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Monday Message 16.06.16

Chairman’s Update: 
Mark Fenhalls QC


EU Referendum
Sunday morning brings the inevitable clear up as one starts to try and work through the backlog of emails, work deadlines, family dramas, piles of laundry and envelopes and leaflets pushed through the letterbox during the week.  Amongst the flyers for takeaways and handyman services was a leaflet from the “exit campaign”.  Rather than shove straight it in the re-cycling I actually spent a few minutes looking at it this morning while the kettle was boiling.  I am not sure that I can manage a calm or balanced reaction to the partial, misleading and meretricious nonsense in the leaflet.  At the same time, those politicians who want to remain have hardly covered themselves in glory.

So instead I am going to direct your attention to the Bar Council publication on the debate that came out last week.  Drafted by some notable experts in EU law it is a fascinating read.  Put aside your newspapers while sitting in court too far down the list today, or on the train or tube later and take a look. 

In the words of the Chairman of the Bar, Chantal-Aimée Doerries QC:

There is a lot of political wrangling over the referendum on EU membership. This report, however, provides a neutral legal and constitutional analysis of the various options, whether that be Brexit, or whether we remain in the EU under the New Settlement. The law underpins so much in the UK, including finance, business, employment, as well as, our rights and justice, that the impact of the referendum on all these aspects of our economy, irrespective of the outcome, carries huge importance.”  

The Bar Council paper covers three major aspects of reforming the UK’s relationship with the EU, or withdrawing.  

All three papers are a tour de force.  For those who wish to skip to the practical crime related issues, you can start at page 10 in paper III.  I don’t know what your experience is like, but I cannot think of a single criminal case in which I have been involved with a European angle where it would help for us to have to start again with new bilateral arrangements with individual countries or the EU.

The Bar Council is hosting a debate on the EU Referendum tonight at Lincoln’s Inn with the following cast of speakers:
Dominic Grieve QC MP, Joanna Cherry QC MP, Lord Howard of Lympne CH PC QC, Martin Howe QC. 

If you want to come register HERE.

And while we are on the subject, please take a moment to read this impressive piece by your very own Vice Chair, Francis FitzGibbon QC that was published in the London Review of Books on Friday. 
I hope he will forgive me for quoting a little from the conclusion about the possible consequences of a vote to leave:

It isn’t hard to see the entire process stretching out for years, accompanied by litigation at every step. If the substance of most of our EU-derived laws and regulations stays in place, will Brexit have been worth it for the sake of what is jettisoned?”

I am trying really hard not to foist my views on anyone. But I hope however I will be forgiven this one pragmatic observation.  My experience of overstretched, under resourced and sometimes misunderstood professionals doing their best to hold a system together with duct tape and papier mache does not just relate to lawyers doing publicly funded work.  It extends to many civil servants.  I fear that a vote to leave will above else mean paralysis in government for many, many years as resources are diverted away trying to untangle and rework our laws.

Joint enterprise
Last week, a kindly recorder sent me this helpful note by Professor David Ormerod on secondary liability post Jogee.  I commend it to you. It is extremely useful. 

Better Case Management
On Tuesday I will be attending the regular National Implementation Team meeting.  Rest assured the vexed subject of listing and court capacity remains right at the top of the agenda.  Please keep sending in the examples or blogs.
Last week the CLSA published a statement and a protocol addressing non-compliance by the Crown with the CPRs and advice at PTPH. 
The CLSA position is entirely consistent with the Monday Message that we published on 25th April.  You may find it helpful to glance again at that message and indeed save it somewhere on a phone or tablet so you have it to hand.
You can find the most recent BCM Newsletter (8) HERE. All these letters contain a host of information about the system.
Future Duty Contracts
The MoJ remains in discussion with the professions about the prospective duty contracts for solicitors.  I look forward to publication of the proposals in due course, but sincerely hope that they provide our sister profession with some much needed stability and the resources to make sure that high quality advice is available to all those who need it at the police station.  After all we all know that considered advice provided by experienced professionals at the police station ought to be properly paid and at the heart of an efficient CJS.

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