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Monday Message 26.02.24

Dear colleagues and friends,

At the half-way point of my stint as Chair I wanted to begin by congratulating our 25 new criminal silks who will take up their appointments on the 18th March 2024, many of you have assisted and continue to assist the CBA and we are so proud of you!  Many congratulations to:

Farrhat Arshad KC, William Baker KC, Kate Blumgart KC, James Bourne KC, Denise Breen-Lawton KC, Jo Cecil KC, Rebecca Chalkley KC, Rupert Doswell KC, Catherine Farrelly KC, Andrew Jones KC, Dermot Keating KC, Jocelyn Ledward KC, Martin McCarthy KC, Saba Naqshbandi KC, Beth O’Reilly KC, Thomas Payne KC, Jonathan Polnay KC, Mohammed Qazi KC, Martin Reid KC, Joel Smith KC, Thomas Storey KC, Maryam Syed KC, James Thacker KC and Clea Topolski KC

May you cherish your new roles as leaders of our illustrious profession!

CBA National RASSO Zoom meeting
We look forward to meeting as many specialist RASSO barristers next Tuesday 5th March 2024 at 18.30 hrs – the Agenda and access link will be circulated earlier that day.  Please attend and speak to us.  We would also be grateful if you would email us at [email protected] with examples of where the system is failing complainants and defendants.

CBA Assistant Secretary 2024
More Congratulations this time to Chloe Ashley of NO.5 Chambers who will be the next Assistant Secretary of the CBA.  Her term of office starts on 1st March 2024 and we look forward to welcoming her aboard.

We also wish to thank Mark Watson for all his dedication and skill as our marvellous Secretary and for his extended period of service since 2021.  He hands over to James Oliveira-Agnew who will have big shoes to fill indeed.

The Common Platform
(Thank you to Daniel Flurry, Crime Programme Director at HMCTS for keeping us informed and Paul Kelleher KC for his continued collaborative work with HMCTS and the below update).

The Criminal Justice System has changed beyond all recognition in the last 10 years with the increasing use of technology, including more use of video evidence from police Body Worn Cameras and CCTV for example.

A fundamental part of the IT revolution was a move to put case materials ‘online’.  This was a joint project initiated by the CPS in 2011 at the same time as the Bar Council published a paper on cost saving in the CJS which urged more use of IT including using the internet to store and transmit case materials digitally.

In order to get something up and running as quickly and efficiently as possible the  CBA and CPS worked together utilising a pre-existing document bundling program which was adapted to create the Crown Court Digital Case System.  It was far from perfect but was only ever intended as the first step.

In 2016 HMCTS proposed the ‘Big Bang’ in the form of the Common Platform.  The principal motive was to refine and enhance the existing technology to increase stability, integrating multiple systems – of which there were many which did not speak to each other – so that they could work seamlessly.

It was intended that this would replace the DCS and for the past few years the CBA has continued to collaborate with HMCTS to ensure the replacement would be better than the DCS.

The reforms proposed by the Common Platform have been hard to achieve but most ambitious IT projects run into problems and one this ambitious was always going to be particularly challenging.

Last week HMCTS announced that “We will focus on getting the existing technology right to enable us to provide a more consistent and reliable service to those seeking access to justice through our courts and tribunals” and “we will no longer deliver some parts of it as we had planned. This will allow us to get the current systems and processes to perform to their maximum capacity and ability before adding more…… We will retain the Crown Court Digital Case System, identifying ways we can enhance it in future, while making sure it works effectively alongside Common Platform.”

This means that the DCS is here to stay, at least for the foreseeable future.

In 2019 the CBA Tech Sub-Committee sought feedback on issues with the DCS which counsel felt could be improved and as a result we submitted a detailed report on potential improvements which we hoped would be incorporated into its replacement.  As one can see from the HMCTS announcement, they are working through these with the operators of the DCS.

Watch this space.

Access the letter from HMCTS here

Criminal Justice Joint Inspection Report
This report confirms the serious issues with recruitment and retention both at the CPS and at the independent criminal Bar.

“The key barrier to the reduction of the Crown Court backlog and the high caseloads for CPS prosecutors is capacity at the independent Bar.  Issues around pay and the impact of the pandemic has led to many members of the criminal Bar leaving the profession.  The independent review of criminal legal aid report published in November 2021 concluded that there has “been a significant fall in criminal barristers concentrated in the eight to 22 years of practice group.  Recruitment of Circuit Judges and Recorders has also had the effect of reducing numbers of experienced counsel, often those dealing with the more complex cases.  Lack of suitable counsel to prosecute and defend, particularly in rape in serious sexual offences, has contributed to delays and ineffective trial, adding to the already considerable Crown Court backlog.”

The conclusion of the report is as we have been repeating “The effectiveness and efficiency of any service relies on its people.  Each agency needs the right people doing the right job for the (CJS) to be effective.  Issues around recruitment and retention therefore impact on the efficiency of the CJS and the effectiveness of the service provided to defendants, victims and witnesses.”

The answer is also offered “All agencies should … ensure that the right support and incentives are in place to retain staff.”

Access the full report here

Court Users Update from the Vice-President of the Court of Appeal, Criminal Division
Lord Justice Holroyde, has recently chaired a meeting of judges of the CACD and has given advice on Counsels’ responsibilities when dealing with Sentences of Life Imprisonment with minimum terms:

  • R v Cookson [2023] EWCA Crim 10 confirms the sentencer is required to reduce the length of the minimum term by the number of days spent in custody on remand.
  • Judges may either carry out the arithmetic themselves and pronounce the minimum term after deduction of the appropriate number of days on remand or pronounce the minimum term and declare the number of days to be deducted therefrom (leaving others to carry out the arithmetic).
  • It is recommended that the former course should be adopted; with the assistance of counsel at the sentencing hearing, the judge should identify the number of days to be deducted, carry out the necessary arithmetic, and pronounce the minimum term after deduction of the days on remand.
  • For that reason, counsel on both sides must ensure they are in a position to assist the judge with the relevant number of days and with confirmation of the necessary arithmetic.
  • The arithmetic of the determination cannot be completed administratively. If any error is made e.g. as to number of days or the calculation, it will have to be corrected under the slip rule: administrative amendment is not permissible.

Remote attendance/observation forms in the CACD
Those who have appeared in the CACD recently will be aware that practitioners are required to complete application forms which can be found at Procedure Rules and Practice Directions for the Court of Appeal – Courts and Tribunals Judiciary.

The VPCACD and Registrar would like to highlight that remote appearance or observation is governed by statute and there are different considerations when dealing with a request, the power to grant is not the same in both cases. Practitioners are requested to lodge forms as soon as possible and reminded late applications can cause logistical difficulty, there is a cut off day and time for applications.

Guide to Proceedings in the Court of Appeal, Criminal Division – Courts and Tribunals Judiciary has been updated.  For ease the guide now has a page outlining changes and dates of updates. The current edition is January 2024 (eagle eyed observers will note that the changes are as at December 2023). Practitioners are advised to bookmark the link above so that the current edition will always be available for use.

There will be a Court Users Group meeting in July and the invites to the various representatives will be sent out nearer the time.

Protocol for the instruction of Counsel in the Magistrates’ Court
Following the publication of the new protocol we wanted to thank the Bar Council and the LCCSA for working alongside the CBA on the Protocol.  Collaboration on matters of remuneration is key.

Further details here

Advanced Advocacy Training Scholarship
The CBA are pleased once again to offer funding for up to five of their members, practicing as criminal barristers in publicly funded work, to help with the cost of attending The South Eastern Circuit, Tim Dutton CBE KC, Advanced International Advocacy Course 2024.

Full details of the course and how to apply for the scholarship are here.

Bringing [Dis]Ability to the Bar – Court Accessibility Survey
As you rush around the courts of England & Wales we would ask you take a moment to consider court accessibility for those with a disability.  The BDABar needs your input on practical accessibility to different courts, cells, cafe and robing rooms.  More on accessibility will follow.

Here is the link to the survey.

Wishing you well with your endeavours, be excellent as always!

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