Courting Disaster!

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

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

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

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

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

Bollocks.

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

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

Yes, HMCTS even have their own YouTube propaganda channel.

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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.

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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)

 

 

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I’m (Not) Free!

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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)

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

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

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

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

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

Swings and roundabouts, my arse.

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(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.

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(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.

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(Main pic by Wildy)

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

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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.

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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.

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

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

Objection! Sustained!

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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!.

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(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.

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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…)

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(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!

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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…”

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(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!

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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…

 

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Whoops, There Goes My Justice System!

Do you ever have those days where you feel as if you’re swimming against a roaring tide? In a sea of effluent? And you’ve long since lost sight of the shore? And you’ve forgotten to put on your swimming costume? And there isn’t a lifebelt in sight?

Or have that dream where some unseen hand has pulled down your trousers in public, leaving you standing there with your kecks about your ankles, wondering what went wrong?

Over the past few weeks, I’ll wager that this is the feeling of most criminal lawyers while we watch, aghast, as various media, MPs and special interest groups appear to conspire to gradually denude our criminal justice system of any shred of dignity, logic, fairness or due process. It’s like The Powers That Be have decided to move the criminal justice system out of the court room and into a theatre in which a Brian Rix farce is playing in perpetuity. Where, of course, all its clothes fall off.

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(Justice denied, justice denuded: Pic by Wildy, genius by Phillips and Rix)

Now, I’ve got a confession to make.

No, not like the ones I used to knock out when I worked at a Soho based magazine empire in the 1980s. (And no, the Readers’ Letters weren’t real, they were made up by me and a girl called Jennie who lived in Cheam Village. And yes, I did used to include people I knew in the stories, particularly men who had crossed me, who would be portrayed in highly unflattering terms.)

The sort of confession where I admit something that will make a number of people reading this blog react with a loud “meh”. I’m a sex case defence barrister.

In the current media climate, this is not a popular occupation. Defendants in sex trials, and their counsel, have become the subject of a cacophony of caterwauling, and the protest from certain quarters has reached new levels of shrill in the past couple of weeks. Since the Ched Evans re-trial result, in fact.

Now, I’m not going to dissect those verdicts or the specific kerfuffle around the use of s41 of the Youth Justice & Criminal Evidence Act 1999 in that case. Far greater brains than me have done this already – in particular The Secret Barrister, aka @BarristerSecret, whose blogs on the topic you can find here and here, and Matthew Scott, aka @Barristerblog, whose article for the Telegraph you can find here. As both of these commentators point out, much of the baying and screeching has come from people who really ought to know better. And Vera Baird.

Still, all those MPs, and Vera Baird, have got names to make for themselves and electoral agendas to push, right? Unfortunately, those agendas now appear to be getting rolled out with the help of judges, academics and the MOJ, like a monstrous cheese being propelled down Cooper’s Hill.

A fair trial is something which we all take for granted. Especially any MPs, if they find themselves up before the beak. Oh yes, they’re the first ones to be lawyering up and extolling the virtues of our jury system and open justice. If you or any of your family or friends are unfortunate enough to be accused of a criminal offence, think about that.

At the moment, if the State brings a criminal prosecution against you, the burden of proving the case is on them. And unless and until the case against you is proved, you are innocent until proven guilty.

I say at the moment because the way some of the current squawkers have been banging on, some of you out there would be forgiven for thinking that the presumption of innocence no longer exists in the criminal courts. And that’s just when you listen to the pronouncements of senior judges, let alone MPs without the first clue about the criminal justice system or the law.

In fact, the situation is getting so dire that Guilty Until Proven Innocent is the theme of the forthcoming Criminal Law Solicitors’ Association conference: see link here. It’s something the Criminal Bar Association and Bar Council could well do with being more vocal about too.

Despite their paramount importance, the presumption of innocence and that other fundamental aspect of a criminal trial – that an accused person is entitled to call their accuser into court to have the accusation substantiated and questioned on oath in front of the jury – are being eroded by stealth. Lady Justice is not only being blindfolded, but divested of her trousers, bound, gagged and shoved into the boot of the squawking commentators’ Mini Metro.

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When I read the stories about the proposed s228C of the new Policing & Crime Bill which is currently being debated in the House of Lords (see one of the reports here), I thought I had entered some sort of parallel universe, or was watching a modern day TV adaptation of The Trial by Franz Kakfa. The idea that politicians are actually debating whether to put this section into force defies logic and common sense, never mind completely removing an accused person’s ability to properly defend themselves or to receive a fair trial.

Just in case you’d missed it, the proposed s228C reads as follows:

‘Victims and witnesses of serious crime: disclosure

(1) A police force or police officer may not disclose the identity of a victim or witness of a serious sexual or violent offence to the person accused of the offence, if it is reasonable to assume that such a disclosure would put the victim or witness at risk of further harm.

(2) In determining whether disclosure is reasonable for the purposes of subsection (1), a police force or police officer must take into account the –

(a) previous convictions,

(b) mental health, and

(c) access to new technology or social media,

of the person accused of the offence.

(3) This section applies whether or not the person accused of the offence has been charged with the offence.’

Blogger @Defencebrief has already published an excellent analysis of the proposed law here. But just think about that for a moment.

According to that Guardian report I’ve linked to above, the proposed clause would apply to “stranger rape cases where there is currently no legislation on how and when a victim’s name is given to the accused by the police”. However, the clause itself does not appear to be in any way limited to stranger rape allegations. It simply proposes the withholding of the identity of victims or witnesses to ‘a serious sexual or violent offence’.

On the face of it, then, not limited to alleged victims but also not limited to alleged rapes of/by strangers. So who would be deciding whether a sexual or violent offence was ‘serious’? The police? The CPS? An independent body? Would this be the same ‘serious’ which applies in, say, the Criminal Justice Act 2003 s224, which defines specified offences and serious specified offences? A ‘serious specified offence’ being one which is (a) specified in Part 1 of Schedule 15 of the 2003 Act and (b) punishable by either life imprisonment or imprisonment for a determinate period of 10 years or more?

Part 1 Schedule 15 sets out what are ‘specified sexual and violent offences’. There is a massive list of these and a majority would, it seems to me, potentially be serious specified offences based on the available maximum sentences. So the position for an accused person would potentially be considerably worse than that suggested by the Guardian article.

Is this what the House of Lords are talking about? Or is there to be some other definition of what is ‘serious’? And who is going to decide what it is? And at what point in the proceedings? And if you’re pulled in for questioning having been accused by an anonymous person, how on earth can you answer questions? What if the position is that the accuser claims not to know you, but in fact there is some prior direct or indirect connection between you which might provide the motive for a false allegation, or be able to give you the ability to prepare your defence?

The example given by the Guardian article is a bad one. Genuine stranger rapes comprise a very small number of sexual allegations made, and in the case highlighted the accused had been caught in the act by an off-duty police officer. I’ve only been instructed in one such case in my entire career. In most cases there is some sort of prior link between the accused and the accuser, and that is an important factor for the jury to consider in weighing up the evidence given by both sides. So at what point are you supposed to learn of the identity of your accuser? Once you’ve been charged? Once you’ve instructed defence lawyers? At the door of the court on the morning your trial is due to start? Never?

Remember, the actual proposal is that this clause would not only apply to rape allegations but to countless other types of crime too. And not just to accusers but to witnesses as well? So would you (or a jury) ever find out that in fact an alleged witness was closely connected to either your accuser or to you? And in what circumstances?

And as @Defencebrief rightly points out, the proposed prohibition doesn’t appear to apply to the CPS. So are the CPS going to be entitled to disclose the identity of the accused to the Defence during the trial process, or before? How will they comply with their duty of disclosure in those circumstances? And is there actually any person out there who doesn’t have the potential to access new technology or social media? It’s a farce in the making.

My head hurts.

As if this wasn’t bad enough, we’ve had a number of other recent ill-conceived initiatives which have led the CJS to this parlous state. I’ve banged on about the Better Case Management debacle ad nauseam – see various of my previous blogs for that – but one of the latest of these is the scheme for pre-recorded cross-examination for ‘vulnerable victims and witnesses’.

This scheme was introduced under s28 of the Youth Justice & Criminal Evidence Act 1999, though not implemented in even pilot form until recently. It involves the cross-examination of the most important witness in what has usually turned out to be a sexual allegation – the complainant – being recorded vastly in advance of the rest of the trial. The aim of this is to avoid the witness actually having to attend the trial to give evidence.

As someone who has actually conducted a trial under the pilot scheme (involving allegations of sexual activity with a child), I’m well placed to comment on the efficacy and suitability of the provisions. In my own case, the pre-recording of the cross-examination of the complainant, who was by then aged 16, took place nine months before the trial actually kicked off. The recording itself appeared stilted and rehearsed, and the jury in my trial didn’t appear to think much of the evidence as they acquitted in under an hour.

A month or so ago, back came the announcement that the pilot scheme is now to be rolled out nationally (see link to BBC story here). Naturally, this being the MOJ, criminal lawyers at the coalface were surprised to find that there had been what passed for some actual Government evaluation of the scheme: the link to this is here. And guess what? Apparently the scheme was a resounding success!

Well, tell that to Defendants whose trials were conducted on this experimental basis. Tell that to the barristers who have had to conduct their cases with one hand tied behind their backs. And I include Prosecution counsel in this.

Unfortunately, when the success or otherwise of the pilot scheme was being evaluated, no one from the Government or the judiciary or any of the authorities foisting the s28 provisions onto the  system actually bothered to ask for the views of any barristers who have conducted s28 trials. Except three, apparently. Obviously those of us who have to operate the system (from either Prosecution or Defence side) aren’t considered important to the CJS.

The evaluation document is a masterclass in seeing only what you want to see. We are told that one of the requirements for s28 trials was an ‘expedited timetable’, which meant that all disclosure – especially materials which the Prosecution have but which they don’t want to rely on as they don’t help the Prosecution case – needed to be completed before the cross-examination is recorded. In my case, this didn’t happen. Anyone working in the system will tell you that particularly when what is called third party disclosure is in issue (materials from places like social services or mental health authorities, for example), it can take months for such materials to be obtained and handed over. In sex allegations such materials can be vitally important for cross-examination, but if you’re only receiving these after the recording has taken place, you’re not going to able to cross-examine the complainant about anything relevant and admissible in them, are you?

Apparently, there were 390 cases evaluated in the pilot scheme. So that should mean up to 780 barristers or solicitor advocates involved, right? So you’d expect the evaluation scheme to speak to pretty well all of these. As I say, apparently, it spoke to three. That tells you everything you need to know about what’s going on here. See link to the blog from Transform Justice here for further info.

Since the evaluation was published, there have been some truly frightening further proposals doing the rounds about how cases involving ‘vulnerable witnesses’ should be conducted. One of these can be seen in Nigel Pascoe QC’s blog (link here). He’s another person who clearly ought to know better.

He suggests that evidence should be recorded at a location which is not a court or a police station. Fair enough, if a suitable location with the right degree of solemnity that a court provides can be found. Then he opines that any cross-examination should be conducted not by the Defendant’s counsel but by an approved ‘mediator’. I’m afraid that’s where we part company, since why shouldn’t Defendant’s case be put in whatever format by his counsel of choice?

Now perhaps we agree that young children, those under 10, should be kept away from court proceedings. Perhaps pre-recorded cross-examination is the right way forward for such witnesses. Trouble is that Nigel – and others – don’t think that measures such as this should be limited to keeping such young witnesses out of the court room or building. It’s suggested that such measures should also extend to adult ‘vulnerable witnesses’. This appears to translate as anyone who makes an allegation of a sexual nature or indeed a good many other offences, adult or child. Which means that anyone could make an allegation about anything safe in the knowledge that they would never have to go to a court to substantiate it, whether it was recorded in advance of the trial or at trial, if they could say they were ‘vulnerable’. And the idea appears to be that certain allegations automatically render the complainant ‘vulnerable’, no matter what their personal characteristics.

Pascoe QC argues that would provide “the greatest possible protection against further traumatic damage”. Which is rather prejudging the issue of whether an offence has actually taken place, isn’t it? Which is usually the reason why there’s a trial taking place at all, isn’t it? Which is supposed to be the province of the jury, isn’t it? Which is one of the reasons why it’s so important for the jury to be able to look into the whites of the eyes of the accuser to see how they react when being cross-examined, isn’t it? Isn’t it?

So where does this leave the right for a Defendant to have his/her accuser come to court to substantiate their allegation? It leaves it sinking in the mire, disappearing out of sight, with only a few bubbles rising to the surface to indicate that the right to a fair trial was ever even there.

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Like I said, swimming against the tide of effluent spewed out by those who really should know better. Without a life belt. About to finally go under.

All Trussed Up With Nowhere To Go!

Why can’t we be more like Canada?

When Justin Trudeau, the new Canadian Prime Minister (who, let’s face it, looks like he might have actually listened to some music that was made after 1870, which is a good start), introduced his new Cabinet back in November 2015, the contrast could not have been more stark between them and the lumpen, out-of-touch shower who were thrust upon Britain by Theresa May post the Brexit vote.

The major difference appears to be that Trudeau is not only willing to appoint 50% women but, perhaps more importantly, to appoint Ministers who actually have some practical and/or professional experience directly relevant to their ministerial portfolio. (See link to Guardian report here.) He’s got – gasp! – a Minister of Health, Jane Philpott, who is a doctor. A Minister of Transport, Marc Garneau, who is a retired astronaut. A Minister of National Defence, Harjit Sajjan, who is a decorated military veteran of the British Columbia Regiment and former Vancouver police officer to boot. Ministers who you might expect not only to have some actual knowledge of the area their Ministry covers, but also to have to some genuine interest in it and commitment to it as well.

So as members of the Bar took in the news that May had appointed Liz Truss as Justice Minister and Lord Chancellor, we realised that where Canada had been given Jody Wilson-Raybauld – who worked as a provincial Crown prosecutor in Vancouver and also has years of experience developing financial administrative law in Canada before her appointment – we had been lumbered with a woman whose most famous, and most toe-curling, public pronouncement had been a party conference speech on the topic of cheese. See the link here if you don’t believe me: it’s extraordinary.

So on 21.7.16 Liz Truss was sworn in, to general astonishment and perturbation from just about every lawyer I’ve come across. At that time, there were various senior people at the criminal Bar who suggested that we give the woman a chance. Let her show that she was capable of getting on top of her brief and knowing her onions. From her cheese.

The rest of us down here in the rabble feared that the appointment of the MP for South West Norfolk heralded a new era of doom for the justice system, a return to the bad old Grayling days where criminal lawyers were routinely spun as fat cats in the media as the full horror of having a Lord Chancellor who neither knew nor cared about the rule of law or the operation of the justice system took effect.

Probably we had been lulled into a false sense of security with the appointment of Michael Gove. There at least was someone who appeared to have a genuine appreciation of the importance of the justice system, even if he had no direct experience of working within it.

So it was with bated breath that I awaited Truss’s first appearance in front of the Justice Select Committee, an event which finally took place on 7.9.16 (see the link to the JSC session on Parliament TV here). Unfortunately, having viewed the session I can report no allaying of our fears. Because it appears that either she hasn’t got to grips with the department or she has no interest in matters of law or justice. Liz Truss had, well, pretty much nothing at all to say.

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(Pic by Shutterstock)

It wasn’t an auspicious start when Truss revealed that she’d apparently spent two years on the JSC previously. Who knew? I certainly didn’t detect that any specialist knowledge had rubbed off on her, as she nervously and tentatively tiptoed around the big topics that the Committee members naturally expected her to be able to deal with. After all, she’s now been in post for six weeks, so she’d have at least been expected to read the papers. Us barristers often have to take a trial overnight, never mind have six weeks to prepare.

Truss began by thanking the Chair Bob Neill (Conservative, Bromley & Chislehurst) for giving her the opportunity to set out her objectives. Bob looked all ears, but the trouble was that over the next 90 minutes, the new Lord Chancellor failed to set out anything except for her own lack of expertise and interest. Even worse, throughout her dismal performance, she appeared to be sporting a unpleasant permanent smirk, no doubt contemplating all those fat cat lawyer types that she’s planning on skewering on the Ministerial barbecue, Grayling-style.

Truss has, she told the Committee, three priorities. The first, she pontificated, is “making sure our prisons are places of safety and reform”. So it was rather unfortunate that she was soon telling the assembled throng that she was not committing to any specific pieces of legislation at this stage. “But I will be setting out my plans in due course.”

Bob Neill’s ‘astonished face’ suggested he was taken aback to hear that, due the fact that the reform of prisons – in the form of the proposed Prisons and Courts Reform Bill – was the centrepiece of the Queen’s Speech in 2016. “Are we not going to get one?” queries Neill.

Truss’s chin quivered. She smirked vacantly. “As I said, I’ll be laying out my plans in due course.” Once she’s found them, obviously.

Apparently, the second priority for Truss and her civil servants is “looking at the overall justice system and making sure it works for everyone”. Well, I’d venture to suggest that making it work for ANYONE might be a good start. How about cutting out all the wasted time spent waiting in Crown Courts for the video link/wifi/digital case systems to actually fire up, for starters?

And the third priority is (not surprisingly) the Bill of Rights. About which probably the less said, the better.

So, back to prison reform. Neill soon cuts to the chase. How, in her unprotected department, which has already endured huge cuts at the Treasury’s behest, is all this going to work? After all, doesn’t the bulk of the MOJ’s spend go on prisons?

Truss warbles that apparently £1.3billion has been secured in Treasury funds for new builds. And as for the rest, she wants to look at what the Think Tanks are saying.

Yikes! Truss is the former deputy director of the Think Tank Reform, a right wing microcosm of hot air babble whose previous pronouncements have included the idea that the NHS should be run like Tesco (see link here). Just check out the W@*k Tank’s Janet and John guide to the ‘reform’ of public services here. It is enough to make Satan weep warm, salty tears.

Truss then wibbles about “reducing the silos” in the department and looking at the way “people flow through the system”, all the time glancing down at her papers, though she seems to have remarkably few of these. The camera pans around to an angle behind her to shoot from above, revealing the somewhat sceptical faces of various Committee members and the fact that she is wearing a spectacularly ill-fitting bra.

There is a lot of talk about “how we look at the system overall”, but no meat on the bones. She’s still talking a lot but saying nothing. She looks like a rabbit in the headlights when Alex Chalk (Conservative, Cheltenham) asks whether, with the current statutory frameworks, this has led to too many or too few people in our prisons?

Truss sort of purses her lips but it ends up in another nervous semi-smirk. I sort of know that feeling, as I was once prosecuted into the ground myself by Chalk at Southwark Crown Court. And we were only on a mention.

“Of course,” Truss garbles, “we live in a democracy…” (Smirk) “What I’m interested in is outcomes!” When she says that, like a small child who’s just done its first poo on the potty, she looks inordinately pleased. No one else is, though. How can she still be saying absolutely nothing at all about how key issues such as the funding of the justice system, the diminution in access that’s developed over the past six years, the fact that the prisons are full to bursting and rank with drugs and violence will be approached? Except that we’re interested in outcomes, natch.

Neill is back on the thorny topic of funding. He reminds Truss again that the MOJ has taken a bigger hit in terms of cuts than any other department: the pips have been squeezed so far, there’s nothing left that can be squeezed out. Is she prepared to go to the Chancellor and ask for more money?

Truss probably thinks she’s pulling her ‘considered face’, when she actually looks as if she’s sucking a lemon. “I think the important thing is that we look at the evidence” – we barristers can give you evidence, the system’s been cut to buggery and it’s fucked – “and we’ll put together a plan, the details of which I will announce shortly.” She’s had six weeks to prepare something more than this, and her civil servants have had years – is this the best she can come up with?

Neill isn’t giving up, though. What about the Lord Chancellor’s role in upholding the independence of the judiciary, he queries, not unreasonably? Is there any threat to this?

Truss (‘serious face’): “We need to be vigilant to watch out for threats to the rule of law and the independence of the judiciary…”

Which would be funny if it wasn’t so tragic, since the last time I checked the biggest threat to the rule of law was the MOJ itself, cutting services here, driving hard-working lawyers out of the profession there, closing local courts all over the shop.

Dr Rupa Huq (Labour, Ealing Central & Acton) then decides to get clever and comes up with some figures. That’s actual evidence, to you and me. What about the plummeting number of employment tribunal cases – down from 724,243 to 258,460, a 70% reduction in a year? Doesn’t this look like a denial of justice to those who can’t afford to pay?

No wonder Truss is nervously sipping her water. She blathers for a bit, then returns to a familiar mantra. “We’re investing in a better court system!  Victims can testify remotely! Being able to do things online, like we do our banking or accessing health services is A Good Idea!” Do we have a Justice Secretary who seriously thinks becoming involved in the justice system is like carrying out a banking transaction? Give me strength!

But no, there’s more. “And in terms of legal aid, we do have a generous system…” Now, where have we heard that one before? Huq presses her as to whether she will look again at the 2012 LASPO Act. Truss is now blinking furiously, just like you don’t want your client to do when they’re answering questions in the witness box. She blusters. “I will look at specific areas but in principle we do have a system that is generously funded…”

Chalk is back on the case: “Is it a proper use of court fees as a revenue raiser for Central Government?” Truss appears blindsided by this, as if it’s something else which had never occurred to her. (Reform probably suggested the idea!) She looks down at her meagre notes, shiftily. “We’re still making decisions in this area and we’ll be discussing it further.”

With who, FFS? You’re the bloody Justice Secretary! “But it’s important that those who take cases to court make a contribution where they can afford it.” So, how about the CPS “making a contribution” when they “take a case to court” and it fails miserably? Oh wait…

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(Pic by iStock, possibly of Liz Truss’s Great Plan for the justice system. Or possibly not)

Chalk’s not letting go. “So is that to the MOJ budget or to Central Government coffers more generally?”

Truss squirms under his gimlet gaze. Er, she’d have to look into that.

Do we actually learn anything else, or is the rest of the session another whole lot of nothing? Well, apparently prisons will be “held to account but empowered to deliver reforms”, she “doesn’t have the figures” regarding the recent Aitchison Report (why not?)  and she “doesn’t yet have the information” about whether the proposed new prison building programme timetable is realistic (again, why not?). But she’ll tell us all about it in due course. Well, that’s alright then, but we may all have fallen off the twig before she gets around to it.

There’s an awful lot of “I’d need to look into those details”, “I’ve heard of that, I’ll have to get back to you” and “it will be in the plan in due course”. And an awful lot of absolutely sod all concrete planning, detail, insight. Oh, and she doesn’t entirely favour the Danish approach, in answer to Philip Davies (Conservative, Shipley) and his bristling indignation about the possibility of prisoners getting behind-bars conjugals. What he’s doing on this Committee is anyone’s guess. It’s like having Bernard Manning at a meeting of Mary Whitehouse’s National Viewers & Listeners Association.

The whole debacle is perhaps best summed up by this exchange with Victoria Prentis (Conservative, Banbury), who asks about the recent and much derided probation reforms (for reform, read sell-off). What’s Truss’s assessment as to whether it’s achieving its objectives?

Truss: “This is something we’re looking at.”

Prints: “So you have no answers.”

Truss: “Not yet.”

And that is the problem. On any topic within her remit, Truss had literally nothing to say. She appeared to know nothing, have no ideas, no plan, no brief, no clue. To describe her answers as vague would be to describe Mr Humphries as slightly camp. When she doesn’t have an answer, she tries to look inscrutable, but it just looks as if there’s nothing behind the eyes.

Matters become even more sticky for the hapless Lord Chancellor when Alberto Costa (Conservative, South Leicestershire) moves onto the thorny topic of the British Bill of Rights.  What is the point, he asks, of a British Bill of Rights if we’re going to stay in the European Convention? Why repeal the Human Rights Act?

Truss shuffles, the rictus smirk reappearing. “What the British Bill of Rights will do,” she trills, “is protect our rights… but in a better way!”

Costa’s not satisfied by that. He points out that the HRA allows you to exercise your rights under the ECHR in a British court, where previously you had to toddle off across to Europe. Would she be removing the right for British citizens to exercise their Convention rights in a British court?

Truss’s eyes bulge. She looks for all the world like Compare The Meerkat. (Who’d probably be more impressive as a Lord Chancellor, if we’re being honest.) She hadn’t thought of that one. And no, she didn’t have any details.

She’s visibly struggling when Richard Arkless (SNP, Dumfries & Galloway) tries to pin her down on whether human rights are now reserved to Westminster, and appears surprised when Arkless points out that such issues appear to have been devolved under the relevant legislation. Perhaps that’s another one she’s going to “look into” in due course?

And when Dr Huq raises the issue of the £700million court IT programme and asks how she can be sure its objectives will be met, Truss appears for all the world like one of those dolls I had in the 1970s, where you pulled a cord in its back and that started a little record playing, that was cunningly concealed inside its chest, which played the same sentences over and over again to make the doll talk. Perhaps that’s the reason for that spectacularly ill-fitting bra.

“Rolled out in chunks! Very effective! Making criminal hearings easier! Prisons! Great stuff!”

It wasn’t just me or fellow lawyers who were unimpressed by this abject performance. Private Eye had also spotted the Justice Secretary’s serious shortcomings, in an excoriating piece in their latest issue: always worth a click here.

Perhaps the reasons why Truss officially had Nothing To Say were because a week later she was releasing the spectacularly depressing and ill-thought out Transforming Our Justice System paper (see link to paper here and link to BBC story here). In it, “tomorrow’s justice system” is imagined as a place where the dispensing of justice is like ordering your online shopping, where lawyers are told to find ways of “simplifying working practices” (translation: do more for free), where she has the gall to pretend that the reforms are amongst other things about meeting the needs of defendants and lawyers (is she having a giraffe?) when this is all about meeting the needs of the Treasury and no one else.

Frankly, we preferred it when she kept her trap shut.

 

Welcome To The Bollocksphere!

I admit it, I’m in a bad mood.

It’s 30 degrees outside and somehow I am laid up with a vicious cold: streaming nose, throat lined with barbed wire, raging temperature, snorting my Olbas inhaler every five seconds.

Maybe that explains why, when I started catching up with the most recent news in the legal sphere, my blood pressure almost detonated the gauge.

The first thing that happened is that I read the latest Better Case Management newsletter (does anyone else apart from me read the Better Case Management newsletters?). Now, I appreciate I may not be the target audience for this weighty tome – I get the impression it’s only aimed at Crown Court judges and civil servants – but issue 10 of the BCM (see link here) is a veritable masterclass in entering the Bollocksphere.

(There is actually a web page called the Bollocksphere, and very entertaining it is too – see link here.)

Clearly our Senior Presiding Judge (or whoever writes the BCM for him) has spent time traversing the Bollocksphere, or has, at the very least, been on work experience at the Wernham Hogg Paper Company, Slough.

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Here are just a few examples:

“Strong collaborative working has brought about some truly significant improvements in the way we deliver justice, to the undoubted benefit of victims, witnesses, defendants, prosecutors, defence representatives, court staff and judges. The changes effected in a very short period of time have been simply exceptional.”

So, translated from Bollocksphere to English, what exactly could this mean?

So far as I can see, it means: “We’ve got together with the civil servants who hold the purse strings of the criminal justice system and as a result of their orders we’ve decided that the rules of evidence and procedure which are supposed to form the backbone of justice are an inconvenience so have dispensed with them. Simples!” I could be wrong about that, mind, since I’m not fluent in management speak.

“By way of example, in recent months we have witnessed:


A decrease by almost 50% in the number of hearings that are required to resolve a guilty plea in the Crown Court (this represents a truly substantial saving in resources);

An increase in the number of cases committed for sentence, which strongly indicates that guilty pleas are being entered at a laudably early opportunity in the magistrates’ court;

A significant upward trend in the number of Early Guilty Pleas sentenced at the PTPH, thereby, once again, saving resources and providing a swifter result for victims, witnesses and defendants.”

So underneath all the ‘idea showers’, is what this is all about (i) limiting the Defendant’s opportunity to receive considered advice on the evidence against him/her, (ii) strong-arming him/her into pleading guilty at the magistrates’ court when even the CPS often don’t know what their own case is, let alone anyone else and (iii) jumping into sentencing with both feet even in cases where a report (like a psychiatric report, for example) might provide important information and assistance to the court. All those probation officers must be twiddling their thumbs, eh?

Still, the Powers That Be seem happy with it.

“At the risk of sounding like a Stalinist Commissar from the early years of the 20th century” – too late! – “we are now in my view at a watershed moment: not only must we maintain this momentum but we must ensure these impressive cultural changes become a permanent and embedded part of our criminal justice system.”

Let me, ahem, ‘unpack that statement’.

"Prioritising focus based paradigms with an outcome driven programme, blah, blah."  "Did you understand any of that?"  "Only the Blah! Blah! bit."

“Prioritising focus based paradigms with an outcome driven programme, blah, blah.” “Did you understand any of that?” “Only the Blah! Blah! bit.”

(Pic by the wonderful Cartoonstock: http://www.cartoonstock.com)

Roughly translated, this means all practitioners are screwed, since the Powers That Be will not brook any dissent from the ranks. Express concerns about the dumbing down of justice, and you will be ignored.

“It is expected that judges will exercise leadership in the courtroom, actively and robustly managing each and every case, identifying guilty pleas (where that is the true position) or establishing the extant trial issues.”

Translated as: Judges will tell the Prosecution what their case is, decide what advice the Defence should give their client, and order the Defendant to plead guilty – because, after all, your client knows whether he/she is guilty, right? Buzzword bingo!

“The LITs will shortly be asked to provide their views on BCM so as to assist the NIT in its objective of continuing to improve the system.”

FFS!

(Apparently this is something to do with Local Implementation Teams, National Implementation Teams and, possibly, Bollocksphere Central Management. Though of course, I’m only indulging in a spot of ‘thinking outside of the box’ and ‘postulating a cascade of blue sky thinking’ when I say that.)

In the meantime, as if that wasn’t enough, over in the bubble of super-regulator the Legal Services Board, the chief executive Neil Buckley has found time to ‘touch base’ with those legal professionals whose practising certificate dues probably pay to keep his organisation circulating in the Bollocksphere: see link to the Law Gazette piece here.

In a pronouncement which David Brent himself could not have made up, Buckley decides to ‘punch the puppy’ that pays his salary by suggesting that professional lawyers using and promoting the positions of ‘solicitor’ (and presumably, also ‘barrister’) are acting in an anti-competitive way!

In fact, according to the Gazette’s report on his ‘reach out’, “there is a legacy of ‘strong professional identities’ that may impact upon competition. The LSB says that in 2015 solicitors had 58% of the UK legal sector market by turnover while barristers had 9%”.

So, let’s ‘pick this up and run with it’.

“These professional groups by their nature have a tendency towards shared cultural norms which can have some benefits, but which also lead to behaviours that mute competition between providers.” An example of such ‘behaviours’ is the prevalence of the term ‘solicitor’ over individual firm branding, the report quotes.

Taking a ‘helicopter view’, roughly translated this means that the LSB think that consumers can properly be served and protected by reducing restrictions on practice, and those who are regulated to practise in courts in particular, by reducing or completely eroding any semblance of regulated professional standards!

It’s, um, ‘not rocket science’!

In the meantime, those of us down at the coalface have to sweep aside the shit shovelled out by these quangocrats in order to be able to, you know, actually be able to DO THE JOBS FOR WHICH WE TRAINED FOR YEARS. It almost makes you wonder why you bothered spending all that time and money to get professional qualifications.

Truly, we are lions led by donkeys. In the meantime, I am going back to dinner ‘Al Desko’. Such is the life of us ‘professionals’.