Archive for March, 2013

In the outer atmosphere, hovering over Temple, the Evil Lord Chancellor (#failinggrayling) is building his legislative death star. Once complete it will rain havoc on the chambers below, obliterating them.

The publicly funded Bar has about the same defensive capacity as the average ewok. We shake our fists at the evil empire, as  MOJ civil servants maraud about Fleet Street in those big walker things crushing stray solicitors and counsel as they go.

There is though hope, Maura McGowan has shown herself handy with a light sabre, Sarah Forshaw and Michael Turner can aim a blaster gun. But still, the power of the dark side of the force is strong.

Return of the Jedi

The most memorable scene of all of the new Star Wars films is when young Darth Vader pops off to Jedi Elementary School and kills of all the ickle Jedi, bottom lips quivered world wide.

And the same is happening now. In March, most young Barristers have a follower hanging onto their coat tails. It’s a pupil barrister generally coming to the end of their non-practicing 6 months of pupillage and about to go into the big bad world and fight for justice.

As a form of informal training they follow about the young Barrister, pick up on tricks of the trade and generally learn when to sit down, stand up and speak and shut up. I know I’m older now, but, to me, there are less younglings about.

Every chambers seems to be advertising for 3rd sixes (barristers who have qualified but not been taken on as tenants) and there would seem to be a genuine thinning at the bottom end of the profession. Despite this, the Bar Council say that the number of criminal law pupillages has remained stable, despite this, not a single chambers outside of the South Eastern circuit offered a ‘criminal law-only pupillage’ this year!

In 2012, 58 criminal pupillages were completed. In the same year there were 88 new silks, at least 30 or so of whom are criminal barristers. The statistics are not good. The profession is not growing it is shrinking. Last year saw the profession lose a number of stalwarts to retirement tired of their treatment.

To borrow from a wise Rabbi

He who refuses to learn deserves extinction. 

And, the Bar simply have not reflected on their mistakes. Instead they have allowed the slow erosion of the profession.

Needed now is an old master, someone who has been where the Bar are, someone who knows how important they are to the preservation of justice and democracy in this country. A popular face to unite we Jedi and provide us with our Luke Skywalker to finally defeat the darkside of the force.

We are not going to find our Yoda in a swamp, nor even in a cottage in Buckinghamshire or Surrey. No, we are going to find them in a dusty chambers on the Strand. Somewhere, nestled in the Royal Courts of Justice is our Yoda. One of this country’s most senior criminal law Judges.

Time and time again, the Judiciary have shown that they can dance around politicians of all persuasion and now we need them to stand up for us. If the Judiciary come into the equation and start warning about access to justice (or lack thereof) then there is another powerful voice on side. Time for the Jedi to open their address books…

Word of caution

Asking the Judiciary to speak out and criticise the Government is, to an extent, contrary to democracy, contrary to the separation of powers.

However, the Government have fired enough broadsides at the Judiciary of late, (and more principle less playground FTD) if the Government get their way then access to justice will be limited to such an extent that the protections supposedly enjoyed in a democratic society won’t be enforceable.

So to the Judges:

You’re damned if you do and damned if you don’t

Or as Yoda would put it,

Damned you are if you do, damned you are if you don’t

FTD

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‘Eddie fucking Stobart?’ Barked the Bearded Monogamist.

‘Eddie Stobart, Tescos, the Co0op, G4S, Serco’ I replied.

‘Eddie Stobart is a hauliers’ by now the Bearded Monogamist looked very confused indeed.

‘I don’t get it’ Said another friend

‘Basically, the Government will put criminal legal aid out to contract. Big companies doing the defending for the lowest price possible. For profit of course.’ I explained shortly, ‘in two years time, there will not be an independent criminal bar.’

‘Why do you never hear about this stuff.’  Asked our female friend.

‘Nobody really cares about criminal justice or legal aid,’

‘Until they need it’ we said in chorus.

‘Do you want me to protest for you?’

How it all started…

It started really at Oxford in 2006, before the economic downturn, law, accountancy, management consultancy, banking, were all relatively easy professions to choose.

In terms of the law, 80% signed up for the City. Pot luck really, they chose whichever solicitor’s firm best suited their personality, had the best freebies or dinners.

Another 5% signed up for the larger regional firms, not fancying a London way of life.

And 5% went for some type of Government job or similar.

The remainder went to the Bar. And all those who went to the Bar, even in 2006 were warned, the Criminal Bar was in the Government’s cross hairs in terms of funding.

Bearded Monogamist chose one of those jobs in the city. Went to a decent firm, got a training contract, did his conversion, they paid for his LPC and then he spent two years in the City. Having done so he promptly left.

He then joined a financial services firm. One which he has now exited.

Last night he was saying that I am his shining example, the person who chose a job he loved.

“Young people, nowadays, imagine that money is everything”

It was last night,  that I realised that criminal justice would not be saved by practitioners but by the general public.

For a start, culturally, we’ve a national predilection for stories of crime. Conan Doyle, Christie, Sayers, Ruth Rendell, Edmund Crispin (my fave) and Cole.

Rumpole, Kavanagh QC, Judge John Deed, Law & Order UK (questionable taste).

And, actually, we do have a national predilection for justice in reality. I wrote last year about how the NHS had become the new national religion: http://forthedefence.org/2012/03/01/the-church-of-the-nhs/ But, deep down, fair play, proper justice, man over government, they’re all very British beliefs.

Criminal justice

It’s not crime and justice as separated concepts which are of national interest. Criminal justice is part of our national identity.

The Christian conversion of England led to a transformation from a compensation culture in Anglo-Saxon law (yep, take out a man’s eye, you paid for it) to a more Christian conception of justice.

I saw the other day a twitter follower of mine who has for her description a passage from the Bible, Isaiah 1.17, translated variously as:

 learn to do good;
seek justice,
    rescue the oppressed,
defend the orphan,
    plead for the widow.

That Christian conversion was soon supplemented with the likes of Magna Carta 1215 and 1297

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers,

Followed by the Habeas Corpus Act 1679 and the Bill of Rights 1689 (or 1688 if you’re that way inclined),

Excessive Bail.
That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.
 

Juries.
That Jurors ought to be duely impannelled and returned . . . F1

Grants of Forfeitures.
That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegall and void.

So, criminal justice is part of our national identity. And y’all know what happens when you threaten, afternoon tea, the terraces, fish and chips and fair play. The British go to war.

Holy war

It is then a Holy War that the Criminal Bar need to fight. They need to show the public that part of national identity, our national religion is being put at risk by Grayling’s proposals.

There will be no Francis Bacon, Lord Mansfield, William Garrow, Thomas Erskine, Sir Edward Marshall Hall KC, Sir Charles Russell QC, George Carman QC, Dick Ferguson, no Michael Mansfield, no Kelsey-Fry, no Ed Fitzgerald QC.

Instead: a contracted defender, who protects for profits and works towards targets. Barristering in bulk. Soliciting to scale.

Justice will not be served by conglomerates who are more focussed on KPIs and undercutting rival contractors who might do the job cheaper.

Criminal justice can’t be contracted out like hospital cleaning.

Can I mention coin

It’s important to make something clear. The legitimacy of any war is undermined when there is a suspicion that it is being fought for profits.

I can say for my own part that I always knew I would be paid less than other parts of the Bar. And, I always knew that I would be paid less compared to those individuals who went to commercial law firms.

To give you an idea the difference at the moment is between £25000 and £30000 a year less. At the top-level, if I were to ever get there, the difference could be between £200,000 to £800,000 a year less.

Bearded Monogamist reassured me last night, in a public defender & private lawyer system, that the criminal bar would still survive in a smaller form and be paid for by private citizens and companies.

I actually believe that to be true. But, I signed up to a profession and a system where all were entitled to an ‘A’ grade defence, not only those who can pay for it.

And just as I won’t switch to being a ‘private’ only lawyer, I refuse to work for a company or firm who prioritise profits over performance.

I accepted the pay differential on the basis that I could do a job, in a system I believed in, with the only pressure being personal. My pressure being the professional performance I give for my punters. Not, pressure as to targets or performance indicators.

Ultimately

The criminal justice system has two purposes: protection and punishment. Criminal justice is about protecting the public, protecting it from people who breach the rules of society and from the excess of state authority. I.e, making sure politicians don’t lock up people they don’t like.

Punishment, or correction, is an aspect of criminal justice. Determining the correct punishment for a person should not have any financial aspect to it.

The Criminal Bar need to focus their argument not on pay, or even showing that we are good value for money. Those arguments have a distance, but with the majority of even the criminal bar earning in excess of the national average wage they need to show more.

The Criminal Bar must centre their argument and show that the injustices tendering would cause are against the British way of life.

Centuries of civil liberty are being put at risk by a man from who grew up in leafy Buckinghamshire, who studied history and then worked as a journalist and management consultant. A man who knows nothing about crime, is dodgy with crime stats and who compared Moss Side to the Wire.

We will win the war when we expose #failingGrayling as someone who threatens very British ideals.

FTD

Overnight

It all really went wrong for me overnight. A major supermarket chain bid for the West London criminal legal aid tender. They won. They undercut my regular solicitors massively.

My two biggest instructing solicitors were raided overnight. All the junior solicitors were given contracts, promised shares and double nectar points. Of the partners, a couple took judicial appointments, one even joined the CPS, the rest retired, one even runs a pub now apparently.

I was lucky that a couple of the firms were bought up and their outstanding bills were paid. It was a little like being given a redundancy payment. I put in a special account at the bank, I didn’t really know when I’d see any money again.

Meanwhile in Chambers

In Chambers things were a shambles. The QCs patrolled the corridors, telling people to maintain the status quo and that diaries would never empty.

Three of my mates left chambers overnight. One was to return to the North to do personal injury,  another had been offered a job at the FSA and the third was going to be an in house advocate at Supermarket Law.

The Second Junior Clerk and I slope off to Starbucks together. It’ll be ok we decide, we’ll just have to live off my prison law and public law for a bit and see how things work out.

Hope was gone

We were wrong. Within a month, 8 of the biggest criminal chambers had collapsed. Not due to income, but people having left.

At the Chambers crisis meeting, after the screams, our new tariff of prices was revealed.  The fees for criminal work were such that at my level, I couldn’t pay the rent on my house and on chambers.

I sat down and considered my options. It was as simple as this:

1) I could stay at the independent bar, but I’d have to give up crime. Prison law was no doubt in the cross hairs too, so I’d need to spend most of my days doing private immigration and employment cases.

2) I could lose my independence and sign up to a conglomorate legal aid provider.

3) I could try and persuade my way into a city firm or perhaps an inhouse role at a regulator.

4) I could join the queue outside one of the boutique crime firms who defend the rich.

5) I could leave the law.

In all honesty, I was torn and by the time I decided to make my move most people had already filled plum spots elsewhere. Two or three of the bigger criminal chambers survived though.

I made the call to friends there. The reality was painful. Most of the juniors at my level had been pulled out of the Crown Court. Their days were spent defending in road traffic cases and drink driving.

In the aftermath

Chambers had survived, most people were prosecuting for local authorities across the Country, some also had picked up Health and Safety Executive work. Most though had part time appointments in various tribunals to keep the income up and provide some sort of pension.

I laughed one morning on the way to do a drink drive case, the Daily Mail headline was ‘A National Injustice’. The Senior Judges were complaining that in Courts across the country things were coming to a standstill.

Later that day I got a tip off.

One of the companies who had been given the central London legal aid criminal contract hadn’t got enough senior lawyers. The company, who ran private security operations and a couple of private prisons, hadn’t realised how many staff they would need and with City of Westminster on their patch, they didn’t have enough extradition lawyers.

I filled out the application form the same day, it wasn’t so interested in my legal experience but asked me what my best quality and worst quality was. Further down the page it asked my about leading teams and showing sound judgment. Nowhere on the form was I asked about my reported cases.

The interview was more bizarre. My job title was no longer to be barrister or Counsel, not even lawyer, but ‘Senior Specialist Public Defender.’ I didn’t really understand what that meant. All of the interview was about motivating output from my team, nobody wanted to know what sort of advocate I was, or tested my skill as a lawyer.

The same day I was offered the job. They money is OK to be honest, I don’t have to worry about my own VAT or tax any more. I’ve even got a company car and a namebadge.

I don’t go to Court anymore though. Ministry of  Justice compliance means that I have to supervise the other legal staff in my team.

So I sit in my office in Croydon, it has air conditioning and is open plan. My office even has a door. At the moment, I’ve got overall supervision of 1500 open criminal cases. I’ve also got 150 extradition cases open.

1650 cases is a lot.

It’s not so bad though. Govt. Inc. who I work for have hired in help. I’ve got 32 Assistant Public Defenders working for me. Most to be honest are kids who have just done their A-levels. They open files, give telephone advice. Good thing is they’ve got a computerised system so they can copy and paste advice to clients.

And I’ve got 8 Public Defenders who go to Court and do the advocacy. They’ve sometimes got about 10 or 12 cases a day to do. If we get short, I’ve got a budget (not a big one) to pull in locums to do trials, most of them are people who retired during the Grayling changes, bit rusty on the law, but they can still stand up in Court. Of my 8 Public Defenders all but one were solicitors who never really wanted to do trials, one is a former pupil barrister but had just finished her second 6 when the change came in.

I’ve got my 2 Specialist Public Defenders too, as per the regulations, they are both bilingual, one speaks Polish the other French, saves money on interpreters you see. Neither had any extradition experience, but they phone me if they need a hand.

I haven’t seen a client in months. Most of my day is spent enforcing the company sickness policy. I’m going to get out of the Office in the next couple of weeks though, one of the Judges down at the Old Bailey is absolutely livid with a murder trial. It’s good, I’m pulling in one of the old QCs from retirement, I’m his junior, be like the glory days. Dust off Archbold and my wig.

I’ll have to keep my blackberry on though, I need to make sure we don’t miss any KPIs and put the contract at risk.

One of the UK directors of the Company has taken a shine to me. He says that I’ll have my own prison next. And we’re doing well in prisons it has to be said, since the Grayling changes we’ve built 5 more. Shareholders are delighted.

I’m a shareholder too now. That’s how I got my bonus this year.

I’m looking forward to going down the Bailey with that old QC, it’ll remind me how things used to be.

Post script

At this time there are hard choices for Government. They have to decide areas which can be cut and those which must be maintained. Justice has always been an expensive pre-occupation in this country.  It is expensive because it has to be done properly by seasoned professionals.

Supermarkets are run for the benefit of their shareholders, as are the likes of SERCO, G4S etc.

A supermarket manager does not have a duty to fearlessly protect his customer’s duty.

I have such a duty as a member  of the independent bar. I have no shareholders other than my bank manager who I am paying off, slowly!

If you are a victim of crime, you will want justice.

If you are falsely accused of a crime, you will want justice.

Justice will be second place to profit if Grayling is allowed to succeed.

Read more here:

http://criminalbarassociation.wordpress.com/2013/03/10/twelve-things-you-always-wanted-to-know-about-qasa-ocof-and-bvt-but-were-afraid-to-ask-a-guest-blog-by-ian-west/

Fighting for all,

FTD