Institute of Barristers’ Clerks Annual Conference 2013

This speech was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

Discussion of topical issues in the criminal justice system and the work of the Law Officers' departments

It is a pleasure to be here this morning, and I would like to thank your chairman, Brian Lee, for his invitation. I have been asked to give you a ‘topical update’ from my perspective as one of Her Majesty’s Law Officers. In a moment, I want to speak to you about four areas that seem to me very topical at present.

But first: I understand that my predecessor, Sir Edward Garnier QC, who is now in the news for his achievements in court rather than in government, addressed your conference last year.

He gave a detailed answer to that question people have often asked me since I was appointed Solicitor General last September, ‘What exactly is a Law Officer?’ But just in case some of you were not at the conference last year, I will say a few words about the offices that Dominic Grieve as Attorney, and I as Solicitor, hold.

The Solicitor General is essentially the Attorney’s deputy, but since the Law Officers Act of 1997 any function of the Attorney General may be exercised by the Solicitor General, so in law, at least, we are equals, and indeed we share much of the work that falls to be done in the name of the Attorney General.

The Attorney and Solicitor General have three main roles: as chief legal advisers to the Crown and the Government, as the government ministers responsible for the Law Officers Departments and as guardians of the public interest. We are essentially the point at which politics and law meet.

As chief legal advisers, the Attorney General and I oversee the Government Legal Service and are responsible for making sure that government and ministers act in accordance with the rule of law.

As government ministers, we superintend and are responsible to Parliament for the Crown Prosecution Service, the Serious Fraud Office and HM CPS Inspectorate. We do not run these bodies or micro-manage their day to day activities.

But we meet regularly with the directors and Chief Inspector. We also consider where, in the most contentious prosecutions, the public interest lies and how it can best be served, and we consent, or not, to those prosecutions that require our consent.

In our role as guardians of the public interest, independent of Government, the Attorney and I refer to the Court of Appeal those Crown court sentences we consider to be unduly lenient; and we prosecute cases of contempt. We frequently appear in person in such matters.

This brings me to my first ‘topical issue’ – as topical as this week’s news, in which you will have seen that the Attorney and I have been asked to consider whether the 15 month sentence given to Stuart Hall for indecent assault is unduly lenient. Of course, I can’t say anything about that particular case, but I want to refer more generally to my involvement in unduly lenient sentence (ULS) cases.

The Attorney and I personally review all potentially unduly lenient sentences which are referred to us and which fall within the ambit of the ULS scheme. Sometimes, we appear in person before the Court of Appeal: usually when we consider that a case raises issues of particular importance or points of principle.

I presented a case before the Court in January this year which involved the possession of taser devices - or ‘stunguns’ - which were disguised as mobile telephones. The weapons were in working order and capable of rendering a victim immobile, dazed and confused. The offender had bought the weapons over the internet and intended to sell them for profit.

Some of the counts to which the offender pleaded guilty attracted the mandatory 5 year custodial term which Parliament has said should apply to certain firearms offences. The sentencing judge found that exceptional circumstances applied because the offender was of good character and was suffering from depression at the time, which meant that the mandatory term need not be imposed, and he passed a 12 month suspended sentence. In my view, there was nothing truly exceptional about the circumstances and it was important to emphasise the danger of buying and selling such weapons. Who knows what hands they may have fallen into when sold? The Court agreed with my submissions and increased the sentence to 5 years imprisonment.

I also appeared recently to argue that the sentence imposed on an osteopath for sexual assaults on 5 of his patients was unduly lenient.

The offender had abused his position of trust as a medical professional and had offended over a period of more than 10 years. Two of his patients were aged just 13 and 15 at the time. The assaults were not in themselves of the most serious kind but the sentence, of 18 months imprisonment, but did not take account of the number of victims. The Court agreed and increased it to one of 4 years.

Just to demonstrate the very different types of case we have to consider, I also recently referred to the Court a massive conspiracy to defraud in which the two offenders borrowed about £750 million for the purchase of commercial property, having managed to persuade the bank lender that the loans would be underpinned by strong guarantees. In fact this was a carefully planned and sophisticated fraud, involving expert forgeries and false identities and the guarantees were worthless. The Court increased the sentences, noting that the consequences of bank fraud include not just the risk of financial loss, but the disruption of normal business and an erosion of confidence in the system.

Overall the Court grants permission in about 90% of unduly lenient sentence cases and increases the sentence in 70 to 80% of cases, so we have a pretty high success rate.

My next topical issue is a rather different one. You will of course expect me to say something about legal aid reform. We have an excellent tradition of legal aid in this country. But, particularly in the current financial climate, we cannot close our eyes to the fact that legal aid is costing tax payers too much. Before the Government’s reforms began, it cost over £2 billion per year. Ours is among the most expensive schemes in the world.

The background here is of course the scale of the deficit which this Government inherited, and which we are determined to bring under control. We have to make hard choices in many areas: social security, defence, local government services. The justice system is not an island: it cannot be exempt.

We are working to make savings in the criminal and family justice systems through greater efficiency. The fall in crime is also enabling costs to be reduced. But legal aid is also an area where we need to make savings.

The reforms under the Government’s Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect on 1 April 2013. Their aim was not only to make savings, but to deliver better overall value for the taxpayer, targeting legal aid to those who need it most, and discouraging unnecessary and adversarial litigation at public expense. Thus, while reducing the availability of legal aid in a wide range of civil cases, these reforms retained it for criminal cases, and for civil matters where, for instance, someone’s life or liberty is at stake, or where they are at risk of serious physical harm.

Savings from those reforms are estimated to reach £320 million per annum by 2014/15. But the UK will still spend around £1 billion a year on criminal legal aid alone.

So, in April, the Justice Secretary published a consultation paper, setting out proposed further reforms, including changes to eligibility for civil legal aid, competition for the provision of criminal legal aid (apart from Crown Court advocacy), and further fee changes and reductions. These fee changes would have the most impact on barristers earning most, whilst protecting those at the lower end of the ‘pay scale’. In some cases junior barristers would actually see a small increase. The fee proposals are also designed to incentivise the earliest possible appropriate resolution of cases.

It is estimated that these proposals would deliver savings of around £220 million per annum in 2018/19. These are anyway difficult times for the criminal Bar in particular. I undertook criminal cases for many years before and after I became a Member of Parliament. It is now harder for the Criminal Bar. Crime continues to fall: recorded crime is down by more than ten per cent under this Government, and the independent survey of Crime in England and Wales shows crime is at its lowest level since records began. This is of course something we all welcome, but it does inevitably mean there are fewer cases to come to court. In the twelve months ending September 2012, there was a 7.1% fall in the number of defendants proceeded against at court (from 1,583,400 to 1,471,300), compared to the previous year. This continued the decrease seen since the peak in the twelve months ending September 2004.

At the same time, there has in recent years been a significant increase in the numbers of barristers at the self-employed Bar. According to the Bar Standards Board’s ‘Bar Barometer’, the total has risen steadily from 12,058 in 2007 to 12,674 in 2011. Typically, about one third of practising barristers are engaged in criminal work. A combination of increasing numbers and decreasing work makes it difficult – as you of course know – for those starting out at the self-employed criminal Bar, or indeed for more experienced practitioners, to secure enough work.

Against this background, many in the legal professions have been troubled by the legal aid proposals: particularly criminal barristers and solicitors. I suggest, however, that the Bar should welcome one thing that is not being proposed. The Crown Court advocacy fee is not going to be included in the proposed price competition for legally aided work. Many have felt that ‘one case one fee’ would be detrimental to the continuation of the Bar as an independent referral profession.

The consultation period on these proposals closed at the beginning of this month. The Justice Secretary has said that he welcomed the input of the legal professions.

I am sure that he and his officials are now carefully considering the responses they have received, including the very comprehensive response submitted by the Bar Council. In addition to the roles I described at the beginning of my talk, the Attorney is of course Head of the Bar: he or I or both of us attend most Bar Council meetings. This gives us an opportunity to hear the Bar’s concerns at first hand: we can ensure that the Justice Secretary too is aware of them. And the Justice Secretary has promised that this is a genuine consultation: we must all wait and see the outcome.

On a more upbeat note, I want to say something about the prospects offered to the barristers you work with by the Attorney General’s and CPS Advocate Panels. These are topical because exercises to recruit for both kinds of panel will be held in the next few months.

I won’t say much about the Advocate Panels for criminal work, which the Crown Prosecution Service introduced in 2011. All advocates undertaking prosecution work must now be members of these Panels. There are annual application windows, and the opportunity for eligible barristers and solicitors to join the Advocate Panels on a temporary membership basis until they can formally apply at the next window.

I want to say more about the Attorney General’s Panels of Junior Counsel. There are four of these: three London Panels, A, B and C, broadly speaking distinguished by the length of advocacy experience of the members, and a Regional Panel. Members of these panels undertake civil and EU work for all Government departments. Any junior counsel acting for the Government in relation to an inquiry, a judicial review, a claim for damages, an injunction, or any other contentious or non-contentious civil work for which advocates are needed, will ordinarily be a member of one of these panels. Membership gives exposure to cases of great public interest and legal complexity. The most experienced panellists will often appear against QCs. Work undertaken through the panels can in due course assist in preparing applications for Silk and judicial appointment. Indeed, a large number of our senior judiciary have done Government work in the past.

Appointment to the Panels is on the basis of merit, through fair and open competition – but those who want to be on them have to apply! I am glad to say that members of the Panels come from a wide range of chambers: as at 1 March, there were 74 different sets of chambers with London Panel Counsel. I am also pleased to see that over recent years there has been a significant increase in the numbers of women on these panels. In 2008, there were only 10 women on the most senior London ‘A’ Panel. After the 2012 competition, this had increased to 25. The proportions of women on the Panels are now: 39% (A), 33% (B) and 48% (C).

You are uniquely placed to act as talent scouts, identifying those in chambers who ought to be applying for a place on the advocacy panels, whether to do civil or criminal work. The next opportunities to apply for full membership of the CPS panels will be in September, and for the Attorney General’s London Panels this autumn. I want as many as are qualified to apply to do so, and in particular I want to encourage more applications from women.

As I have already said, these are difficult financial times, particularly for those employed in, or working for, the public sector. One way that we can all make more efficient use of reducing resources is by making better use of technology – and this is my fourth issue, very topical for those of us who work in particular in the Criminal Justice System.

Technology has a critical role to play in delivering swift and efficient justice. The law has long been heavily dependent for its functioning on large amounts of paper. Certainly that was the case when I started my career as a barrister. Of course, chambers have long experience of electronic management systems: barristers’ clerks willingly embraced IT, 20 years ago. However, many sets are still managing a wealth of paper Crown Court bundles from the prosecution and defence. But that is all changing.

A great deal of money was spent on IT in the criminal justice agencies during the last decade, but the public did not secure a sufficient return on these substantial investments. Now, we want to make the best of the investment already in place, exploiting the technology we have to speed up processes, and enable swifter justice.

The Government’s ambition is for all the information and evidence collected and relevant to a criminal investigation to be captured once, digitally. This should be in a format which can be shared immediately and electronically with all criminal justice partners, with minimal manual intervention. This will provide the foundation for a truly seamless and efficient criminal justice service.

The CJS is beginning to move away from depending on great bundles of paper, towards being a predominantly digital service. The police, CPS and Courts Service are developing the use of the digital file and a common IT platform. Most police forces are now transferring a substantial amount of their case information to the CPS electronically, and all the information necessary for the first hearing of a case is being transferred electronically from the CPS to the magistrates’ court.

Around 4,500 CPS prosecutors have been equipped with touch-screen tablet devices to present cases in court. In some areas, upwards of 75% of cases are being presented electronically. Leading counsel are keen to use tablets in court. The senior judiciary are supportive of the need to move to paperless working for the sake of efficiency, consistent with the interests of justice.

The criminal justice secure email system (CJSM Secure eMail) is a vital link in enabling digital working. It allows case information to be transferred securely between a wide range of public agencies and other key partners, such as chambers. CJSM Secure eMail is free at the point of use and is fast becoming the accepted standard for cross-CJS communication.

On average, traffic over CJSM Secure eMail now amounts to around 2 million messages a month. The software needed to use prosecution digital case bundles is readily available and free to download.

The participation of the self-employed Bar, and of defence solicitors, is crucial in digitalising the CJS. Here too progress is increasing. Twenty of the 21 largest and most influential crime defence practitioner firms have signed-up to CJSM Secure eMail. Overall, the defence firms that have done so represent over 75% of the volume of magistrates’ court proceedings, and over 65% of Legal Aid Contract Crime Providers, although it must be said that regular and active use of secure e-mail by the defence is still not nearly as high as could be.

The Criminal Bar is however actively engaged with the digitalisation of the criminal justice system. The CPS is sending more and more information (including case bundles) to self-employed barristers via CJSM Secure email: in excess of 20,000 emails a month. A large number of barristers have access to CJSM. If you have influence in your chambers, please impress upon barristers that it is essential that they use it. The practice of sending personal data from an unsecure personal email address must stop!

One example of the move to digital working has been the implementation of the Procure to Pay, or P2P, process by the CPS.

As many of you will know, this has transformed the prosecution’s fee payment process from one which was heavily dependent on paper fee notes and paper Graduated Fee Scheme claims to one where fee information is transferred electronically with minimal input from chambers and payments following by BACS transfer. This has improved the administration process for both CPS administrators and chambers clerks and has resulted in a more efficient process and quicker payments to counsel.

Unduly lenient sentences, legal aid reform, advocate panels and digitalisation – I hope to have given you some insights into these four issues that are currently on my agenda. I wish you an enjoyable rest of your conference.