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Monday Message 21.03.16

Chairman’s Update: 
Mark Fenhalls QC


“Today I am going to prison for no fee, with a laptop I’m not allowed to take in and no papers because no-one has uploaded any”
This heartfelt message dropped into my inbox on Saturday morning.  Followed by a number of “something must be done” demands.  I need more than 140 characters to explain what we are trying to do.  I also need your help because generalised anecdote alone is a waste of time. 

As you know, the CBA supports the modernisation of our tottering criminal justice system so that it serves society’s needs properly.  Abolishing paper, early engagement, a rational system of payments, exposing and rooting out corrupt practices, getting the right people into the right cases – these are the headlines.  While backing all this to the hilt, we also know that it will be in vain unless those in charge get the small and unglamorous stuff to work too: things like access to clients in prison; getting them to Court on time; getting the papers onto the DCS in time, making the CJSM powerful enough.  I know that everyone who works in the Courts shares my frustration that the big-ticket plans overshadow the urgent need to get these things right.  It’s no good having HS2 (or frankly even the District Line) if the escalators and the ticket machines are broken.  So in this message I’m looking at some of what needs fixing, and I’m asking for your help to report chapter and verse where things are failing.  The more pressure and evidence we pile onto the powers that be, the more likely it is they will be forced into action.  Write to us and encourage your friends and colleagues to do so too.

Assuming papers have been uploaded and there is a point to taking your laptop to prison, then you need towrite to us with details of what you tried to do to get your device authorised in advance and what the prison failed to do or did wrongly.  We then tell NOMS and appropriate other parts of the MoJ.  Experience so far suggests that the NOMS leadership is sometimes frustrated with how policy is not being implemented on the ground, but they are trying.  Private prisons are a different problem but the MoJ is trying to sort this too. 

Someone told me the other day that prison staff numbers are down 29% in recent years.  No doubt this means that the prisons are much better at locking their inmates up for 23 hours a day, making sure they will not come to court on time or at all, or cannot be moved in time to meet a slot on the video-link for a court hearing. It is not surprising that conferences at prison at sensible times have become all but impossible… arranging video-link makes grown men and women weep (and they do). 

Of all the most intractable problems we face the prison estate is perhaps the worst impediment to swift and fair publicly funded justice.  Solutions as always are relatively easy to state but will take years to implement.   It costs us more than £36,000 a year to incarcerate the average adult male prisoner and while the dangerous will always need to be locked up it must be possible to work out ways of spending that money more effectively to reduce re-offending rates to the benefit of every one of us.

Cases not served on DCS and advocates not invited to the system
Advocates everywhere turn up to court without an invitation from their solicitors to try and make as much progress as possible in the case that day.  For those who prosecute it is easy enough for the CPS reps at court to remedy the situation and invite people on.  But anecdotal evidence suggests it is harder when defending and some courts are becoming reluctant to help.  If this is happening to you please write and tell us in detail (case names, dates, real problems that were caused) so that we can raise matters with the Resident or Presiding Judge.  Do not assume everyone else is aware.  They probably are not.

Digital problems generally
Frustration is understandable and we all fear that supplies of duct tape are running low as we all try and patch the system.  And frustration turns to irritation swiftly when, for example, we are required to use DCS or electronic PTPH forms in courts where the Wi-Fi is still not yet up and running or has insufficient capacity. 

That sort of thing drives us all nuts.  So again keepsending the detailed examples so that we can keep lobbying for changes to fix the broken system. 

On the vexed subject of that cjsm problem from a couple of weeks ago, our collective pressure may have had some success (bearing in mind that it only affected those who use the cjsm webmail through the cjsm website).  I am told, and hope, that by the time you read this additional server capacity will have been added successfully over the weekend and that from today you will notice an improvement. 

CJSM replacement and a tale of government in our time? 
On the back of the cjsm problem I did a little research and discovered some interesting stuff.  (I have just re-read that sentence and can’t quite believe I have said that it, but there we go).  The cjsm system is old and creaky but remains vital.  Even in this dilapidated state it enables tens of thousands of us to function without being in breach of various statutory and professional obligations concerning the control of data.  It is a crucial piece of infrastructure.  And everyone who knows about these things says that it is in urgent need of updating.  So I googled “plans to replace cjsm” and found that there was Government approval in August 2013 to spend £5 million on doing that.  I then started trying to find out what happened.  I can’t really do better than reprint part of this announcement I found somewhere on an MoJ website:

“The Authority unsuccessfully sought to procure a replacement service provider for the CJSM Service by calling off the Crown Commercial Services PSN Email Framework RM1085 in January 2015. No tenders were received during the procurement process and procurement activity was reluctantly discontinued in March 2015.” 

It goes on to describe the patching process now required, but to print more here would be beyond the tolerance of the most patient reader.  Pause for a moment and consider.  None of our IT / communications providers (including the incumbent which is I believe Vodafone) think that it was worth their while to bid.  I have no idea as to whether or not the money on offer was as originally announced in 2013 or perhaps had been cut.  Outsourcing projects is all very well, but you have to make sure that the price offered will prompt someone to want to take it on…

All the above and “credit for plea”
The Sentencing Council has launched a consultation or credit for plea.  This is a perfect opportunity for the CBA membership to set out a case for rational, evidence based response to the proposals.  As readers of earlier messages will remember the credit is predicated on service of sufficient case papers.   For my part I simply do not understand why the material available to the CPS lawyer who makes the decision to charge ought not to be available to the defence lawyer.  If it is on the CPS system it cannot be too hard to make that available digitally.  All of us know that summaries are not evidence and are not reliable.  All of us know that when someone else starts selecting what should be made available that we become suspicious that there is more we should see.
Why does this matter.  Well read these two paragraphs lifted from the consultation and you can see for yourselves
Where a plea is indicated at the first stage of the proceedings a reduction of one-third (and not more than one-third) should be made (subject to the exceptions in section F). The first stage will be the first point at which the charge is put to the offender in court and a plea (or indication of plea) is sought. 
For offenders aged 18 or older the first stage of the proceedings will be:
• For summary offences – up to and including the first hearing at the magistrates’ court;
• For either way offences – up to and including the allocation hearing at the magistrates’ court;
• For indictable only offences – up to and including the first hearing at the Crown Court.
Further information or advice necessary before indicating plea 
Where all three of the following apply:

1. At or before the first stage of the proceedings (see D1 above) the offender – although he has not indicated a guilty plea – has identified to the court and/or the prosecutor the conduct which he admits; and
2. had insufficient information about the allegations to know whether he was guilty of the offence; an
3. it was necessary for him to receive advice and/or to see evidence in order for him to decide whether he should plead guilty,

a reduction of one-third should be made where the guilty plea is indicated immediately after he receives the advice and/or sees the evidence.
For the avoidance of doubt this exception does not apply where an offender has exercised his right not to admit what he knows he has done until he sees the strength of the evidence against him.

The consultation goes to explain…
The intention is that the exception should only apply when the offender genuinely does not know whether or not he is guilty; it is not an invitation to ‘play the system’.
You have about five or six weeks to send us examples of how the system has failed, how it would have been wrong to provide substantive advice on plea given the paucity of material available.  Or tell us whether there should be more or less credit?  Perhaps then we can put to bed finally that old canard of the Judge who says “well your client knows whether or not he did it”.  Of course that is often true, but not always, and it has never really sat well with the burden and standard of proof. 
Some of you may find it helpful to re-read
R v Caley and others [2012] EWCA Crim 2821 at paragraph 14
whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence (just as he is perfectly entitled to insist on putting the Crown to proof at trial), he does not require it in order to know whether he is guilty or not; he requires it in order to assess the prospects of conviction or acquittal, which is different. Moreover, even though a defendant may need advice on which charge he ought to plead guilty to, there is often no reason why uncertainty about this should inhibit him from admitting, if it is true, what acts he did.
R. v Lawrence (Nyira) [2013] EWCA Crim 1054 [2013] 2 Cr. App. R. 24 –
This case serves to highlight that in relation to “streamlined” procedures directed at encouraging early guilty pleas it is important that all involved are alert to check that the necessary elements of what will sometimes be relatively specific offences are in fact provable [para 10].
And what is the prize for making sure that cases that should plead do so in the Magistrates Court or at PTPH?  Well for the public and its purse, the answers are compelling.  But think about this spin off for you.  I think it is (or should be) the beginning of the end of warned lists.  This would obviously be of enormous importance to all witnesses and defendants who would have debilitating uncertainty removed.  But consider also the benefits to the way you could plan and organise your lives.
Read the Bar Council proposals for replacing AGFS.  These are principled detailed proposals designed by juniors and silks from all circuits.  The ambition is to pay advocates properly for the hard work they do, to stop the cherry picking and “ups and downs” approach that is so damaging to quality and the sustainability of the profession.  More on this subject in a future message.

Something on the Horizon – Future of Regulation
The Budget statement said: “The government will launch a consultation shortly on how to reduce regulatory barriers so that new providers can provide legal advice.”  We do not know what this means but all of you will have seen the emerging tensions between the SRA and the Law Society being played out in the legal press and we will have to watch developments closely.

For those who have not yet renewed your practising certificates, when you do so, please, please pay the Bar Representation Fee.  The CBA could not function at all as an effective organisation without the assistance of sister Specialist Bar Associations and the Bar Council.  A large slice of what the Bar Council does that matters to us is funded by the BRF.  If you do not pay our voice in the world will be much diminished. 

Wishing you all a very Happy Easter with family and friends. 

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