We’re All Mad Here!

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.

Screenshot 2018-03-01 11.32.34.png

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.

Screenshot 2018-03-02 13.58.52.png

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.

Screenshot 2017-12-21 19.35.41

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.

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.

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.

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.

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.

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.

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.

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!

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.

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).

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.

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.

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!

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.

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.

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.

Screenshot 2017-12-21 19.55.23

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

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.

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.

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.

convenience 2

(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.

convenience 1

(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.

Screen Shot 2017-10-26 at 22.06.43

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”.


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.

Screenshot 2017-07-23 15.22.42

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.

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





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

Swings and roundabouts, my arse.


(Pic from @SkintSolicitor)


That’s Not The Way To Do It!


punchliz1Well, we didn’t see that one coming, did we, boys and girls?

I’ve had my head buried in a serious trial over the last couple of weeks. It’s the type of case which has been attracting the unwelcome attentions of various ill-informed quarters of the media and Parliamentarians ignorant of criminal law and procedure. The real world has, to a certain extent, receded into the background. It’s the sort of trial where I have had to listen to the Helmet back catalogue. A lot.

So I nearly missed the bit where the MOJ turned into the Punch and Judy Show.

We all know that Liz Truss is the worst Lord Chancellor since Geoffrey The Bastard (who held the office from 1181 to 1189). Her obvious, embarrassing lack of grasp of the issues, not to mention the conspicuous lack of regard for access to justice and the importance of proper procedure which permeates down through her entire department, have found her in hot water on numerous occasions since she was plummeted into the role.

Truss is, inevitably, one of those people who will swallow wholesale the bandwagoneering of the likes of Vera Baird, Harriet Harman and their ilk (see link here to my guest blog at Legal Cerebral on their pet projects). Mainly because it suits her department’s agenda, which is daily further revealed to be to deprive the general public of the wherewithal to have access to justice.

She was at this again only a few weeks back, in front of the Lords Constitution Committee (link to the full car crash footage from 1.3.17 is here). She conducted the discourse with all the gravitas of Zippy performing one of the musical interludes on Rainbow.

(From left: Zippy from Rainbow, Liz Truss. I think…)

Truss was being asked about her constitutional role and in particular, the importance of supporting the independence of the judiciary – a topic of which she appeared to have a minimal grasp (surely she has aides who are supposed to send her out properly briefed about this stuff?). She also found time to slip in a sly rhetorical question about “how do we do legal support but in a different way?”.

All was explained in the Law Gazette on 6.3.17 (see link here), as another cunning plan was revealed by the MOJ to ensure that lawyers will play little or no part in any type of proceedings any longer. There is a Green Paper planned which, according to MOJ patsy Sir Oliver Heald, will see “legal support” provided in “a reform programme” (always ominous) which “will deliver a justice system that is more accessible to the public”. Which means, it won’t be. Truss was trilling to Peers about how the Prisons and Courts Bill will “change the justice system”, boasting about how “fewer lawyers will be needed” due to the new system of virtual and online hearings.

Legal support. Didn’t we used to have a thing called legal aid which, well, did that sort of thing?

But stop it, I’m telling you the plot!

On several occasions during the Parliament TV show, I actually had to pause the footage, either to hold my aching sides, or bang my head on the desk repeatedly. Because behold, Truss actually proclaims that “I see my role as the overall custodian” of the justice system, with a responsibility “to ensure that the system is sufficiently funded”! Cough.

Thereafter, she vomits up a stream of soundbites and platitudes, ranging from “ambitious reform programme!” to “value our judiciary!” to “online triage!” and that old favourite, “new system for legal support!”. Apparently, she’s “always spoken out about the independence of the judiciary” (seriously?), but apparently not to the extent that she’s prepared to fulfil the responsibilities of her oath and defend them to the press, just in case the Fail writes something nasty about her or something.

Oh, and for that “doing legal support in a different way”, apparently she’s been in discussion with the legal profession about the reforms. Who knew? I’ve yet to meet any practitioner who’s been consulted rather than actually have the ‘reforms’ foisted on them.

However, even after this abject showing, no one could have seen the moment coming, a couple of weeks later, when the Lord Chief Justice, Lord Justice Thomas, produced his metaphorical Mr Punch club in front of the same Constitution Committee and began to set about the metaphorical head of Truss with it. Did someone say “sausages”?

In an astonishing piece of TV, Thomas told the Committee on 22.3.17 that our own unesteemed Lord Chancellor was “completely and utterly wrong” when she declined to exercise her constitutional duty to defend the judiciary over the Brexit case (see the original piece in Politics Home here). And he battered her further about the chops when pointing out to her that she and her inept department had got the whole pre-recorded cross-examination fanfare announcement arse about face!

Now, it’s not often that the country’s most senior judge has to administer such a thoroughly pants-down spanking to the nominal head of his profession. The media reports were tame compared to the actual mauling administered (see Parliament TV link here). It has to be seen to be believed.

Thomas is on the offensive from the start, as he begins by setting out a long list of all the topics causing him concern, ranging from the impact Brexit will have on the legal landscape to the “major reforms” to the civil, family and tribunals jurisdiction (which as we all know sound like a Titanic waiting to hit the iceberg). Then there’s the steady rise in the workload of the Court of Appeal regarding asylum and immigration cases, issues regarding access to justice (well, that’s sorted, as the MOJ will simply ignore that one), problems with judicial recruitment, morale and working conditions, and the “issues relating to our relationship with the media, Parliament and the executive”. Phew – pass the popcorn!

Thomas had clearly polished his steel-toecapped boots that morning. Pursing his lips, he’s in with both feet. “I’m afraid we had to correct a serious misapprehension,” he spits, about the MOJ’s much lauded announcement about the imminent national roll-out of pre-recorded cross-examination for all complainants, adult and child, in sexual cases. “I’m afraid they’ve misunderstood the thing completely.” This is said with an expression of complete incredulity. How could the MOJ be, well, so thick?

He goes on to reveal some key information. Judges, he says, had been fighting to get pre-recorded cross-examination introduced since 1999 but were told there was “no money” for this by the MOJ. This is interesting, since those of us at the coalface have long been saying that the plans to introduce this as the de facto position in all child sex cases, let alone adult ones as well, would vastly increase costs within the system, but none of the Powers That Be had ever wanted to confirm this before. From where is this funding going to come, with the MOJ telling us they’re so strapped for cash that they’re trying to cut criminal legal aid fees yet again?

“We’ve made the pilot scheme work,” continues the LCJ (but note, this was only operating in three Crown Court centres nationally, and only applied to children and then in cases involving sexual allegations), “and we wanted to roll it out carefully.” You can see him taking a deep breath. “BUT THERE HAS BEEN A COMPLETE FAILURE TO UNDERSTAND THE PRACTICALITIES.”

That is an understatement on any level. Pre-recording cross-examination in all sex cases involving child and adult complainants would involve around 40% of the criminal courts’ current case load. It is questionable as to whether the magistrates’ or youth courts would be able to cope with any such cases, in a climate where there appears to be a desperate race to prevent by any means either way or youth cases being transferred to the Crown Court: this would encompass a large number of sexual allegations.

And that is without the consideration of the involvement of counsel in this. Under the pilot scheme, many pre-recorded cross-examinations took place MONTHS before the actual rest of the trial. You see, the pre-recording actually counts as day 1 of the trial. So someone, somewhere needs to ensure that the same counsel are still available to resume the trial all those months later. Which, when you have to factor in court list officers and their obsession with statistics, isn’t as straightforward as it sounds.

It seems the Lord Chief’s dander is well and truly up. “It’s very troubling, it isn’t something we should have to do,” he says about the fact that he had to write to all judges in the country to correct the MOJ’s cock-up and then go to the media with it to boot. It appears, he says, that the problem likely stems from the fact that the MOJ had a policy, which started a few years back, of getting rid of any staff who actually knew how the court system worked: “They do NOT have enough people who understand,” he bristles. (My view is that they have people who understand, but not enough who actually give a flying one, but that’s just me.)

It appears that the MOJ had been systematically getting rid of anyone with relevant experience, including putting a ton of HMCTS staff on short term contracts – which has resulted in all the more work falling on judges and no one behind the scenes knowing what the feck is going on. He should try being one of the barristers or solicitors trying to make sense of the Alice in Wonderland system which the MOJ have created, without the security of tenure and still generous pension and holiday packages enjoyed by the judges, then!

“People don’t understand the resources needed to run a court system, until it falls over,” the LCJ continues. I reckon the Treasury understands only too well, except it doesn’t want to properly fund a court system, because it’s inconvenient. It might (gasp) mean that the plebs out here might actually be able to get access to justice if they did that, and we can’t have that at all. Not when we might have to fund warships to Gibraltar or something.


(Pic by the luvverly Cartoonstock)

But it’s when Thomas turns his attention to the recent press coverage about judges and the Article 50 case that you can really see his nose twitching. His face is positively puce as he bellows that Government Ministers (and presumably, the Lord Chancellor in particular) “must uphold the independence of the judiciary”. And is he almost apoplectic when he splutters about THAT Truss appearance and her subsequent interview with the FT (sadly paywalled, so I can’t link to it, but yes, it was a bad as he says)? “SHE WAS COMPLETELY AND UTTERLY WRONG! IT IS THE LORD CHANCELLOR’S DUTY!” He went so far as to describe a “casual disregard for the rule of law” which seems to pervade Government. What, the one those of us at the coalface have been banging on about for the last decade, you mean?

“I regret to have to criticise her as severely as I have,” he growls, “but she has taken a position that is CONSTITUTIONALLY ABSOLUTELY WRONG. There is NO POINT MINCING WORDS!”

None at all, mate. You go right ahead!

It’s just a shame he didn’t see fit to give the MOJ a few of these home truths before he was about to retire. They might have listened to him then. They certainly don’t listen to us.


(Main pic by Wildy)

“Spin, Spin, Spin The Wheel Of Justice!”


The Ministry of Justice must think we’re a bunch of mugs.

Our Leaders seem to propose that the courts should be run like Judge Nutmeg’s Palais de Justice off Vic Reeves’ Big Night Out. Trial judges must preside over a game of That’s Justice, where an audience member is ‘tried’ for a random and nonsensical crime, with the punishment decided by spinning the hairy Wheel Of Justice whilst chanting “spin, spin, spin the Wheel of Justice, see how fast the bastard turns”. Those of you with memories as long as mine will obviously recall that, wherever the wheel landed, Vic would move the wheel until it landed on whatever punishment he fancied.

Every day, it seems more and more that’s where our justice system is actually headed.

Apparently, my last blog Objection! Sustained! (see link here) struck something of a chord. And not only with practising lawyers but with members of the public as well. It seems that all the procedural errors which I pointed out from TV’s Apple Tree Yard’s trial scenes caused perturbation. And that’s a problem.

Because not only do we have TV shows which inaccurately portray what actually happens in a criminal trial and behind the scenes of an investigation (the new series of Broadchurch seems to be doing a pretty good job of propagating a few more myths this week), but increasingly MPs, other public figures and the media are more than happy to flap their gobs about criminal justice processes with scant regard for truth or accuracy, fairness or due process. Sometimes, it seems, the ignorance is wilful.

This is dangerous, because the way that the criminal justice system is portrayed has a direct effect on how it’s run by the Powers That Be. The MOJ is a basket case of a Government department at the best of times, particularly at the moment when it’s being run with little care for the rule of law or access to justice.

The misinformation means that Liz Truss and the wookeys at the MOJ obviously think they can get away with gradually denuding the court service and the justice system of enough money to run it efficiently and effectively. Something like 40% of its funding has been stripped out since 2010, and because the public are kept misinformed about how the system works, there are no howls of protest when another local magistrates’ court is closed, or court rooms in large Crown Court centres sit idle because the MOJ won’t fund enough sitting hours to keep them open, while trials take ever longer to be listed because there are too few judges to hear them in a timely fashion.

If you replaced the words ‘justice system’ with ‘NHS’ and then tried the same thing, the tabloid press would have your guts for garters and there would be a march on Downing Street. However, because it’s ‘only’ the justice system, the Government regards this as somehow acceptable.

The last cause celebre where misinformation has been peddled like lucky heather is sex case trials. If you believed everything you read in the papers, you’d think that in every single trial of a sexual allegation the complainant is shouted at repeatedly as they’re grilled about every single occasion on which they’ve even kissed anyone, never mind had sex, as a baying mob of bewigged barristers bang gavels on the bench. This is totally false, but the raised voices of various special interest groups seemingly hell bent on ensuring that trials are less fair than they used to be appear to be drowning out rational argument.

The most recent example of this is in a report published by Vera Baird, once a QC practising in the criminal courts and so Someone Who Should Know Better. Baird was a subsequently a singularly undistinguished Solicitor General under the Labour Government of the mid 2000s, and is now earning a crust as Police & Crime Commissioner for Northumbria. If this recent Guardian piece here is anything to go by, she’s yet another public figure who’s got a bee in her bonnet about the operation of s41 of the Youth Justice & Criminal Evidence Act 1999 in criminal trials.

Now this is a vexed topic which has reared its head repeatedly over the past couple of years, seemingly with one destination in mind: to ensure that those people facing trial for sexual allegations don’t get a fair crack of the evidential whip.

The dangerous part of all this is how Baird’s pronouncements have been seized upon as gospel by various corners of the mainstream media. What they don’t seem to have realised – or if they have, they’ve ignored it for their own agenda, which is worse – is there are some big gaps in the info presented, which beg some serious questioning.

For starters, the Guardian piece (which doesn’t actually feature a link to the full report, and neither does Baird’s website, though it’s apparently called Seeing Is Believing and is summarised here) exposes the shortcomings of focussing on one small corner of the UK. It was compiled by 12 ‘volunteers’ sitting in to observe 30 trials. Could these volunteers perhaps be people who already have a particular agenda? One of them seemed to be the director of a local ‘rape crisis’ charity, so you can perhaps see where she’d be coming from.

Were any of them trained lawyers who had previously dealt with s41 applications during a trial process, so understood the complexities of the legislation? (No, but apparently they had a Nutshells session or two from the CPS.) Had they seen all the pre-trial hearings, where there might potentially have been legal argument/discussions, or just the trials themselves? Had they been privy to the contents of any skeleton arguments served, or even the actual trial documents? Or to any discussions between counsel outside of court? It appears not.

The writer of the piece betrays her own ignorance of procedure when she refers to the alleged rarity of barristers meeting their clients before such a trial. This is patent nonsense: if you’re defending you would have inevitably had a conference with your client in such a case, even if only at court. Not to do so would be negligent, to say the least.

And if prosecuting, the CPS code requires you to at least meet the complainant – but the important thing to note is that you are not ‘their’ barrister, since you’re instructed by the Crown and not by them. A crucial distinction which seems to have entirely passed the Guardian by, along with the fact that if prosecuting you would not be able to have a full ‘conference’ with the complainant as you are not allowed to discuss all the details of the evidence or disclosure with them. The summary of the report suggests that Prosecuting counsel should have a meeting with the witness on a day other than the trial date.

That’s where my mate the RASSO prosecutor, who spends week in week out prosecuting sex cases at trial, almost spat out her coffee with indignation. Because guess what? This is what already happens! Miss RP herself was apoplectic when she read this report: “It makes it sound as if we’re prosecuting these cases in the 1980s. I half expected the suggestion that counsel were saying to complainants, ‘Fire up the Quattro, pet, it could’ve been worse’!” FFS.

The taxpayers of Northumbria might be interested in this report too, since according to her website here, the job of Baird as Northumbria’s Police and Crime Commissioner is to “have responsibility for police governance”. Quite how any argument about the operation of s41 in criminal trials up and down the land relates to those duties is anyone’s guess, since the police have nothing to do with s41 applications, but I’m willing to be enlightened.

And why was this experiment considered necessary, when information leading perhaps to a more balanced countrywide view could be obtained from information already held at all 77 court centres? I’m no statistician, but it seems obvious that such a small, geographically limited sample would hardly be expected to provide robust data upon which any policymaker could safely base any decisions, particularly those which lead to changes in the way trials are conducted or funding is awarded (or removed).

So yes, I’m angry. And I’m not the only one. They, the Powers That Be, they just wouldn’t let it lie.

vic reeves

I have spent the greater part of the last several years conducting sex trials. Out of interest, I checked back through my 2016 work diary to see in how many of those cases a s41 application was actually made, and in how many it was granted. Unlike Baird’s limited survey, the cases in which I was involved took place at various different court centres all around the country and I was conducting two a month on average. They were a mix of historic and contemporary allegations, with complainants across a very wide age range. In only two of those was a s41 application made, and in both it was granted.

The reason? The issue of previous sexual behaviour by the complainant in respect of her relationship with the Defendant was highly relevant to the issues in the case. The defence could not properly have been conducted without the jury hearing questioning about the previous sexual behaviour. In one of the cases, the complainant herself had introduced the topic of her previous sexual relationship with the Defendant in her video recorded evidence-in-chief, so obviously he had to have the chance to dispute that evidence where necessary. If I had not been permitted to ask those questions, the jury would have been left in the dark about important matters, and the trial would not have been fair.

Yet from all the reporting, you’d think such questioning happens in every case. It doesn’t. It’s very tightly controlled, and in my experience judges are very quick to jump down the throat of any counsel who transgresses the rules.

It’s not just me who thinks this. Two QCs (as they’re in the media, they should inevitably be referred to as ‘top QCs’) pointed out the same in The Times: see link here. As Eleanor Laws QC and Angela Rafferty QC accurately say, the 30 cases supposedly studied by the ‘observers’ sent out in Baird’s ad hoc experiment can hardly represent the true picture of the 2,274 contested rape trials which apparently took place at all the court centres in England and Wales during the time that the Baird observers were pootling around in Newcastle.

So yes, it does make me angry that such misinformation is passed off as in any way informative.

But what about those of us still left clinging to the coalface, attempting to conduct trials in a professional manner whilst hanging on by our fingernais in the teeth of the MOJ austerity hurricane? Well, THANK THE LORD HARRY for the estimable Colin Wells and the third edition of his invaluable tome, Abuse Of Process!

I’ve met Colin Wells, so he knows who I am. Though if he reveals it, I’d have to kill him. Which would be a shame, since with the way things are going in the criminal courts, this 300-odd page volume of practical tips, commentary and topical case law is likely to overtake Archbold and Blackstones as the essential reading for criminal trial advocates.

In easily digestible chapters and with an index which is actually navigable (unlike Archbold), Wells sets out the details of the jurisdiction of the doctrine and all routes to actually running the argument, from issues arising at the pre-charge and investigation stage through to confiscation proceedings and all points in between. In addition to some excellent sample skeleton arguments in the Appendix, I found the chapter on Disclosure particularly enlightening: bearing in mind the wholly inadequate state of just about every schedule of unused material I have been served with in the last 12 months, I’ve a feeling that section will be thumbed to pieces before the year’s out.

I’ve already started considering how I could shoehorn in an abuse argument the next time one of my s41 applications is refused. And the content of p207, in which Wells deals with arguments about the disobedience of court orders, is probably something which I will consider for my next tattoo. Though I wonder if any Defence counsel out there have noticed the CPS being subjected to any “reduced tolerance for failure to comply with court directions” from the courts? I certainly haven’t.

So as I said, essential reading. Though with every page I turned and every example I read which chimed increasingly with my experiences in practice, I felt myself getting more and more angry. You wouldn’t like me when I’m angry. The book’s green too, by the way.


(Me: yes, I am angry. Pic by Wildy)

Abuse Of Process by Colin Wells is out now, published by Oxford University Press

Objection! Sustained!


If I didn’t think it was a load of old pony, I’d have to start taking mindfulness classes or doing chanting with crystals. Because this week the media has yet again been full of frankly dangerously misleading and inaccurate portrayals of what goes on at a criminal trial.

If there’s anything guaranteed to get the goat of a criminal lawyer, it’s having to sit through programmes like Apple Tree Yard when they try to portray anything to do with criminal procedure. The last couple of episodes of this well-acted but rather far-fetched drama had numerous criminal practitioners plucking their wigs to pieces and stamping on them in frustration.

It’s not just that we find it intensely irritating that TV production companies can’t get simple details correct. No, Defendants don’t engage expensive PR pillocks to advise them on how to point your feet towards the jury when answering questions – your lawyer can tell you that for nothing. But we certainly wouldn’t tell a client to wear “a blouse with a bit of embellishment”, “not too low cut”.

Our problem is that in portraying these inaccuracies in how criminal trials operate on a day to day basis, TV shows are feeding into the current media hysteria about, in particular, trials involving sexual allegations. And this hysteria has culminated this week in what could well be described as dangerous attempts by MPs and special interest groups to interfere in the trial process and the discretion of judges (see link to the story here).

Yes, even more so than usual. Add a sprinkling of ill-informed MPs into the mix of criminal procedure, and I start feeling like the old lady who’s sitting next to Ted Stryker on the doomed flight in Airplane!.


(Funnily enough, I do have some shoes like that. Though skin-tone stockings is a no-n0.)

So exactly what was it about the scenes in Apple Tree Yard which had me and my colleagues getting all hot under the collarette? After all, rank stupidity in the depiction of criminal law is nothing new on TV. Judge John Deed (2001-07) used to break every rule in the book. (Would a judge seriously preside over a trial in which his erstwhile paramour was representing one of the parties? Or where his daughter was appearing for another Defendant? Or have an affair with the high-profile wife of the eminent Man from the Ministry? Um, probably not.)

Crown Court (1972-84) gave it a good bash, Silk (2011-14) was enjoyable fiction (there’s no bloke at the Bar who looks even remotely like Rupert Penry-Jones – trust me, I’ve checked), though North Square (2000) was better, and I used to have a clerk exactly like that one. Rumpole Of The Bailey (1975-92) is how most judges probably like to remember it, Kavanagh QC (1995-2001) is how most silks like to remember it, This Life (1996-97) is what middle aged hacks like me aspired to, and Law And Order: UK (2009-14) is what the CPS would aspire to if they had the time.

Of the less well remembered outings, Chambers (2000-01) was always my favourite. There’s a John Fuller-Carp in just about every Chambers you could name, and yes, we’ve all had the bet before a closing speech as to whether you can successfully insert the names of characters in EastEnders/football teams/lyrics to Clash songs without the jury noticing.

But none of these are actually procedurally accurate. Just like Judge Rinder ISN’T ACTUALLY A REAL JUDGE.

In Apple Tree Yard, the rot started setting in during episode 3, when Dr Carmichael was shown being arrested in a restaurant during a family dinner. Quite how the police would have known she was there, still less bother to traipse over there to arrest her, is preposterous. These days, she’d probably just have been invited down to the police station for a voluntary interview, even on a murder, unless she’d been arrested at the scene. And by the way, Holloway Prison’s been closed for six months.

Then there’s the question of bail. It’s unusual, to say the least, to be on bail for murder. Still less that you’d be paying £100k security as part of it. A surety of that amount, yes – usually taken against someone’s house – but the idea of the court accepting that sort of cash into its accounts is seriously unlikely. And as for Yvonne’s apparent puzzlement when she’s arrested for breaching her bail after being in phone contact with Costley, well, what do you expect, love? You were beyond lucky to get bail in the first place so it’s no good mithering if you’ve been caught breaching one of its conditions!

This also begs the question that if the police have found out about the phone Costley’s apparently got hold of in prison, then how didn’t they apparently know about their pre-murder phone contact and therefore their affair? Ridiculous.

It was the portrayal of Costley’s QC, however, which really had me reaching for the smelling salts. Supposedly she was new, so let’s hope that was why she didn’t appear to know the rules of evidence. They must be letting anyone take silk these days?

You’d be laughed out of the robing room if you kept turning full face to the jury every time you thought you’d landed a blow with some cunning cross-examination point. The silly bint was practically winking at them and shouting “A-HA!”. And anyone, anyone, in silk who stood at the lectern in the classic ‘teapot’ stance (one hand on the hip to match the sardonic curl of the lip) would instantly find themselves the target of daily derision in the Bailey Bar Mess.


But on a serious note, the cross-examination of Costley’s police colleague Sergeant Johns – in which his QC almost shrieked her questions about what appeared to be a frottage frolic between the pair in the local boozer, as the hapless officer crumpled before her – was so unrealistic as to be embarrassing. Yet this stuff feeds into the current Parliamentary and media narrative in which the questioning of complainants or Prosecution witnesses about anything at all to do with sex evokes hysterical howling and leads to the sort of ill-educated woolly law-making which Saville-Roberts is now promoting.

Along with Vera Baird, who (I’ve said this before and I’ll say it again) ought to know better.

The questioning of Johns of course would not have required any s41 application, as she wasn’t the complainant in relation to an alleged sexual offence but a peripheral witness in a murder trial. Which is why in real life no judge would have allowed the line of questioning pursued by Costley’s silk, since it appeared to have no real relevance to his defence of diminished responsibility. In reality, both the Learned Judge and Prosecution counsel would have been interrupting Defence Bint QC almost immediately, as irrelevant material is, of course, inadmissible.

And yes, you could expect to be reported to the Bar Standards Board if you asked a witness if they were “being felt up by a colleague” or if this was unusual. This is not how trials are conducted.

Neither would any self-respecting Defence team have put a so-called ‘expert’ into the witness box whose only published thesis was a PhD which was not supported by any empirical evidence, FFS! This was rightly rubbished in the final episode by the Prosecution silk (yes, they do often purse their lips like that, though), and almost certainly wouldn’t have been admitted as evidence in the first place as the Crown would have had it argued out on a voir dire! Still, I suppose that wouldn’t make very good telly.

And no, DBQC wouldn’t have got away with leading her own witness so outrageously. Opposing counsel would have been on their pins in an instant.

'Objection! The Prosecution is attempting to lead the witness!'

A programme like this would have had legal advisors’ input, so I’m assuming that – like so many clients – advice as to an accurate representation of real criminal procedure was provided, but the clients decided to ignore it anyway. Most unwise.

The bit where we got a lecture about “rape victims” and their supposed treatment in trials was when Yvonne was shown talking to herself in court: “Often these cases are conducted as if the victim has committed a crime” was the cliché trotted out. In my experience, those cases are increasingly conducted as if the complainant has to automatically be believed and as if the presumption of innocence has been abolished. And I conduct rape trials on an almost weekly basis. Had the writer(s) actually observed such a trial in the recent past? In fact, the real point here was that Yvonne was not the complainant in a sex case, but the defendant in a murder case – so again, s41 wouldn’t apply and anything she raised in her defence would be fair game when it comes to cross-examination.

So long, of course, as such cross-examination was limited to relevant matters. I’m not really sure how Costley’s QC could justify asking whether the good Dr was wearing knickers or not on the night of the faculty party, or why whether George Selway put his hand on her knee was relevant, or why the judge didn’t intervene. Come to think of it, I’m not entirely clear how the silk wasn’t in what we lawyers call “professional difficulties” when, during the defence case, Costley suddenly changed his defence tack and wanted to introduce details of the affair when they had both denied having one up to that point.

Still, I’m not a silk, so what do I know?

What I do know, though, is that such rank misrepresentations about how criminal trials are actually conducted is massively unhelpful for everyone involved in the criminal justice system.

Now, I’m not going to go into detail about Liz Saville-Roberts and her knee-jerk Private Members’ Bill about s41 of the Youth Justice & Criminal Evidence Act 1999 here. I don’t have to, as fellow blogger The Secret Barrister has already eviscerated that piece of Parliamentary flummery today (see link to the blog here). But what I will say is that inaccurate, hysteria-inducing media portrayals about how criminal trials actually work in practice are spectacularly depressing to those of us practising at the coalface. Since it leads to ill-informed proposals like the one put forward by Saville-Roberts and enthusiastically embraced by various special interest groups, most if not all of whom appear to take the view that complainants in sex cases should automatically be believed because they are complainants in sex cases.

And before you know it, we will be in a position where cross-examination of such complainants is completely prohibited, presumably because it might upset them. We may be just about there already.

I don’t need to tell anyone reading this how dangerous a slippery slope that would plunge fair trials down onto. Unfortunately we are already teetering at the top of the black run, with all the strictures placed on the examination of witnesses by the Advocates’ Gateway which has been so enthusiastically embraced by far too many lawyers and judges. Only a few weeks ago, a judge conducting a rape trial in which I was defending suggested to myself and Prosecution counsel that the complainant should have had an intermediary. When it was pointed out by us both that this was entirely unnecessary since the complainant was an adult with no learning disability nor any issues with communication at all, the judge suggested that she was entitled to one because she was a rape complainant. WTAF?

I wonder how long it will be before we actually reach the position where NO ONE IS ALLOWED TO CROSS-EXAMINE ANY COMPLAINANT IN ANY CASE, in case it hurts their feelings. You really wouldn’t give it credence.

So next time you’re sipping cocoa in front of a TV courtroom drama, add a large teaspoon of credulity to it. If Defence Bint QC screeches at a witness, “YOU’VE LIED, HAVEN’T YOU?! WELL, HAVEN’T YOU?!?!”, remember that any defence counsel worth their salt would not put their case in this way, since to do so would inevitably alienate the jury, which is the last thing you want to be doing. But we may, of course, have to politely suggest that a witness is lying, if that is actually our client’s case.

And no, we definitely don’t ‘do’ gavels, either. Yes, that’s right. WE DEFINITELY DON’T DO GAVELS.


Truss In Boots: An MOJ Panto!

Starring: Liz Truss as Truss In Boots, Lord McNally as Baron Hardup, Shailesh Vara as Baron Cockup, Sam Gyimah as Baron Ballsup, Michael Gove as Baron Feckup, Theresa May as the Wicked Queen, Chris Grayling as Widow Twankey…
and Crimbarrister as Buttons!

It’s the laugh-a-minute, weep-a-minute capers of the hapless MOJ crew
as they trample over the Rule of Law!

(*Any resemblance to the actual story of Puss In Boots is entirely coincidental…)


(Pic by Wildy)

Once upon a time, there was a poor first Justice Minister who had a gaggle of junior Ministers, all of whom were as au fait with law, and the rule of law, as each other. Which was minimally, since they were only at the Ministry of Justice in order to further their careers.

When the first Justice Minister was moved from his post, eventually being shunted to the Transport Ministry (which the Wicked Queen had decided now needed to be f**ked up even more than the Justice Ministry, in order to teach the unions, and those pesky commuters, a lesson they wouldn’t forget), the next Justice Minister didn’t last long. He made the fatal mistake of thinking he could take over the Kingdom, rather than just the Justice Ministry.

The Wicked Queen decided he had to go. Besides, as everyone knew, the Justice Ministry was the least important of all the Government departments, bearing in mind it only dealt with minor matters such as the rule of law, the liberty of the subject, the security of the prisons, the efficacy of the rehabilitation systems and the concept of open justice. Inter alia.

All of which matters were very inconvenient for the Wicked Queen, as she was determined that the justice system, and all those nasty lawyers working in it, should be destroyed.

“They don’t like it up ’em!”

The Wicked Queen decided that she would have to offer the job of Justice Minister to the office cat. It was surely just a stroke of bad luck that the office cat wasn’t available.

The Wicked Queen wept salty tears of rage. “I had nothing but the cat! I cannot have my plan foiled, but without a totally inept and clueless Justice Minister, my plan to dismantle the justice system of the Kingdom will be foiled!”

Hearing this, an irritating whine began to sound in the Wicked Queen’s ear. “Cheese! Disgrace! Gissa job! Give me a ministerial car and an ermine dressing gown and see what I can do!” It was Truss In Boots, the famously jelly-headed Think Tanker who’d been such a resounding failure at the Department for the Environment, Food & Rural Affairs with her own brand of fromagery.

So the Wicked Queen was forced to offer the position to Truss In Boots instead. (So named because wherever she went, she was always putting the boot in, then putting her foot in her mouth afterwards.) She gave Boots all that she asked for.

Boots was delighted to be given such a prestigious post, as she trilled vacuously throughout the Kingdom’s media. Bearing in mind her lack of talent, experience, judgment, common sense or actual knowledge of law, this promotion was beyond her wildest dreams. Or abilities.

“Oh no, it isn’t! Oh yes, it is!”

So Boots set off in the ministerial Jag, and was soon gathering quite a file of ministerial faux pas. She delivered a truly disastrous performance in front of the Justice Select Committee, amply demonstrating her supreme lack of command of her brief (see previous blog All Trussed Up With Nowhere To Go! here).

She failed spectacularly to perform her constitutional duty as Lord Chancellor to support the judiciary when they came under attack from the Kingdom’s right wing press (to one of which tomes she’d cunningly submitted an article in the very same week!).

She fumbled the ball completely in front of the Commons during Justice Questions, when she appeared to propose the barking mad suggestion that dogs could be put onto the Ministry’s payroll, in order to howl at drones when they were flown over prison walls in order to drop drugs down for those pesky prisoners.

And as for getting a handle on the Chokey Riots which were caused by chronic under-staffing due to her own department’s swingeing cuts, well, a total failure to get a grip was a breeze for the hapless Boots! She’d been taking lessons from the Widow Twankey, after all!


The Widow Twankey? (Pic by Wildy)

Boots presented her collection of failures to the Wicked Queen. “Your Majesty, these are my gifts to you. I have almost singlehandedly destroyed the reputation of our justice system, which was once revered and copied throughout all the realms! I have sought to ensure that our mainstream press feel able to personally attack judges for merely doing their jobs, knowing that the judges are constitutionally unable to respond! I have almost completed the wrecking of our prisons, probation and courts!”

The Wicked Queen cackled, thinking of how much money she would save without a functioning justice system to be funded. Not to mention avoiding all those inconvenient moments when the judges would tell her she couldn’t do something because it was against the law.

On her way back to the Justice Ministry, Boots passed by a court building where some poor legal aid lawyers were toiling in the heat. (The air conditioning had broken in 2015, and required a small, simple part costing but £10. However, due to one of the Government’s ludicrous contractual arrangements with a large multinational organisation, the only man in the Kingdom who could supply and fit the part would have to travel from a distant county and would charge the part at £250 plus labour, and the job couldn’t be done until 2018.) Boots commanded the lawyers to work even harder but for even less money, or she would ensure that anyone unqualified could practise in the courts. The lawyers were unimpressed and set up a picket line.

Unfortunately for Boots, the MOJ panto then lost the plot.

Usually the fairytale continues with the Puss doing Something Cunning in order to make his Master happy. However, as all the MOJ panto watchers know, Boots did not have the wherewithal to plan or execute anything cunning; all her chaos had been caused by hapless accident. So she carried on seeking to oppress the lawyers, dismantle the justice system and make herself look ridiculous.

But eventually, she went too far.

The judges she had failed to support, as according to her constitutional duty, turned on Boots. A succession of important decisions went against the MOJ, and then against the wider Government. The appearance of various senior MOJ bureaucrats in the New Year’s Honours list was met with widespread ridicule. Even the Wicked Queen began to see that Boots was a liability, since every time Boots spoke in public or in Parliament her unsuitability for any legal post was more and more apparent. It was painfully obvious that Boots was out of her depth.

“And I am unanimous in this!”

However, the Wicked Queen was not done yet. As if to troll the entire legal profession, she removed Boots, to leave her chirruping about cheese on the back benches in perpetuity. But now that the Kingdom’s transport system had been well and truly ruined, causing the Army to have to come in to run it, the Wicked Queen knew that there was only one thing she had to do to ensure the completion of the destruction of the justice system: she must reinstall Widow Twankey…

Let us hope that this story is a nightmare fiction, an invented panto symptomatic of the performance of the MOJ in 2016, and not the return of my fabled psychic powers, as showcased in my previous blog Crystal Balls! (see link here).

I predict that in 2017, the chaos in the MOJ will continue unabated!

(PS. For those of you who want to read the real Puss In Boots story, see link here.)


Don’t Put Your Daughter On The Stage, Mrs Worthington!

I’ve only just recovered from the last head/desk interfacing session, brought on as ever by whatever was the latest episode of craven stupidity from our Glorious Leaders. I’ve forgotten what it was now, there are so many. The bruises were healing nicely. And apart from anything else, I needed to indulge in some gainful employment, specifically Trial On Tour 7: The Croydon Facelift. I hadn’t had to resort to a blogging outburst for several weeks.

But like those Clapham omnibuses, on which the reasonable man of law is supposed to travel, you don’t get one for ages and then several come along at once. So it is with this week’s state of the justice system. I found myself once again turning up the volume of the stereo to 11, putting on my loudest, angriest hardcore punk (I can recommend any tracks by Black Flag for this), and thudding head to desk once more.

The first incident which brought this on was the speech by our current Master of the Rolls, Sir Terence Etherton, in the LawWorks Annual Pro Bono Awards Lecture 2016. The speech was delivered on 5.12.16 and you can read a full copy here.

Now I’m sure the Master of the Rolls is well meaning, not to mention adroit with the epée. But when he suggests that the civil courts should deliberately be turned into amateur hour, with unqualified and potentially unsuitable pretend ‘lawyers’ unleashed into court rooms to represent those who would otherwise be litigants in person, it just offers further proof to those of us out at the coalface that these days, common sense often seems to be jettisoned out of the nearest window for the sake of expediency by the upper echelons of the judiciary.

Yes, you read that right: the plan is to get random non-lawyers to actually exercise rights of audience in real cases in proper courts when COMPLETELY UNQUALIFIED TO DO SO. Simply because they’ve volunteered and are, well, there.

This radical and unhelpful proposal soon had me humming not so much any of my three-chord faves, but rather some verses of Noel Coward.

“Regarding yours, dear Mrs Worthington,
Of Wednesday the 23rd,
Although your baby may be,
Keen on a stage career,
How can I make it clear,
That this is not a good idea…”


(Our well-meaning Master of the Drolls (or, er, possibly not): pic by Wildy)

So what exactly is being talked about here? Well, the first warning clang comes in para 6 of the speech, when the operating system of what’s termed the OSC (that’s Online Solutions Court to you, but will no doubt soon be known as Online Shit Crock) is explained. Apparently many, if not most, of the decisions about the progress of a case through the OSC will be through “giving an active role to new case officers, most of whom will be legally trained and under the supervision of the judiciary”.

Let’s “unpack that”, to use the MOJ management speak vernacular. There is no explanation as to who these “new case officers” will be. Are these to be new appointments to the MOJ roster? Or are they those admin staff who currently work behind the scenes at the court centres? (Where usually you can’t even get anyone to answer the phone.)  Or ushers, perhaps? Would that be from the cohort of HMCTS court staff who’ve been violently culled over the last few years when court after court has been closed, maybe?

And how “legally trained” will they be? Done law A level? Read some Nutshells? Looked up a couple of things on Wikipedia? What is sure is that they won’t be qualified legal professionals, since if they were their services would come at a price commensurate with, well, properly qualified people. And you can bet your bottom dollar that such proper professional remuneration won’t be on the agenda of the MOJ. So if you’re tumbled into the new OSC system, just remember that.

Presumably such case officers will be under pressure to conform to whatever MOJ stats apply to the timing of such cases as well? There will be edicts to whizz cases through the system as quickly as possible, no doubt at the potential expense of them actually being conducted fairly and thoroughly, so they can be crossed off the list. There is likely to be pressure to settle placed on the parties so the file can be closed by the court. That might be called ‘conflict of interest’ by professional lawyers under their respective Codes of Conduct, but perhaps the case officers won’t be bound by a such a Code?

Apparently, according to para 7, for cases that don’t settle “case officers will help the parties identify relevant evidence” and “judges will be their own lawyers and research the legal issues applicable to the proceedings”. Does this sound like a complete dumbing down of the justice system to you, because it does to me? This sounds, in fact, like the beginnings of the introduction of an inquisitorial system into civil proceedings, by stealth and without any consultation. The one thing judges ought NOT to be doing is entering into the arena and providing legal advice to either party, whether with or without the conduit of a case officer – who may have some legal training, but equally may not. After all, the Master of the Rolls only said “most of them” would be legally trained, didn’t he?

“For her to hope,
Dear Mrs Worthington,
Is on the face of it absurd,
Her personality
Is not in reality
Inviting enough,
Exciting enough
For this particular sphere…”

The OSC system is apparently to deal with cases up to £25k in value, but what’s the betting that it won’t be long before there’s a suggestion that this figure should be increased? And before you know it, any civil case up to a six-figure value could be dealt with by the equivalent of an am-dram performance.

Now, none of this is new. But what did strike me and a number of other MOJ watchers was that the MoR went further, and has now proposed that the expansion of pro bono legal advice – and not only in behind-the-scenes litigation assistance (which is actually fairly commonplace in the civil sphere). Nope, what is suggested in para 26 is “increasing the availability of free legal representation in respect of some court proceedings”.

Yes, a member of the senior judiciary appears to actually be suggesting that rights of audience should be massively expanded, to enable the unqualified to actually stand up in court and represent the unwary and unsuspecting punter. Oooh, Mrs Worthington!

“Don’t put your daughter on the stage, Mrs Worthington,
Don’t put your daughter on the stage,
The profession is overcrowded
And the struggle’s pretty tough
And admitting the fact
She’s burning to act,
That isn’t quite enough…”

Para 28 spells it out. This means apparently that “graduates – who have undergone academic and vocational training and who are under the supervision of qualified lawyers under the expanded advice scheme” but, crucially, who haven’t completed full training – would be permitted to carry out activities which you’d normally expect to have to be fully qualified in order to conduct.

That is, having completed a training contract or a pupillage. For which, no doubt, you have had to toil for perhaps seven years and undergo gruelling and highly competitive selection rounds in order to obtain. Which must be making those people at the civil Bar, for example, wonder why they bothered to spend all that time and money fighting to get through qualifying at all.

Insultingly, the proposition seems to be that this mess should be facilitated by members of the actual profession themselves. How? By lending, amongst other things, our professional indemnity insurance to cover these unqualified representatives! Because it’s we qualified lawyers who would be expected to offer the necessary supervision, via volunteering at the various university advice projects or pro bono centres through which the Powers That Be foresee these schemes operating.

No doubt you have now spotted the flaw in the scheme, which will be that many Chambers and firms – who have to fund training places and pupillages out of their own pockets (unlike, say, the medical profession, where training places are funded by Government) – will start to wonder what the point of doing that is, if any Tom, Dick and Harriet who has done a law course but never qualified professionally can exercise rights of audience any old how and any old where.

Indeed, the whole idea appears to be the undermining of competitive professional qualification routes, since at para 30 it’s openly suggested that by being able to exercise rights of audience, the unqualified “would gain entry into practice”. Almost unbelievably, the MoR appears to be advocating an increase in the numbers of qualified lawyers practising. Hang on, aren’t we always being told that there’s an over-supply of lawyers already? FFS!

Of course, this being the MOJ, it will not be a million miles away that suddenly some over-keen civil servant (who’s never set foot in a court room but has seen a couple of episodes of Judge John Deed) will start to think to themselves that if this sort of system can be imposed on the civil courts, why can’t this sorry scheme also be brought to bear on the criminal sphere?

After all, what difference could it make? Just because the Defendant is at risk of losing his liberty, rather than a wedge of cash? Well, it can’t be that hard? Can it?

The idea that this might come to pass in our criminal courts is, frankly, both depressing and terrifying. But believe me, that doesn’t mean that the MOJ aren’t considering it. FFS.

“Don’t put your daughter on the stage, Mrs Worthington,
Don’t put your daughter on the stage.
She’s a bit of an ugly duckling
You must honestly confess,
And the width of her seat
Would surely defeat
Her chances of success,
It’s a loud voice, and though it’s not exactly flat,
She’ll need a little more than that
To earn a living wage.
On my knees, Mrs Worthington,
Please, Mrs Worthington,
Don’t put your daughter on the stage…”

I suppose we should expect this sort of dangerous, misguided thinking to have permeated down through the MOJ to the senior judiciary, when we have a Lord Chancellor who is so patently unsuited for, and unqualified for, her own role.

Only a day after the Master of the Rolls’ own speech, Liz Truss (who sounds increasingly like some sort of rhyming slang) was giving Parliament the benefit of her own brand of ‘wisdom’ when she addressed the House about the current prisons crisis.

As the Independent observed here, even her own colleague, the Prisons Minister Sam Gyimah, was “unable to suppress a smirk” when she suggested that the solution to the problem of drones dropping drugs into prison yards for felons was… employing a pack of canines to bark at the flying saucers to put them off! I shit you not!


The Mirror captured the glorious moment of unintended comedy (above).

I’ve watched the video a number of times now. I can’t get my head around it. This creature has the future of our justice system in her hot little hands, yet her own colleagues can’t seem to take her seriously. For what reason has she been promoted so vastly in excess of her clearly limited talents, to have made it to the position where she was asked to don the ermine jacket? Does she really look in the mirror each morning and say to herself, “You’ve got this, Liz!”?

She’s like those children you used to hate when you were at primary school, who always wanted the lead role in the school play, even though they couldn’t sing a note in tune and were incapable of acting for toffee. But who were so blissfully unaware of their own shortcomings that they’d stand mid stage, proudly declaiming all their lines in the wrong order, oblivious to the giggles from the audience when they royally f**ked the scene up.

Looking at that barking mad dogs-against-drones suggestion again, you can only marvel at the effrontery of her advisors. I mean, someone actually gave her those lines and told her it would be a good idea to spout all this nonsense! In public! On Parliament TV! Was it done for some sort of bet?

Gyimah’s reaction was nothing to the astonished guffaws from criminal justice professionals, mind. Every time Truss opens her mouth about any topic except cheese – be it the courts, the prisons, probation, etc etc – she shows herself to be so manifestly not up to the job that you wonder just how far, and how fast, she can keep digging the hole. It’s just like Noel Coward said.

“Don’t put your daughter on the stage, Mrs Worthington,
Don’t put your daughter on the stage,
Though they said at the school of acting
She was lovely as Peer Gynt,
I’m afraid on the whole
An ingénue role
Would emphasize her squint,
She’s a big girl, and though her teeth are fairly good
She’s not the type I ever would
Be eager to engage,
No more buts, Mrs Worthington,
NUTS, Mrs Worthington,
Don’t put your daughter on the stage…”


You can hear the full Noel Coward ditty here. Meanwhile, I have to shuffle off to prepare another trial, which thankfully, I am manifestly qualified to conduct. But first, I’ve just got time for a little bit more head banging before I go…