“Try Me Kangaroo Court, Sport!”

So it’s been a while since I’ve managed to blog. It’s been a combination of inertia brought on by seeing the criminal justice system decline on a daily basis first hand (and no one seeming to do anything to stop that), and lack of time.

The current fees structure for the criminal Bar means that we are literally now only paid for time spent in court conducting hearings or trials, with no remuneration for preparation time. So you have to take on more cases to ensure more time in court to ensure you’re getting paid, and time outside of court sitting hours now has to be spent doing all the prep for forthcoming cases. Gone are the times when you could afford to take a couple of days out of court in order to properly prepare a trial. Or write a blog.

However, like most of the Bar, over the last couple of weeks I’ve found myself with a great deal more time on my hands than I had expected, despite a bulging diary. Overnight, with the closure of the courts, the work diaries of even the busiest barristers have been decimated.

So unfortunately for you all, I decided to put writing another blog onto my ‘to do’ list. Originally this was to be on the vexed topic of how the courts were still open and trying to carry on trials when just about all other public buildings apart from hospitals were shut. However, no sooner had I written the first paragraph than the Crown Courts had to close down after being rightly recognised as filthy, virus-ridden pits of iniquity.

Then I was planning to tackle the provisions of the new Coronavirus Act and related Health Protection (Coronavirus) Regulations and what those might mean for the courts dealing with them. But any plans I had for that were pre-empted by the case of Marie Dinou and the work of journalist Fariha Karim and barrister Kirsty Brimelow QC, both of whom uncovered the fact that Ms Dinou had been wrongly convicted of an alleged offence under the new laws after what can only be described as a bit of a Keystone Cops moment by the British Transport Police: see link to Fariha Karim’s story in the Times here.

One particularly worrying aspect about this story was that, but for the BTP putting out a press release glorying in the fact that they’d secured the first conviction under the new coronavirus legislation, no one would have known about it at all. Currently the courts which are operating – mainly magistrates’ courts – seem in effect to be operating a closed system of justice. Court reporting has become almost impossible as buildings are closed and many of those hearings which are still taking place have gone ‘remote’. Even worse, some of the best court reporters such as Tristan Kirk (follow @kirkkorner on Twitter) have been furloughed by their employers so they can’t carry out their usual work.

The implications for open justice of the new ‘remote’ operations – which the MOJ and HMCTS will be foaming at the mouth to keep in place when the current crisis is over – is likely a topic to which I will return. However, one concerning aspect of the Marie Dinou story was that, as if in some sort of Cliff Richard film “hey, kids, let’s do the show right here” way, she appears to have been tried and convicted at the first appearance.

“Whaddaya know, we’ve got a show!” The fantastic Talking Pictures TV trailer for the Cliff Richard film The Young Ones (1961). EVERYONE should watch TPTV.

Now, I appreciate that we are not in ordinary times, but I appear to have missed the practice direction which says that the rules of evidence, procedure and disclosure can be completely jettisoned in favour of trying accused people on the spot.

I try to avoid going to the magistrates’ court at all these days. After a client was convicted after a trial by West London magistrates on the basis that “we find the complainant credible because she’s the complainant, so we find the Defendant guilty”, I refused to go there again. (Yes, they actually gave this as their reasons – conviction subsequently successfully appealed.) But I was still surprised to see the report in the Dinou case that appeared to suggest that everything I used to know about trial procedure had gone for a burton.

One of my blogging idols, Barrister Blogger (ooh, I haven’t half got a crush on him!), has now put out a blog which deals in further detail about the shenanigans in Tyneside, which you can and must read here.

And seeing his blog made me wonder if the events in North Tyneside were a mere aberration, or whether this procedure – less summary justice, more peremptory justice – was more widespread.

Turns out that it is.

Many thanks to solicitor SM, as I will call him, who last week witnessed first hand, in a court in the West Midlands, what could best be described as a kangaroo court. What happened wouldn’t have been known if SM hadn’t reported this on a social media group for criminal lawyers, in real time, as it was actually happening.

I report what SM reported with his permission. The events took place in open court on 31st March, though at first blush you’d be forgiven for thinking it was a day later. The chronology reads like a multiple choice exam for district judges, where the wrong answers were selected by the candidate throughout. See what you think.

SM was at the magistrates’ court as duty solicitor. A custody case came to him with the Defendants charged with obstructing a police officer. They wanted to contest the charge – it seems to have had some relationship to the current COVID-19 situation though not a charge under the new provisions. Acting as duty, SM addressed the district judge on the basis that the Defendants intended to plead not guilty and wanted to have a trial. The district judge then said he wanted to deal with the trial then and there. 

Now, as SM (and presumably the judge) knew very well, the rules are clear: as designated duty solicitor he cannot act in a trial. Therefore, SM suggested that the Defendants should be allowed time to instruct their own legal representative, which as the Defendants were in custody would necessitate them being given a reasonable opportunity to do so. The Defendants wished to do this. It should have therefore be a straightforward entering of not guilty pleas and adjourning to a suitable date for trial.

Except the judge was for some reason determined that a trial was going to take place that day. He therefore refused bail and remanded the Defendants in custody until 2pm to find legal representation. Which was going to be pretty tricky, as they were in the cells without access to phones or the internet. Oh, and the case papers had only been served on SM digitally (in his role as duty solicitor) so he could obviously not provide them digitally to the Defendants himself. They hadn’t seen them.

At 2pm, the district judge attempted to start the trial. The Prosecutor – quite rightly – applied to adjourn. The prosecution had obviously not been in a position to comply with their procedural duties to review the unused material and certify the disclosure schedule, as the case had only had its first appearance a couple of hours earlier. As the district judge should have known, those requirements are mandatory, not a matter of choice.

The district judge refused the prosecution’s application to adjourn the trial.

By now, SM was pretty perturbed at what he was watching. But matters got worse.

The district judge then purported to ‘court appoint’ SM to cross-examine the Crown’s witnesses as (hardly surprisingly in the couple of hours they’d been sitting in the cells) the Defendants had not managed to secure representation.

There was a fundamental issue with that: SM was at court in his capacity as duty solicitor, so not permitted to conduct trials with his duty hat on. He was invited to sign out from that role to take on the court appointment. He wasn’t happy about being put into this position, but the district judge told him he was not allowed to refuse.

By this time, SM had not even seen the four tranches of police body worn footage (amounting to over two hours) on which the Crown’s case was apparently based and upon which they would rely at trial. Neither had the Defendants. No one knew, for example, if there were any potential defence witnesses who might need to be contacted.

The district judge also appeared to misapply (putting it politely) the statutory requirements for ‘court appointed cross-examination’. The provisions for such an appointment can be found at ss34-38 of the Youth Justice & Criminal Evidence Act 1999. The purpose of the provisions is to prevent Defendants from cross-examining in person a particular group of vulnerable witnesses: complainants in proceedings involving sexual offences (s34), or ‘protected witnesses’ in cases involving children or adults in cases such as indecent images, child cruelty, modern slavery, kidnapping or false imprisonment, child abduction, or offences involving assaults (s35).

Suffice to say, police officers giving evidence about allegedly being obstructed outside their own police station don’t fall into the ‘protected’ category.

The only provision which could conceivably have applied in order to make the court appointment legitimate was s36. The details of that section are here:

As the prosecutor had not made any such application, SM had to conclude that the judge had considered that under s36(2)(a) the ‘quality of the evidence given by the witness on cross-examination (i) is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and (ii) would be likely to be improved if a direction were given under this section, and (b) that it would not be contrary to the interests of justice to give such a direction’.

Seriously?

Further, under s37(4) the court is required to pronounce its reasons for making such an order (which comes under s38) in the first place, and in the magistrates’ court to enter those reasons in the register of proceedings. I think you can probably guess at whether that happened or not.

Not daunted, the prosecutor – still acting quite properly – again applied to adjourn. The district judge was told that the unused material was actually quite weighty and needed to be properly reviewed and certified. This apparently did not go down well, with the judge forcefully expressing the view that the CPS had had “plenty of time” to do this as this was apparently “the only case in West Mercia”. This was followed by a swift departure from court with an order that the Chief Constable be telephoned – though quite what the CC would have done with an unused material schedule is anyone’s guess.

Further information was given to the court by the prosecutor, attempting to comply with the Crown’s duties regarding disclosure: all high ranking prosecutors were in a meeting and would be available tomorrow so they couldn’t be consulted about this. The district judge’s response was to the effect of “if you’re asking for an adjournment, it is refused”. The Crown, he said, had had more than enough time to review and deal with this case. By then it must have been all of 12 hours or so since the arrests.

The Prosecutor then tried to withdraw from the case, presumably because their inability to comply with their proper professional duty regarding disclosure in the current circumstances meant that they were professionally embarrassed. This prompted the district judge to state that they couldn’t do that – which is so blatantly wrong on a number of levels that it’s hard to know where to start with that one.

And so the prosecutor took the only course open to them in the circumstances: they offered no evidence, so the case had to be dismissed!

Now, it’s not clear from what SM was able to observe whether this outcome was one which the district judge anticipated. But I would venture to suggest that it was not the ending which the police who had made the arrest had expected.

So why is scrutiny of this behaviour important? The rules of evidence and procedure – not to mention odd little things like statutory tests and requirements under Acts of Parliament, for example – are in place for very good reasons. For the protection of those prosecuted by the state (and, in the case of district judges, convicted and sentenced by the state too). To ensure fair trials. To avoid miscarriages of justice, which are both traumatising for those who are on the wrong end of them, and expensive to put right.

It’s unclear as to whether this case or Dinou are a result of edicts from on high, telling judges that they must get cases which are apparently coronavirus related dealt with immediately – whether the rules of evidence and procedure can be complied with by all parties (including the court) or not – or whether these are simply ‘local frolics for local people’.

What did become clear to me last week, though, is that this problem is more widespread than just these two examples. Here are two tweets on the topic, the second of which suggests that the problem of ‘peremptory trials’ pre-dates the current coronavirus panic.

If the rules of evidence and proper procedure have been thrust aside in our magistrates’ courts, which deal with 90% of criminal cases, on whose orders? Who has sanctioned this? Are the magistrates’ courts simply making all this up as they go along?

Whatever is the case, we dispense with the rules of evidence and procedure at our peril. The current emergency is no excuse to allow the summary justice arena to turn into some kind of kangaroo court.

Main pic by Wildy 

 

You Don’t Get Me, I’m Part Of The Union

Over the past five months, since I last blogged, I’ve opened the laptop on a number of occasions to try to write something else. But every time, circumstances got in the way.

Usually work related. It used to be the case that I could slip in throwing together a few paragraphs here and there during the course of a working day or week, because – in between the mentions or sentences when you got paid 50p and a toffee apple to schlep to court the other side of the town/country – if you had a case with a reasonably sized brief fee and page count, you could make up for that. You could afford to take the odd day out of court to prepare for trials, because you knew that your eventual brief fee could buy you that time.

But now that the latest criminal defence fee scheme has properly kicked in (no, not the one where the MOJ were supposedly injecting some extra cash, because none of us have actually seen any of that yet), barristers doing criminal legal aid work literally cannot afford to take any days out of court. Your trial brief fees will now not afford you any ‘working day’ time to prepare for forthcoming hearings (let alone blog). If you aren’t in court every day, you won’t be able to cover those hours of out-of-court prep with your brief fee and page count.

It’s a disastrous situation for everyone’s wellbeing, of course – since it simply means that all that case prep must now be done in the evenings or at weekends, any time when you’re not in court conducting some other case. So the need to keep running on the hamster wheel to earn money has meant that blogging had to go on the back burner.

However, a couple of developments over the past weeks have forced me to sweep the files off my desk and get to grips with it. The first is that a new union for legal professionals has appeared, and the second is that a wide-ranging survey of those criminal Bar members who prosecute suggests that 95% are willing to down tools over pay.

About bloody time.

“Now I’m a union man
Amazed at what I am
I say what I think, that the company stinks
Yes I’m a union man…”

I’m not the only barrister who has been banging on for years that the only effective way to make the powers that be – and that really means the Treasury – take notice of our grievances is to down tools from both sides of the Bar. Prosecution and defence. But we’ve previously been far too timid about it.

It’s understandable that barristers whose practices are wholly or partly prosecution based are nervous about telling their paymasters this (as the CPS has a monopoly on criminal prosecution work). When barristers first took action with defence ‘no returns’, there were apparently various thinly veiled threats circulated around Chambers about the effect that any suggestion of ‘unavailability’ would have on the practices of anyone on the CPS panel lists. The understanding was that such barristers would be removed from the lists altogether, to prevent them from taking on prosecution work again.

When you see the media reports, it’s obvious that the CPS aren’t taking our complaints about the unacceptable level of fees seriously. According to the BBC ‘strike’ report (see link here), the CPS response to the news about the CBA poll was simply to parrot that a review is taking place to “make sure we get a broad and deep understanding of the issues with the current schemes” and that this would take “at least four months”.

Why such a review would be necessary when the CBA has already done that work for them is anyone’s guess. Every recent Monday Message from the CBA leadership seems to have included a horror story about counsel getting paid (or not getting paid) by the CPS, and how much the already parsimonious fees have been eroded by inflation during the 20 years (yes, 20 YEARS) in which they’ve not been increased. Quite how anyone can actually afford to continue with a prosecution practice is a mystery.

“When we meet in the local hall
I’ll be voting with them all
With a hell of a shout, it’s ‘Out, brothers, out!’
And the rise of the factory’s fall…”

When mulling over what action we need to take and when – and that really is the point, not whether we need to take any – our leaders would do well to consider what the Justice Secretary David Gauke said in the Commons Justice session on 3rd April 2019 (see link to transcript here). It’s the same mealy-mouthed avoidance that the CPS are now coming out with.

This session was mainly considering the effects of LASPO, so not of direct impact to criminal practitioners. But when you see the Secretary of State suggesting that the MOJ “genuinely engaged with interested parties” (cough), then you get the general idea of where any “reforms” to the AGFS are going.

“As a union man I’m wise
To the lies of the company spies
And I don’t get fooled by the factory rules
‘Cause I always read between the lines…”

Apparently, the MOJ are “considering very carefully the sustainability of the criminal legal aid market” (hmmm). And then Gauke said this:

“It has been a year when there has been quite a lot of focus on the issues with AGFS and so on. In my view, we are not going to return to a previous era in criminal legal aid in terms of the rates and so on. To be candid with you, we are seeing the consequences of that. Far fewer cases are brought and that has caused some strain for defence barristers, for example; there is less work than there was.

We have gone through a long period of time when fees have been very constrained, indeed reduced. In my time in office, we have increased some of those fees, particularly for the junior Bar. We are trying to work very constructively with the criminal Bar and the Bar Council to make sure that we have a sustainable system. I agree with you. On a number of occasions, I have acknowledged the very important work that the criminal Bar does to ensure that we have a proper justice system.”

 

I’ll be blogging about the issue of “less work than there was” next time. But just in case anyone from the Bar Council, the CBA or any of the other representative bodies was in any doubt, there it is: we are not going to have any restoration of the fee rates which have been cut to ribbons over the past 10 years or so. This statement alone should have defence barristers instantly manning the barricades, but it seems to have been overlooked amid the current cacophony about prosecution fees.

Gauke’s pronouncements were full of general platitudes and short on detail. It seemed to be all about kicking the can of AGFS review as far down the road as he could, trying to suggest that the Bar could wait for another interminable ‘process’ to be concluded – as if anyone in this Government ever gets any review project completed.

“And I always get my way
If I strike for higher pay
When I show my card to the Scotland Yard
And this is what I say…”

There was a good deal of “it’s going to require a lot of work” and “I want to do something that is evidence-based and sustainable” (funnily enough, when barristers present evidence in MOJ consultations or reviews, the MOJ usually ignore it). But when it comes to questions about additional funding, which is the obvious solution when the MOJ’s funding has been cut by around 40% since 2010 (way more than any other Government department), Gauke notably doesn’t give any answers.

So why are we waiting? He’s set it out there. We’re not going back to a time when the AGFS was at least respectably remunerated. This is all that our rep bodies need to know.

I’ve previously blogged about striking (see We’re Not Alright, Jack! here and Everybody Out! here), so it’s probably getting boring now. But those blogs were back in November 2018 and October 2017 respectively, and – apart from the brief whimpering of not taking on new work for a couple of months a year ago, until people saw their tax bills on the horizon in July and so, with the equivalent of the Bar’s own Brexit vote, narrowly decided in a ballot to stop the action before it had had any discernible effect at all – absolutely naff all real action has been taken. And meantime, the MOJ and HMCTS continue to walk all over us.

The example in last week’s Law Gazette (see link here), about how prosecuting counsel were treated having conducted and billed an extremely serious kidnapping case, reveals precisely the contempt in which those who prosecute are held by the ‘business management’ end of the CPS. Those of us who defend know this feeling exactly, as the same treatment is meted out by the Legal Aid Agency, who are supposed to pay our invoices when we’ve billed defence work.

I don’t know about anyone else, but over the last 12 months I seem to have spent almost as much time applying for redeterminations of my bills by the LAA as I have dealing with actual court cases. It cannot be a coincidence that the stories of how many bills are rejected on the basis that the LAA supposedly can’t, for example, verify that a particular trial actually took place, or some other spurious excuse for not paying, seem to have increased exponentially.

We can all see the end game these Government departments are aiming for. In the case of AGFS, it’s starving out as many members of the criminal Bar as possible, to reduce numbers of defence lawyers and Chambers, no doubt so that ‘one case one fee’ can be foisted on all those who remain. Imagine all those admin savings! The bean counters must be gibbering with excitement up at Petty France.

Then eventually, no doubt, the idea will be to either expand the PDS – on the basis that anyone left standing doing criminal defence work will be only too grateful to take on a salaried post on no doubt far less favourable terms than those offered at the CPS – or to sell off all the criminal legal aid contracts to one or two large firms (Serco, G4S, Capita – you get the gist). Either way, the MOJ will have control of what goes on, and no doubt will be imposing performance targets for how many guilty pleas each employee squeezes out and putting people of two years’ call into murder trials on their own, on the basis that it’s cheaper that way and hey, it’s only people accused of crimes, after all.

“Before the union did appear
My life was half as clear
Now I’ve got the power to the working hour
And every other day of the year…”

Now the Legal Sector Workers United has stepped forward and invited criminal barristers and solicitors to join a proper trade union (see link here). To me, the idea doesn’t sound half bad.

We all know that the problem with our previous pay negotiations has been twofold. The first is that the criminal Bar has played too nice, too polite, too much as if indulging in a game of Eton Fives where everyone plays by the rules, rather than negotiating with an opponent who is prepared to use every trick in the book, including bare faced fibs, to get what they want. And what the MOJ want is not to give us a penny more.

The second problem has always been that the MOJ will play off the Bar against criminal solicitors, causing the Bar’s negotiators to forget that we still need to be instructed by solicitors to actually get work in the first place – not to mention the support of our instructing solicitors if defence ‘no returns’ is to work. If everyone from both sides joined the LSWU or some similar officially unionised organisation which negotiated on our behalf, we might actually get somewhere.

“So though I’m a working man
I can ruin the government’s plan
And though I’m not hard, the sight of my card
Makes me some kind of superman…”

Bearing in mind that the landscape of unionisation has changed considerably over the past couple of decades – now even workers on zero hours contracts are able to join unions – I also can’t understand why our professional organisation(s) can’t be restructured into proper unions. Can anyone help me? If this can’t be done, then joining the LSWU could be a good start.

What we really need is professional negotiators going into bat for us when dealing with the MOJ or CPS. Really hard-nosed bolshie types who are accustomed to commercial negotiations with Government departments and the private sector, preferably like the ones who act for the train and Tube drivers: no matter how unpopular their strike tactics are, they always seem to achieve their objective of getting more money for their members. I can’t imagine the RMT or ASLEF simply allowing themselves to be told that any new pay scheme had to be ‘cost neutral’ and just rolling over with it.

While we’re all grateful for the time and effort the CBA, for example, have had to put into dealing with the MOJ and CPS on our behalf, it hasn’t worked. We’re worse off now than we have been for 20 years. People who are simply volunteers attempting to run a practice at the same time as having to devote weeks of their lives to dealing with these negotiations are no longer enough. I have nothing but admiration for the current CBA chair Chris Henley, who actually seems to be taking a real fight to both the MOJ and CPS. However, he can’t do this on his own, nor should he be expected to.

I’d be quite happy to pay more in subs to my ‘union’ if it meant being able to engage the services of professional negotiators, unconnected to the Bar save by being paid by them. Because then we might actually get somewhere, or achieve something other than being told there’s another ‘review’ to be conducted. And we would almost certainly be better off engaging them than being fobbed off by being told that the MOJ or CPS have no more money to give. They always seem to be able to find cash for their pet policies when they want it.

In the meantime, we have to forget about trying to gain sympathetic press coverage (it won’t happen) and simply start using tactics which cause as much trouble for the Government as they will do for us, because this is the only language they understand. Terrorism trial can’t be prosecuted next week because no one can be found to take the brief? Lines of complainants in sex cases turn up to court, only to find the trial they’re involved in can’t start as there are no barristers on either side willing to conduct the trial? Child witnesses can’t give evidence because there’s no one to act for the defence and the defendant isn’t allowed to cross-examine them?

Yes, our action needs to be that immediate and that hard-hitting. Which is why 2018’s slow ‘drip feed’ refusing of new scheme briefs failed, because its effects were too slow to be felt by the courts, who were simply able to case manage around the lack of defence representation at pre-trial hearings. We can’t afford to allow that to happen this time.

No returns, refusing particular types of work (or all types of work), or downing tools will all involve taking a financial hit, and it will hurt. But it seems right now that this is the only way forward, or the Government can go on ignoring us.

The time for playing nicely is over.

“You don’t get me, I’m part of the union
You don’t get me, I’m part of the union
You don’t get me, I’m part of the union
Until the day I die, until the day I die…”

Main pic by Wildy

We’re Not Alright, Jack!

I’ve realised that it’s quite a while since I had blogged. Time flies when you’re having fun, eh?

You know how it is. Life gets in the way. Over the summer I’ve been dealing with births, marriages, deaths, trials, a house move, more trials. And loud gigs. Lots of them.

But this week it’s back to the blogging grindstone. Because the peasants are revolting. The Bar’s Fred Kites are gathering around the braziers. And the cause of this is the criminal Bar’s very own Brexit.

I refer of course to the new Advocates’ Graduated Fee Scheme with supposed extra injection of £15million from the MOJ – on which members of the profession voted in June, by the very narrowest of margins, to return to work after two months of refusing new briefs.

When barristers revolt, it’s all very polite. Lots of “I say, that’s not really on” when the MOJ decide to impose yet more fee cuts. A cacophony of “surely that can’t be right” when list offices decide to muck one of your cases about by moving it to a date you can’t do, thereby depriving you of the fee on it even if you’ve done 20 or 30 hours’ work on it. A quiet roll of the eyes when a judge tells you that counsel’s convenience is of no importance when you object to a trial being placed into a warned list, which suits no one except the court’s stats master.

This time it’s different. The anger in robing rooms across the country is rising like bile, because members of the criminal Bar have woken up to just how appalling the new Advocates’ Graduated Fee Scheme is in practice – and to the fact that the MOJ’s £15million ‘extra cash injection’ is, in fact, more like about £8million and that this probably includes VAT. And still shows no sign of actually being paid over yet.

(Apologies to those reading this who have no knowledge of, or interest in, the AGFS. This blog is only going to be of any relevance to criminal lawyers doing legal aid work.)

Whoever thought getting rid of using the number of pages of evidence in a case as an indicator of how much work would be required to prepare said case for court obviously hadn’t conducted any legally aided defence cases for some considerable time. This system has long relied on barristers being kept afloat by payment for the occasional ‘paper heavy’ case, with the fees for this making up for the unacceptably low rates on other types of cases.

Quite frankly, we were fed a great deal of Bar Brexit Bollocks during the last action. The writing on the bus was about how many people would be better off under the new scheme, due to a paltry few pounds being added to what you get paid for covering someone else’s mention here and there, or the second day of the trial actually getting paid rather than being part of the brief fee. How not getting paid for conducting the second day of an ongoing trial ever came to pass in the first place shows how much we’ve suffered from a lack of proper leadership over the years.

But does anyone out there actually know an ordinary criminal barrister who is better off under the new scheme? I don’t. Has anyone who isn’t a silk actually received a case in which the fee paid under the new scheme is bigger than the fee paid under the old scheme? I haven’t.

I’m sure everyone out there has terrible examples of the dog’s breakfast which has actually been foisted on us. I’d be interested to see some of them.

I’ll give you one of my own. I recently conducted a very serious child cruelty trial involving complex evidence from a number of specialist medical experts, a cut-throat defence, and two files of unused material on top of the evidence.

A significant part of the Crown’s case involved a schedule and chronology of text and social media messages exchanged between the two defendants during a six week time period. The served materials from the telephones amounted to around 9000 pages, all of which had to be combed through carefully in advance of the trial.

Because this case was under the old payment scheme, I worked out that I could afford to take a few days out of court here and there in the weeks before the trial, in order to carry out the necessary prep for such a case. The fee that I would ultimately receive would ‘cover’ the days that I wasn’t in court and so wouldn’t be earning any money at all.

While the jury were out, co-defending counsel and myself worked out what we would get paid for the same case under the new AGFS scheme, using the very useful Crime Fees App – which I can recommend everyone downloads and uses, though only after you have obtained a Valium prescription. We calculated that our fee under the new scheme would be approximately half of what we would get paid under the old scheme.

Getting paid an extra £30 here or there for pre-trial hearings is in no way going to compensate for the losses made on just about any case with more than 100 pages of evidence. Quite why anyone would want to do 10,000+ page cases in future is beyond me.

Another example. A couple of weeks back I was asked to take as a return a sex case involving four child witnesses. The trial was due to start in one working day. The alleged offences were very serious, though not in the top bracket of seriousness according to the new AGFS. There were about 500 pages of evidence, ground rules hearings were due, sensitive cross-examination of four children under 10, that sort of thing.

I worked out that I would need to spend 15-20 hours on the prep for the trial, to get up to speed. This would mean cancelling my entire weekend plans and working all the way through. I then looked at the figures for the brief fee and refreshers on a cat 4.2 case under the AGFS, and I refused the brief.

The bottom line is: we are now simply NOT PAID for case preparation.

The brief fee was insufficient when I factored in issues such as the hours of prep which would be required, not to mention the amount of aggro and stress in a case such as that, the inevitable cancellation of long-made plans, the (unpaid) travel time and the fact that taking over such a case at short notice is always a complaint waiting to happen. It wasn’t worth it for the amount of money on offer.

I suspect I am not alone in this. We will have to refuse a lot more if we are to make any headway with the MOJ. The only language they understand is courts grinding to a halt, trials not covered, custody time limits expiring, judges under pressure and complaining.

I’m not on any committees. I wasn’t at either the ‘juniors under 10 years’ call’ meeting or the Head of Chambers’ meeting last week, as I don’t qualify for either. So no one has asked me for my opinion.

I’m going to give it anyway. Here’s what I say we need to do:

1. Refuse work on a case by case basis – we’re all PERFECTLY ENTITLED to refuse any legal aid case if the remuneration is insufficient for the amount of work involved. We don’t need the approval of the CBA, the Bar Council or our Circuit Leaders. I’ve done it. Quite frankly, I’ve no idea why anyone would now accept a large fraud case under the new scheme. If the case cracks before trial you could have done hours of prep, dealing with thousands of pages, for about £700.
2. Operate your own ‘no returns’ system – similarly to no 1, we’re all PERFECTLY ENTITLED to do this on a case by case basis without offending under the cab rank rule. If someone else’s mention or sentence looks like it will take too long to read and draft submissions, too long to get to court and too long at court, compared to the fee payable, you’re within your rights to say no.
3. Insist on working to rule – there’s no longer any incentive or excuse for working all hours of the day and night. Under the new fee scheme, such extreme efforts can no longer be justified. The MOJ’s whole idea was, apparently, to “better reward work done in court”. Instead, it appears that what they really meant was that they have no intention of rewarding work done outside court. So, for trials we should be turning up at 9am at court and starting work then. If you’re not ready to start when the trial sits at 10am, then tell the court they’ll have to wait for you. And no working over lunch any more. We’re entitled to a lunch break the same as the court staff are, so between 1pm and 2pm there should be no editing or photocopying or drafting or seeing the client in order to keep the trial running smoothly. That will have to start after you’ve had your lunch break, and if the jury are kept waiting, then so be it. Likewise, stay at court until 5pm working and then stop and leave. If prep for trials or hearings is effectively no longer paid, then don’t do it outside court hours. If judges don’t like it, tough. Tell them why we’re working to rule.
4. Don’t answer work emails outside office hours – this is obviously related to 3, but we’re all now deluged with work emails which we’re expected to answer at all hours of the day and night. I heard tell in a robing room last week that in an ongoing multi-handed trial at that court, the judge had been busy emailing counsel on a Sunday afternoon and demanding that counsel responded before 6pm the same day. (This seems to be the same example as given in the CBA’s Monday Message this week.) Bollocks to that. We should all make it clear to judges that we’re no longer paid enough to play that game. There’s no point the CBA or Bar Council spending time and money putting Wellbeing Initiatives together if the courts are going to steamroller over the top of them so the jury isn’t kept waiting for 10 minutes in the morning.
5. Insist that the Bar’s leaders join forces with the solicitors to meet the MOJ – there seems to be no good reason why we should continue to pander to the MOJ’s very obvious divide-and-rule tactics. The Law Society made a far better job of dealing with the MOJ earlier this year than the CBA or Bar Council have so far. They successfully judicially reviewed the MOJ, and as a result the MOJ weren’t able to slash the litigator fees. We’re stronger together, and seniors at the Bar need to remember where our work comes from.
6. Appoint professional trade union negotiators to deal with the MOJ for us – I (and I suspect others) would happily pay a levy to fund this. Our leaders need to stop thinking that dealing with the MOJ is on a par with dealing with our opponents in the robing room, where you expect to be dealt with in good faith and with a straight bat. The evidence that popped up in the solicitors’ JR proceedings made it clear, as if we didn’t know already, that the MOJ don’t appear to operate like that. We need people leading the discussions who aren’t part time amateurs but hard-nosed professional commercial negotiators who are used to taking on Government departments and aren’t of a mindset that they don’t like talking about money because it isn’t quite cricket and their clerks do that sort of thing.
7. Next time we take action, make it the right action – the idea of refusing ALL new scheme cases was ridiculous. The long slow game was never going to work. There is only ever one winner in that game and that is the MOJ, because they can afford to sit things out long-term and they know that individual barristers can’t afford to do that. (Don’t think they can’t find out how much money barristers are owed, because the Legal Aid Agency is just down the corridor in the same building!) Last time’s action was too slow and had no impact on the courts. It was also wrongly timed, as it was starting to bite on barristers’ bank balances (though not the MOJ’s) just as the whole of government was about to go onto extended summer recess, when we all know nothing gets done, and barristers could see their tax bills looming on the horizon at the end of July. I’d be willing to bet that’s why many people very reluctantly voted to go back to work last time. No returns is far more effective as it works quickly, delivering a swift kick to the MOJ’s nuts while allowing you to keep at least some work going to keep a roof over your head.
8. Stop wasting time and energy trying to get positive media coverage – it won’t work, and the MOJ know it. They have a huge briefing machine which always has its guns trained on the criminal Bar. Forget trying to get the Daily Fail onside: it won’t happen. Just crack on with taking action and take no notice if the papers chunter on about defendants having to get released under CTLs because their trials can’t go ahead. Quite frankly, the best press we can hope for is that some barrister gets sent down the cells for contempt for refusing to work over lunch. That would make interesting headlines!
9. Consider whether any future action should involve prosecution work – this is the Government’s Achilles heel where barristers are concerned, and they know it. The CPS could not cope without the independent Bar: though the panel system is problematic as we have seen previously. (We need to ask who allowed that to be imposed for general CPS work in the first place.) The fees for prosecuting are, if anything, even more insultingly inadequate than defence fees, and now with the new disclosure sign-off responsibilities having been foisted onto counsel with no additional payment for it, when are we going to stand up about this? Starting a war on two fronts, however, is never a good idea, as history has shown. Ask Napoleon.

Meanwhile, life at the Ministry of Justice and HMCTS is becoming more like an episode of  W1A with every passing day.

SW1H. The place which, fiddling while Rome (or at least, the UK’s court system) burns, holds the fate of justice in its hands while spewing out press releases and tweets which read as if someone just cut up a dictionary of Bollocksphere management speak (see my previous blog Welcome To The Bollocksphere here), chucked the pieces up in the air, then picked them up and read them out at random.

Or indeed put them on social media, since it appears that the MOJ has spent a colossal £171,635.80 on social media activity in a 15 month period!

According to last week’s press release from the MOJ, they seem to have the odd £24million here or £68million there (see link here) for their pet projects, despite continually telling the criminal Bar that there’s no money in the pot so any new fee scheme has to be cost neutral, or that its executive arm can’t pay enough judges to sit in particular courts on particular days/weeks so that trial you’ve been booked to conduct for months has to be moved to a date you can’t do without such as a bye-your-leave, meaning you won’t get paid for all that prep you’ve done on it.

I’ve tried to think of any other job where professionals providing a vital service would be treated the way we are. But I can’t. It’s about time we stopped putting up with it.

(Main pic by Wildy)

 

Court Reform Crime Programme? Chinny Reckon! (Part 2)

Next: in part 2 of the exciting new drama Court Reform Crime Programme? Chinny Reckon!, we find out what plans the hapless HMCTS/MOJ blue sky thinkers have for tipping a cool £270 million down the justice system drain! 

I’m hoping you’ve boiled the kettle again, as we’re about to return to the Public Accounts Committee session on the current Court Reform programme. Coming in the same week in which the House of Lords was debating the latest Courts & Tribunals (Functions of Staff) Bill – from which it appears the Great Plan is to hand over large swathes of judicial functions to MOJ salaried civil servants – you might think this is a topic which might bear some scrutiny.

However, discussions on these finer points of the separation of powers, and how the separation of powers is gradually being detached from the rule of law, are conspicuous by their absence. Instead, the Men (and Woman) from the Ministry are here to tell us all how marvellous the new Court Digital Landscape is going to be, after they’ve finished closing all those Actual Courts and getting rid of all those Actual People.

I’m guessing you want to know who they are, so here goes.

There’s a bloke called Richard Goodman, who rejoices in the title of Change Director & Reform Programme Director, apparently. (Does that mean he gets paid two salaries or something?) There is something of the manner of Mr La-Di-Dah Gunner Graham out of It Ain’t ‘Alf Hot, Mum about him, but without the glasses.

Then there’s Susan Acland-Hood, who is the CEO of HMCTS. She is well known to those of us lawyers who live on Twitter, chiefly for her admirable willingness to engage in dialogue with disgruntled members of the profession and court users (none of her predecessors have bothered). If there’s a toilet out of order in Bumfluff Magistrates’ Court, or a list officer out of order in any Crown Court you could care to mention, Susan will take the issues ‘on board’ in her cheery way.

And finally it’s Richard Heaton – Citizen Camembert, the Big Cheese, the Grand Fromage, the Permanent Secretary of the MOJ.

So what’s occurring on Planet Court Reform? Well, apparently there’s a New Bill all about courts and prisons going through the House of Lords at the moment (we know!), Heaton tells committee chair Meg Hillier (Labour, Hackney South & Shoreditch) when she asks, with obvious trepidation, about the progress, timetable and pace of the Reform Programme. When asked whether the Bill has had all the controversial bits taken out in an attempt to ease its passage, like some sort of judicial suppository, Heaton is already starting to appear nervous. It looks as if he can barely remember that it’s now apparently called the Courts & Tribunals (Judiciary & Functions of Staff) Bill.

Hillier is soon onto the vexed issue of the unredacted judicial survey about the effects of unrepresented defendants, revealed by the recent Buzzfeed story (see link here) – which busted the MOJ for apparently trying to hide a potentially damaging report containing some trenchant comments by judges about the problems caused by the increasing number of those appearing in court without a lawyer. Fortunately, according to Heaton this is not a “large volume issue” as there aren’t that many of them (CHINNY RECKON🤔!). Well, perhaps not at the moment, but once you’ve put all those lawyers out of business, you might have to re-visit that proposition, eh?

Acland-Hood is soon stepping in when talk turns to the online court ‘reforms’. I feel my eyes glazing over at the thought of increased numbers of citizens being able to collect their criminal records online, seemingly without any ‘advice stage’ input from, say, the duty solicitor or indeed anyone except perhaps Professor Google. On a question about access to justice issues as a result of the reforms, from Shabana Mahmood (Labour, Birmingham Ladywood), Acland-Hood earnestly propounds the proposition that (in the absence of express legislation on the topic), they will have to achieve some aims “sub-optimally”. And apparently, the translation of the “character of the sub-optimalness” means saving slightly less money than they were hoping. And you thought it was about access to justice? (CHINNY RECKON🤔!)

Perhaps unsurprisingly, Mahmood then lobs the bombshell: the programme is a third of the way in, and already a third of the way behind where it’s supposed to be! Why are we in this position?

There follows an elongated and earnest exposition about “milestones” and “partial measures” and the revelation that one of the milestones was meant to be about recruiting a certain number of staff to “help with our performance measures”. Eh? When you haven’t even got enough staff to answer the phone at any of the courts that are still open, and are only just opening emails from 2017?

Apparently one milestone might be bigger than another milestone, and the position of the milestones might have already shifted, and the milestones have gone from a four-year movement to a six-year movement (or something) – are you with me so far? Does this explain, asks Mahmood, why you’re only 62% of the way you should have been in order to hit your targets for stage 1 of the project, let alone getting any further? How can the HMCTS give the Committee any confidence that at the end of the six-year programme, 100% of this programme is actually going to be delivered? (You can almost feel the Committee’s collective CHINNY RECKON🤔.)

Acland-Hood answers this in the manner of the girls’ school hockey captain telling the PE teacher why the Upper Sixth team were soundly thrashed in a grudge match with the local comprehensive. This doesn’t wash with Mahmood, who admits that nothing she’s hearing is reducing her concerns about the scheme’s delivery. Are there any parts of the programme about which Acland-Hood has concerns?

Surprise surprise, first up is the Common Platform! This apparently “has been running slower than we wanted for some time”. However, although this “continues to be a challenging programme” (obviously), “we need to increase our pace further”. What?! You want more “velocity” on the cock-ups? The look on Mahmood’s face says it better than I could: check her facial expression at 15:31:35 on the video (🤔).

A short time later there’s the first mention of the much derided ‘flexible operating hours’ scheme, on which HMCTS seem to have gone quiet of late. Probably because the reaction from the barristers, solicitors and court staff who would have to work the scheme was one of almost universal hostility. But that soon gets swept aside, as we’re back to the Common Platform again.

Only apparently, it’s not called Common Platform any more! It’s now the Crime Programme. Call a turd by another name, it’s still a turd. And fear not, there’s “enormous enthusiasm across Government for really agile delivery”. It’s probably not just me who thinks that the current Government’s idea of “really agile delivery” is basically not to provide any delivery at all, to starve out the delivery and then outsource the delivery to private equity, then have to step in and pay double when the private equity delivery goes tits up. Oh, and agility has milestones as well. God help us!

You will obviously also be pleased to hear, though, that changes have been made to the “strategic pipeline” and we’ve now got “rainbow teams” or something. Mahmood is on this. How has this affected the costs? And where are the police and the CPS in all of this, bearing in mind they’re the main parties who have to make this work? You just catch Heaton’s nervous glance at the edge of the shot.

When Acland-Hood laughably tries to suggest that all is rosy between the main delivery partners and, e.g., the defence community (where are they?), Mahmood moves on to the relevant National Audit Office report, which paints quite a different picture. Do the police and CPS have the capacity to match the delivery expectations, Mahmood asks, pointedly suggesting that this only requires a short answer…

The answer is apparently yes, though I’m wondering if anyone has told the CPS (20% plus staff cuts since 2010) or the police (also 20% manpower cuts since 2010).

Goodman then cuts in with some actual numbers about how many cases have gone through the Common Platform end to end: a few dozen so far! Heroic! I’m afraid after this point, we enter the realms of indicators, interventions and other business gobbledygook. What about Actual Access to Justice for Actual People in all this?

Fortunately, Mahmood is back in with some specific questions about court closures, after the earlier evidence. What do we learn? Well, in a nutshell:

(i) there is no statistical basis for suggesting that court closures have caused an increase in people failing to attend for hearings because they can’t get to court (CHINNY RECKON🤔!);

(ii) the number of people being charged by postal requisition rather than at the police station probably has caused a spike in this (you don’t say…);

(iii) changes on this scale to a justice system have never been attempted anywhere else in the world (CHINNY WOBBLE 😱 – this is terrifying);

(iv) the project currently has an ‘amber’ risk warning attached to it and, says Chris Evans (Labour, Islwyn) is also facing a funding shortfall of £61million according to the NAO, which HMCTS are expecting the Treasury to fill with the ‘agreed under-spends’ from previous years (CHINNY RECKON 🤔 – the Treasury won’t even pay to keep the toilets and lifts in our court buildings running!) or in the next spending round;

(v) in answer to the last, Heaton is “confident we will get the funding if we’re doing well” (CHINNY RECKON! 🤔) – but hold on, haven’t we just spent the last hour hearing about how NOT VERY WELL this project is doing?

When Hillier asks whether Heaton can point her to one small corner of the MOJ which is “steady running” and not currently undergoing massive changes, Heaton, mouth flapping open, can’t think of one. Evans also expresses the concern that if one part of this monolith goes wrong, this could impact the whole department, but don’t worry – Heaton confidently suggests that it won’t (CHINNY RECKON! 🤔).

Evans is also sceptical about the plainly “ambitious” expectation that 70% of HMCTS users will be going online, and cocks an eyebrow at the unsatisfactory response to his proposition that users of the justice system can’t be compared to general Government department online users (e.g., HMRC), as people generally don’t engage with the justice system voluntarily or more than once or twice. Have the HMCTS squad even thought about that? (CHINNY RECKON 🤔)

Meanwhile, Acland-Hood has no real answer to the question from Gillian Keegan (Conservative, Chichester) about what is an unreasonable travel time to court for a hearing, except to suggest that people can appear on video link (CHINNY RECKON 🤔 that one, based on bitter experience of court tech!).

The Senior Judiciary tell us we must all love the Digital Revolution…

One of the most important points is made towards the end of the session by Anne-Marie Morris (Conservative, Newton Abbot). There’s been a lot of talk about processes and outcomes and people appearing on videos from all over and such, she says, but very little about people. Where do Actual People fit in? “There is a real concern that this system will not actually give us something which is fair. Can you tell me how you believe you’re going to measure how we get real justice out of this?”

Heaton cuts across Acland-Hood here, as he jumps in to point out that one of the main architects of this system has been the senior judiciary. CHINNY RECKON?! 🤔Seeing how some of them dealt with the recent barristers’ industrial action, that doesn’t give me a great deal of confidence. Acland-Hood tries to placate Morris with talk of an academic study from the University of Western Australia which apparently suggests that cases where one or more parties appear on video link don’t adversely affect considerations of witness credibility, for example, but it’s all rather nebulous and boils down to “well, we have quite a few individuals appearing on video link already”. Most of them not by choice of either or both parties, I’ll wager, more likely because the court unilaterally decided it.

And how, queries Morris, are individuals going get hold of legal advice if they’re going to be expected to plead online? Apparently, it’s all about Susan’s Signposting, though the practicalities of this again don’t seem to be forthcoming. Goodman starts banging on about an experiment they’re running in Medway (anyone come across this?), where apparently at the police station stage there is going to be access to digital online legal aid applications and other advice pamphlets online.

What, in the police station?

Slight pause. “But how are they going to access this?” demands Hillier. “Are they still going to have access to their phones there?”

The wide-eyed stare of Goodman suggests that HMCTS’s Three Musketeers hadn’t thought of that one. Give me strength.

“But there’s work happening on video justice in Medway!” he chirps. FFS.

What’s going to happen if the digital system breaks down, Morris wonders? Apparently that’s not going to be a problem for Big Suze’s department as we already do a great deal online. Yes, and we already have a great many system failings/dropouts/glitches now, so one can only guess how many more of those we’ll have to endure with a system wide rollout.

And in case you were worried about how this is going to roll out across the whole criminal justice system from top to bottom, well, don’t be. Because happily the whole kit ‘n’ caboodle has been thoroughly consulted on a few years ago on the “least serious” criminal offences. After all, what’s good for offences of fishing with an unlicensed rod is going to be good enough for dealing with a GBH, isn’t it? Morris looks thoroughly sceptical as Acland-Hood tries to persuade her of stuff like how marvellous it will be for people to be pleading guilty online willy-nilly.

“Just tell me,” she spits, “what the three of you think the top three risks are.” No surprise that the Crime Programme appears to come out as the top risk overall. We could have told them that without them having to spend two hours on Parliament TV.

If you ask me (and a few people have), the top risk appears to have been very neatly encapsulated in last week’s Law Gazette (see link here), where it is revealed that the NAO has identified a massive £171million spending gap in HMCTS’s plans, at a time when the Treasury have apparently been told that there is no extra money for any departments other than the Health Department, who funnily enough have just been promised £25billion!

Somehow, the numbers don’t add up, no matter how much HMCTS’s triumvirate try to persuade us otherwise. I give this whole thing a big CHINNY RECKON 🤔. Which is about the most polite gesture I can proffer.

Main pic by Wildy

 

 

Court Reform Crime Programme? Chinny Reckon! (Part 1)

It might be just a Lincolnshire thing.

It started when I was at school. Whenever someone was telling a massive tall story in the playground, there would be a gathering of classmates, an exaggerated stroke of the chin, elongated Jimmy Hill fashion, a raising of the eyebrow and a “Chinny reckon?” as the tale teller became the object of derision from all sides.

I periodically still use the phrase (and this article in the Metro – link here – shows I’m not the only child of the 70s to do so). I’m often tempted to pop it out when cross-examining. If the witness comes out with a particularly juicy line in bullshit, my fingers are itching to give that imaginary chin a stroke. Sadly, I have never yet managed to shoehorn it into a closing speech.

However, as I watched last week’s Public Accounts Committee meeting on HMCTS’s much derided Transforming Courts and Tribunals programme (see the Parliament TV link here), I was practically getting beard rash from all the frantic chin-stroking. And I don’t even have a beard.

Be warned: this is a packed programme and it’s going to be long. I’m going to have to split this blog into two parts as my attention span can’t cope. I’d put the kettle on if I were you. I am.

Pic (ITV): Every day, the court system becomes a little more like an episode of Chorlton & The Wheelies

In case you’re not sure what this is all about, this is the Government/MOJ/HMCTS’s ambitious (some might say foolhardy, I couldn’t possibly comment) plan to ‘reform and transform’ the courts and tribunals service by digitisation. To wit, chucking well over £1billion at tech for the system and hoping that something sticks across its “50 distinct projects” (see the link to the latest update on parts of the programme here) while getting rid of as many Actual People as possible from it. When a Government agency admits that a programme on which it has staked its reputation is “ambitious”, it’s usually time to posit a CHINNY RECKON 🤔.

Now, the criminal courts are my natural habitat, so obviously I looked at the Great Plan for the parts relevant to this. These encompass Online Plea and Allocation (translation: get as many ‘hearings’ to be conducted outside a court room as possible, so we can close a lot more buildings), Case Progression Project (translation: get as many ‘hearings’ to be conducted outside a court room as possible, so we can close a lot more buildings), Court Hearings Project (translation: get as many ‘hearings’ to be conducted outside a court room as possible, so we can close a lot more buildings), Video Remand Hearings (translation: get as many ‘hearings’ to be conducted on video link as possible, so we can close a lot more buildings) and Youth Project (translation: see if we can devise a way of diverting as many cases outside a court room as possible, so we can close a lot more buildings).

All of these lofty aims are, apparently, to be underpinned by the Common Platform. This rather Cromwellian sounding ‘digital infrastructure’ requires an entire blog of its own (which I will do when I can afford the time), but its significant feature appears to be the apparent designing out of lawyers from the system.

Unfortunately, all hasn’t been going according to plan at Chateau HMCTS. As early as last year, specialist tech mag The Register were reporting (see here) that hundreds of millions of pounds – perhaps as much as £270million – had effectively been pissed up a wall on the Common Platform project. In particular, the Common Platform was meant to be finished next year, but I give the idea of that a great big old CHINNY RECKON 🤔, since by the time of The Register’s report it seemed that only one key element from the entire behemoth had been completed – some sort of digital diary for magistrates. Which is handy.

And as we discovered this week, the Government are attempting to shovel some of this shit up into the Courts & Tribunals (Functions of Staff) Bill, which as the Law Gazette reported here, which is currently bumping its way through the House of Lords towards the committee stage. Perhaps the MOJ are hoping we might not notice how this will affect, well, minor stuff like the separation of powers and the rule of law, but it’s probably not a coincidence that they are shoving a little bit of the proposed reforms in here, another bit of them in the next Bill, etc. Because as the Bar Council have already observed, drip feeding the ‘reforms’ into a succession of Bills makes it considerably more difficult to actually work out what they mean and how they will affect public justice.

The issue of most concern in this version of the Bill is that it provides for court staff to carry out judicial functions, including in the Crown Court. Yes, you read that right. Judicial functions. So judges – who have to swear an oath of independence from the Lord Chancellor, and therefore from Government – will be handing over “judicial functions” to staff members who are directly employed by the Government and who swear no such oath of independence but will be doing what their line manager (also directly employed by Government) tells them to. According to Lord Keen, introducing the Bill’s second reading in the House of Lords last Wednesday (see the Hansard link here), these staff will of course only be able to do any of the things currently reserved for judges once authorised by the Lord Chief Justice or his nominee, so that’s all right then.

It can’t of course be a coincidence that it’s the senior judiciary who are enthusiastically participating in this wholesale dumbing down of the system, just as they have embraced the dismantling of the justice system disguised as ‘digital reform’ with all the relish of a small child being given a 99 with two flakes.

The Bill is noticeably silent on how many such staff will be needed to take over these “judicial functions” (bit tricky when we know that HMCTS has already jettisoned 6,000 staff over the recent times, along with all those court closures). What level of qualification these staff will be required to have to exercise these functions, or indeed how far these judicial functions will stretch? Altering the time of a pre-booked hearing? Taking a guilty plea? Passing sentence? Hearing a short trial? Believe me, once mission creep gets started it won’t be long before some bright spark at the MOJ decides we don’t need any qualified judges at all. Well done, the senior judiciary!

I noted with no surprise that Lord Thomas (yes, that one – the last Lord Chief Justice, who was widely considered not to be any great friend of those in criminal practice) brushed aside the concerns raised by other Lords during the debate and stated: “I therefore hope that the Bill can be subject to realistic scrutiny. This is a small part of what is essential. It is important to remind the House that there is no plan B for the modernisation of the system.”

No plan B. He ain’t kidding. HMCTS and the MOJ simply have to get this whole programme rammed through because they’ve already wasted spent so much money on it, instead of spending that cash on maintaining the system we’ve already got and actually making sure it worked… This means they can’t afford too much advance scrutiny or active public consultation. So, what will the PAC make of all this?

The PAC Committee Chair Meg Hillier (Labour, Hackney South & Shoreditch) introduces the session by saying that the ‘reform’ programme “will cost £1.2billion at the moment, though we are not sure how estimates will go in the future, which is one of the issues we will be looking into”. So let’s get this right: the MOJ and HMCTS have embarked on this scheme, making “changes on a scale never seen before in our courts” as Hillier points out, it’s costing almost as much as the entire annual MOJ budget, and no one is sure if these figures are going to work?

Isn’t it some highly paid civil servant’s job to keep this little lot on track? Because, as Hillier says, the consequences if this goes badly wrong will be severe. I can’t wait to hear how the Men (and Women) from the Ministry explain this one.

But first we have evidence from real people who do real work at the real coalface, in particular the indefatigable Penelope Gibbs from the charity Transform Justice. In a few pithy sentences, Gibbs lays bare the problems of this scheme: while the idea is supposedly to streamline the court user experience, reduce delays and make justice easier to access through digitisation, the risks HMCTS are taking mean that we could end up with none of the above.

Those in charge of this wheeze are attempting to ram the programme through at, as Gibbs says, the speed of an express train. With, it appears, no brakes, as actual evidence of whether the proposed changes which are being railroaded through are really going to ever be able to deliver what is promised seems sorely lacking.

Not unreasonably, Gibbs suggests that there ought to be a pause while assessments on progress thus far are undertaken, like some openly advertised research programme – dealing with the impact on outcomes from current use of video link hearings in criminal cases, for example. Seems obvious, really, but apparently there’s no provision for any such academic research thus far.

The other speakers – Jo Edwards from the family law reform group Resolution, and the Law Society’s Richard Miller – also express concerns about the way this reckless project seems to be getting thrown together.

Not surprisingly, the closure of such a huge number of court buildings is exercising all of these experts. Edwards gives some eye-opening figures for the percentage increase in the number of applications to the family courts at a time when “huge swathes” of courts are being closed. This obviously means that access to justice is already being impeded. The great ‘reform’ project can only make this worse, especially (but not exclusively) for anyone who can’t readily access the internet. And that’s without all the complicating factors of the reductions in access to legal aid. How are people with limited access to public transport expected to be able to get to court and back in a day, let alone fit in a hearing, when their nearest court might now be 80 miles away? (CHINNY RECKON🤔!)

Miller puts another point bluntly: the Law Society are not yet satisfied that video links are a suitable alternative to doing business by seeing people face to face. There is no substitute for a lawyer, or jurors, being able to see the whites of a client’s or a witness’s eyes and be able to assess what they say and how they say it. Any criminal lawyer worth their salt will tell you of the importance of checking out body language, which is almost impossible to do when all you can see is a disembodied head floating around on a sub-standard quality TV screen.

The position with digitisation of cases is particularly acute for criminal work, where as Gibbs asserts, even a conviction for the most minor of offences will result in a criminal record which is with you throughout your life. What if you don’t understand what you’re signing up for, when you’re logging on to plead guilty to something which is going to be marked on your file for ever after? What if you don’t understand that you might have a defence? At what point on the digital court conveyor belt are you going to be able to get legal advice? And from whom?

Other problems are highlighted about what is lost if face-to-face hearings no longer take place in any case, which appears to be HMCTS’s real aim. It won’t be helping, of course, that apparently HMCTS has gone from 16,000 down to 10,000 staff in recent years, which might help explain why you can’t get anyone to answer the phone at a court these days, still less get your case listed for trial within a year.

On that latter point, Miller points out that there are problems with HMCTS’s calculations on court closures being based on court utilisation times. It’s all very well saying that a particular court building is only being used for 50% of the time – a frequent excuse for considering a court closure – but (CHINNY RECKON🤔!) if the court is only being used for 50% of the time because the MOJ will only pay for a judge to be sitting for 50% of the time, that’s rather likely to skew the figures showing that this particular court building is only being used 50% of the time, isn’t it? They must think we’re a bunch of mugs!

There are also excellent points made about the increased distances which witnesses and defendants are having to travel to actually get to court after all the recent closures leading to an entirely predictable increase in the number of warrants having to be issued for defendants who fail to attend (which of course leads to increased costs to the police who have to try to arrest the errant defendants on said warrants), or witnesses failing to turn up for trials… as if we didn’t all see this coming. And that’s without all the millions which were recently wasted on upgrading work at Camberwell Green and Cambridge Magistrates’ Courts, for example, where it seems that no sooner had the paint dried than HMCTS were announcing their closures! FFS.

With this surfeit of common sense being talked in the room, the MPs are starting to look worried. It’ll be interesting to see what the HMCTS cohort come up with. Will they be re-hashing some old MOJ press release – like the one which says we have the most generous legal aid system in the world (CHINNY RECKON🤔!), or that other one which says criminal barristers were VERY HAPPY with the structure of their new fee scheme since it was invented by them (CHINNY RECKON🤔!) – or lapse into buzzword bingo mode? Are we actually going to learn anything from the Three Wise Monkeys?

Coming next: the hapless HMCTS/MOJ cohort get a bit of a mullering from a semi-circle of disgruntled MPs! Don’t miss Part 2 of Court Reform Crime Programme? Chinny Reckon! 

Main pic by Wildy

We’re All Mad Here!

 

“But I don’t want to go among mad people,” Alice remarked.
“Oh, you can’t help that,” said the Cat. “We’re all mad here.
I’m mad. You’re mad.”

Every day, it seems that our criminal justice system becomes more like the Mad Hatter’s Tea Party. A sort of Alice In Wonderland world where everyone in charge seems to have been at the hookah.

Fixed grins on their faces, the Powers That Be will parrot the mantra that everything’s fine and there’s nothing to worry about, while behind them everyone with their eyes open and an ounce of common sense can see the whole edifice collapsing around their ears.

I’ve now been blogging about this state of affairs for two years. I’m not going to apologise for doing it again. I might be a bit of a Cassandra (in fact, I was cast as her in a school play once, in which I managed to look both scary and winsome in an old bedsheet for a toga and a wild wig which was, well, not that much different from my real hair), but I’ve been telling you the truth all along. As have others. And I can tell you that it’s never been as bad as this.

The criminal justice system is in complete meltdown. There are no two ways about it.

Only last week, two separate national broadcasts about the issue of disclosure brought this meltdown firmly into the public domain. The common denominator of both was THE COMPLETE INABILITY OF THE BIGWIGS IN THE CPS OR THE POLICE TO UNDERSTAND, OR ACCEPT, THE SCALE OF THE PROBLEM. So to help them, I’m spelling it out. In capital letters.

“How do you know I’m mad?” said Alice.
“You must be,” said the Cat, “or you wouldn’t have come here.”

The first of these programmes was on File On 4 – the link is here – which focussed quite rightly on the problems with the disclosure regime in the magistrates’ court. This is where all criminal cases start, and where the vast majority which go to trial are heard. Anyone regularly reading my blogs will be aware of my very low opinion of what now goes on in the lower court, which seems to operate like the Wild West in that the proper rules of evidence and procedure have been sacrificed on the altar of expediency.

I only sporadically venture there these days. Every time I do so, I’m left reeling by what I see and hear. It’s all about a race to railroad cases through the system with unseemly haste. Woe betide if you have the temerity to question why, on this conveyor belt to disaster, you’re not being provided with the actual evidence on which the Crown propose to rely at trial, until you’ve reached the day of trial (and sometimes not even then). And you’re invariably given short shrift by the bench if you have the gall to mention a disclosure schedule.

One solicitor, collared outside Highbury Corner mags, described the pointlessness of even getting a court order for the CPS to serve or disclose materials, as this would be ignored. We all know this happens, and not just in magistrates’ court cases. A survey conducted for the programme gathered information about disclosure experiences from 1300 criminal practitioner members of the CBA, the CLSA and the LCCSA, and 97% of those responding said that they had encountered disclosure failings in the last 12 months.

The File On 4 programme showcases a litany of frankly horrifying cases. There’s the estate agent accused of common assault, in whose case the CPS marked as ‘clearly not disclosable’ the interviews of people arrested as suspects at the same time as him in relation to the same incident. Or the taxi driver at whose trial the unused material schedule produced was totally blank (for the uninitiated, this is impossible). Or the teacher in whose case the police failed to hand over CCTV footage on the basis that it didn’t show anything happening – which was exactly the point of why it undermined the Crown’s case!

“Why, sometimes I’ve believed as many as six impossible things
before breakfast.”

Perhaps the worst part of this was the attitude of both the police and the CPS when challenged about the survey findings and the obvious failings identified. Thames Valley Police apparently declined to discuss the estate agent’s case, and simply trotted out the “officers carried out a full investigation and followed all procedures…” mantra when asked to comment about the CCTV in the teacher’s case. We’ve all heard all that before, but it doesn’t make it any better when you find out that some case-clinching disclosure has been withheld from you until the day of trial.

As for the CPS, you won’t be surprised to hear that the unfortunate representative put up to represent them, Greg McGill (who rejoices in the title of Director of Legal Services), appeared only too keen to get on the defensive. Worryingly, his primary boast was: “A conviction rate in the magistrates’ court of almost 85%, and a plea in the first instance at 78%, is not indicative of a system in crisis. That isn’t to say there aren’t things we could do better.”

What is indicative of a system in crisis, however, is a senior CPS lawyer who thinks it’s appropriate to boast about an 85% conviction rate, or first instance pleas of 78%. And this is in the context of him saying he’s “passionate about justice”! McGill’s boast sadly reflects the increasing stance of the CPS, which appears not to be acting in the public interest, but prosecuting at all costs. What if those convictions were obtained by the withholding – either deliberately or carelessly – of disclosure which would or may have undermined the evidence relied on?

Greg also appears to have a shaky grasp on the assessment of evidence. As Mark George QC pointed out on Twitter about the teacher case referenced above (he is well worth a follow @Mark_George_QC): “When CPS Director of Legal Services justifies prosecution for sex offence cos ‘CCTV showed people together’ but it showed no offence had taken place, we are in serious trouble.” Quite.

“Would you tell me, please, which way I ought to go from here?”
“That depends a good deal on where you want to get to.”
“I don’t much care where –”
“Then it doesn’t matter which way you go.”

In the second programme, the venerable Law In Action presenter Joshua Rozenberg was grilling the DPP Alison Saunders and David Tucker of the National Police Chiefs Council about how they intend to approach the disclosure failings which have been highlighted by numerous recent cases. The link to this informative programme is here. Richard Foster, chairman of the Criminal Cases Review Commission, says he believes the problem, is a cultural one, particularly for the police, opining that the problems are more cockup than conspiracy (presumably he’s read my last blog Disclosure Doom: Cockup Or Conspiracy?, which you can see here.) And he ought to know, as apparently out of 636 cases referred to the Court of Appeal by the CCRC since its inception, 422 have resulted in the convictions being quashed and a large proportion of these related to disclosure issues.

Perhaps unsurprisingly, once tackled by Joshua, both Saunders and Tucker appeared to retreat to the cover of exercises in self-justification. But what was noticeable across both broadcasts was the total absence of any acknowledgement from those in charge of either the police or the CPS that resources are undoubtedly at the root of all these problems. Not enough police to adequately investigate all the telephone materials which seem to have been at the bottom of a number of the recent disclosure problems which collapsed several high profile trials. Not enough CPS lawyers with the requisite qualifications or experience to deal with disclosure problems on the scale facing the service.

Saunders appears at one point to veer towards suggesting that it’s the Defence’s responsibility to tell the police everything they want to know early doors, in order to avoid being in the situation where the police apparently can’t find the emails which exonerate them. The example of a man called Clive Steer was used in the programme: being investigated for bribery, the police seized his computer on arrest. In interview he told them about emails which would show he hadn’t bribed anyone, and after 18 months his lawyers had to twice get court orders to get access to said computer, at which point they found the emails after a three hour search, rather suggesting that the police hadn’t even bothered to look.

This stance overlooks the basic premise that, well, having been accused by the state Mr Steer was innocent until proven guilty by the state. We’re not operating in an inquisitorial system yet, though we all know there are a number of people holding office who’d rather like to get rid of our adversarial system and move to an inquisitorial one as they think it will be cheaper and will result in a higher conviction rate. (Both propositions are wrong.)

Tucker suggests that there are products out there to train officers about disclosure investigation, but it turns out that he’s talking about a “basic film” which has apparently been viewed by over 15,000 people. Fancy! One wonders who made the film and what training they have in disclosure issues. Aren’t we always being told that there are too many criminal lawyers out there? If there’s so much spare capacity, why not get some criminal barristers, who after all are the people who have training and expertise in trial disclosure issues, to offer that training to the police? Oh, would that be because they’d need to pay us to do that? Those pesky resources again, dammit!

“Who in the world am I? Ah, that’s the great puzzle…”

So that’s where we are right now. In these circumstances, you might expect to see our venerable Lord Chancellor… who is it this week again?… oh yes, David Gauke, going in with his big boots to try to sort out the mess with the additional funding which is plainly required.

Not a bit of it. The former Treasury wonk’s latest priorities according to some of his most recent Twitter proclamations are council by-elections in Northchurch and proclamations about a new 50p piece featuring Paddington Bear. I shit you not, it’s here.

Our current Lord Chancellor has simply been missing in action while the justice system is collapsing around his ears.

Still, at least his non-response (‘nonponse’?) is more dignified that what his hapless predecessor Liz Truss has been up to in this time of trouble for her old department.

How this woman has ever been appointed to any high office, Sid James only knows. It shows the contempt in which the whole concept of justice is held by the current administration, that this gurning airhead was ever allowed to get her sweaty paws on this ministerial brief, but there you are.

“Why is a raven like a writing desk?…”

Meanwhile, oop North the top legal blogger Gordon Exall – whose CivilLitTweet output is essential reading, especially for anyone involved in the civil justice system – attended a Mad Hatter’s Tea Party of another kind, in the form of a ‘roadshow’ held in Leeds about the current programme of ‘reforms’ which are continuing apace in the alternate reality of HMCTS.

He blogged about the event here. To describe it as surreal would be to describe Chris Grayling’s tenure in charge of the MOJ as slightly unfortunate. Portentously perhaps, the roadshow was held in court 13 at Leeds Magistrates’ Court, which seems to be one of the few in Yorkshire which hasn’t yet been closed by the MOJ. Someone’s got a sense of humour.

CLT then spent the evening having his ear bent by the ‘Transformation Director North’ (bet that title comes with a hefty pension), and to paraphrase what he learned: (i) the MOJ are paranoid that they don’t end up with an NHS computing system style debacle, (ii) David Brent style phrases like ‘stakeholder’, ‘legacy kit’, ‘future proofed’ and ‘enabling’ are very much de rigueur in Petty France, and (iii) the current technology doesn’t always work well. You don’t say.

With admirable understatement, CLT also reported that so far as flexible operating hours are concerned, “I cannot state that there was a groundswell of opinion in favour of this.” I did an actual lol about that one. And it was no surprise that, when asked about why this (preposterous and unworkable) scheme was being considered, the answer was “because Ministers had asked them to”. Yeah, I bet.

Oh, and at the same time as all this, the criminal Bar is having imposed upon it by the MOJ a new ‘reformed’ fee structure for Defence work, which is likely to see large swathes of the Bar worse off by up to 40% in some cases. And there’s only one thing to be said to that.

“Off with their heads!”

(Main pic is a GIF from the Disney classic Alice In Wonderland – please don’t sue me!)

 

 

 

 

Disclosure Doom – Cockup Or Conspiracy?!

Don’t say we didn’t warn you.

There are some of us legal bloggers – The Secret Barrister (@barristersecret), Barrister Blogger (@barristerblog) and Robin The Mint (@robinthemint), to name just a few – who have been boring on for Britain for some time now about the car crash state of the criminal justice system, and of disclosure failings in particular.

But time and again we’ve been accused of self-interest when we warned that miscarriages of justice were going to happen, and that innocent people were probably already serving time.

So it comes to something when the week’s lead story on all the TV news outlets involves giving the viewers a nutshells lesson in unused material.

But that’s where we are right now, after the collapse of two rape trials within the same week, in both of which the issue featured of telephone evidence and/or other undisclosed material which apparently so undermined the prosecution case in both instances that the cases were dropped like hot potatoes.

In one case, that of Liam Allen, text messages in which the complainant apparently pestered him for sex on a regular basis weren’t given to his defence team until his trial was already underway. Being as she had apparently told the police she didn’t like sex, and asserted that Mr Allen had therefore forced it upon her, these text messages weren’t terribly helpful for the Crown. (You can see prosecuting counsel in that case, Jerry Hayes, on Channel 4 here.)

In the second case, Isaac Itiary was remanded in custody for four months awaiting trial, which was due in January, before his lawyers were finally given the contents of his accuser’s mobile phone download, in which she was clearly regularly telling people that she was 19 (when in fact she was 14). Unfortunately for the prosecution in that case, the central feature of Mr Itiary’s defence was that he had stated all along that he believed the girl was over 16. (You can see a report on the case and its consequences from The Times here).

In both of those cases, if the reporting is correct (and I must stress that’s what I base my observations on, as I wasn’t instructed in either case), then the ‘case-breaking’ materials which were finally prised from the police’s hands and disclosed should have been handed over to the defence right at the start of the trial process, and to the CPS much, much earlier than that. These materials fundamentally undermined the prosecution case and the central witness, the complainant. In the history of monumental f**k-ups, on the face of it, it’s hard to think of a bigger one.

And only yesterday comes the story of an MP’s Parliamentary aide cleared of an alleged rape said to have been committed within the walls of the Palace of Westminster: the link to the story is here. I wasn’t surprised when I read in the statement given by the aide, Samuel Armstrong, after the verdict: “Were it not for the fact that crucial evidence was disclosed to my defence team just eight working days before trial…”

Now, those of you who regularly read my anguished howls of blogging rage about the state of the criminal justice system will know that I have spewed about this topic before. About 18 months ago, in fact, after stories emerged about the collapse of (you guessed it) a rape trial in Gloucester after (you guessed it) messages on the complainant’s phone came to light which appeared to (you guessed it) completely undermined her version of events. You can read that blog, Dropping A Clanger, here.

It’s about time that the media started taking notice of what those of us at the coalface have been warning all this time. If you ask me, and people have, the media have been part of the problem. But what is to be done now?

So with the help of a few like-minded souls, I’ve compiled a list of where I suggest the system has gone wrong, and what could and should be done about it.

BOOM! 💥
The police approach to investigations in allegations involving anything sexual has become totally arse about face. The presumption of innocence which should apply to every criminal case, no matter what the alleged offence, seems to have gone out of the window, particularly where sex cases are concerned.

BOOM! 💥
This issue was identified in the report of Sir Richard Henriques which was published a year ago – see link here – in which the former senior judge highlighted that, in an apparent eagerness to increase the number of rape convictions under pressure from politicians and the media, the police appeared to have fallen into the trap of automatically treating all ‘complainants’ as ‘victims’ and repeating the mantra that ‘all victims must be believed’. Obviously this pre-supposes that all complaints are true and suggests that investigations should be conducted on this basis. This is plainly wrong and will undoubtedly have infected the mindset of officers investigating such allegations.

BOOM! 💥
The police have to stop adhering to the ‘we believe you’ mantra: they have no business usurping the function of the jury to decide whether a complainant is to be believed or not, just as I do not have to believe what anyone I defend tells me. This is not my role. And it’s not just me who thinks this. An ex-DPP has been publicly saying this today too: see the link here.

BOOM! 💥
The recommendations of the Henriques report appear to have fallen by the wayside, because senior police officers and the College of Policing didn’t seem to like its conclusions. The recommendations should be brought into effect as soon as possible and the police told to point themselves in the right direction.

BOOM! 💥
If the police have jettisoned all objectivity in such investigations, then the concept needs to be reintroduced and quickly. From what those of us working at the coalface see regularly, there are some (not all) officers dealing with sexual allegations in particular who lose all perspective and get too personally involved with the case and the complainants. Recently, as verdicts were returned in a multi-complainant sex case in which I defended, the officer in the case burst into tears in front of the jury. Such incidents suggest that some police involved in these cases might be all too keen to ‘sit on’ evidence which undermined the complainants with whom they had built up such a personal relationship.

BOOM! 💥
All parties to the prosecution – police, lawyers and witnesses – need to be clear that the criminal trial process is not there to ‘give closure’ or act as some form of therapy for someone making an allegation. Such a position may or may not be a by-product of the proceedings, but that is not their purpose. The purpose of a criminal trial process is to determine the guilt or otherwise of the accused person, and nothing more.

BOOM! 💥
There is far too much ‘policy’ and ‘guidance’ in the criminal justice system these days, and not enough adherence to statute. Policymakers – and politicians – need to keep their noses out and let us get on with it.

BOOM! 💥
Police training in disclosure is plainly inadequate. Further, it doesn’t appear to be carried out by trained lawyers but by… police officers. And probably police officers who haven’t attended, or given evidence in, a trial in years. It appears that disclosure training in the Met, for example, involves being trained to include as few items as possible on the unused material schedule, which for the uninitiated means the list of items which the police have gathered or generated during the course of an investigation but don’t intend to rely on as part of the Crown’s case. Police officers are being trained that most material is ‘irrelevant’ and need not be placed on the schedule. WRONG!

BOOM! 💥
If the police don’t place and describe items on the unused material schedule, before passing the schedule to the CPS for the reviewing lawyer to sign off, the lawyer may not know about the existence of materials which ought to be disclosed to the defence right from the start. I strongly suspect this may have happened in at least one of the cases reported this week.

BOOM! 💥
The very fact that the police are the ones deciding what is ‘relevant’ and what is ‘irrelevant’ material is totally inappropriate. At the very least a CPS lawyer should be examining the material to make that decision. Best case scenario is that it should be prosecuting counsel (but of course, the CPS probably won’t do that, because then they would have to pay counsel to do this).

BOOM! 💥
The way the police and CPS deal with evidence from mobile phones and computers – which often plays a crucial role in sexual allegations – is lamentable. Whether it is cock-up or conspiracy, such evidence causes more problems in trials than any other type of evidence. It’s pretty basic, but if the complainant’s phone download or phone billing data have been obtained, some officer somewhere (hopefully the officer who obtained the download or data) should be exhibiting these in a witness statement – whether that statement is used or unused material. All too often, this simply doesn’t happen. These days, both the police and CPS seem to ignore basic continuity issues with impunity, which is how both cock-ups and conspiracies start.

BOOM! 💥
Part of the problem about mobile phone evidence relates to the CPS obsession with not serving e.g. phone downloads as used evidence, in case this means that they will have to pay prosecuting counsel a larger fee due to the larger amount of evidence they’re going to have to deal with. This obsession also seems to extend to concerns about how much defence counsel might also get paid for such used materials – though I’ve not yet heard any valid explanation from anyone connected to the CPS about why what defence counsel are paid has anything at all to do with them, since it comes out of a completely different budget.

BOOM! 💥
The police and CPS need to understand this: IF YOU WANT TO RELY AS PART OF YOUR CASE ON A FEW TEXT MESSAGES WHICH YOU CONSIDER SUPPORT YOUR CASE, YOU CAN’T JUST PUT THESE FEW SNIPPETS INTO A POLICE OFFICER’S WITNESS STATEMENT AND EXPECT THE DEFENCE TO AGREE THAT THIS IS ADMISSIBLE. We won’t, so stop doing it. If you want to rely on such messages, you have to serve the whole document/download for the proper context to be clear. You wouldn’t expect to get away with serving 3 lines out of a 4 page witness statement, simply because those 3 lines are the only ones you want to rely on. Basic rules of evidence do still apply!

BOOM! 💥
It’s not good enough for the DPP to be making statements to the press after the cases which we’ve seen this week, describing the situation as “regrettable”. I’d say that was the understatement of this millennium, when we have a situation where two cases in a week have had to be dropped, where one accused man was on bail with these very serious allegations hanging over him for two years before being cleared, and another wrongly spent five months remanded in custody. I hope they both sue. And now it appears these cases may well be the tip of a very large iceberg towards which the police and CPS are inexorably sailing.

BOOM! 💥
If it transpires that this situation has come to pass due to budget cuts to either the CPS or the police or both – e.g., if the investigating officer or the CPS lawyer had unfeasibly large caseloads or inadequate supervision, so as to prevent them from properly dealing with evidence and disclosure issues – then the leaders of the CPS and police need to start publicly spelling this out, loudly, rather than trying to play down the impact of the massive havoc the Treasury’s cuts have wreaked across all parts of the criminal justice system.

BOOM! 💥
If there are any schemes within either the police or CPS in which either personal bonuses or increased departmental funding are payable as a result of an increased conviction rate (and I have no idea whether this is the case or not), such perverse incentives must stop.

Above: The 2017 HMCPSI report published in July 2017 identified significant failings

BOOM! 💥
The CPS also need to get away from the attitude – described by another well-known legal blogger, View From The North (@jaimerh354) – that “it’s good to be hard on disclosure and withholding material is a badge of honour”. All of us who defend encounter this attitude on a daily basis in all types of cases, and there is no doubt that it has contributed to highly relevant material being withheld from the defence on numerous occasions.

BOOM! 💥
The courts need to stop being complicit in disclosure failings. As Mary Aspinall-Miles, the barrister representing Isaac Itiary, pointed out in her own blog this week here, far too often there is not enough time for either the police or the CPS to carry out their respective functions properly. This goes back to what I said above, generally speaking. However, this is no excuse for judges to allow the CPS to get away with routinely failing to comply with court directions. Mary told me: “We chased service of papers and disclosure throughout. This was a case in which mobile phones were central to the case from the start. The defence case statement was served at the end of November in accordance with the court’s direction, not on the 15th December as reported by some media sources. When the police may have received it is another matter, but it was uploaded to the digital case file by the time and date of the court’s direction. In any event, we identified the trial issues at the PTPH in September, as we must. Disclosure does not start and stop with the service of the defence statement.” If there were proper costs sanctions for failing to comply with court orders – as there are in civil cases – I’d be willing to bet that the police and CPS performance would rapidly improve.

BOOM! 💥
We need to get away from the current attitude of too many judges that when defence lawyers raise the issue of disclosure failings on day 1 of a trial, the trial must be railroaded on at all costs even where disclosure concerns remain. Far too often we’re regaled with the phrase “we are where we are” and just ordered to proceed. What is known as third party disclosure – materials which may be held by social services, schools, or in medical files, for example – is also a particular problem. The cases this week need to be a wake-up call for all those on the bench who are far too keen on box-ticking and stats and not keen enough on applying the proper rules of evidence and procedure.

One further important consideration in this mess is the chaos which has been caused to the proper timetabling of cases and disclosure by the introduction of the Better Case Management scheme and the invention of the Pressure To Plead Hearing. Again, I have blogged about the evils of this system before, and I have no doubt that the new system has added to the problems with disclosure which are now coming  home to roost.

Previously, under the old PCMH scheme, an accused person did not have to enter a plea in the Crown Court until the prosecution had provided a bundle which contained both the evidence on which they proposed to rely should a trial take place, plus a schedule of unused material and any unused material which was disclosable at that stage (i.e., because it either undermined the prosecution case and/or could assist the defence case). So the police and CPS had to get their act together by that stage of the proceedings.

Now, under the seriously discredited PTPH scheme, all the CPS technically have to do before a plea is expected to be entered, even on very serious cases, is upload a case summary – usually written by the officer who’s been investigating the allegations, so you can see the risk of important materials being missed out or misrepresented there – to the digital case file and NOTHING ELSE. Usually there is more than this, but almost never is any unused material schedule or disclosure of such materials provided before the defendant has to enter a plea.

This scheme was almost certainly set up so as to ensure that the police and CPS didn’t have to do much, if any, work between charge and plea. Though it’s hard to see how difficult it would be to upload some statements, exhibits and other information which must already be in existence onto a digital file, but there you go. This is where the disclosure failings start, in my view. No one on the prosecution side seems to be looking at the disclosure position before any pleas are entered any more, and the defence can’t if they haven’t even seen a schedule of what materials have been gathered but aren’t relied on. That’s where the process starts going downhill.

The news about disclosure is not, in fact, news to us. Very serious failings in disclosure procedure were identified by Her Majesty’s Crown Prosecution Service Inspectorate in their report published in July 2017. A link to the report is here, and it made a number of important recommendations – none of which have been acted on as yet. So neither the police nor the CPS can say they weren’t warned.

Meantime, thanks to their lawyers and an independent prosecution counsel, at least two – almost certainly more – innocent men won’t have to spend this Christmas and quite a few future Christmases behind bars. The disclosure bomb has gone off, and we’re all going to have to deal with the fallout.

 

 

 

 

 

“Everybody Out!”

Whenever I think of withdrawing my labour, which is frequently these days, I’m reminded of the classic union meeting scenes from one of my favourite films, Carry On At Your Convenience.

I’ve had to wait a couple of days before writing this blog, as I needed to calm down. But really, the time has come for criminal barristers and solicitors to down tools and say: no more.

Earlier this week, yet again, as I read the latest MOJ and HMCTS pronouncements regarding the future of this country’s criminal justice system – or rather, the lack of a future – I remembered the lines where Kenneth Cope, playing the union convener Vic Spanner at the lavatory factory WC Boggs, is instructing his sidekick Bernie Hulke, who’s played by Bernard Bresslaw, to call a wildcat strike meeting.

It reminded me of the way in which previous action by the criminal legal profession has developed.

Vic Spanner: “Meeting in the canteen in 10 minutes. Tell everyone, Bernie.”

Bernie Hulke: “Right [shouts] Meeting in the canteen in… When was it?”

Vic Spanner: “10 minutes.”

Bernie Hulke: [shouts] “Meeting in 10 minutes time in… Where was it?”

Vic Spanner: “The canteen.”

The thing is that I’ll probably be watching a lot more Carry On films over the coming years, as I will have plenty of time on my hands. Two announcements, one from the Ministry of Injustice and one from its Treasury-led partner in crime HMCTS, have finally signalled the deliberate dismantling of the criminal justice system.

(Pic: Bernie Hulke and Vic Spanner trying to organise the next criminal lawyers’ industrial action…)

You think I’m crying wolf? Well, don’t say I didn’t warn you, if in the next few years you or a member of your family are unfortunate enough to be accused of a crime and want someone appropriately qualified and professional to defend you at trial. Or perhaps are a victim of a crime, and want someone appropriately qualified and professional to prosecute the case. Because those appropriately qualified and skilled professionals won’t be available to you.

They’ll be available to the likes of those senior civil servants at the MOJ who have created this position, obviously. And to those people at the Treasury whose fiscal demands have led to this week’s crisis position. And to MPs, whose voting records have pushed the system onto its knees. The likes of them will be able to pay privately for the few solicitors or barristers who will be left conducting criminal work, probably as a part time aside from their main work in other, more lucrative areas. But they won’t be available to the likes of the rest of you.

Be under no illusion: if you come into contact with the criminal justice system in any way, you need a specialist lawyer. You can’t navigate this system on your own and win. There is a reason why there are three categories of people who you will never see representing themselves: police officers, MPs and tabloid journalists.

And you won’t be able to afford to pay for it yourself, because by then those lawyers left dabbling with criminal law won’t be offering legal aid. Those lawyers left doing crime will be charging proper commercial rates, and those will be out of sight of most ordinary members of the public. Like I say, police, MPs and tabloid journos will be okay. Police officers will have their union funding their defence, and tabloid journos’ bosses will do the same for them. And MPs, being such publicly funded fatcats, will be able to afford to pay commercial rates, won’t they? But you and your family and your neighbours, just when you need legally aided help, it won’t be available to the likes of you.

So, in case you missed the news, here’s what’s happening.

On Tuesday the MOJ published the result of their latest fees ‘nonsultation’. That’s like a normal ‘consultation’, except where the MOJ ask for responses from professionals and others impacted and then proceed to completely ignore the responses when they don’t say what the MOJ wants to hear. Those of us at the criminal justice coalface are used to these, though this week’s was a particularly egregious example (see report in the Law Gazette here, and direct link to the Government’s nonsultation response here).

In case you had missed it, the latest plan was to tinker with the fee scheme through which criminal legal aid solicitors are paid for the cases they take on. Specifically, larger and more complicated cases had, well, become larger and more complicated which, under the convoluted scheme which the Government invented for paying criminal legal aid solicitors, meant that the bills for certain types of cases had become larger through no fault of the solicitors.

Here are the headlines:

1. The MOJ envisages paying between £26million and £36million less annually to legal aid providers.
2. Instead of paying a set price per page up to 10,000 pages of evidence, the cut-off point will now be 6,000 pages.
3. Above this threshold, the Legal Aid Agency will have to determine what “reasonable” work solicitors have done on the case and decide whether or not to pay them for it.
4. This invidious scheme is called ‘special preparation’, and the only ‘special’ thing about it is that you could end up doing hours of documented work for which the LAA will later say you don’t deserve to be paid a penny.
5. According to the consultation’s ‘impact assessment’, the LAA currently intends to employ the equivalent of THREE extra full time staff to deal with these additional ‘special prep’ claims (none of whom will actually be lawyers with any experience of actually preparing or conducting real trials).
6. The MOJ assumes that “around 20% to 80% of bills would claim for special preparation under the proposed scheme”!
7. Currently, only 20% of special prep claims (for over 10,000 pages) are successful.
8. Apparently, this is all being done due to “the need for a short term measure in order to relieve the financial pressure on the Ministry”.

The proposals were, according to the MOJ itself, opposed by 97% of people who responded, which was hardly surprising since the tinkering was going to result in average cuts to the fee income of solicitors of about 30%. (One has to wonder who the 3% of respondents were who DIDN’T oppose it – presumably staff members at the MOJ or something?) The document is perfunctory, to say the least, and the MOJ’s responses could quite easily have been (and possibly actually were) written without reading any of the 1,005 consultation replies.

And if you’re thinking, “Well, you’re a criminal barrister, what’s this got to do with you?”, there are two aspects. First of all, criminal barristers get their instructions from criminal solicitors, and so if two-thirds of criminal solicitors are driven out of business by these cuts (which is what several of the criminal solicitors’ professional associations believe), then the impact on the work of criminal barristers is obvious. No solicitors instructing you, no work. Secondly, if the MOJ are cutting solicitors’ legal aid fees this week, then next week they will start on barristers’ legal aid fees, make no mistake about that.

It’s unfortunate that our own ‘union’ the CBA has already put proposals to its membership for a revised fee scheme which would probably have the same impact on most barristers as the new solicitors’ fees: about a 30% reduction in income. This won’t be the last we’ve heard of it.

The reaction of the rank and file of the criminal Bar was not favourable.

(Pic from thewhippitinn.com – Me in my best dress, administering my personal response to the most recently proposed AGFS reforms)

To add insult to injury, on the very same day that these fee cuts were announced, HMCTS piped up with a re-visiting of their widely criticised proposals for ‘flexible operating hours’ across the court estate. This is something which only a couple of weeks ago,we thought we’d seen the back of, at least for a few months. But now it’s popped its ugly head up again, like an unwelcome, unflushable turd.

You can see the link to the HMCTS blog announcement here – and it can’t be a coincidence that this and the response to the solicitor fees consultation were published almost within minutes of each other. The CEO of HMCTS, Susan Acland-Hood, assured suspicious criminal lawyers on Twitter that this was by accident rather than design, but the jury’s out on that one.

Now Susan seems like a very pleasant woman who appears commendably approachable – at least on social media – and often eager to help out with individual complaints about listing in one court or broken light bulbs in another. But don’t be fooled into thinking that this eagerness to be seen to engage publicly with professionals will translate into the MOJ or HMCTS taking any notice when those professionals point out all the many flaws with, and the almost universal opposition to, the FOH scheme. My nan used to describe this as approach as “all mouth and no trousers”, and she was usually right.

You see, HMCTS can’t take any notice. They have to push this through. This is a ‘pilot’ in name only, like the fees ‘consultation’ was only pretend too. HMCTS absolutely have to have the courts open like the local 7-11, because that is the only way they will be able to squeeze all the cases in when they have closed 70% of the court estate, which is almost certainly their aim.

And that’s where these two pernicious schemes, announced on the same day, are linked. It suits the MOJ if two-thirds of criminal legal aid firms go out of business, because it suits the MOJ to have fewer firms servicing fewer court centres. QED.

So, why aren’t we all just downing tools and walking out of trials on a wildcat strike?

Trying to get coordinated withdrawal of labour by both barristers and solicitors, or even withdrawal of the goodwill on which the criminal courts daily depend, seems to be almost impossible. Like when you were a child and tried to force your Slime toy back into its plastic container. You thought you’d got it, then it just slipped through your fingers. A bit like when the Bar and solicitor leaders called off the highly successful ‘no returns’ action in 2014, just when its effects were on the brink of sending the criminal justice system over the cliff edge. We all knew that the courts and MOJ were in a panic, with their backs against the wall, so what did our leaders do? Gave in.

At the very least both sides of the profession now need to get on with coordinating the withdrawal of all goodwill, on which the courts rely, and quickly. The refusal to cover other people’s cases again (‘no returns’) would be a good start. If list offices won’t list cases to accommodate the professional diaries of advocates, why should any of their colleagues pick up the slack? We are not under any obligation to do so, and should stop doing it.

The MOJ and HMCTS have shown their contempt for criminal lawyers this week, in no uncertain terms. It is pointless listening to the senior ranks of the Bar bleating about the advantages of engaging with the men from the Ministry. THEY’RE NOT LISTENING.

We now need to stop any engagement, stop cooperation with any new pilots or schemes which HMCTS are dreaming up, stop going to dinner with these people, stop talking to them on a Chatham House basis, and stop holding on to the idea that faceless officials are interested in keeping any semblance of a functioning criminal justice system going. They aren’t.

Everything that is now being done by the MOJ and HMCTS is with the goal of ensuring that it is not financially viable for either solicitors or the independent Bar to remain in business doing criminal legal aid work.

Anyway, you’ll have to excuse me as I have to get back to business. (What business I’ve got left, anyway.) Now, where’s that digital case file? Oh…

 

 

Courting Disaster!

I’ve been absent without leave from blogging duties for the past few weeks, though I’m guessing that no one noticed. What with the election, a heatwave and Wimbledon, people have had other topics to fulminate over.

Besides, I’ve had to focus on the day job, as I’ve got a tax bill coming up. ‘Back to back sex’, as we call it in the trade, is all consuming. So even I haven’t had time to get angry about anything.

However, inevitably my bad temper has re-surfaced and I’ve had to shove my head back over the parapet. Pressing court related matters have caused my blood pressure to soar – namely, the contentious issue of the MOJ’s proposed ‘flexible operating hours’ scheme.

Now, when the MOJ and their partners in crime, HMCTS, talk about ‘flexible operating hours’, what they REALLY mean is that they want to have whatever courthouses they haven’t already closed opening earlier and finishing later, to the advantage of almost no one except the MOJ themselves, and to the detriment of pretty much anyone who will have to work in or attend them. Some courts will apparently be starting work at 8am, and some probably finishing at 8.30pm. And when they talk about a ‘pilot’, that’s being economical with the truth as well. Make no mistake, this is almost certainly a done deal.

Precise detail has been scant up to now on the MOJ and HMCTS websites. However, in a new blog posted by HMCTS head honcho Susan Acland-Hood herself – see the link here – the game has been given away. In classic management speak, our Susan tries to pretend that this ‘pilot’ is all about “building it [the court system] around the needs of our citizens”.

Bollocks.

Let’s just unpack a few of those lies, damned lies, and statistics. Don’t be fooled into thinking that the MOJ or HMCTS actually WANT our citizens to have access to justice. If they did, they wouldn’t be romping about the jurisdiction shutting courts left, right and centre, so no one who has to appear at or work at court actually has one local to them. They wouldn’t be gleefully cutting all legal aid to the bone, and then acting surprised when the public complain that justice is out of their financial reach. They wouldn’t be slicing the courts’ budgets to ribbons, meaning that half the court rooms in the country seem to be sitting empty at any given time as there are no judges or staff to man them.

They’ve even (get this) spent money on making a video propagating the contents of this blog. Seriously. I bet you that you can’t get all the way through it without reaching for the sick bucket: it’s here.

Yes, HMCTS even have their own YouTube propaganda channel.

Now, this ‘flexible/extended/longer’ court sitting hours isn’t a new idea from the MOJ, but rather the bones of previous failed experiments – like the one at Croydon Crown Court a few years back (which all in the profession and judiciary know was an abject failure, yet HMCTS seem now to be trying to pretend was a revelatory success) – which are once again being vomited up onto the carpet like an unwelcome fur ball to please the Treasury. And no, it won’t be a coincidence that Susan Acland-Hood’s previous job was some sort of policy wonking at the Treasury.

I remember the days when Bow Street Magistrates’ Court tried to run ‘night courts’, based on a US model which was running in the ’80s. Only problem was that little or no extra money was put into the experiment, to ensure that the courts were staffed with the required admin assistance, for example, or that there was sufficient access to the relevant paperwork and facilities at 3am. Needless to say, this dog’s breakfast didn’t last long, and the Bow Street site was soon being sold off for a planned hotel development.

(Which is probably what the MOJ want for most of the court estate, if we’re being honest. I’m convinced they want all Crown Courts to be sited in large out-of-town retail park metal warehouses, like judicial branches of Ikea.)

Then there were the 2011 riots, where courts like Highbury Corner sat extended hours to deal with the sheer volume of work. Now, this was not without its problems, chief of which was a lack of papers/legal aid processing/cell staff, etc: the result was a large number of adjourned cases and a lot of wasted time. And I don’t recall the local Crown Courts being forced to sit extended hours either, though their lists were substantially busier. Crucially, this whole caboodle relied almost entirely on the goodwill of lawyers and court staff, none of whom received any pay increase for their troubles. (In fact, criminal defence solicitors subsequently had their fees cut by the MOJ.)

I remember saying to solicitor friends at the time that they shouldn’t cooperate with the riot courts sitting so much earlier and later in the working day, because before you’d know it the MOJ would be suggesting that this should become the norm. But no, I was told, it’s a time of crisis and we’ve got to pull together and make the effort. After all, there’d been riots on the streets.

Well, there isn’t civil unrest right now (though in many ways I’m surprised not), yet here we are again, as I warned, having a ‘pilot’ foisted on us all, and this time more widespread than the Highbury Corner Incident. When any Government agency calls something a ‘pilot’, that means it’s a scheme they’re determined to bring in no matter what the views are of those people who have to work it, and they’re prepared to ignore all expert opinion from practitioners on the topic, and all evidence.

When HMCTS start suggesting that they are “letting people have their cases heard outside the traditional 10am to 4.30pm court day”, they make it sound as if they’re doing everyone a favour. Be under no illusion: Ms Acland-Hood (has she ever actually been inside any criminal court for an entire week, let alone listened to any of the practitioners who have to work there?) is not likely to be any friend to the Bar or solicitors. It appears she has no previous professional experience of the court system at all.

If HMCTS are sitting cases outside traditional court hours, this will be for the convenience of HMCTS and no one else.

In her blog, Acland-Hood blithely suggests that lawyers and judges won’t have to endure longer days in court and doing that all important out of court prep at 3am as a result of this nonsense. One only has to look at the proposals for the Crown Court pilots at Newcastle and Blackfriars to see that can’t be right. There, HMCTS is proposing to sit two shifts, basically 9.30am-1pm and then 2pm-6pm. So if you have a trial listed in either of those slots you will either need to arrive at court at 8.30am or 1pm. If your trial is listed in the afternoon slot, then bang goes any chance of, e.g., arranging a conference in another case to take place after your court day and your client’s working day, since you’d be lucky to be leaving court before 7pm, never mind getting back to Chambers to see another client. And if you’re listed in the morning, bang goes the school run.

And does this mean that a different judge is going to be sitting in the morning slot and the evening slot? Is HMCTS planning to double the number of judges employed? They can’t even open all the courtrooms they have during normal hours at the moment, let alone under this new expanded scheme. Why do you think there’s such a backlog of trials?

The real aim, of course, is to close as many courts as possible and shoehorn all that work into the bigger court centres. If you hadn’t guessed that already, Susan Acland-Hood revealed it herself on Twitter on Sunday.

The blog also claims that HMCTS have “worked closely with judges and a range of organisations to design the pilots”. I’d love to know who those other “organisations” are, as they certainly don’t seem to include any of the professional bodies for criminal lawyers, who are universally opposed to the scheme. And breathtakingly, it’s also suggested that “keeping expensive [court] buildings empty before 10am and after 4.30pm, rather than having fewer, better maintained buildings open for longer, has a real cost”. It’s as if we all turn up at 9.55am if we’re listed at 10 for a trial, and all evacuate immediately after finishing!

When does Acland-Hood think all that trial prep which can only be done at court when both counsel are together, for example, actually happens? It’s when we’ve arrived at court at 8.30am or stay at court working until 6pm already, that’s when!

As for the idea that cases could be scheduled for hearing “more responsively but also more predictably”, this is just risible. We all hear daily of examples of list officers riding roughshod over any requests to accommodate the availability of counsel, and I can only see that getting worse. Last week one of my colleagues was complaining that her clerks had written to a large London Crown Court to request that they didn’t call in a particular warned list trial until Wednesday, to enable her to conduct a PTPH at another London Crown Court on the Tuesday. Not only was there absolutely zero acknowledgment of the request from the court, but the court then promptly listed that warned list trial on the Monday, thereby ensuring that she now can’t conduct the Tuesday hearing elsewhere and it will have to be covered by someone else. This sort of caper happens so often, the only conclusion to be drawn is that it’s deliberate.

Last weekend, Acland-Hood gamely attempted to engage with various criminal practitioners on Twitter – notably @BarristerSecret, @RebeccaHerber44 and @thepubliclawyer – when HMCTS was called out on the contents of the blog. And fair play to her. However, it rapidly became clear that she doesn’t have the first idea about how the criminal Bar in particular actually works, and how much the courts absolutely rely on the flexibility and goodwill which we currently provide (but almost certainly won’t for much longer). Frighteningly, @RebeccaHerber44 actually had to point out to her that you can’t exactly job share a rape trial.

It’s as if the MOJ and HMCTS think that your local Crown Court can be operated like your local out-of-town 24 hour Tesco superstore.

My neighbour works for Tesco, so I asked her about flexible shifts and extended operating hours and so forth. And guess what? It turns out that their system isn’t, well, exactly that flexible! People working early shifts or late shifts, or any shifts, get given their confirmed shifts at least TWO WEEKS in advance. Their working hours are fixed. So bang goes your court warned list system then. Bang goes hearings being put into tomorrow’s list by the court at 4pm the previous afternoon without warning.

On that premise, no more listing trials at less than 12 hours’ notice to everyone, if the early shift is starting at 8.30am! And how are you going to have Crown Court trials starting then, or even starting later and finishing after 6pm, when there will be jurors who have parental duties such as school runs to deal with? How are you ever going to get the likes of Serco and G4S to get Defendants who are in custody to court for their trials in time for a 7.30am cells conference with their barrister for a trial starting at 8.30am – when they can’t even get them to court in time for a 10.30am start at the moment?

Tesco don’t put their staff into two different shifts on the same day either, unless their staff agree to do a double shift – for which they get paid more money! And if I wanted to do shift work, I would have taken up another profession.

The pilot also appears to have assumed that all criminal barristers only ever work in one court centre which is local to them, when nothing could be further from the truth, or that we only ever do one hearing per day, or that we have any sort of choice about when our cases are actually listed by the court. It also totally overlooks the fact that we’re self-employed, so not under any obligation to, for example, accept a brief to cover someone else’s hearing when the originally instructed counsel isn’t available.

I’ll be willing to bet that if a hearing in case A is listed in the early shift, and a hearing in case B is listed in the late shift, and Barrister X is the instructed advocate in both of these cases, the list office will be laughing in the face of Barrister X’s clerks when they request that both hearings be listed in the same shift to avoid Barrister X having to double up.

I tell you this for nothing: I shan’t be agreeing to cover anyone else’s mention/PTR/returned trial if it means arriving at court at 7.30am – which I would need to do if the hearing was listed in an 8.30am list. At least we might actually get ‘no returns’ back by default!

There is, of course, no mention of any increase in fees to cover the inevitably longer days which we will be expected to work. And I’m guessing that it won’t be long before the LAA are suggesting that, as the court shift sessions are shorter than the current full court day, then refreshers for people doing trials in the shorter shifts should be cut.

The problem for the MOJ and HMCTS is that they have assumed the cooperation of criminal lawyers, but this ‘pilot’ comes at the same time as the powers that be are trying to impose further cuts of 8.5% to solicitors’ legal aid fees, and a new system of remunerating barristers which will see most having their fees reduced by up to 30%! The current payment scheme is predicated on the basis of a court sitting day of 10am to 4.30pm, but I’ve seen no suggestion of any fee increase for now being told to undertake work at unsocial hours. So it’s hardly surprising that the mood is militant.

In a widely disseminated article (see link here), the Chairman of the Bar Council has – in terms which are more polite than I would have been – set out the inevitable difficulties which would follow the imposition of these new working hours across the board. The chief of which is that absolutely no barristers or solicitors who would have to work within the new scheme have a good word to say about it or wish to cooperate with it.

In fact, most, including me, have two words to say about this ludicrous scheme. And the second one is ‘off’. Meantime, I’m off to get an application form for Tesco from my neighbour. I think the uniform is quite ‘me’, and at least I’ll get a staff discount.

(Main pic: Robert Vega Design http://www.robvegadesign.com)

 

 

I’m (Not) Free!

I originally started this blog before last weekend, but I kept getting interrupted by work. You see, we criminal barristers actually need to earn money. We have bills to pay like everyone else.

But sometimes a topic pops up on my Twitter timeline which seems to resonate, and it keeps coming back. Just lately, this has been the vexed topic of whether lawyers – and especially those of us who specialise in criminal and family law, which are largely publicly funded areas – should be expected to carry out pro bono work.

The reason for the flurry of interest in this was that the Bar Council had put out a press release and accompanying tweets calling upon barristers to engage in pro bono work: see the press announcement here. In case anyone reading this doesn’t know, the Bar Council is the representative body of barristers in England and Wales, and apparently is there to “represent the Bar community and promote its role at the heart of the justice system”. And pro bono work is work which the Bar Council wants to encourage the barristers it represents to do for free, voluntarily. That’s for nothing. Gratis. Zero. Nada.

So when I put out a tweet questioning whether the Bar Council should be encouraging pro bono recruitment, and asking whether it shouldn’t instead be supporting barristers whose specialisms have been and continue to be decimated by Government policy, I had expected some reaction from fellow barristers. But not quite the strength of feeling which was revealed. It seems I’m not the only one who questions why we should even consider offering our services free – still less why our own representative body should be repeatedly inviting us to do so.

When I get persistent emails from the Bar Council laying a guilt trip on me about how/why I should be offering my professional expertise for nothing, I feel about that the same way I feel about the Bar Council’s emails offering me ‘preferential finance’ to buy a £40k new BMW sports series. It is about as likely that I, a jobbing criminal barrister, would be in a position to be able to afford to buy a £40k new BMW sports series, even with ‘preferential finance’, as it is that the bloke who plays Uhtred in The Last Kingdom will offer me his hand in marriage. Oh well.

Get this, Bar Council: those of us whose work is wholly or largely in the publicly funded sectors ALREADY DO SUBSTANTIAL AMOUNTS OF FREE WORK. The current payment scheme for criminal work – which has been implemented by the Government which pays us, just in case members of the public still think we make up the figures ourselves then invoice the MOJ – is a system of fixed fees which now encompass so many hearings and elements which previously attracted separate payments that, on occasion, we are ACTUALLY WORKING FOR NOTHING.

I’ll give you an example. The one which first interrupted my writing of this blog a week or so ago.

Overnight, I had a trial returned to me. It was a case which had been in a warned list, a nefarious invention which is all about the convenience of the courts’ management and their statistics and about no one else (certainly not alleged victims, witnesses or Defendants), about which I have complained previously in my blogs (see Forewarned Is Forearmed here).

It wasn’t the most serious case in the world, about a bloke who’d been arrested by police for an unrelated matter and found with a lock knife hidden in his sock. He was apparently saying he’d had a good reason for having the knife about his person in a public place, because when arrested he’d been on his way to work, and the knife was a tool used in the course of his work. Now, this is a potential defence in law, the success or otherwise of which would depend on the Defendant’s evidence and credibility.

Until 6pm on the day before the trial, I had never set eyes on the papers and had no previous dealings with the case. So I had to spend the whole evening sorting the brief into some sort of order, working out what was missing, speaking to previously instructed counsel and trying to get hold of the solicitor. The trial was taking place in a court 1.5hrs drive away from where I live, so I had to get up pretty early after all the homework the night before. The trial was due to last two days and, in order not to have court time wasted, I would have to ensure that I completed all taking of instructions, preparation, etc outside the court sitting hours (usually 10am to 4pm) so I couldn’t be accused of wasting any court time during the sitting day.

This is what all criminal barristers do, and why we have to spend so many of our evenings and weekends working to keep trials and other hearings on track so judges and witnesses are not inconvenienced by being kept waiting around for us during the day.

When I was going through the papers on this case, I discovered two things: firstly, that the Defendant was going to have to be advised to plead guilty as a statement had been served from the Prosecution – subsequent to the hearing at which he had originally entered his plea of not guilty and indicated what his defence was – which fundamentally undermined his defence and meant that he could not rely on a witness whom he had been hoping to call to support his case. And I was going to have to point this out to him.

Secondly, this was an elected case.

For those not in the know, an elected case is one where the magistrates’ court – at which all cases originate – had decreed that they could hear the trial themselves. However, with certain offences, possession of a bladed article being one of them, the Defendant has the choice in law as to whether he wishes to be tried by a jury or by magistrates. In this case, my new client had ‘elected’ the former. Clearly, this was done at a hearing at which I had not been present, and was a decision over which I had had no control.

So the position I found myself in was fiscally disastrous.

For my client’s own good I was going to have to advise him that he should change his plea to guilty, and explain why his defence was no longer viable. However, this would mean that the brief fee on the case would be the princely sum of £194. For the whole case. Yes, that’s for all the preparation, any paperwork previously done, the time and expense of travelling to court, my time at court advising the client in conference, then dealing with the hearing, which would include him being sentenced, providing a full written note to the solicitors about what happened at the hearing, then advising the client in writing after the hearing that he had no grounds to appeal the sentence. Oh, and after deductions to account for tax, NI and my Chambers’ fees, I’d have to pay a proportion of that £194 (probably around £40) to whichever barrister had conducted the PTPH hearing a few months earlier, since this is also included in the ‘brief fee’!

Obviously, I did give the client the appropriate advice and acted accordingly. It was too late to do anything else by the time I discovered that this was an elected case. My accountant was not at all happy with me, and has now upped his Valium prescription.

The courts rely on barristers accepting late returns such as this, in order to keep the courts functioning and allow them to continue to ignore the availability of instructed counsel when carrying out their listing functions. Frankly, had I known that this was an ‘elected’ case when my clerks rang me and asked me to take it over, I would have said no. The risk of being stiffed for £194 if your client decides to change their plea to guilty, or if you have to advise them to do so, is too high. Imagine if everyone refused to take such a case on the same basis…

The Government has long since ceased to treat us as professionals. Rather to them, we are tradespeople, measured in units as creators of widgets and regarded as an industry. So why should we continue to act in the way expected of ‘professionals’ when it comes to being expected to offer our services in the noble tradition of pro bono?

The thing is, giving professional services without getting paid is something of a sore point for those of us who undertake publicly funded work – criminal or family work in particular. These are areas in which, over the past 10 years or more, the fees paid to lawyers acting in these areas have either been slashed exponentially, or legal aid has been removed altogether.

(Just in case you’re still unsure about how this works, remember this: lawyers working in the fields of, say, commercial law or tax law don’t get paid out of legal aid funds. Their clients pay them direct, and the fees are not at rates set by the Government or by any professional body but by negotiation between the lawyers and the party seeking to make use of their services. The sort of ‘fat cat fees’ you see bandied about in the Daily Fail as being charged by “lawyers” usually, in fact, relate to this sort of work.)

Indeed, why SHOULD we be expected to offer our services for nothing at all? When I had my car serviced a couple of days ago, I didn’t dream of asking the garage if they wouldn’t mind awfully doing it for nothing as it was a bit pricey and I had some other bills to pay.

At the criminal Bar we have had nothing but cuts to our fees in the last decade. The payments made to us for cases are now at around 30% less than people were getting paid for the same work 20 years ago – possibly even less than that.

Now, I expect the Bar Council will turn around and say, well, the advocates’ graduated fee system is a ‘swings and roundabouts’ one, whereby you will be paid more for some cases than for others. These days, it seems to me that there are far too many roundabouts and not nearly enough swings. And I know I am not alone.

So you’ll forgive me if, when I receive those Bar Council emails exhorting me to give away even more of my professional time and expertise FOR FREE, I find myself morphing into Angry Frank, the Harry Enfield red-faced shouty bloke in the pub.

(Me, receiving another email about pro bono from the Bar Council. Pic: BBC)

And when I read said emails, I find myself shouting, “OI, BAR COUNCIL, NO! I WILL NOT GIVE UP EVEN MORE OF MY VALUABLE PROFESSIONAL AND PERSONAL TIME TO LEND MY HARD-WON EXPERTISE IN THE FIELD OF CRIMINAL LAW TO ONE OF YOUR FREE LEGAL PROJECTS IN ORDER TO ACT AS A SOP FOR YOUR COLLECTIVE SOCIAL CONSCIENCE!

“AND IF YOU THINK IT’S WRONG THAT PEOPLE CANNOT ACCESS LEGAL ASSISTANCE DUE TO THE CURRENT AND PREVIOUS GOVERNMENTS SLASHING CRIMINAL LEGAL AID TO THE POINT WHERE IT BECOMES UNECONOMIC FOR PRACTITIONERS TO CONTINUE, AND REDUCING CIVIL LEGAL AID TO ALMOST NOTHING, THEN UP THE ANTE IN CAMPAIGNING AGAINST IT ON BEHALF OF YOUR MEMBERS, INSTEAD OF ENCOURAGING THEM TO BASICALLY BE COMPLICIT IN THE CUTS BY CARRYING OUT FOR FREE WORK WHICH THEY WOULD PREVIOUSLY HAVE BEEN PAID AS PROFESSIONALS TO DO! CAN’T YOU SEE THAT THIS JUST ENCOURAGES THE MOJ TO THINK THEY CAN CONTINUE ON THEIR MERRY WAY WITH MORE CUTS?!

“AND WHILE YOU’RE ABOUT IT, WHY DON’T YOU SUGGEST TO SOME OF THOSE BIG FAT CAT CITY LAW FIRMS – WHO HAVE SET UP ENTIRE PRO BONO DEPARTMENTS COSTING HUNDREDS OF THOUSANDS OF POUNDS – TO SALVE THEIR SOCIAL CONSCIENCES BY USING THAT MONEY TO INSTRUCT AND PAY BARRISTERS WHO ACTUALLY HAVE PROFESSIONAL EXPERIENCE AND EXPERTISE IN THE AREAS OF LAW THE PRO BONO DEPARTMENTS WANT TO DEAL WITH, SO THOSE BARRISTERS CAN CARRY OUT THE SAID WORK WHICH THE CITY FIRMS DON’T HAVE THE PROFESSIONAL KNOWLEDGE FOR, AND THE CITY FIRMS CAN STILL CALL IT PRO BONO!

“MEANTIME, IN THE WORDS OF THAT ICONIC BBC TV PERSONALITY JOHN INMAN, I’M NOT FREE!”

Phew. And the classic Angry Frank Jim Davidson rant can be enjoyed here.

Swings and roundabouts, my arse.

(Pic from @SkintSolicitor)