Plus ca change…

I went to bed on Thursday night knowing that on Friday morning there was going to be a lot of fuss and a lot of head scratching.  It seemed that the polling companies had massively misjudged the mood music and the level of hatred for the so-called “nasty party” was in fact more accurately described as grudging respect.   After five years of austerity and cuts the backlash at the Conservatives simply didn’t materialise.   Instead the Liberal Democrats were sacrificed on the altar of public indignation, the SNP became in every sense of the word the Scottish National Party, UKIP proved that the current electoral system makes it hard to translate support into seats and the Greens need better PR.

Much has been said in the last twenty fours hours about what this election means, why it went the way it did and whether it was fair or not.   The reality is we now have another five years of Tory government and as a result there will be more cuts, more savings made and life will for many be even harder than it is now.   Yet, do any of us have the right to say that the decision was wrong, that those who re-elected a Conservative government were selfish and uncaring to do so.

The result wasn’t what I wanted, I wanted a party elected that represents me and my values and are willing and able do something about my concerns.   For me that’s simple, to protect the current system of justice and no more cuts to the legal aid budget, and to throw out the idea of dual contracting in legal aid.

Why do I want that?

Two reasons; because I genuinely believe that access to justice and proper representation and the ability to protect my rights regardless of my means is a vital part of any civilised and enlightened society.  Secondly, because I work in criminal justice and reliant on a salary to pay my bills, service my debt and provide for my children and ex-wife.   Further cuts and the introduction of dual contracting puts that at risk.   It is the second reason that means we now have another five years of Conservative government.   Very simply, more people thought they would be better off with the Conservatives than with the other parties and that means they were re-elected.

Is that selfish?  Possibly.

Is it right?  That’s not for me to say.

Is it understandable?  Absolutely!

I’m reminded of the quote which has been widely (and probably wrongly) attributed to Voltaire “I disapprove of what you say, but I will defend to the death your right to say it.” and much used in various campaigns of late.  The fact that a Conservative government has been re-elected doesn’t give anyone the right to abuse others, to blame others for it.  We all made our choices, we all had our chance to have our say and the fact we didn’t get what we wanted doesn’t necessarily make it the wrong decision.

For me, for now I will continue to oppose the cuts made to legal aid and the attacks on the justice system across the board.   One thing is certain, having a Conservative government and the possibility of another five years of Grayling means there will be no surprises.   We know what is proposed and what he has on many occasions stated he wants to do.

Now we just need to decide how we continue to fight him if we value our jobs and access to justice regardless of who we are or how we voted.

The Criminal Courts Charge

The Criminal Courts Charge

The Criminal Courts Charge came into effect on 13 April 2015 introduced by The Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015. Although there was almost no publicity about it before it’s introduction, it will affect most clients who appear before the courts in England and Wales.

What is it?

Over the past five years the current Government has sought to cut the amount of money spent on the criminal justice system. These reductions have been achieved by cutting the budgets of the police, probation and court system. They have also significantly cut the availability of criminal and civil legal aid by reducing the offences for which legal aid is available, the scope of the cover and the number of firms who can offer a client advice. The Criminal Courts Charge is a further attempt by the Government to cut the amount of money spent on criminal justice and the courts and the current Lord Chancellor has said the charge has been created to help fund the criminal court system and cut the burden on the tax-payer. In effect the Government hope that the courts will be funded by those who are found or plead guilty to any criminal offence.

Does it affect me?

If you are found or plead guilty to any criminal offence committed on or after the 13 April, then the charge will affect you.

The charge becomes payable by anyone who has been found guilty or pleads guilty to any criminal offence, from the most serious such as murder to the less serious such as speeding and even littering.

The court, whether it is a Judge or a bench of Magistrates, have no discretion as to whether you should pay, can afford to pay or how much you should pay and will be imposed on sentence in addition to any court costs, compensation or the Victim Surcharge.

How much do I have to pay?

The level of charge has been set by the Government and it depends upon the offence for which you have been found or pleaded guilty to.

The amount you will have to pay is set out below:

Conviction following a guilty at Magistrates Court for an offence that can only be dealt with in the Magistrates Court – £150

Conviction by a Magistrates Court at a trial of an offence that could only be heard in the Magistrates Court when (a) the defendant did not enter a plea, (b) the trial proceeded in the absence of the defendant, and (c) the court dealt with the case on the papers without reliance on any oral evidence – £150

Conviction following a guilty plea at Magistrates Court for an offence that could be heard in either Magistrates or Crown Court – £180

Conviction in a Magistrates’ Court after a trial of an offence that can only be dealt with by Magistrates – £520

Conviction by a Magistrates’ Court after a trial of an offence that could be dealt with by a Magistrates Court or a Crown Court – £1000

Conviction following a guilty plea to an offence that can only be heard in the Crown Court – £900

Conviction by the Crown Court after a trial in the Crown Court – £1200

Magistrates’ court when dealing with a person for failure to comply with a community order, suspended sentence order or supervision requirement – £100

Crown Court when dealing with a person for failure to comply with a community order, suspended sentence order or supervision requirement – £150

What if I can’t pay?

The charge will be collected by the same people that collect court fines and compensation. You should immediately contact them to discuss payment of the charge at a level that they will accept. You should not ignore it, a court may think you have wilfully decided not to pay and that can result in prison.

Can I ask for the charge to be deemed paid as I have spent in time in custody or been given a prison sentence?

In short, no. If you are sentenced to prison and the charge is payable in any event and arrangements will be made to collect it from you upon your release. The court still have discretion to allow fines and costs to be remitted against any time you spend in custody.

Can I apply to have the charge looked at again?

If you agree a payment term with the fines officer and your circumstances change you can always ask the fines officer to look at how much you are paying. The fines officer cannot reduce the total charge imposed but he can agree to a lower payment rate. Of course if you want to pay the charge off earlier than agreed you can always pay more.

If after two years after the charge was imposed the charge is still owed, and you can show you have made every possible effort to pay it and you have not been convicted of any other offence you can apply to the court that imposed the charge to have it removed.

Should I just plead guilty so I pay a lower charge?

You should never plead guilty to anything that you have not done simply to avoid paying costs or the charge. It is important that you seek good legal advice as soon as you are charged with any offence. A criminal conviction will have an effect on you and can prevent you from travelling abroad or getting certain jobs.

At Reeds we understand that for some appearing in court can be very expensive. We will always try to obtain legal aid for all our clients, where legal aid is not available we will ensure that our fees are fair and reasonable. A guilty plea or conviction will mean that you have to pay the Criminal Courts Charge, if we can avoid that plea or conviction for you we will.

 

Choices…

I consider myself lucky to have a job that I enjoy, that lets me do something that I think makes a difference and that on most days I think I am not bad at.   Often, the hours are long, the pressure is unrelenting, the clients demands are sometimes unrealistic and the thanks are for the most part few and far between.   Yet, I wouldn’t change what I do and actually look forward to getting to work and getting down to it.   I am one of many who I am sure feel the same way.   Criminal justice on both sides of the coin, prosecution and defence is so much more than a job, it becomes a way of life and without wanting to sound all holier than thou, a vocation.

I joined the profession at the tail end of the last big recession in the nineties.   As a trainee, one of my responsibilities was trucking down to the local County Court to appear before the local District Judge in his chambers and represented one or more of a number of different banks, building societies and mortgage companies applying for possession of someone’s home who had fallen behind in their mortgage payments.   There would be twenty or thirty applications to be made every couple of weeks, each one representing another family that had become overwhelmed by the debt that rising interest rates, loss of their jobs and mounting bills caused by the recession.   As a freshly minted keen young trainee, eager to impress, it took me a couple of weeks to fully appreciate the impact on the people, almost always unrepresented, that I faced across the judge’s table.  Every time the judge refused the possession on a minor paperwork issue, or imposed a suspended possession order I took it as a blow, a loss for my clients.

The local district judge was, and probably still is, a fierce looking chap.   A smart beard, small round glasses and a quick tongue, he didn’t suffer fools gladly.   One Monday after an unusually large number of hearings, he asked me to stay behind.   We spoke for about an hour; about the job, about me, where I had come from and what I wanted to do, about the law, justice and people over a cup of wretched coffee whilst he smoked his pipe.   He told me what he thought the job was about, and why he did what he did.

He explained that as far as he was concerned as long as the other side turned up and could show to him why they had defaulted he would never take their home away and would always grant them a suspended possession order.   The banks had lots of homes, those appearing before him only the one.   The banks and mortgage companies could afford justice because they could always afford someone like me to appear before people like him.   Those on the other side not so much.  It was his job to ensure that the right thing was done.  He said to me that as long as I practiced law to always remember that there was no such thing as justice if it was only accessible to those who could pay for it.   That justice wasn’t just a concept, but a real and living thing that should be protected and fought for.   If I remembered that and strove to protect that, then it didn’t matter whether I won or lost each case.

That conversation stuck with me and I have no doubt helped make me the lawyer I am today, and certainly helped me decide that criminal defence work was what I wanted to do.   I have thought of those words often in the past few years as I have seen the profession on all sides eroded by cuts and seen people at their wits end as they realise that they cannot afford to be represented in court.

The Government in the past five years have systematically dismantled the justice system; cuts to the police force, legal aid, the courts, probation and prisons all in the name of saving money and reducing the deficit.   The cuts have nothing to do with austerity and everything to do with ideology.   Money may have been saved but at what long term cost?

Today we are asked to vote for a government for the next five years.   It is not for me to tell anyone how to vote, no-one should tell anyone how to do that.   Personally, I won’t be voting for any party that believes that access to justice is only for those who can afford it.

Making mistakes…

As another year ends, I along with many others have spent the past few days thinking about what I have achieved in the past year.  Where I have gone right, where I have gone wrong and what I might have done differently.

It’s been an eventful year that’s for sure.  A new employer, new friends and even perhaps enemies, the end of a relationship and the start of a new one, a health scare and a new-found belief in who I am and what I can do.

The reality is that I have made mistakes, I have caused some happiness and caused some hurt.  I have been good and been bad.  I have been the best I can and at times the worst.  I have liked myself and I have hated myself.   I have regretted some things and others I have no regrets about at all. It has, as I have said, been an eventful year.

So what in 2015 would I do differently?

If truth be told probably nothing.   It is important to make mistakes, to have regrets and to have fears but to press on regardless.  It is only by seizing every opportunity that you can grow, that you can have the experiences that define you.

To all my friends, both those that I have already met and those I am yet to meet, I hope that you all have a 2015 filled with happiness and one where you all make mistakes.

We need to talk about Chris…

If we are to continue to show the Ministry of Justice and Chris Grayling that their proposals over dual contracting are wrong it is important that we show them why.   The latest consultation seeks the professions view on the decisions made by the MoJ based on the Otterburn and KPMG reports, documents that were not made available to us before.

We all know how the cuts as they stand will affect our jobs, our firms and our clients.  We now need to evidence that to the MoJ.

@ReedsLAW (my employers) are hosting a forum to allow the profession a place to discuss the consultation, share your views, perhaps pool resources and information and build a picture of the feeling of the profession to help put some force behind our response.

Fifteen months ago the profession stood united against the Ministry; the Bar and solicitors doing what they do best and fighting for what they believed was right.   Time has passed and there seems to be less of a feeling of unity, with both sides of the profession eyeing each other warily across the court room.   It would be naïve to believe that all solicitors and all firms have the same goals, and some will certainly believe that the current proposals are workable, others who know it will kill them off.

Whatever your view making it heard is the important thing.

Link to the consultation documentation here

Link to the forum here

(NB Forum is not optimised for mobile)

Once more unto the breach…

Last week the LCCSA and the CLSA gave the Lord Chancellor and his Ministry a bloody nose using over the “consultation” on legal aid reform, using the process the Chancellor was himself keen to limit, judicial review.   The irony of that must be causing some discomfort in his offices at Petty France.

The skeleton argument and the text of the judgment were published on the LCCSA website.

We all suspected at the outset of the consultation process it stood as little more than a fig leaf of respectability in front of Chris Grayling’s plans, and that as with his consultation on judicial review itself the responses were unlikely to have much effect on the end decision.   As the process rumbled on the “concessions” apparently given as a result of the concerns raised seem to have been little more than bargaining tools.  Elements of the plan that the Ministry had no real intention of ever bringing forward, but that could be reluctantly discarded to show willingness to engage.   The LCCSA and CLSA and much of the profession saw through this, the Law Society it seems not so much.

The victory by the LCCSA and CLSA represents an important step for the profession and demonstrates what can be achieved when those with the appropriate commitment and passion challenge something that is patently wrong.

Despite the rather churlish tweet from the Ministry Press Office that the judgment showed up a “technical issue” in the process the Ministry were beaten on the point that the consultation was unfair.  The findings of the court were clear,  “The broad indications given in the consultation paper of the considerations which would determine the outcome did not, in my judgment, enable consultees meaningfully to respond. Something clearly did go wrong. The failure was so unfair as to result in illegality.”

We must bear in mind that the phrase used “unfair as to result in illegality” is the test that the Judge had to apply following the clearly set out precedents.   This is important because it does not reflect the courts view on the proposal itself, simply the method it was reached.   What it means is that the Ministry have to be able to demonstrate that their processes, and that the consultation they have based their decisions on are fair and give all interested parties an opportunity to comment on them in an informed way with all the relevant information to hand.

This is what the Ministry have done yesterday, launching a further consultation limited to the Otterburn and KPMG research.   In this way they have corrected the unfairness that led to the illegality, and ultimately quashed the decision.

It is now up to us again.  We cannot simply sit by and hope someone else will let the Ministry know what we think.   It is our profession and our cause that we are fighting for.   We must all respond to that consultation and show the Ministry why a limit to the number of duty contracts is wrong.

Responses need to come from the management of ours firms, they hold the figures and know the knife-edge we sit on on a daily basis; from the individual duty solicitors who spend their days and nights doing the job with passion and conviction; from the representative groups of the profession and from the Bar.

A feeling that it will make no difference, that this is simply another fig-leaf and that the Lord Chancellor is simply paying lip-service to courts finding is understandable.   That may well be the case but where will the next challenge come if we don’t at least take up the opportunity that the LCCSA and the CLSA have fought for?

Once again we need to show the Lord Chancellor he has this wrong, to show him that we care enough about what we do that we will fight for it with dignity, with intelligence and with a belief in ourselves and for those that we represent.   We have three weeks to respond to the consultation let us all make them count.

The consultation documentation can be found here.

A swift and minor change…

With a general election on the horizon, I think it may be a time for a swift and minor change in the law that creates a rebuttable presumption that everything a politician says or does in the next nine months is not to be taken seriously and  be dismissed as “electioneering” without any real basis or foundation or indeed conviction.

That being the case, the comments made by Boris Johnson in his Telegraph column recently should seen for what they actually are; an easy way to garner support as he positions himself for his comeback into mainstream politics and if we believe some, the start of his path to party leadership.   After all, having a national platform to promote your views and your position on issues of importance to your prospective electorate is a useful tool.

“The police can and do interview the returnees, but it is hard to press charges without evidence. The law needs a swift and minor change so that there is a “rebuttable presumption” that all those visiting war areas without notifying the authorities have done so for a terrorist purpose.”

That Mr Johnson believes a change in the law to remove the presumption of innocence until proven guilty for those who travel to “war zones” is a minor change, is not so much evidence of naïvety but simply a way of selling it to those most likely to vote for him.   That the change can be sold to those who support him as a minor one is even more worrying, something that could be achieved with the minimum of fuss on a Thursday afternoon between debates on more pressing matters.

There are of course already some offences that carry a rebuttable presumption of guilt, carrying a knife in public requires the defendant to show that they had a good or lawful purpose, some offences under the Sexual Offences Act require a defendant to prove their innocence and not the prosecution to prove guilt.   These are clearly defined offences, and ones that the evidence supports.   Boris suggests that the problem with “jihadist tourism” is that whilst the police and other less obvious security forces can and do identify and arrest those who take part they find it difficult to prove the person has been involved in something because they lack the evidence.

The need to provide evidence is so very often that tricky little part of the judicial process that gets in the way of the conviction.  How much easier it would be if the actual requirement to provide testable evidence could be dispensed with.  Whilst we are at it, lets set up a secret court and lets not show the defendants the evidence we have.   Why stop with the terrorist cases, lets make justice simple, let us totally cut the cost of implementing justice.  You are guilty of every offence unless you can prove otherwise.  No need for the cost of obtaining evidence, no need to comply with any of the procedural rules, the CPS need not worry about complying with case management (although I am not entirely sure they do now) as there will be nothing they need to serve, the cuts to legal aid means most people could not afford a lawyer and would be more likely to simply roll over and accept their fate.

To an extent Boris is right, it would be a matter of a minor change to the relevant legislation that would make “travelling to a war zone” an offence you were guilty of unless you could prove that their travel was for a legitimate purpose.   The devil as they say is always in the detail and a matter of interpretation.   So what amounts to a war zone and what amounts to legitimate purpose?   Large parts of the countries mentioned in the article are peaceful, large numbers of people travel everyday to those countries should everyone have to declare their intention to travel, should everyone need to account for why they go there.   What if I went to Turkey for a holiday in the sun do I have to declare that as it shares a border with Syria, what is to stop me from popping across and potentially providing aid to a fundamentalist.   What if I went to America?  Although not currently “at war” with anyone on a declared basis, few people would say that they are not at war with very many countries at this time.   Am I travelling for a terrorist purpose if I pop over to Times Square to soak up the atmosphere but haven’t told anyone.   The evidence of my crime is the travel regardless of my intention.

The presumption of innocence is a fundamental of the justice system, one that underpins the court process.  One that takes time, skill and a little something called evidence to disprove.   It is however one that is being slowly eroded in courts up and down the country, and across the front pages of newspapers, in rolling news headlines every hour on the hour.

Look at the way in which the recent search of Cliff Richards home in Berkshire made the news, a man’s house has been searched for evidence of an offence that took place thirty years ago, before the age of the internet, mobile phone or him even owning the property.   Plus he is a man that has never been married, refuses to confirm or deny his sexuality and look here he is in a publicity photo with Jimmy Saville on Top of the Pops many, many years ago.  Clearly he is a man that we should be suspicious of and has probably done something unlawful, it’s up to him now to prove that he hasn’t done anything wrong.   As another example, ask Christopher Jeffries whether he believes in the presumption of innocent until proven guilty and whether he felt that the press understood what it actually means.

There are already processes inbuilt into the court system that seek to take away the presumption.   Anybody that plies their trade in the local courts can tell you of cases that are perhaps evidentially light but the CPS sought to bolster by the introduction of bad character evidence.   The fact that they have committed similar offences in the past and therefore by implication must be guilty of this one.

The use of the Bail Act to remand defendants to court by the police, the remanding of defendants to prison awaiting trial, the continued use of conditional bail often with punitive conditions whilst enquiries are conducted, sometimes for months, and then the case going no further are all attacks on the presumption of innocence.

I’m not a naive liberal and don’t live in a crime-free bubble, I understand the need for bail conditions and remand provisions, for the need to convict the guilty but if these provisions were to be imposed as a blanket policy I think we might all be sitting up and wondering how did we get here.  The corollary of convicting the guilty is ensuring that the innocent are acquitted.      The process in which we do that has been developed and refined over many years based on the fundamental principle of innocent until proven guilty.   It may be expedient to remove that when we don’t like it, it does mean it’s right.

A swift and minor change in the law that makes travel to Iraq or Syria without good reason and without notifying the authorities a terrorist offence is simply too simplistic and an attack on the liberties and freedoms that we abhor when they happen to others.   It is as Downing Street have said in the last twenty four hours a knee-jerk reaction and there is apparently no place for knee-jerk legislation in this Government.  The whole raison d’être of terrorism is for us to fear those amongst us, for us to strip back our rights and freedoms to the point that they no longer exist and we capitulate to the demands of the terrorists.   By taking away the presumption of innocence, no matter how small and limited that change might be is for me a sign that we have started to capitulate.

Atrocities committed in the name of religion, politics, ideology or ambition must be challenged; must be stood up to and must be stopped no matter who commits them or where they are committed.   To stop them without relinquishing the principles we stand for is surely the only way to do it properly.