Monday Message – 15.05.23
It was this week in 1954 that the Supreme Court of the United States handed down the landmark judgment of Brown v. Board of Education of Topeka, which decided that racial segregation of children in public schools deprived them “of the equal protection of the laws guaranteed by the 14th Amendment.”
It held that that “separate-but-equal” education and other services were, in fact “inherently unequal”.
The judgment was a constitutional knock- out blow to the “Jim Crow” laws.
Thurgood Marshall was the lead attorney for the plaintiffs.
Thirteen years later he became the first Black Supreme Court justice.
Human rights themselves are conceived in a theory of legitimate government. Whilst operating within a liberal theory of justice, it is easy to forget that establishment of fundamental rights still shines with the newness of recent history.
And so to our own backyard….
Equality and Diversity
The Bar Standards Board provides diversity data for the Bar.
There is some positive news in ethnic diversity, whilst there also is solid evidence of an aging profession. The strongest data relates to the whole Bar. It is only part of the picture.
Retention must march forward with progression and this requires a cold, hard look at earnings and work distribution.
The overall Bar data also reflects why the CBA’s E and D sub-committee is focusing upon removal of barriers for black barristers.
Here is a snapshot reminder of the 2022 data across the whole Bar, gathered in relation to barristers from ethnic minority backgrounds and those with disabilities, taken from its last Executive Summary:
- The percentage of barristers from minority ethnic backgrounds has increased to 16.3 per cent since December 2021. This compares to an average of 16.4 percent of the working age population. Positively, the percentage of barristers from ethnic minority backgrounds has increased year on year.
- There is a greater proportion of Asian/Asian British practitioners at the Bar compared to the proportion of Asian/Asian British individuals in the UK working age population (7.9% vs 7.0%), and the same can be said for those from Mixed/Multiple ethnic backgrounds (3.8% vs 1.9%).
- By contrast, there is a slightly smaller proportion of those from Black/Black British backgrounds (3.4% vs 3.8%), and a greater relative underrepresentation for those from other ethnic groups (1.2% vs 3.6%).
- There is also a disparity in the proportion of all non-KCs from Black/Black British backgrounds compared to the proportion of all KCs from the same background, with there being fewer Black/Black British KCs than would be expected, given the number of Black/Black British barristers at the Bar overall.
- The disparity is particularly high for those of Black/Black British – African ethnic backgrounds.
- As of December 2022, there was a 3.8pp increase in the proportion of pupils with a declared disability compared to December 2021 (from 8.7% to 12.5%).
- There still appears to be an underrepresentation of disabled practitioners at the Bar. Although there is a relatively low response rate of 62.7 per cent, 7.3 percent of those who provided information on disability status disclosed a disability, representing a 0.5pp increase on 2021.
- Despite the increase, this is substantially lower than an estimate of 15.8 percent for the percentage of the employed working age UK population with a declared disability as defined by the Equality Act 2010.
- Those aged between 25 and 54 makeup around 75.4 percent of the Bar.
- This is a decrease compared to December 2021 of around 1.4 percentage points (76.8% vs 75.4%), with relatively more of the Bar in the 55-64 and 65+ age range in 2022 (23.4% of the Bar is aged 55+).
- This continues a general trend seen in the age profile of the Bar and compares to a figure for the proportion of the Bar aged 55+ of 14.8 per cent in the first Diversity at the Bar Report in 2015.
Please also remember to complete the Bar Council Working Lives survey.
The results are anonymous and will help shape future policies, events and initiatives to support barristers at work.
Another Statutory Instrument was laid today. It is to correct an error in the original S.I. drafting. The MOJ contacted me last week, but I was not able to communicate with members ahead of the laying of the S.I.
There will be no prejudice to the Criminal Bar, although the MoJ’s explanation is expressed in its usual caveated way; presumably to take into account errors by the LAA (!) Don’t hesitate to contact with any queries, and we are seeing each other on the National Zoom on 6th June.
This is the explanation from the MOJ:
“The intention was that the March Regulations that introduced the additional preparation fee were made under powers conferred on the Lord Chancellor (as stated in the Explanatory Memorandum for that instrument). However, that instrument erroneously stated that they were made by the Secretary of State. The new instrument therefore revokes the March Regulations and remakes them with the same substantive content, correcting the error. The new instrument makes technical amendments to clarify the individual who exercised the power, and it is not anticipated that it will have a material impact for providers.”
Crown Court Backlog
It examined delays in the Crown Courts through the eyes of complainants.
A criminal justice system which works in years between complaint and trial conclusion is one that is failing.
The latest HMCTS data in March 2023 shows open cases to be 60976, which is a meagre reduction of 152 from the previous month.
Barristers in the courts are shown to be working efficiently, with the number of Crown Court disposals increasing to a year high of 9626, while monthly receipts also rose to a year high of 9230.
There remain around 15-25% of court rooms unused on a daily basis.
Those who practise in the Privy Council will recall judgments looking aghast at six years’ delays in the local courts. I am familiar with such delays forming allegations of impunity.
Lady Justice must be hanging her head over the criminal justice system of England and Wales; a sad testament to over a decade of underfunding.
Last week, a statutory instrument was laid, amending section 50 of the Tribunals, Courts and Enforcement Act 2007, extending the judicial appointments for which CILEX lawyers have been able to apply since the bench was first opened up to them in 2007.
To date, chartered legal executives have been appointed district and deputy district judges, and chairs of tribunals such as the employment tribunal, medical practitioners tribunal and police misconduct tribunal. Now they are eligible to sit in the Crown Court.
All commentary from the Government, the Bar Council and CILEX clamoured to congratulate the expansion, as one that will enable the recruitment of more diverse judges.
The last policy change to tackle backlogs was to increase the sentencing powers of magistrates. This was quietly reversed within a year.
Constitutional changes without consultation or Parliamentary debate, inevitably arrive untested and without scrutiny.
Of course, Judges should be appointed on merit and quality needs to be high.
When pressed by the Justice Select Committee on 15th November 2022 as to why the there was a failure to fill the required judicial vacancies last year, the Lord Chief Justice, Lord Burnett of Maldon said:
“The numbers applying are not sufficient and the reality is if those applying were able to demonstrate through the independent process that they have the necessary skills, they would be appointed. So, that is the reality.”
Quality and experience of those sitting in judgement in our Crown Courts must remain a key component of judicial recruitment. Flinging open the doors to others previously unqualified to apply to be Crown Court Judges should not be a substitute for properly funding the Criminal Bar and Solicitors from whom recorders and then full-time Judges previously had successfully been recruited.
Undoubtedly, there are many superb chartered Legal Executives, but stroke of the pen changes to the criminal justice system risk it becoming a social experiment with the need to maintain its excellence retreating behind the importance of data.
Single Justice Procedure
The CBA continues to keep tabs on this process as part of its policy reform remit.
The latest SJP figures evidence that the SJP continues to dim the light of access to process, with 68% of defendants convicted in their absence and in the absence of their entering a plea.
It is hoped that the Justice Select Committee will devote a session to the SJP; and the wrongful convictions which undoubtedly flow.
Monday 22nd May 6pm – zoom
HHJ Kinch KC, resident Judge of Woolwich Crown Court, and the Senior Presiding Judge, Lord Justice Edis kindly have agreed to speak to members about the current and future workings of our Crown Courts.
The format will be a short talk by HHJ Kinch KC and by Edis LJ and then a Q and A session, using questions collated in advance (if time there will also be questions from members arising from the talks).
Please send questions you have on listing, better case management, common platform, digital case system, PECS and experiences in courts by replying to this email and direct to Aaron.
International Sub-Committee Event
“International Law and the Criminal Bar”
Wednesday 31st May 6pm at Doughty Street Chambers
There will be a panel and then drinks/networking. It is an opportunity for those interested in international law work to come and hear about different opportunities and see different pathways that work well alongside a criminal law practice.
I will see you there!
9th and 10th June 2023 at The Midland Hotel, Manchester
There are still a small number of tickets available.
The Conference will be an excellent opportunity to learn from the best, in the company of our wonderful CBA, including keynote address by Dame Amanda Yip and a talk on “sentencing” by the Common Serjeant, HHJ Richard Marks KC.
CBA on tour
I am delighted, trial permitting, to be heading to Bristol on 1st June 2023.
More details to follow.
The latest Criminal Justice Matters podcast is set to be launched tomorrow.
In this episode I talk to young junior barristers, CBA YBC Chair Zayd Ahmed and Jennifer Devans-Tamakloe about their careers as criminal law barristers, from securing a pupillage in chambers to their professional paths, as they deal with the day-to-day challenges in the courts.
The junior barristers address the issues of diversity that intersect gender, social and heritage backgrounds, as part of the fulfilment and impact a criminal barrister has on people’s lives.
It’s about why being a junior barrister in criminal justice, matters.
We are working on medium and long-term reform of legal aid and continue to drive forward change and remedy on your behalf.
As this point in history, we continue to lift the criminal justice out of crisis. We are playing our part – for the complainants, defendants and witnesses; for the public.
We now look to the third Secretary of State for Justice, in my last eight months serving the CBA as Chair, to commit in finance and action to criminal barristers and so to a sustained publicly funded justice system. Such actioned commitment would burn bright into the future.
Keep well all and keep in contact.
Thank you as ever for your support and work for the CBA.View more news