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Monday Message 27.06.16

Chairman’s Update: 
Mark Fenhalls QC


Subjects this week:  the referendum, the election for vice Chair, duties of counsel in the CACD, 3rd VI pupillages, a DCS update and the new CPS policy about counsel speaking to witnesses.
Result of Referendum
We are all being spun in the ‘widening gyre’ as we face an unprecedented uncertainty.  Politics appears to be in meltdown.  The immediate economic impact seems severe and who knows how long that will last.  Who knows if the costs of fuel and the weekly shop will go up and how many jobs may be lost?  Who is to say if individuals and businesses will put on hold those investment projects and how much damage the economy will actually suffer?  We watch with a mixture of bewilderment and irony as those who have received most EU funds in recent decades have voted to leave (Cornwall, Yorkshire, Wales) now ‘demand’ that the UK guarantee the same amount of money keeps flowing in.  “What UK?” one might ask … the memes for the proposed “new country of ScotLond” circulating on the internet touch a deeply painful nerve.  Perhaps someone will propose that HS2 should now bypass the rest of England and go straight from London to Glasgow or Edinburgh?
But it is not much use me adding to the fevered speculation about what might unfold over the coming months and years.  My concerns are slightly more parochial.  What can the CBA, each of us, continue to do to try and sustain the CJS in these troubled times?  In the end perhaps not much more than continuing to make sure that every witness and defendant is treated fairly and as well as we can. 
None of us can predict what decisions (if any) will emerge from the MoJ in the coming months.  Who knows what the ministry’s budget will look like in coming years.  But I can assure you that the relentless and positive cajoling, reasoning and “speaking truth to power” that Francis and I have been engaged in on your behalf during the last year will continue. 
If I were permitted a wish, it would be that the Lord Chancellor spends every working moment before October in securing his reforming legacy in the MoJ…  That significant and important steps are taken in the prison estate that improve education and help reduce recidivism…  That there is formal acknowledgment of the consequences of the recent PAC report that showed that the cuts of the last few years had damaged the interests of victims and been counterproductive…  That the time is ripe to replace AGFS and LGFS so that advocates and litigators are properly rewarded for the hard work they do, rather than on an, inadequate arbitrary and perverse way…  That proper work is done on the necessary capacity in the court system before rushed moves to sell off court rooms…  Much has been achieved this year, if only to halt the worst excesses of went before, but much remains to be done.
Whatever the shape of the political settlement that emerges in the next 4 months as the next PM is named, ministers move and, perhaps, a General Election is called for the late autumn or spring, I am confident that the CBA and the membership will fight tooth and nail for measures that preserve all that is good about our system and to root out all that is wrong. 
Francis has written a personal letter to Messrs Johnson and Gove which may be of interest to you HERE.  
Vice Chair Election 
The manifestos can be found HERE and HERE.  Please urge friends and colleagues to read, consider and vote.  The position is vital.  Look at their records and if you do not know either of them ask someone who does.
Criminal Appeals – Counsel’s Duty to the Court:
The Bar Council’s Ethics Committee has just published a new document entitled “Criminal appeals – duties to the Court to make enquiries”.  You can find it HERE on the Bar Council website.  
Regulating 3rd VI Pupillages
The Bar Council Education and Training Committee is seeking views on the potential reform of the third six pupillage system via a survey for individual barristers or chambers to complete.  For my part I think there is an urgent need for sets to consider offering better prospects to 3rd VI pupils if are to have any hope of retaining talented candidates at the criminal bar.  You can read this article by a member of the Bar Council’s Third Six Pupillages Working Group outlining the issues HERE  And please complete this survey.
Digital Case System 
On Wednesday last week those who operate the DCS wrote to all clerks to say that it would no longer be possible for clerks to access DCS using generic addresses (e.g. [email protected]) from 20th July.  Apparently generic addresses infringe the requirement that there be a sufficiently clear audit trail about who has access to case papers.  Many chambers are irritated by this approach, not least because paper briefs have been sent to clerks since the beginning of time, but there seems little we can do.  We have been given one month’s notice for individual clerks to apply for a CJSM account, register for DCS and be invited to the relevant cases.  The month (expiring on 20th July) will be a period of grace when generic accounts may still be used.  Please make sure that someone in your clerks’ room or on your management committee has taken notice of this issue and how it affects you and all your clients, prosecute and defence, who may have to re-arrange the way they invite people on to cases.
CPS instructions re speaking to witnesses at Court
I hope by now that you will have read the guidance issued by the CPS.  The CBA’s reaction can be found in the formal response we submitted last year.  Some will remember I addressed the subject in this message on 16th May.

Much of the guidance is sensible and appropriate.  There are sections however about which I and many others have significant reservations, believe may damage the prospects of securing convictions and will actively reduce the efficient use of court time.

But for better or worse, this guidance now forms part of your standard instructions.  Approach it with caution and do not leave yourself exposed.  If you need help, then ask.  If the process is unmanageable then make sure that the Judge understands why and put it on the court record.  If problems arise then for goodness sake let me know.  Concrete examples with dates, indictment numbers and why something went wrong are what I need if we are to invite the CPS to think again.  And if you end up being embarrassed and have to withdraw and lose money, then let us know.  We will do everything we can to make sure that no individual barrister loses out as a consequence.

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