I was somewhat sceptical of the Rivlin Report (or, more formally, the ‘Criminal Justice, Advocacy and the Bar’ Report by the Criminal Justice Reform Group, chaired by HHJ Rivlin QC) from when it was announced – it was commissioned by the Bar Council, and was not one of the reports that the MoJ stated that they would listen to (Jeffreys and Leveson). To that extent there was a danger that it would just be the Bar talking to itself. Reading the report, my scepticism has not been shown to be wrong.
The report at least acknowledges that it is partisan “we should stress that the substance of this Report, and the recommendations which accompany it, are independent and made on behalf of the Bar”, which will make it easy for the MoJ to ignore, as ignore it (or the bulk of it at least) they most certainly will. Sadly, one does not need to be too cynical to think that the MoJ will cherry pick (much as Rivlin accuses solicitors doing with legal aid cases) bits that he likes, but ignoring the rest.
I have summarised here the main recommendations, split into different headings (not necessarily in the order that they appear in the report). I have annotated a few comments along the way
- Police to be trained in file preparation
- Charging decisions to be made by a qualified lawyer
Early Guilty Plea Cases
- A standard EGPS is a good thing
- There should be proper payment for these hearings
- CPS to serve case papers in time
- PSRs to be prepared before the EGPS hearing and, if it is not ready, case to be taken out of the list
- Reduce the number of cases going to the Crown Court
- OIC to attend the PCMH
- Solicitors to attend Court in very serious and difficult cases
- Strong presumption against more than one hearing pre-trial, and if there has to be one, then this to be done by email/phone wherever possible
- Warned lists to be abolished [hallelujah! Chance of this happening though?]
- Instructed Advocate’s availability to be taken into account when setting dates
- Every case to have a case progression officer who is pro-active
- Advocates to be required to do an advice on evidence in every case
- Criminal Procedure Rules to be enforced [good luck with that]
- Court hours to be, generally, 10.00am-4.30pm
- Greater use of pre-recorded evidence
- Shorter opening speeches from Prosecution and a short defence opening afterwards to identify the issues
- ‘Route to verdict’ documents in every case
- No restriction on jury trial
- Tougher and longer training for solicitors before they get higher rights, presumably ‘at least 120 days advocacy training plus pupillage‘
- All advocates only to do work within their competence, by introduction of a ticketing system [QASA is specifically not endorsed, but hard not to see how this is a further nudge towards it]
- No ‘plea only’ advocates
- Requirement for solicitors to advise in writing reasons for recommending an in-house advocate and right to instruct indepenent advocate (I doubt that this will be the panacea the Report thinks)
- In a two counsel case the CPR to be changed so that “judges must be satisfied that all instructed advocates are of sufficient experience and ability to make a full contribution to the work of the case” and advocates need permission of the Judge to be absent from Court
- Greater scrutiny of applications to transfer legal aid and/or an amendment to Funding Order so that fee to new firm is reduced to take account of work done
- Refresher courses for advocates every 4 years [to be paid for by …? ]
Training and the Junior Bar
- New test for admission to the BPTC
- BPTC providers to publish pupillage rates and their own selection criteria
- BPTC split into two parts, with progression to part 2 by examination
- Applications for pupillage to be before commencement of the BPTC
- Decisions on tenancy should be after 12 months
- Separate payment for barristers in chambers for Magistrates’ Court, with minimum fees and travel expenses
- Prohibition on Referral Fees (including those that are legitimate commercial arrangments)
- There has been an average 37% cut in fees since 2007 (which stayed the same from 1996)
- AGFS is open to cherry picking of cases which needs to be addressed
There is a lot here to be in favour of. The first part of Rivlin relates to recommendations to achieve efficiencies in the Courts. Many of these are so obvious that it is amazing that they have not been introduced already. This part of the report covers much the same ground as Leveson, and we wait to see if any of it is acted on. It will clearly save money, but there is a concern that the MoJ are unwilling to spend anything, even if it to achieve savings down the line. On a slightly positive note, he does seem to have read some of my previous proposals for reforming the CJS (here and here).
He says “the overwhelming desire of the criminal Bar is that it should remain self-employed, independent, subject to the Cab Rank Rule, and continue to provide a first class advocacy service” – this ignores the fact that much of the Bar is partly, or fully, in-house already.
You can see that it’s bar focussed when he gets on to the recommendations over advocates. It is hard to see that it is anything other than an attack on solicitors and solicitor-advocates, and sadly reads as such. Whatever you view on who should have rights of audience, the genie is clearly out of the bottle, and now is certainly not the right time to be starting a turf war. I do hope that this Report is not trumpeted by the Bar, as it may well backfire.
We can all agree with increases in funding, but it is slightly naive that the MoJ will take much notice of this, unless they are trying to split the bar off from solicitors. It almost reads as if he is proposing taking from solicitors to distribute to the junior bar, which is not a route that is sensible to argue right now. Even if it would work, the MoJ will pocket the savings and move on without increasing barrister’s pay.
Additionally, it’s not clear whether the full impact of the structural changes have been taken on board, or whether there is an element of putting heads into the sand. As an example, the report is very keen on the independent bar, but it is not clear that the independent bar is currently the best model. It is said to be economically more efficient, but taken as a whole, this is not supported by the evidence.
Further, it is stated that “The desire of the profession to preserve the independence of the Bar, the Cab Rank Rule and the ability of barristers both to prosecute and defend in criminal cases is strong“. This ignores the fact that many barrister are already in-house, and that is the ‘direction of travel’. In any event, is independence fundamental to the role of a barrister? If so, then we should not let barristers be in-house, full stop. The Cab Rank Rule doesn’t apply in crime and people in-house can still prosecute and defend.
Of the three reports due, the Bar was expecting this to be the most favourable. In some ways however, this report is almost too partisan – it reads in part like a love letter to the Bar. No doubt barristers will be cheered by this (it’s always nice to feel that warm glow inside), but it does make it easier to ignore.
Also, my plea to the Bar Council – think very carefully before you push the advocacy and funding parts of this. There is a long history of the Bar Council shooting itself in the foot and being outmanoeuvred. Take ticketing as an example – we have QASA hanging over our heads in part because the Bar Council were so enthusiastic, but did not think it through/ask criminal practitioners before promoting it. Or, even more pertinent perhaps, Carter – the Bar Council were repeatedly warned that the consequence would be much more work going in house, but refused to believe it.