Monday Message 27.09.21

Plus Ça Change:

It’s not often that the criminal bar is appreciated publicly for its endeavours. Yet, as we welcome our latest Lord Chancellor, we note his tribute last week to “those in the legal sector who worked tirelessly to ensure that, while everything else appeared to be grinding to a halt, victims were supported, and criminals were brought to justice”. He might have chosen a few of his words a little more judiciously, but the women and men at the criminal bar who have contributed beyond their fair share to keeping the system running would nonetheless accept this public acknowledgment. That said, it is a contribution that has come at immense personal cost to each and every one of them. A cost measured in shattered incomes, broken practices, fragmented lives, deprived sleep and genuine fear of what the future will bring. We are the exhausted faces of the system that our new justice secretary has pledged to protect. Let us hope that he recognises that sacrifice and stands with us as we fight to save a CJS that is already on life support, but he should not be surprised if he encounters a little cynicism from our troops along the way. We have seen (and heard) it all before.

The CBA has warned of the painful demise of our system year after gruelling year. Nor have we been alone in sounding the alarm. Indeed, a good starting point for our current Lord Chancellor would be to reflect upon the words of his predecessor in his resignation letter to the Prime Minister: “Our legal system needs investment .. there remains .. important work to be done in helping our system recover from this unprecedented shock, and years of underfunding beforehand have not helped. Justice is beyond price, and as a Government we should always be prepared to invest in it.”

Justice is indeed beyond price. Its true value is measured not merely by the weekly statistics of listings, convictions and acquittals, but also by the respect we give to those whose daily labour delivers a critical public service without which our society will fail to protect its citizens. And it must be understood that, in common with every public service, our labour is not an endless resource. Nor can it be undervalued or taken for granted. There are limits to our patience and to our exhaustion. We are a month away from a budget that will signal to us how much we are valued in reality and not merely in words. We join the Lord Chief Justice in hoping that the new Secretary of State uses his “powers of persuasion” to make the case to Treasury for the proper funding of our CJS. And yes, that means paying enough to maintain a highly trained cadre of professionals who can afford to continue to play their part. Too many have already left the field. The ones who remain can be pushed no harder.

Listings / CVP:

The CBA continues to receive daily dispatches of listing fiascos that create frustration, despair and anger. We have reached a systemic failure when listing officers routinely turn a deaf ear to clerks who plead for a little cooperation when the instructed advocate is already committed to another case. The abundant sense in listing trials so as to ensure continuity of representation is all too often disregarded to the detriment of complainants and defendants alike. Worse still are the increasing number of cases where no barrister can be found at all because the profession is already so severely overstretched and depleted in numbers.

The irrationality in some listing practises is only compounded by the ongoing saga of inconsistency and unfairness in denying the use of CVP in circumstances where it is hard to understand how the interests of justice would be compromised.

The CBA regards these vexed issues as fundamental to the basic working conditions of our members. A failure to find sensible solutions will only encourage more criminal barristers to reconsider the balance of their practices and will do nothing to stem the exodus of advocates from criminal work. That is why we are seeking an urgent meeting with the senior judiciary in an effort to address the twin problems of listing and remote hearings. We will continue to argue the case for a national CVP protocol, and we will offer to work with the judiciary to help produce guidance that brings some measure of transparency to decisions about when such technology can and should be used.

We have also made strong representations in relation to the CLAR about how unreasonable listings and CVP practices impact directly on the ability of our members to earn a living and to maintain a healthy work life balance. And we continue to collate numerous instances of poor listing to illustrate how serious the problem has become. To that end, I would encourage as many of you as possible to send examples of your own experiences to the CBA administrator.

CPS Fee Scheme:

In April 2020, in an effort to mitigate the harsh impact of the suspension of trials upon those of us who prosecute, the CPS introduced a scheme that provided payment for work done before the conclusion of cases that had been delayed due the disruption in our courts. It was a welcome temporary initiative to help prosecuting barristers maintain some cash flow with 75% of Upfront Covid Fees (UCF) claims being paid in the first six months. As the throughput of cases in our Crown Courts has resumed the number of those claims has unsurprisingly declined and so a decision has been made by the CPS to end that support. The broad consensus of the CBA, the Bar Council and Circuit Leaders is that the scheme has served its purpose and we are all grateful to the CPS for stepping in to support us at a time of need. When one division of the CJS reaches out to help another at a time of adversity, it is a gesture of solidarity that gives encouragement to us all.

Treasury Counsel Pathway:

As part of the CPS 2025 Advocacy Strategy and their ongoing efforts to improve diversity within the ranks of our prosecutors, I am delighted to welcome a new initiative to broaden the pool from which our future Treasury Counsel are drawn. For too long, advocates who conduct some of our most serious and complex cases have been disproportionately recruited from the same chambers of those already in ‘the Room’. The perception of self-selection and a de facto closed shop system undermines our wider efforts to ensure that our cadre of prosecutors, particularly at the top end, reflect the diversity of the criminal bar and indeed society as a whole. The Treasury Counsel Pathway initiative is a 12 month positive action scheme intended to redress that historic imbalance by encouraging talented prosecutors from underrepresented groups to apply for appointment as a TC monitoree. It is the product of a joint effort between the CPS, the AGO and the TC team itself, and a significant step forward in levelling the playing field for all who aspire to prosecute at the highest level. We shall be watching with interest to see if it delivers on that ambition:

Claiming Unused Material Fixed Fee:

A gentle reminder to make sure you claim the fixed fee for reading unused material (0-3 hours). It applies to all (non-guilty plea) cases in the Crown Court where the representation order was granted on or after 17.09.20. Fewer than half of advocates are currently claiming their entitlement even though no supporting information needs to be provided and you just have to tick three boxes. I know that we are all exhausted and the pace of listings means that we barely get time to catch our breath these days, but every little bit helps.

Professor David Ormerod QC:

We all owe David our sincere gratitude for his immense service to the CBA through his work on the Education and Training Committee. After 17 years of exceptional research and output he is finally stepping down. We are nonetheless pleased that he has accepted the title of “Honorary Academic Consultant”. Although he is irreplaceable, we are incredibly fortunate that Professor Laura Hoyano has accepted an invitation to join the CBA’s Education and Training Committee and our Law Reform Working Group. Laura has been a stalwart of the CBA over many years and injected formidable intellectual rigour into our responses on a range of issues, not least the rape review where her contribution was exceptional. We are currently preparing our own submissions on the Police, Crime, Sentencing and Courts Bill in which Laura will again be playing a leading role.

Condolences:

We note with great sadness the loss of two outstanding colleagues. Jonathan Cooper OBE at Doughty Street Chambers was a renowned and hugely respected advocate for human rights and a champion of the LGBT community. Georgia Lassoff was an exceptional junior at Red Lion Chambers with a brilliant career ahead of her that was tragically cut short. Each made their mark on our profession in their own way. We are poorer for losing them. Our heartfelt sympathies to their families, friends and colleagues.

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