No Wheels On My Wagon!

I really, really thought that, for a couple of weeks or so, the Ministry of Silly Walks had closed for the holidays. I was hopeful that we could pass July without news of the release of some preposterous new proposal to dumb down Lady Justice in the name of ‘court modernisation’ or ‘reform’. How wrong I was.

According to last week’s Times (see link to article here), the senior judiciary have a plan that is more cunning than anything even Baldrick came up with. In fact, Baldrick, it is as cunning as a fox that has just been made Professor of Cunning at Oxford University.

A van. A white van. With a court crest on the side. I know, let’s get vans to drive around the country, and get Defendants and witnesses to simply hop into the van to give their evidence via a TV link, instead of turning up to court to face a prosecution or to give evidence. The alleged miscreant, or witness, could just jump in, say cheese for the camera and Bob’s your teapot! Mobile justice!

I shit you not.

Yes, from the bowels of the MOJ comes this lightbulb moment. Apparently, says The Times, the Senior Presiding Judge Lord Justice Fulford is extremely keen on the idea. I sincerely hope that someone who has Actual Experience Of Conducting A Criminal Trial In The Last Millennium has been consulted about this. Aren’t there, surely, a number of obvious practical problems?

Aside from the fact that the proper solemnity of the occasion of a criminal court hearing will hardly be reflected by its participants being beamed in from the back of a white Transit, who is going to be employed to drive the things? Are those people going to double as the court ushers, to ensure that witnesses properly swear the oath? Or don’t have crib sheets with them out of sight of the camera? What happens if they need to be shown video footage which is being played in court? Or if they need to be shown a document to comment upon? How is this going to be achieved?

Worse still, is such a service going to be handed over to the likes of G4S or Serco, who already can’t get remanded Defendants to court on time (or at all) on a daily basis nationwide? How much are such vans going to cost? How many will there be? If there are multiple ‘remote’ witnesses in a single trial, where are Witnesses No 2 and 3 going to wait while Witness No 1 is giving evidence? Who is going to ensure they don’t compare witness statements whilst loitering on the nearest park bench or in the local McDonalds?

Talking of which, this is the age of criminal justice reform, right? And those court vans aren’t going to pay for themselves. So how about, as well as acting as mobile court rooms/witness boxes, you could sell burgers from them as well? We had to close all those court cafés after no one wanted to bid for the contracts at the risible rates the MOJ were willing to pay, didn’t we? Problem solved!

You honestly could not make this up.

IMG_20160726_232317

(Pic by Wildy)

Still, as regular readers of this blog will know, the CJS has been trundling towards hell in its own wagon for some years now. Various stories reported by solicitors and counsel from around the jurisdiction over recent weeks lead me to believe that our justice system has finally screeched to the edge of the fiery furnace.

You will (hopefully) have some idea of the areas which are of such concern to all those of us practising at the coal face. Cuts, people having to represent themselves, court time and money being wasted by incompetent third party “justice partners”, digitalisation, reductions in access to justice across the board, dumbing down. But somehow, we carry on.

It’s a bit like that song that I remember from my childhood, on Ed Stewpot’s Junior Choice, about the pioneers trundling through the Wild West in their rickety cart, with a wheel gradually falling off on every corner. (I always thought it was by Dick Van Dyke, but it turns out that it was written by Burt Bacharach. Now there’s a thing.)

“Three wheels on my wagon,
And I’m still rolling along
The Cherokees are chasing me
Arrows fly, right on by
But I’m singing a happy song…”

Judging by some of the stories which I’ve heard from colleagues lately, it’s a matter of how long we can carry on now, before something has to give.

'I told you the idea of wheels on a cart was unworkable.'

‘I told you the idea of wheels on a cart was unworkable.’

(Pic, as so often, at the wonderful http://www.cartoonstock.com)

Some of those stories, I thought, must be exaggeration. Urban myth. Chinese whispers. Especially what was being reported from the magistrates’ court, where – as I observed in my previous blog, Dial M For McJustice! – any semblance of due process and procedure appears to have been unceremoniously jettisoned.

So I asked one of my more sensible solicitor friends to come up with examples, witnessed with his own eyes, of what’s actually going on in the lower courts. After all, we are told that 95% of all criminal cases are disposed of there.

I do actually have some sensible solicitor friends, one of whom is The Goth Lord. (Yes, The Goth Lord is sensible, even though he listens to a lot of Bauhaus.) The Goth Lord has been in practice for 20 years and is a solicitor-advocate, so these days makes a foray into the hurly-burly of the magistrates’ court only rarely. His patch is in the Garden of England, and after what he reported to me, you can only hope that you never have to appear there, either as a Defendant or a witness.

On one recent outing, he found himself in the ‘virtual’ court, which was ‘virtually’ (though not quite in reality) dispensing actual justice.

Example number 1: a gentleman appeared, surprisingly in person, charged with two dwelling house burglaries. The maximum sentence for these is 14 years’ imprisonment. One of these burglaries involved a confrontation with the unfortunate householder, which under the appropriate sentencing guidelines is an enormously aggravating feature. Furthermore, he had recently been sentenced to a community order for… another dwelling burglary!

The Goth Lord watched on idly, expecting as the guilty pleas were entered, that the magistrates would commit the two dwelling burglaries to the Crown Court for sentence (on the basis their sentencing powers were, in the circumstances, wildly inadequate for the sentence such burglaries should receive) and remand the miscreant in custody. After all, in the heart of Daily Mail country, what else should the hardworking taxpayers of the borough expect?

Imagine his surprise, then, when the magistrates not only retained jurisdiction but sentenced Chummy there and then… to an eight-month suspended sentence.

“Two wheels on my wagon,
And I’m still rolling along
Them Cherokees are after me
Flaming spears, burn my ears
But I’m singing a happy song…”

But it didn’t end there. The Goth Lord’s flabber was about to be further gasted.

Example number 2: next up was a chap who was on licence, having been released halfway through a five-year stretch. Chummy had succumbed to his old crack addiction, and had “gone out looking for money”, armed with a large knife. He chanced upon an old mate of his, and “asked him” for a lift. As they were driving along, Chummy produced the large knife, opining that “the area wasn’t safe to be in without one”, and casually mentioning that he had recently bought a gun. Not surprisingly, his mate was a little concerned, but compelled to felt continue to drive him around whilst Chummy popped into a few shops and stole some beers and “visited” a few people. Eventually, his mate was able to get away and called the police, telling them he’d been terrified by the knife and the comments.

Now, even the non-lawyers among you might be thinking that there would possibly be room for a charge of, say, false imprisonment, or kidnap, in there somewhere. Certainly The Goth Lord thought so. The CPS obviously didn’t, however, because all that Chummy had been charged with was theft of the beers and possession of the knife. And all this was being dealt with in unseemly haste, when the CPS did not even have a copy of the statement from his mate.

There was an immediate guilty plea, and The Goth Lord settled back expecting to see the bench immediately sending the case to the Crown Court for sentence. But no! The magistrates decided that they would really teach Chummy a lesson about not committing serious offences involving weapons whilst on licence for a five-stretch… by sending him to prison for 30 days! That’ll learn him! It would be funny, if it were not so serious.

“One wheel on my wagon,
And I’m still rolling along
Them Cherokees are after me
I’m all in flames, at the reins
But I’m singing a happy song…”

And there’s more.

Example number 3: as if to further throw sneezing powder in the face of Lady Justice, the bench next dealt with a man who was appearing before the court in custody, having committed a new offence in breach of a current suspended sentence. Now the law is quite clear on this: if you commit a new offence during the currency of a suspended sentence, the presumption is that the suspended sentence will be activated (either wholly or partly) unless it is unjust to do so. Chummy must have thought all his Christmases had come at once, when the magistrates told him that they weren’t going to activate it “because it’s your first breach”! Exactly how many do there need to be?

Perhaps when the tabloid papers next complain about soft sentencing, this will give them an idea of how it comes to happen. The Goth Lord is of the view that this unholy mess has a great deal to do with the new ‘allocation guidelines’ (see link here) which appear to have encouraged benches up and down the country to try desperately to cling on to any and every possible case to avoid it heading up to the Crown Court, even in circumstances which are plainly resulting in ludicrously lenient outcomes, such as those above. It is, of course, all to do with cost, this desperate scramble to avoid cases going to the Crown Court. It’s an unedifying spectacle, and those of us at the coal face know that it has nothing to do with justice being seen to be done and everything to do with operating as cheaply as possible at the expense of justice.

Well, you might be thinking to yourselves, couldn’t it just be that the benches in the Garden of England have gone a bit rogue, operating in some sort of Passport To Pimlico style parallel citadel? Things are tickety-boo in the rest of the country’s palaces of justice, right?

Think again.

For in courts across the land, justice is not only being thinly spread, it seems to have evaporated altogether. If you’ve had the temerity of being accused of an offence, that is. In magistrates’ courts across the country, you’d be forgiven for thinking that the burden of proof was now on the Defence to prove innocence. Has someone changed the most fundamental tenet of the criminal justice system without anyone noticing?

Other professional contacts across the country have provided countless examples of frankly shoddy prosecutorial practice which now seem to be accepted on a daily basis in courts nationwide. Far from being limited to The Goth Lord’s patch, it seems as if things are going down the pan all over.

“George? Should I get the bag of beads and trinkets?”
“Woman, I know what I’m doin’!”

You, as a member of the public – or “potential consumer of legal services”, as some of our more pointless regulatory bodies are wont to proclaim – might be entitled to think that, if you were unfortunate enough to be accused of a criminal offence and forced to have your trial in the magistrates’ court, you would at the very least be provided with copies of the witness statements upon which the Prosecution proposed to, well, prosecute the trial. You know, the witness statements that are what the charges are based on. The exhibits which the Prosecution say prove your guilt. Which is, after all, what the Prosecution are supposed to do: the burden of proof is on them to PROVE GUILT. And perhaps (oh, the temerity of it!) even any evidence which the Prosecution have gathered during the course of the investigation but upon which they don’t intend to rely – almost certainly because it doesn’t support their case.

Well, think again. By all accounts, these days all the Prosecution have to do is to provide a case summary written by the very police who are accusing you of the crime, and Bob’s your teapot – the magistrates’ court thinks this is all you need for your lawyer to be able to advise you on how to plead. Or even, as some lawyers have been discovering when turning up to conduct trials, that’s all the CPS have handed over even by that date.

All of this chaos resulted in the Criminal Law Solicitors Association issuing its recent Protocol on Prosecution Late or Inadequate Disclosure (see link here). When you read the document, it all seems very sensible: if the Prosecution haven’t complied with their duty to disclose sufficient materials to enable the Defendant’s lawyer to adequately advise on plea, the court ought to accede to representations from the Defence for an adjournment.

Except the courts won’t. So the CLSA protocol suggests that, in the absence of an adjournment to facilitate proper disclosure of the evidence upon which the Prosecution’s case is actually based, the legal reps quite properly tell the court of their predicament and simply advise their client at that stage that the only proper plea they can enter is not guilty. It’s pretty basic: it’s for the Prosecution to be in a position to prove their case. If they haven’t served any actual evidence, well, they can’t.

Unsurprisingly, this strict adherence to the letter of the law has gone down like a fart in a lift with magistrates’ courts. It wasn’t long before (certainly down in The Goth Lord’s neck of the woods) the magistrates’ courts issued ‘guidance’ – basically an attempt to strong-arm those practising in the lower courts – which appears to trample all over the presumption that an accused person is innocent until proven guilty by evidence or even that old chestnut that it’s for the Prosecution to prove their case. See legal advice note 5 of 2016 here: it really is a most astonishing document, driving not just a coach and horses but the Wacky Races Buzzwagon through the ordinary rules of criminal evidence and procedure.

wagon

(Pic: a magistrate and magistrates’ clerk driving the Wacky Races Buzzwagon through the rules of evidence and procedure at an unnamed magistrates’ court last week, possibly)

Unsurprisingly, this prompted the CLSA to issue a sharply worded retort (see link here). You may think that it seems ludicrous that a professional organisation should actually have to spell these principles out to a court, but that is the state we have got to these days.

“No wheels on my wagon,
So I’m not rolling along.
The Cherokees captured me,
They look mad, things look bad
But I’m singing a happy song…”

We truly have reached the hell/handcart interface.

Goodbye Mr McKenzie!

I haven’t blogged for a few weeks now. That’s not because there’s nothing to foam at the mouth about – there’s plenty. But I’ve had to focus on the day job of helping the criminal justice system to creak on and actually earning some money to pay my bills. And obviously, with the country falling to pieces around us and no one actually running it, there have been other things for people to read about and blow their stacks over.

I’d originally started a new blog about the disgraceful situation in the magistrates’ courts regarding disclosure and the conduct of trials – in particular, the way that the burden and standard of proof (that’s that the Prosecution bringing the case so the Prosecution must prove the case, to you and me) is being deliberately eroded by stealth and without any public discussion on the matter. I’m still planning that blog, and if any solicitors have more specific examples of this in practice, then feel free to post them in the Comments below. (I’ve been overwhelmed with examples so far, but there’s always room for more.)

However, when at a very large Crown Court in outer London last week, I witnessed a scene which had me choking on my PG Tips. Waiting to get on with a sentence, I witnessed for the first time in the Crown Court a McKenzie friend in action.

For those not in the know, a McKenzie friend is supposed to be a person who assists an unrepresented litigant in court. They do not need to be legally qualified. They are not supposed to have the ability to address the court on behalf of the litigant, because only qualified lawyers with rights of audience are supposed to have that right. But in recent times some courts have allowed this, seemingly on the basis that some representation is better than none. From the view of those who have actually had to act against McKenzie friends, that is a matter of debate.

Some McKenzie friends now charge for their ‘services’, anecdotally often charging more than a qualified solicitor or barrister would be charging, if the hapless litigant did but know it. To those outside the legal profession, this must seem totally insane. A completely unqualified person can be permitted to charge fees to operate in an arena in which they are not qualified? Replace the word ‘lawyer’ with the word ‘doctor’, ‘accountant’ or even ‘plumber’ and you begin to realise how bonkers the situation actually is.

'I've been instructed to represent you in court. But just so we're clear, I'm really an interior decorator.'

‘I’ve been instructed to represent you in court. But just so we’re clear, I’m really an interior decorator.’

(More fantastic cartoons at http://www.cartoonstock.com)

What I witnessed sincerely made me hope that the unfortunate Defendant in the case I saw was not being charged any fees by the McKenzie friend he turned up with.

The proceedings didn’t start well, when the MF – who was dressed so scruffily that I thought he must be the Defendant – sauntered up to the advocates’ bench with his ‘client’ and sat next to him. The very experienced judge dealing with the case was plainly not impressed. The MF had clearly not advised his ‘client’ that the first thing you don’t want to do is upset the judge. The MF should have been sitting in the row behind the Defendant, if he ventured out of the public gallery at all. His next mistake was obvious: he appeared to have given his ‘client’ advice that was going to make him look stupid.

This was apparent when the Defendant was asked for his name. This is, usually, the most straightforward part of any Crown Court hearing. The Defendant responded: “My name is [X] and I am here under protest.” Oh dear.

This impressed the judge even less. As did the fact that the MF was openly chewing gum as he whispered his ‘advice’ into the Defendant’s ear.

Matters went further downhill when, without having sought the permission of the judge to do so, the MF attempted to address the court on his ‘client’s’ behalf. This ill-advised foray was given extremely short shrift and the pair were sent packing with the case being put back while they sorted themselves out. Incidentally, this case was apparently listed for a PTPH and so the case papers would have been on the digital system. To which, presumably, the Defendant would not have had access, though if he’d had proper representation that wouldn’t have been an issue.

Quite why a Defendant would voluntarily be in front of the Crown Court without proper legal representation is unfathomable. Very few people would not qualify for legal aid for a case listed for PTPH: by the sound of the details it was a relatively complicated fraud and so unless the Defendant had a disposable income of over £37.5k per annum – so that’s money left over after all expenses such as rent/mortgage etc have been paid – I’d have thought he’d have qualified for representation, subject to monthly financial contributions. Thank Sid James we only very rarely see MFs in the corridors of the Crown Court. At the moment.

In the civil courts, it’s a different kettle of fish. By all accounts the presence of MFs, many of them apparently being paid at least the same or more than the lawyers on the other side, is increasing exponentially. And not always apparently to the benefit of their ‘clients’, as stories such as this one from earlier in the year demonstrates here. You may think that the public are at risk from the very fact that unregulated persons can actually purport to offer what to the untrained eye might appear to be legal services (see further examples of horror stories here and here): I couldn’t possibly comment.

Why do the courts and the professions tolerate this?

My MF experience came hot on the heels of the publication of a report prepared by the Legal Services Board, the ‘super regulator’ which controls the activities of legal professionals: see a link to the Law Gazette report on it here. I’m not the only lawyer out there who greeted the publication of this report with the open derision it frankly deserves. There is nothing ‘super’ about the LSB.

In short, the LSB smugly opined that “unregulated suppliers of legal services are often cheaper, more innovative and more transparent than their regulated competitors”. Well, no shit! Of course they are cheaper BECAUSE THEY ARE UNREGULATED!

“Unregulated suppliers”, such as MFs, don’t have to pay insurance. They don’t have to pay fees to a regulator just to be allowed to do their jobs. They don’t have run any sort of compliance structure at their firms or Chambers. They don’t have to ensure that they operate within a recognised code of conduct, or indeed any code of conduct. There is no Government quango looking over their shoulders making sure they stick to the code of conduct and taking them through very expensive disciplinary proceedings if they don’t. And they don’t have to fund the NINE DIFFERENT REGULATORS out of their own collective pocket. SO OF COURSE THEY ARE BLOODY WELL CHEAPER!

The LSB is chaired by Sir Michael Pitt, a man who apparently also has time to be the current non-executive chair of the Pharmaceutical Services Negotiating Committee (see link here). As chair of the LSB, he apparently picks up a cool £63k for “at least 70” days’ work a year, or did when he took up the role in 2014 (see report here). He has quite possibly never crossed the threshold of a criminal courtroom.

How the actual feck does he know anything about the value of proper professionalism in our legal system? Clearly nothing, since he and his quango cronies appear to be doing everything they can to undermine it. See legal writer John Hyde’s excellent rant Throw Consumers To The Wolves: It’s Cheaper on the topic here. Imagine if the regulator of the medical profession had approvingly pronounced that unregulated suppliers of medical services were often cheaper, more innovative and more transparent than their regulated competitors. There would be riots in the streets, and doctors would certainly be out on the picket lines.

The Justice Select Committee – whose sessions have, in recent times, often been compulsive viewing – decided to tackle the thorny issue of legal services regulation last week by summoning the Great And Good of the various legal professions and their regulators to explain exactly what the regulators actually do. After all, for those in the professions, these people cost us a lot of money, time and aggravation. (The link to the JSC session is here.)

As chairman Bob Neill (Conservative, Bromley & Chislehurst) correctly observed at the outset, the area of legal regulation is rather a crowded marketplace. With those NINE (count ’em) different regulators. You have to wonder what half of these regulators actually do to justify their salaries (obviously paid for by us) and whether it is of any value at all. I have a horrible feeling that many of them just sit about spouting management speak, espousing blue sky thinking and bustling from one pointless meeting to another trying to appear as if they have something important to do.

My suspicions are confirmed when Paul Philip, Chief Executive of the Solicitors’ Regulatory Authority, kicks off. Speaking like a man who has his nasal passages stuffed with cotton wool, he enlightens us all by suggesting that “legal services regulation is on a journey”. Well, I think we could all have guessed that: it appears to be on a race to the bottom, grinding down the professionals who have to toil within its tentacles and at the same time appearing supremely unbothered about the unregulated legal sector, growing like topsy.

So what is legal regulation all about?

I wondered how hard the Committee had to try not to appear to be laughing as Philip tells us that legal regulation is, inter alia, all about reducing bureaucracy. Eh? I don’t think any solicitors who’ve had dealings with the SRA would exactly have spotted that one.

It’s soon clear that the reason for this session taking place is that the Treasury have apparently decided that all the legal regulators should become totally independent from the professions. Which might sound like a good idea in principle, until you consider that if the idea has come from HM Treasury, that can only mean one thing: they want it to be cheaper to/for them, and therefore almost certainly to pick the pockets of the profession even further.

Not unreasonably, Catherine Dixon, Chief Exec of the Law Society, suggests that while the country is undergoing a “period of unprecedented change” (roughly translated: utter chaos), now might not actually be a good time to embark on a wholesale review of legal regulation. Let’s face it, it’s unlikely to be high on anyone’s agenda right now. And very soon, she mentions the elephant in the room: the LSB. The super-regulator isn’t represented at this Committee. Perhaps they couldn’t find a McKenzie friend willing to take the case?

Bar Council chairman Chantal-Aimée Dorries QC pointedly tells the Committee that the Bar “doesn’t support a super-regulator”, considering it to be surplus to requirements. Quite why we need an over-arching regulator in an already crowded marketplace is anyone’s guess, but I suppose all those Government cronies need some quango or other willing to have its pips squeezed for cash.

John Howell (Conservative, Henley) then suggests that “the cost of providing legal services is out of proportion to what people want”. Well, the cost of the plumber I had to call out last week to fix my leaking toilet was “out of proportion” to what I wanted as well, but I still had to pay for it. To get a properly qualified, certified plumber COSTS ACTUAL MONEY. They have to go through training, qualify, join trade associations, that sort of thing. So why should lawyers be expected to provide their specialist professional services for below cost or – as the Government seems to expect – for free? My plumber wouldn’t.

When Howell goes on to suggest that “the problem is of having too many lawyers”, the face of Alex Chalk (Conservative, Cheltenham) seems to wear the carefully neutral expression of someone who desperately wants to bang their head on the desk at the rank stupidity of their colleague, but knows they can’t because they’re on the telly.

head:desk

What about the performance of the LSB, quips Bob Neill? Dorries QC, who has a wonderfully understated manner, suggests that the LSB could do better (well, it could hardly do worse) and is prone to straying beyond its remit. I read into that that the LSB has had to be slapped down on a number of occasions, such as when it spent an inordinate amount of its cash (and by that I mean ‘our cash’) commissioning recent reports on areas such as diversity or the cab rank rule.

Dixon then grasps the other current nettle by suggesting, rightly, that that there is objection to the LSB spending the professions’ cash commissioning that recent report on the unregulated legal sector. Yes, let’s get that one straight: the report I referred to above, which concluded in basic terms that unregulated legal providers were all very jolly and should be allowed to run riot in our justice system unhindered by any sort of rules or governance, and without even having to be insured against, well, something going wrong as a result of their lack of competence. And who almost certainly paid for this research? Why, the regulated legal professions, obvs!

You could not make it up.

Paul Philip, on the other hand, suggests that the LSB should be praised for “pushing the boundaries in thought leadership”. WTAF? Next!

Victoria Prentis (Conservative, Banbury) asks about the issue of paid MFs. The problem is, as the Committee appeared to grasp, that anyone can use the term ‘lawyer’ to describe what they’re doing, even if they are, well, not actually a lawyer. This is misleading to the public and is why, as Dorries QC said, the Bar Council have repeatedly called for MFs and other non-lawyers, who are not qualified, not regulated and not insured, to be prohibited from charging fees for such work.

My guess: with its obsession with dumbing down the legal professions and wiping out access to justice with its unrelenting ideological cuts, the Government will follow the lead of the likes of Sir Michael Pitt and continue to allow these unregulated imposters free rein.

Can I re-train as a cat whisperer?