Monday Message 22.02.16
Mark Fenhalls QC
Francis FitzGibbon QC, the Vice Chair writes:
For a criminal hack like me, the Supreme Court comes as a bit of shock. The lifts work. It has carpets. There’s a café. To participate in an appeal, even as an intervener without a speaking part, is to be in company with the greatest legal minds in the UK, whose judgments are read and admired across the globe. It felt like an immense privilege to be there in R v Jogee, the appeal in which the Supreme Court changed 32 years of law.
This case showed the legal system capable of recognising an historic error in the law, and having the intellectual and moral courage to put it right. An institution that is willing to do that is one in which we should take no little pride. Why did it not happen before, in the myriad reported and unreported appeals and trials that treated the ‘error’ and the ‘wrong turn in the law’ in Chan Wing-Siu  AC 168 as authority? Readers will recall that Sir Robin Cooke, giving the Privy Council’s judgment, held that for secondary parties in joint enterprise cases, the test for liability was whether they foresaw that the principal might intentionally commit a further offence. In other words, as the Supreme Court now puts it, ‘the rule brings the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory than in the case of the principal’.
Why did it take so long to realise that foresight could be evidence of intention, but should not be substituted for intention? Lords Toulson and Hughes (who gave the joint judgment, with which the other Justices agreed) said the Court had ‘had the benefit of a far deeper and more extensive review of the topic of so-called “joint enterprise” liability than on past occasions’. And how. The benefit consisted of 249 reported cases, the earliest of which is a report of a judgment by Chief Justice Saunders in 1556. They also had a mass of academic literature, Parliamentary reports, and other relevant research material. The research effort that lay behind the appellants’ and the interveners’ submission was massive, and it built on work done over many years by lawyers, campaigners, journalists and politicians.
The impetus, however, came from the lawyers. Acting either pro bono, or on legal aid which would barely have represented the thousands of hours that went into the preparation of the appeals, they drove the case forward. Without wishing to sound unduly immodest, I believe that this case shows the (Criminal) Bar at its best, standing up for extremely unpopular people (convicted murderers) and persuading the Court by force of argument that the law through which they were convicted was wrong and unjust.
Those acting for the appellants (Felicity Gerry QC, with Catarina Sjölin, Adam Wagner and Diarmuid Laffan for Jogee; Julian Knowles QC & James Mehigan for Ruddock) pushed hard, and got their cases before the Supreme Court/Privy Council by the power of their submissions. Those acting for the two interveners were able to give the Court additional insights into the problems that their clients faced. I was instructed pro bono by the children’s legal charity Just for Kids Law (leading a brilliant team: Joanne Cecil, a CBA executive committee member from Garden Court Chambers, and Caoilfhionn Gallagher and Daniella Waddoup from Doughty Street Chambers). We focussed on the disproportionate effect of the law on children and young people. The other intervener, JENGBA, a group that represents people convicted under the joint enterprise rule, were represented by Tim Moloney QC and Jude Bunting, also of Doughty Street.
It’s not every day that you see 32 years of law being found to be a mistake, and being corrected. It was an honour to have played a part, along with so many others, in the process that got us to this historic and important conclusion.
The profession owes a great debt to all those who put so much of their own time and resources into this appeal. They were awkward, resolute, talented, selfless and wholly committed. We should be proud of them and what they have achieved.
But I have to drag you back from these heights to two short but crucial matters.
First – Self Employed Barristers on Duty Rotas in Police Stations. The ghost problem.
The Legal Aid Agency will be issuing new rotas shortly for April to October 2016 and has extended the period for firms to notify the agency of any errors in their lists of “duty solicitors”. There is a hugely welcome drive from the solicitors’ representative bodies to eliminate “ghosts” and the Bar must help.
The new deadline is this Wednesday 24th Feb at 5pm. I understand that in order for a barrister to be a compliant “duty solicitor” they must attend 24 police stations a year (i.e. 2 per month) and cover 12 Magistrates Court Appearances a year (i.e. at least one a month). There are some barristers and solicitors who have entered into arrangements with solicitors to effectively hand over their slots and do not do the work.
I have been told one story over the weekend about a barrister who remains on one firm’s rota even though he now lives and practises full time in another country. This is not acceptable. Whatever the rights and wrongs of this in the past, the world is changing and maintaining such an arrangement, if you do not do the work and do not meet the required standards, cannot be acceptable. I would have thought that any barrister or solicitor who is party to such arrangements, but who does not comply with the requirements might be in breach of their respective professional codes.
Renewing your Practising Certificate – The Bar Representation Fee and The Bar Pro Bono Unit
Please make sure that when you renew your Practising Certificate that you also pay the additional “Bar Representation Fee”. Why, you may well ask? The short answer is that criminal barristers have benefited enormously from the work of the Bar Council in recent years and we need it to keep working on our behalf. Frankly we could not do without it. And the problem is that s51 of the Legal Services Act 2007 prevents the Practising Certificate Fee from being used for many of the most important functions that the Bar Council performs. The changes to payment of the PCF have happily reduced its cost for many criminal barristers. So please, please pay the BRF and enable the Bar Council to keep performing its crucial roles on our behalf. You can find more detail HERE. Please help make sure as many people as possible know how important this extra payment is.
When you renew your practising certificate you will also be invited to donate £30 to the Bar Pro Bono Unit. Last year 57% of the Bar made this donation. The Unit is the Bar’s national charity and does crucial work helping litigants in person to find legal assistance. In the last three years the Unit has received more and more applications from litigants who cannot afford legal fees or are ineligible for legal aid. Volunteer barristers, through the Unit, have assisted nearly 1000 pieces of work in 2015, not to mention the amount of Unit supported duty scheme advice and representation that has been provided.
If your clerks renew on your behalf, please let them know that you wish to donate to the Unit. Please try and persuade everyone else in Chambers to do so too.