani, their five children and his grandson. David was devoted to all of them and it is at least of some consolation that he died with those he loved so dearly all around him. We will all miss him terribly.
Lord Chancellor’s Appearance in Parliament
The Lord Chancellor appeared before the House of Commons Justice Committee on 7 September. She said that her priorities are prison reform, Court reform, and human rights law/Brexit.
Social Media & Criticism of the CPS
I’ve found a lot of informative stuff by lawyers on social media – the comments and blogs by Matthew Scott (@barristerblogger), Jaime Hamilton (@Jaimerh354), Carl Gardner (@headoflegal), David Allen Green (@JackofKent), @the mysterious @ObiterJ – to name just a few on Twitter – always have something interesting to say. In other parts of social media there are people who seem determined to create a virtual Third Reich. The CPS are concerned – understandably, you might think – that lawyers are using social media to criticise them ‘inappropriately’. I loathe the word, because in the wrong hands (and they often are) it is nothing but Pecksniffery. However, clause 26 of the CPS Advocate Panel Scheme’s Professional Conduct and Training Requirements provides that advocates should:
When instructed by CPS, to refrain from commenting on cases inappropriately, or criticising those instructing inappropriately, including through social media.
This has caused anxiety about what can be said in public, because the wording is so open-ended. The CPS have clarified what they mean by it: they have no intention of fettering free speech by barristers who want to comment publicly on CPS policy or cases in which they are not instructed. The chief concern is about a case in which the advocate is instructed, and they ask for care to be taken. Reference should be made to their document Errant Conduct and Poor Performance by External Advocates. Usual rule applies: put nothing online that you wouldn’t want to see on the front page of the Daily Mail. Whether you wish to make problems public or not, with ‘appropriate’ care, members are encouraged to bring any unresolved problems with the CPS to my attention, for example over difficulties with…
The CPS have given assurances that support staff will be made available to attend advocate’s meetings with witnesses; they also stress that their Guidance is just that – guidance, and it’s not meant to fetter our discretion on how we deal with people in individual cases. Please continue to log and report problems: if necessary consult senior colleagues, or one of the CBA officers.
The application window for joining or upgrading at Levels 2, 3 and 4 is open from Thursday 1stSeptember to Friday 30th September 2015 inclusive.
Advocates from the current 2012-16 Panel who have accepted an invitation to join the new Panel need not apply, except to upgrade their level.
Advocates from the current 2012-16 Panel who have not been invited to join the new 2016-20 Panel, but wishing to retain their Panel membership, must re-apply, otherwise their current membership will cease at the end of 2016.
Advocates who have been invited onto the 2016-20 Panel can apply to upgrade to the next level up during September 2016. However, please note that only one unsuccessful application to join at or upgrade to level 2, 3 or 4 is permitted over a three year period. If they had previously applied to join at level 2, 3 or 4, or to upgrade from their current level during the Sept 2014 or Sept 2015 application windows, but were unsuccessful, they are not eligible to apply again during this window. This does not apply to previous unsuccessful level 1 applications.
Potential applicants are highly advised to read Document 3: Application/Upgrade Process. Applications to upgrade should be submitted on Document 15: Upgrade Application Form and, where appropriate, Document 8b: Rape List Application Form. All new applicants are requested to complete Document 9: Equalities Monitoring Questionnaire.
Applications to the Specialist Panels will not be accepted during this window, although there will be opportunities to apply in 2017.