Justice Committee 

Oral evidence: Disclosure of evidence in criminal cases, HC 859

Tuesday 1 May 2018

Ordered by the House of Commons to be published on 1 May 2018.

Watch the meeting 

Members present: Robert Neill (Chair); Mrs Kemi Badenoch; Ruth Cadbury; Alex Chalk; David Hanson; John Howell; Victoria Prentis; Ellie Reeves; Ms Marie Rimmer.

Questions 77 - 172

Witnesses

I: Daniel Bonich, Vice Chair, Criminal Law Solicitors’ Association; Joe Egan, President, Law Society; Angela Rafferty QC, Chair, Criminal Bar Association; and Joanna Hardy, Barrister, Red Lion Chambers.

Examination of witnesses

Witnesses: Daniel Bonich, Joe Egan, Angela Rafferty QC and Joanna Hardy.

Chair: Good morning, everyone. Welcome to our witnesses. We will ask you a few questions in a moment. This is the next session of our inquiry on disclosure. We are looking at it particularly from the perspective of defence practitioners.

We will start with declarations of interest. I am a non-practising barrister and a former member of the CBA. I am a consultant to a law firm but not dealing with criminal work.

Alex Chalk: I am a barrister and a member of the CBA.

Victoria Prentis: I am a non-practising barrister, married to another barrister.

Ellie Reeves: I am a non-practising barrister.

Q77            Chair: Would the witnesses briefly introduce themselves for the record?

Joe Egan: I am Joe Egan, president of the Law Society of England and Wales.

Joanna Hardy: I am Joanna Hardy, a practising barrister at Red Lion Chambers. I prosecute and defend.

Angela Rafferty: I am Angela Rafferty, chair of the Criminal Bar Association.

Daniel Bonich: I am Daniel Bonich, vice chair of the Criminal Law Solicitors’ Association.

Q78            Chair: Thank you very much. We have also had written submissions from some of your organisations.

I get the sense that those of us who have been around the justice system in one way or another know that people have been thinking about disclosure for a long time. It is not new. It just seems to have hit the headlines more. We have had inspection reports; we have had the Mouncher inquiry; and Lord Justice Gross did quite a lot of work around it, but it is only recently, it seems to us, that certain types of case have raised the profile of the matter. I have a sense that it is much more systemic than that.

I would like a few words from each of you, from your perspective as practitioners as well as representatives of professional bodies, as to how you see the situation, what the key problems are and their extent; and potential thoughts as to ways forward.

Joe Egan: The difficulty is that the legislation that surrounds this was inaugurated in 1986. While it is probably still fit for purpose in terms of what needs to be disclosed, the difficulty is that we have had a sudden exponential explosion of social media and electronic communications. The amount of unused material that is available or collected now is huge, yet the resources available to examine it and decide what is and is not relevant, and what should or should not be passed on, are not. Obviously, there have been cutbacks to the police, the CPS and defence remuneration. As a result, that has created a huge problem.

Q79            Chair: At the end of the day, I gather that, effectively, practitioners are not paid for looking at unused material.

Joe Egan: That is correct; yes. The fixed fee was fixed at a time when there was nothing like the amount of unused material that there is today.

Q80            Chair: The regime has not kept pace.

Angela Rafferty: From the criminal Bar perspective, the disclosure process is a complete mess and has been a mess for many years. In fact, it is only the recent publicity around the very near-miss miscarriages of justice, as you said, Chair, that has brought it to the public’s attention.

I consider the most pressing issues to be lack of training in the police and, to a degree, in the Crown Prosecution Service; and lack of resources to deal with the issues in a modern society. There is far too much reliance on barristers at the point of trial, and the judge when it gets to trial, to sort it out. It gets to trial and it is a complete mess. We are then relied on to deal with it.

From the independent Bar perspective, it is just another thing that we have to deal with unpaid and under pressure. We consider it significant that the recent highly publicised cases have all come to light because of the work of the independent Bar and solicitors at the last minute. If the situation is not remedied, we consider that it is getting very close to cracking, because it is a systemic problem that has been going on for a long time.

Q81            Chair: When you say close to cracking, are we talking about crisis points?

Angela Rafferty: The year before last, the Public Accounts Committee said that the entire criminal justice system was at that stage approaching breaking point. I think we are at, or have passed, breaking point now. The criminal Bar fraternity and sorority have said that for many years, but the effects are only coming to light now, and all at the same time and across the entire system.

Q82            Chair: A lot of the highlighted cases very often relate to sexual cases. Perhaps that grabs headlines. Is it purely in those sorts of cases, or is it across the board?

Angela Rafferty: Disclosure is an issue that affects all criminal cases. There has been a very recent case that was to do with Her Majesty’s Customs and Excise. There have been cases across the criminal spectrum where these failings have come to light. It is right that sexual offence cases grab headlines, but there is an endemic problem across the system, in our view.

Q83            Chair: Day in, day out, these problems are occurring in courts. They do not hit the headlines, but they are there. Is that being unfair? It is probably leading.

Angela Rafferty: I think that is right.

Q84            Chair: Ms Hardy, from your perspective as a senior junior at the Bar and somebody who prosecutes as well, do you agree with what Ms Rafferty said?

Joanna Hardy: Yes, I do. The high-profile cases we have seen are firework cases. The thing about fireworks is that everyone looks because they are loud and bright, but we conduct this work day in, day out, Monday to Friday and all the hours that God sends. There are cases that fall under the radar, all the near misses, all the close shaves and all the near swerves, and when we are prosecuting and when we are defending, we simply deploy, through sheer professional pride, as many hours and as much work unpaid as we need to, to ensure that the show is kept on the road and that we can stand up and prosecute or defend a case, confident that the playing field of disclosure is level and fair.

No one wants to be wearing the prosecution wig when a disclosure failure happens. Similarly, no one wants to be down in the cells with the defendant if there has been a disclosure failure and it has gone wrong. We will work as hard and as long as we need to, to ensure that cases get started and keep going with the credibility that the system deserves, but we can only work with what we are given.

The lack of resources and funding from the point of police investigation and all the way through is causing the cracks that are starting to show. The only gleam of hope in the very sorry state of affairs that we see in the headlines is that there is scrutiny of it.

Q85            Chair: As a prosecutor, what happens? I take it that you get the disclosure schedule.

Joanna Hardy: Yes, of course.

Q86            Chair: What happens if you have a concern? How often do you find that you have a concern about the quality of it?

Joanna Hardy: There is a difference between wanting more information and concern. Often, I examine the unused schedule and ask for more information about an item. Perhaps it has not been adequately described, and I ask for more information. Through case conferences with officers in serious cases, I may ask for the unused schedule to be redone, or to be added to in order to ensure that everything is on there that should be. There is an active role for prosecution counsel in that process and a very different role for defence counsel.

The starting point has to be the police investigation. You have to get it right from the starting gun, because, if there are items that are not being scheduled and that no one is aware of, the checks and balances cannot begin to work. Nobody is clairvoyant. We do not know what we do not know, particularly with mobile phone evidence. Proper funding for the technology to download the mobile phones we now deal with, to make sure that everything is available, would be needed as a starting point. 

Q87            Chair: We had some evidence from Mr McGinty about the quality of disclosure schedules. Often the disclosure officer is the most junior person on the case rather than somebody who is terribly experienced. Does that chime with your experience?

Daniel Bonich: Absolutely. For whatever reason, there is a tendency at the lower end of the bulky cases for the disclosure officer to be quite a junior individual. That perhaps comes back to the issue of training.

The CLSA has been campaigning on disclosure for a number of years. We have surveyed members on two fairly recent occasions, and the Committee has seen the outcome of those surveys. Our members report a 97% occurrence of encountering disclosure failures; 91% say it happens often in a criminal case; 50% say it is on a daily basis; and 71% report that the issues are still live by the first day of a trial, so it is not getting weeded out at the pre-trial stage.

Most worryingly for our members, when these matters are brought to the attention of the court, the court is found to be sympathetic in just 13% of cases. There is a feeling of accepted defeat from the judiciary, as opposed to generally being unsympathetic. There is a sense that they have come to the stage where they know that screaming from the rooftops will not make the CPS do what it is required to do, so they have given up.

Q88            Chair: We may come back to the role of the judiciary in a minute. How many members does your association have?

Daniel Bonich: We represent members nationally. We have a sister organisation, the London Criminal Court Solicitors’ Association. It focuses on London, so our members are mostly outside London. We tend to vary, between year and year and issue to issue, from somewhere between 800 and 1,200, which is about the number of criminal defence firms that are doing legal aid work. Typically, most firms tend to have one member among them because that gives them all the information; they do not need four or five members of staff signed up.

Q89            Chair: In effect, you are saying that the survey is representative of the vast majority of criminal defence barristers.

Daniel Bonich: Indeed. The survey was open to barristers and CILEx members as well. The second survey, which pretty much echoed it, was a joint survey with the BBC and threw a wider net.

Q90            Chair: Those are appalling figures, with a 97% failure rate.

Daniel Bonich: They are appalling but they do not surprise us. Those of us in the system feel they reflect what we are seeing on a daily basis.

Q91            Chair: Is this something that has just occurred, or has it been going on for a time?

Daniel Bonich: It has got worse. I do not think it is new. The problems have been ongoing. There have been attempts to streamline processes; transforming summary justice and better case management, to name two. Our sense is that, as a result of those, the stated aim of reducing the number of hearings may well have been achieved, but in terms of delivering outcome we are seeing less judicial oversight, so the problems are exacerbated. We have a CPS now focused on processes rather than on what they are actually doing. One of the things we see quite often, and we are getting more and more reports of it, are blank unused schedules being served, no doubt so that a box can be ticked saying “Schedule of unused provided.”

Q92            Chair: But it is absolutely no use to you?

Daniel Bonich: Absolutely no use to anybody.

Q93            Chair: No use to either side at all?

Angela Rafferty: This is an open secret at the criminal Bar. We have a wry smile to ourselves when we see it hit the headlines, because we have seen it coming for so many years. There is a fundamental problem within the police as to the purpose of disclosure. It is quite a difficult mindset in an adversarial system; it requires training to look at a case from the other side’s perspective.

As I think you have heard, it is not rocket science but it does require that mindset. What often happens is that the schedules are either incomplete, as you have heard, or miss off things that the police do not realise are relevant, so the test of relevance is not met to begin with. The CPS lawyer who then receives the schedule does not properly review it but passes it straight on. All the processes are failing at every step, beginning with the quality of the schedule.

Q94            Chair: You say it is a mindset, not recognising the need to look at matters that point away from the guilt of the defendant as much as towards it.

Before we move on, there is one final thing I want to ask Mr Bonich about the magistrates court, where your members obviously practise all the time.  It is about the importance of making sure that, when you are discussing a plea with your client, it is an informed choice—an informed plea. As I understand it, in the Crown court, the defendant has up to about 50 days to enter a plea before the prosecution is obliged to share its case. In the magistrates court, the evidence we have had in writing suggests that the prosecution might not serve it until the day of trial. Does that happen?

Daniel Bonich: Certainly the date of the first appearance at court would be when most of the received evidence would be served electronically by secure email. It is often served on the day. Our members always contact the Crown Prosecution Service in advance and request the material if we know we are going to be acting. I am aware that the CPS constantly complains that it does not know who the defence reps are, so it cannot send material in advance, but that does not stack up with the reports of our members emailing in advance.

What tends to happen is that we get it at the first hearing. How busy the list is affects how much time we have. Hearing the words from the Bench, “If I give you 15 minutes, would that be sufficient?” is very common.

Q95            Chair: That is to discuss the evidence with your client before you advise them what the appropriate plea is.

Daniel Bonich: Indeed. Over the years we have, with judicial approval, developed a scheme of identifying cases where guilty pleas are likely. We have what is called a GAP—guilty anticipated plea—and an NGAP. That decision is reached without consultation with the defence, so often it is wrong but obviously sometimes it is right.

What that means for defence practitioners on the first appearance is that, if the police have flagged something as a guilty anticipated plea, the quality of the material we receive will be very poor; it is assumed that less work is needed to prepare the matter because the defendant will be pleading guilty. Often, we receive a charge sheet and a case summary. That is the CPS file standard, so that is what they expect us to be provided with. At that stage, it would be impossible for us to advise clients on the strength of the case against them or on the evidence, because we will not have received any.

Q96            Alex Chalk: I agree with everything that has been said so far, but isn’t there a danger of slightly overcooking it? There may be plenty of cases—for example, excess alcohol—where it would be wholly disproportionate to start giving absolute chapter and verse, and it would be reasonable to make an assessment that there is likely to be a guilty plea. Isn’t it really important that we focus on cases where, exactly as has been indicated, there is a real risk of individuals not having material provided to them that might indicate a defence we did not know about? We should not conflate that with bulk cases where, in fact, the prosecution could reasonably expect that someone is going to plead—for example, on excess alcohol. Don’t we need to focus on the difficult cases?

Daniel Bonich: I think we do, but two matters arise from that. It depends on what the state expects the role of a solicitor to be. If we are expected to advise on evidence, and we have not had any, it is an impossible exercise and would require a considerable rethink of our professional obligations.

Identifying the cases that are going to be guilty pleas or not guilty pleas is difficult. It is completely accepted that it is a sensible use of state resources to focus on cases that are going to be contested. The difficulty arises, however, where, possibly as a result of poor training, officers incorrectly identify the nature of a case. Domestic violence and cases involving self-defence are often mislabelled—let me put it that way. Wider than that, in the era of digital files, the material is often in the possession of the prosecutors. When the idea behind separating guilty pleas and not guilty pleas came about, it was to save the police having to do that extra work to prepare a file. If the file has been prepared and is in the possession of the prosecutor, and serving it is a matter of pushing a button, it is difficult to see a proper justification for why that is not done.

Q97            Chair: Occasionally, people might say a bit simplistically, “The defendant knows whether they did it or not.” That might irritate some of us, but perhaps you as a practitioner can shoot it down for us.

Daniel Bonich: It certainly frustrates. There are three issues that come from that. The first, of course, is that that is not the test. The state must prove the allegations. Secondly, knowing what “it” is might be the problem. They know they have carried out an act, but they may not know that it amounts to an offence. Those are the two main areas. The third and most obvious is that, if the defendant’s answer to whether he did it or not was determinative, we would not need trials. Obviously, there is only so much we can take from the defendant.

Q98            Chair: It is a misunderstanding about where the burden of proof is.

Daniel Bonich: Yes.

Q99            Alex Chalk: You have already canvassed some of these points in your answers, so we might be able to take it reasonably briefly. The point was made that the quality of schedules is very often poor, and I want to pick up a point made by Ms Hardy on the issue of resources.

Some might say that this is really, so far as the police scheduling is concerned, an issue of culture and not resources. Basically, police officers say, “Do you know what? We’ve got our man and this is a pain in the neck. It is a bureaucratic exercise. We can’t be bothered so we are going to skimp on it because it is rather tedious,” instead of being told, “Look, we really want convictions to stick. It’s not just embarrassing, it is an affront to justice if people start getting off because things have been disclosed late.”

Is it really an issue of resources, or is it principally an issue of culture and training? “Officer, this is a whole load of emails; you should summarise them along the following lines, ‘Emails between A and B, between such-and-such a date,’ so that the defence, and the prosecutor, can have a proper understanding of what they contain.” Is it culture and practice or is it really cash?

Joanna Hardy: I will break down your question to two parts. I do not have experience of any officer, prosecuting or defending, who wants their case to be vulnerable to an appeal. The answer to that short nugget of your question, in my experience practising at the Bar, is no.

The errors that I see, prosecuting and defending, are more down to lack of resources. I ring officers and ask them to do a job for a case I am prosecuting. They are incredibly stretched. They do it, but it will probably be done on overtime, during a night shift or at the beginning of a night shift when they are meant to be going home. That is a resource issue. If one officer is conducting five complex cases, when really it is the work of five officers, it is a resource issue because it is a manpower issue.

I will move on to the resource issue in terms of the volume of digital evidence we see in some cases. We speak of the digital footprint that each of us has. I represent in my defence work an awful lot of very young people. My youngest client at the moment is 13 years old. You have to appreciate that the CPIA was drafted before some of these kids were born. It is not a digital footprint; it is a digital crater.

Some of these kids’ phones tell you what time they woke up because they have an alarm app. The phone will tell you what they had for breakfast because they have a health app. It will tell you what they put in their satnav, where they went, what time they got there, potentially how fast they drove, where they parked and what they had for lunch. If they go to a bar, which you can see might be relevant to some of the allegations we have seen in the press, a taxi app might show what time they left. The rating in that taxi app might tell you if they were drunk or if they were sick in the back. All of that is information that might be relevant for different types of offending. If you print out all the information from all the apps on one tiny phone in your pocket, it needs resources and money, because it needs human beings to go through it.

From March onwards, we have been implementing, for PTPH hearings, a disclosure management document in serious sexual offending. What that means in practice is that someone sits down and looks at the landscape of what they have, a route forward through it and any search terms. Search terms are good. We have been using them for frauds for a long time, but there will still be a stratum of evidence that needs a human being to look at it. If people communicate using colloquial language, search terms may not pick that up. Similarly, in some allegations, particularly of sexual offending and when consent might be an issue, it might be not what is being said but the tone of a conversation between people. Young people communicate—

Q100       Alex Chalk: I risk getting off the original point, but it is an important issue. This is a tough thing to accept, but we have to accept that, given the sheer volume of data, we have to do our proportionate best to get to those items. With the best will in the world, now that the volumes that we used to see in fraud cases are arriving in bulk cases for the reasons you have indicated—the digital crater, as you put it—if it is not search terms, what is it? Given that we may be talking about a million lines of digital material in some standard low-level robbery, although obviously very serious for the individuals concerned, beyond the search terms what are you going to do? You cannot have 100 police officers sitting in a room going through every last aspect of that young person’s phone, can you?

Joanna Hardy: No. Part of the disclosure management document invites the defence to specify areas. If it is not search terms, it might be date parameters. It might be, “We are not interested in the nutrition or taxi apps, but, having spoken to my client, he has an app on his telephone that relates to where he parked his car that day, and that is relevant because of X, Y and Z.” Parameters can sensibly be drawn, as you rightly pointed out. I do not think anyone is suggesting that in every case every line would be relevant, because it will not be. The defence engage in that process in those kinds of cases.

Q101       Alex Chalk: I have some small specific questions. Ongoing disclosure is really important. We all know that it does not just stop with the service of the schedules, but if things crop up in the course of the trial they first have to be digested on the schedule, and then, if necessary, brought to the attention of the defence. In practitioners’ experience, and on the Bench when you sit as a recorder, is that happening as it should, or is it just another example of failing disclosure?

Angela Rafferty: In my view, it is another example of failing disclosure. To go back to your previous question, which is related, culture, training and resources are a trilogy of issues that cannot be divided. If the digital crater or the process that you described had come to us at a time when disclosure was working very well, and the police and CPS were properly resourced and everybody was well trained, we would probably find it a challenge but we might be able to meet it. At the moment, we are unable to meet any of these processes, or the digital crater, at all, because there is not enough resource in any area of the system for it to work properly.

From the beginning of the case, the knock-on effect goes right up to when the judiciary are dealing with it. The judge does not see the disclosure schedule. It is not uploaded to the management system.

Q102       Alex Chalk: May I push back a bit on the Bar, and indeed on prosecutors? Ms Hardy, as a conscientious prosecutor, if you see a schedule that you think is manifestly inadequate—although you do not know what you do not know, you might see examples of wholly inadequate descriptions—is it really the case that prosecutors routinely go back to the police and say, “I am not happy and I want you to have a go”? Isn’t the reality, as HMCPSI and HMIC indicated, that they suck it up, to use a colloquialism? They just get on with it and hope it is all going to be all right. Is there an issue with prosecutors not pushing back on inadequate schedules?

Joanna Hardy: I am not a reviewing lawyer and I am not an employee of the Crown Prosecution Service.

Q103       Alex Chalk: But you are in practice.

Joanna Hardy: I am, and I will answer from my perspective to the best of my ability. It is important to say that I do not receive the unused schedule as the first lawyer in the case. I am sometimes the third person removed.

Have I asked officers to redraft, rephrase or particularise unused schedules? Yes, I have. Am I aware of other prosecution counsel who have done that in cases where I have defended? Yes, I am aware of that. As a defence practitioner, have I sometimes noted items that are demonstrably missing and am therefore reduced to writing, “This item is plainly missing; do we have faith in the document?” Yes, I have. I do not know the practice of people who do not do the job that I do. I am afraid I cannot speak for them.

Q104       Alex Chalk: I am a bit out of date. Is it routine nowadays that people tip up at court and say, “Your Honour, we have a problem here. This schedule is hopeless. We are going to ask for this to be put off for two weeks because I, the prosecutor, have indicated to the police that I want them to have another go at this MG6C”? Is that common, or more often than not does everyone try to muddle through somehow?

Joanna Hardy: I do not think it is common. Some unused schedules in standard cases can be quite good. I praise officers who produce schedules in straightforward cases that are workable and clear. The defence do their job and the system works. No, I do not think it is common.

The more difficult problem is disclosure of material on the schedule, the inclusion of material in it and how we deal with that in practice. No, people are not rocking up every day to Crown courts saying, “I need to redo the unused schedule.” It is more of a dynamic process. As you receive defence statements and liaise with your colleagues at the Bar and understand the issues, there might be items where you ask your officer, “Look, where does this item live? Is it on a schedule? Where is it?” It is more of a dynamic process, with checks and balances.

Angela Rafferty: There is a culture of mistrust in the schedule because of all the things the inspectorate report said. As defenders, we approach it with a degree of suspicion, so we look at it much more carefully. While some schedules are very good, as Joanna said, you approach all your cases, whether you are prosecuting or defending, from the position of, “This may go wrong,” which is not the position you should be in.

Alex Chalk: I am not going to ask about the digital case system, because unused materials do not go on to that, and it works pretty well. Is that what most people think about the DCS? I’m not going to ask that. I do not want to open that can of worms. Let’s move on.

Chair: It is not the big issue for disclosure.

Alex Chalk: It is not the big issue, no.

Q105       Chair: Mr Bonich, did you have any observations on those last points?

Daniel Bonich: Only that it is not uncommon for us, as solicitors, to have to write to the CPS when it is obvious that a schedule is deficient, to ask them to review, and confirm that items are missing. There is sometimes a sense that they have not been signed by a reviewing lawyer, so whether someone has actually reviewed them or not we just do not know.

Q106       Chair: Can you be sure they have looked at it?

Daniel Bonich: We cannot be sure that they did or did not; that is the difficulty. If it has not been signed, we have no idea. Increasingly, our members report situations where the CPS say to them, “Yes, that material exists. It is in the possession of the police. They will not give it to us because it is either too voluminous to hand over, or because, if they do, they know we will have to give it to you.” That is obviously quite worrying. We see that increasingly, particularly in the magistrates court.

Q107       Chair: Police officers are saying to the CPS, “We do not want to give it to you because you will have to give it to the defence.”

Daniel Bonich: Indeed.

Alex Chalk: Extraordinary.

Daniel Bonich: It is. The police seem to have identified a new category of material, which perhaps Parliament had not envisaged when the CPIA came in. It is material that the police describe as sensitive, which is not sensitive but might be personal or embarrassing. Often, it could be that the contents of a complainant’s phone may have material that they do not want the defence to have. In a culture where the police often feel that they must believe the victim, we fear sometimes that the tail wags the dog. The victim says, “I do not want my ex”—who is the defendant—“to have that, so please do not disclose it.” The police then take the view, “We cannot give it to the CPS because then it will be disclosed.”

Q108       Alex Chalk: Don’t they sometimes say, “We are going to make a decision in this case that that is not relevant and therefore does not have to go on a schedule”? But actually that is a matter of personal judgment. Someone else in a different part of the country may say that it is entirely relevant. Isn’t there an issue of very broad discretion, which officers are, as it were, arrogating to themselves, to make a decision about whether something should be on a schedule at all?

Daniel Bonich: There is, and there are massive regional variations. The CPS came into existence to try to tackle regional variations in practice, but the sense is that perhaps it has failed.

Q109       John Howell: Let’s stay with the magistracy for a moment. I want to look at some issues that arise under summary justice. I understand that in the magistrates court the expectation is that a streamlined disclosure certificate will be used instead of a full list of material that is used and unused. Does that work?

Daniel Bonich: We were discussing that briefly outside. The difficulty with the streamlined certificate is that sometimes it is not there. In terms of process, because it is felt that one has to exist, it does, but it is not a very good summary of the position. I was trying to think of the last time I had actually seen a streamlined certificate and I could not remember, which suggests that they are not happening as they should be.

Q110       John Howell:  What impact do you think that has on justice?

Daniel Bonich: Every disclosure failure is a potential miscarriage of justice. That is the concern. Whether or not these things are ultimately weeded out as a result of extra work and expense, there is still a potential miscarriage of justice.

Q111       John Howell: What should we expect of magistrates and judges in upholding the duty of disclosure?

Daniel Bonich: That is a very good question. The difficulty we have, when our members are asked, is that the court tends not to be overly helpful, as I said earlier. Certainly post the Leveson review, the view was that a plea must be taken at the first occasion, for example. Where disclosure is inadequate, often the court says, “But we have to take a plea today, so, no, we won’t give you an adjournment to allow you to have all the appropriate disclosure because we must take a plea.”

We find that a solicitor may have to advise their client to plead not guilty purely because of failure of disclosure. That plea will later be reversed, which completely undoes the entire purpose of early engagement and transforming summary justice.

Q112       John Howell: Does anyone else want to comment on that?

Angela Rafferty: Judges in the Crown court are in a difficult position. They do not see the disclosure schedule. They do not see the material. They are reliant on submissions from counsel. We have a mechanism in section 8 of the Act whereby, if we are defending, we can ask the judge to review certain decisions of the CPS, but quite often judges are in the dark. They can, and do, case-manage, but there is so much pressure in the system. Recently, in two quite complex trials I was involved in, the trial was adjourned because of disclosure problems, which the judge had to deal with at the very last minute. It is a difficult situation because the judge is at the end of a process that is already quite flawed.

Q113       John Howell: Do you think taking disclosure fully into account is the biggest obstacle to magistrates and judges?

Angela Rafferty: They are independent members of the judiciary, so to a degree it is not their duty to consider disclosure, other than its being brought to them as a submission that it has been inadequate. It could be considered quite problematic for the judiciary to become involved in the initial process of disclosure, but judges can case-manage to a degree. Everything is so last minute, because the system is under so much pressure, that quite often they are in a difficult position too, as I said, because they come at the end of the process.

Q114       Chair: Is there an adequate system of sanctions for non-disclosure, and what should it be? If you keep failing to disclose, shouldn’t there be some comeback—some consequence?

Daniel Bonich: The short answer is no. In terms of sanctions available to the court for non-disclosure, I suppose we have the staying of cases and abuse of process, but that is a sledgehammer to crack a nut.

Q115       Chair: That is the nuclear option.

Daniel Bonich: It really is. The second option that the court could have is to exclude evidence, but if it is a failure to provide evidence that might be relevant, to exclude it seems counterproductive. The third option would be wasted costs. The difficulty with wasted costs as it currently stands, certainly on publicly funded matters, is that if the defence succeed and apply for wasted costs, and receive that money, it will have to be passed back to the Legal Aid Agency. The consequence of that is that the admin involved is too much for zero benefit for the defence teams and they will not supply it.

Q116       Chair: It is the public purse argument.

Daniel Bonich: The MOJ is in receipt of a paper from the Law Society suggesting that the current position be reviewed; until it is, it is not an effective sanction.

Q117       Chair: Mr. Egan, do you have any thoughts on that from the Law Society?

Joe Egan: Clearly, the situation needs to be reviewed. All that would happen if you get a wasted costs order is that you would have to pay it back, so you are doing extra work for which you are not paid anything extra.

Q118       Chair: It is just more burden on the solicitor.

Joe Egan: More burden and more work for getting the same fee. It is not realistic.

Q119       Chair: It is an unpaid burden on you, in effect. It is going from one public purse to another public purse.

Joe Egan: Exactly, yes.

Q120       John Howell: The chief inspector of the CPS told this Committee that transforming summary justice was putting increased pressure on the defence, but he went on to say that it was “not necessarily a bad thing.” Do you agree?

Joe Egan: The argument he was using was that, if you reduce costs, it tends to make people more efficient. His argument was along those lines. The difficulty at the moment is that the system is so stretched. I feel at a bit of a disadvantage to my colleagues, because, although I was a criminal practitioner, it was a long time ago. The reason I stopped being a criminal practitioner was that I simply could not afford it. I was in a firm where there was other work available, and the rates were so poor that eventually I could not justify to the firm being a criminal lawyer.

Since then there have been further cuts, and at my firm, which is in Bolton in the north-west of England, we are seriously looking at whether we can continue to do crime any longer, because the rates are so poor. That has been exacerbated in our home town. Even though it is the biggest town in England that is not a city, the custody office has been closed because of cutbacks. Depending on which part of Bolton you are arrested in, you get taken to Wigan, to Bury or to Swinton, which is near Manchester. Custody officers have lots and lots of things to do, so when they are deciding whether they should call the duty solicitor in Bolton or Manchester, you cannot really criticise them if they do the simple thing from their point of view. It means that we now have less work and lower fees, so we are all under great stress.

To answer your question, it would be a huge burden upon the defence and it would not be a good thing.

Daniel Bonich: Part of the idea behind TSJ was to encourage early engagement. That cannot possibly be a bad thing. In respect of that putting the defence under an extra burden, it is a worthwhile burden in terms of overall outcomes. The difficulty is that absent proper disclosure we have nothing to engage over. That is where it falls flat.

Q121       Chair: I get the sense, Mr Egan, that your firm’s dilemma is a long way from being unique.

Joe Egan: It is. Obviously, in this job, I am in London most of the time. I certainly get the impression that all the other firms in Bolton are struggling with criminal work because of the fact that we have less work and the rates are lower than they were. The Law Society has recently produced a heat map, as you may have heard. Our great concern is that there will come a time in the not too distant future when it will be impossible to find a duty solicitor in some areas.

There is plenty of anecdotal evidence. For example, my daughter is a solicitor. She spent all summer sitting behind counsel and she thought it was wonderful. She was always going to be an advocate, but she is now a solicitor doing commercial property law. As she said to me, “Newly qualified commercial property lawyers earn a lot more than newly qualified criminal lawyers.” That is the sad reality. We were talking outside about the difficulties of attracting people into this area of work when the rates are so poor.

Q122       Victoria Prentis: One of my concerns is that we can attract them, but we then cannot keep them. That is a worry for women in the profession in particular. Is that borne out by your experience?

Angela Rafferty: Bar-wide, 48% of entrants are female. By the time you get to the level of QC, it is only 13%, and in crime it is even less. We have difficulty attracting people, too. It is a vocational profession, so lots of people want to do it, but when we manage to recruit it is quite difficult to keep people who have commitment and financial stability at the Bar. We see legions of our young members leaving to go off to be interns or do other jobs because they cannot make it work financially.

There is also a further gap at about 12 to 15 years’ qualified where people take time off for children and then cannot come back because it is not financially viable; we are self-employed, and we have to pay for everything, effectively. There are no benefits. Again there is a huge gap, and that has a knock-on effect as it goes up, because the judiciary often reflects those patterns. We have those issues further on in the judiciary, so it affects the system very widely.

Q123       Victoria Prentis: Do you think it is getting better or worse?

Angela Rafferty: Worse.

Daniel Bonich: Can I add to that from a solicitor’s point of view?

Chair: Yes.

Daniel Bonich: As a result of the most recent contract with the Legal Aid Agency, in order to retain the duty solicitor label, you have to conduct 14 hours of contract work per week attached to a particular office or a particular firm. That particularly affects women. When they have gone on maternity leave and want to come back part time, 14 hours a week—not a contracted 14 hours but 14 hours of work that the Legal Aid Agency recognises—can be quite a difficult target. We find that many cannot come back because it is simply not viable to do so.

Joe Egan: We have a solicitor in our firm who works three days a week now. She always did crime and personal injury work. She was in the duty solicitor scheme and enjoyed doing it, but, when the new rules came in, she had to come off the duty solicitor scheme because she could not fulfil the necessary quota, despite the fact that she had been qualified for about 20 years.

Angela Rafferty: Could I give an example of how disclosure affects these types of cases? Any profession knows that there is going to be a degree of unpaid work because it is a vocation. We all know that when we come in, and we are all prepared for it, but we reach a point where it is just completely unviable. If you know that you have to come home at six after court and then start to look at thousands and thousands of pages of this type of material, to prepare, you simply have no life outside and that then affects our ongoing recruitment and retention problems.

Q124       Alex Chalk: I wonder whether you and Ms Hardy would agree with this. If you are doing back-to-back trials, it is not just the case itself that you are working on. You have to prepare for cross-examination the following day and think about going through the unused material to prepare for the case that you are defending the following week. There comes a point, does there not, when there simply are not enough hours in a day? There is not enough bandwidth, and you just run out of road.

Angela Rafferty: Correct. It is also against a background of incessant cuts to the justice budget in a system that is broken. Morale becomes a big issue, because you are working for free in a situation where everything else is falling apart. You can imagine what that is like.

Q125       Alex Chalk: It is important to push this, but I suspect you will say exactly the same thing. I am not giving evidence—you are giving evidence—but I was called in 2001, and people have been saying this certainly since 2001. They were probably saying it long before you were called, and before even—

Chair: We won’t go into when people were called.

Angela Rafferty: What a gentleman.

Alex Chalk: It is very dangerous territory. I simply want to ask whether you are able to shine a light on the extent to which, in the last few years, it has genuinely got worse. There will be people listening to this who will say, “Here we go, it is the Bar moaning again. It is always moaning.” I don’t sympathise with that, by the way.

Can you help us, please? What has actually changed in the last few years to make what was always a serious situation truly acute?

Joanna Hardy: What has to be understood from the starting point of an applicant to the criminal Bar is that they have undergone at least three years of undergraduate training, with potentially a postgraduate degree.

Alex Chalk: T’was ever thus.

Joanna Hardy: I understand that, but the Bar professional training course now, if you undertake it at one provider in London, is in excess of £18,000 for a course that lasts, when I did it, for nine months. I would have to check that, but it is a course over an academic year. You are looking at quite an investment, with top-up fees, for talented juniors, perhaps from a diverse background. Perhaps their parents cannot afford to pay £18,000 on the off-chance that they are going to get pupillage competing 300:1 in some examples.

By some miracle, through luck or sheet grit, they get there and they are presented with a financial package that bears no resemblance to the job at hand. The digital case system we touched on earlier is excellent, but as in all other walks of life—in your jobs—the digital revolution means that we are all available all the time. As you pointed out a moment ago, if you are prosecuting and defending back-to-back trials, the workload is incessant. Some of the colleagues we remember from law school will have gone off to the dizzy heights of City law firms. Our hours and level of responsibility are equal, if not greater, because we are dealing with people’s liberty. Yet the pay bears no resemblance to the task at hand.

Q126       Victoria Prentis: It was always like that. I remember getting on overnight trains to go and do a trial, and the clerk throwing the papers through the window. The next day, I would have to go on a train somewhere else at the other end of the country. It was always very hard work, and it was always very stressful.

Disclosure, which we are talking about in a very dry and dispassionate way, is in fact the difference between people going to prison and not; and it really matters. Of all the ethical dilemmas that face you at the Bar, it is the disclosure ones that remain with me as the worrying ones. What has got worse particularly? That is what Alex is trying to get at.

Angela Rafferty: In the last 10 years, the Ministry of Justice’s budget has been reduced by approximately 40%. It is more than any other Government Department. It is not a protected budget, and within that the legal aid rates across the board have also been reduced by approximately that amount.

Every area of the criminal justice system, from probation to the police—that is from a different budget—to lawyers is suffering, and it is all happening at exactly the same time. No department could weather those types of cuts for long. What is different and what is happening right now is that the effects of those cuts are coming home to roost. That is my view.

Q127       Victoria Prentis: Let’s go back to defence statements and being very dry about disclosure. In 2017, inspectors found that defence statements were often served very late and close to the trial. Some were very inadequate or not in existence at all. What impact does that have on fairness in the trial? Could you deal with the Crown court first?

Angela Rafferty: In the inspectorate report, I think the figure was from a sample of 90 files that had been referred in two different ways.

Victoria Prentis: Yes, that’s right.

Angela Rafferty: Sixty-six of the defence statements were considered adequate, so the figure was given that in 73% of those cases the defence complied with their disclosure duties. In the majority of cases, defence disclosure is adequate and in time. However, there is an issue with late service of the statement. The reasons for that can be late service of the prosecution papers; no service of the disclosure schedule or inadequate disclosure of the schedule; or difficulties with getting into prisons if your client is in custody. Again, it is a knock-on effect of the resource issue.

Q128       Victoria Prentis: Is that getting worse?

Angela Rafferty: Yes. It is quite difficult to get appointments in some areas. You have to fit into quite a tight timetable and then you cannot make it.

Q129       Victoria Prentis: Does that take up a lot of solicitors’ time, just out of interest?

Daniel Bonich: A massive amount of time. I can give you a quick example. In one particular case last week, I booked a two-hour visit to see a client. We were up against a deadline so it was an important visit. It started at 9.30 and was due to finish at 11.30. The defendant was brought into the interview room at 11.15, so I had 15 minutes. As a result, I requested a second visit that was due to take place yesterday, again 9.30 to 11.30. I arrived at 9.30 and was told that due to a staff shortage they would have to remove the defendant at 10.30. He was brought over at 10.30 and then immediately removed. That was two mornings. There was a considerable amount of travel involved. It was completely wasted.

Q130       Victoria Prentis: Can you charge for that?

Daniel Bonich: If it were a graduated fee case, no, I would not be able to charge for it.

Victoria Prentis: I am sorry to interrupt, but we need to know things like that.

Angela Rafferty: That accords with my experience. There is a degree of dark humour about this. When you go to prisons, you just take pot luck whether or not you get in to see your client, or for how long. Some of these are very serious matters and you need to deal with people sensitively and take their instructions efficiently, so that you can deal with the case. We are all struggling with the general decrepitude across the system, and that is part of it.

Q131       Victoria Prentis: Mr Egan, the Law Society’s submission to this inquiry says that we should do away with the defence statement as a starting gun for secondary disclosure. Would you tell us more about that idea?

Joe Egan: The onus is on the prosecution to serve a schedule of unused material. It is not triggered until the defence statement is put in. We take the view that that just builds delay into the system. Therefore, if it was the case that you had to give disclosure right from the start, it would speed matters up.

Victoria Prentis: But you do, don’t you?

Alex Chalk: You have to give disclosure right from the start.

Chair: Primary disclosure.

Q132       Alex Chalk: Can I push back on that? There is a duty on the police. Suppose it is a robbery or whatever and the main prosecution witness is saying, “It was a white male what done it,” but a police officer has a statement from somebody who says it was a black male who did it. That ought to be disclosed at an early stage. If the defence case statement comes up with a defence that is completely different, “I wasn’t at the scene,” it should be reviewed in that light. You cannot necessarily predict that, unless it is something in the interview, for example. Shouldn’t you wait to see what is in the defence case statement?

Joe Egan: At the moment, when the defence case statement is produced, it has to be reviewed again. As was said earlier, the sensible thing would be to have much earlier co-operation between the prosecution and the defence and for us speak to each other right at the start. For example, once they have been to the police station and had the interview, the solicitor has a fairly good idea of what the prosecution case is and a fairly good idea of what the defence case is. At that stage, they could talk to the prosecutor, or even to the police, and say, “There is an area that you should examine here.”

We have probably all had cases where we said to the police, “You decided that this is the perpetrator, but there are other lines that you should explore.” There is nowhere in the fees for that, because we get a fixed fee for going to the police station. There is nowhere for us to carry on. If you get a situation where a person has been interviewed and bailed, you are not going to be paid to do any work during the interim period. You cannot really start doing any work until they have been charged, whereas, if there was a mechanism whereby you had early co-operation between the prosecution and the defence, a lot of time could be saved.

Daniel Bonich: I have two brief points on defence statements. First, the defence statement serves two purposes. One is to identify issues in the case and the second is to trigger further disclosure. In the days of case progression forms and very detailed PTPH forms, the defence is often laid out. The issues are laid out far earlier than they ever have been before, so in some respects I can see an argument that the defence statement no longer needs to trigger those kinds of changes.

The second point is this. Around 18 months ago, there was a BBC documentary that followed Crown prosecutors around. The Committee is probably familiar with it. There was a particular sequence, and I have the quote here, where a Crown prosecutor was asked to explain for the audience what a defence statement was. This is the answer that was given: “In a case such as murder a defendant must inform the court of the nature of his defence. We sit and we wait. We have our case prepared. We think we have covered all our bases and we wait for this defence to come in. Then when we get that, we go scurrying back to our file and make sure that everything that the defendant is now saying can be disproved.”

That is not the purpose of a defence statement. That is a complete misunderstanding of it. No doubt there is a training issue, but a Crown prosecutor was prepared to go on TV and say that, which suggests there is a widespread misunderstanding as to the purpose.

Q133       Chair: It is a cultural thing as well as a training one, isn’t it?

Victoria Prentis: Yes, it is.

Angela Rafferty: But the Criminal Procedure and Investigations Act is quite straightforward. As the inspectorate said, disclosure is not rocket science. The test is quite simple. The procedure is quite simple, if followed. If everyone does what they are supposed to do correctly, there is no reason why it should not work well, with proper resources. That is the considered view of the Criminal Bar Association in our submission to you. A fair trial must be the ultimate aim of any of these processes. To make it more complicated, or to take away vital steps, could have knock-on effects.

Q134       Victoria Prentis: In the magistrates court, they are optional anyway. I have not practised in a magistrates court for a long time. How much are defence statements used?

Daniel Bonich: They are relatively rare, in my experience. When they are done, it is normally to trigger disclosure because there are specific items we believe the Crown has, and we would like to flush them out. Because of the way that the Crown Prosecution Service now approaches summary trials post transforming summary justice, they front-load an awful lot of work. Regrettably, that means that, once they have done the initial stage, it goes on a metaphorical shelf and gathers dust until just before the trial.

Q135       Victoria Prentis: Would it be helpful to have them?

Daniel Bonich: No, probably not, simply because it is another stage which would be ignored from the Crown Prosecution Service point of view and, secondly, because there is a fairly robust case management formula prepared at the first occasion in summary trials that sets out the issues from the defence point of view. Anything the CPS would have gained from a defence statement is probably already out there. There is nothing to stop the defence from applying for specific disclosure under the section 8 procedure.

Q136       Victoria Prentis: The procedures are in place and they just have to be complied with.

Daniel Bonich: Yes.

Chair: And, as Ms Rafferty was saying, that is largely a resourcing issue as much as training and other things.

Q137       David Hanson: Joanna has already touched on the question of mobile phones and social media disclosure, which is everything from Fitbits to Twitter, Facebook and a whole range of things. I am guessing that every member of the panel will concur with the assessments. If not, let me know now.

From our perspective, I am interested in the policy solutions to that. Given those challenges, what is the policy solution that the Ministry of Justice should adopt, if anything?

Joanna Hardy: Taking mobile phones as a starting point, it must be agreed that it is in everyone’s interests, if we are to download a mobile phone, that we do it quickly. The problem with approaching it from policy down and not reality up is that you lose sight of the human beings involved. Complainants in some allegations might be quite vulnerable women. If a police officer says to them, “I am taking your phone and you will have it back in six weeks,” it may impinge on the ongoing prosecution of the trial. It may not, but it is an issue.

There are ways of having digital hubs that can download mobile telephones very quickly. In certain cases, part of the process for a defendant going into a police station is having their DNA taken and having their fingerprints taken, so could we, with the right investment, reach a stage where, if the telephone of a defendant is potentially evidential, it is downloaded on site in a very quick way? Speed of downloads would speed up the system enormously. Sometimes, we all sit around waiting for weeks while phones get sent off to labs in the middle of nowhere. With proper investment, you can address technology with technology.

Moving back to the wider system, we deal with some technology, in the Crown court in particular, that would make the average 14-year-old weep with laughter. We still use CD-ROMs. The general public stopped using them years ago. I sometimes have to listen to interviews on a cassette tape on a Walkman, which is retro.

Chair: I used to have piles of them in my room.

Joanna Hardy: You could sell them on eBay. That is just one example. It is symptomatic of the fact that the system is years behind where it should be. The digital case system is a great step forward. Is it an impressive piece of technology by cutting-edge standards? No. Does it do a very good job in the circumstances? Yes. With funding, there must be a way to address what is a technological landslide with technology. I do not think we are going to meet it in any other way. It will require investment.

Angela Rafferty: In the civil jurisdiction, there has been quite a lot of high-end technology around for many years. Of course, it is much better resourced than the criminal system. On “Panorama” last night, there was something about Staffordshire police having a super-duper system and we saw part of that. There are ways around it. Meeting technology with technology is exactly the way forward. I do not think it is as complex or as difficult as it may first seem. With meaningful engagement from the defence, we should be able to sort it out adequately.

Joe Egan: I agree, given that the technology is there now. What my friend described as fireworks cases were where there was material on telephones that presumably the defendant was telling his solicitor and barrister about, and they were asking the Crown Prosecution Service for it. If a copy of the phone had been given at the first instance to the defence, they could easily have pointed to that.

Q138       David Hanson: Is there a wider issue about the timing of information supplied by prosecutors?

Joanna Hardy: Yes, in terms of used evidence and material that will potentially be put before a jury. When you reach the stage of telephone evidence there is an ongoing saga, which I will not bore you with, about whether or not telephone evidence is served as used material—under the old scheme we would have got paid to read it, which we do not think is unreasonable—or unused material, which we would not be paid to read.

That delay, the ongoing ping-pong and arguing, takes up time, people’s money and sometimes court time. There are delays. You wait for phone evidence. Cell site evidence, which positions people in certain places, is very important in cases of alibi and things like that, and can cause a delay. Anything digital usually comes later than the paper files.

Angela Rafferty: A new disclosure management document, which has been launched by the Crown Prosecution Service quite recently, sets out in some detail all the issues that could arise in terms of technology—asking for phones, downloads, Facebook and social media—and could get things moving at an earlier stage. That is welcome, if it works, and if there are enough resources for it.

Q139       David Hanson: What is the next piece of technology, and how should the CPS and the MOJ respond to that? The stuff we have talked about was not around 10, 15 or 20 years ago. What is next?

Angela Rafferty: It is a culture thing as well. In some of the cases that have been in the headlines recently, there have been quite simple processes of disclosure. Messages between the complainant and the accused were missing or were only disclosed in part, for example. It is not that difficult to look at a Facebook page—even I could do that—and get a screenshot or whatever. It is easy for us to be a little worried about technology, but actually it is not that hard if you try. If you know what you are looking for, and you think about it from the perspective of the defence case, you should be able to deal with it quite simply, albeit that the volume is quite large.

Q140       Chair: That is an interesting thought. Does it come back to a point that was mentioned earlier about culture? There are legitimate rights to privacy that a complainant and a witness have under their convention rights and so on, but in your experience, Mr Bonich, is there a risk that that feeds the view that it is simply not relevant?

Daniel Bonich: I think it does. It is a cultural problem. We have the use of the term “victim” very early in proceedings, which arguably is the incorrect term. It feeds into how the police and the CPS often view complainants in cases, and it can lead to confirmation bias because they are looking for particular things.

The difficulty is that not just the CPS but individual police forces have different cultural attitudes. While sitting in a police interview the week before last, I was told by a senior officer that the motto of their police force was, “Victims are at the heart of everything we do.” That is an admirable aim, but one would have hoped that justice was at the heart of everything they do. Culturally, we have a situation where often a sense of being the victim’s representative comes in, and that may lead to inadvertent prejudice or confirmation bias when looking at material and deciding whether it helps or not, and whether it is relevant or not. That is the concern.

We need to go back to the very basics, which is that the police’s role is to gather evidence. The Crown Prosecution Service, which was created for exactly this purpose, has to review that evidence, decide whether or not to prosecute, and then to do so. Over the years, no doubt in response to funding issues and the volume of material, the CPS has allowed some of their independence to be worn away and to rely too much on what the police are telling them, rather than standing back to question and look at the big picture.

Angela Rafferty: The test of any piece of evidence is, is it relevant and then is it admissible? Private information that is not relevant should not be disclosed if people are using the Attorney-General’s guidelines and the test correctly. If it is private information and it is relevant, it is disclosable. The balancing exercise should be made, and the checks and balances are there. It is justice for all sides. It is not just for the defence side; it is also for the prosecution side. We prosecute, and victims have to be protected. We have all the systems in place to do that. We just have to ensure that they work properly.

Daniel Bonich: It can never be in a complainant’s interest to have a case collapse due to disclosure problems. It cannot possibly be right. In terms of specific areas where there are problems, we have discussed unused material at some length. It is a criminal offence to use unused material outside those proceedings, without the permission of the judge, so, in some ways, concerns about disclosure and privacy are dealt with. Parliament has identified those. If it is relevant, it will come out in the course of proceedings and it will not be used anywhere else. Those reassurances ought to be given to those who are concerned.

Q141       Chair: Perhaps they are not given enough, or not hard-wired into the system enough.

Angela Rafferty: Although some very highly trained, very efficient and high-performing officers can redact material in cases and often do their job very effectively indeed. It is important to say that it is not the case that a blanket disclosure of personal information is given in every case. That is not the case at all.

Q142       Chair: Indeed not. It is perfectly possible to strike a balance, if it is done properly.

Angela Rafferty: It is. Victims and complainants should not be concerned that their personal information is given to lawyers, almost by rote. It is not. It is usually the lack of disclosure that causes problems.

Q143       Ms Marie Rimmer: One of the themes that comes out of the submissions we have received is a perception that defence teams sometimes use disclosure requests to fish for information. How would your members respond to that?

Daniel Bonich: First, it is offensive to suggest that asking for material that Parliament intended us to have, to guarantee a fair trial, is fishing. Secondly, the problem with fishing is that sometimes you catch something. If it brings in something that is relevant to the case, it is a worthwhile exercise. It is not fishing. If a vague, unused material schedule does not make clear what an item is, and we ask for material because we are not sure what it is from the description, it is not fishing; it is being cautious and making sure that our client’s rights are protected.

Q144       Alex Chalk: You are not saying, are you, that defence solicitors have never made an inappropriate disclosure request?

Daniel Bonich: I cannot say that, because I cannot speak for every defence solicitor. What I can say is that in general terms what will happen—

Q145       Alex Chalk: Of course, you can say that. It does happen, doesn’t it? Defence solicitors will push it sometimes. You must accept that, surely.

Daniel Bonich: All I can say is that, if a defence solicitor is pushing a specific item of disclosure, it is because there is a sense that something is fishy, to go back to the fishing analysis. Ultimately, the solicitor is guided by their client and their instructions. If a defendant is saying, “No, I want that and I want to know what it means because it says ‘Miscellaneous correspondence’,” it is perfectly right, in my submission, to argue it.

Will there be cases where the defence try it on? I am sure there will be, in the same way that there will be on both sides of the divide. In general terms, when we ask for disclosure it is because we think it will be relevant, going back to the points that were made earlier. There is no funding in place for us to look at the material. We are not asking for it out of the goodness of our heart. We are looking at it because we think it is relevant to the proceedings.

Q146       Chair: In an adversarial system, there is going to be a bit of pushing and shoving.

Daniel Bonich: Indeed.

Angela Rafferty: I have not recently heard so much about fishing accusations as previously. That could have formed part of the cultural problem. Judges accused lawyers of fishing. The police then reacted to that and the whole thing became quite adversarial, whereas in fact the disclosure process is integral to the investigation. What does fishing really mean? It is asking for information. Most people who are drafting defence statements make a very targeted list of the items they want, and often set out the reason why. The judge may make remarks about it, but those are becoming less common these days as the disclosure issues become more apparent.

Joanna Hardy: Angela is right. Defence statements have improved enormously in recent years. One of the reasons why is that, as a practitioner on the ground, I do not want a pile of completely irrelevant stuff just for the sake of it. I am not getting paid to read it. I have a case to prepare. Certainly the defence evidence that I draft, and many of the statements that I see, have a surgical precision: “On page 5 of this witness statement the officer refers to this CCTV camera. Was it looked at? If not, why not?” The officer can look at that, and answer it. Gone are the days of, “Could we please have—” with vague mentions and dream shopping lists of material; people are not asking for those any more. If they are, they are not getting them, so it is a rather futile exercise.

Q147       Ms Marie Rimmer: How common is it for defence counsel to request material that does not relate to the case, in the hope that they can use it to discredit complainants? Is it proper practice?

Angela Rafferty: The credibility of a complainant in some cases is a matter in issue, as brutal and difficult as that might be to accept. If a person is saying that something happened and another person is saying that it did not, and the jury will have to decide between the two, those issues might be relevant. In many cases, the credibility of a witness, not just a complainant, may be relevant, if their account is to be challenged.

Q148       Ms Marie Rimmer: Do you consider it proper practice?

Angela Rafferty: In the Attorney-General’s guidelines, it is actually part of the list of things that relate to the credibility of a complainant or anything that may undermine a witness’s account. It is proper practice to ask for that, in a case where credibility is in issue.

Q149       Chair: The key test is, does it goes to an issue in the case?

Angela Rafferty: Yes.

Joanna Hardy: There is a two-stage process to the question. The backstop of your question would be defence practitioners simply seeking to trash complainants.

Ms Marie Rimmer: That’s right.

Joanna Hardy: Angela is quite right. If you are defending somebody and the credibility of the person making the allegation is going to be an issue for the jury, it is perfectly proper to ask, for example, whether they have previous convictions or whether they have previously made a similar allegation. Those questions are proper.

There is then a second safety valve, which is that the answer to that question may not necessarily be admissible. You may get the answer, but if the answer is that the complainant has a conviction for perverting the course of justice, you will then need to make an application, which the Crown can respond to and the judge will determine. It is not a case of defence practitioners seeking blanket material to throw into the fire. It is a very structured judicial process that then follows. The starting point is whether it is proper to ask for it in the appropriate case. If you are defending somebody to the best of your ability, yes. Does that mean that complainants are then routinely treated badly because of that material? No, because there is judicial oversight in the applications that follow.

Daniel Bonich: Going back to the question, which was whether material that was not relevant would be requested in the hope of dealing with credibility, in cases where credibility is not an issue, it will not be relevant, so a judge will not allow that material to be used. Ultimately, the pressure valve is the judge. The judge will not allow relevant material to come out. If a defence solicitor or counsel has the material, but ultimately it is not relevant to an issue, it will not come out in the proceedings, because the judge will not allow it. Full stop.

Q150       Chair: In reality, pursuing an issue that is not relevant is not terribly good tactics anyway in doing the best for your client’s case.

Daniel Bonich: It certainly would not be good tactics for how you allocate your resources as a defence team. It is a bad allocation of resources. As you have heard, in fixed fee and graduated fee scheme cases, it is work that you would be doing for no pay. There is literally no reason at all why the defence would want to go on a completely wasted exercise.

Angela Rafferty: And you would get pretty short shrift from the judge if you were making applications that were completely irrelevant.

Q151       Ms Marie Rimmer: How does the disclosure of material, or faith in the police and the CPS to disclose, play into the sorts of defence counsel practices that some people call fishing?

Angela Rafferty: As I said, it has formed part of the cultural problem. Some of those requests were made in some of the cases we have heard about. Police who are badly trained and do not understand disclosure sufficiently may describe a perfectly proper request as going fishing. Again, it comes down to the purpose of disclosure, and what the test is. Does it undermine the prosecution case, or might it assist the defence case? That is all that should be looked at, and that is the mindset that should be applied. Bringing in concepts of virtue or improper behaviour do not really help. That is the legal test, and that should be applied. The ultimate aim is to have a fair trial for everyone.

Daniel Bonich: Going back to the very purpose of disclosure and the cultural issue, disclosure is a necessary and important part of the investigation and the investigative process. Sometimes, practitioners get the sense that the police, in particular, view it as an unnecessary administrative hurdle that they have to go through. That is the wrong attitude. It really is part of the investigative process. There was a very good programme on the BBC yesterday, in which Lord Judge commented that if there is not proper disclosure it is a half-baked investigation. That is the reality of the situation.

Angela Rafferty: In that programme, there was a suspect accused of bribery who kept telling everyone that there were lots and lots of emails that could be accessed. Imagine how it must feel, if you are wrongly accused of a crime. You know, or you think, that there is material that can exonerate you, but you cannot get hold of it because the police have your computers, your solicitors are not paid to go and look at it and your barrister is not given it. It is a type of hell that we should avoid in our system at all costs.

Q152       Ms Marie Rimmer: The Information Commissioner has made a written submission to the Committee stating that she fined Kent police £80,000 after the entire content of a complainant’s phone was given to the person who had been accused of the crime. What training or support do defence counsel get so that they can understand their role as data controllers?

Chair: It applies to solicitors as well, obviously. Does the issue of being data controllers arise?

Daniel Bonich: The issue of data protection is a very live one. Obviously, we are due to adopt the GDPR very soon. Firms of solicitors are required to have in place processes in relation to that. The Law Society has helped with training, as has my organisation, and that is something we will continue to push.

We are all very conscious of the situation with data protection. There has to be a balance between the interests of a complainant and their data, our clients and the administration of justice. It is not always an easy balance to find, but ultimately it is one that we must strive to achieve. As you say, there are sanctions in place if there are breaches of data protection.

Angela Rafferty: There are regulatory offences as well in relation to barristers looking after data. We are all well aware of our duties under the regulation, and of the sensitive nature of the material that we have disclosed to us.

Q153       Chair: The Law Society and the Bar Council make their members very well aware of it.

Angela Rafferty: Yes.

Joe Egan: There is extensive training, yes.

Q154       Ruth Cadbury: I want to move on to the role of the police and the CPS. We have touched on some of the issues already in some of your responses. In your opinion, do the police understand their responsibility to follow all reasonable lines of inquiry? Are they the right people to make decisions about what material is to be used or not used?

Joe Egan: It was certainly the case when I was practising that you got the very real feeling, as was said earlier, that the culture in the police was to find someone towards whom all the evidence pointed as being the perpetrator of the offence, and then they tended to have tunnel vision and tried to collect more and more information to support that. That certainly was my impression, and I have seen nothing that makes me think it might have changed recently.

Daniel Bonich: A great deal of work is being done in relation to this. A national disclosure improvement forum was set up fairly recently. I think it has only had one meeting so far. It was created to try to address the disclosure failings on behalf of the Crown. As part of that, they have developed a disclosure management document that has a section that asks specifically about reasonable lines of inquiry and gives some examples. The defence had some input into that form. Although it is a live document and it may be further amended, it is intended to help the police to recognise the importance of looking at all lines of inquiry, particularly those that point away from the suspect, which is the wording on the form.

Part of our submission in relation to the content of the form was that the officer should specifically ask themselves whether the defendant raised a point in interview that ought to be followed in a line of inquiry. The only concern we have thus far is that there was some resistance to putting that in, for reasons I do not fully understand. As the form currently stands, that is not there. The argument is that it is implied in “reasonable lines of inquiry pointing away from the suspect,” but, if one were to be slightly more blunt about it, I see no real reason why “Has the defendant raised a defence that ought to be looked at?” should not be in the form, to help the police work out whether they have followed the necessary lines of inquiry.

The other difficulty with the form is that it is intended to be completed by police officers when they go to get Crown Prosecution Service advice on charge. I understand from the CPS that they are only involved in something like 40% of charging decisions, so at the moment the police do not have an equivalent for themselves. That is an area where perhaps they need to look carefully to see if they can replicate that type of form for their own processes.

Joe Egan: As we suggested, there could be some mechanism whereby there was early co-operation between both sides. One example from my past is where my client raised the fact in interview that he had a very good alibi. I spoke to the custody officer afterwards and said, “You really do need to go and examine this.” I expected that they would go and speak to the alibi, but they took the view that because it was his mother they would simply go back and talk to the complainant, who was in hospital, and take her view. He was very fortunate in that case because, in the end, DNA exonerated him. Unfortunately, that was the situation then. Hopefully, with the new initiatives, that might change a little.

Daniel Bonich: Alibi evidence is a really good example of lines of inquiry. The defence are under a considerable obligation these days to provide details as to alibi very early in proceedings, but it is often reported back to us that, having given that information, nothing is ever done. The first time those witnesses are contacted is when the defendant’s solicitors contact them and say, “I understand you want to give an alibi,” and take a witness statement. If their details have been provided early, even at the police station stage, they really ought to have been spoken to by police officers. The reality is that it does not always happen. I am sure it is happening often, but it is not always happening. I cannot see any reason why it should not happen in every case where an alibi has been named.

Angela Rafferty: To answer the question about police understanding the test, we have had some pretty uncompromising evidence quite recently from the inspectorates of the police and the CPS about that. They have set deadlines that have passed and have not been met. We concur, from the Criminal Bar Association perspective, with the findings of the inspectorate that police training is inconsistent and often very bad. There is no real understanding in the police force generally as to the purpose of disclosure. There is a poor understanding of the process of disclosure. We agree that it is looked at as an administrative task rather than as integral to the investigation. The police are understaffed and there is low morale. All the same things apply to them as apply to us.

The correct test is not applied and an adversarial approach is taken to disclosure, which is a problem. Not putting things on schedules, or not understanding what should go on the schedule, is really important. We think that the deadlines were really important, and it would have been good if they had been met. You may well have the inspectorate back, but we are not confident that the police understand their responsibilities in this area, or that it is getting any better.

Q155       Ruth Cadbury: That is a pretty comprehensive list. I want to pursue one line. We hear that in some cases a single officer will give charging advice; direct the criminal investigation; examine material; and decide what to reveal to the prosecutor. They both advise that a person should be charged and hand over the material that might lead to that person being found not guilty. Is there in your opinion a conflict of interest in that combined role?

Angela Rafferty: I think we all read crime fiction, or lots of us do, and we are all familiar with the crime book that starts with the officer’s hunch, which the officer then pursues. It reflects a sort of truth about human psychology, but it is important to have an independent eye cast over such important things. It is important to have checks and balances within the police to ensure that the test for disclosure is carried out. Some officers could perform two roles, but it can be difficult. There could be perceived conflicts with an officer doing all of that in one case, potentially.

Daniel Bonich: There is a massive element of trust in how disclosure operates. There is trust in both the police and the reviewing lawyer, first to apply the appropriate test and to use appropriate diligence in completing the list, and of course to be honest about the material that they have. Any situation where you allow the checks and balances to be removed runs the risk of huge problems. The sense, which I think is increasingly growing, is that the public have lost trust in this exercise. That is something we should all be concerned about, particularly in the Crown court where ultimately decisions are reached by juries. If they have lost trust in the disclosure exercise, they may reach a decision that they would otherwise not have reached.

Q156       Ruth Cadbury: Finally, Mr Bonich, you said in your evidence: “It seems to us that there is an over reliance on the Police to make decisions when the schedule of unused material is drawn up” and the CPS just “rubber stamp it.” What does the CPS need to do to ensure that disclosure is done properly?

Daniel Bonich: They just need to go back to basics. They exist to be independent. What they ought to be doing is bringing a healthy amount of scepticism to anything that is put before them. They should stand back and look at the bigger picture of a case. If they are not happy with the state of the schedule, they ought to be raising that with officers.

I am sure that is done, but, as you heard from Joanna, where it happens most often is when counsel become involved. That represents a failing of the CPS to spot something that becomes immediately obvious to counsel. That is perhaps where training and resources ought to be focused, to make sure that the CPS conduct the exercise properly themselves, rather than relying on counsel to come in, often at the last minute, and fix the situation for them.

Angela Rafferty: It would be useful for the Crown Prosecution Service to face the issue and the reasons behind it squarely. You were asking the inspector about the impact of resources, and he was unable to say whether they really did feature. It is quite obvious that CPS lawyers—very good CPS lawyers—are demoralised. There are not enough of them. Their caseloads are voluminous. It is not difficult to see how these things could end up happening. It is unfortunate, but they do not often have a lot of time to review the schedules.

Q157       Chair: It is not deliberate; it is almost the line of least resistance.

Angela Rafferty: Yes.

Daniel Bonich: In terms of justice being done, it frankly does not matter whether it is deliberate or not. The result is the same.

Chair: Exactly. If justice is not done, it does not matter why in a sense. I perfectly understand that.

Q158       Ellie Reeves: One of the things that has been clear during this session, and from other evidence that we have received, is that funding is a real issue. It would be useful to talk a little bit about recent changes to legal aid and the impact that has had on disclosure. I know it has been touched on, but, Mr Bonich, can you talk about the evidence from the CLSA that states solicitors are not paid to review unused material?

Daniel Bonich: Two issues in relation to disclosure lead to a constant battle. The first is whether the material is used or unused. That is a constant battle because in order to secure funding, so that matters to be looked at can be paid for, we often spend time trying to convince the CPS that they should serve it as used material rather than unused material. On occasion, Crown court time is taken up to deal with that precise argument. That is almost certainly a waste of court time.

There are two problems. If it is unused, there is no separate remuneration for defence solicitors. It is considered part of the fixed fee. The fixed fee does not change whether there is one page or 20,000 pages of unused material. It all needs to be looked at. That is the first problem.

Where the material is used, so the prosecution are relying on it or have at least served it as used to try to help the defence to look at the material, the problem is slightly different, as a result of recent changes in how the solicitors’ funding is arranged—the litigator fee. There is now a cap on pages of 6,000, after which you have to apply for something called special preparation. That accounts for reading time only. If there is more than 6,000 pages, a solicitor will be paid to read the material as special prep, but they will not be paid for any of the work that comes out of that reading. There will be no payment for speaking to your client about what they say, or for briefing counsel or carrying out your own investigations. That causes a real difficulty.

As Joanna pointed out in relation to counsel, the practice is that most diligent solicitors will do the work none the less, but it has come to the stage where it is having a cumulative effect. Firms simply cannot afford to spend resources on exercises that ultimately are not going to pay at all.

Joe Egan: As you are probably aware, the situation is such that the Law Society is judicially reviewing the Ministry of Justice because of that change. It has a fundamental effect upon the viability of practices, as we see it.

Q159       Ellie Reeves: How often do you have to apply because it is more than 6,000 pages? It sounds like that could be quite regular, due to digital issues. Is it a regular thing? Is it the norm rather than the exception?

Daniel Bonich: It is becoming far more regular. You heard about the digital crater. Cases that were previously rather straightforward are now more difficult. In my own practice, we have a case at the moment that effectively amounts to a domestic case. In days gone by, it would have been a fairly small case. On the first day of trial, we were served with 17,000 pages of material. That needs to be looked at. As it is currently served as unused, it will be looked at free of charge.

Coming back to a point I made at the very start of proceedings about the lack of judicial support, when we asked the judge for further time because it was 17,000 pages and we did not think the case could possibly be ready to start on the second day of trial, he said, “Well, that is an evening, so why can’t you get it done?” The trial was still to continue to start on Tuesday. Counsel had to argue points, which the judge took the view she should not have deployed, about the fact that she had children to collect and family to look after, and that she could not possibly be expected to work from four o’clock in the afternoon all the way through to the next morning without even sleeping to try to make a dent in that material. That cannot possibly be right. Ultimately, the judge, quite rightly in my view, took the view that the trial could not be effective.

That complainant came to court unnecessarily. The Crown Prosecution Service had had the material for months. The idea that the defence could be put under pressure to look at it in 24 hours, at a volume of that level, is completely unrealistic.

Q160       Ellie Reeves: You have wasted costs involved as well, if the trial cannot go ahead in those circumstances.

Daniel Bonich: That comes back to my earlier evidence. If we could apply for wasted costs, it would serve no purpose for us, as it is currently framed. There is no sanction.

Q161       Chair: It presumably only works if you are representing a small number of privately paying clients, otherwise it is pointless.

Daniel Bonich: Indeed. It is more than that, because in that particular case the prosecutor told the court they were ready to proceed, as no doubt they often do, because it is a statistical matter. They were not ready to proceed, because they had literally just served 17,000 pages of evidence. The idea that they were ready is absurd. In fact, in that case they said, “Here are 17,000 pages and there are another 10,000 pages that you will get later this afternoon.” That was on the first day of a trial.

Q162       Chair: It is really saying, “I have what I need to prove my case as I see it, so I want to go ahead.” That is what it comes down to, never mind the fact that you have not disclosed anything that might blow a hole in it.

Daniel Bonich: It does, but both counsel’s and solicitors’ respective codes of conduct have obligations to the proper administration of justice. To tell a court that you are ready when you know that in reality you are not is wrong. I am sure it was not an attempt to mislead the court. I am sure there were statistical reasons behind it, but it is wrong and it makes the defence position more difficult when we have to convince a court why we need time to look at such a volume of material.

Q163       Chair: Is it pressure to meet targets within the CPS, for statistical reasons?

Daniel Bonich: I am sure it is. I cannot speak for them because I do not practise in the CPS. Although we are open to CPS members, and our constitution allows for one to be on our committee, we have not had one for some time, so I cannot tell you what the position is.

Q164       Alex Chalk: Whenever a case does not proceed, a form has to be filled out listing the reason for the delay. It is quite important for statistics whether it is a defence application for an adjournment or whether the prosecution concede. That may have something to do with it.

Daniel Bonich: Exactly. It will say “Defence application.”

Angela Rafferty: We have never been paid to look at unused material, and the situation that you have just heard about happens very often. Trials start and then are put off for a couple of weeks. Teams of barristers are sitting in robing rooms, trying to read through all the material, knowing they will be paid very little.

Q165       Ellie Reeves: From the Bar’s perspective, what do you think the Government should be doing in terms of investment to ensure that the system is fairer and the outcomes are more just?

Angela Rafferty: Properly remunerating barristers for the work they do, which includes the consideration of unused material, and in complex cases, paying for our work, so that all the things we have been discussing about the situation that we are in do not occur and are repaired.

Joanna Hardy: It is important to say that no one comes to the criminal Bar to be rich. We are not stupid. If we wanted to be rich, this is the last job we would be doing.

Chair: You will probably get some sympathy here on that point.

Joanna Hardy: At the same time, we do not think it is unreasonable to say, “I have been given a pile this high on the morning of trial.” Sometimes, it is handwritten medical notes that are relevant, and I have to sit there, go through them and decipher them page by page. It is hard, long work. I cannot say to my client, “I have prepared your case beautifully, because I have been paid for that and it is ready, but I have only had a cursory glance at this pile of material because I am not being paid for it.” I cannot make that economic choice in my head. I have to treat each pile of papers equally and give them my full professional attention. If that takes until three o’clock in the morning, that is what it takes, but it is a bitter pill to swallow again and again, thinking, “I am just working for free.”

Q166       Chair: It takes advantage of people’s professionalism.

Daniel Bonich: It does. Ultimately, we are effectively asked to be the guardians of the system. If there have been failings along the way, we are, as solicitors and counsel, expected to spot them and raise them for the court’s attention. The system is running on our good will. The problem with that is that ultimately the good will becomes exhausted, and if there are not proper, strategic and structural changes, these matters will go past us as well and we will end up with miscarriages of justice.

Angela Rafferty: We may be at the point where the good will has run out. It is not just the lawyers; court staff and everyone working in the system have been keeping it going by professionalism and good will. It is running out.

Q167       Alex Chalk: While I entirely accept the point about resources—cash—would it be fair to say that it is also about culture, particularly in the police? We have talked of the slight concern about them saying, “I’ve got my man and therefore I am building a case.” Isn’t pursuing all reasonable lines of inquiry part of it, too, whether they lead towards or away from the defendant?

Angela Rafferty: Of course it is.

Q168       Victoria Prentis: Can I be very un-English and ask about money? It is quite important that we talk fairly frankly about what criminal barristers earn. We had a slightly embarrassing conversation about judicial salaries last week. To the general public, judges earn a lot of money, but it was very carefully explained to us that they were normally earning 10 times less as a High Court judge than they had been the year before they became a High Court judge.

Criminal barristers are on a completely different level of pay scale; I know that. Would you like to tell us how pupillage is remunerated, and perhaps how much on average you would earn for your first years at the Bar?

Joanna Hardy: The minimum pupillage award—I will check this, but certainly when I did it—was £12,000. It was £1,000 a month.

Q169       Victoria Prentis: Is that for a year?

Joanna Hardy: Some of that was often a grant of £6,000 for the first six months and then guaranteed earnings. You would have to earn your second year by getting up and going to court.

Things have improved at big chambers, but they are by no means competitive with salaries and working conditions in parallel professions. I do not think it is unreasonable for somebody who has trained for five years, and perhaps is in a huge amount of student debt, to look sideways at their colleagues who are teachers or who entered the civil service on the fast-track graduate scheme—parallel professions where you have worked for a similar level of time; even doctors in the NHS. There is a five-year training period for a barrister and a five-year training period for an entry level F1 doctor.

You have to factor in that people coming to the Bar have none of the benefits of those professions. For every fee I get, I have to put money aside in case I get sick, in case I become pregnant, or for when I get old and need to retire, because I do not have a pension. Out of that, we also have to pay our administration—our clerks who run our practice—and our insurance.

You spoke earlier about the Information Commissioner fees. There are things like that. Out of our time, we then invest in the new generation. I recently spent two Saturdays, completely unpaid, for about nine or 10 hours a day interviewing candidates who want to come to the Bar. We do not have an HR department. We do it ourselves.

Similarly, silks in our chambers spend time training the next generation in advocacy. It is not just about the money; it is about the entire culture. Those who join the profession now, finish pupillage and leave the safety of that pupillage award, are not able to look sideways at teachers and junior doctors.

Q170       Victoria Prentis: You would say that they are earning less than teachers.

Angela Rafferty: In the early years of practice, yes. It is because we are self-employed; your question was about the Bar. It is difficult to pinpoint exactly what we earn, but it is £12,000 in pupillage, moving possibly to £25,000 for the first five years of practice. If you take time off, you are not paid. You then have to halve that for the expenses. It is getting to the stage where we are considered the poor relation of the law—we do not like it but it is true—yet we are all looked at as well-paid lawyers sometimes. It is simply not true for the criminal Bar or for criminal solicitors.

Daniel Bonich: Can I answer the same question for solicitors? The CLSA recently conducted a survey as to average age of duty solicitors nationally. Our answer was 49. It is slightly different from the Law Society, but none the less it was a similar sort of figure.

The average salary for a duty solicitor nationally, bearing in mind that they are 49, so in all likelihood have been practising for a very long time, is £27,000. That compares very badly with the police officer who will be sitting in the same interview as you. It is not just teachers. It is police officers. Nurses in London can often be higher-paid than duty solicitors with 25 or 30 years’ experience.

That causes a real problem, because it is increasingly difficult for our members to find trainee solicitors who want to do crime. They all know what they are going to get when they come into the system, and it is not a worthwhile exercise for people with degrees and training that is highly transferable. If they do not go into civil litigation, they can go into almost any other walk of life and potentially earn far better salaries than in a duty solicitor service, which is 24/7, 365 days a year. We do not work shifts. It is constant, and very often it is a very poor quality of life for marginally above the national average salary.

Victoria Prentis: That is very helpful, thank you. I am sorry to be embarrassing.

Angela Rafferty: But it is a great job.

Joanna Hardy: Yes.

Daniel Bonich: It is a great job.

Angela Rafferty: People from all backgrounds should at least consider it. We are trying to take steps to fix it for you for the future, if you are listening or watching.

Q171       Alex Chalk: The reason why it is worth preserving is that people of real talent and ability will go into it, beyond what they might expect to be paid in other walks of life for their qualifications. For society to get the cream of the crop, we need to ensure that that pipeline remains.

Daniel Bonich: If there is an area of the system that requires a diverse background of practitioners, it must be crime, because of the people we deal with. The difficulty is that for many people, certainly at the Bar, and to a degree as solicitors as well, it is very difficult even to start on that journey when you know you are not going to be able to earn enough to live on in the early years.

Angela Rafferty: We at the criminal Bar have recently recommended action. We have looked at the future. We think that enough is enough, and we want to ensure that the profession is sustainable for future generations. That is what we are hoping to achieve, because of the importance of the issues involved. People can go to prison for years and years if the system does not work. Victims will not see justice if it does not work, so it affects everyone in the country.

Q172       Chair: Having prosecuted a case that appeared very strong and was upheld by the Court of Appeal the first time around, but which was blown apart by a disclosure failure the second time around after someone had served a seven-year sentence, I for one am very conscious of what goes wrong and the consequences if we do not get it right.

Angela Rafferty: It is the stuff of nightmare.

Chair: Thank you very much for your very full and candid evidence about the matter. We are very grateful to you. The session is concluded.