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Monday Message – 21.08.23

The lionesses roared for women’s sport in the final of the World Cup. They made their own football history.

Criminal cases have been competing for the headlines. They are compelling and terrible.

They bear no relation to each other and occupy opposite ends of the criminal justice spectrum.

They are Andrew Malkinson, a terrible miscarriage of justice and Lucy Letby, sentenced today to a whole life tariff for the murder of the tiniest and most vulnerable of victims.

They are mentioned in the same sentence as in each case there were barristers working to secure a successful appeal and to ensure a fair trial and the best defence.

In the appeal, the spotlight is widening to the time taken by the CCRC to refer the appeal to the Court of Appeal. Ultimately, the more inadequately resourced the prosecution or defence the more increased is the risk of miscarriages of justice.

In the Letby case, the Criminal Bar is engaging in interviews with the media over her refusal to attend her sentencing.

We are explaining criminal justice and forensically responding to political promises. After all, we are the ones who prosecute and defend in the most serious of cases.

We all at some stage will have seen and felt the violence of an explosion from an uncooperative defendant in court.

It was less than a decade ago that a prisoner escort officer was killed after being attacked by a defendant at Blackfriars Crown Court.

Casual calling of changing the law to force a person to appear in the dock is too casual as to risk.

And so to….

Policy Work

Consultation: Open Justice – The Way forward

With thanks to Andrew Thomas KC (Lincoln House Chambers) for heading this working group of Claire Howell (Drystone Chambers), Mary Cowe (Guildhall Chambers), Francis McGrath (23 Essex Street chambers) and Rosalind Emsley-Smith (Deans Court).

Thanks also to James Rossiter.

The CBA’s response is nearing completion and will be published upon submission.

Single Justice Procedure

The consultation includes a question on the single justice procedure in the magistrates’ courts.

The SJP was in the news last week as a result of the determined journalism of Tristan Kirk of the Evening Standard.

The SJP is a process behind closed doors where the majority of all offences are prosecuted.

In 2021 was interviewed by Joshua Rozenberg about the lack of safeguards in the issuing of FPNs and also about the SJP.

Penelope Gibbs of Transform Justice and Appeal, in their written evidence to the Criminal Procedure Rules Committee:

  1. Due to the lack of transparency in these prosecutions, there are serious concerns that the SJP could be facilitating and/or contributing to discriminatory prosecutions. For example, in TV Licensing prosecutions, 75% of all prosecutions are against women. Women account for 67% of all prosecutions for truancy. Without proper assessment of the vulnerabilities or backgrounds of people being processed through the SJP, it is difficult to determine whether the SJP itself is contributing to these disproportionalities.
  2. The majority (c 70%) of those accused under the single justice procedure do not respond to the prosecution ie they do not fill in the form either on paper or online. The introduction of an online option does not seem to have increased the plea rate. No one quite knows why the majority of those accused do not respond to the prosecution notice, but factors may be
  • The defendant does not receive the prosecution notice. The notices are sent traditional mail and the prosecutor only needs to prove sending, not receipt. Many people move address between being accused and the prosecution being formalised, others have no stable address. Some post gets lost en route and other post gets lost in apartment blocks and houses of multiple occupation.
  • The defendant may not understand the notice if they have English as a second language or if they have learning difficulties. 
  • A defendant may have mental health or substance misuse issues leading to their being anxious about filling in the form
  • Many defendants lead chaotic lives (partly due to above issues) and may just lose the form. Only one notice is sent and no reminder.

One case highlighted by Tristan Kirk is that of an 84-year-old who was prosecuted for not paying £93.34 road tax. He became a registered keeper in March 2023 and thought he could keep it off the road until he registered it in May 2023. He apologised for the mistake. He was fined £1876.

“ Where is the justice in that?” asked Mr. Kirk on twitter.

Generally, it is not interesting to hear about another or any DVLA fines until reading that the person is nearly 80 years’ old and moving between hospital and care.

They are not cases that grab headlines. They should. Our elderly and those with disabilities are processed and fined at speed whilst they struggle to keep up with their paperwork.

Fairness has been dropped and openness has been shuttered and sacrificed at the altar of speed.

The CBA has been able to draw awareness to this large dark corner of criminal justice. It requires a session from the Justice Select Committee with a report and recommendations.

The government previously defended the process on the grounds that trials in absence have operated without complaint for centuries.

It takes little analysis to note that there were many processes 300 years ago that we would not have wished to continue in a modern criminal justice system.

We should be doing better than in Victorian times.

Consultation Upon Amendments to Annex A of the Attorney- General’s Guidelines (Digital Materials)

With thanks to Simon Csoka KC (Lincoln House Chambers) for his work on this document following our earlier meeting with the Solicitor General.

Prosecution Fees

The DPP and I had a meeting last week over cases where there is a disparity of pay, with the prosecution paid substantially less than the defence.

It is the start of further engagement in the Autumn.

I also raised the problematic CPS requirement for an Opening Note 14 days before the start of the trial. Barristers do not wish to embark on this exercise when current listing changes mean that they may not prosecute the trial.

Further, I took an individual prosecution barrister’s list of repeatedly adjourned trials to the DPP.

Engagement remains strong with the CPS.

In relation to prosecution fees, Max Hill KC, DPP sent this message:

“I am committed to continued engagement on important topics including remuneration for prosecution advocates and thank the Criminal Bar Association for raising its concerns with me.” 

“Those matters will be pursued through the established CPS-Bar Engagement Group, which includes senior CBA participation”.

Increase to Section 28 Fees and Special Preparation/Wasted Preparation Fees

Last week I had a meeting with MoJ officials and emphasised the urgency of the Lord Chancellor reaching a decision on the required increases.

Whilst there are many pressures upon the Lord Chancellor from within the criminal justice system, including from our full prisons, adjournments through lack of barristers add to the strain.

A quick and easy fix is positive decision- making by the Lord Chancellor concerning the Spring review of section 28 Youth Justice and Criminal Evidence Act 1999 (YJCE) fees and July review of the special preparation/wasted preparation fees.

Last week, the MoJ finally shared the amount spent on the section 28 YJCE “bolt-on” fee (since 1 February 2023) and the additional fee for special/wasted preparation.

The amounts are very low: £4020 paid on section 28 YJCE cases and £3100 paid on special preparation/wasted preparation.

The number of cases having utilised section 28 YJCE is lower than the assumptions made by the MoJ in their impact assessment.

They expect the number to rise, but even the number of pending cases (only around 600) does not shake the CBA’s reasoned and consistently correct representations that increasing both fees can be comfortably done without risk of overspend.

Ultimately, these are small amounts of money, particularly in the context of complex cases, including those with the most vulnerable complainants, witnesses and victims.

Forensic Science Reform Programme Criminal Justice System Knowledge Questionnaire

The Home Office is currently carrying out the Forensic Science Reform Programme in conjunction with other key stakeholders in the Criminal Justice System. The Programme was set up in 2020 in response to unacceptable levels of risk to the Criminal Justice System and a recognition that special measures were required to address these risks.

Many of the themes and activities are cross cutting leading to the programme developing four problem statements.  The Home Office have asked The Bar for assistance about the Knowledge problem statement: ‘The CJS does not sufficiently understand the forensic science delivered to it, nor when best to use which capability, or what impact it has had’.

They developed a series of questions to help them better appreciate the current level of understanding of forensics and digital forensics within the CJS with a view to producing a paper for the Forensic Science Programme Board in December.   The Home Office would appreciate if you and your colleagues could have any responses returned to Stephen Hughes by 31st August 2023.

Access the Questionnaire here.

Chair’s Under 7 years’ Call Essay prize winners

I was delighted last week to announce our winners.

International: Ylenia Rosso of Guernica 37 Chambers

RASSO: Chloe Lennon of 4 Breams Building

Equality and Diversity: Tommy Seagull of Garden Court Chambers

The essays are linked.

Criminal Justice Matters Podcasts

Do listen to and promote our podcasts, particularly the second episode where I interview two of our junior Bar about why they went to the criminal bar, and why they stayed.

Please access our Podcast Series here.

The next three podcasts have been recorded and they will be released over the following weeks.

I look at social mobility and diversity in our profession by interviewing some of our stars and trailblazers.

I have interviewed Jeremy Dein KC, Courtenay Griffiths KC, Nina Grahame KC, Jaime Hamilton KC and Laurie- Anne Power KC.

I was fascinated, moved and inspired by their stories.

I am sure you will be too.

CBA Treasurer, James Gray exceled in the role of podcast runner/diary manager. We even managed to interview Jeremy Dein from Mongolia.

It was a huge effort from him as he was recalling his career at 1 a.m.- and without a beer in front of him.

Thank you to all and look out for episode 4 next week.

Courts and Listing

Your issues continue to be raised at Resident Judge level or, where appropriate, at the level of the Senior Presiding Judge.

The open doors by judiciary to the CBA have facilitated effective routes to remedies.

Communication remains key.

CBA on Tour

The tour is coming to an end. I will be stepping off the stage.

I am hopeful that I might make a final trip to the Western Circuit on Thursday.

Look out for me in Bristol!

CBA Executive

It is my last CBA Executive meeting this week on 23rd August 2023.

I look forward to seeing those who can attend.

I take this opportunity to thank those on the Executive and the CBA sub-committees who have worked alongside me and supported criminal law barristers during the most difficult time for the Criminal Bar.

It has been a test of their strength.

They too have roared.

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