Monday Message – 14.11.22
Yesterday was Armistice Day or Remembrance Sunday.
It marks the signing of the Armistice by Germany and the Entente, at the 11th hour of the 11th day of the 11th month of 1918, ahead of the signing of the Treaty of Versailles. It was the end of the First World War.
It became known as Remembrance Sunday or similar across the Commonwealth as we united to track the years of conflict and terrorism since the onset of World War 1, and we remember the Armed Forces and their families and the emergency services and those who lost their lives.
The Inns maintain close ties with the military and previous and current Under- Treasurers are former officers of the armed forces. The Inns of Court Regiment can trace its roots back to 1584 when lawyers from the Inns of Court formed Associations to defend the country against the threat of Spanish Invasion.
Yesterday, we paused in silence for two minutes to remember the dead and their sacrifices, expressed by the Foreign Secretary as for freedom and democracy.
And CBA members work every day applying these hard-won freedoms in prosecuting and defending in fair trials.
Justice is a pillar of a liberal democracy. It is built on a foundation of war and sacrifice. It cannot be allowed to crumble.
Working Conditions and Attrition of barristers
We are familiar with our courts providing a tangible metaphor of the collapsed criminal justice system. We sigh at the blocked sinks, leaking roofs and stained floors. We raise our eyes at the “out of order” signs habitually plastered over the lavatory doors and resist the temptation to put the sign on the door of the court building.
But, as well as a dismal projection of our sorry criminal justice system, these are our working conditions. They also are the conditions that members of the public are expected to serve in as juries and our Judges are expected to deliver justice within.
They are unacceptable and discourage barristers and Judges from applying for appointments or continuing practice in the Crown Courts.
Upwards of a 15% increase in fees now is being paid to barristers and the expedition of long-term reform is taking place, achieved by our unprecedented action.
But there no longer are enough barristers to prosecute and defend in all the cases waiting to be heard.
The Lord Chief Justice gave powerful evidence to the Justice Select Committee chaired by Sir Bob Neill MP, on 8th November 2022 where he described the:
“phenomenon of cases having to be stood out at the last minute or adjourned on the day of trial because one or other side simply does not have a lawyer to prosecute or defend. The problem, as it seems to me, with a legal community that has been subject to attrition over many years, is that it is not possible simply to flick a switch and magic up hundreds or thousands of criminal lawyers, and so that is a problem which I fear may be with us for some time.”
Immediate Remedy to Lack of Barristers
An immediate solution is the increase of prosecution fees to the level of defence fees to achieve parity. Payment to defence and prosecution has a history of weighing disproportionately in one or the other scales of the scales of justice. It is time that they balanced.
I am in regular communication with the DPP on behalf of our prosecution members. The CBA voted for its deal in relation to AGFS fees in a small economic window of opportunity. The CBA continues to support the DPP’s representations for the same increase in fees.
Max Hill KC gave evidence to the Justice Select Committee on 1st November 2022.
The Backlog and Listing
There are different figures from the HMCTS and the CPS as to the number of cases in the backlog. The Lord Chief Justice cleared this up by explaining that HMCTS counts the number of cases whereas the CPS counts number of defendants.
And so, the backlog number of cases is an unaudited 63,000 according to the HMCTS and also 74,587 defendants awaiting trial according to the evidence of the DPP to the same select committee on 01 November 2022.
Of course, policy makers should consider the higher figure as this reflects the number of barristers required to defend.
Reduction of Backlog
According to the Lord Chief Justice:
“the broad picture remains that as compared with pre- COVID, so March 2020, we have about 50 percent more cases outstanding in the Crown Court. Now, that doesn’t paint the complete picture because the number of complex cases that are likely to end up as being trials has increased disproportionately within that number. So, it seems to me at least, that it means that the best efforts of everybody involved in the system are likely to result in only gentle reductions over time, and that in many ways is disappointing.”
Whilst the Lord Chief Justice also highlighted the need to consider the individual who would be concerned as to when their trial will take place, it also should be emphasised that cases after all are people, often with trauma, disabilities, addictions, vulnerabilities, and mental illnesses. They are not amenable to processing.
Indeed, criminal justice is not premised on processing cases. Case numbers do not reduce people to a ticket number in a fast-food restaurant.
And criminal barristers should not be expected to work all night for trials which have no chance of starting. Last week we had a meeting with the Chair of the Institute of Barristers’ Clerks who had convened a meeting of South Eastern Circuit clerks. One repeated complaint is late final list publication meaning that barristers have no choice but to work late at night. A further recurring theme is lack of communication with list officers rather than with Administration staff. Some protocols are emerging from our courts, such as Snaresbrook, which are assisting reducing the email traffic to courts and so spotlight the urgent communications.
Our members also are communicating that they are preparing for trials that are being listed unrealistically and so not going ahead. Cases also are being reported as being fished out of their dormant state with little notice to barristers and all involved to prepare.
In order to better collate details, we have set up a dedicated email where you are able to set out your issues with court management and listings and we will compile the facts to be forwarded to the Senior Presiding Judge. Barristers will be anonymised unless there is a request to the contrary.
It is important that we receive information from across the Circuits.
Barristers are not expected to stand in front of the back log of cases as the valve is opened. The CBA is working alongside the Judiciary, predominantly through the Crown Court Improvement Group, and the Ministry of Justice and with Heads of Chambers and Clerks. There are regular and ongoing conversations and meetings. And the CBA well-being Committee recently met to revisit its protocol.
Your well-being is at the forefront of our concerns. According to the Lord Chief Justice’s evidence, the actual volume of cases coming into the Crown Court is between 10-15% lower than it was in 2019-2020, pre-Covid. It likely does not feel like this to practitioners, presumably because there are fewer barristers.
The Lord Chancellor has responded to my request for a meeting positively and it is in the process of being arranged.
Many barristers now are receiving 15% uplift in their cases post the laying of the S.I on 31st October 2022.
Guidance now has been published by the Legal Aid Agency as a result of some issues communicated to us by members. It is the Fees Uplift Scenarios Guidance. In short, if you AGFS 11/Accelerated measures trial started before the 31st of October and finishes after the 31st of October, you are entitled to the uplift.
The Ministry of Justice indicates that the second Statutory Instrument, as referred to in will be laid by 30th November. Their projection is that an additional £12 million will have been paid on AGFS and LGFS by December 2022. It is an unofficial figure to underline that the money is being paid.
The first submission to the CLAAB by the CBA and Bar Council on special preparation, wasted preparation and written work, in accordance with the deal, has been made. The Committee of the CLAAB comprised members of the CBA’s Renumeration Committee, Bar’s Renumeration Committee, and the Young Bar.
The CLAAB is still in the foothills of composition after its first meeting on 28th October 2022 and the CBA has forwarded suggestions of Chair to the MoJ. Minutes and documents will be circulated.
Please do not wait until your situation feels desperate.
I thank all those barristers who are working on the long-term reform. The unsung heroes and heroines are the KCs and juniors who are working day and night and weekends on the implementation of the deal.
And special thanks to CBA’s engines, Aaron Dolan and James Rossiter.
It is the time for elections, including for those at the most Junior Bar. It is an important and interesting time. And we need our talented barristers to continue to work for the future of the Criminal Bar. The CBA must remain at the heart of the CLAAB.
Nominations to Election to the CBA Exec. Please do stand and represent your colleagues.
CBA Assistant Secretary. We have two excellent candidates standing.
Closing date: Friday 18th November at 1600 hours
Nominations and voting closes on 18th November at 1600 hours. Please vote.
The Bar Council’s Annual Bar and Young Bar Conference.
Wednesday 23rd November – Saturday 26th November. Online and in-person.
The Bar Council’s Annual Bar and Young Bar Conference starts next Wednesday 23rd November. Listen to over 40 expert speakers, develop your professional learning, and network with colleagues from across the profession. The keynote speaker has just been announced as former prisoner and successful broadcaster, . Barristers working in criminal practice in the 1990s would have had their work shaped by the Court of Appeal case of ‘Johnson, Davis and Rowe’.
As well as the main conference day on Saturday 26th November, there will be three days of online sessions, with some in-person sessions at the Bar Council.
Discounts on ticket prices are available for chambers professionals, pupils, and those in income bands 1 and 2, with further discounts for BRF subscribers and those booking 5 tickets or more.
This is a message about crisis, remedies, pressure, and progress. The progress has been rapid since September. The Ministry of Justice is responsive, engaged and appears committed to implementation of reform. For the first time, the CBA is working alongside the Ministry of Justice whilst keeping their feet near the fire of suspended action. None of this could be achieved without the unity and high-level professionalism that is the Criminal Bar.View more news