Weekly Round Up 15.02.13
CBA Chairman’s Update: Michael Turner QC
• Do Right Fear No One: Chairman’s Comment
• Expert Witnesses in the light of the demise of FSS
• Justice and Security Bill: Liberty’s Petition
• Reporting Restrictions Review
• A scandal on the fees front
• QASA: The Time Table
• Making the Best Use of Your Subscriptions
• The New Recorder of London
1. Do Right Fear No One: Chairman’s Comment
“Our lives begin to end the day we stay silent about the things that matter”.
Not my words, but the words of a truly great man, Martin Luther-King Jr. I have received a number of comments recently, particularly from those involved in politics that the CBA has become rather uncomfortably vocal. Yet other politicians privately express sympathy for our position and recognise the merit and substance of our arguments. The say there is nothing they can do, with the only proviso if an issue captures media and public interest. We have championed the public interest.
We passionately believe about raising awareness about the things that matter not only to our membership but to the wider public. When we know that our system of justice is being dismantled before our eyes should we not speak out?
We believe there is a widely held view at the Criminal Bar that QASA in its current form is not in the public interest. Our regulator, the Bar Council has been required by statute to delegate its powers to the BSB. Whilst the BSB have conceded, that QASA in its current form, is not in the public interest, the BSB are still intending to implement it and the Bar Council is seemingly powerless to stop them. We have an oversight regulator in the LSB, who believe that referral fees are fair competition and that the Cab Rank Rule should be abolished. The effect of the latter appears only to limit the individual’s choice of representation. The Criminal Bar huge advances in enabling ethnic minority backgrounds into the profession, are now under real jeopardy as financial constraints are now such that the opportunity of pupillage is so rare that it has the unintended effect of discriminating against those who most deserve a chance. We experience on a daily basis victims of crime and those accused of it being let down by a disclosure system that is a near breaking point and delays caused by a blinkered belief that putting the delivery of public services into the corporate private sector saves the tax payer money.
We all, I believe recognise that if OCOF or contracting come to pass the Criminal Bar dies with it. All of these thing matters.
The CBAs duty is to represent your views. Use the forums, the website, or contact your chambers representative. There are a number of ways where you can make your voice heard.
2. Expert Witnesses in the light of the demise of FSS
On Wednesday I gave evidence before the House of Commons Science and Technology Committee. The panel included myself, Richard Atkinson, Chair of the Criminal Law Committee, Law Society and Karen Squibb-Williams MA, Strategic Policy Adviser, Crown Prosecution Service. There were a number of problems identified by myself and Richard Atkinson, although the CPS took a rather different stance. You can judge for yourselves by viewing the meeting HERE. From this screening came a contact that may interest many of you. Gillian Leak who had over 30 years’ experience in the FSS, was made redundant when the FSS closed. Whilst some of her less senior colleagues were offered jobs with the new providers, she together with many other of her senior colleagues were not, despite their vast experience. She together with other senior colleagues set up Principal Forensic Services Limited as the FSS closed, further information HERE
We cannot give a positive recommendation as this is a new organisation and is untested by me or my committee colleagues. However it looks to have a wide variety of hugely experienced experts and given that knowledge is half the battle we share it with you. Let us know please if this proves to be the useful link, I hope it is.
3. Justice and Security Bill: Liberty’s Petition
Mr Grayling suggested in the Telegraph on Tuesday HERE that Churchill might have been alarmed by, as he sees it the instruction of European Human rights law in the domestic context. Churchill after all was the acknowledged inspiration of the Convention on Human Rights which came into effect when he was Prime Minister in 1953. Might we suggest another of Mr Churchill’s heart felt beliefs, namely “that a democracy is to be judged on how it’s treats its prisoners”. We are sure that Mr Churchill would not have approved of locking them up for 23 hours a day, extraordinary rendition or torture. The Justice and Security Bill aims at closing down open justice when those who have been tortured seek redress through our courts. Many of you may be interested in Liberty’s Petition which we fully support HERE.
4. Reporting Restrictions Review
Dear Mr Turner QC,
In the Government response to the consultation ‘Getting it Right for Victims and Witnesses’, published in July last year, we undertook to a carry out a review of the existing powers to impose reporting restriction in criminal proceedings and how they are used – especially in relation to those giving evidence.
Paddy Johnson (who is leading the review) and I would therefore be very interested in hearing the views of the Criminal Bar Association on the law in relation to reporting restrictions, and how the restrictions are used in practice. Although the review is focusing on the experience of those giving evidence, any views you have on reporting restrictions more generally will be welcome.
We are speaking to a number of individuals and organisations, including the Law Society. We hope to report in the spring of this year.
We look forward to meeting with you and/or your colleagues.
Victim and Criminal Proceedings Policy
Justice Reform Directorate
Justice Policy Group
Ministry of Justice
8A Red Core
102 Petty France
Tel: 020 3334 6072
Fax: 020 3334 5518
One thing that has struck me is the lack of protection reporting wise afforded to defence witnesses, which is often a reason many are reluctant to give evidence. In any event please let us have your views and experience either on the forum HERE on the blog, tweet or email.
5. A scandal on the fees front
This is a sorry tale from one of our members
Below is a chronology to provide some background:
• 03/02/11: The case is listed for PCMH at CCC. The defendant and five co-defendants are charged with a conspiracy to defraud. The defendant does not attend and a warrant is issued for his arrest. A trial date is fixed for all six defendants, including my client. The trial is fixed for 13/06/11.
• Instructing Solicitors continue to act for the defendant. The prosecution serve just under 4,000 pages.
• 19/05/1: I speak to the Bar Council Ethics Committee for advice on whether I should continue to represent the defendant in the absence of instructions and client. I am advised that I should continue to represent the defendant and the only way I can is by testing the case for the Crown.
• I also speak to the prosecutor to find out whether the prosecution intend to proceed in my client’s absence. I am told they may not but this will need to be confirmed.
• In the meantime I prepare for trial.
• 10/06/11: My clerks are unable to find the case as it is not on the 13th of June list. I telephone to prosecutor to find out why the case is not listed. I am told that there was a Pre-Trial Review for the co-defendants (we were not informed of this hearing) and that the trial will now take place on Wednesday 15th June. I am also told that the prosecution will not be proceeding in my client’s absence. By this time I am already trial ready.
• 15/06/11: The matter is listed for trial for all co-defendants but not for my client. I attend this hearing. The defendant does not attend but still features on the indictment with his co-defendants.
• At this hearing The prosecutor informs the trial judge that the prosecution will not be proceeding in the defendant’s absence. The trial judge adjourns the matter sine die. I then apply for a noting junior and my main reason for doing so, is because having read all the papers it was still not clear where my client fits in the conspiracy. The trial judge did not allow a noting junior but kindly allowed for legal aid to be extended to cover my attendance when the prosecution open their case – which I did attend on Friday 17th June (the court was not sitting the day before).
• My clerks bill the case as wasted prep.
• The LSC say they cannot pay me for two reasons: (i) there was no ‘Main Hearing’ and (ii) there is a warrant still outstanding. The total amount billed is £5,163.90 (including vat).
At the costs hearing my main argument was (i) that the 15th of June hearing was a ‘main hearing’ for the defendant because at this hearing the prosecution mentioned this case in open court and the matter was then adjourned sine die. It was important for me to attend this hearing to be ‘released’ from the case an also because I had prepared. I did what was required of me in accordance with my professional duties to the defendant by preparing for the ‘main hearing’ on 13th of June (which was moved to the 15th). Preparation for this case was essential. This was not the type of case that could be prepared overnight. This was a complicated fraud. Had I not prepared for trial I risked being criticised or even worse, a wasted costs order against me. There was also the uncertainty of not knowing whether the defendant would turn up. Had I not prepared and the defendant turned up there was a risk that my application for an adjournment would be refused. In all the circumstances I was professionally bound to prepare for trial in the event the defendant was apprehended but also in the event that the prosecution may try the defendant in his absence.
(ii) This case is now at an end because a warrant was issued two years ago, nobody knows where the defendant is and there is no certainty whether the defendant will ever be apprehended. A line needs to be drawn and for all I know my client could even be dead. Of importance is while the LSC say a warrant is still outstanding my instructing solicitors were paid £11,816 last January. The defendant was not represented at the police station and neither at the Magistrates court. Instructing solicitors billed the case for reading the papers in the same way my clerks billed the case but the only difference was that I attended the hearings and they did not. Solicitors can still bill a case three months after a warrant has been issued but for some reason counsel can only be paid once the defendant has been arrested!
The matter is presently before the costs judge.
Paragraph 15 of the Criminal Defence Service (Funding) Order 2007, which provides:
Fees for wasted preparation
15.—(1) A wasted preparation fee may be claimed where a trial advocate in any case to which this paragraph applies is prevented from representing the assisted person in the main hearing by any of the following circumstances—
(a)the trial advocate is instructed to appear in other proceedings at the same time as the main hearing in the case and has been unable to secure a change of date for either the main hearing or the other proceedings;
(b)the date fixed for the main hearing is changed by the court despite the trial advocate’s objection;
(c)the trial advocate has withdrawn from the case with the leave of the court because of his professional code of conduct or to avoid embarrassment in the exercise of his profession;
(d)the trial advocate has been dismissed by the assisted person or the litigator; or
(e)the trial advocate is obliged to attend at any place by reason of a judicial office held by him or other public duty.
(2) This paragraph applies to every case on indictment to which this Schedule applies provided that—
(a)the case goes to trial, and the trial lasts for five days or more; or
(b)the case is a cracked trial, and the number of pages of prosecution evidence exceeds 150.
(3) The amount of the wasted preparation fee must be calculated from the number of hours of preparation reasonably carried out by the trial advocate, using the rates for hourly fees set out in the Table following paragraph 19 as appropriate to the category of trial advocate, but no such fee is payable unless the number of hours of preparation is eight or more.
(4) Any claim for a wasted preparation fee under this paragraph must be made by an instructed advocate, whether or not he did the work claimed for.
(5) An instructed advocate claiming a wasted preparation fee must supply such information and documents as may be required by the appropriate officer as proof of the circumstances in which he was prevented from representing the assisted person and of the number of hours of preparation.
The case appears to fall under Paragraph 15(1)(d), namely dismissed by the litigator. The argument is an attractive one given that instructing solicitors have now been paid, there is no longer a representation order in place and if the defendant were to be apprehended tomorrow, then legal aid would have to be applied for again.
If however, (d) is satisfied counsel then has the difficulty in satisfying 15(2) (above).
The trial estimate for all defendants was six weeks, however, most ended up pleading and only one went to trial.
Have we reached the stage where despite counsel working in good faith she is entitled to nothing? If so it is yet another example of how badly treated we are. No doubt there are some who think we should shut up about this too, we will not. If the collective brains trust could get to work on this one with all and any bright ideas let me know.
6. QASA: The Time Table
Date: 17 June 2013
Scheme Handbook published
Phase One – 30 September 2013 – 10 January 2014
Accreditation period in the first area – Midlands and Western Circuits
Phase Two – 10 March 2014 – 13 June 2014
Accreditation period in the second area – South Eastern Circuit
Phase Three – 30 June 2014 – 3 October 2014
Accreditation period in the third area – North East, Northern and Wales and Chester Circuits.
We have our own timetable to decide whether we are going to submit ourselves to a scheme which at present is patently not in the public interest.
7. Making the Best Use of Your Subscriptions
Our newly appointed treasury, Thomas Payne has immediately got into his stride and has done what all good treasurers do, save us money. He has negotiated free meeting room space with the BPP school of law, where we will hold our executive meetings from here on in. A big thank you to him. We are grateful to the Bar Council for the space they have afforded us and mean no offence in changing venues. A saving of £2.500 is too good to miss. Tom has more ideas in the pipe line, the object being to become a lean, mean fighting machine.
8. The New Recorder of London
The New Recorder of London, Brian Barker QC, was sworn in on Wednesday. There was a wonderful turn out from the Bar, which reflected hugely on Brian who commands the respect and affection of so many. For reasons apparent in paragraph 2, I could not attend but our thanks goes to the many who did, who we suspect needed no prompting from us to do so.
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