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.

Saving Justice…

The campaign against the Mininstry of Justice plan to Transform Legal Aid was from the outset opposed by the profession.

They above all understood what there was to lose if the proposals went through as set out in the consultation.

Almost as soon as the consultation was published the movement against it started.  There have been meetings, strikes, marches, an online petition, TV and press interviews and in this increasingly digital age, a concerted campaign on Twitter and by bloggers.

For me, as with so many of my colleagues being a criminal defence solicitor is not so much a job but a way of life.   Countless bank holidays, birthdays, Christmases and days off have been spent looking at the dull,  institutionalised paint scheme of a police custody block rather than at home with family and friends.   Evenings have been spent writing up the days cases, planning for the following days trial or on the phone to a nervous/angry/confused or confusing client.

What we, and our colleagues at the bar do is done not for the money, not for the glamour and certainly not for the job security.  We do it because our clients can’t, we do it because justice is not just a word or a concept but a real and tangible thing.

It was because I do what I do and because I feel it is so important  that I felt that I wanted to do something to help preserve it.

Not being part of a group who could really influence anyone, my contribution to the campaign was to write in my blog and try to raise the public profile of what was happening to access to justice.

A year after the consultation was published my blogs and those of forty eight others have all been collected together by @ilegal, Patrick Torsney into a free ebook
Saving Justice available on iTunes now and other formats soon.

If you have followed and taken part in the campaign then it is pretty much the story of where we are now and where we still need to go.   If you have no idea of what has been happening over the last year please take the time to read at least some of it and join us in saving justice.

A friend in need…

Last May over a thousand members of the profession attended a meeting in London to show just how angry they were at the Ministry of Justice proposals to “reform” legal aid.   At the time I described the proposals as an extinction event for my side of the profession with the prospect of 1300 firms being wiped out overnight, and the position was very little better for the Bar.  Access to justice was seriously threatened, the prospect of legal aid becoming the domain of Tesco Law, Stobarts and the like seemed very real.

I recall going into that meeting thinking that there was very little hope of a sucessful outcome; successive governments had slowly and deliberately reduced the legal aid provision, cut our rates of renumeration and sought to introduce increasingly burdensome layers of bureaucracy.  The Lord Chancellor was clearly a man on a mission.  A man with a serious agenda and a considerable degree of political ambition.  His previous consultations had been very little more than a fig leaf of respectability, pressing ahead with what he deemed was necessary change and there was nothing to suggest this one was anything but the same.

Yet, I came out of that meeting thinking that perhaps there was a chance we could stand up to this. Throughout that meeting there had been applause, cheering, shouts of encouragement and standing ovations. There had been a sense of purpose, fire in bellies and a desire to give the other guy a bloody nose.

Above all there was unity.   A sense of purpose that was shared between both sides of the profession, we had , and still have, a common goal to ensure access to justice and to save legal aid for those we needed it the most.

The meeting took place at Friends House, the name of the venue becoming more appropriate as the afternoon wore on, and perhaps even more so over the past year.   There has been a surprising degree of unity amongst the two sides of the profession, with both sides understanding and perhaps enjoying the symbiotic relationship we have with each other.

 

We refer to each other as “My friend” or “My learned friend”, and this is important to remember.  We are not enemies, we all want to preserve the system of justice we work in, for ourselves, for our friends, for our clients and our future clients. Our objections were once described as “pay negotiations by parties with vested interests”. The great strength of what we have done together and what we have achieved is that if we are honest with ourselves there was a degree of truth to that statement, our opposition was never just about that.

The statement from the CBA yesterday has been received with mixed emotions across the profession. The rank and file believe that they have been sold out, and that a delay in cuts is just a suspended sentence that will inevitably by enacted. Solicitors believe that the Bar have stabbed them in the back and cooked up a deal to sacrifice us to the Ministry of Justice.

My personal view doesn’t really matter, but I think the decision taken was short sighted and may well come back to haunt the CBA.   That said, reality as we all know is about making stark choices, about making difficult choices and no one decision will please everyone.   The very fact that The Lord Chancellor came to the table after a steadfast refusal to accept that there was anything else to be done is telling, he was, perhaps is, desperate not to be given that bloody nose.   Rightl or wrong the Bar has a period of grace to further argue their cause, let us hope that there will still be solicitors left after the pause to brief the barristers the CBA were keen to protect.

One thing remains the same this morning as it did yesterday. I oppose the cuts and reforms to legal aid for all the reasons I have set out over the past year, my friends feel the same, as do my learned friends. We still need each other and whilst our position may have been compromised, nothing the Law Society or the CBA have done in our names have compromised our principles.

Let us continue to show the Ministry how they have got this wrong, how what we do is valued and valuable and deserves to be preserved and cherished now and for the future.

After all justice is only justice if you can access it and there are people willing and able to advance the case for it.   This morning and every morning after today we must fight on to ensure that, and fight together.