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Monday Message 21.11.16

Chairman’s Update: 
Francis FitzGibbon QC


The Longford Lecture
At this turn in the world’s affairs I would ask of us all, those in power of course most of all, that we try to see the world through the eyes of others, enlarge our sympathies and look for the good to be found, sometimes deeply hidden, in every human heart’.
It may surprise you to discover that this plea came from Michael Gove in his fascinating Longford Lecturegiven on 16 November. You may object to my always asking you to read things, but if you read one thing I suggest, please read this – whatever views you hold about Gove and his politics. It’s an eye-opener.
In a wide-ranging and unspun survey of the criminal justice system, he chiefly focuses on rehabilitation of offenders. He says prison governors should have more autonomy and should be recruited from the education sector and businesses with proven records in training. Prisoners’ work should be meaningful and lead to work outside prison. Rules restricting links with local employers should go. Education and training should be central to the prisoner’s time in gaol.
To make rehabilitation in prison work, fewer people should be sentenced to prison so that resources can be concentrated better on both those who have to be there and those in rehabilitation programmes on the outside.
‘And it is an inconvenient truth – which I swerved to an extent while in office – that we send too many people to prison. And of those who deserve to be in custody, many, but certainly not all, are sent there for too long.
IPP prisoners who have now been in prison longer than the maximum determinate sentences for their offences should be released. This chimes in with a demand by Peter Clarke, the Chief Inspector of Prisons. It is a scandal that people have remained in prison for so long, because failures in the system make in impossible for them to prove that they have stopped being ‘dangerous’.
For young offenders, Gove’s view is that ‘the problems appear to spring from an overly punitive and coercive approach rather than an excess of laxity. Indeed the future of youth justice, I believe, lies in placing far more of an emphasis on care and education than control and coercion.’
In one section of the lecture Gove bemoans the decline of the Criminal Bar, which he says has been ‘squeezed to the margins’. He believes that Crown Court advocacy, and more serious work in the Magistrates Court, should be the Bar’s preserve, and the arrival of many solicitor advocates has not worked in the public interest.  He notices that economic forces have driven solicitors to recruit advocates so that their firms can claim both litigator and advocacy fees for the same case.
A non-barking dog in the lecture is an acknowledgment that the main reason for this is the relentless assault on criminal legal aid, which has made some people sacrifice quality and the public interest in order to show a profit, when margins are squeezed almost beyond endurance. As Lord Chancellor, Gove did not create LASPO, he inherited it, but every implication of his lecture is that he regrets what it  – and its predecessors – have done to our profession.
Personally, I welcome any advocate whose ability matches the cases they are briefed in. The label matters less than the content of the bottle. What is not tolerable is a market for advocacy services that is failing to serve the public interest – which is what we have now, and will continue to have until the payment system is reformed on rational lines and defence advocates are properly assessed. I don’t mean QASA, but the defence panel scheme (or something like it) which has been under discussion for the last two years: a scheme that does not discriminate between barristers and solicitors, but determines fairly who has the ability to take on more challenging work, whichever side of the house they come from.
We are still waiting for the MOJ to give its answer to the many responses to its October 2015 consultation on quality in advocacy. There is no excuse for the delay.
Body-worn Cameras
The CPS have informed us that from 21 November, police officers in Bromley, Croydon, Lewisham and Westminster will be using body-worn cameras. The CPS will receive evidential material digitally, and will serve it digitally on the defence as part of the MG5.
The link to the footage will be embedded in the MG5 document that the defence will receive within the IDPC pack via secure email and counsel will receive in the brief via secure email at the point of instruction.
The link will be accessible in Court via PCU WiFi, and it can be downloaded to personal devices so that it can be shown to the defendant in order to take instructions.  It will be presented to the Court by Clickshare. The CPS warn us DVDs will no longer be provided (but they will continue to use them in ABE interviews).
They have not yet made the downloads compatible with Apple equipment – something they will need to do urgently, given its widespread use by criminal lawyers.
Change in the Criminal Procedure Rules
As from 3 April 2017, the following new rule will apply to the ‘Use of Initial Details of the Prosecution Case’ in the Magistrates Court.  A small but necessary victory for fairness and common sense.
(1) This rule applies where —

(a) the prosecutor wants to introduce information contained in a document listed in rule 8.3; and
(b) the prosecutor has not—
(i)  served that document on the defendant, or
(ii) made that information available to the defendant.

(2) The court must not allow the prosecutor to introduce that information unless the court first allows the defendant sufficient time to consider it.

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