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Monday Message 18.03.24

Dear colleagues and friends,

CBA Action Plan

RASSO Counsel are in a vicious cycle of insufficient numbers and listing that creates unpaid wasted preparation and increased workloads.  The current solution seems to be instructing silks at double the cost to take the case away from the Junior Bar or to adjourn cases into the ever increasing backlog.

In consultation with the CBA RASSO Group we would like to break the cycle and have an action plan:

  1. All RASSO cases are serious and should be treated with the respect they deserve, they should be given a trial fixture with specialist RASSO Counsels’ availability in mind at PTPH.  Counsel will have invested a considerable amount of time and effort as the instructed advocate and case ownership should be promoted;
  1. If at PTPH a RASSO trial is not listed when Counsel is available the case should be returned immediately to the instructing solicitor.  In those circumstances RASSO Counsel and Barristers’ Chambers should not be pressurized into keeping cases that cannot be managed and risk Counsel being in conflict with the Bar Code of Conduct;
  1. RASSO Counsel should not be expected, unless they wish to, to undertake back-to-back RASSO cases.  Chambers should ensure RASSO Counsel have access to a mixed practice to include Grade 3 and Grade 4 level work in other areas;
  1. All RASSO Counsel are entitled to courtesy and respect both by those that instruct them and those they appear before.  A change in culture is needed so that RASSO Counsel are supported and their work valued;
  1. We will continue to make the case for increasing RASSO fees in line with other offences such as Fraud.

We are already working on this action plan:

  1. The SPJ’s initiative is the first step towards fixtures for RASSO cases being the norm.  We expect RASSO cases to be given fixtures and not listed as “warned”, “backers” or “floaters”.  This perpetuates a system where the workload is doubled or tripled as different Counsel are instructed, is unpaid, undermines case ownership and discourages barristers from undertaking this type of work.
  1. We include here guidance for RASSO (and other Counsel) with respect to being over-booked.  We do this in order to support RASSO Counsel who by nature and necessity accept additional work, become overloaded and now, in a recent example, are being threatened with Wasted Costs and being reported to the BSB.  Returning RASSO cases or not taking them on in the first place rather than hoping to become free conforms with our Code of Conduct duties.


Guidance for Barristers facing prospect of a referral to the BSB due to non-attendance at court due to non-availability

Guidance for Barristers facing prospect of a wasted costs order due to non-attendance at court due to non-availability

  1. The CBA have met with the IBC and they have indicated they will be pro-active in briefing RASSO Counsel with alternative work.  We have raised the issue of work allocation with the CPS and will be meeting them again to put this into action.  RASSO Counsel should not be pigeon-holed and expected to only conduct RASSO work because of the national shortage.
  1. We would be grateful if poor conduct by those instructing or those in court could be reported to us at [email protected].  We have raised this with the Circuit Leaders and the SPJ and are gathering examples of additional work expectations by the CPS to raise with the DPP and the AG.
  1. The CBA attended meetings last week with the Lord Chancellor, the MoJ and the IBC and attended the emergency CLAARB meeting where the Crime Lower Consultation was discussed including fees for the Youth Court.  The CBA hopes to meet with Solicitors’ representatives in the near future to take forward the YCBA’s work regarding Youth Court fees.

There is evidence that the lack of availability of RASSO Counsel is also acute in the Youth Court given the lower rates of fees and status.We will request a review of whether whether the Good Practice Guidance on Certificates for Assigned Advocate is being followed.(link to Good Practice Guidance).

Ultimately where government policy, rightly, aims to improve attitudes and conditions for citizens coming into contact with our courts, in RASSO cases or in the Youth Court, policy requires investment in the barristers on the front-line.

SPJ initiative

The initiative involves some 180 cases, approximately 140 of which are already in the court lists before July.  Regarding those cases the initiative involves ensuring that these listings are effective trials and courts have been asked to communicate with counsel to seek to achieve that.  The Senior Presiding Judge has made it clear that dates for RASSO cases are to be fixed with counsels’ availability in mind and that the courts should cooperate with the Bar to ensure trials are effective.

A smaller number of cases are listed between 31st July 2024 and the end of the year, these will not be moved if the current date is one which means that the trial will be effective.

A smaller number again of cases are either listed after the end of 2024 or not presently listed at all.  These will receive special attention to bring them forward and ensure they are listed, in conjunction with counsel.  The availability of counsel will be taken into account in fixing dates.

It is proposed to encourage communication by meetings imminently between Presiding Judges, Circuit Leaders, Court Listing Officers, Resident Judges and RASSO Counsel and their clerks in each area to discuss how these cases are to be prioritized.

The affected cases will be identified at these meetings and will be given fixtures taking into account counsels’ availability.  Counsel should therefore provide dates to avoid prior to the PTPH (uploaded to DCS), give priority to these cases and ensure the trial is ready.  If Counsel is not available the case should be returned immediately.  Any disclosure or other issues which might threaten the trial date should be resolved or brought to the attention of the court.

Sentencing Council: Response to Miscellaneous Amendments published on 18th March 2024:

On 18th March 2024, the Sentencing Council will publish changes to a number of sentencing guidelines following their miscellaneous amendments consultation.

The changes, which will come into effect on 1st April 2024, include:

  • amendments and additions to mitigating factors and their associated expanded explanations across sentencing guidelines. These include replacing the existing reference to pregnancy in the ‘Sole or primary carer’ factor with a dedicated factor for pregnancy, childbirth and post-natal care.
  • changes to the manslaughter guidelines relating to strangulation and coercive control, in in response to recommendations in the Domestic Homicide Sentencing Review
  • amendments to the Fraud guideline to give more recognition to the impact on victims even where there is no or very little financial loss
  • amendments to the guideline for sentencing individuals for fly-tipping and other environmental offences to give greater emphasis to community orders over fines

“Art not evidence” survey

Please see this link to a survey from Art not Evidence.
The results of the survey will help inform research being conducted and asks about the use of rap and drill music in criminal proceedings (takes 2 mins to complete).

Continue to be excellent as always!

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