Monday Message 29.02.16
Mark Fenhalls QC
What is not in this Message
Nothing about replacement of the AGFS, nothing about waiting for the MoJ response to the autumn consultation, nothing about reform of the BPTC, not even anything specific about the need to end all warned lists … all these are subjects I will return to in future weeks.
CPS Report on Transforming Summary Justice
The inspectors have been in and reported on the implementation of Transforming Summary Justice. The full report can be found HERE. The report has been done at a very early stage (4 months after national roll out) and it is of course too early to tell how successful it has been or whether its objectives to reduce hearings and delay are being fulfilled. The report is positive about some aspects of what has been done by the CPS. But as the Law Gazette and others no doubt have noted there are cautionary tales, as we wrestle with the changes necessary to implement BCM. In particular CPS failure to engage sufficiently with defence lawyers and failure to reliably serve papers before the first hearing are the loudest warning signs. Notwithstanding these shortcomings the report is complementary on how much actually gets achieved at first hearings. Frankly this is a testament to lawyers on both sides who hold the system together. As so many barristers and solicitors on both sides increasingly wonder whether it is worth the candle anymore, we must always remember how important it is to attract and retain the talented. The CPS has been stripped bare by cuts over the last few years and all practitioners should be lobbying for the organisation to be properly funded. If the CPS does not get things right, the rest of us are in trouble.
The work of the Bar Council
One of the unexpected pleasures of becoming Chair of the CBA was the discovery that I automatically became a member of Bar Council and its executive body the General Management Committee. GMC meets on Monday evenings every fortnight or so, bringing together Circuit Leaders, the Chairs of the Young Bar and Specialist Bar Associations with the Bar Council. It was a revelation to me how much time people across the Bar put in to governance and doing what they can to improve our justice system and the lot of all barristers. They do an enormous amount for the criminal Bar and the CBA would be far less effective without access to the knowledge and experience of the Bar Council. This is why you should pay the BRF when you renew your practising certificate this year. Please make sure every barrister you know, employed or self-employed, pays it.
The Bar Council has just launched a short surveyasking us what we think about the need for a new quality mark. Before you groan and utter something unprintable, consider this. Not every chambers out there will have a sensible constitution that is fair to all its members, not all chambers will have an equitable financial structure, not all chambers will properly enshrine E & D principles, not many chambers will have the appetite for self-reflection and change necessary to survive in the 21st century …. Any “quality mark” that helps us look at our own systems and all make sure that all chambers are financially stable and operate fairly and equitably can only be a good thing. Anyone out there who sits on a chambers management committee should be making sure that someone in your chambers completes this survey.
At Bar Council on Saturday morning Fergus Randolph QC, chair of the Law Reform Committee, described some work it has done recently (responding to Law Commission consultations on mental incapacity and deprivation of liberty) and will be doing. For example, the LRC has two sub committees at the moment engaged in mammoth work in areas of key importance to criminal practitioners. Peter Carter QC chairs the Surveillance and Privacy Working Group working to raise the profile of the importance of statutory protection of legal professional privilege in the wake of increasing government surveillance, making submissions and briefing parliamentarians and journalists, in the hope influencing the shape of legislation that may have a significant impact on LPP. Paul Bogan QC chairs the working party preparing a response to the Law Commission’s imminent consultation on a draft sentencing code. When you consider that the compendium of all sentencing law currently in force exceeds 1300 pages, you can begin to contemplate the task ahead.
You may have seen the flurry of press last week about the new consultation opened by the Judicial Executive Board into the payment of McKenzie Friends. As entitlement to legal aid is tightened, the incidence of paid “McKenzie Friends” appears to be growing in all courts.
This 2014 Guardian article summarises a number of the issues. But I can’t improve on the reaction of the Chairman of the Bar, Chantal-Aimée Doerries QC:
“McKenzie friends are unregulated, uninsured and mostly unqualified, and the Bar Council agrees that they should not be allowed to charge people for legal services. Unlike McKenzie Friends, barristers and solicitors are regulated and owe a duty to the court and in this way they serve the interests of justice and the public interest. Those who instruct a paid McKenzie Friend would be better off employing a junior barrister or solicitor. Barristers and solicitors are qualified, regulated and insured, but McKenzie Friends tick none of these boxes.”
The CBA will be responding to the consultation, which closes on Thursday 19 May 2016. If you have specific ideas or thoughts you want included, please send them to Aaron.
Online Courts for some civil cases?
This proposal has recently emerged and I listened with interest to the debate at Bar Council on Saturday. The suggestion is frankly unworkable and an affront to what we need as a society for the resolution of civil disputes. Those of you (largely in the big cities) who focus on crime only may be less focused on this issue. But colleagues in the smaller cities and towns in England and Wales who have mixed practises may be more directly affected. While it is perfectly possible to imagine that an “online court” might be a terrific way to opt to pay TV licence fines, speeding tickets and the like, that is just about it.
CBA lecture tomorrow
Dr Michael Stockdale will be delivering a lecture at the Central Criminal Court from 5.15 pm. Dr Stockdale is head of the Centre for Evidence and Criminal Justice Studies (CECJS) at the University of Northumbria and one of the country’s leading academics in the area of evidence law. He will be talking about expert evidence, which is a very topical subject given the recent changes to the Criminal Procedure Rules and the Criminal Practice Direction that have introduced into our rules of criminal procedure many of the recommendations made by the Law Commission in its 2011 report on expert evidence in criminal cases. Dr Stockdale will be exploring recent developments in the law relating to the admissibility and scope of expert evidence in criminal proceedings with an emphasis on how such evidence can be tested and challenged even by those with little first-hand experience of the expert’s field. He will be travelling from Newcastle with a team from the CECJS. He is hoping to meet practitioners who would be willing to join the Centre’s ever-expanding pool of members. To find out more about the Centre’s work please see their latest newsletter HERE. It would be great to see you at the Old Bailey tomorrow.
Tomorrow Richard Bentwood’s term as Secretary comes to an end. Over the last few years of turmoil and dispute, Richard has given many, many hours to the profession, striving constantly and selflessly on behalf of the members of the CBA. He has been an invaluable and stalwart friend to us all. Thank you.