The Winds of Change

The CBA welcomes the recent appointments of Lord Faulks QC and Simon Hughes MP to the Ministry of Justice. As this blog explores, maybe this heralds some cause for optimism as the festive season draws nigh..

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Regular readers of this blog may appreciate that I am not exactly a fan of our current Lord Chancellor, Failing Grayling, or indeed his lapdog, Hysterical McNally. True, they have been easy targets to satirise and have provided a rich source of material to poke fun at. From dodgy expense claims, failed policies, constant switching of parties or just plain incompetence, the pair of them present themselves as the gifts which just keep giving – and as Christmas approaches, that’s no bad thing, save for one matter. That ‘one matter’ is a biggie. The two of them seem intent on dismantling the independent criminal bar and with it, our Criminal Justice System.

During the past 8 months or so I have watched whilst consultation responses have been ignored, swingeing cuts have been introduced and matters have got so bad that the criminal bar is set to hold its first strike…

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A letter from the LCJ to resident and presiding judges…

This morning Nigel Lithman QC received the following message from the Head of the Lord Chief Justice’s legal team, Claire Fielding:
 
Dear Nigel
 
The Lord Chief Justice and Senior Presiding Judge sent the following joint message to the Presiding and Resident Judges on Friday evening:
 
“Dear colleagues
 
You will be aware that members of the criminal Bar intend to stage a protest on Monday 6th January 2014, when they will make themselves unavailable for court until 2pm.  The Criminal Bar Association, in consultation with the circuit leaders, has issued a non-binding Protocol in relation to this action, which may extend to defence solicitors in the magistrates’ court.  
 
We have received a lot of queries about the position of the courts and are aware that many of you are receiving similar queries. In light of this, we thought that it may be helpful to confirm our view in writing to you all and to make this view public in due course, in order to minimise uncertainty.
 
The position of the judiciary is straightforward. It is constitutionally independent.  Monday 6th is a working day and as such, the business of the court will go ahead as normal. In line with usual practice the court should hear any applications to adjourn, taking into account the interests of both parties and the administration of justice, but will only remove a case from the list if an application is made on properly arguable grounds.
 
Each decision regarding listing prior to 6th January must of course be for the individual judge to which the case is allocated or the Resident Judge, taking into account the particular circumstances of the case. All decisions on the 6th January itself are for the judge listed to hear the case that day”.
 
Best wishes
 
Claire  

 
He replied with:
 
“Would you thank the Lord Chief. He could not be fairer”
This morning I received the following message from the Head of his legal team, Claire Fielding:
 
Dear Nigel
 
The Lord Chief Justice and Senior Presiding Judge sent the following joint message to the Presiding and Resident Judges on Friday evening:
 
“Dear colleagues
 
You will be aware that members of the criminal Bar intend to stage a protest on Monday 6th January 2014, when they will make themselves unavailable for court until 2pm.  The Criminal Bar Association, in consultation with the circuit leaders, has issued a non-binding Protocol in relation to this action, which may extend to defence solicitors in the magistrates’ court.  
 
We have received a lot of queries about the position of the courts and are aware that many of you are receiving similar queries. In light of this, we thought that it may be helpful to confirm our view in writing to you all and to make this view public in due course, in order to minimise uncertainty.
 
The position of the judiciary is straightforward. It is constitutionally independent.  Monday 6th is a working day and as such, the business of the court will go ahead as normal. In line with usual practice the court should hear any applications to adjourn, taking into account the interests of both parties and the administration of justice, but will only remove a case from the list if an application is made on properly arguable grounds.
 
Each decision regarding listing prior to 6th January must of course be for the individual judge to which the case is allocated or the Resident Judge, taking into account the particular circumstances of the case. All decisions on the 6th January itself are for the judge listed to hear the case that day”.
 
Best wishes
 
Claire  

 
I replied with:
 
“Would you thank the Lord Chief. He could not be fairer” – See more at: https://www.criminalbar.com/latest-updates/news/q/date/2013/12/16/monday-message-16-12-13/#sthash.QZIZUUnX.dpuf

CBA Day of Action: Monday, 6th January 2014: Frequently Asked Questions.

Why is the action only half a day, not a whole day?

In consultation with the Circuits, it has been decided that the first such action will be a half day. It is a very reasonable and proportionate step and will act as a demonstration of the strength and unity of the legal professions..

Are the solicitors also taking action?

Yes. The CLSA, LCCSA, SAHCA and other bodies are calling upon their members to join the Bar in its action. Consequently, many criminal solicitors in England and Wales will not be attending court on the morning of 6th January. This will be nationwide.

I am due to be prosecuting on that day. What stance have the CPS taken?

Because the action is about the damage that will occur to the criminal justice system, we take the view that that is a matter which concerns all barristers in private practice, whether they are due to defend or prosecute on 6th January. Hence we understand that those due to prosecute on the 6th January or who prosecute all of the time may want to standby their colleagues with whom they spend their professional lives.

The Chairman of the CBA has spoken to the new DPP, Alison Saunders, about the action, and sought to impress upon her that, although the criminal Bar has no argument with the CPS, the government’s cuts to legal aid threaten the continued existence of the independent criminal Bar.

The independent Bar is a cornerstone of a criminal justice system that is the envy of the world, and a valuable resource upon which the CPS and other prosecuting authorities rely. Proposals which risk damaging the fabric of our system of criminal justice are as much a concern for the prosecution as they are for the defence. The DPP has not yet made any public statement about the action, either supporting it or condemning it. We are hopeful that, even if she does not go so far as to support it, she will at least not threaten disciplinary measures, such as withdrawal of instructions, or removal from the CPS Panel. If and when the DPP makes a public statement, we will issue further guidance, here, and in the Monday Message.

I will be doing a privately-paying case on that day. Am I expected to join the action?

Whether you participate in the action or not is a matter for individual decision. As with prosecutors, you may feel that, notwithstanding the fact that you are not conducting a legally-aided case on the 6th, the issues which lie at the heart of this action are a matter of concern to every criminal barrister – and solicitor, for that matter and whilst you may be doing a private case on that day, on others you may still accept legal aid briefs.

Accordingly, you may wish to support the action. If so, you should write to your instructing solicitor, using the template we have suggested, tailored accordingly

My case is in a warned list on 6th January. How should I deal with this?

If you wish to participate in the action, you should do so in the same way as if your case is listed with a clean start in a court. You should inform your professional client (using the template letters) that you will not attend in the morning, but will do so at 2.00pm.

I am representing a client in custody on 6th January. I want to participate in the action, but I do not want to jeopardise my client’s liberty. What should I do?

You or your clerk will have notified the court of your intention not to attend until 2pm. The letter that you send to your instructing solicitor asks them to send a representative to court to reassure the client, who would otherwise be wondering where his solicitor and barrister are, and to tell him or her that you will be there at 2.00pm. In the (we think) unlikely event that the judge does deal with your client in your absence, you should ask for the case to be further mentioned when you get there at 2.00pm. See, further, the guidance at question 11, below.

The Protocol advises that if I am involved in a ‘particularly sensitive’ case that cannot be moved to 2.00pm, I should attend court in the morning. What sort of cases do you have in mind?

We have taken the view that it is not appropriate to make a blanket request to the courts to list all cases at 2.00pm on 6th January, but there are some cases, and we think that these will be few in number, where such a request, perhaps coupled with making arrangements with your opponent, may be the right course to take. If, for example, you are due to start a trial with a child witness who is scheduled to give evidence on the 6th, and you wish to participate in the action, you should act as follows. If you are defending, contact your prosecutor, informing them of your wish to not attend court before 2.00pm, and ask them to arrange for the witness to be brought at 2.00pm (or the next day, if time would not permit the evidence to be heard on the afternoon of the 6th) and write to the court, asking for the case to be listed at 2.00pm. If either your opponent will not accede to your request, or the court insists that the case is listed in the morning, then your duty is to attend, and you should attend.

There may be other types of case which cannot be moved to 2.00pm – perhaps involving defendants being brought from hospital, or where serious inconvenience would be caused to, for example, a medical professional, by having them wait until the afternoon.

Of course, it is a matter of individual decision whether you participate in the action; you must balance these competing considerations. If you require case-specific advice, email the helpline address below.

What steps have been taken to inform the judiciary of the action, and the reasons for it?

The Chairman of the CBA has spoken to the Lord Chief Justice, in his capacity as the Head of the Judiciary, to inform him of the action as a matter of courtesy and to discuss it with him. As with the DPP, the Lord Chief Justice has made no public pronouncement. As you would anticipate the Chairman received a courteous and kindly response.

We have taken the decision that it would be wrong to seek the co-operation of the judiciary, or the Courts Service, by making a blanket request for all cases to be listed at 2.00pm.

What should I do if I find when I attend at 2.00pm, that the judge has dealt with the case in my absence?

It is not the defendant’s fault that his or her barrister is not there. If you find, when you attend at 2.00pm, that the judge has dealt with your case in your absence, the course you should take will depend upon what action the judge has taken, but you should consider asking for the case to be re-opened, either that day or later.

Will the judge make a wasted costs order against me if I don’t turn up?

It is possible that, if the judge has stood your case down until you arrive, s/he may threaten to make a wasted costs order against you. If this happens, ask the judge to adjourn the consideration of that matter to a later date (the end of the trial, or after the sentencing hearing). Politely tell the judge that you wish to be represented at the hearing of that matter. Then email us at the address provided, or ring the helpline immediately. The CBA and the Circuits have a panel of silks and senior juniors to provide advice and, if needed, representation at wasted costs hearings.

Will I be committing a misconduct offence for which the BSB might discipline me?

If you fail to turn up when a case in which you are instructed is listed, it is likely that you would be committing an offence of professional misconduct, the seriousness of which would, at least in part, depend upon who was complaining about you, and what they were complaining about. For example, if you were defending, and your client’s case was dealt with by the court in your absence, s/he might legitimately complain about your failure to be there to represent them. If, on the other hand, the court simply adjourned your case to later in the day, or to another day, the judge might complain that you had shown discourtesy to the court.

As we have indicated, the CBA has taken a good deal of time and trouble to inform those who might potentially be affected by this action, and we very much hope that consequently no-one will be made the subject of a complaint to the BSB, by anyone. But if you are reported, or are threatened with such a complaint, you must deal with it courteously and refer the matter to the CBA and the Circuits. You will be advised, and if necessary represented,free of charge, by an experienced silk or senior junior.

If I face disciplinary action, will I get support from the CBA?

Yes, absolutely. As we have indicated, we have established a panel of silks and senior juniors on each Circuit who will be available to give advice on the telephone, on the 6th January and thereafter, to any member of the Bar who requires assistance. If you do face disciplinary action, you will be represented for free by a member of the panel. The email address you should contact for general advice about the day is: CBAdaysofaction@criminalbar.com 

If you require professional conduct advice, for example, because you are threatened with disciplinary action or a wasted costs order, you should contact: CBAdisciplinarydaysofaction@criminalbar.com

Of course whilst advice and representation is pro bono, we cannot undertake to pay any financial penalty you may receive or wasted costs order that might be imposed.

OK. If I don’t go to court, what should I do on the morning of the 6th? Are we organising demonstrations to publicise our cause?

What we are doing on the 6th January will differ from circuit to circuit. There will be demonstrations outside of some courts and meetings at other locations. These plans are making quick headway and will be with you by the time you break for Christmas.

What am I to say about why we are doing this if I am asked by a member of the public or the press?

It is important that we do what we can to ensure that the public understand why we are doing this. It is not just a pay dispute for barristers, but a fight to preserve the fabric of a criminal justice system of which we should all be proud.  It is imperative that you deal with members of the public courteously. So far as the press is concerned, we plan to have one member of the CBA outside every Crown Court who is briefed to deal with the media. You will know who this is in advance of the day. Please refer any press interest, either before the event, or on the morning of 6th January to that person. This will ensure that a consistent message is given nationwide.

 

Nigel Lithman QC, Chairman

Tony Cross QC, Vice Chairman

Day of Action Protocol

PROTOCOL FOR 6th JANUARY – THE FOLLOWING HAS BEEN DRAWN UP BY THE C.B.A. IN CONSULTATION WITH THE CIRCUIT LEADERS, TO WHOM WE ARE GRATEFUL.

PROTOCOL FOR 6th JANUARY

Background

The rates payable for Crown Court advocacy were fixed by the Government in 2007 following the Carter report. The fees then fixed were supposed to represent reasonable payment for work done. Since that time there has been no increase in fees to take account of the rises in the cost of living. Additionally there has been a series of reductions in fees which has resulted in the average fee payable for a case now in 2013 being over 35% less in real terms than that which would have been paid in 2007. Many Crown Court advocates have seen their fees cut by a larger percentage than that – e.g. Silks involved in murder trials. The Government’s own figures in the first of the recent consultation documents suggested that 60% of the criminal bar now received less than £50,000 p.a. from criminal legal aid – a figure that includes VAT. From the resultant ex-VAT figure of up to £35,000 a barrister has to make provision for chambers expenses, a pension, health insurance etc.

In addition to that the Government has cut the fees in VHCC cases by a further 30% across the board from December 2013 and now proposes to cut again fees payable on graduated fee cases. If these new reduced fees are introduced the overall reduction in fees in real terms since 2007 will be over 41% on average.

The bar has stood firm against further cuts, pointing out that no other profession has sustained cuts of the magnitude already imposed on us. We have been met only with the response that the Government needs to save money and that we will have to bear the brunt of it again.

In the past the bar has made polite protests and done no more with the result that we have been targeted for fee cuts on a repeated basis. There is now a strong feeling at the criminal bar that if these cuts are introduced they will make it impossible for many to continue in practice. The loss of a large number of good practitioners will either destroy the criminal bar or render it a small and ineffective group unable to prosecute and defend to the high standards that have been expected of them hitherto. The criminal justice system will suffer as a direct result of the cuts. Trials will take longer and Judges will be deprived of the help that they have rightly come to expect will be provided to them.

It is against the background and for the reasons set out above that many members of the criminal bar intend to attend a series of meetings across the country on Monday 6th January 2014 so that they can discuss their futures. They will be ready to resume by 2pm. It is not a decision that has been taken lightly.

It is of course a matter for each individual barrister to decide whether he or she will protest in this way. It is anticipated however that the likely consequence will be that Crown Courts throughout the land will not be able to sit until 2.00 pm.
The rest of this document sets out a suggested non-binding protocol to ensure that there is minimum inconvenience to the Courts and to lay clients.

The guiding principle should be that those who decide not to attend Court on the morning of the 6th January 2014 should give notice of their unavailability.

If you are already engaged in a case that is listed for that morning but do not wish to attend until 2pm you should: –

Write to your professional client to ask them to communicate with the lay client (making it clear that the obligation on the client to attend court is unaffected); and
Ensure that your clerk notifies the court that you are not attending court that morning.

You should do this immediately so that you will have given the court four week’s notice.

If you do not have a fixture that day, and intend not to attend court that morning, then you should now inform your Clerk that you will be unavailable that morning. You should inform the Listing officer for the Courts at which you would ordinarily work that you will be unavailable that morning. You may wish to avoid listing or adjourning hearings to the 6th Jan time will allow these cases to be heard before Christmas.

If you are prosecuting on 6th January 2014 the same principle of notification and the same procedures should apply.

If you are appearing in a Magistrates Court that day you should notify the Court and your professional client that you will not be attending.

Those concerned that their lay client’s liberty may be specifically at risk on the morning of the 6th January may wish to ensure that arrangements for attendance are made for their professional client’s representative to attend on them until 2pm until such time as you will be present.

If that day you have a privately paying client similar principles apply to those that apply to those who are prosecuting on that day.

Some cases that day may be particularly sensitive and simply cannot be moved until 2.00pm. These though will be rare. If you are in a case involving the young or vulnerable then you should attend on the morning of the 6th January 2014

We intend to inform the LCJ, all Presiders, all Residents and all Circuit Judges of this protest. To this end again a letter has been drafted by the CBA in consultation with the Circuit Leaders.

If you are uncertain how these plans may affect you, please email us at CBAdaysofaction@criminalbar.com

Each circuit will have a DOA committee. Each circuit will have a team of silks and senior juniors who will try to provide assistance with any potential disciplinary problem. We hope that their services will not be required. If they are, please email CBAdisciplinarydaysofaction@criminalbar.com

VHCC Panel List

Thanks to Dan Bunting for this. We will keep,you updated

Dan Bunting - A Life in the Bus Lane

EDIT –

The MoJ have now ‘clarified’ the position and published a new list of those “Self-employed advocates who have [applied for and] been accredited for VHCC cases has been provided to solicitors to assist them in exercising their duty to secure representation for their clients.* “.

The note reads “Please note that the circumstances of the individuals identified in the list may have changed e.g. they may no longer be a member of the chambers listed.

Expect various revisions as more people on the list drop out (and maybe new people are added?).

This follows clarification from the LAA (see story in the Gazette and the Lawyer) saying “The list is simply a list of barristers who have worked on VHCCs. Nothing more, nothing less.

“If a solicitor has contacted the LAA to say that they can’t find or don’t know many barristers or…

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