Monday Message 23.01.23
It is always important to lift our eyes and ears from the screens and advocacy of our courtrooms and observe the political events domestically and internationally.
Many of us stopped to absorb the poignant and frank resignation speech of then Prime Minister Jacinda Arden when she said “I no longer have enough in the tank to do {the job} justice”.
Data released in June 2022 showed that threats against her had almost tripled over three years, including a man posting a You Tube Video claiming he had the right to shoot a Prime Minister for treason.
And the incoming Prime Minister’s first words were that men had a responsibility to call out misogyny. In November 2022, the BBC investigated use of toxic tweets against MPS and found that more than 3000 offensive tweets are sent to UK MPs every day.
Hate blasting through debate might always have been a human trait. But now the reach is supported through emails and social media.
Barristers are bound by a Code of Conduct that we act in a way that does not diminish the trust and confidence which the public places in us as a profession. Perhaps we can all pause alongside former PM Jacinda Arden and check our communications, particularly if directed at our most junior colleagues.
I am working to keep our value and standards high and will support all who experience toxicity in whatever form and from wherever it comes.
Please also use the Bar Council’s Talk to Spot
The Criminal Bar Association remains here to ensure that you keep enough in the tank and a bit more.
Prosecution Fees
There is no change in the timetable as set out in my last MM, namely hearing the decision of the Treasury by the beginning of February.
Work continues to be done to power the business case by the CPS for an increase of fees for prosecution barristers to match defence. There are regular meetings with CPS and with politicians.
I trailed the Justice argument in my last MM. In an executive summary and with a nod to our friends across the pond: “it’s the criminal justice system, stupid”.
The economic argument also flashes as obvious. The latest Crown Court data was published on the 19th of January by the Ministry of Justice and show a clear upward trend of trials not proceeding because there is no barrister to prosecute.
What is the reason?
There is a depletion of barristers due to underfunding and the lack of prosecutors is becoming more acute as prosecution fees are probably averaging around 25% behind defence fees.
Now calculate the cost of these ineffective trials. The cost will exceed the £30 million per year requested since last year by the CPS of the Treasury.
Now stamp “excess of £30 million per year” on the heads of the distraught witnesses, victims, complainants and defendants being turned away from court to wait for their trial for another couple of years. Let’s label this postcard “criminal justice wasteland”.
But let’s imagine another postcard where those same witness, victims, complainants and defendants are not shuffled off in an adjournment but are in a trial. Let’s label this postcard “criminal justice system functioning”. And stamp on it “£30 million per year”.
And now if we send these choices to John Glen MP, Chief Secretary to the Treasury and to the Deputy Prime Minister, “criminal justice wasteland” is not a policy that can be seriously considered. Parity is urged by the Director of Public Prosecutions and the Lord Chief Justice and the Justice Select Committee.
And we should not be in a game. But the image of cost and value underline the urgency required to increase the funding for prosecution barristers. The CBA is joining with communication to John Glen MP and is providing day to day examples of the criminal justice wasteland.
Justice Select Committee
I wrote to Sir Bob Neill to organise a meeting early this year and to ensure that relevant information as communicated by our members about lack of prosecution barristers was within the Justice Select Committee’s information.
We continue to work alongside the Ministry of Justice. Daniel Flury, Director of Access to Justice made clear to the Justice Select Committee on the 17th of January that “the criminal Bar has made representations to the Deputy Prime Minister a number of times, but, as the Minister said, it is principally an issue for the Crown Prosecution Service and the Treasury. I know they are in discussions, or have been in discussions, but, obviously, there is no sign of a resolution yet.”
And then:
Chair: It would not do any harm if Ministers in the MOJ were able to say, “It makes sense to us. It is not our direct responsibility, but it makes common sense for the Treasury to look sympathetically at what the law officers are asking for.”
Mike Freer: I am sure the Treasury would have heard that loud and clear.
Chair: It would be helpful if they heard it perhaps from you and from the Deputy Prime Minister.
Mike Freer: Indeed.
The CBA’s role often feels like a referee as responsibility and accountability pings between government institutions. We catch responsibility on the bounce and place it firmly at the feet of the most senior Ministers.
We also work alongside politicians and civil servants and thank those who are working for our criminal justice system.
Sir Bob Neill wrote to John Glen MP on the 18th of January 2023 concerning the need to increase prosecution fees and that it be done “as soon as possible”. He relied in part on evidence from the CBA as to lack of prosecution barristers.
Some of you reacted in social media with astonishment that Mike Freer MP, Parliamentary Under-Secretary of State for Justice give evidence to the Justice Select committee that he was not aware that trials are adjourned every day because there is no prosecution barrister to prosecute the trial.
He is a self-declared process person and so he can look at the Ministry of Justice statistics. In the 15 months from the 1st of July 2021 to 30th of September 2022, 364 trials did not go ahead because there was no prosecutor (173 were violence and sexual offences cases). In the three months up to the 30th of September 2022 there were 44 trials that did not proceed on the day due to no prosecution advocate (23 were cases with violence and sexual offences allegations).
Please keep sending the detail of your cases that do not go ahead due to there being no prosecutor.
I hope to have my first meeting with Mr. Freer soon. Your voices will be heard.
The Deal – section 28
Importantly, Daniel Flury, Director of Access to Justice made clear to the Justice Select Committee that:
“As part of the agreement with the Criminal Bar Association, the then Lord Chancellor agreed to put a further £4 million into section 28 remuneration over the spending review period. There has been a recent roll-out of the section 28 further offences, and, at present, volumes are unclear. We are still in discussions with the Criminal Bar Association and other representatives and attendees of the Criminal Legal Aid Advisory Board. We expect shortly to introduce a new, what we call, bolt-on fee for section 28 hearings. This will supplement the existing fees they get. You will be aware that the proposed level of £670 per case is considered to be inadequate by the CBA, and it has asked for, essentially, a second brief fee, which is close to £2,000. What we have agreed with the CBA is that we will introduce a new fee and review it once data on new volumes come to light.”
In summary, a statutory instrument will be laid at the end of January and the CBA will input in the Spring Review through the Criminal Legal Aid Advisory Board to attempt to increase that amount.
And to further reassure, he said:
I want to assure the Committee that there is a process to increase payment remuneration for these cases and then to review it, and, if necessary, to revise upwards. The principal point is that the then Lord Chancellor made a commitment to spend £4 million over the spending review on section 28, and we are very keen to honour that.
Honour will remain the watchword and to date implementation of the deal alongside the Ministry of Justice and particularly Daniel Flury has been with integrity and considerable work. The messaging and replies are all hours and days of the week.
The importance of changes in personnel not destabilising the progress that is being made as we move to medium and long-term reform of legal aid is a key message to government. A criminal justice system that lurches from crisis to crisis is not a system at all.
CLAAB and Special Preparation
The next meeting of CLAAB is tomorrow, the 24th of January 2023. The process to appoint a Chair will be resolved in February- which is pre-climate crisis glacial speed. But tomorrow, there will be detailed discussion on the special preparation/written work part of the deal as inputted into by the CBA remuneration committee in December 2022. The timetable for that Statutory Instrument remains as February 2023.
Education
Please come to our Spring Conference at The Lowry Hotel – where Manchester and Salford meet and where there are views of the River Irwell. And I am sure there will be dolphins and seals swimming past to herald our wonderful speakers and fantastic attendees. The full programme is expected to be released next week.
The many hundreds of you who have booked on to attend our lectures over the coming weeks will receive the access link on the day of the lecture, respectively. A number of other talks will be advertised from next week.
North East Diversity
The North East has been working raise awareness of the importance of diversity at the Bar and the initiative of a scholarship. A shout out to Glenn Parsons who has been working tirelessly and congratulations to all Scholarship recipients.
Access the North Eastern Circuits online film on this topic.
Final Words
The current financial injection of money into legal aid cannot be for a point in time – for just trials now but not in another six months. A just criminal justice system impacts positively across society and the political order. And criminal barristers hold the line of expertise and so drag and drive improvement uniquely from a base of professionalism which we must protect.
And the CBA’s electronic door is always open. I’m even managing a few catch ups in person.
This week, I leave the final words to the Resident Judge of Isleworth Crown Court, HHJ Edmunds KC who has sent a message in the spirit of a New Year gift. In fact, it is far more useful than any of my New Year’s resolutions.
If you have a case with a witness giving evidence from outside the jurisdiction, lift your finger off the delete button – there is no more of my voice – and invest a few minutes:
“The ease of use of CVP in the criminal courts is leading some defence practitioners to assume that it is a straightforward thing to make a last minute application for a defence witness to give evidence by CVP from abroad.
At Isleworth we have had a number of cases where this has caused real problems because, in the Criminal Courts, we cannot allow such requests unless we have confirmation that the foreign jurisdiction is content. Many countries require a full International Letter of Request and for the participation of local judge and court from which evidence is to be given. Arranging this requires expertise and time and a last minute application is unlikely to stand any prospect of success. The Lord Chief Justice’s Guidance of July 2022 on remote hearings and R v Kadir [2022] EWCA Crim 1244 confirm that we cannot fudge this one.”
View more news