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South Eastern Circuit

Welcome to the South Eastern Circuit

Kerim Fuad QC, Leader of the SEC

Final Report (for AGM on 14/11/18) 

Goodbye from me

As I come to the end of my term as Leader of this superbly diverse Circuit, I can honestly say that I have had an amazing time. 

There have been several deep frustrations of course, but mostly I have been astonished by the positivity and energy of the vast majority of people with whom I have worked. There are many talented barristers who keep giving up their valuable free time, for no payment, to help this Circuit remain so inclusive. I am so grateful to them for supporting me over the past two years. In this, I include my former and current Recorders (Val Charbit and Nicola Shannon respectively), the Officers and Committee of the Circuit, as well as many other people, including a large number of Judges, who have taken the time to pass on their positive feedback and thoughts to me.

I have also felt sadness as we have noted the passing of several eminent barristers and judges over the time of my Leadership, most notably Lord Roger Toulson, HHJ Price QC, HHJ Plumstead, Sir Desmond de Silva QC and Ramiz Gursoy – all will be sadly missed. 

 

The Wellbeing of the Bar

One of the main aims of my Leadership was to ensure that the wellbeing of all at the Bar was actively promoted, energised, discussed more openly and taken more seriously. And I am happy to say that I think real progress has been made here. We are currently waiting to hear whether the Circuit has been granted a Certificate of Recognition by the Bar Council for our commitment to wellbeing.

Incredibly there is a handful of judges who just do not get it. Regrettably I receive regular reports about the same ones who scoff at wellbeing and reasonable sitting hours - by frowning on counsel actually having lunch and not working through their lunch, or who expect us to work (unpaid) late into the night and the early hours, having worked a full and increasingly long day. I feel sad for them as it can only be a reflection of their life. 

We are not assets to be sweated, at the sacrifice of our health and relationships. 

This culturemust change for all. It is not healthy. Wellbeing and reasonable sitting hours benefit the judiciary as much as the Bar.

Those who know me well are aware that I feel strongly that you should prioritise your own health (both physical and mental) whenever possible. Family, friends and fresh air are all vitally important and I have written two articles on this subject during my time as Leader, with practical advice on how to stay well – “5 Ways to Wellbeing” and an article in the July 2018 issue of the Circuiteer.

Health is more important than everything else we do. Remember this as you miss, yet again, reading your kids their bedtime story to do another free skeleton argument, or think of doing your hearsay reply at 11pm and emailing a judge at 2am. You have one life, so live it well. 

 

My recent LinkedIn post set out my auto reply to my CJSM emails: 

"Thank you for your email. As part of the Bar's drive to promoting Wellbeing, having important downtime and time to think, please do not expect a reply past 7pm and before 7am. Please try it yourself, it will improve your quality of life. Thank you."

Over 7,400 people (at the time of going to press) have seen, liked and commended it. One person has even adopted it for his company. 

There is now a regular schedule of SEC wellbeing events at which members of the judiciary, as well as other professional speakers, discuss the importance of wellbeing to us all, often based on their personal experiences. They have been moving evenings and will, I am sure, prove to be useful in the fight for the (literal) health of the profession. Both the Senior Presiding Judge, LJ Macur and the Presiding Judge of the Circuit have commented on this excellent initiative.

To date, we have had Circuit Judges from Isleworth Crown Court (Feb 2018), Wood Green Crown Court (April 2018) and Luton and St Albans Crown Courts (July 2018), together with professional speakers on vicarious trauma and the British “stiff upper lip”. 

The next event, at Gray’s Inn tomorrow evening, 15th November, will have judges from Woolwich and Southwark Crown Courts and a psychiatrist speaking about compassion and kindness in the workplace. 

The audience for these sessions has increased dramatically as word has spread of the generous words of wisdom and advice which have been dispensed and the open discussions which have ensued (all under Chatham House rules, to encourage people to speak freely).

My gratitude goes to Valerie Charbit who initiated these important events as the former Recorder and continues to push forward now, in her new role as Wellbeing Officer at the Criminal Bar Association – for which we wish her all the very best. I also thank everyone who has played a part in organising these events and, of course, all those who have given up their evenings to attend and take part.

Other practical changes to your daily life help you indirectly to maintain your wellbeing (eg. ID cards, canteens, sitting hours) and they are mentioned later.

 

Respect for the Bar

One of the areas where I think we are starting to get traction is in our relationship with the HMCTS. Susan Acland-Hood and I have had several meetings, starting with the one where I presented her with my ideas on “The Way to make the Crown Court work” with which every practitioner I have spoken to agrees. I really do believe that she understands most of our concerns and hope that my successor will be able to keep working down that list to achieve more of our aims. Her presence on the panel at the recent SEC event on Proposed Court Reforms on 3rdOctober shows how much she wants to work with us to improve things. As I have said before, I do not think she knew just how appalling the state of our courts were.

I am very pleased that she has introduced my vision of ID Cards to allow us to enter buildings without the discourtesy or worse of invasive searches (whilst police officers and court staff breeze through unchecked, with hot coffee in hand) – hopefully, feedback on the pilot scheme will show where there were teething problems which can be removed.

The episodes like the one where a senior female member of the Bar had her son’s small toy car and a marker pen confiscated from her handbag by imperious court security (“Well miss, you could use that toy as a weapon and choose to graffiti the loo” - a true story: I still have a copy of the property sheet) must surely be banished for all time.

It appears that canteens, more and more Mention hearings by phone (sorry all dear clerks, it’s never “just a quick mention”), and even occasional sensible (and sensitive) listing decisions are starting to make a come-back too. 

There are so many areas where small changes could make a difference to how barristers feel if they were treated with respect – we must keep pushing forward on this. Respect and courtesy matter more when we are disrespected by the fees we receive.

 

Sitting Hours Protocol

Another example of this is the Sitting Hours’ Protocol which was carefully perfected and agreed by the Bar Council from an SEC initiative which I worked hard on, together with Valerie, Rachel Spearing, Fiona Jackson and Helena Duong, to whom I am grateful. While it has not yet been “officially” adopted, it has been agreed with senior judiciary and should be accepted as the standard towards which everyone works. We must succeed in persuading the senior judiciary to adopt it. It is the key to wellbeing and better barristers and Judges. A tired barrister or Judge is never a good or effective one. We are not robots - we need time to switch off from work and have downtime and valuable thinkingtime.

 

Inflexible Operating hours

The proposed “Flexible” Operating Hours pilot at Blackfriars Crown Court is now of course almost (I can only hope) just a bad memory, but I am hopeful that the HMCTS has learned something from that experience, not least the importance of consulting with stakeholders.  

I spent a great deal of time working to explain why the scheme was doomed, but there are obviously good ways of improving efficiency (more phone hearings, being able to actually speak/communicate with list officers, having more conference rooms, more use of TV links to juggle and oil other cases during trials . . . ). 

Sadly, the lesson was not learned in time to prevent the incomprehensible decision to shut and sell off Blackfriars, the only London court with proper access and facilities. (It’s not about selling court estate for easy cash. Promise.) The SEC response to that consultation can be seen here.

 

Decent remuneration for the Bar

This is clearly the area over which I feel the most frustration. In my first statement back on 1 January 2017, I said that I hoped to see the new scheme implemented by that summer, so it is distressing that we are in the position we are now, still protesting to the MoJ about the levels of payment and their timing. 

It should be recognised however that we have achieved much in this regard in very difficult negotiations in this time of austerity (although the PM recently suggested austerity was over), eg:

we worked with the CBA and Bar Council in the early stages to prevent more cuts and ensure cost neutrality, and then after the action in summer 2018, to agree an increased amount;  
we secured payment for Day 2 of trials, mentions and sentences, without allowing the brief fee to be eaten into;
we agreed better proper stand out fees.

I am so grateful to Noel Casey and his team who have now written the SEC response to twoAGFS consultations during my term, which can be seen here and here.

And also to the Circuit as a whole which has shown unity and determination in its spirited attempt to protect the livelihoods of all, from first six pupils to old timers.

I stand by my view that “this government must invest properly in the criminal justice system as it’s becoming increasingly embarrassing and depressing watching it die in front of us.”.

 

Where we are now 

The Bar “suspended” action on the promise of £15 million and that it would be in the system by October 2018. It is not in fact £15 million and it is not in the system by October. As I write we do not have a guaranteed date for that money. As each day passes the government save more money. 

Payment data is being collected that confirms what we have said all along, that the AGFS needs significant investment, in particular to address certain cases seriously affected by the rejigging of already inadequate funding.

We must be precise and set out what works and what does not, under the scheme and calculate the sum of money WE consider sufficient to address those AGFS injustices (be it £35/40 million).

In the short term the scheme needs an urgent fix. 

There should be provisions for brief enhancement if conditions (such as large volume of evidence) are met. The fees for guilty pleas 50% and cracked trials 85% are inadequate. If we can achieve a minimum of £400 per day for the Bar that has to be a step in the right direction.  

The CBA must be the ones to undertake this considerable task and through whom the process flows so there is a central conduit.Once we calculate that sum we ask the government for that figure. Thus it will be a principled hook to hang our hat on. If we do not receive that figure a range of the usual options is available to the Bar; return to “no returns” etc.

We should set out a timetable for action so all at the Bar know what we are doing and what we are working towards.

The government are all too aware of the powerful weapons in our arsenal which, if deployed, will cost them much more than the relatively modest sum we require to remedy some of the fees’ injustices, especially in relation to paper heavy cases. 

We should also take this opportunity to ensure:
(A) more efficient and just payments of all LAA claims (which frankly are currently being dismally processed), and 

(B) prompt payment of properly submitted wasted and special preparation claims,

which are routinely wholly refused or the hours claimed decimated for no good reason.    
 

I reiterate that “the AGFS needs significant investment to reflect the crucial role the Bar plays in ensuring the criminal justice system operates well, or at all. To ensure that all victims and complainants’ voices are heard and are properly represented (yes, it could be YOU) and that those wrongly accused (yes, it could be YOU) are robustly and properly defended. It is after all “the overriding objective” is it not.”.

People can be wildly unrealistic and underestimate the huge amount of effort invested by so many into getting us this far. However, I am still confident that progress can be achieved in my last few weeks as Leader. 

 

Harmonious relations with the Bar

Judiciary

I feel very positive about the improving relations between the Bar and the Bench – the implementation of regular visits to Resident Judges has been a huge success. I feel we have made great strides in increasing harmony between the Bench and the Bar. 

Not surprisingly, judges are often happy to help when they become aware of an issue, but need to be given the feedback. It is so much easier for me to talk to a Resident Judge when we have a good working relationship already and I hope that the new Leader will continue to encourage Committee members to meet with Judges as and when appropriate. And this warm relationship is of course aided by the highly enjoyable annual SEC Reception for Resident Judges, a wonderful event at which many interesting discussions and laughter can be heard and which is very much appreciated by our friends in the judiciary. We still have some work to do to persuade all of them that we cannot be at their beck and call 24/7, but the message is definitely starting to get through.

I want to expressly thank allthe Resident Judges on the SEC for the courtesy you have ALL afforded to me, but in particular: 

The Recorder and Common Serjeant of London

HHJ Pete Lodder QC (Kingston)
HHJ Martin Edmunds QC (Isleworth)
HHJ Deborah Taylor (Southwark)
HHJ Chris Kinch QC (Woolwich)
HHJ Andrew Bright QC (former RJ at St Albans)
HHJ Martyn Zeidman QC (Snaresbrook)
HHJ Hillen (Blackfriars- whilst it’s still open)
HHJ Warwick McKinnon QC (former RJ at Croydon)
HHJ Usha Karu (Inner London)
HHJ Jo Cutts QC (now Mrs Justice Cutts, Reading) and 
HHJ Noel Lucas QC (Wood Green). 

You have all actively supported me and at times laughed/despaired with me. Thank you.

I am sorry to say time simply has not allowed me to visit all the courts on the Circuit and I feel disappointed not to have reached some of the more far-flung courts so my apologies to those. If time allows this month I will try.

 

Senior Presiding Judge

I have had regular meetings, and have built up an excellent relationship, with Lady Justice Julia Macur, the Senior Presiding Judge, who is very keen to support the Bar whenever possible. She recently asked me for feedback on judges, which I happily handed over – as ever, if you don’t tell people about a problem, it won’t get solved.  She is incredibly approachable, down to earth and believes strongly in the independent Bar. We can’t go far wrong with Judges of her humanity and calibre in these pivotal positions.

 

CPS

Newly-introduced regular meetings with the London branch of the CPS have also paid dividends in terms of a better working relationship which enables issues to be discussed in a more positive environment. As a result, the CPS has set up a Bar Liaison Group so that feedback is more structured. Many members of the Committee (and others) have contributed to a comprehensive document outlining issues which prosecutors would like to see addressed. 

 

DPP

I am more than hopeful that we will have good relations with the new DPP, Max Hill QC (former Leader of this Circuit), and I am submitting to him a comprehensive paper before I leave office of the most substantive issues which prosecutors face – including fees (obviously) and grading panels. Max has already been warned by me that it would be one of the first documents on his desk!

My thanks to Paul Cavin QC, Mark Seymour and others for helping me produce detailed papers for Max to consider and address these issues.

 

Feedback – good and bad

In all these situations, it is important to remember that praise should also be included in feedback, so please do keep telling your Bar Mess Chairs, my successor, Aaronor Harrietabout good experiences as well as bad.

 

Cyprus

I am also delighted that I was able to help bring together the criminal justice communities from the Turkish Cypriot and Greek Cypriot communities when I (together with Pavlos Panayi QC and HHJ Tony Bate) attended an event at the British High Commission in Nicosia in March 2018 to share our best practices in advocacy and case management as well as mentoring some younger judges.

We have been asked to attend next year to carry on this positive initiative.

 

It is deeply ironic and increasingly sad that whenever one talks of our legal system abroad it is viewed with much more respect in those jurisdictions than the respective governments in this country seem to pay it. That respect is fast fading worldwide as the gradual decimation of fees for the publicly-funded Bar and lack of significant investment in the justice system continue.   

 

JASC/CALC

I have enjoyed sitting on this committee (with Paul Cavin QC) which determines action and sanctions on prosecution counsel who have allegedly misbehaved. I have witnessed some quite extraordinary episodes of behaviour.

The CPS really do want to have the right calibre of people represent them and work hard to keep the standards up. Of course, the next stage is for their counsel to be properly remunerated which is a matter for the new DPP.

 

Bar Chairs and fellow Circuit Leaders

I want to thank Andrew Langdon QC, Andrew Walker QC and my fellow CLs who have endured my frequent (and at times bossy) emails and attempts at humour. (There was much laughter at the Bar Conference last year when my name was shown on the Bar Council App as “Mr Keen Fuad QC”!)

 

QC Secretariat

I met with the Chief Executive of the QC Secretariat and have tried to improve the system for recruiting QCs as a small handful of recent appointments have raised the eyebrows of both the Bar and the Bench. I am told there are no target quotas which, I am saddened to say, I struggle to accept.

We must have the best barristers being appointed to the rank of silk. It is one of the few remaining hallmarks of excellence recognised around the world. 

 

The Recorder Competition

The competition was initially a shambles for the reasons I have already spelt out. Lessons must be learned. There are plenty of potentially excellent candidates out there. Many got through this time, thank goodness.

Having suitable IT platforms to host the examinations is essential. I had 414 emails in the space of 2 hours when the system crashed. But then I hear you say, when did the government ever properly invest in a sound, rather than a cheap, IT system? 

  

Continuing development at the Bar

VWAT

Keeping standards high at the Bar has to be an integral part of what we do and the Circuit has been a significant provider of training for the new Vulnerable Witness Advocacy requirement. We had the ominous and momentous task of rolling out the training across the South East. We must remain quality advocates. This scheme (where we were expected to train over 2000 barristers on the Circuit for free and in our own time) has been very demanding indeed. Those who have undertaken training to become a Facilitator or Lead Facilitator (152 of you) and then trained 538 delegates in their Chambers are to be highly commended. I’m sure many more of you will go through the process over the next few months.

 

It’s the last time I will say this to you all, but PLEASE remember to complete the Stage 3 processof your VWAT, otherwise your training will not be accredited – current figures show that nearly 100 of the delegates who have done face-to-face training have not registered with the Bar Council. Please email Harriet if you need help with this.

 

Florida Civil and Crime Courses

The international advocacy courses held in Florida (which, I understand, are “awesome”!) are further examples of the excellence of the training of the barristers on this Circuit. Well done to all those who participated.

 

Dame Ebsworth 

I have hosted two lectures in honour of the amazing Dame Ann Ebsworth, where our guest speakers were LJ Colman Treacy (speaking about sentencing) and Tracy Ayling QC and Jessica Walker (talking about projecting your skills in written form). Both events were useful to their audience and also a good way to showcase the strengths of the Circuit.

 

Keble – the Gold Standard

The wonderful Keble Advocacy course continues to flourish with its impressive levels of teaching and learning. Although it is a big commitment it is a most worthwhile experience as either faculty or participant. 

 

Fun at the Bar

Another change made under my Leadership was to make our Summer event a more inclusive party rather than a formal sit-down dinner – more mingling, more dancing and more fun for your money (thanks to the SEC subsidy). 

Francis FitzGibbon QC (then Chair of the CBA) and I decided to have a joint celebration with quality buffet, food, drinks and dancing, to encourage the junior bar to return to these events and not be stuck next to someone (like me) for hours on end at a stuffy dinner with speeches telling us all how it’s all ok. The SEC/CBA event has been sold out both years.

Many thanks to Aaron for organising such great parties. He is legend.

 

Bar Messes

The Bar Messes continue to ensure that fun is had at a local level too, organising drinks events and dinners throughout the year to commiserate (and sadly occasionally to celebrate) the departure of a judge or just the arrival of summer – well done to those who are prepared to spend their free time and energy to alleviate some of the feelings of doom and gloom and give people the opportunity to chat in a relaxed environment.

 I thank:

Karim Khalil QC and the Cambridge & Peterborough Bar Mess
Mark Heywood QC and the Central Criminal Court Bar Mess
Rosina Cottage QC and the Central London Bar Mess
Simon Spence QC and the East Anglia Bar Mess
Gerard Pounder (now HHJ Pounder), Christine Agnew QC and the Essex Bar Mess
Kevin Molloy and the Herts and Beds Bar Mess
William Hughes QC and the Kent Bar Mess
Philip Misner and the North London Bar Mess
Pippa McAtasney QC and the Surrey and South London Bar Mess
Alan Kent QC and the Sussex Bar Mess and
Adrian Amer and the Thames Valley Bar Mess.

 

Pride in the Bar

I feel even prouder now of the Bar than I did two years ago. I have seen countless barristers and judges giving up precious time and energy to support each other and work to benefit their Circuit and their profession: running VWAT sessions in their Chambers, sitting on Advocate Panels, organising events, taking on roles on committees, attending the amazing week of advocacy training at Keble in August as faculty or participants or in many other ways. 

And I strongly believe that doing these things helps the volunteer as well as the recipient of their effort and experience. When all feels doom-laden, and I accept that current conditions are far from perfect and at times grim, it is a much better idea to get out and do something about it, than just to complain. By acting, you start to change the situation and your input makes a difference.

I am told the SEC is financially in the best health it has ever been.  I am grateful to our Treasurer Paul Cavin QC and our former Treasurer HHJ Oscar del Fabbro, for their wisdom, prudence and hard work.

I finish by thanking my long-suffering wife, and Aaron Dolan and Harriet Devey without whom the Circuit could not function - and nor would its Leader. We have worked damn hard, cajoled, laughed and at times cried together. 

I have replied to and actioned every single email sent to me, even some of the bizarre ones. 

I leave as I promised, not to become a Red Judge, or do anything other than carrying on being a proud head of Church Court Chambers and another jobbing barrister. Sure, I won’t miss all of the seemingly never-ending meetings (particularly the ones on Saturday mornings!), but I really will miss the people.

I hope that my successor, whoever that may be, will find leading this wonderful Circuit to be as fulfilling and rewarding as I have.

 

Thank you all

 

Yours,

Kerim Fuad QC
Church Court Chambers
Leader of the South Eastern Circuit