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Monday Message – 23.11.15

Chairman’s Update: 
Mark Fenhalls QC


Topics this week:  The Consultation and Digital Case System/ Better Case Management.  But before I turn to these subjects in detail, some other general thoughts.

There has been widespread publicity surrounding the Justice Committee’s Report last Friday into the Courts Charge.  The charge is iniquitous and ineffective.   Sadly the eccentric and absurdly optimistic forecasting surrounding the likely yield was built in to the MoJ budget and so any success in achieving the abolition or moderation of the charge may mean a call for cuts elsewhere.

This Wednesday we await the Spending Review.  I am confident that nothing I can say here will add to the debate and thoughts we will all have had about the failure of the Treasury to understand that our Justice system is as important as Health and Education.  

The initial High Court hearing last Wednesday related to the “two tier” challenge is reported by the Law Gazette HERE.  On Friday the Law Society urged two parliamentary select committees to investigate the government’s procurement of new criminal legal aid contracts HERE.

In answer to several concerned enquiries – in theory, guilty pleas at PTPHs are paid at same rate as guilty pleas at PCMHs.  In theory, the “front loading” of work by police and CPS means that papers should be served (sometimes digitally) in advance of PTPHs.  As with any new system there will be teething problems.  Please do not just complain on twitter or Facebook.  Please write to us with details of what has gone wrong so we can take up the issue with the relevant authorities on your behalf.  And just in case anyone doubts it, the LAA told me on Friday that it “would normally allow a guilty plea claim” if the plea was entered at the Preliminary Hearing.  If you do have any examples where this has not been the case, please do let me have full details and the LAA has promised it will investigate.

Consultation on Preserving and Enhancing the Quality of Criminal Advocacy – deadline Friday 27th November
Many of you will have already written responses.  Please check that your Circuit or Chambers has done so and perhaps even ask to see a copy of any draft and see what you can contribute.  

Regular readers will understand that we think that there are several critical elements that are needed to make sure we have a CJS fit for the C21st as follows:

  1. A simple and powerful online platform for all cases across the system, from police station prosecutor to solicitor’s office to advocate to defendant to Court and to prison.  These last three words may be the most challenging of all.  The Digital Case System (DCS) that is now being introduced is a welcome start, to be followed by the “common platform”.
  2. A more sensible procedure for managing cases, Better Case Management, maximizing the benefits of the DCS.
  3. The ending of warned lists, which inhibit client choice and reduce the quality of service of the CJS to witnesses, defendants and complainants. 
  4. A panel scheme for defence advocates assessed as fit to take on legal aid work at different levels of seriousness.
  5. A revised fee scheme replacing AGFS that uses the same categorization of cases as the panel scheme.
  6. The ending of all anti-competitive practices, including the payment of referral fees and disguised referral fees, so that advocates from the Bar and the solicitors’ profession can compete on equal terms, on merit.

Whether or not you agree with me about some or all of the above, please make sure you respond.  

Why we think warned lists must go
Warned lists damage the efficiency of the CJS, have a negative impact on witnesses and victims and are the single largest bar to proper client choice.  Human nature and the uncertainty inherent in warned lists mean that witnesses, police officers, lawyers and defendants are all less likely to focus on a case in a warned list that might not be listed, or that they may or may not conduct. 

In many (but not all) parts of the country, warned lists for bail cases is the norm.  In some areas even serious cases and sex cases now appear in such warned lists, where the defendant is on bail.  The length of the warned list varies from 1 week, through to 2-3 weeks (many areas) to perpetual rolling warned lists in other areas e.g. Cambridge.  Cases will frequently not come in for trial on their first 3 occasions in the warned list.  Delays of over a year are commonplace.  I am told of examples of cases having come in 14 months after having been listed into a perpetual rolling warned list. 

Put to one side for a moment client choice, modern standards of case management and Leveson’s “duty of engagement” and focus for a moment on complainants and civilian witnesses.  What on earth does the Court Service think that the effect of such uncertainty and distress creates in the lives of the witnesses who are seeking justice as the complainants in assaults, burglaries and sexual offences…?  This is a scandal that needs to be addressed.
We have to flush out the delayed plea wherever possible and free up our court lists for the cases which need a trial.  We must move whatever mountains need moving to pursue the goal that all trials should have a fixed date.

Sir Brian Leveson was correct to conclude in his Review on Efficiency in Criminal Proceedings, [at paragraph 144]… “[I] recommend that steps are taken to enable the courts to move towards single/fixed listing.”

Witnesses would know where they stand and make plans accordingly.  Police officers would know that cases had to be in tip top shape by a fixed date and they would be held accountable if not.  Lawyers conducting the case on each side would have all the incentive in the world to make sure cases were ready and effective.  Defendants would know there was a fixed date when they would have to stand trial rather than stick their heads in the sand hoping a case is not called on…  “Case ownership” would become a meaningful term and so drive up efficiency.  Clients would be far more likely to have their preferred advocate and if s/he is not available choose someone else far in advance of the actual trial date.

And last, but by no means least when one comes to consider the sustainability of the young junior Bar, consider this.  Our anecdotal evidence is that the use of warned lists in the Crown Court is a significant barrier to those carers of young children who wish to return to practice.  By way of illustration should a parent returning to practice be instructed in a case where s/he knows that the PTPH will be adjusted to allow him/ her to attend and then that case is given a fixed date, then s/he can make the appropriate child care arrangements that will probably make all the difference as to whether or not that case is economic.  Without such steps the sheer uncertainty is a huge barrier to returners and there will be substantial damage done to the diversity of our cadre of advocates and the pool from which future Judges are often chosen. If we are serious about sustaining quality advocacy in the face of such low rates in criminal work, then this change is absolutely essential. 

Digital Case System/ Better Case Management
DCS started in Southwark and Leeds in the summer.  The new Better Case Management “Plea and Trial Preparation Hearings” commenced in early adopter courts in October.  Some enthusiastic Resident Judges elsewhere have begun to use the PTPH forms even though the CPS systems have not yet caught up in those areas.  These are not pilots, so we have to fix any problems as we go along.  It becomes all the more important that you write to us at the CBA and tell us what is or is not working.  And it would be helpful if you spoke about the practical problems surrounding the timing of instructions received, access to clients in prison and in the cells with any digital cases.

Those of you who have read the SPJ’s newsletters will know how the DCS system is supposed to work. 

  • Anyone who has access to the case [at that stage just the prosecution] ‘invites’ anyone to access it.
  • An invitee receives an email telling them they are officially invited and can then both access the papers and invite other people.

I have been told some stories about instances where the defendant appears in the Magistrates Court, legal aid has been applied for, but because it has not yet been granted the solicitor does not appear to be formally recorded.  Meanwhile the case is sent to the Crown Court, the CPS uploads the papers to the cloud and “invites” Crown Court staff so that the Judge can access the papers.  The preliminary hearing is listed and counsel is instructed the night before the preliminary hearing by the solicitors.  This is where the largest cracks are appearing. 

It appears fairly routine, that no defence lawyer has been invited to the case and at 6 pm it is impossible to contact anyone in the prosecution to get them to do the necessary.  So counsel attends court and has to find a member of court staff to “invite” them, so that they get their first sight of the papers.

As ever we can survive at a traditional Preliminary Hearing where the objectives may be limited.  But if this problem persists it is plainly going to be a huge impediment to the success of PTPHs and the “Duty of Engagement”.

I believe that what is supposed to happen is that when the CPS upload the papers they invite the defence [thus ’serving’ them].  It is not clear to me at least whether this is a priority for the CPS and / or whether they have the resources to do so.  If they do not know who the solicitors are, or the solicitors do not have functioning cjsm emails then this may prove difficult.

Unless the Court Service and the CPS resolve whose responsibility it is to notify whom of the identity of the solicitors we are in for difficult times ahead.  Perhaps there should be dedicated contacts at the relevant CPS office so that solicitors, once they get legal aid, can chase their “invitations” themselves.   

We do not know how widespread a problem this may be.  If you have examples of the good and the bad please send them to Aaron.

And finally
Please remember to vote in the elections for the CBA executive.

A charity called Transform Justice is doing on a research project on unrepresented defendants in criminal courts.  They want help from criminal advocates.  If you have a moment please complete the survey which is available HERE.

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