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Monday Message – 26.10.15

Chairman’s Update: 
Mark Fenhalls QC


I suspect most of us spend every day struggling to distinguish between the “urgent” and the “important”.  “Urgent” always seems to include the daily list of clients to see or speak to, deadlines to meet, witnesses to call, submissions and speeches to make, before we all turn to what remains of our private lives.

In another quiet week several “important” topics require a mention.   Dedicated readers who get to the end of this letter will find two invitations, an apology and a link well worth reading, following the report on “Two Tier” contracts below.  But first prepare for a surfeit of acronyms.

Better Case Management (“BCM”) and Digital Case System (“DCS”)
These are national initiatives of considerable significance first widely published in July, but now upon us.  BCM began in “early adopter” courts across England and Wales (Isleworth, Leicester, Merthyr Tydfil, Portsmouth, Reading and Woolwich) on 5th October.  This is not a pilot and there appears to be no formal period for evaluation before the scheme goes national on 5th January 2016.  If we can make it work, the CJS should run far more efficiently.   It is easy to point out problems – and many of us do at every opportunity and in every forum or meeting – but we all have a responsibility to the public and to our clients to do our level best to make this work.

On each Circuit there is a Local Implementation Team (“LIT”) that meets regularly to build upon the experience of the “early adopter” courts.  The Bar and Solicitors’ organisations are represented as are HMCTS, Judges, MoJ, LAA, CPS, Police and Prisons.

These agencies and representative groups are seeking to agree common ground rules that will smooth out how cases are brought to the Crown Court.  This is not the place to set out the detail, nor will it all be straightforward.  By way of illustration the range of topics we cover include:

  • The principles of communication between parties (secure email, phone). 
  • The provision of the Initial Details of Prosecution Case (“IDPC”) by Police to CPS, Defence and Court (timescales and mechanics depending on whether bail or non-bail cases). 
  • The extent to which Magistrates can and / or should engage in case managing cases that are going to the Crown Court, whether enquiring in to further evidence to be provided or if a PSR should sensibly be ordered immediately. 
  • The new “Plea and Trial Preparation Hearing” (“PTPH”) will ordinarily take place no sooner than 28 days after the hearing in the Magistrates’ Court (unless otherwise advised).  What timelines can and should exist within this period to make sure the police, CPS, defence teams are all as ready for this hearing as possible?  At PTPH the parties will be expected to be in a position to discuss: pleas; likely witnesses and their requirements; special measures; any disclosure issues etc.   
  • So how soon can the CPS lawyer be identified and review the case?  How can they achieve “Leveson’s” exhortation that they get it right first time”?  Crucially, how can they make sure they “get it right first time and on time?  The CPS has borne brutal cuts in recent years.  If this organisation is not properly resourced and does not achieve these objectives, little else will function properly. 
  • How soon will the litigator have access to the papers (digital or otherwise) so s/he can plan visits to the client and brief the advocate?  If digitally, to whom and by when will the material, or password, be emailed?  What systems will firms and chambers have to have in place to make sure they handle this change efficiently?       
  • Assuming the Representation Order is in place in time, when these hardy souls engage with their case and wish to contact the Court to discuss a modified listing to accommodate the conscientious litigator and advocate, will there be enough staff to answer emails and phone calls and will Courts accommodate changes of dates to allow advocates to attend? 

I was told this morning that the National Implementation Team (“NIT”) met on Friday 23rd to discuss listing flexibility and cases that should be exempt last that from the BCM process.  The NIT agreed that Circuits may establish listing practices which result in the listing of a PTPH exceeding 28 days, so long as it is not more than 35 days from the sending.  When 28 days means Saturdays, Bank Holidays and court closure days then they should be adjourned beyond 28 days as opposed to being listed earlier than 28 days.  This will give everyone the maximum opportunity to ensure the case is properly prepared and the PTPH effective.  This should enable judges to make arrangements to enable trial advocates to attend the PTPH.

Further BCM timescales and processes will not apply to these exceptional cases: Witnesses under 10 years; Section 28 hearings; Terrorism cases; and Murder cases.  Detailed guidance will be produced to explain how these exceptional cases should be dealt with in the magistrates’ court to avoid confusion with BCM.

  • The practical challenges for the prison estate, to make sure it is possible for us to see clients in this period?  After all, if we can’t get access to our clients with our digital material (see DCS below) how can we begin to establish whether s/he wants to plead guilty and spare the system and the witnesses the cost and anxiety of a trial listing?  In an era where some prisons allow fixed land-lines in individual cells, can we revisit the subject of timings of conferences and methods of communication?  How do defence practitioners adjust their working practices to make sure that clients are not disadvantaged by the increasing tendency to save resources by not producing defendants? 
  • It is hoped in most cases that the next hearing after the PTPH will be the trial.  More complex /serious cases will warrant a “Further Case Management Hearing” (“FCMH”) – see CrimPR 3.13(1)(c).  
  • As cases are managed between PTPH, FMCH and Trial will there be sufficient case progression staff at the Court to assist and engage?  Can we ensure there is access to the Judges to resolve issues by email and telephone?  If there is a change of advocate for any party, how will the others be notified so that advocates remain engaged in the management of their cases? 

DCS has been piloted in Leeds and Southwark since July.  It is now being rolled out to some early adopter courts (including Woolwich and Reading).  For example all CPS cases sent/ committed to Woolwich courts from 2nd November will be digital, with first hearings from 30th November.  At Reading from 19th November all cases will be served digitally and all PTPHs will be fully digital from 7th December.  The Judges say that advocates will be expected to work digitally from that date on. 

  • To work in these areas you must have a cjsm email account and be registered for PCU wifi so you can access the case files on line.  The era of using non cjsm email for work must end – no more “gmail”, “hotmail”, “blueyonder” or even “talktalk”… 
  • Once you have a cjsm email, you need to apply to [email protected] to register.  Chambers should be addressing these issues urgently, otherwise covering returns or late instructions (for example) will be very difficult indeed. 
  • Then you access your digital case at  Hopefully the system bandwidth will be large enough.  There will be chaos if it is not. 

Screens are being installed everywhere and operating through wifi rather than plugging your computer into the system.  Judges hope that the principle of presenting evidence through your laptops will become the norm.  “Click Share” means you ought to be able to show exhibits and schedules from your own laptop on court screens.  Those of us who prosecute paper heavy cases where we know that it is critical for a jury to be able to write on and highlight schedules and exhibits may face resistance / interesting discussions in the future.

I urge as many of you as possible to attend the CBA’s Ann Goddard Memorial Lecture on Tuesday 3rd November 2015 in the Old Bailey Bar Mess.  HHJ Martin Edmunds QC, Resident Judge at Isleworth Crown Court will be speaking on the new Criminal Procedure Rules and in particular on the early lessons learnt about BCM at his Court.  It will be an invaluable chance to absorb vital lessons as to how our courts will start to function from early 2016. 

Two Tier
All solicitors know about the recent events.  Amongst the Bar not all readers will.  So the activists and engaged amongst you may learn little new.  But everyone should know.  So, feel free to send this on to your local Resident Judge so that s/he can make sure that court staff are prepared for the seismic events ahead and the changes that I am afraid will affect all of us.

Earlier this year firms that bid for the new “Duty Contracts” did so in the expectation that account would be taken of their knowledge, working practices and individual set ups.    They were told that they would receive notification sometime in September.  On 1st October they received an email from the Legal Aid Agency stating that there would be a delay in the production of the results due to “quality assurance issues”.  They were advised that the Contract Notices would be issued on the 15th October.

On about the 1st October there was publicity about the closure of a large legal aid firm and allegations of fraud.  Many of us thought that the delay might have something to do with this issue.  I am told that a lot of small BME firms put their bids through this firm Blavo & Co (as a “delivery partner” to use the jargon).  Once Blavo & Co was shut down, all its putative partners were immediately eliminated.  If the LAA have had concerns about Blavo & Co for some time it does seem desperately unfair that all its partners have been kept in the dark until far too late for them to reconsider their approach. 

Then on 14th October a whistle blower by the name of Freddie Hurlston came forward.  You can read his statement HERE.

I gather that this statement was sent to the Ministry of Justice by the Law Society, the CLSA and the LCCSA that evening.  The MoJ was asked not to issue the Contracts on the 15th and to examine the complaints.  An email was received in reply from the Legal Aid Agency stating that the Contracts would start to come out at 9.15am.

In fact the Contracts started to be issued about 11.30am on Friday 15th October.  Since then many, many firms of exemplary reputation who have not received contract offers now think something has gone very wrong with the process and what Freddie Hurlston said echoes their experience.

These firms are now instructing specialists in procurement law to challenge the process.  Any application for Judicial Review is a separate process.
On Thursday last the solicitors were notified by the MoJ that it will not enter into the Contracts until 2nd November in order to respond to the concerns.  But the stories about inconsistent and irrational marking of bids and illogical awards all over the country continue to emerge.  It may be invidious to give examples, but I am told that two of the Central London Extradition Contracts have been given to a Stafford and a Luton firm.  Perhaps they are better equipped to deliver the work than the experienced London firms who have lost out?  Perhaps this makes sense to someone? 

At the heart of it all is whether Assessors were competent or trained sufficiently to complete the task they faced.  The whistle-blower says “no” and that temporary staff were given quotas of answers they had to assess each day and if they didn’t meet them they were not re-engaged.  If this is right, I do not imagine there are any of you out there who would want the future of your business to be determined in such circumstances.
The Assessors are said to have been people with no legal training and no knowledge of solicitors practices.  Who knows if they knew what they were actually awarding Contracts for and what the Duty Solicitor Service actually is or why it matters?  Certainly many solicitors feel that the assessment their bids have been given has been undertaken by people who do not know what they are doing. 
Frankly those firms who have been offered contracts should be equally worried, because if any of this is true then they may have won offers for entirely arbitrary reasons.

Two invitations for you this week.

Dame Anne Owers, Chair of the Koestler Trust and Doughty Street invite you a drinks reception at the Spirit Level, Royal Festival Hall on Wednesday 28th October, 6:30- 8:30pm.  You will have a chance to view an exhibition of work by offenders, secure patients and detainees.

Can I also draw your attention to an event to be held on Thursday 29th October held by the LCCSA at the Law Society.  Owen Bowcott of the Guardian will be in conversation with Paul Gambaccini and Christopher Jeffries: “How our Justice System can Wreck Lives”.
Greg Foxsmith (now in line for election to become President of the LCCSA at its AGM on 9th November) has graciously said that any CBA member who wishes to attend may do so at the reduced price ticket that is available to LCCSA members.     Greg says if you email [email protected] and book a spot your name will be on the door and you can pay the reduced rate.  I hope to see many of you there.

Work continues on the consultation responses.  As ever I would welcome your views. 

One letter received since last week deserves a direct response.  I used a careless phrase in the section on the BPTC.  This is what I wrote last week:
“In every industry, people are asking questions about whether further education (sometimes at vast expense) actually helps develop the right skills to flourish?  The Bar needs to take a long hard look at whether or not there is any need for the BPTC at all.  I am beginning to think that all the necessary skills could be taught during pupillage, when our prospective talents could work, earn money and start to build their careers.  Why not, for example, have modular courses taught by properly accredited barristers in practise that fit around and within pupillage?” 

I am sorry that I wrote “properly accredited barrister” and did not explain myself more clearly.  Of course I know that many of the teachers at BPTC are indeed “properly accredited barristers” and I was not suggesting otherwise.  What I meant was that barristers in full time practise who gain the appropriate accreditation and training should be able to deliver much more meaningful training within pupillage than is currently offered by the BPTC and at a hugely reduced cost.  Future prospective candidates for the publicly funded profession may save themselves £30,000+ and get the training they deserve.    

And as a final postscript, can I encourage you all to read this thought provoking blog.
Mark Fenhalls QC
The Criminal Bar Association
E: [email protected]

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