“Everybody Out!”

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

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

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

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

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

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

Vic Spanner: “10 minutes.”

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

Vic Spanner: “The canteen.”

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

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

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

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

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

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

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

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

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

Here are the headlines:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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