View from the CBA: In the Chair

Since September I have been the CBA Chair. It’s certainly been interesting. The workload is almost endless, so it is challenging to fit it around a reasonably busy practice. I decided before I took up the post that if I was going to do it and commit so much time to it, I might as well try to shake things up a bit, and do my best to make a positive difference, rather than just occupy the role, do what is required but avoid making waves. You will have to decide how that’s turning out. 

The decision to abandon ‘flexible operating hours’ in the criminal was a significant victory for the CBA. The obvious flaws in the concept, and negative impact on barristers with children, were raised at every opportunity. The FOH pilots are still being pursued in the family courts which is infuriating family practitioners who feel, rightly or wrongly, that their professional body should have achieved the same success that we have on this issue. There are huge, many argue existential, problems with fees in serious, complex, evidence heavy cases, but however modest the extra money put into AGFS was the first increase in almost 20 years. Its certainly not enough, but minimum refreshers of £400, payment for day 2 and all other hearings, are modest steps in the right direction; I’m not suggesting they are any more than modest, first, tentative steps. My sense is that attitudes to fees have hardened across the profession now that all of us have lived their impact. Fees for cracks in the larger cases are now completely inadequate.   

Probably the thing which is most visible to CBA members are the Monday Messages. The most recent ones seem to have provoked a reaction both inside our world and beyond. The Lord Chief Justice made a reference to my comments about Judicial sexist and bullying behaviour in a speech he gave on Monday. The Lord Chief talks about the importance of diversity, social mobility etc, but this requires positive action on sitting hours, flexibility on listing, and sensible parameters on overnight working and e-mails. 

Our working conditions and pay are terrible. I am determined to do something about that. We have been visiting barristers all round the country to test the mood. It’s pretty consistent. We’ve been to Newcastle, Manchester, Cardiff, Sheffield, Birmingham, Bristol and Hull, as well as several meetings in London, at which Carmelite was represented. Too often the worst paid people in the courtroom are the barristers, and far too often we are treated very shabbily: we can be kept waiting for hours, longstanding fixtures are suddenly taken out or reasonable requests for hearings to be moved are refused. This has to change. We will be consulting soon on what is to be done. The Youth Court, particularly remuneration levels, needs a radical overhaul, given the seriousness of many of the cases the Youth Court now deals with. 

There has been a very positive reaction from CBA members who prosecute, to the attention we have been giving their fees. Many of their fees are shockingly low. We now get £380 if a trial is stood out. They get £55. Until the jury is sworn and the first witness gives evidence prosecutors get paid £178.25 a day. In many larger cases there might be several days of legal argument. For the defence if the trial contiguously proceeds to the swearing of the jury, or if the jury is sworn and sent away for several days or a week, the trial will have ‘started’ and proper refreshers will be paid, but not so for the prosecution. And there is no payment for day two. For the first time prosecutors want to join action against fees and conditions. This will undoubtedly make action much more effective. Many hearings limped on in April and May last year, notwithstanding the CBA boycott, because prosecutors were present. If prosecutors join action this will not be possible.

The CBA membership is probably more engaged than it ever has been. Membership is increasing, which might surprise some sceptics. It surprised me. I receive at least 10 e-mails a day asking for help, advice or reporting a wide range of issues. I actually quite enjoy this. (I know, a bit weird). The LAA continues to cause us all unnecessary problems; TNPs rather than refreshers being an obvious example. I’m hoping things have got a little better given the many conversations we’ve had with the Head of the LAA and Civil Servants. I appealed one case to the Costs Master for a CBA member, so ridiculous was the LAA decision. Of course they conceded the night before but it shouldn’t be happening.

I have meetings coming up in the next three weeks with the Lord Chief Justice, Sir Brian Leveson (the lead Judge on Crime), the SPJ, the DPP and the Attorney-General. So any thoughts you might want me to share with them please let me know. We are also in regular contact with all the Solicitor groups making common cause whenever we can. There are occasional invitations to fun stuff, relatively speaking, like a Private Eye lunch in Soho, the Times fireworks party, and the Family Law Bar Association Annual Dinner (ok, I was running out). 

We need to do something significant and urgent about fees. We are constructing a plan which we will survey the membership about once our countrywide visits are complete. If we are going to apply proper and necessary pressure we will have to be brave but my sense is that people everywhere, prosecutors and defence counsel, have had enough. So more interesting times ahead……

Christopher Henley QC

Christopher Henley QC is a criminal defence barrister at Carmelite Chambers.

If you would like to contact Carmelite Chambers in relation to this article, please email clerks@carmelitechambers.co.uk.