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Monday Message 19.09.16

Chairman’s Update: 
Francis FitzGibbon QC


Transforming Justice

The Lord Chancellor, the Lord Chief Justice and the President of Tribunals have launched a massive programme of change for all the Courts and Tribunals, called Transforming Our Justice System. Crime has already taken the lead, with DCS and BCM, but there’s more to come: the headline points for us are: 

  • Pre-recording of vulnerable witness evidence to be adopted nationally after successful pilot scheme (Section 28 Youth Justice & Criminal Evidence Act 1999). (Vulnerable witness training to be given to the Criminal Bar, starting later this year. The MM will give regular updates on this.)
  • Automated online pleas and penalties for some non-imprisonable offences (the C21 version of pleading guilty by post, but without the need for a human to determine the penalty).
  • Online and telephone communication as standard for non-contentious preliminary hearings.
  • Simplification of the relationship between the Crown and the Magistrates Courts, to make it easier to move cases up and down.
  • Terms and conditions for Recorders and other fee-paid judges to be reviewed – fixed and not automatically renewable terms, no travel expenses…

You should read the paper in full, to see what’s coming down the track. In essence it turns Leveson LJ’s review of efficiency into policy. The CBA is of course represented on the Ministry’s ‘engagement group’ of practitioners, which has input into the development of the crime-specific policies. I welcome members’ comments, to feed into the process.

Quality in Advocacy
The MOJ has yet to give its response to the responses it received to the consultation paperit issued on 1 October 2015. You will remember the core proposals: 

  • The introduction of a defence panel scheme;
  • Identification and  prevention of disguised referral fees;
  • Stronger measures to ensure client choice and prevent conflicts of interest.

These proposals go hand in hand with the reform of the outdated and unfair AGFS payment system (see next section). Together, they would give a solid basis for criminal advocacy to work properly, in the public interest, and remedy what the authorities recognise as the present two-tier system in which those on legal aid risk a worse service than those who can pay for their representation. The reforms as a whole will bring professional standards and conditions in line with the existing reforms in BCM and DSC, and are needed to make the ‘Transforming Justice’ plans work successfully.
The Criminal Bar has shown great patience while waiting for action on these urgently needed reforms. A policy that has been developed with thought and full planning is preferable to one made in haste, but our patience is not unlimited and the urgency has not diminished.
In the meantime, economic pressures continue to put a huge and unnecessary strain on younger barristers in particular. The talent pool of future leaders and judges is shrinking – something that our successors in 20 years time will look back on in amazement, that this was allowed to happen.
And bad practices continue. Criminal defence work is still beset (at the margins) by corrupt practice and more centrally by unhappy business models that are shaped by the skewed system of payments that do not serve the public well enough. I receive many reports from across the country of incompetent solicitor advocates, or barristers employed by solicitors, being thrust into court work for which they are not prepared and which they do badly, either as juniors or on their own. In some cases, they are required to train the next wave of recruits without enough experience or resources, and they pass on their own bad habits. This behaviour is neither in the clients’ interests or the public interest.  Bad firms claim an advocacy fee and a litigator fee, with precious little to show for either; people still buy and sell cases – ie clients – without regard to what’s in their interests. The referral fee, disguised or in its own dress, is still alive and well. I get too many reports to dismiss the problems as isolated occurrences, although thankfully it’s still a minority, if a pernicious one. The bad will drive out the good – good solicitor advocates and good barristers, and conscientious hardworking litigators. It’s in no one’s interest to let this go on.
The overtly corrupt are a tiny minority, and there are no doubt some barristers among them; the bigger problem is the business model that turns advocacy plus litigator fee into the only way the legal aid firm thinks it can make a profit. That business model does not necessarily make for bad practice, but it’s the breeding ground on which it grows.
As and when AGFS reform and defence panels come in, and rules against disguised and overt referral fees and corruption are properly enforced, this sort of thing should stop. The parallel reform of litigator fees (LGFS) should also reward work actually done – near the beginning of the process, when BCM demands early preparedness. Money should be re-allocated to Magistrates Court cases which can take much more time to prepare than they are currently paid for.
Until the reforms are a reality, this is a drum that I will continue to bang, without apology.

AFGS etc
Discussions with the MOJ/LAA continue. Nothing to report at present, but here is a warning of what happens when policy makers decide it’s not worth funding legal aid:
Former Legal Aid minister Lord McNally is reported as saying that ‘You have got to accept that bandying about access to justice, it’s really quite fraudulent’.  Let him and those of his way of thinking lose their money, and be (falsely) accused of a crime in rural Louisiana, and then see about access to justice with just one public defender.

The Legal Services Board – the regulator of regulators – have published their proposals for the legal profession.  It’s long and infected with mind-numbingly opaque management-speak, but it’s important because (in my view at least) it contains a number of startling and subversive ideas. They want to have a single super-regulator for the whole legal profession, but make a weak case for it. If that happens, it’s a body blow to the independent Bar. They appear to envisage de-regulation, de-skilling, and downgrading of the high professional standards that we all try to maintain and improve, in the interests of the mantras of consumer choice and market liberalisation. They don’t like what they call the ‘gold-plating’ of entry standards to the professions – our rightful ability to withhold the rank of barrister or solicitor from those who can’t make the grade. The CBA will not tolerate an erosion of our skills and independence, by the people who should be the guardians of our profession.
Our very own Regulator, the BSB, is holding ‘workshops’ at the venues and times below, primarily to explain the new CPD requirements but also to receive general questions about the BSB’s work (details on the links):
• London – 4 October 2016 (Bar Standards Board 289-293 High Holborn WC1V 7HZ)
• London – 5 October 2016 (Bar Standards Board 289-293 High Holborn WC1V 7HZ)
• Bristol – 10 October 2016 (Mercure Bristol Grand, Broad Street, BS1 2EL)
• Leeds – 11 October 2016 (Jurys Inn, Brewery Place, Brewery Wharf, LS10 1NE)
• Birmingham – 18 October 2016 (St Philips Chambers, 55 Temple Row B2 5LS)
• Manchester – 2 November 2016 (Jurys Inn, Great Bridgewater Street, Manchester, M1 5LE)
• Cardiff – 7 November 2016 (Novotel Cardiff Schooner Way, CF10 4RT)
• Online Webinar – 10 November, (1pm-2pm)
Wellbeing at the Bar Project
The inaugural event of the WTABP was a talk on Vicarious Trauma in lawyers by Robyn Brady and Rachel Spearing given at the Keble advocacy course and at the Inner Temple Parliament Chamber on 5 September). The CBA sponsored it in conjunction with the Family Law Bar Association and the South Eastern Circuit. It was very well received. The Wellbeing website will go live shortly, full details to be announced ASAP. Meanwhile, the Bar Council helpline (020 7611 1320) offers confidential advice to all members of the profession on any equality and diversity issues, parental leave, or bullying and harassment at work.

Archbold v Blackstone
I have been informed officially that contrary to recent rumours, Blackstone is now definitely the official reference book for the Crown Court, in place of Archbold.

Bar Conference
Early bird rate still available for barristers under 8 years call and pupils extended until 23 September.

More Sad News
This week saw the deaths of two more greatly admired and loved practitioners:
David Batcup, who was senselessly killed by a hit-and-run driver, and Jonathan Turner QC after a long illness. Their Chambers have each written memorials:
CBA Bursary
On a happier note, I am delighted to announce that the annual Criminal Bar Bursary Fund award competition (generously supported by Thomson Reuters (Sweet & Maxwell), OUP and Lexis Nexis) is now open.
Major Bursaries of up to £5,000 will be awarded to successful applicants. Other bursaries will include subscriptions to the leading practitioners’ textbooks.
The competition is open to members of the CBA who have been in independent practice for no more than 3 years from the start of pupillage. The fund is designed to assist practising barristers from financially disadvantaged backgrounds.
Please complete the application form (copies can be downloaded HERE) and return it, together with a reference from the applicant’s Head of Chambers, to the CBA Administrator, Aaron Dolan [email protected] by 3 October 2016. The application form requires details of background and means together with a reference from the Applicant’s Head of Chambers (or pupil supervisor if a reference from the Head of Chambers is unavailable).
The assessment will be primarily means-tested; poor performance in exams will therefore not be determinative but will assist the panel in assessing the applicant’s suitability.
A number of the most deserving applicants will be invited to compete in an advocacy exercise to be held in November, judged by the Chairman of the CBA. The bursary awards will be presented at the Old Bailey after the November Lecture

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