‘Monday Message’ 28.08.19
Chris Henley QC
A Sad Moment
So, handkerchiefs in the dabbing position, the saddest of sad moments has arrived: my final ‘Monday Message’.
It has been a real privilege to lead the CBA for the last 12 months. I will miss it. It has been much more challenging, but also much more enjoyable, than I had expected. It can take exhausting amounts of time, the range of issues that come at you on a daily basis can be ferocious, but, like almost everything in life, the more you put in the more you will get out.
The remit, responsibility and public profile of the CBA has expanded rapidly over the last 4 or 5 years as the the existential threats to the publicly funded criminal bar have become so acute, and our working conditions have deteriorated. The days of the role requiring not much more than a quarterly column and a speech at an annual dinner are long gone. We have had to become much more focused on wellbeing issues, fees and educating the public, press and politicians about the profound crisis which is causing so much lasting damage to the criminal justice system.
We Need A More Thoughtful And Honest Political Analysis
I find it deeply depressing that too often political engagement with criminal justice issues is about what best serves narrow personal or party interests for the next 24 or 48 hours, perhaps because there’s an election coming up, to distract from some other problem, or some new appointment wants to mark their arrival with a punchy headline. Very few in positions of real influence have seemed inclined or capable of a more thoughtful and honest analysis of the broader issues. The then Lord Chancellor’s response to the ‘Enemies of the People’ headline was a particular low point, as was LASPO’s impact on the very fabric of access to justice.
David Gauke was a refreshing change to most of his immediate predecessors, talking much more openly, for example, about how damaging and pointless short prison sentences are, and signalling an intention to do something about it. It is a real shame he has gone, paying the price for similar candour on another key issue. We now seem, for the moment at least, to be back to a game show approach to crime and punishment. If you truly care about the impact of mainstream crime on communities across the country, you provide the means to the police and CPS to start investigating and prosecuting them again. You acknowledge the collapse in cases being brought to court and reverse the deep cuts to their budgets. You do something about the social and physical environment which has embedded the carrying of knives by so many young people. You do not sanction further reductions in sitting days because you know that despite the rhetoric nothing much will change anytime soon.
In the same way if you care about the future diversity of the judiciary, and the legal profession generally, you make sure that fee levels for barristers and solicitors doing publicly funded work are set at levels that allow and encourage the brightest from all social backgrounds to pursue a career in this important area of work. The judiciary and the profession also need to step up and address the barriers which are inhibiting so many women and BAME lawyers from staying in the profession and/or realising their full potential. It’s disappointing that the very modest requests for sensible email and ‘sitting hours’ protocols, made both by the Bar Council and CBA, have so far been ignored. I have reluctantly concluded that we will have to wait for fresh blood at the top before we get the leadership on wellbeing issues we need and deserve. Until then be honest about what you can and can’t do, don’t put those who need you second outside reasonable working hours because of a sudden request; most Judges do understand, but don’t hesitate to come to the CBA if you are struggling. I have previously cited Sir Andrew McFarlane, the President of the Family Division, as a shining example of what can be said and done. Until such leadership is brought to bear in the criminal courts an environment, needlessly hostile to diversity and family life, will persist. It was not the same in your day, but even if it was……
We Have Turned A Corner, CBA Membership Up
Nevertheless, I feel we have turned a corner this year. Uncomfortable truths about our pitiful fees, and the reality of our professional lives have been told, using your unvarnished words and examples. The prosecution fees survey was a watershed moment, galvanising prosecutors for the first time with very positive results. We won’t let these issues go until we have secured the changes the profession needs. Membership of the CBA has increased this year, which must be a reflection of an increasing conviction that by acting together we are having a real impact. The immediate changes to prosecution fees to be implemented from next Monday will put right the most egregious financial injustices, and at the end of September there will be publication of proposals to positively reset brief fees across the board, refreshers, and fees for work in the Youth and Magistrates Courts, as well as payment for unused material for the first time. The changes to defence fees will take a little longer but meetings are taking place almost every week to design the solutions to the evidence heavy and complex trials, cracked trials and unused material. You are being asked to assist in this process, it is vital that you do. The MoJ have committed significant time and resources to this work; we are sure they want long term solutions to the problems you have consistently described.
Amazing People, Thank You
I would like to thank the amazing people who have formed the CBA inner family this year: Aaron Dolan, without whom there would be no CBA, all of the Executive Committee, the officers – Caroline, Jo Cecil, Emma Fenn, David Wood, Gerwyn Wise, and Peter FitzGerald – and of the many others who have given their time so selflessly, in particular, Athena Markides and Cat Collins of the Young Barristers Committee, Louise Oakley, Professor Laura Hoyano, Sam Parham, Sasha Queffurus, Grace Ong, Tana Adkin QC, Helen Easterbrook, Danielle Manson, Donal Lawler, Daniel Oscroft, Jo Hardy, Nick Worsley and Stephen Knight. I also want to thank James Rossiter, our tireless and brilliant media consultant, who has successfully pushed our agenda with the media, and Malcolm Cree, the Chief Executive of the Bar Council, who has been exceptionally supportive throughout the year. There are of course many more who quietly do and make a difference.
The only advice I was proposing to give Caroline was to sort out her photograph as I completely failed to do. Too late for me now, and Caroline is already on it. She will be fantastic, as James will be in 12 months time.
How will I fill the looming emptiness? I think I’ll manage. Maybe the Pembrokeshire Coastal Path and a sourdough bread-making course. I’m definitely gonna ‘joy it.
Final Book Giveaway
The final book giveaway of my term is ‘Just Mercy’ by Bryan Stevenson, the Alabama Attorney working on death row cases and with children sentenced to die in prison, which I wrote about in my very first Message (‘What it describes is shocking, desolate and magical almost in equal measure. The wilful or casually indifferent wickedness of the state and its agents is almost unimaginable. The resilience of those on the receiving end often equally so’). It’s an incredible book. Copies to the first five of you under 7 years call to email in.
You have been spared a few groan inducing puns which I meant to weave in at some stage but never did: ‘Special Measures for Special Measures’, ‘Notes on a Taxation Scandal’, and ‘The Graduate(d Fee)’, will have to remain on a mental shelf gathering dust (or maybe not….).
Final poem: The Orange by Wendy Cope
At lunchtime I bought a huge orange
The size of it made us all laugh.
I peeled it and shared it with Robert and Dave-
They got quarters and I had a half.
And that orange it made me so happy
As ordinary things often do
Just lately. The shopping. A walk in the park
This is peace and contentment. It’s new.
The rest of the day was quite easy.
I did all of the jobs on my list
And enjoyed them and had some time over.
I love you. I’m glad I exist.