What Mr Grayling doesn’t want you to know…

As the e-petition started by Rachel Bentley reached 60,000 signatures over the weekend, the Ministry of Justice posted a response to it as they are apparently entitled to. Clearly written by a member of staff in a hurry, “pubic” rather than “public” creating a few laughs, the response does little more than re-hash the information and the arguments put forward by the Ministry and Grayling over the past few weeks.

The same arguments that Ministry staff were unable to answer when questioned by lawyers all over the country in the recent engagement meetings (if this is engagement, the wedding is going to be fun). The same arguments that Grayling has trotted out to the press and which some of the press have simply lapped up and printed verbatim and in particular the Express and Daily Mail. The same arguments that have been forensically dismantled by a great number of lawyers, blogging, speaking and engaging with the public.

The reality is Grayling has decided that he will make cuts, he has decided how he will make those cuts and even agreed the amount of cuts he will make with Osborne, if yesterday’s headlines are to be believed. The consultation is, as I said in my first blog on this subject, a sham, fig-leaf of respectability. The Lord Chancellor has said over and over again that PCT will come in, and with PCT comes the removal of choice, the dumbing down of the profession, the greater risk of miscarriage of justice and the loss of most of the independent bar.

If the proposals are beyond reproach, beyond criticism and are so very necessary then The Lord Chancellor need have no worry about a debate as he would be able to show to us all and his colleagues how well reasoned they are, where we who actually do the job and appreciate the realities of it are wrong. As it stands there will be no debate, the proposals will never be subject to scrutiny and more importantly for us all as lawyers, no-one will test the evidence.

Let us for a moment then consider what the Ministry have said on the petition.

Mr Grayling tells us that we have the most expensive legal aid system in the world, with over £1billion pounds of tax-payers money spent on criminal legal aid. Both facts are untrue.

In comparing legal aid systems the Government fail to account for the fact that we have an adversarial system, pitting one view of the evidence against the other. Other legal systems use the inquisitorial system, evidence based but by a tribunal seeking the answers. Both have their advantages and both have their disadvantages, an adversarial system costs more for lawyers, an inquisitorial system costs more for investigation and judges/courts. If this is taken into account the net effect is that we spend on average the same as most other criminal justice systems in the world.

Mr Grayling doesn’t want you to know that.

The £1billion plus figure is an old figure. The figure for last year is less than £950 million, for the next year likely to be less than £900 million. In fact the criminal legal aid budget has been reducing for some time. Cuts already imposed, the lessening of work through the courts, the introduction, removal and then re-introduction of means testing in both the Magistrates and Crown Court have all seen the figures reduce. Fees in the Magistrates and Crown Court have not increased in over ten plus years, and many have been reduced already or removed all together.

Mr Grayling doesn’t want you to know that.

The proposals seek to remove the right to legal aid from prisoners that want to complain about conditions, categorisation and the like. This is an easy target for the Ministry and sure to gain support from the members of the general public. Why, after all should the people who have committed a crime be allowed to complain about the conditions they are held in?

As Grayling said in an interview with Catherine Baksi reporting in the Law Society Gazette that “We know the people in our prisons and who come into our courts come from the most difficult and challenged backgrounds.” If we accept at face value this comment, and see it as recognition of the problems in prison rather than a perjorative description then that the fact that is recognised and yet the government still seek to limit access to justice is very worrying.

Surely, it is for this very reason that those serving a prison sentence who have issues as to their conditions, sentence and categorisation should be allowed access to legal aid to challenge these decisions. The fact that they need to seek legal advice is indicative that the complaints system has either not been working for them or simply doesn’t address the needs of the prisoner. Why would a person imprisoned by the State feel that the very system that they are complaining about would take their complaints seriously?

Mr Grayling doesn’t want you to know that.

High value cases swallow up millions in tax-payers money. Really? Bears relieve themselves in woods, and the Pope is Catholic. This is hardly news. Difficult cases mean lengthy prosecutions, which means in many cases lengthy and complicated defences. Is it right that a complicated case should have legal aid restricted, refused because it costs too much money? Should the right to properly test a case and explore a legitimate defence be compromised because it swallows up money.

What Mr Grayling wants you to believe is that lawyers have been wasting your money on cases that you might find morally or ethically repugnant, cases like Abu Qatada who has spent over £500,000 of your hard earned tax on legal aid defending deportation over the last ten years. Yes, that is a lot of money, no it’s a huge sum of money. Whatever you might think of Qatada, his views and his politics he faced extradition and was entitled to contest it, within the law and using the law. The Government were entitled to try and extradite him, they lost not because of the legal aid being spent, but because the law was against them. It’s not, contrary to what Mr Grayling would have you believe, the defence lawyers that bring these cases. It’s the Government, it’s the prosecution of offences committed when someone allegedly breaks one of the laws that the Government have passed.

If Mr Grayling really wants to cut the legal aid budget simply make nothing illegal, no crimes, no criminals and no need for lawyers. Now that’s something I don’t want Mr Grayling to know.

Legal aid and the access to justice it allows is not something we can choose to give to one because we sympathise with their views and actions and refuse to others because of their views and actions. Justice is only justice when it is applied in an even handed way.

Mr Grayling doesn’t want you to know that.

Mr Grayling also targets high paid counsel, who shock horror were paid more money than the Prime Minister and some senior civil servants, and of course more than him. Some were paid nearly £500,000 in one year! This is clearly designed to offend the readers of the Mail and Express who all pay their taxes and contribute to society. How dare someone be paid well for a job of work.

Except the headline figure does not explain the detail of where that money may have come from, how many cases, how many years those cases ran on before conclusion. It also fails to say that counsel are self-employed. That figure if £500,000, and only a very very few earn at that level in any one year and virtually none consistently is not money in the bank. From that money, tax will have had to be paid, National Insurance, VAT, Chambers rents, clerks fees, travel costs, books and materials to allow the work to be done in the first place. There will have been no holiday pay, no sick pay available.

Mr Grayling doesn’t want you to know that.

Under the reforms those who do not have a strong link to the UK will not qualify for legal aid. Essentially those that have been in the UK for less than a year will not be eligible to legal aid. This will mean that those who seek asylum will be unable to access legal aid for the first year they are in the UK, after which they will likely not be in the UK. Those that have been trafficked into the UK by criminal gangs cannot access legal aid to ensure and preserve their rights. Perhaps an extreme example but if applied, the baby who is the subject of care proceedings cannot have a lawyer to represent their rights, because they haven’t been in the UK for a year. So it may save some money, but where is the justice?

Mr Grayling doesn’t want you to know that.

Under the proposals Mr Grayling tells us that you will still have access to quality duty solicitors and lawyers. He doesn’t tell you that three in four current firms are likely to disappear over-night. He doesn’t tell you that the firms that will take your case will be allocated to you and you will not be able to choose the lawyer you trust or want. He doesn’t tell you that you will not have the right to change the lawyer allocated to you if they don’t provide you an acceptable service.

He doesn’t tell you that the fees he will be prepared to pay give the lawyer an incentive to settle a case early, and in criminal cases that means pleading guilty. He doesn’t tell you that firms like G4S, Stobarts and Tesco have all indicated that they would consider bidding for a contract. These are all companies who are listed on the stock market; all companies who are accountable to share holders and not you, the public or their clients.

The fact a lawyer will be available to you is not Mr Graylings choice, a couple of years ago the Government seriously considered the possibility of removing face to face access to a solicitor in the police station if you were arrested. It’s only a matter of time before Mr Grayling thinks about this again, before he thinks of another way to “save” your tax and without a committed and broad base of defence lawyers available, who will stop him then?

Mr Grayling doesn’t want you to know that.

The petition needs 100,000 signatures for the issue to be considered for a debate in Parliament. Mr Grayling doesn’t want that to happen, as he knows he cannot fudge and bluster his way through the questions that have and need to be asked as he and his Ministry have done so far.

If you value justice, if you value accountability, if you believe that spending on criminal legal aid a sum equal to less than 0.5% of all the money the Government spends annually is a price worth paying for a fair and just legal system then please sign the petition to help ensure a debate.

Over the past few weeks many people have written so many very good reasons why the reforms are fundamentally wrong and why they need opposing, and should not be imposed. You can, and please should read them here. and Mr Grayling really doesn’t want you to know that…

Never say never…

As our protest against the Ministry of Justice reforms on Legal Aid continues, I have tried to explain to as many people as I could how important legal aid is, how it gives a voice to those people who haven’t got one themselves, how being able to choose a solicitor you trust to give proper and quality advice is fundamental. More importantly how Legal Aid is not just for the criminal, and how anyone might find themselves in a police cell one day for something that was beyond their control.

As I travelled back from the meeting on Wednesday the train was full of lawyers, many wearing their badges and t-shirts, imploring you to “Save Legal Aid”. A middle aged man sitting opposite me, seeing the badges asked me what it was all about? I started to explain, and by now I have managed to get the key issues down to a few sentences.

The man shook his head and interrupted me quite incensed, “Why should I have my taxes used to pay for criminals to get off thanks to you and your colleagues weasel words? If they are criminals then they should not get any help at all. It’s not difficult to stay on the right side of the law.”

I told him this story.

James and Eileen had been married thirty years, they had four children together, had a nice house and ran their own IT business. Lately, James had been unwell and after a close shave with a small heart attack tests revealed that his arteries were clogging. Luckily something could be done and six days earlier he had been released from hospital after a triple by-pass. Weak and feeling the effects of major surgery he was say in his chair reading the morning paper when the doorbell rang.

There had been a number of visitors since he got home, and working from home meant there were a constant stream of clients to the door, but eight o’clock in the morning was a bit much he thought.

Moments later, Jackie, his daughter opened the living room door, ashen faced and said “Dad, there are some policemen here to see you, they say they want to arrest you!” Close behind six police officers came into the room, two in suits and four in uniform. They asked him to stand up and immediately cuffed him, and they arrested him for assault, child cruelty and indecent assault.

This was ridiculous, what on earth, he had never done anything wrong, never been arrested before, had always worked hard, always done what was right. how on earth could this happen?

As he was led out to one of the police cars outside, an officer putting his hand on the back of his head as they guided him into the car, he could see his wife being put into another car, tears streaming down her face. “Phone Mark, ask him to help.” he said to Jackie as she stood by the front door and the remaining officers started to search the house.

A phone-call was made by Mark to a local firm of solicitors. Representation by a solicitor known to have a good reputation, known to be be trusted to do a proper job was arranged. The solicitor went to the police station, ensured that rights were upheld and medication and food was arranged, on top of everything else James was a diabetic and needed regular food and medication.

There followed a long day of four separate interviews. James and Eileen had before Jackie had been born, been told that they could have no more children. Desperate to have a girl they had fostered and planned to adopt a little girl S. S was in every sense of the word a damaged child. Abused by her parents and by a system that had pushed her from pillar to post she had developed a number of troubling behaviours, was violent, overly sexualised and entirely untrusting. None of it her fault, and at heart was just a little girl looking for love. James and Eileen believed that they could give that little girl a home, stability and love, and they tried so very, very hard. After a number of months things got worse, the entire family were disrupted and the foster placement broke down.

Thirty two years later she had made allegations that James and Eileen had abused her physically, mentally and sexually, she would have been six or seven. None of it was true, none of it happened and both James and Eileen told the police this repeatedly, at length and in detail. They were able, with the help of a solicitor they trusted and believed in to put forward their story, refute the details of the allegations, the addresses the alleged abuse had taken place did not exist, the people present were a fiction.

After sixteen hours in the police station James and Eileen were released on bail. Their solicitor explained what would happen now, how the allegations and their interviews would be sent to the CPS and they would decide whether charges were to be put.

Two months later a police officer called James at home. He explained that the CPS had advised that no further action be taken, that there was insufficient evidence to charge him or Eileen. He was good enough to say that the entire allegation was a fiction, made up by S as she had heard that James and Eileen had done well for themselves and she believed that there might be money in it for her. His and Eileen’s account had given him enough information to challenge the account provided by S and highlight the inconsistencies. He apologised for any inconvenience caused and explained that once an allegation had been made the police had to investigate it thoroughly. James thanked him and broke down in tears at what might have happened, what might have been had he not been able to put his own version forward and had not been able to talk to a solicitor that he knew and trusted in the police station.

Before his arrest James held the view that criminal lawyers simply represented the bad, the mad and the sad. The ones who put themselves within reach of the criminal courts. The ones who took legal aid to get away with it. The ones who used me and my colleagues to talk them out of trouble. After his arrest his view changed and he understood the need for a solicitor who understood the law, the people he works for and more importantly the fact that not all those who are arrested are criminals.

I know this because James and Eileen are my Mum and Dad, although I have changed their names. It was me that my sister rang to arrange help, and it was me that called a solicitor for them.

I was a solicitor then but worked in another area of the country but knew who to call. My Dad who had genuinely believed that the people I represented were all guilty to a greater or lesser degree, changed his mind after that day. Dad passed away at the beginning of April without any knowledge of the changes planned by The Lord Chancellor, but I know he would be appalled if he were alive today.

Neither my Mum or Dad had any reason to believe that they would ever need a criminal solicitor, never believed that they would be arrested. They were like so many people I have spoken to over the past few weeks, it will never happen to them, they had done nothing wrong and will not do anything wrong. Yet, they still found themselves arrested, detained and interviewed for very serious offences. Allegations they could neither avoid or expect. This is the reason why these reforms are so very wrong. It takes away the right to choose, it makes justice a commodity to be bought and sold, the reforms mean that you are no longer a client but a saleable unit. This is wrong, and I will continue to oppose the reforms and would ask you do the same.

And the man and the woman on the train? They signed the petition there and then…will you?

Sign it here.

Monkeys, peanuts and quality…

‘Voters may not like it but if you pay peanuts you get monkeys. Unless our pay goes up, the decline in the quality of  people prepared to become ########## will increase and the whole country will suffer.’

The comment may have come from a disgruntled legal aid lawyer, a policeman whose pay has been frozen or a teacher who has lost out. It could have come from any one of the professions that rely on public money to survive, who provide a service to the general public. But it doesn’t…

The words blanked out are “MPs and Ministers”, and the comnent is made by an unnamed senior policitian about the suggestion that MPs pay should be increased by £10,000 per annum. Apparently, one in three MPs believe they should have a pay increase of £25,000 per annum, but will seek only £10,000 as it is more palatable to the voter.

There are currently 650 Members of Parliament, so do the math and that is an eye-watering amount of extra money to find, even if it is spread across a five year period. At a time of apparent austerity and cuts to all others who take a public service salary, it is frankly a suggestion that beggars belief.

The money is not the real issue to me though. What caught my attention is the argument put forward that links between renumeration and quality.

The legal aid proposals have been rightly criticised by both arms of the profession as fundamentally wrong, as regards both the evidence on which they are based and the manner of the proposed cuts to the budget. Make no mistake, the proposals are based purely on cuts and are in no way designed to improve the system.

Key amongst the criticisms is the inevitable decline in quality, as the reforms will create a much smaller supplier base with a guarantee of work within a procurement area. No longer will suppliers need to fight for work or clients. It will make no difference to them if they provide an exceptional service or simply an acceptable one, the work will still keep coming. There will be no competition as there can be no new entrants, and a client cannot choose a supplier who does do the job properly; the client will be allocated to a lawyer on the basis of name, birth date or perhaps even hair colour.

With a cut to the amount of money available for each case, the mega firm, who may well be owned by publically quoted companies will want to ensure a return on their investment. As a result the pay available to those who work for them is unlikely to be attractive, certainly not when you consider the need to work outside of the traditional 9 to 5. Those with ability, flair and a passion for the work simply will not be there. There will be likelihood of new talent wanting to join the profession and the whole legal profession will die a slow and painful death.

If a senior politician can recognise this for their own profession, why can they not see it for others?

We must continue to fight, to highlight our concerns and ensure those that will suffer the most from the wholesale destruction of legal aid and those that provide it are aware of what is happening behind the closed doors of the Ministry of Justice.

When there is no enemy within, the enemies outside cannot hurt you.

“When there is no enemy within, the enemies outside cannot hurt you.”
Winston Churchill

There are approximately 125,000 solicitors practising in England and Wales and a further 40,000 who remain on the Solicitors Roll but who do not practice. Additionally, there are about 6000 barristers working in the country.

The e-petition created by Rachel Bentley needs 100,000 signatures to make sure a debate in Parliament on the Ministry of Justice proposals for the reform of Legal Aid. So why have we not yet reached the figure needed? Maths was never one of my strongest subjects but if all the solicitors and all the barristers signed we would be well over the finishing line by now.

Well, obviously not all will support the petition, although I have been struck by the sense of unity within the criminal profession, both solicitors and barristers. Some will still not know about it as it simply does not affect their part of the profession. What relevance does legal aid have to a city lawyer. Others, and this is a view I have come across more and more often, have said to me why should I bother, you did nothing when the Ministry came for me?

This is sadly, true. For too long now we have sat on the sidelines whilst we watched others within the profession get slowly taken apart and thought “Well, thank goodness it wasn’t me, this time!”

Conveyancers lost out as their part of the industry was made open to the market, probate departments watched as unregulated will-writers moved in and took a massive share of the market. The Bar struck a compromise when solicitors fees were cut, solicitors lapped up the right to become Higher Advocates. Civil lawyers were left reeling after various funding reviews and criminal lawyers breathed a sigh of relief when LASPO seemingly left us largely untouched, whilst the family lawyers looked around at the devastation caused.

It’s natural to want to protect your own. It is perhaps understandable to walk on by when you might get hurt by wading in. What it means is that when you need someone to help you they may simply not be there.

I blogged about the possible consequences of LASPO when it was being mooted as far as criminal lawyers were concerned. I mentioned the impact on my family lawyer colleagues but no more. I didn’t understand them, I didn’t appreciate the likely consequences enough to comment on them and left it to those that did to try and do something about it. I regret that now. It may have been of no help but at least I could say I tried.

The Ministry of Justice tell us that they are prepared to listen to us, that they will seriously consider an alternative to PCT and across the board fee cuts if we can show an alternative. The reality is that without the figures, the information on costs, costing and so forth we are always going to be at a disadvantage. The people who hold this information are the very people who want to impose the cuts. We need to have this matter in the open, to have it properly debated and examined and not just within a closed group of lawyers.

The e-petition will not in itself stop PCT, it cannot propose the alternative, but it will raise the issue to a wider audience and will hopefully allow a debate that we can all contribute to.

If you are a lawyer of any sort please sign it, have your colleagues sign it, have your family sign it and raise the issue everywhere. Let us all as a profession, regardless of discipline, history or position move forward together as one. Otherwise when the men from the Ministry come for you, and they will, there may be no-one there to stand by your side.

Time to listen…

As the deadline for submitting a response to the Governments legal aid consultation draws nearer, the Lord Chancellor has agreed to meet with members of the profession this week. I would like to think that he may be willing to listen to the arguments put forward and see the sense behind the opposition to his proposals. That he would understand that the financial basis of the reforms are based on figures that are out of date. That the real consequences of the proposed reforms will be a downward slide in the quality of advice given, which may very well cost more money in the long run.

Sadly, I am less than convinced that this will happen, and the meeting is simply an exercise in public relations.

His department have made it clear that there will be significant cuts made, that the model of price competitive tendering has been deemed as the way forward; and opposition is simply the attempt of the profession to save it’s own skin.

Joshua Rozenberg reported last week on one of the engagement meetings run by the Ministry of Justice and concluded that the Ministry are open-minded as to proposals for the reforms on Legal Aid.

The head of legal policy at the Ministry stated, “We appreciate that the proposals are causing deep concern and people have genuine worries about aspects of the model. That’s why we genuinely want to hear from people. I know people often think that responding to government consultations is a waste of time. All I would say to you is that we want to hear your views. We want to hear your suggestions.”

What was not made clear from that statement is that the consultation paper does not ask for proposals, suggestions and comments on the issue as to whether PCT is the rights way forward. It seeks suggestions as to the best way of allocating clients, the nature of the procurement areas and so forth. There is implicit in the document that PCT is going to be imposed regardless.

That is why as a profession there is so much concern, so much anxiety. The model for PCT proposed does not guarantee quality, does not ensure that rights are protected and fails to recognise the difficulties and peculiar nature of the provision of criminal advice and representation.

I am concerned that the consultation exercise is a waste of time, that the responses given will make little difference to the eventual outcome. I have this concern because the department and Chris Grayling has very recent form for ignoring the views and evidence put before him in a consultation document.

In the foreword to the departments response to the consultation on Reform on Judicial Review published within days of the legal aid conference he said,

“Last year, I published an engagement exercise which sought views on a series of proposals for reform of Judicial Review. The need for reform was driven by concern about the growth in the use of Judicial Review and the delays these proceedings create, in some cases frustrating plans for growth.

There was a body of support for my proposals, mainly among businesses and public authorities. But most of the responses we received were opposed to reform. There was criticism of the consultation procedure and the lack of evidence, and some saw the proposals as a serious attack on the rule of law.

I do not accept these criticisms.”

That consultation had twenty seven named contributors, all of whom had either a vested conmercial interest in judicial review being removed or being strictly limited, the ones he listened to. Or they worked with groups for whom judicial review was the last resort, those he ignored.

It is against that background that we seek to persuade him that the proposals put forward are wrong. The proposals are based on figures that do not take into account the significant reductions already made in the criminal legal aid spend, on bold assertions of fat cat lawyers making millions from the hard work of normal people, fail to evidence where the public have lost faith in the system.

Politics is I am sure a difficult game, and a balance needs to be acheived in what is done. Somethings I believe are too important for politics and the principles of justice, access to justice and a lawyer of your choice is one of them.

I hope my colleagues can persuade Mr Grayling of this later. In the meantime we can all send him a message…

Please sign the petition www.epetitions.direct.gov.uk/petitions/48628

Contact your MP http://www.parliament.uk/about/contacting/mp/

Respond to the Consultation (you don’t have to be a lawyer)

 

Should have gone to…

This weekend I had the chance to meet up with a friend and colleague from the area I had used to work in. I immediately noticed he was sporting a new pair of glasses and commented on the same.

“£700 for three pairs!” he told me.

I gulped and said “You should have gone to…”

He smiled and said he had last year, and bought three pairs then and it had only cost him £400, but two had broken and he had lost the other two. So this year he went back to his usual optician, a small specialist in the town he lives in. He had last been there six years ago, and the glasses he had bought then had lasted until he needed to replace them last year when he went to the national chain of opticians. In the long run it was better value to pay that bit more and go to where what he bought was going to last. Plus, he said, they knew him, recognised him and offered him a better service overall. At the high street chain, he felt he was just a name on the list. Yes, they were cheaper, yes they were a bit quicker and the service was acceptable, but they were just that acceptable.

The point is, the comparison between the small firm and the high street national is what the government intend to do with your legal advice and your representation at court. The big difference is that you won’t have the choice of going to the specialist firm, they will no longer exist, in the interests of driving down price, and ensuring those firms that take on a contract will have enough work to make it worthwhile doing (and if you look at the figures there is not much chance of that).

Legal aid does cost the taxpayer money, legal aid may never be used by you or anyone you even know. The thought of you funding “criminals” to be represented and get away with it is, i know, never going to be attractive. Yet, it means that people who have committed an offence get the best possible advice, and this is very often, plead guilty. It means that those who have not committed an offence are given the best possible defence by people who believe in the need to test everything, who know how important it is to the person concerned. Legal aid is necessary because you never know when you might be in the wrong place in the wrong time. When you might make a mistake, when for a moment it all becomes too much, or when the police and the prosecution have very simply just got it wrong!

Under the proposed system the new suppliers, who may have never run a criminal practice before will be allocated clients, no choice in the matter, you become a name on a computer, they will never see you again, you cannot choose them in the future if you need them again. Where is the incentive to work hard, to work above and beyond. The government have said they need only give an acceptable level of service. Currently under the existing system, I and my colleagues rely on clients instructing me, my work is generated from some allocation from a rota system but primarily from clients choosing to instruct me. They choose me and my colleagues from other firms because they know us, we know them and we want them to come back to us and for them to tell their friends how we did, so we work and we offer a service that is beyond acceptable, that is what we would want if we were at the other side of the desk, a service that in the words of the man who is trying to dismantle it “one of the finest in the world”.

If you value quality, if you value choice, if you believe that you are entitled to the best defence available then please sign the petition so that the Government have to debate the issue and not just pass it through behind closed doors.

The person behind the file…

The pile of files sitting on my desk at the moment represent to me the cases I have to deal with in the next forty-eight hours. For the people whose name is on the front of those files they represent a critical point in their lives. How I deal with those files, what work I do and how I present their cases could make a real difference in the outcome for them.

My first senior partner was an old school lawyer in every sense of the word. He was from a fortunate background which meant he didn’t need to work, and probably hadn’t needed to work for the nearly forty years he had been qualified. He didn’t need to turn out at 2am on a Sunday morning but he still regularly did.

I once asked him why he still flogged away at the coal face and he told me that he felt he had a moral imperative to speak up for those who could not themselves. He said clients would come to me to discuss their problems, their issues and put them all in an untidy pile on the desk in front of you. As their lawyer it was my job to try to sort through those problems, those messy issues and as far as I could make sure that the pile of problems and issues they took away were at least a bit tidier and a bit smaller when they went away.

As a legal aid lawyer this is what I have always tried to do; this is what in my experience my colleagues, friends and other legal aid lawyers try to do on a daily basis up and down the country. It may not always be appreciated, it certainly doesn’t pay well and it drives the accountants mad.

We are not angels, we are not crusaders, we are not all morally blind liberals. We just understand that clients should have a choice in who they put their trust in, who they want to make their problems a little more manageable. Quality advice makes a difference to the client, to the victim and to all concerned. We are committed to providing a quality service that we can be proud of.

This is what Chris Grayling is taking away, this is what he is trying to dismantle in favour of a cheap, efficient and acceptable service. This is why I and thousands like me have signed the petition against the reforms, why I have submitted a response to the consultation and written to my MP warning him of the dangers. If you want the right to choose the lawyer that will care about the name on the front of the file then please do the same.

#saveukjustice petition

Contact your MP

Online Consultation Response

The right to choose…

The Ministry of Justice have issued a proposal document that seeks to reform the way criminal legal aid is effectively bought by the Government. I blogged on the issue a couple of days ago and you can read it here…

http://crimsolicitor.wordpress.com/2013/04/23/the-price-of-everything-the-value-of-nothing/

Amongst the removal of legal aid for Judicial Review, the restrictions on Crown Court legal aid if you earn a certain amount of money, the removal of civil legal aid to those with less than a year in the UK and the shameful cutting of fees for the Bar, by far the most damaging is the concept of price competitive tendering.

At present legal aid is provided by those who can satisfy certain quality criteria, about 1600 providers. The proposal is to only allow the cheapest and limit the number to 400 contracts, and in all likelihood less than that number of providers. In order to make sure an “attractive” amount of work for each of these providers a client will no longer be able to choose which solicitor he has acting for him. Familiar names and firms will go, relationships of trust will be broken and you will be given one of the providers in the area that was chosen simply because they were cheaper than the others.

I don’t doubt there will remain a core of good solicitors, of solicitors who will do the job because they want to and believe in the idea of justice and fighting for your rights, but many, many of us will go. I already know of three solicitors planning to call it a day if the proposals are implemented. These are good solicitors, solicitors that I would use if I needed help.

It is the lack of client choice that appals me the most but without it the proposal cannot work, and the idea is just so misguided if, as we are told, the proposals are there to improve efficiency and save money.

Whether we like to accept it or not, the bulk of instructions we receive are from repeat offenders, people who have already been in the system. People who know us, trust us and in some cases even respect us. They are the people who rely on us to give good advice, who will trust us to do what is right for them, people who are more likely to accept the advice we give even if that is unpalatable to them. This trust means they will take the advice to plead guilty when they should and not drag it out to a trial. This is a cost saving to the fund and importantly means their victims are not forced to endure a wait for justice and the ordeal of a trial. We know these people, we know their families, we know their problems and how it affects them. This means we can direct them to the advice and help we need.

The lawyer/client relationship is one built on trust, it is vital that is not thrown away in the name of expediency and cost. With it we can help give justice not just to the client, but to the victim and in the words of Chris Grayling spend the taxpayers hard earned money effectively and responsibly.

Let me give you an illustration of how important the client relationship is. I posted the following in a slightly different format a while ago when arguing for face to face advice in the police station, something that was at risk when the Government where considering the last major reduction to legal aid and reducing access to justice. The principles remain the same, perhaps more so.

Let me introduce you to Brian…

Brian is 6’4″ tall, weighs 22 stone, shaves his head and has tattoos covering about two-thirds of his body. Brian suffers from a number of physical difficulties including epilepsy and has been categorised as having a borderline personality disorder and takes a cocktail of medication each day.

He speaks slowly and has a broad West Country accent. First impressions on meeting Brian are rarely positive. Physically he is intimidating and his speech and mannerisms often give the impression that he is slow to comprehend things.

As a result the contact he has had with authority figures whether that be police, doctors, social services or courts rarely go smoothly. People treat him as being stupid, and he becomes frustrated, voices are raised and one thing leads to another, usually badly for Brian. Brian is certainly not stupid, just unable to communicate very well.

Three years ago Brian met Sheila. Sheila was the love of his life, his first girlfriend. For ten months Brian spent all his time with and all his money on Sheila; flowers, chocolates, fancy meals, clothes, jewellery and a myriad of other gifts. All was well with his life.

At the end of ten months Sheila left Brian and there was no reason given, no real explanation, she just stopped answering his calls, texts were not responded to and her Mum told him she was never in. Brian became depressed, his medication was upped and over time he found a level to build from.

Then two months later Sheila contacted him again.

A text, would he meet her, she wanted to talk.

Delighted, he met her in their café and she told him she was pregnant. Not for a minute did he question whether he was the father. In his head he straight away made plans about what the baby would need, where they could go and what he would do with her. Sheila made it clear that she didn’t want him to have any involvement at all, he could provide for the baby and that was that. Nothing Brian could say would change her mind.

Resigned to the fact he may never see his child he nevertheless started buying clothes, toys and other essentials from his Disability Living Allowance. He opened an account and put £10 a week into it, “For when she was 18 and needed a car”.

Six months later, Hazel was born.

Brian was not present at the birth and was only told he had a daughter two weeks after the actual birth by way of a text message. Brian immediately went to see Sheila but she wouldn’t see him. He didn’t see Hazel but was sent a blurry picture to his mobile phone.

At that point someone told Brian that he was entitled to see his daughter, he had rights. He contacted the firm I worked for and the process of him seeking contact was started. Time was spent with him, and a relationship was built with him. At first things were not easy, he distrusted authority figures, he did not want to communicate with us, and wasn’t happy to speak about himself and his life. But, things got better and as he began to trust us he provided information that we needed to help him and to built a case. There then started eight months of assessments; court, doctors and social workers and various distressing court hearings where Brian’s life was dissected.

You see, not only did Brian have various medical issues he had a caution when he was 17, for sexual assault. He had kissed a girl, a fifteen year old, who he thought was his best friend. She told her Mum, she told the police and he was arrested. The circumstances were not in dispute but it meant Brian was a potential risk to a child, even his own. Finally the court ordered that Brian be allowed three two hour contact sessions a week, supervised and in a child friendly environment.

For three months all went well. Brian had his contact and he thrived from it. He had a new tattoo on his arm proudly proclaiming his daughters name and date of birth. He was in his own words, “as happy as I had ever been”.

Then, through no fault of his own his benefits money changed and he had less to live on. Some weeks he could not afford to pay the maintenance he had been paying to Sheila. Suddenly Hazel was ill, she was away, she was asleep and so he was no longer having his contact. She wasn’t, they were all just excuses made up by Sheila. For a while Brian accepted these reasons and did not make a fuss. As the days went by his frustration increased, calls were made to Sheila, texts sent and visits made. Still no contact.

Battling with his emotions; the frequency of the calls increased, texts filled Sheila’s inbox, he knocked on her door more and more often. Frustration moved to annoyance and then anger. Words were said in desperation and sent in texts for all to see. Brian was arrested for harassment and I turned out at 11pm to represent him. He had said he didn’t want a solicitor at first but a sensible custody sergeant had persuaded him. He asked for my firm as he knew us and trusted us. I spent forty minutes with him, I already knew who Brian was and I understood where the root cause of the problem came from.

After advice and an interview, representations were made to the Sgt and a caution given. Brian was also told how he could enforce his court order for contact, and an appointment made for the following day.

I went on to the next client and forgot about Brian. I saw him a few weeks later pushing a pram, fussing about a blanket over his baby daughter. We stopped and chatted for a few minutes, made the obligatory comments about a beautiful baby, wished him well and went on with my day.

A few days ago I was called to the police station for a “lump of a man” who had been difficult from the moment he came in and was still being difficult in his cell. He had been arrested for common assault.

I went straight up to the station. I was told that the client was Brian and was told that four weeks ago he had punched his ex partner over a contact visit, they were both in the middle of a busy shop, people and children had been scared. He was asked to leave and he had walked off.

I was told that he had admitted it when he was arrested and that the interview was a formality. There was no injury but having in mind his previous caution on the same victim, his background and the fact he had been difficult all the way through his detention he was going to be charged.

I was able to find out by speaking to the officer, although he was reluctant to tell me, that the statement had only been made three days ago. I asked to speak to Brian, and got a drink for him, hot chocolate with five sugars because I knew that’s what he liked.

I went into the room to speak to Brian. He was in tears, a monster of a man sobbing into his fists in the corner of the interview room. As soon as I walked into the room he became calmer, he started to listen to what was being said to him. He knew me and he trusted me.

It seemed that, on the day, he and Sheila had made the usual arrangements for a contact visit, but one of them had made a mistake and having waited twenty minutes Sheila had gone off shopping. Brian had called her and when she said she was in the supermarket shopping, he had gone down to speak to her and hopefully persuade Sheila to allow the contact visit.

He had gone to the shop where he had found Sheila with her head in a freezer choosing a pizza. When he called her name he said she didn’t answer him but thought she may not have heard him, it was after all a busy shop and her head was in the freezer.

“So what did you do?”

“I tapped her hard on the shoulder to get her attention so i could speak to her. She shouted at me and the Manager asked me to leave”

He denied that he had on he had punched her, and maintained that he was not angry with her.

He went on to say that he hadn’t seen Hazel since, and he had not paid Sheila maintenance for three weeks because he had not had contact. Three days ago she said she was going to report the assault.

He was scared that he would lose all his contact with Hazel because of more lies. He said that Sheila did not need him now as she had a new boyfriend. He said he didn’t want to talk to the police officers as they wouldn’t let him speak and thought he was stupid.

I explained that in law he had committed an assault by touching her without her permission, even if he had not punched her. I told him he needed to explain his history with Sheila to the officers and that the officers had not let him speak before because they wanted to protect him and themselves as the comments needed to be on tape.

Brian wasn’t certain whether he could say all he wanted to say properly, he didn’t think he could talk to the officers and let them know all they needed to know. He was scared that he would make his situation worse and by admitting an assault Sheila would go back to the court and he would lose his contact.

I drafted a prepared statement, Brian signed it and I read it out for him at the start of the interview. I made it clear that Brian was happy to answer any clarification questions. With patience and cajoling from me and the AA Brian got through the interview.

The officer told the Sgt that he had made a full admission to the offence, that he had been frustrated by the contact being messed up and he had hit Sheila on the shoulder. She was factually correct, that’s what he had said in his statement, and in the questions he had then answered. The meaning of what he had said was different, a fact I explained to the Sgt and the officer. After much discussion and thought, it was agreed that on the balance of the evidence, the lack of corroborative witnesses and taking Brian himself into account that there should be no further action and Brian was released.

He still has to resolve the issue of contact, without the help of a legal aid lawyer now but at least he does not have the additional burden of a charge to deal with.

This is just one example of why the right to choose the solicitor of your choice is so very important and one that we should all fight to preserve. It is not unique and I and my colleagues could give you so very, very many stories of a similar type. My knowledge of “my clients”, the relationship we build with them and the trust that we develop helps ensure justice for them and often their victims. This is something that is hugely important to me. It really isn’t about the money.

I’m not saying that the same results would not have happened if Brian had been allocated different unknown solicitors each time he had beeb arrested and thatBrian would have been facing a charge in court. I am saying that in his case there would be a very real risk that he would have simply not co-operated due to his difficulties, and an injustice may have happened and what price do we put on ensuring an injustice does not happen. In this case I was able to use my knowledge of my client, his circumstances and my working relationship with the police to prevent a possible injustice and more importantly save money for the public purse.

He will be able to continue to see Hazel and that means he remains stable and happy and does not push him off the rails where who knows what it might cost to put right. The cost of a court case has been avoided.

Your right to choose a solicitor and a barrister of your choice of legal advice is important. Make sure that you can exercise it in the future and let your MP know how you feel. This is a really important issue, nobody wants to think they will be arrested or face a charge, but sometimes the unthinkable happens. When it does then make sure you can choose who you or your loved ones are helped by.

Please sign the petition www.epetitions.direct.gov.uk/petitions/48628

Contact your MP http://www.parliament.uk/about/contacting/mp/

Respond to the Consultation (you don’t have to be a lawyer)

The price of everything, the value of nothing…

Let me make one thing very clear from the outset, I and my colleagues increasingly vocal opposition to the proposed reforms to criminal legal aid have nothing to do with the risk it poses to mine and their lifestyle, the loss of our jobs and incomes. We all appreciate that we do not hold any high position in society that means we are entitled to a job for life.

Our opposition is to the very real loss of access to justice, choice and fearless representation that will inevitably follow if these proposals are allowed to go ahead. The loss of protections afforded to the people that need it the most and because we see these proposals as a further step down the road to the end of a justice system that is rightly regarded as one of the best in the world. My concern is that these proposals will simply be nodded through without any real consideration of the long term effects and once in place will become almost irreversible.

Of greater concern is the lack of general awareness to the whole issue by the general public as to how it may affect them and the fact that they are being fed an argument that I initially thought was ill-conceived but now believe is intentionally misleading.

Examine the various press releases over the past few months that have come from Chris Grayling, nowhere does he refer to persons appearing in court as defendants or the accused. Instead he uses the term criminal, criminals and offenders. He refers to legal aid as profligate, lawyers as racking up huge fees for cases that run on and on, that the system is the most costly in the world, that the hard-working public pay for legal aid and that they (the public) have lost confidence in the system. In this way any attempt to amend the proposals, any opposition to the proposals by lawyers appears to be an attempt to preserve our own little fiefdom.

It does not matter that the figures used in the consultation are over a year old and no consideration is made to the reductions in the budget already achieved by a lowering of fees, the downturn in work through the courts. It does not matter that the huge fees are incurred in a very small number of cases dealing with the most serious of crimes, including terrorism and the like. These cases will always exist, these cases will always cost vast sums of money, and if you are charged with an offence then you must have a right to defend yourself and if you cannot afford to pay then there must be a way for the state to provide you with that right. You can’t have “Justice Light” for those people you don’t like or don’t want.

The argument that we have the most costly legal aid system in the world is and always has been a red herring. You cannot compare systems across the world and say that one is cheaper without highlighting the differences in approach. We have an adversarial approach which means the work is done by lawyers, in an inquisitorial system the work is done by the Judges. It costs the same amount of money; it’s just put against a different budget.

In my opinion these reforms will not have any effect on restoring public confidence in legal aid, far from it. The eventual effect will be dissolution in the reputation of the profession and the belief that justice has been disregarded in favour of price. The real problem is that affording “criminals” rights to a defence and a choice if it costs money is simply not an attractive proposition and that as a member of the public no-one believes it can ever happen to them.

Access to justice is not just about catching the bad man and punishing them. Justice is about the righting of wrongs, of balancing the scales and of ensuring what is right is done. Access to justice means that the single Mum has the ability to properly fight for contact with her children. Access to justice means that a decision by a body of state can be challenged by anyone and their views heard and explored. Access to justice allows the recently dismissed shop worker the right to have advice as to whether he was sacked lawfully without having to worry about the cost. Access to justice means that the prisoner serving a sentence can challenge the decision of the parole board to not release him as he has not completed the courses necessary when they are not available to him. Access to justice means that those accused of a crime can approach a lawyer of his choice who knows him, understands him and wants to properly advance his case. Access to justice means that a man accused of a crime can take advice from a lawyer he trusts and respects to give him the right advice and enter a plea in a timely fashion.

On 1 April the reductions in legal aid entitlement set out in LASPO came into effect, removing at a stroke legal aid from a huge number of people. These cuts were opposed by me and others and received debate time in parliament. The coming few months will show just how damaging cutting legal aid can be as those cuts bite.

On 9 April 2013 the Ministry of Justice announced further cuts in the proposal document “Transforming Legal Aid”. These proposals will not have any debate time in parliament; these cuts don’t need legislation to implement. These cuts herald an extinction event for the criminal profession and the rights to access to justice. There is still time to try and avoid the damage these proposals will make. We need as a profession to stand together and not protect our own self interests. The proposals, together with the QASA proposals are designed to set Counsel against Solicitor. If we don’t stand together then we risk being written off as simply lobby groups. We need as a profession to highlight these proposals to the public; to let them know what is at risk, we need to show that the Government know the price of everything but the value of nothing.

Do not be fooled by the use of the word consultation. A consultation involves a dialogue, a discussion between interested parties, at the end of which you will hopefully reach an agreed way forward. This is not a consultation; a decision has already been made as to how the MOJ will proceed. What is being consulted on is the manner of the demise. The current process is a sop, a necessary delay in order to ensure there are no available challenges to the policies to be implemented.
If evidence is needed of this take a look at how the response questions are worded. There is no question asking whether PCT is an appropriate way forward, no questions seeking a viable alternative or whether cuts themselves are even necessary. In essence it’s akin to asking the chicken “Would you prefer Sage and Onion, or Lemon and Thyme?” Either way the chicken is going to be stuffed.

Consider also the recommendations contained within the Carter Review of Legal Aid in 1996. All of the primary recommendations with the exception of BVT and Single Case Fees have been implemented. It is these two proposals that form the basis of this consultation.

Although there are a number of worrying proposals within the document the biggest and the one that will have the greatest effect is PCT, or Price Competitive Tendering. That will mean providers bid against each other to provide advice at the police station, and representation for all litigation in the Magistrates and Crown Court at a fixed price per case. Inevitably the lowest bids in each area will be awarded a contract for a minimum period of three years, extendable to five.
The Government believe that market forces can be made to apply to anything from the bulk purchase of hammers to the provision of professional advice. The problem is buying a bulk load of hammers is quite a different proposition to the purchase of professional advice. Sometimes market forces simply cannot be left to decide how something is provided, and particularly when the Government are the purchaser.

More pertinently the Government don’t want market forces to decide how and at what price criminal legal aid is provided, hence the need for the Government to “rig” the market in the first place.

If pricing were left exclusively to the market then as a whole the price would go up, we would no longer work for the current pay rates as it does not reflect the cost of doing the work we do. We already work at a significantly lower rate than we used to and that we could charge.
So the Government need to set a price cap, a maximum amount of money they will pay for the services to be provided. They have set that cap at a rate 17.5% less than the current fee structure. This is to prevent the providers holding the Government hostage on price. So already providers have even less incentive to bid for the work. In order to make it worthwhile the second stage is to cap the number of providers in any given area and then guarantee those with a contract a certain percentage of the available work. What was a free market with anyone able to compete and offer their services is now a closed market with a price cap. The proposed system does not allow for growth, it does not allow for new entrants, it encourages stagnation and the slow inexorable demise of the independent profession.

At the present time there are approximately 1600 contracts for the provision of criminal legal aid, serviced at one end of the spectrum by sole practitioners working from the spare bedroom, to at the other end very large firms with multiple offices servicing large geographical areas. This means that the Legal Aid Agency have supplier relationships with each provider which creates paperwork and administration, which in turn costs money. Under the present system as long as the contract provider meets the necessary quality criteria and can fulfil contractual requirements then they are able to carry out publically funded work.

Quality criteria is important, it means on a most basic level that the person you see is being audited, that someone is happy with their ability to provide the advice and representation you need. More importantly reputational quality is in the current system a massively important benchmark. You may be able to fill forms out and pass tick box audits but if you are no good in court, give poor advice and achieve bad results due to lack of ability or commitment then who would instruct you? Conversely, if you are good at what you do, show commitment and understanding to your client and are able to provide a consistently excellent service then your reputation will increase and inevitably you will get more work. Clients will choose to come to you, and will avoid the others. This is where at present the market is deciding.

In the new regime there will be 400 contracts conducted by a lot less than 400 providers. There will be no sole practitioners, there will be no niche specialists; they will no longer be able to survive let alone be in a position to bid for a contract. Instead there will be large firms and in time national providers such as G4S, Serco et al. The High Street lawyer will no longer exist. I do not think that the large multi-national public service companies will come in on the first bid round. They will want to see how it all works out, and whether there will be a further reduction in supplier base. I do think they will come in, perhaps on the next contract when the Government introduce a full public defender service run by one of those companies, after all they could then operate a full cradle to grave service; investigated by them, represented by them at court and rehabilitated by them at a prison or a probation centre. The justice system as we know it will then truly be dead.

Smaller firms will be unable to bid due to constraints on budget, logistics and so forth and the cost of scaling up. Larger firms may not bid, as the bid price will not be worthwhile. Legal Aid partners at law firms have a hard enough time justifying their existence on the margins we currently operate; imagine taking that discussion to a share-holders meeting. More importantly is the restrictions the regime will have on the growth of a firm or provider. If you are guaranteed no more than a percentage of the work available in any given area then the only way to increase that percentage share would be for a further reduction in the number of suppliers. It’s something that simply cannot happen if there is to be true independence and avoid the unavoidable client conflicts. Further, you can’t rely on repeat business or recommendation. Cases will be allocated on a rota basis at the police station, own client ceases to exist.

As I mentioned above the need to provide quality advice and representation now is implicit in what we do. A client will never instruct us if we are no good at the job. In the proposed regime the issue of quality is a concern. Once a provider has a contract, they have it for three or five years. Whilst certain quality controls may have been tested initially where is the imperative to ensure they are upheld? After all the work can’t be given to someone else, there will be no-one. I have no doubt that I and my colleagues will continue to work as we do and provide the quality of service that is to be expected by our clients.

That doesn’t mean that quality will not fall, budgets need to be kept, and targets met, that is bound to place pressures on what is done, and large new corporate ABS providers may not operate to the same standard The Government is aware of this and it is mentioned in the impact assessments. As a lawyer doing criminal work now it is insulting to think that someone believes I do not give anything other than 100% effort and commitment to my job or that I would not continue to do so.
In order to guarantee a percentage share of the work available in any given geographical area the new proposals do away with “own client” work. No longer will a client be able to choose who represents them at the police station or at the court if they want publically funded legal aid. This is a huge move and one that fundamentally attacks the principles of access to justice. More importantly, when set against the stated aims of the proposals to introduce efficiencies and cost savings to the fund it makes absolutely no sense. Yet without doing away with client choice, the issue of price competitive tendering cannot exist.

A client at the police station will be allocated to a provider if they ask for a solicitor. The proposed basis of allocation gives some indication as to how ridiculous this measure is. The consultation asks whether the clients should be allocated on initials, month they were born, sequentially, or on a rota basis. What happens if the client simply wanders into the office, as they so often do now, how can the Government ensure that one provider only does their percentage share of work.

The reality is that many clients are regulars, or they know a regular, or they have a friend of a friend etc. They trust the lawyer they choose to represent them and to give them advice. In that way I am able to tell my client, and he will trust me and believe me, that the game is up and he should plead to the particular allegation he faces that day.

I also know which one of my clients have mental health issues, have an alcohol or drug dependence, have a particularly difficult home life. I am able to use this information in their best interests and because I know them and they trust me I can put this information to the court quickly and effectively. If Mr X meets four different lawyers in four different cases of shop theft within a space of a week then he will need to tell each one his life history, many clients are reluctant to give information and only do so after a period of time. He may receive a sentence that is not right and more importantly there will be four separate fees. Under the current regime it would be clear those four thefts in a series of offences but only one case and therefore only one fee at court.

I have worked hard to build my reputation, as have my colleagues. A good lawyer, trusted by his client will always do a job quicker and more effectively and a client is more likely to accept the hard straight forward advice that is sometimes needed. A relationship built on trust between a client and his solicitor means that there is less chance of a pointless trial, less chance of clogging the system and more chance that justice is not only done but seen to be done by both the client and the victim.

It is bad enough now to try and convince some clients picked up as “duty solicitor” that I am independent of the police. With others there is the belief that the “duty solicitor” is not a proper solicitor and they will use me just until they can contact their usual brief. Imagine how these clients will feel when the only solicitors attending the police station are “duty solicitors” allocated to them on hair colour.

Finally, on this point, “Access to justice should not be determined by your ability to pay…” the opening remark from the consultation document. How can this possibly be held to be true and be believed if only those who can afford to instruct a lawyer of their choice are able to do so?

This blog has concentrated on the issues facing solicitors and the consultation process. There are equally dramatic effects proposed to the Bar and further reductions in their remuneration rates which I won’t cover here simply because I do not want to make this as long as the consultation.

There is one striking proposal that I do want to comment on, the reduction of pay the same fee for a short trial as a guilty plea. This is a dangerous proposal as far as public perception is concerned, and frankly downright offensive to suggest that clients are advised to plead not guilty simply to increase income. I have never met a barrister yet who has advised my client to plead not guilty just to get a trial fee. Please take the time to consider the blogs, articles and press releases put out by the CBA.

For a very long time we as lawyers at all levels have made the system work with our goodwill and hard work for diminishing returns and yet we all turn up to work and continue to do the job. Why? The answer is simple; we truly believe that access to justice is so much more than an ability to pay, that every person has a right to the best possible representation and that cheap and “efficient” is rarely synonymous with value and commitment.

If you are a lawyer of any branch of the profession speak to your clients, let them know what is going on and how they can respond. The Government may procure your services but the client is the one who needs your services. Nobody likes the idea of spending public money on “criminals” until they are the one who find themselves in a police station at 3am and the only friendly face is the lawyer willing to listen.

Sign the petition, write to your MP, write to your Police and Crime Commissioner and respond to the consultation. We are not just a foolish, noisy minority…we provide a voice for all of those who can’t speak for themselves.

Beyond Reasonable Doubt – Part II

I start to write this post with some trepidation, as I know that I’m likely to get some stick for it. However I think it important that some points be raised. I am a Criminal Defence Solicitor, and on a daily basis I represent people accused with offences some trivial, some like Murder and Manslaughter very serious. I take my job seriously and approach each case I have questioning the evidence put before me on both sides.

In any criminal case evidence is the key, can the CPS prove the case against the client. Has the client got evidence that can cast doubt on the prosecution evidence. I am in cases where my client tells me he is not guilty striving to prove that. Not guilty is not innocent, but it does mean that the prosecution have not proven their case beyond reasonable doubt, or in the more usual terms “so the jury can be sure of guilt”.

I do not think the system is without fault. What I do think is that it is the system we have to work within. Until someone can show a system that works better, and implements it this is what we have. I accept in full there are times when the system makes a decision that is wrong, but remain convinced that for the most part it gets it right.

Today, less than a week after the public became outraged about the Terry verdict, a jury of twelve independent people found PC Harwood not guilty of the manslaughter of Ian Tomlinson. As happened last week, my twitter feed went mad and expressed outrage and indignation at the verdict. The outrage and indignation reached fever pitch when it became clear that the court had not been told about PC Harwood’s disciplinary record and that he had a number of allegations made against him. Fever pitch reached hysteria when it disclosed that Harwood had previously had an allegation made against him which was not examined when as he retired on medical grounds and then re-applied to another force and transferred back to the Metropolitan Police.

People I follow and thousands that I don’t follow on Twitter made statements about thuggish behaviour, animal, bully and so forth. Many thought that justice had not been served, many suggested that Harwood had somehow managed to use the system to his advantage. An immediate clarion call was put forward to demonstrate outside of Scotland Yard at the verdict. The consensus seemed to be that Harwood had quite simply gotten away with murder.

I really do not know what happened on the day Mr Tomlinson died, I do not know what evidence the inquest jury were provided, I do not know what evidence was put before the jury at Harwood’s criminal trial and I do not know what went through the minds of the twelve jurors when they were asked to decide so that they were sure that the actions of PC Harwood resulted in the death of Ian Tomlinson. Like everybody else I have seen the video footage, I have read the news and read the commentary. With the exception of the video footage which I am sure would have been played to the jury all the news stories and commentary do not amount to evidence. It is only when you have the benefit of that evidence that anyone could rightly make an informed decision.

I think that some of the amazement and hysteria was generated by two things. That a previous jury in a Coroners Inquest had made a ruling that Ian Tomlinson was unlawfully killed, and that the jury were not told that PC Harwood had previously faced allegations of misconduct whilst in uniform.

A Coroners Inquest is quite different from a criminal trial. A criminal trial is adversarial by nature, the evidence is presented and tested by the lawyers. A Coroners Inquest is inquisitorial, there is only limited questioning of the evidence presented. The rules of what is admissible as evidence are less strictly enforced, for example hearsay evidence is allowed, and to a lesser extent personal opinion can be part of the evidence.

Normally, a coroners court must only be satisfied on the balance of probabilities but in cases of unlawful killing the jury must be certain beyond reasonable doubt or so that they are sure. The same standard as in a criminal court. The Coroner will direct the jury as to the available verdicts and leave it to the jury to reach a verdict often with a number of possibilities. The verdict in this case was unlawful killing as a result of the actions of PC Harwood.

As a result of the inquest verdict, the CPS reviewed the case and a decision was taken to prosecute Harwood for Manslaughter. There are two types of manslaughter and as a result a number of voluntary and involuntary manslaughter.

In brief, voluntary manslaughter occurs whereby someone has killed another but there are reasons for this such as a total loss of control, abnormality of the mind and suicide pact.

Involuntary manslaughter is where a person kills another but does so without the intention of killing or causing GBH. The offence of involuntary manslaughter is then broken down into two further types, specifically caused by gross negligence; or by an unlawful or dangerous act.

I assume that the CPS charged on the basis of involuntary manslaughter by way of an unlawful or dangerous act. In doing so the CPS would need to prove that the death of Tomlinson was as a result of Harwood’s unlawful act, that a sober and reasonable person would realise that the act would cause some physical harm whether or not the defendant realised it. The CPS need to prove all three elements to the jury and the jury need to be sure of the elements. Not, quite possibly or was maybe, but beyond reasonable doubt.

The fact that the jury did not find this does not mean that Tomlinson did not die as a result of Harwood’s actions. Simply that they cannot be certain that he did.

Much, has been made of the fact that Harwood had a number of allegations of use of excessive force made by members of the public. This may well be the case, but as far as I am aware they were only allegations. They were not substantiated claims. There may well be reasons to question why they were not investigated and why he was still a police officer. That said, the allegations were not put before the court. There are rules and procedures to put bad character before the court. Very often the CPS will apply to have a conviction put before the court to show a propensity to act in a particular way. Less often they will apply to have other evidence of what is called ”reprehensible behaviour” as evidence of a persons bad character. This is far more difficult to prove and is often resisted by the defence, which leads to a trial within a trial as to other potentially criminal behaviour. Courts and Judges do not like it, as it clouds issues relating to the trial. If Harwood had convictions for violence I am sure they would have been put before the jury. The fact that he didn’t and there were only allegations means the court did not hear about them. In my opinion, rightly so. I do not like the issue of guilty or not guilty being decided on the basis of an allegation or what a defendant may or may not have done in the past.

The issues of previous allegations were not for the court in the trial. The fact that there were allegations that remained outstanding when Harwood re-applied to be a police officer is a matter that will need to be examined at a later date. It is a matter for the later IPCC to determine at the hearing later in the year. Whether Harwood was a fit and proper person to be a police officer was also not an issue that the jury was asked to consider, and rightly so. I respect the right of any person to have an opinion and to voice that opinion.

At the end of the day, a jury found Harwood not guilty of manslaughter. They could not be certain that his actions had resulted in the death of Tomlinson. The decision was clearly not liked but that was the decision of the court. If we are to have a system where we place our trust in twelve independent persons we must stand by that system when it gives us verdicts we like and verdicts we don’t. The decision of the jury today was that he was not guilty, how they reached that decision we will never know as they cannot talk about their deliberations. It is always a heavy burden to carry as a juror, the fate of an individual rests on their decision. The fact that two juries can hear what would appear to be very similar evidence and reach what appears to be differing verdicts is as much down I think to the effect their decision will have as to the evidence they are presented, and the questions that they were asked to decide.

Two final points I would like to make. Harwood may be and may have been a bad police officer and caused the death of another man. Whatever is said my view is that the police do a very difficult job in what can be very difficult circumstances. I am not anti or pro police, my job asks me to question what they put before me. However, the vast majority of police officers are not made in the same mould as him.

Finally and importantly; what happened to Ian Tomlinson was and remains a tragic loss of life. Apparently blameless of any of the madness and criminal behaviour around him on the day he was pushed, he later died. I have every genuine sympathy for his family and cannot for a moment begin to understand how they felt on that day, and on every single day thereafter. I truly hope that one day they have some closure and are able to move on from this. For what it is worth, I wish them well.