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Monday Message 13.02.17

Chairman’s Update: 
Francis FitzGibbon QC

The CBA’s corporate response to the AGFS Consultation is unlikely to advocate for or against the new scheme. It will reflect and distil the diverse views of CBA members. We have no intention of hiding their anxieties. I know that people will (and they should) make their personal views known in their individual responses.
This chart, prepared by Dan Oscroft, gives a comprehensive overview of the gains and losses in fees for juniors’ trials under the existing scheme and the proposed new one.
The Bar and its leadership have never conceded that greater investment in the funding of Crown Court advocacy is not needed. The MOJ have heard from past and present leaders and negotiators that we do not accept the continual erosion of our fees and of the value placed on our work. However, the principle of cost-neutrality was simply non-negotiable when the AGFS reform process started after the action taken by the criminal Bar and the Jeffrey Report, which highlighted the failure of the legal aid market. It was a question either of the Bar helping to design a better scheme on that basis, or having no involvement in whatever MOJ wanted to do. The correct and responsible thing was for the Bar to be involved, while at the same time missing no opportunity to make the case for better funding.
In an age of actual public sector cuts in areas that the public cares far more about, such as social care or schools, it would be hard to argue that having got cost neutrality was a negligible achievement.
My own view is that the new scheme is more rational than the old one: critically, it starts with the principle of payment for work that is done, and it aims to restore career progression through fee progression. As such, it gives us a better platform for making the case that advocacy is underfunded. The consultation gives all of us the opportunity to argue for a better settlement on a principled basis. It will be more difficult now for anyone to misrepresent the rates as unfair enrichment. The public can see that £300 per day gross is not a fair reflection of difficult trial work. Pimlico Plumbers charge £160 per hour – no disrespect to plumbers. It seems to me that the case for index-linking, at least, is unanswerable. 
On the whole, however, I give the new scheme a cautious welcome. It is not perfect and does not answer the underlying problem of historic cuts and underfunding. I don’t think that MOJ have stopped listening, and I’m reasonably confident that they will respond cooperatively to suggestions for rational improvements. The areas that need further thought include the point at which the cracked trial fee kicks in, the grading of some sex offences and S20 offences, and the fee for elected cases that do not proceed.
The next CBA executive committee meeting is in Manchester on 22 February (with thanks to Lincoln House Chambers for offering to host), which I’m sure practitioners will want to attend to continue the discussion.
As for LGFS: MOJ propose to limit PPE to 6,000 pages, with special preparation for cases with larger page counts, (about 2% of all cases), to bring the spending back to 2013-2014 levels. The new consultation shows that spending on PPE in 2015-16 for cases with 6000-9,999 pages went up by 41% and in cases with 10,000+ pages, by a staggering 158%, in one year. That sort of unplanned increase would create problems for any organisation, while cutting it back will cause pain to those who have benefitted from it. I hope both sides can find a reasonable compromise. (MOJ also want to limit payments to advocates appointed by the Court under Section 38 of the Youth Justice and Criminal Evidence Act 1999 to legal aid rates.)
It’s not for the CBA to offer unsolicited advice about the LGFS scheme, but it’s a shame that this consultation does not take a more strategic view and does not apply the AGFS principle of rewarding work that is done to LGFS – it would surely serve the public interest better to redistribute the money so that solicitors have improved rates of pay for attending police stations and Magistrates Courts, not least to enhance the ‘early engagement’ that is the order of the day. The lottery of big PPE payments is unsatisfactory, and draws money away from where it is more urgently needed in the system.

AGFS Panel Discussions:
The Young Bar Committee AGFS Panel Discussion
This evening (13th February at 18.30) the Young Bar Committee is hosting a discussion at the Bar Council on the AGFS reform.
Speakers include:
Duncan McCombe (Chair of the YBC)
Daniel Oscroft (Junior involved in putting together the original Bar Council proposed scheme)
Daniel Sternberg (former Chair of the YBC)
Stephen Knight (member of the CBA executive)
Further information and registration details are available here

THE CBA AGFA Panel Discussion
Wednesday 15th February at 18.00.
Lecture Theatre, BPP College of Law, Red Lion Street
Speakers include:
Francis FitzGibbon QC (Chair)
Mark Fenhalls QC
Daniel Oscroft
Jaime Hamilton 
Please confirm your attendance with the CBA administrator. 
Court Reform
The ‘Transforming Justice’ programme moves forward: the government has published its response to the September 2015 consultation paper (see MM for 19 September 2016). The headline decision is to test the use of on-line guilty pleas, with automatic penalties, in a small number of summary-only offences: it is said that ‘this will streamline the process for certain, straightforward cases, freeing up magistrates’ time to focus on higher priority areas’. The offences are railway and tram fare evasion (the strict liability offences, not those requiring proof of dishonesty), and fishing without a licence. The system will be opt-in, with the alternative of a Court hearing if it is desired. Small steps, probably heralding much greater use of automated Court procedures in future.
Cross-examination in Sex Offences
The Sexual Offences (Amendment) Bill, introduced in Parliament last week, would amend Section 41 of the Youth Justice & Criminal Evidence Act 1998 as follows:
A Court may require that the cross-examination of a complainant shall not involve any matter appertaining to their appearance, behaviour or their sexual history with any unrelated third parties regardless of the nature of the complainant’s alleged behaviour either before or subsequent to the current proceedings nor should such matters be admissible as evidence if the purpose is to undermine the credibility of the complainant unless it would be manifestly unjust to treat them as inadmissible.
The drafting is not crystal clear: what do ‘appearance’ and ‘behaviour’ mean? Any aspect thereof to be off-limits?  ‘Unrelated’ to who or what? Does ‘current proceedings’ mean the prosecution rather than the defendant’s alleged conduct? What does ‘manifestly’ add to ‘unjust’? How much latent injustice is tolerable? But the purpose is clear enough – to prevent the sort of evidence being given that led to the acquittal of Ched Evans after his second appeal. Hallett LJ said ‘it may well be a rare case in which it will be appropriate to indulge in this kind of forensic examination of sexual behaviour with others. In our judgement this is potentially such a rare case’.
The promoters of the Bill nevertheless maintain that Section 41 and the case law have left a loophole: the purpose of the statute was not to adduce evidence about a complainant’s sexual relations with other people, only what had gone on between the defendant and the complainant.
Valedictory for His Honour Judge Hone 
HHJ Hone is one of seven Old Bailey judges who are retiring this year. The ceremony will take place in Court 1 on 15 February at 10am. 

Executive Committee Election Results:
Congratulations to Abigail Bright and Sebastian Gardiner on their successful election to the Committee. 

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