Archive for the ‘Legal aid’ Category

I genuinely never thought that Grayling would agree to a cease fire. And a cease fire which effectively means that when it is up, he won’t be Lord Chancellor anymore.

He won’t be Lord Chancellor because either the ConDemNation will be over.

Or, he’ll have been promoted, I hear Head of Slytherin House is available.

Put down your weapons

You see, we’ve put our weapons down, but nobody has decided the terms of any treaty.

And of course, our main allies, the solicitors are divided, and don’t in truth have the same impact by withdrawing their labour.

Whenever there is a cease fire, people rejoice. But, of course, a cease fire is a temporary measure either before the resumption of war or the finalisation of peace. And whilst some of my colleagues rejoiced today, or were at least happy, I feel, ‘blah’.

I feel ‘blah’ in two respects:

1) What actually a year’s hiatus means

2) I wonder if we missed an opportunity

What a difference a year makes

As said, there’s the obvious likelihood that the Dark Lord Grayling is out of office. He doesn’t have to lose face with fighting the Bar, we don’t take the cuts for a year. Politically it’s a winner on both sides.

And for a number of people at the Criminal Bar it will mean maintaining the status quo. And that status quo will suit a large ‘middle’. The ‘middle’ of Chambers.

For those 11% of the Criminal Bar doing the top end, Very High Cost Cases, they of course find themselves worse off in a year’s time. Those cuts remain in place. However, many of that 11% will have significant income from private client work, part time Judicial Roles and let’s face it – the vast majority of that 11% practiced in the good days, when the Bar were paid by the hour.

As for the 89% of us who don’t do VHCC work. Well, it’s good for the squeezed middle. The classic, grad fee, solid criminal brief, s.18, shorter murders, rapes, is ok. They’re not going to be better off by next year, but, they’re going to have a decent living guaranteed until July 2015.

Thing is, that 89% isn’t all in the same boat. The junior juniors, i.e 5 years call and below, don’t have diaries full of 2 to 4 week sex/serious violence/complex acquisitive offending cases. Heaven forbid, up to about 3 years call (especially in London) you may well be sent back down the Mags on a legal aid brief, and that’s because your instructing solicitor is at the Crown Court doing the jury robbery trial which is the type of case that you rely on.

Magistrates’ Court fees are already next to nothing, what will they be now solicitors’ fees have been cut?

Those who have prison law practices, in advocacy, will find that adjudications are no longer financially viable, and the more complicated parole board hearings? They’ve been cut.

And solicitors’ fees across the board have been cut, if it means finding money elsewhere to keep afloat they will, and if that means keeping more work in house they will.

A year’s hiatus does nothing to deal with ‘plea-only’ advocates.

The one thing that surprised me the most was those ‘pupillage seekers’ on twitter who were rejoicing, it really is not good news for them at all.

And wasn’t there more to all this then protecting the squeezed middle

First, can I say, I am impressed. Impressed that the Criminal Bar mobilised, nationally to protect itself. And getting a truculent Minister to climb down is no small achievement.

But, as much as this whole exercise was about protecting ourselves, it was about protecting the system. That’s certainly why there were corners of the press on our side. Whilst GPs have looked greedy with a 1% pay rise, we’ve looked rather more noble in the face of a potential cut.

Of course, today’s victory will allow hundreds of Barristers to carry on practicing, who wouldn’t have otherwise. That in itself is a very good thing.

But…

The momentum was just starting to build. The first strike we did alone, then we got our instructing solicitors aboard, each strike was in the press. The third strike was looking good, two days, solicitors and combining with probation officers.

And too, other parts of the Bar were starting to come aboard too. Civil legal aid practitioners met to discuss steps toward solidarity, and the Family and PI Bar were starting to talk too.

That was exciting.

Today puts a halt to that momentum and makes some solicitors suspicious. The civil legal aid Bar is too small to have any great impact alone.

So we could have gone further, but if we had, if we have gone beyond protecting our place in the system, it would have been about protecting the system itself.

It would have also been about protecting our profession’s place in the system. Barristers can’t survive if they don’t reproduce. The thought that the only work that Barristers will do in the criminal court is privately paid driving cases and representing celebrities accused of sex offences is shameful.

Perhaps asking a large number of self-employed people, who do a lot of freebies, and greasing of the system’s wheels gratis, it is asking a lot to put things on the line to protect the system.

But, there’s a war still to be fought and that’s simple:

– When are you entitled to Legal Aid.

– And to what standard should you expect to be represented.

FTD

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There’s a firm of solicitors in Southern England with a particular, peculiar, set of policies:  all of their clients go no comment in interview, all of their clients go not guilty at trial and all of those clients get the solicitor advocate (or employed barrister) they’re given.

The policy, albeit questionable, is profitable in the current system of criminal legal aid.

And we should never forget, that profitability is part of being a professional.  It’s never at the forefront of any of the legally aided professional’s mind but… it’s part of the reason people signed up.

Indeed, I’m the first to admit, I’m a scaredy (fat) cat. I love criminal practice, but, I never let my practice being 100 % criminal work. And of the criminal work I do, I never let 100% be funded by legal aid.

I am a wuss.

And I won’t be a hypocrite

The media are waking up to the fact that the top guns of criminal law are not going to be firing as loudly, accurately or dramatically in future.

Of course getting the column inches these days means getting the ‘comments section’ with it. And they’re interesting reading, when you put the stupidity and ignorance of some people aside, there are a couple of interesting points that the commenting public raise:

1) Merits

2) Rationing

It would be hypocritical of me to simply say they’re stupid points. Why, because I do it myself, I ration my professional time, to try and protect my cash flow and income stream.

Merits

Before people cry out: there is a merits test in the criminal legal aid process, let me clarify it. (Or at least how I think it works) In short, if you face imprisonment, there’s a sticky point of law/cross-examination, or you won’t be able to understand a court case then you merit legal aid (providing you meet the means test).

This  merits test seems to irk the general public. A lot of comments are directed at people having, ‘hopeless’ trials, or trials when they ‘know they are guilty.’

We’ll never be able to do anything about the latter, but what about the former. If I’ve said it once, I’ll say it a million times, clients can only be advised, they can never be forced into doing anything. And that equally applies to pleading not guilty, there’s been many a client who I think has a reasonable excuse/just cause/etc etc to plead not guilty who has pleaded guilty.

But what the public commentators say, is why should people be allowed to have ‘hopeless’ trials.

And in reality, it’s not a terrible point. The NHS does not carry out hopeless operations on people. And there are some hopeless trials, blatant CCTV, bizarre defences, non-existent alibis, every criminal practitioner has been there.

So why should we fund hopeless criminal trials?

In terms of other areas of legal aid, we won’t fund any old cause. For example, judicial review, in those cases Counsel has to justify why and how a claim will succeed before it is funded. Even once the High Court has granted permission (and thus indicated your claim has some merit) another advice still needs to be written to justify taking the claim further.

Many of these public commentators simply object to the waste of time and money that a hopeless trial takes. Let’s be honest too, there’s plenty of Judges too who say the same at the end of trials.

It would be cheaper to pay Counsel £250 everytime a case is sent to the Crown Court. And for that £250 that Counsel has to consider the evidence, having considered the evidence, Counsel indicates whether the Defendant has any chance of avoiding conviction. If so, the Defendant receives funding for an entire trial, if not, the Defendant simply has his representation paid for to get to a sentence hearing.

It would, quite probably save thousands of pounds.

But it’s not right.

In terms of principle, it doesn’t fit. It is an axiom of our society that the state must prove the citizen guilty before they can be punished. To support the principle of innocent until proven guilty, one must fund a Defendant through the entire process.

In terms of reality, it doesn’t fit. For every trial that read to be hopeless on the papers, it turned out for whatever reason that the Defendant was acquitted. The very point of a ‘trial’ is to push and prod the surface of the evidence and often when you dig down a little deeper you find things you don’t expect.

Rationing book

Criminal legal aid is of course rationed to a degree. You can’t get it for most traffic matters, nor can you get it for very minor charges. (Well… the idea is you can’t get it for minor matters but we all know the reality…)

Whether this degree of rationing is understood by the public at large? I’m not sure.

In any event, it’s not that type of rationing the public are after. Instead, it’s an idea that you’ve got a limited pot of legal aid in your lifetime. And once you’ve spent that pot, you’re out of luck.

Again, it’s an interesting idea which isn’t ridiculous. Some forms of NHS treatment one is only allowed to access a number of times. And, I’m pretty sure your state pension is partly calculated on how much national insurance you have put in over the years.

So…. there’s precedent, is there principle? One could, to an extent, base such a position on principle. The Criminal Justice system is based on a model of increasing intervention, minor offending one is conditionally discharged, more serious then community punishment, then imprisonment. Every sentence (bar financial penalties) has a rehabilitative aspect to it, in those circumstances, should we only give someone so many chances?

It’s difficult to answer I suppose.

The reality is one can’t ration access to justice. On the 11th occasion the Defendant will actually be innocent, will have been in the wrong place, or will have been fitted up and he will need a proper paid up defence.

Fez, I wear a fez now, fezzes are cool

Although I disagree with the public commentators on these various newspapers websites, they make me wonder.

People don’t necessarily object to our fees, nor to a Defendant being represented.

What they don’t like is a Defendant’s hand in the pot again and again, even when everything is stacked against him.

The flip side to that is in fact a desire from the public to deal with recidivists. The only way to deal with recidivists is to invest in them to break the cycle…. and who pays for that… well that’s a different story.

FTD

Come on then…you…

Posted: 30/05/2013 in Civil Rights, Legal aid
Tags:

It’s usually followed by a four letter expletive. I’ve noticed, in witness statements, charge sheets, nicking sheets, that a particular expletive will be in fashion for a time, before being replaced by something new to challenge the authorities with.

The changing expletive is usually the only matter of any interest in one of those trials. It quite sunk in to me how boring those trials were, when a prosecutor, a year or 18 months ago, with great theatrics, repeated back to a police officer,

‘And then the Defendant said to you, come on then you pussio’

No doubt the prosecutor was expecting a reaction from the three female Magistrates’, none of whom even batted an eyelid and could have yawned in unison.

And, I’m sorry that it’s boring, but I am going to do what my clients do.

I am going to posture. Chest is puffed out.

I am going to bend at the knees. Braces holding.

I am going to gesture with both hands. Cufflinks chafing.

And, I am going to exclaim:

Come on then Grayling… you….

Sarah Forshaw says I’m not allowed to be abusive. And, I don’t particularly want to be hauled up in front of the Bar Council for writing nasty words so…

Come on then Grayling you coward

Because more I reflect on the Government’s proposals for legal aid, more I realise it’s not really about the money.

Whole legal aid budget is something like £2.2 billion, before the knifing.

Foreign aid, which let’s face it, the general public like even less than legal aid, gets £8.8 billion and is nicely ring fenced.

I think £2.2 billion is around less than 0.5% of GDP.

Peanuts.

But you know what legal aid costs the Government most in? Oh it’s capital, but of the political variety.

Grayling’s pathetic spin

Grayling is spinning the legal aid cuts to his back benchers and Daily Mail constituents as: stopping wasteful and frivolous legal challenges by naughty people.

Yes, that’s right, I spend my days in chambers, penning judicial review grounds on top of judicial review grounds,

Judicially review the police for not giving my client a plaster after he tripped getting out of a police van.

Judicially review the prison service for not giving my client the correct tog of blanket in his cell.

Head to Strasbourg  first class to argue before the European Court of Human Rights that English prisoners should get playstation 3s.

Yawn.

It’s all propaganda and it’s cheap and rubbish propaganda at that.

But, it’s in response to something

You see, the problem with legal aid is this: at the moment, the financial reward is such that you can just about tempt decent graduates (with enough passion and interest) into legally aided work and away from privately funded work.

But the problem with decent graduates with passion, is they turn into pretty handy lawyers.

And handy lawyers can deposit a large amount of egg on a Governmental face.

Prisoners’ votes, Abu Qatada, Gary McKinnon, Julian Assange, bedroom tax  and so on…

Government loses in Court is hardly an attractive headline.

The cuts, especially in prison law are arrogant. The Government says, you don’t need judicial review, prisoners can sort out these problems within establishments. Well that is complete rubbish and well documented rubbish when you consider that the likes of HMP Rochester has a huge drugs and bullying problem. If they can’t sort out drugs and bullying, one doubts their capacity to sort out the nuances of securing a prisoner’s rights.

The cuts in prison law are about stopping prisoners challenging the decisions of prison authorities. They’re not about saving money.

And, can I just correct another piece of propaganda. High Court Judges do not hand out judgments for prisoners, or criminal defendants like sweeties to children. It is rare that any challenge succeeds.

And when does a challenge succeed? When a Government department has erred in law.

Being able to hold a Government department to account in Court is essential for maintaining the rule of law. And maintaining the rule of law, is the soul of democracy.

With Treasury Counsel commanding higher fees than we legal aid lawyers, with a conservative Court who does not quickly interfere with Government decisions and a prisoner-rights skeptic public, then Grayling has it all on his side.

It seems rather cowardly in the circumstances to take away the ability to challenge the Government away.

A cynic would wonder whether it was simply a case that the Government doesn’t want to risk losing face in the Courts anymore…

… or worse, that democracy and the rule of law come second to the view of the sky news red button.

FTD

Hypothesis

Sitting in his lab in Petty France, #FailingGrayling is planning his experiment in criminal justice. It’s simple. Save money. How? Reduce the number of criminal defence legal aid contracts. Take away the choice a Defendant has. Make it a race to provide the cheapest service possible.

Why this is an experiment

Let’s face it, the Government has always contracted out legal defence work. The English and Welsh legal system, minus a very small (and costly) attempt at a public defender system has always relied on the private sector to provide defence services to individuals facing prosecution.

What is being suggested has never been done before in England and Wales. (Nor, for reasons I explain below is it done in America – contrary to some comments that it exists in the US already).

I also want to say at this stage, the Americans write scholarly articles, study (!) our legal aid system in their jurisprudence classes as the model example – soon they won’t.

What is being suggested

Effectively, the Government want to contract out to fewer providers who compete to provide criminal defence over large areas. The Defendant (if entitled to legal aid) does not get a choice of provider, he is allotted a criminal firm who represent him from interview thru trial.

The contracts will be provided to those ‘firms’ (which can include people like Tescos, Eddie Stobart, G4S) who offer to fulfil the contracts for the cheapest price in the tender.

How it works at the moment

If you’re charged with a criminal offence you have three choices. (1) You pick a criminal defence firm with a legal aid contract, if entitled to legal aid, they represent you. (2) You choose a criminal defence firm and you pay them out of your own pocket (or in very few cases your professional body/ trade union/insurer pays.) (3) You represent yourself.

So, like the NHS choices policy, you can shop around, decide which lawyer you want and providing they do legal aid work  you can pick them. Or, you can pick a legal provider depending on what you can afford. Or, you go without.

How it will work

If you’ve got a job you’re unlikely to get legal aid. If you’ve got a mortgage it seems nigh on impossible.

If you’re lucky enough to get legal aid, you get Eddie Stobart allotted to you.

The effect

It’s important for the public to understand what #FailingGrayling is doing. There’s a few things which you need to know.

1) Choice. If you’re lucky enough to never come into the criminal justice system then you probably think, why should I care whether a criminal, or an accused person properly, can choose their lawyer. Well, the first thing you should be concerned about is, ironically, cost. There are families, individuals, who I have been representing since I’ve been in Barristerial nappies. They choose X as their solicitor and I am their barrister. The relationship that we have means that they trust my advice and they consider it and follow it. That relationship avoids trials when they are not needed and means that time (and such cost) can be saved within the system.

If you are lucky enough to get legal aid then you’d be sensible to shop around and choose a specialist solicitor to deal with your problem. A doctor is a doctor. They receive the same training.

The same goes for lawyers. A lawyer is a lawyer. However, we have layered training on top.  So, I am a lawyer. I am a barrister. As a barrister I am a specialist Court litigator.

I am a criminal justice barrister. So, I am experienced in a wide spectrum of law related to the criminal justice system.

I am a criminal defence barrister. In terms of criminal law, I have specialised from day dot in criminal defence. I was taught by defence barristers.

I have various areas of defence specialism, for example, I have specialist knowledge in protest law, various aspects of aggressive trading practices, etc etc.

It is wrong to think that my instructing solicitors are like GPs. They are not. They too have specialist experience. For example, there’s a small cadre of solicitors with protest law experience, there’s a small cadre of solicitor who specialise in different types of business crime and so on.

Grayling’s plan takes away choice. That has certain implications in terms of public funded criminal defence work.

The most obvious is that public funded defenders will have to be more general. More general they are, less specialist knowledge they will have, less specialist knowledge then weaker the defence a Defendant will receive.

It also results in a bit of a lottery in terms of representation. The bigger contracts will probably be more lucrative, so G4S may get South West  London. Comparatively, a smaller more traditional firm may get Cornwall. Post code justice will set in.

You’ve also got the horrible dilemma, is it right that some people can pay for an expert in a certain area can have ’em, if you’re on the legal aid, then you get what you’re given. Justice?

So the experiment will be, with no relationship with their lawyers how much money will be wasted through dithering/disagreement, how much court time will be wasted because a general criminal lawyer doesn’t know the detail in a specialist area and how many people will be convicted because their lawyer doesn’t have the necessary speciality.

 One of the great problems when this was attempted with family law was that highly specialised family law firms, i.e experts in childcare couldn’t get contracts despite their very high quality, why? Because for example they didn’t do legal aid divorce!

The Magic Circle law firms are of such a high quality because their partners and associates specialise in very narrow areas of law.

2) Quality

You’ll notice from the above that quality is at risk in terms of what a client receives.

The risk is wider though.

The experiment will have this effect: each solicitor will be faced with a choice, generally whether they stay in crime or leave it. If they stay, do they stay in a legal aid provider or do they switch to a private provider.

Quite frankly, some solicitors (especially the experienced ones) are not going to put on a Serco Defender uniform and compromise quality. Those more experienced solicitors will bugger off, be it into retirement, private firms, whatever.

Younger lawyers will retrain and go into other areas.

The death of so many firms of solicitors will send entire Barrister chambers into meltdown.

The impact of that is two fold:

a) The expertise will be lost over night. Justice is at risk because of this.

b) This is not an experiment, it’s a point of no return

Point of no return

Despite the fact that the public defender service in the pilot areas is more expensive than the local bar and local solicitors firms (proved), they are to be retained under the new system. Why? Because, the MoJ realise and recognise that the grand experiment might fail.

The problem is if it fails, that experience and expertise is gone. It can’t be got back over night. You can’t over night retrain a load of people up to be experts in the criminal law.

The other point, put well to me by my housemate  is that, this will only save money over a short period. Why?

He’s an NHS manager. His trust contracts out cleaning for example. There are thousands of cleaning companies, if BigCorp gets the contract, they can be undercut in the next tender by OtherBigCorp. Why? Because there is a large quantity of work, individuals can easily be trained to do the job etc etc, market forces can be easily applied.

The problem with legal services is, once you knock out all the small firms and small chambers they’re gone, they’re not going to be able to compete with the big boys.

So, BigCorp can price out all the smaller traditional providers in the first tender. In that three years, people will all go their separate ways. You won’t get anybody back with the necessary size to compete with BigCorp. As such, BigCorp will have no competition. Once BigCorp have no competition what will they do? They’ll put up their prices.

So, you give a monopoly to a private company who are providing less of a service than what existed previously.

But it wasn’t Armageddon in America

Comments in robing rooms and in some quarters of the legal press is that Grayling is proposing a switch to a public defender type system, like America.

I have worked in an American public defender office, can I briefly explain why the American system is totally different and wouldn’t work here:

Simple principle there, can’t afford a lawyer, one will be appointed for you.

i) They don’t contract out work in bulk. Rarely in some cities and counties, you still have a panel of attorneys, who are given a case on a rota almost and they defend you. These are mostly used in very rural areas.

ii) A lot of the better public defenders have to run on a mix of public funds and charitable donations. In particular the Death Penalty Defenders. This really is how the legal team at the Howard League and the Prisoners’ Advice Service work in this country.

iii) Public defenders proper. They are public appointed, Government employees who are contracted full time as civil servants if you like, to defend people.

So Grayling is not switching to the American system. If somebody suggests that to you, they are wrong. The catering in a hospital or a school isn’t the same as the entire criminal defence system!

This is, an experiment. And what has to be realised is that some experiments go wrong. The Government and tabloid press might see criminal lawyers as rats, but they’re wrong to think that you can experiment on us without a consequence.

Unlike rats, there are a finite number of us.

But like rats, we know when there’s a sinking ship.

I implore anyone in politics to challenge this experiment, the consequences of it going wrong will be dire for criminal justice.

FTD

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

‘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

So says Francis Bacon

No says the Officer in the Case.

The Officer in the Case is the person in charge of the investigation of a crime in England and Wales. Their duty, in law, is to investigate all reasonable lines of inquiry which may go to a Defendant’s guilt or indeed their innocence.

“Did you Detective follow all reasonable lines of inquiry in this case?”

“Yes.”

I then asked between 25 and 30 questions. Each was an obvious line of inquiry.

“Did you follow X line of inquiry”

No says the Officer in the Case.

“Did you follow Y line of inquiry.”

No says the Officer in the Case.

At my 29th question, Counsel for the Crown had his head in his hands. And the jury were shaking their heads.

“I shall ask again Officer, did you, considering my questions, follow all reasonable lines of inquiry in this case?”

“Yes.”

The case was promptly dismissed for want of evidence. Counsel for the Crown simply shook his head.

If you go down to the Court today you’re in for a big surprise

In localshire Magistrates’ Court, in Court 1 they’re prosecuting 47 people for TV license matters. In Court 2, they’re prosecuting 20 people who have children who refuse to go to school and in Court 3 they’re prosecuting a man for strangling his wife.

Despite the fact he strangled her (and strangulation is a risk sign for escalation of violence), he is being prosecuted for battery. A Crown Court trial is too expensive because his wife might not co-operate.

In Court 4, they’re prosecuting a man for stabbing someone with a glass outside a pub, it’s been charged as battery. A Crown Court trial is too expensive and while a jury might not believe the witnesses (they were all drunk) they should be able to get it home with a Bench of Magistrates.

Unfortunately in Court 4 the trial can’t get up and running. Nobody remembered to book a Barrister. The CPS don’t really prosecute themselves in Localshire Magistrates’ Court anymore as it costs too much to get the staff there. The Defence Counsel sighs, they can’t have a trial anyway, despite four listings, the disclosure they require hasn’t been forthcoming.

Everything by now has come to a grinding halt in Court 2. The Legal Advisor in Court has noticed a large legal issue with one of the prosecutions. The problem is the Defendant was deemed not to be entitled to legal aid and has no lawyer. The lawyer for the Local Authority is baffled, they are usually a litigator in the office, they don’t usually go to Court. Now they have to, the Chief Executive slashed the Counsel budget overnight.

Back in Court 1, the fourth Defendant explains how he can’t afford the TV fee as he lost his job as a supervisor at Localshire Inc. Of the 47 people facing the charge at least 10 will say similar.

In a back office, with formica furniture, the Justices’ Clerk is trying to compose an email to the rest of the Legal Advisors in the area. Her desk is covered with the diktats of the Ministry of Justice and competing guidance from the Justices’ Clerk Society. Her email pings with another crimeline updating with another High Court case about something going wrong in the Magistrates.

She tries to think how to draft the email. The local defence lawyers are having cases stayed for an abuse of process. The CPS are simply not serving things. The CPS are blaming the police. The police are blaming the CPS. Witnesses just don’t turn up to trials, nobody tells them there is a trial. She writes, ‘abuse of process cannot be used to discipline the CPS’, she doesn’t know what else they can do.

She puts disclosure on the ‘Court User Group’ agenda again.

Affirmation – Judicial

“I, ____________ , do solemnly sincerely and truly declare and affirm that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ____________ , and I will do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will.”

Best of luck chap,

FTD

To stop the bitching forever that solicitor-advocates aren’t quite the real deal and to stop the suspicion that certain barristers take on cases out of their reach, the Government proposes QASA.

To prosecute (as most are instructed by the CPS) a criminal case at the Criminal Bar you now need to be graded. The same sort of scheme is to be rolled out for the defenders.

Levels will be 1 – 4. 1  Will Magistrates Court work and 4 will be serious cases in the Crown Court. We’ll decide what level we’re at first off and then Judges will decide if we’re in the right category and whether we can progress to the next level.

However, there’s an exception to the scheme: ‘the plea-only advocate’. The what now?

In short, there’ll be a category of advocates who don’t do trials, and they’ll be paid to turn up and advise a person as to how to plead. And they’ll be paid if that person pleads guilty, of course, if the person pleads not guilty then it has to go to someone qualified.

I can’t say how bizarre this is. Effectively it sanctions lawyers with no experience of serious trials advising someone on what might happen at that serious trial. Even though, they, the lawyer, have no experience.

So the suture only surgeon cuts you open, has a look and stitches you back up. If there’s anything that needs to be done in terms of the inside, the blood and guts then they’ll have to call in a real surgeon.

How is that a proper defence? This encourages the behaviour that QASA was supposed to stamp out in the first place. The whole point of QASA was stamp out those firms of solicitors (it’s not all…) who were sending people who weren’t qualified down to Court to handle cases. This sanctions that very type of behaviour.

But of course, really it only applies to poor people who need legal aid. If you can afford to pay privately then you’ll get representation from somebody with actual experience.

And of course, whilst there’s plea only advocates out there, they will be taking bread and water away from the actual advocates. Without said bread and water the real advocates starve.

I may be a brilliant brief. Joby, but I’m unable to walk on water or turn base metals into gold.

N.b I have used the term advocate throughout this post, like the Government does. I mean it to include solicitor advocates and Counsel. When I say, ‘real advocates’ this is what I mean: proper solicitor advocates who take cases within their competency and properly prepare them. Proper barristers who take cases within their competency and properly prepare them. Oh, and real advocates are people who put their clients’ best interests ahead of their pockets.

FTD

 

 

I actually rather like Dr. Who. Even the new bunch. I think it’s rather good. It’s rather British, there’s a sort of cerebral science fiction. I remember when it was relaunched, my tutor at Oxford (who I doubted even owned a TV) complained that it wasn’t cerebral enough. Dr Who saved the day with his brain not his brawn he complained.

On Saturday’s Dr Who it was definitely a brain episode. The world, or at least New York, was saved by a temporal paradox. Basically, (stealing from Wikipedia):

A time traveler goes to the past, and does something that would prevent him from time travel in the first place. If he does not go back in time, he does not do anything that would prevent his traveling to the past, so time travel would be possible for him. However, if he goes back in time and does something that would prevent the time travel, he will not go back in time. Thus each possibility seems to imply its own negation – a type of logical paradox. [sic.]

And in Dr Who, the paradox happened, a character effectively killed themself so they couldn’t ‘go back in time’ and the paradox happened, the world was saved and so on.

If your brain is hurting, I shall now get to the point.

Our temporal paradox

I think there’s a temporal paradox in the legal job market at the moment. As I tweeted earlier today, I was quite surprised when I looked at the jobs advertised on the Law Society Gazette.

There are 1744 jobs advertised. The two most available job sectors in law:

-Personal injury/Clinical negligence 294 jobs

– Commercial property 246 jobs

The lowest?

– Civil liberties 2 jobs.

Perhaps that’s not terribly surprising. In the first instance, you’re more likely on a day to day basis to need a lawyer to do your conveyancing, or perhaps your will, or perhaps even some will need a personal injury lawyer because they’ve been hurt.

You’re less likely to need a civil liberties lawyer, aren’t you?

Perfect paradox

The paradox I see is this: civil liberties are most at risk in recession but there is not enough funding to protect those civil liberties because of the recession.

Examples…

– The most obvious is protest. There is a right to assemble a right to march. And when are you most likely to do so? When there’s a recession, when there’s something to argue, to debate about. So, Jarrow, the Miner’s Strike, Occupy. The money isn’t available to protect that right ‘pre-facto’ (if there is such a term…) so if the police/local authority/Government decide to limit that right, there’s not legal aid floating around to challenge those decisions. I can rely on history in this regard, the Public Order Act 1986 was put in place, because of the Miner’s Strike.

– Less obvious are things such as industrial relations. In the last recession, the right to strike was very obviously restricted through the Trade Union and Labour Relations Act 1992.

– And what about: who polices the streets? The Civil Contingencies Act 2004 destroyed a rule since the Bill of Rights 1689 that the Armed Forces could not be deployed in the country during peace time. But now? In an emergency they can. And in a recession? They can. Look at the Olympics, the Armed Forces did a fantastic job but it’s not their function. They were filling a gap left by the private sector. In recession the Government look to the private sector to fill the police gaps. If the private sector fail again who can we rely on?

Luxury

Civil liberties are not a luxury, they’re the foundation stone upon which British values and institutions are built, it might seem trite, but: Magna Carta, the Bill of Rights, Habeas Corpus, trial by jury, policing by consent, freedom of speech and so on…

So, ring-fence the funding for civil liberties and when the recession is over, Britain will still be recognisable.

The paradox is this, if you cut funding for civil liberties and legislate against them to save society then when you wake up, the society you wanted to save will no longer exist.

FTD