DAMIAN GREEN’S NEW BROOM – AN UPDATE

Well now we know. a press release from the MoJ was released this morning announcing the new Golden Dawn for the Criminal Justice System (CJS)

I quote:

“The Criminal Justice Board has been set up to take a whole system approach to tackling issues across the criminal justice system (CJS).

It will set and deliver the new action plan for the (CJS) efficiency programme, which aims to modernise and reform the CJS into ‘a simpler, swifter and more transparent service which meets the needs of victims and the public.”

“It will also provide accountability, co-ordination across the CJS and will help overcome operational barriers.”

Note those phrases in bold, “whole system approach.” and “across the CJS.”

To the average reader you might think that was intended to convey the idea that the whole system was going to be examined from all angles. and who better to assist in such an examination than all those engaged in the CJS?

So let us look at those who are listed on the MoJ website as being included in this august new body.

Again I quote: “The Criminal Justice Board is made up of operational leaders across the CJS.”

And who are they exactly?

Membership of the Board includes:
  • Damian Green, Minister for CJS and Policing (Chair)
  • Helen Grant, Minister for Courts and Victims
  • Oliver Heald, Solicitor General
  • Baroness Doocey
  • Baroness Newlove, Commissioner for Victims and Witnesses
  • Winston Roddick Qc PCC for North Wales
  • Frances Done, Youth Justice Board
  • Alex Marshall, College of Policing
  • Peter Lewis, Crown Prosecution Service ( Peter has spent his entire career prosecuting on behalf of the public.)
  • Peter Handcock, HM Courts & Tribunals Service
  • Mark Castles, Association of Police & Crime Commissioners
  • Helen Edwards, Justice Policy Group, MoJ
  • Stephen Rimmer Crime & Policing Group, Home Office
  • Kevin McGinty, Attorney General’s Office
  • Jim Barker-McCardle, ACPO CJS Lead
  • Matthew Coats, Legal Services Commission
  • Michael Spurr, National Offender Management Service
  • Keith Bristow, National Crime Agency
The following member of the judiciary sits on the Board as an observer
  • Lord Justice Gross, Senior Presiding Judge & Chair of the Criminal Justice Council

Now see if you can spot a single member of this Government Quango with any recent court experience at Magistrates or Crown Court level. (No disrespect of course intended to Gross LJ.)

Please don’t waste too much of your valuable time. There are none, or if I’m wrong I welcome correction from @MoJGovUK

But that is not really the half of it.

The purpose of this Quango is to “modernise and reform the CJS into ‘a simpler, swifter and more transparent service which meets the needs of victims and the public.”

The hub of the CJS is not Danny Alexander’s desk at the Treasury,  contrary to popular belief in the MoJ and CPS, but courtrooms around the country, be they Magistrates or Crown Courts.

And those most familiar with their workings, and shortcomings, are those who practise there every working day. I have a little list:

Lawyers, magistrates, judges, probation officers, witness care staff, members of professional interpreter organisations. These are all the people who experience from day to day, the frustration of waste of time and resources caused by the most common issues.

And lest there be any doubt as to what the most common issues causing delay really are, we need go no further than the MoJ’s OWN figures:

Court Statistics Quarterly
July to September 2012

What were the reasons they found for delay in the Magistrates Court in the reference period?

“The main reasons for ineffective trials in the magistrates’ courts in the third
quarter of 2012 were due to court administrative problems (27 per cent of
all ineffective trials), absence of the defendant (20 per cent of all ineffective
trials) and the absence of a prosecution witness (16 per cent of all
ineffective trials).”

And the Crown Courts?

“In the third quarter of 2012, absence of a prosecution witness accounted for
22 per cent of ineffective trials. Other reasons for ineffective trials included
court administrative problems (20 per cent), the absence of defendants (20
per cent), the prosecution not being ready (17 per cent) and the defence not
being ready (12 per cent).”

The single criticism levelled at the defence in all of this lies in their failure to be ready in 12% of the ineffective trials. Not all trials, just the ineffective ones, which themselves comprised only 13% of all crown Court Cases.

In other words, and maths is not my strongpoint, a mere 1% of Criminal trials are ineffective as a result of shortcomings by the defence.

A reasonable conclusion to draw, one might think, is that defence lawyers, on the whole, are pretty good when it comes to getting cases in order for trial.

If that’s right then they might also be pretty good at advising others on how to do the same when they are trying to “modernise and reform the CJS into ‘a simpler, swifter and more transparent service which meets the needs of victims and the public.”

It is interesting to note that no separate category has been included in the MoJ analysis for failure to provide interpreters, The Nrpsi could give a couple of hints on that one I suspect.

So let’s go back to my little list of those who might be in a position to help;

“Lawyers, magistrates, judges, probation officers, witness care staff, members of professional interpreter organisations.”

Again, let’s see how many of these groups are represented on the CJB Quango?

None.

Plenty of politicians, members of other quangos, representatives from Police bodies, the CPS, Justice Policy Group at the MoJ (indispensable that one), the LSC of course, and the Chief Exec of HMCTS, who doubtless spends every working day in a court.

So no lawyers at all, AND NOT A SINGLE REPRESENTATIVE OF THE DEFENCE LEGAL COMMUNITY IN ANY WAY SHAPE OR FORM, though it is stuffed full of those in high places in organisations tasked with investigation and prosecution.

And yet the figures themselves show how much more efficient defence lawyers are.

I tire of railing at the endemic inefficiencies of the CPS, partly because we have heard them all before and experience them daily, and partly because I have so much sympathy with the tired and depressed faces I see every day in Crown Court CPS offices. It’s not the workers’ fault!

Their morale is at rock bottom, they are woefully under resourced, and they simply cannot do their job as they would wish to do it.

Word reaches us now that they are even under instructions to concentrate on billing finished cases to improve CPS year end figures. doubtless for yet another accounting exercise aimed at misleading the public.

Now along comes a Quango of the great and the good, who no doubt posed for their photo opportunity this morning before beginning “work.”

As CrimelineLaw Tweeted earlier

“The similar Carter group under the AG Goldsmith met only once. I suspect this will meet same fate.” I’m tempted to say i hope he’s right!

And only now, or 31 mins before I type this, having just looked at my timeline, @MojGovUK have tweeted “We’ll be inviting group of defence practitioners to work with us diagnosing inefficiencies in the system in the near future”

Well it’s nice to be such a valuable afterthought. Near future? Why not now?

Simple answer is you just realised you dropped a clanger and are desperately trying to cover your tracks.

The MoJ Agenda could not be clearer. Cut costs and marginalise defendants and their part in the trial process.

We welcome their excuses on this blog.

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The Culture within the CPS exposed

WHAT FOLLOWS IS PUBLISHED VERBATIM FROM AN ANNOUNCEMENT THAT APPEARS ON THE BAR COUNCIL WEBSITE.

AS EVER, YOUR COMMENTS IN RESPONSE ARE WELCOME. 

THE FOLLOWING EMAIL WAS LEAKED TO THE CHAIRMAN OF THE BAR, THE CBA AND THE CIRCUIT LEADERS LAST FRIDAY

From:

Sent: 15 January 2013 18:11

 Subject: The tick and star system

 Dear All

 Please can I encourage you all to adopt a system devised by                and his team at Isleworth when we were LAUs?

 This is a system of putting a tick or  a star * on the right hand corner of your brief backsheet after completion of the PCMH when the case has been set down for trial.

 The tick is an indication that this case should be briefed out to the external bar and the star is an indication that the case should be briefed to a Crown Advocate.

 The reason for doing this is to give the clerks back at Drummond Gate a helping hand when they are faced with the mountains of briefs from all of the 5 Crown Courts.

 The way we worked this system at lsleworth and Harrow was as follows:

Tick  .we would tick the cases that we didn’t want to do – ie messy ,troublesome cases with lots of complications. We also -would tend to tick the low earners – burglary, going equipped category E, F and H offences.

Star * we would star the cases that we wanted to keep in-house so the higher earners – category B – robbery with a weapon, PWIT’s or category J – indecent images. We would also try and keep in house cases m here we could anticipate that they would end up cracking either because the evidence was weak and not likely to Improve or the witnesses were not going to turn up.

 The tick and star system acts as a guide to those who have the unenviable task of allocating the brief post PCMH.

 Obviously we are keen for advocates to progress and develop their skills and we would encourage everyone to be proactive in seeking out trials that they want to do in order to develop themselves. In that situation where you have done the PCMH and you want to do the trial .star* the brief and e-mail the clerks or your line manager and ask for that trial to be allocated to you.

 Kind regards,

barcouncil

  

We are all appalled if not surprised by this practice and we have issued the following statement:

 

LEAKED EMAIL SHOWS CPS PUTS COST FIRST, QUALITY SECOND

WHEN PROSECUTING SERIOUS CRIMES – BAR LEADERS

The Bar Council, which represents barristers in England and Wales, along with the Criminal Bar Association and Circuit Leaders have today published evidence that the Crown Prosecution Service (‘CPS’) has adopted deliberate practices not to instruct the correct advocate for a given case if there is a financial interest to the CPS in keeping the work in-house.

An internal CPS email reveals beyond doubt what the Bar has long thought to be the practice in terms of how the CPS instructs advocates, namely:

  1. Complex, difficult or ‘messy’ cases requiring a superior level of expertise are briefed out to the independent Bar – especially if they are likely to be poorly remunerated, and
  2. Cases which are weak or likely to be particularly profitable are to be kept in-house, which will lead to misleading figures as to how cost effective in-house CPS advocates are.

Maura McGowan QC, Chairman of the Bar Council, also speaking on behalf of the Criminal Bar Association and all the Circuit Leaders, said:

“The public interest demands that the correct advocate is instructed to prosecute a case based on skill and the complexity of the case. Today, we are able to show, with incontrovertible evidence that the CPS is deliberately acting against the public interest and the best people are not being used to prosecute serious crimes.

“The emergence of the CPS in-house advocate and the focus on cost and budget rather than quality of advocacy is a serious blow to the criminal justice system. We would never have known for certain that this practice was going on, without the evidence that we are publishing today.

“The public and the Bar might justifiably believe they have been misled.

“Both Michael Turner QC and I have informed the Director of Public Prosecutions on the topic. He has offered his apologies and has stated in terms that this communication was unknown to him or anyone in his office and does not represent any general policy. He has promised a full investigation.

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“We await that investigation to see whether the stated method of instruction in the attached email is indeed limited to the five North London Courts or if the notion of dividing work with cynical disregard for standards is more prevalent than we have been led to believe.

“Whilst, of course, we accept the Director’s word that it does not represent policy, it exposes a culture that has grown up within the CPS that is driven by cost and cost alone. The instructions contained in the email demonstrate an utter disregard for ensuring that cases are prosecuted by those with sufficient experience and skill to do so.

“Equally, whilst recognising that the Bar is best equipped to deal with cases, it encourages the use of in-house advocates wherever possible. It is clear to us that, in introducing CPS cuts, no proper impact assessment was carried out. A culture such as the one exposed by this email cannot be dealt with by proclamation alone. The only remedy is to fund the service adequately. We would urge the Government to recognise that their present regime of cuts neither serves the victims of crime nor presents value for money for the taxpayer.

“We have written to the Lord Chancellor and Secretary of State for Justice and the Attorney General to make them aware of this practice.”

CAKE AND SEX! From the NORTHERN BAR. (Where else?) A Guest Post from North Pod Law

It’s the cake and er… sex apparently…show, a fabulous interview with Felicity Gerry.  She talks to Ben about sex trials, anonymity of defendants accused of rape, cross-examination of witnesses in sex trials and other related issues.

http://northpod.openshadow.com/series7/S07E06.mp3

This week also saw a meeting on the Northern Circuit about the future of the Bar – and the threats to it.  As a result, all members of Circuit will be balloted over QASA.  Kirstin tells us what the questions will be and we discuss the apparent feeling on other circuits.

Tell us what you think, particularly about the Northern Bar’s Ballot intitative on QASA.

A SYSTEM – BROKEN Guest Post from Dan Bunting on Damian Green’s New Broom.

Introduction

In November 2011 there was an incident that lead to a man being arrested. I’ll call him Mr K. This lead to a Court case at a Crown Court in London, which I’ll call Victoria Crown Court. This isn’t about Mr K, it’s the story of a system that has been driven in to the ground.

Proceedings

As I say, the incident was in November and Mr K arrested that day. He was bailed for enquiries (not unusual) and was charged in January 2012. The case went through the Magistrates’ Court (he had, quite properly in the nature of the case, elected Crown Court trial) and had his ‘PCMH’ (Plea and Case Management Hearing where the defendant is asked if he is guilty or not guilty and, if he says not guilty, then the trial date is set and directions made for the trial).

This case, as most are, was put into a ‘warned list’ in July. This means that instead of saying “right, you’re trial will be on the 1st July”, a one, two, or even three week window is given for the trial. All parties will get a phone call the night before to say your trial is in.

The reason for this is that many cases ‘crack’ on the day of trial – they are adjourned, or a defendant pleads guilty (to the main charge or a lesser one), or the prosecution drop the case. The argument, therefore, says that if all cases were fixed, then there would be many instances of the Crown Court sitting around without work.

Whilst this is true, it is also true that this creates a ‘chicken and egg’ situation. In many ‘warned list’ cases the lawyers are juggled around and only get the papers the night before. For this reason, things that could be sorted out in advance are often left to the day of the trial.

In any event, the ‘warned list’ system clearly causes great problems for the non-professionals involved in the system as well as those who make their living out of it. Defendants and witnesses have to block a week or so out of their diary knowing that at 5pm there could be a call to drop everything and go to court the next day.

The CPS

Sometimes, very rarely, things go smoothly and the case goes from PCMH to trial without a hitch. Most often, something goes wrong and in this case, as in so, so many, enter the CPS (Crown Prosecution Service).

The rules of the game are clear – the Prosecution have obligations to justice. And this includes giving the defence all the evidence that they seek to rely on, as well as any material that they have that may help the defence.

In this case, as in almost all, the CPS had not done what they were supposed to have done by the date of the PCMH. So, further orders were made for them to serve material on Mr K’s lawyers.

Did they comply with this? Did they hell. Is this a surprise? In short, no. The CPS has an abysmal rate of compliance with Court orders – officially 23%, but in reality much lower (when you factor in general directions set by Parliament). This should be a matter of outrage – if a private business had this level of service, then it would go bankrupt in weeks. As it is, the culture has arisen of this being the norm and is constantly excused. It’s not helped by the fact that there is, effectively, no sanction for this.

Here, the case had to be listed three times to get the CPS to do their job properly. Running a Crown Court is not cheap (figures given are generally between £3,000-10,000 per day) and in this case there were three wholly unnecessary Crown Court hearings.

Another consequence in this case was that the ‘warned list’ period was pushed back due to the CPS failures. The defendant and witnesses, who had blocked out a two week period, were caused further disruption.

The Court gets involved

The moving of the warned list dates caused further problems. Twice in the summer the case was called in for trial in a date when it was no longer in the warned list. Both times the complainant attended, expecting to give evidence, before being told that the case wasn’t happening. Fortunately for Mr K, on one occasion the court was contacted the night before and the error pointed out, so the case was adjourned.

The case was stood out and went into a third warned list in November. It was not used then, and so everyone came back to Court to have a new date given. One wonders why, given the power of modern technology, this couldn’t be done via the internet (or even the old-fashioned telephone). But in any event, another two week period for the defendant and witnesses to put their life on hold went past then.

Fortunately a ‘fixture’ was given – a fixed day for trial in February. This obviously makes life easier for everyone. However, it was not that straightforward. The lawyers, the defendant, the witnesses and the police, all turned up for the trial. For some reason, there were not enough jurors in Court. We waited around all day before being sent home for the night. The same happened the next day. As to why there were not enough jurors? The official reason appears to be down to other cases overrunning unexpectedly. The more cynical at Court felt that it may be more to do with making the stats look better.

The delicate question of money

Mr K is on legal aid. He elected to have his trial in the Crown Court. This can have serious consequences for his lawyer. If the case does not proceed to trial, for whatever reason, his solicitors will received a flat fee of £362 and his advocate will get £194. For example, if the case finished on the next occasion, then there will have been nine hearings, nine days in court, in other words, £21.50 per day. The cost of travel, about £5.00 each time is not included, so already that’s down to £16.50 per day.

Of course, a client may expect work being done, there are many hours by way of preparation and now the law requires various documents to be drafted. Say, as a conservative estimate, 15 hours. Add to that the 9 court days at, conservatively again, 6 hours a day, the total is 69 hours. This is £2.16 per hour. Now, you may not feel pity for lawyers, but perhaps ask yourself this – would you feel confident, if you were a defendant, that you were getting a proper service at £2.16 an hour?

But if Mr K had looked at that and decided to pay privately, not rely on legal aid, should he? Even if he wins, or it’s decided that the case should never have been brought, he won’t get his money back from the government or the CPS. What if DNA evidence showed him to be wholly innocent? Nope, nothing – no refund and you’ll be lucky to get an apology. Maybe, like most people, he couldn’t afford this.

Conclusion

This is not an aberration. This is not an unusual case. The facts of all cases are different, but this sort of thing is commonplace. The worst thing is that discussing the above set of facts in the Robing Room, there wasn’t disbelief, or outrage, but wry amusement and then tales of other cases that would top it. It is unacceptable. Whatever the truth of the matter, four times the complainant came to Court, ready to give evidence, three times all parties had to come to Court to get the CPS to do something that they should have done before, twice the case was delayed because the Court didn’t have jurors. It could be noted that not once was the delays caused by the defence.

The system is a human one, run by humans, and humans always mistakes, everyone accepts that. But this is not an accident or a slip up in one case, it’s one example of many thousands of a systemic failure.

The natural reaction on being thrice told to go away and come back another day for £15 is ‘sod it, I’m out – keep it’. But we do carry on. On 19th February, Damien Green gave a speech about reforming the Criminal Justice System. These sorts of initiatives are like Skodas – you see them a couple of times a year, and they invariably break down after a couple of months – not because of the particular terrain, but because the basic design is flawed.

What Green misses, presumably intentionally, is that the justice system is facing a far bigger problem and that is a chronic lack of funds. The idea that he can come in, whilst money is being taken out of the system, re-arrange things and, hey presto, things will work, is fanciful.

You can have all the CPR you want in the world and a new ‘Stop Doing Justice!’ initiative every week, but it’s papering over the cracks. At some point we will have to decide if we want a system that works properly and, if so, it needs either more money being spent, or have far fewer prosecutions. We can’t have it both ways. We are told that British justice is the best in the world, but telling ourselves that doesn’t make it true. And it’s not, not any more. The criminal justice system is falling apart. It’s being held together by the goodwill of the people involved, and even that won’t last forever.

Guest Post From Nigel Poole QC. Defence Counsel’s Duty Explained

FRIDAY, 15 FEBRUARY 2013

What Are Barristers For?

 
No system of justice worth its name – be it criminal or civil – should prevent the rigorous scrutiny of evidence. Barristers who are wholly independent of the state and of any vested interest are an essential part of the administration of justice. It would be harmful to justice if, for fear of public opprobrium, barristers drew back from asking difficult, embarrassing, even hurtful questions.  

It seems necessary to give that defence of my profession because a fellow barrister from Manchester has found herself at the centre of a storm of protest as a result of what the trial judge called a perfectly proper cross-examination of a witness at a criminal trial. Tragically the witness, Frances Andrade, committed suicide some days after giving evidence. She had alleged that as a teenager she had been raped and indecently assaulted by a teacher and his then wife. The defendants were acquitted of rape but found guilty of some of the charges of indecent assault.  Much public criticism and even personal abuse has been heaped on the barrister. It is no exaggeration to say that on Twitter the barrister seems to have received more adverse comment than the convicted defendants.

Every decent person will have huge sympathy for Mrs Andrade’s family and friends. The case also raises serious concerns about the support which vulnerable witnesses should be given. Nevertheless the nature and the extent of the criticism levelled at the barrister is a challenge to all barristers, even those of us who work in the less newsworthy world of clinical negligence and personal injury law. All of us, at times, will have had to put to a witness that they were not telling the truth. It would be harmful to the administration of justice if we were cowed into not doing so.

I know Kate Blackwell QC, the barrister concerned, though not well – we were appointed QCs at the same time in 2012. So this blog might be said to be partial. She does not need me to defend her, but I do want to defend the profession.

Barristers exist to represent clients – whether the client is the state, a company or an individual. They advise clients, usually at times of stress for them, and help them reach decisions about their cases. Barristers do have responsibilities to others as well but their core role is to act in the best interests of their clients. They must do so with integrity but fearlessly.

Parties to court proceedings are, usually, too personally involved, too stressed and ill-equipped effectively to represent themselves. Barristers do the speaking for them. We do not make up the evidence but we do test it. The questions we put are not indicative of our own, private beliefs. We cannot pick and choose whom we represent. We do not decide whether they are innocent, guilty, truthful or dishonest. We are not the judge or jury. We play a part as advocates in a highly developed and continually evolving system of justice.

If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be found a very just claim.

SAMUEL JOHNSON, Journal of a Tour of the Hebrides, Aug. 15, 1773

Judges are well aware of the need to protect vulnerable witnesses from oppressive cross-examination. The jury would hardly be impressed by bullying questioning. Barristers have a professional code of conduct with which they must comply. But within these proper restraints, they must act in their client’s best interests. It would be a poorer system of justice if they did not do so.
 
Everyone is one false allegation away from being at a jury’s mercy. Imagine you were accused of an offence from decades ago and that you believed your accuser was giving false evidence in court. It is their word against yours. What kind of justice would be served by your barrister refusing or failing to challenge that witness’s evidence in the most effective way she can?

By all means criticise the way the system deals with vulnerable witnesses (an issue which I know the judiciary takes very  seriously). By all means harangue those barristers who break the rules and those judges who allow questioning to go too far. I would not claim for a moment that all barristers are saints! But personal criticism of a barrister properly carrying out her role as an advocate is, I believe, wholly misplaced.

 
 

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DO RIGHT FEAR NO ONE

YOUR OPPORTUNITY TO SHARE YOUR VIEWS ON THE FUTURE OF THE CRIMINAL BAR

 

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.

 

BSB EMAIL Re QASA

Here is the introductory paragraph of an email from Baroness Deech, explaining how beneficial QASA is to us all. 

your comments will be of great value to us, and to her.

Dear Colleague,

As you practise at the Criminal Bar, I wanted to email you directly to ensure you know that the Joint Advocacy Group (JAG) has published the revised timetable for the implementation of QASA.

The Bar Standards Board has endorsed the scheme and has every confidence that barristers will demonstrate their excellence within it. Nevertheless, there are some people, as in all professions, who are not as good as they should be. For this scheme to be effective we have to include all advocates so that we can identify, target and deal with those individuals who are underperforming.

We cannot ensure access to justice if we fail to protect the public from that underperforming minority. The scheme will operate in the public interest to ensure that all who practise in the criminal and magistrates courts reach the required standard of professional performance. The Scheme will also be reviewed in two years’ time.