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Monday Message – 21.09.15

CBA Chairman’s Message: 
Mark Fenhalls QC 

On Friday evening the LCCSA and CLSA issued statements about their recent dialogue with the Lord Chancellor.
The CBA will remain in close contact with these organisations during the coming days and will assist where it is able.
The start date for “Better Case Management” is almost upon us.  On October 5th the Criminal Procedure Rules and Case Management Practice Direction come into force.  Please read the newsletter from Lord Justice Gross dated 9th September and note the “early adopter” Courts HERE
Ten days ago the CPS published the results of its “Victim and Witness Satisfaction Survey” and the new “Speaking to Witnesses at Court CPS Guidance” HERE.  In the introduction it states that ‘Prosecutors must apply the principles set out in this guidance irrespective of whether they are from the CPS or from the self-employed Bar or a solicitor being employed as an advocate.’    It is plainly desirable that the CPS and its advocates make the experience of giving evidence by truthful complainants and witnesses as painless as possible.  It is good news that the CPS seems committed to providing enough trained case workers in Courts across the country to assist with witnesses and to note all the conversations.  There can be no doubt that the absence of experienced case workers in recent years, as the CPS has struggled  with the deep cuts imposed upon it, has made the experiences of some complainants and witnesses far more difficult than they need have been.
However, one part of the section dealing with “Providing Assistance for Cross-Examination” is, I fear, a recipe for disaster.  The key sentence is where it is required that witnesses be informed by the prosecutor of the ‘general nature of the defence case where it is known.’  The CBA set out its reasons in our Response to your consultation HERE and we stand by those observations.  I have found no evidence in the VWS Survey that justifies this change.  No prosecuting advocate to whom I have spoken can think of a single case where this sort of exercise would have improved the quality of the evidence given by complainants or witnesses.  In contrast, most believe that the likely result will be that witnesses will contrive or alter their evidence in a misguided attempt to bolster their accounts. They will be cross-examined on the basis that they have changed their stories and are therefore unreliable.  Honest witnesses may unwittingly find that they are being disbelieved, unfairly, and guilty defendants may go free. Advocates will end up as witnesses and trials will be made longer or even derailed. We think that this proposal creates an unnecessary risk, for negligible gain.   The scheme is to be piloted in two areas, Sheffield and Liverpool.  I would hope all those involved in those areas keep a careful note of their experience so we can provided further input prior to any further rolling out of the scheme, which is planned for the New Year.
The most recent edition CBQ has just been published HERE.  In a short article I have reproduced the partial history of the CBA written by Michael Hill QC back in 1997, which is well worth reading.  But please do not miss the delightful experience of reading Tom Grant’s marvellous book “Jeremy Hutchinson’s Case Histories”.  No one will regret putting it on their reading list or wish list for next birthday or Christmas.  
Two last things…
If you have glossed over previous emails about the CBA Bursaries, please pause and think about the junior tenants and pupils in your chambers whose financial circumstances may be dire and who you can encourage to apply for Bursaries.  Any prospective applicants should contact Aaron as soon as possible.  Many chambers across the country pay CBA membership dues for their pupils.  I would hope those who do not will change their approach. 
In the same spirit all those responsible for awarding pupillages will wish to consider carefully the “Pupillage Matched Funding Scheme”created by jointly the Inns of Court.  Closing date for applications is Tuesday 1st December.
Mark Fenhalls QC
The Criminal Bar Association
E: [email protected]

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