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Monday Message 25.07.16

Chairman’s Update: 
Mark Fenhalls QC


The AGM and final exec meeting before September took place at the Old Bailey last Wednesday.  My thanks to the Recorder of London and the Sheriffs for allowing us to use the bar mess in the early evening and, as ever, to Aaron who made all the arrangements. 

Soon it will be August….  Once upon a time a poet wrote ‘The glorious symphony Hath need of pause and interval of peace.’  I am not sure that the events of the last few weeks count as a “glorious symphony” but I know we all need a break.

The new Lord Chancellor was sworn in on Thursday afternoon.  A new ministerial team is in place. Parliament rose on Thursday for the summer.  The new duty contract arrangements for solicitors have been published and will come into effect next year.  It would be a surprise if any other policy decisions are made before some point in September/ October at best.  But rest assured that behind the scenes the work will continue to try and make sure that the new Ministers make the right decisions about the future of the CJS. 

I have written often enough about the problems and drawn your attention to the exposure of the problems by the Public Accounts Committee.  I am pleased that broadsheet opinion increasingly seems to acknowledge the reality of life at the criminal Bar and the work that needs to be done to make the CJS fit for purpose. 

Please remember what I said in the message last week last week about the review of the PTPH form and DCS processes being conducted for the SPJ.  Do submit your thoughts and copy us in. 

Many of you have asked whether the CBA (or indeed the Bar Council) was consulted about the recently publicised decision to make Blackstones the bench book of choice from October 2016.  The short answer is “no, it was a complete surprise” to both the CBA and the Bar Council.  We have no idea why this has been done, nor the basis for this decision by the “Judicial Executive Board”.  The Chair of the Bar has written on our behalf and we await an answer.

And lest anyone think we can ever relax, there is this piece by Matthew Scott that every single one of us should read about the nature and quality of justice in England and Wales.  The shocking case of David Bryant reveals the fallacy that we can always spot a liar – BarristerBlogger

The Law Commission is asking for help in identifying what are the priority areas for law reform.  Please see the notice HERE.  The consultation is open for four months.  Simplifying confiscation law and procedure anyone?

You will see a couple of paragraphs below that I have given over the balance of the “message” to Juliet Lyon, Director of the Prison Reform Trust.  The views she sets out are her own.  Whether you agree with her or not Juliet remind us about the real challenges faced by the Government as it grapples with what on earth to do with our deteriorating prisons.

And so before I hand over to Juliet, one last thing.  Please read the press release published by our sister organisation the European Criminal Bar Association on the situation of lawyers and access to justice in Turkey post-coup. 


Mark Fenhalls QC
The Criminal Bar Association
E: [email protected]

A Message from Juliet Lyon, Director of the Prison Reform Trust: “Scope for prison reform?”
Over the years, the Criminal Bar Association (CBA) and the Prison Reform Trust (PRT) have stayed in touch, drawn attention to each other’s events, publications and activities and sometimes made common cause.

This sounds less cosy when I remind CBA members of the protracted battle from 2008-12 to abolish the ill-drafted, Kafkaesque indeterminate sentence for public protection (IPP) and the ongoing challenge to gain a just response to the over 4,000 men and women still stranded beyond tariff. And mark how, despite best efforts, cuts in legal aid, as well as prisoners’ recourse to the law, have wreaked havoc and reduced access to justice.

Since I am standing down in August and handing over to former prison governor and new director of PRT, Peter Dawson, I am particularly grateful to your chairman, Mark Fenhalls QC, for allowing me a large slice of his Monday message to let you know what we have been up to, flag up recent reports and briefings and, notwithstanding a febrile political situation, celebrate a shared success.

Our charity is constituted to provide education. We set store by facts rather than opinions. That seems a good place to start this message.

Our July briefing Prison: the facts sets out the stark facts and figures about our deteriorating prisons and the state of people who live and work in them. You will know that the prison population has all but doubled since Lord Woolf reported in 1990 on the disturbances at Strangeways. You will know too that the primary reason for this surge in numbers, and stifling prison overcrowding, is not a crime wave but rather inflation in sentencing and the impact of mandatory minimum terms.

So when does prison reform become justice reform? And when does justice reform lead to social justice? PRT has two inextricably linked objectives: reducing needless imprisonment and improving conditions and treatment for people for whom a custodial term represents a fair and proportionate sentence. Invariably this means that we look for solutions beyond prison bars and gather information that could underpin change in sentencing policy and practice.

Independently funded by trusts, foundations and individuals, and with no party political allegiance, our charity works across national and local government to gain footholds for reform. Our methods are pretty straightforward: advocacy, applied research and partnership. With longstanding academic partners, the Institute for Criminal Policy Research (ICPR), we have engaged in a range of projects to shed light on sentencing and explore options for reform.

Starting in 2003 with ‘Decision to Imprison’, this study involving focus groups with 80 Magistrates and 48 interviews with Crown Court judges, recorders and district judges plus five members of the senior judiciary, mapped how sentencers had become tougher in response to legislation, guideline judgements, and political and media pressure. In 2007 ‘Mitigation’, drawing on observation of sentences passed in the Crown Court and interviews with judges and recorders, showed how personal mitigation plays an important part in sentencing decisions and can be the decisive factor in choosing a community penalty in preference to imprisonment.

And in 2008 ‘Creating a Sentencing Commission for England and Wales’ presented an independent review of policy options to address prison over-use, sentencing disparity and politicisation of sentencing policy and practice. This report underpinned the establishment of the Sentencing Council and helped to avoid the threatened ‘gridlock’ which would have fettered judicial discretion. Arguably its hope, that the commission or council would offer extensive and accurate public information about sentencing has yet to be realised.

Now as part of this series, we have turned our attention to sentencing under joint enterprise. Following an analysis of 61 case files with the permission of the Crown Prosecution Service, ICPR in its Joint Enterprise report published by PRT on 5 July has concluded that improved data collection and greater clarity and transparency in the way in which cases involving multiple defendants are prosecuted and sentenced would help to correct what the Supreme court described as ‘a wrong turn’ in the law.

Locking up children has always been the way to guarantee a burgeoning adult prison population of the future. As a cornerstone to PRT’s work to reduce child and youth imprisonment, the ICPR team, lead by Dr Jessica Jacobson and Prof Mike Hough, with the permission of the Youth Justice Board conducted a ground-breaking census of the 6,000, including in depth profiles of 300, under 18 year olds who entered custody, under sentence or on remand, between July and December 2008. None of the findings will surprise CBA members but their report, ‘Punishing Disadvantage’ published by PRT in 2010, provided the evidential basis of vulnerability, family breakdown, educational difficulties and unmet health needs that has lead to earlier intervention and increased discretion and has helped to achieve a reduction of now around 70% in the child prison population. 

Groups disproportionately represented still in youth custody include black and minority ethnic young people and children in care or care leavers. As part of its consultation on the overarching guideline on youth, we were pleased that on 7 July the Sentencing Council team met Lord Laming, who is chairing our independent review of children in care who get caught up in the criminal justice system, and his expert panel including young care leavers.

Given their particular characteristics and sentencing profile, there is a strong case for an overarching guideline on women and girls. This is outlined in our recent briefing by Shona Minson and Jenny Earle. Published in November 2015, Sentencing Mothers cites a key authority R v Rosie Lee Petherick (2012) EWCA Crim 2214. Women in prison are mostly perpetrators of petty, persistent offending, shoplifting and low level drugs and fraud offenses, and often victims of more serious crime, domestic violence, sexual abuse and rape.

Almost 18,000 children each year are separated from their mum’s by imprisonment. The discussion paper proposes that fuller account be taken of primary care responsibilities and recommends improving the timeliness and quality of pre-sentence reports as well as better information for lawyers, judges and magistrates. This would then align with the first statutory legislation, S.10 Offender Rehabilitation Act 2014, requiring arrangements for supervision or rehabilitation to meet ‘the particular needs of female offenders.’

Less than two weeks ago, in our role as secretariat to the All Party Parliamentary Penal Affairs Group, PRT convened the AGM, co-chaired by Dominic Grieve MP QC, former Attorney General, and Lord Ramsbotham, former Chief Inspector of Prisons. The meeting on 12 July was addressed by the then Secretary of State for Justice and Lord Chancellor. In what turned out to be his last Parliamentary speech in this guise, Michael Gove wondered aloud whether he was to be released, recalled or indeed rehabilitated.

Earlier this year the then Prime Minister, David Cameron, described prison reform as the ‘great social cause of British politics’. Both he and the Justice Secretary referred to the importance of treating people in prison as ‘assets not liabilities’.
So what is to happen to sweeping, if still inchoate, plans for prison reform? It was something of a relief to hear new Lord Chancellor, Elizabeth Truss, confirm last week in response to a shattering annual report from HM Prisons Inspectorate revealing the extent of violence and unrest, suicide and self-harm in our jails, that prison reform remains a priority for Government and will continue ‘apace’. It’s obvious that the focus has to be on restoring safety without which there can be no basis, and little hope, for reform.

To bring my part of the Monday message to a close on a note of hope rather than despair, in the list of significant events over the last two weeks, PRT, the CBA and the National Federation of Women’s Institutes (the WI) can reasonably celebrate a significant milestone in the roll out of liaison and diversion services across police stations and courts in England. Inspired by the tragic death in Manchester prison of a young man suffering from schizophrenia, the son of a WI member, we convened the Care not Custody coalition.

Representing around two million health and justice professionals, its members include the Bar Council, the Law Society, the Police Federation and the Royal College of Nursing. Its purpose is to hold government to account for its promise to, where possible, divert people with mental health needs, a learning disability and those struggling with an addiction into the treatment and care they need.

In a raft of actions taken by members, PRT, lead by Jenny Talbot,  worked in partnership with the National Schizophrenia Fellowship, the Magistrates’ Association, the Justice Clerks’ Society and the Judicial College to produce the Magistrates’ pack on mental health, autism and learning disability as a resource for the courts.

On 12 July coalition members gathered to hear then Health Minister Alistair Burt MP announce an additional £12million funding from Dept of Health for liaison and diversion services . It is worth pausing at the end of this tale of snakes and ladders, comings and goings and changing places, that it was our new Prime Minister, then Home Secretary, Theresa May, who last addressed the Care not Custody coalition back in 2014. You can read her speech by clicking here. Her firm pledge was to avoid, wherever possible, using police or prison cells for vulnerable people.

One step from justice reform to social justice – now that could be something for PRT and the CBA to build on.
Juliet Lyon CBE is outgoing director of the Prison Reform Trust and new visiting professor in the School of Law at Birkbeck, University of London.

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