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Monday Message – 19.10.15

Chairman’s Update: 
Mark Fenhalls QC


I had been planning to report to you in a little detail about the very successful Bar Conference on Saturday – and in particular the joint CBA/ Young Bar session, but that will have to wait. 

Daniel Sternberg (Chair of the YBC) and I both spoke in introductory remarks about the sense of gloom that barristers felt about the “two tier” system and the risks to the criminal justice.  We did so knowing a little about how events had unfolded during the week.      

Last week, a “whistle blower” gave an account that was published in the Law Gazette that caused great concern amongst our professions.  What he had to say was hair raising.  Surely, we all thought, it could not be as bad was being described. 

On Thursday the MoJ started issuing “two tier” contract offers and we all waited to learn what had happened.  Through the course of the day news began to emerge.  Of course some good firms won contracts.  But through the day and since we have all learnt about high quality firms which have received nothing while others with lesser reputations have won contracts.  Surely, many of us felt, they cannot have given contracts to X and not Y?  How on earth can they have decided that X merited a contract, when we all know that Y provides a much better service to clients and the justice system?

I am not privy to the scoring system.  Nor have I seen anyone’s bid.  But I have been told a number of stories by solicitors that suggest there may be real substance in what the whistle blower said.  The Law Gazette has reported that a number of firms are considering challenges to the process.  I understand that solicitors and specialist counsel have already been instructed.

This is not some abstract academic problem.  These decisions may cause the demise of proud firms with long histories and full of talented lawyers and support staff. Some will find other work in the legal system; others will turn their backs on it. Men and women who have laboured all their professional lives to build reputations by serving the public are seeing the fruits of their labours taken from them in a capricious process that may have been compromised by mismanagement. The biggest losers of all are ordinary people who need the best available legal advice, and will struggle to get it. This will add to delay, cost and further burden the already creaking system.  We fear that the two-tier contract will, perversely, entrench the two-tier justice that the Lord Chancellor has so persuasively decried.

Future Training for the Bar
The BSB has an open consultation which closes at the end of next week.  The CBA has been contributing to the Bar Council Response, but will add its own separate contribution.  This is no place for a detailed exposition but having discussed it with many at the Bar Conference on Saturday, I would like to outline a few personal thoughts and invite your views. 
1.Debt levels of young prospective barristers at the start of their careers are extraordinarily high.  This is stopping people from choosing to practice in crime and other areas of publicly funded work. 
2.The BPTC currently costs £18,000.  To that you add the cost of living in London for a year.  We must ask ourselves whether this extra £30,000+ of debt assists anyone other than the owners of the BPTC and the landlords of the students.
3.Far too many prospective barristers are being churned through the system when the number of available pupillages, let alone tenancy prospects, are so much smaller. 
4.So what does the BPTC course actually provide by way of benefit to prospective barristers?  Is there anything in it that could not be equally well (or better) taught as part of a carefully regulated longer (2 year?) pupillage?
In every industry, people are asking questions about whether further education (sometimes at vast expense) actually helps develop the right skills to flourish?  The Bar needs to take a long hard look at whether or not there is any need for the BPTC at all.  I am beginning to think that all the necessary skills could be taught during pupillage, when our prospective talents could work, earn money and start to build their careers.  Why not, for example, have modular courses taught by properly accredited barristers in practise that fit around and within pupillage?      
I would be particularly grateful if all those who run pupillage in chambers or are still training or are only a year or three into their careers could find the time to write to me this week and tell me what you think.
Court Charge
Please find below a link to a petition asking the government to review the criminal courts charge now and not in three years.

The Criminal Courts Charge was brought into force the Criminal Courts Charge on 13 April 2015.  

The charge applies to the vast majority of cases appearing before the courts in which a person pleads or is found guilty.  The courts charge hits the poor disproportionately since it takes no account of means to pay, and magistrates¹ and judges are given no discretion: they have to impose the charge. Worse still it can put unbearable pressure on innocent people to plead guilty, because if found guilty after a trial the cost of the charge escalates over five-fold to between ï¿¡1000-1200.  Many magistrates have resigned in protest at the charge.

You may find it illuminating to read the debate last week in the House of Lords HERE.  I hope Lord Pannick will forgive me for reproducing a few of his words:

There is a much fairer and more lucrative way forward for a Lord Chancellor who wants to help balance the books by imposing a court charge. Let the Lord Chancellor give the judges and magistrates a discretion to charge much higher court fees to defendants who are convicted of serious crimes and who can afford to pay. The drug dealers, the bank robbers and the fraudsters can be charged the true cost of their occupying the courts for weeks in trials that end in convictions if the judge or magistrate in their discretion thinks that it is appropriate to do so. The regulations could then give the courts a proper discretion not to impose on the small fry charges that may well induce guilty pleas from innocent people and may well result in the imposition of orders for payment from people who cannot afford them.

Mark Fenhalls QC
The Criminal Bar Association
E: [email protected]

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