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Monday Message – 26.06.23

In the northern hemisphere, on 21st June, we experienced the earth at its maximum tilt towards the sun and so we stretched in our longest day.

The summer solstice marked the astronomical start of summer; the moment when the sun stopped in its path at its northernmost point.

Whether you were washing your face in morning dew, showing your best dance moves at Glastonbury, or simply going to court, summer warmth carries the shine of possibility.

Section 28 Youth Justice and Criminal Evidence Act 1999 Spring review

Even allowing for the application of the astronomical rather than meteorological calendar, summer has started and so the ongoing Spring review of the bolt-on fee is overdue completion.

A reminder of what has been delivered and what we require:

  • The S.I for a bolt on fee of £670 plus VAT was laid on 31st January 2023 and brought into force on 1st February 2023.
  • This was an exceptional bringing into force in 24 hours.
  • It occurred after I wrote to the then Deputy Prime Minister, Dominic Raab, on the 25th of January 2023, raising concerns that the proposed government timetable for the S.I. was not in accordance with the deal; rather it was planned to come into force at the end of February.
  • On 3rd of February 2023 Minister Mike Freer MP, Parliamentary Under-Secretary of State for Courts and Legal Services, reaffirmed the commitment to the £4 million spend in the spending review period up to March 2025.
  • The review in the Spring was incorporated into the deal by the CBA to maximise opportunity to ensure that the spend is met. Too often, there is unrealistic projected spend and then underspend at the end of the spending review period, with the difference not then returning to the Criminal Bar.
  • A key commitment from Minister Freer:

“As you know, we have committed to reviewing this in Spring 2023 and I believe this is the best time to revisit these issues. We remain committed to spend £4m over the current SR (i.e. by March 2025) as we set out and we will have more data on the number of hearings by Spring. In the meantime, I am exploring whether there is any more that we can do to allow s28 payments to be made earlier than the conclusion of the case.”

Access the letter here.

The Review

I met with senior officials of the Ministry of Justice last week. I also have communicated with Minister Freer, requesting that the Spring review be concluded with an increase in fees.

The data should be sufficient for there to be an increase in the bolt-on fee. The prosecution fees increase then should follow, in line with the commitment from the DPP to ensure parity with defence fees.

The increase assists retention of barristers who are giving up rape and serious sexual offences cases where there is a pre-recorded cross-examination and will start to attract practitioners back to this work.

Lack of barristers who defend and prosecute RASSO cases, particularly those with section 28 YJCE 1999 hearings continues to blight the criminal justice system.

The government needs to act urgently. It is a start to increase these fees. The amounts of money are small and the cases are serious and complex. Morale and trust-building should not be underestimated as important factors alongside financial increase.

Ultimately, it is the complainants, witnesses and defendants who feel the thud of delays as their cases are adjourned for months and years.

Special Preparation/wasted preparation.

Review of this fee is in July.

We are keeping the pressure on for full compliance with the deal.

The Lord Chancellor

Unfortunately, the Lord Chancellor Alex Chalk MP cancelled the meeting that had been fixed for today. I am told that it was due to a meeting with the Prime Minister.

I was able to speak to him on an informal basis last week and have emphasised the urgency of meeting and the importance of the time-sensitive issues.

It might not be seen as a good sign that the Lord Chancellor is taking so long to meet the Criminal Bar; but he still has time to demonstrate that his actions will match his words of support for the Criminal Bar by an increase in section 28 and special preparation/wasted preparation fees.

All Parliamentary Group on Access to Justice

I was delighted to attend this launch and revive the work between the CBA and the APPGs.

For those unfamiliar with APPGS, there is a useful explanation here.

The Lord Chancellor Alex Chalk MP previously was Vice- Chair of the legal aid APPG and member of the pro bono APPG and so gave remarks at the new combined APPG launch.

He described himself as “a legal aid barrister who is spending a little time in politics” and added that:

“Access to justice should be the mission of every lord chancellor,” and that “I feel it to my boot straps that legal aid is the essential lubricant to a free, fair, safe and prosperous society.”

I will continue to keep you updated.

Executive Meeting

The Executive met last week, after a meeting of the Heads of the sub-committees.

Inappropriate over-listing was a major point of discussion and adjournment of trials for years. I was able to feed back the information into the CCIG.

Crown Court Improvement Group

I raised concerns about welfare of barristers through being instructed in too many cases, driven by clerks driven by training to ensure they cover as many cases as they can, driven by long lists and imprecise times of cases.

We continue to discuss and address remedies and pass on hope from HMCTS (based on change) that staff retention in the Courts will improve. This will assist by enabling more people to communicate with clerks.

Chair’s Essay Prize

This prize is open to CBA members, Under 7 years’ call.

It is an excellent opportunity to display your talents as well as receive a prize of £3000.

Access the application form and details here.

Chair’s Drinks

The CBA warmly invites its members and invited guests to summer drinks on 27th July 2023.

Please do come along.

It will be our thank you to all who have worked alongside and for the CBA and supported us, particularly since September 2022.

It also is an opportunity for CBA members from around the country to get together for what will be a fun evening.

The CBA has not held a dinner or national drinks for many years. It is time!

Access the details here.

To attend, please respond to this email, there is no charge.

Why stay at the Criminal Bar?

I regularly meet junior and senior practitioners full of stories about their cases; full of stories about why they practise in criminal law.

For those who were unable to attend the CBA conference in Manchester, Mrs. Justice Yip spoke of her niggling regret at not becoming a criminal silk.

Her speech is excellent and here are some of her voice in a few selected extracts:

“You are all busy and the pressures are real.  I can tell you that judges feel the pressures too.  Like the criminal bar, the judges of the Crown Court do the job that they do because they care.  Everyone in the criminal justice system knows the importance of the work and so will repeatedly go the extra mile.  It may not always feel that this is appreciated.  What I can tell you, without breaching Chatham House rules, is that the mood of the [recent] Resident Judges’ conference was, without exception, very supportive of the criminal bar.  I feel like I have spent a lot of the last three-and-a-half years saying “we can all only do what we can do”.  We do have to remind ourselves of that.  More than ever, we need to pull together so that collectively we are doing what we can to make sure the criminal courts are running as efficiently as possible……..

……The truth is though that for all I enjoyed the work I did, I always missed being at the criminal bar.  I missed the camaraderie and the collegiality of the robing room.  I missed juries.  I missed being in court, because most of my PI work was conducted out of court.  And while I knew that the work I did made a real difference in the lives of seriously injured people, I always retained the sense that the work that was most valuable for society as a whole was crime.  We all have to make choices based on a combination of circumstances.  I am very conscious that we don’t all have the same choices and everyone must do what is right for them at the time.  I am in a very privileged position where I can look back and say I did make the right choice for me at the time.  But if I have one professional regret it is that I didn’t become a criminal silk.  Having returned to the Crown Court as a judge, I still find myself looking at the silks who appear before me with admiration and I do wonder if I could have found a path that allowed me to retain my criminal practice.

I will always encourage someone with a real interest in criminal law to follow that path.  A downside of publicity about the pressures of the criminal jurisdiction is that students are discouraged from entering the field and young barristers may understandably wonder what the future holds…….

……..Having reached a certain age, I have been struck by comments from friends who have always worked in the commercial sector and who are now seeking higher meaning.  Now I know “higher meaning” doesn’t pay the bills in quite the same way as salaries on offer in the City do but, as I have said, we all make choices and just occasionally it is worth reflecting on why we made the choices we did and what it is that they bring.”

Access the full speech here.

Final Words

Of course, we must be paid properly and be valued and feel valued. You have made and continue to make huge strides for the sustainability of the Criminal Bar.

This can be measured in monetary terms and compared to the rest of the public services sector. Why we do the work is harder to measure.

Impact can be measured.

How we feel can be lost. Unless we stop. For a moment.

With the longer days, snatch a pause and reflect.

The Criminal Bar always has been about more than money; essential though that is.

It is court skills, camaraderie, friendship, and inspiration from sharp legal minds that switch the light through the fog of law.

It is about learning, growth, and people. It is becoming that sharp legal mind. It is about justice.

It is about the people we prosecute and defend.

It is the human story; that we are part of, for a time. These people are expelled from our lives as the case finishes. The stories remain and we change a little. Each time. Collectively, we change society a little; sometimes, if the time is right, dramatically.

As well as being a crucial part of the criminal justice system, let’s not forget our absorption in each episode of our cases and how that makes us feel.

Maybe – just maybe- it is work that can burn inside you as fiercely as the solstice and make you feel alive.

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