Brian…in need of a #legalaidhero

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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.

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. I spent forty minutes and gleaned all the information above. I was able to judge who Brian was and 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 earlier caution on the same victim, he was likely 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 spoke to Brian. He was in tears, a monster of a man sobbing into his fists in the corner of the interview room.

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, the interview started and the statement was read out.   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 and the situation behind the allegation into account that there should be no further action and Brian was released.   He still has to resolve the issue of contact but at least he does not have the extra burden of a charge to deal with.

Brian is just one of the people that find themselves in difficulty who need help and don’t know how to help themselves.

The current government plans to cut the legal aid fees again, the introduction of two tier contracts mean the relationship we have we clients is at risk of being lost.   The risk is that a fee needs to be effective and profitable, and the longer you spend with a client in the station the less profit there is.   Experience will be sacrificed for cheapness.   The vulnerable cases that need time and patience may be swept to one side for a quick and easy fee.

In Brian’s case I could spend time with him initially at the time of his first arrest and obtain the vital information about his personal circumstances. I developed a relationship of trust with him, and even as an authority figure he felt able to ask for me again.   Of course legal aid lawyers do the job because it’s a living, it pays our bills and generates an element of profit (albeit ever decreasing) for the firms we work for.  Yet, no-one I know who does this job does it for money alone.   We do it because it needs to be done and because we want to do it, and because we all believe that those we act for are entitled to have someone stand up for them and speak when they can’t.

We are not heroes, simply people who believe that access to justice is as important for those who society think don’t deserve it as for those who they do.

Not heroes, just normal people doing a difficult job…

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, or have dealt with in the past few days.    They include three young lads contesting an ASBO, two or three shoplifters who have fallen on hard times, an older man who on a night out tried to stop his friends doing something silly and got dragged into a brawl, a woman whose son was playing up and in trying to calm him down is alleged to have scratched him, a Dad who having been prevented from seeing his young son for seven months is charged with harassment after he repeatedly begged his ex for contact by text.

For the people whose name is on the front of those files they represent a critical point in their lives. For some it will be the one and only time that they ever come before a court, for others it will be another visit in a long list of appearances.   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 all have the bills to pay, the calls on our time from family and friends, the worries, the hopes and the expectations that those we represent have. 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.

As lawyers we stand up every day and plead our clients cases, we ask for understanding of what they have done, we argue their case because they can’t.

This is what the Ministry of Justice is seeking to take away, this is what they are trying to dismantle in favour of a supposed cheap, efficient and acceptable service. This is why I and thousands like me continue to fight against these cuts, against the way our profession is being pushed.

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. If you want the profession to wither on the vine then don’t do anything at all, sit back and hope someone else does something, and that you are never the name on the front of one of those files.

The Criminal Courts Charge

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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.

 

Making mistakes…

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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…

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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…

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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…

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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.

A friend in need…

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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.

 

There is no such thing as cheap justice, there is justice and injustice one is priceless and one costs everything.

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I recently spoke with a friend I had not had the chance of catching up with for a while. We studied law at University together, he had gone off to join the family business of being a policeman, I went on to be a solicitor.

Having heard about the recent barristers strike he called wondering what it was all about.

“What’s the problem, you lot get paid loads?”

After a long explanation from me he was less surprised about that so many of us were wondering what we were going to do and considering something else, than why we weren’t all already doing else. He could not understand that so many seemingly talented, clever and committed people didn’t apply their talents elsewhere and make more money.

Yesterday, as I drove thirty-five miles from one of the “local courts” having dealt with a regular client who shouted at me, blamed me for his initial remand and then failed to thank me after I had him released. I half wondered the same, I wondered how many of the faces I see on a daily basis, will I see in a years time? Who of us are likely to survive the inevitable cull following the cuts that are just around the corner.

There is a general sense of unease about the place, there are heads close together whispering in the quiet corners, there is a lot of gallows humour and some quietly just getting on. There is talk of merger, withdrawal from the profession, pay cuts and redundancies. We all have financial obligations, we all want to keep our jobs and for our futures.

Over-arching all of that, we understand the role we play and the importance of what we do for others.   We are so very often the first and last line of defence for the vulnerable against the apparatus of the state and allegations of wrongdoing and what we do goes further than being a issue of pay.

I was apparently about twelve when I came downstairs and told my Mum and Dad that I wanted to be a lawyer.  I can’t remember how or why I had come to that decision but I am told that I had previously told them I wanted to be a pig farmer and later a lorry driver. I know why I wanted to follow those careers, there had been a piggery in the village we lived in when I was six and as a ten year old, I liked the idea of eating Yorkie bars every day.

There was no history of working as a solicitor in the family and as a good little boy I had never had a run in with the local bobby or the court system.  Still, that’s what I had said I wanted to be, and perhaps thinking that a career in law was likely to be more stable than the other options I was encouraged by my parents.

I was lucky to get a training contract having graduated at the back-end of the last big recession and worked for a small, two office firm, the like of which is now seriously threatened by the ever-increasing legal aid cuts. My training was pretty much here’s a pile of files, crack on and shout if you need help.   In at the deep end which suited me, I am not one that takes to micro-management, even less being told what and how to do it.

There was no such thing as formal “seats”, we were a small family firm. The firm did pretty much anything that came through the door; family, crime, probate, conveyancing, civil, employment; the usual work of a small High Street practice. I enjoyed and liked the people I worked with. Frankly, I was happy just to be working and grateful for the chance to do what I wanted to do, working towards becoming a solicitor.   All of it was interesting and rewarding in its own way, but what I really wanted to do was crime.

For a trainee solicitor, crime was where the exciting stuff was happening. It wasn’t just the fact that criminal work was more interesting than the work I was doing with the tweed clad Mr Jenkins in probate, or that I could supplement my income with out of hours payments.  It may seem trite, and something that gets trotted out on a regular basis but the chance of writing wrongs and ensuring justice was done was a big attraction.

Being the subject of a criminal allegation is a life changing experience; whether you say you are guilty or not guilty, whether you are found guilty or not guilty, being part of the process itself has an effect.   The recent high profile trials and subsequent acquittals of Roache, Le Vell and Travis are testament to that but I know that for every high-profile defendant who faces an allegation there are countless dozens of normal people go through the process without anyone but them really noticing.

It seems to be a relatively common belief that only criminals appear before criminal courts, that if they didn’t do that offence, they probably did something else and didn’t get caught. Luckily for us all this is very far from the truth. Having enough evidence to charge someone is not the same as having enough to convict. The police sometimes get the wrong man, some people are the victim of false allegations and some may have committed a crime but they have a defence which makes them not guilty under the law.

Looking back there was one particular case and one particular client that cemented my already held view that a life of crime was for me.

Connor was one of those people who never expected to have to rely on a solicitor or the skills of an advocate in court.

I first met him when he came into the office with one of “his boys” who had been arrested for fighting in a pub the previous weekend and needed a solicitor.  He was the lads foreman on the rail gang and he liked to keep an eye out for them. Connor told me in his very softly spoken, gentle Irish accent that this boy was basically a good lad, he just got a bit wayward with the drink in him.

Anyway, his boy got the help he needed and went back to work, supported no doubt by Connor and his soft words of advice.  Every now and then we would see another of his boys, each one having been a bit silly after drink and pointed our way by Connor.   They were always polite, always respectful and always contrite for having let Connor down.

It was early one Thursday morning when we got the call to go to the station for an allegation of child sexual abuse. There was nothing really unusual about the case when I called in to the police station to get the details. What shocked me was that the client was Connor.   Quiet, pleasant Connor who had never been in trouble in his life. Who used to tell me the most important thing in his life was Hannah, who he was caring for by himself after his wife has passed away in a car accident.

I grabbed my jacket and hurried down to the station where a pinched faced detective with a bad smell under her nose gave some disclosure. What I got told was fairly short and lacked much detail, something along the lines of,

The defendant is forty eight years old and a single father to a twelve year old girl, Hannah. Most weekends he had at least two maybe three twelve year old girls in his house under the pretext of a slumber party, he would then have them wear nightclothes whilst they all watched videos and ate pizza and he would touch these children. At least four girls have come forward and said this.

Despite asking she refused and more details, and so I went to speak to Connor. He sat in the corner of the room, head bowed and tears streaming down his face. He couldn’t bring himself to look at me at first, and then raised his head, wiped the tears away from his cheeks and said in his quiet brogue “It’s just not true Mark, I haven’t done this, you have to make them understand that.”

“I will try Connor, that’s what I am here for”

There followed hours of interviews, months of bail, more interviews, charges, Magistrates Court appearances, case conferences, pages of evidence and meetings with Counsel. Hannah was placed into foster care after Social Services considered being at home with Connor was too much of a risk. Connor came close giving up at that point, we spoke about credit for a guilty plea, for him losing Hannah was worse than anything that the court could ever do to him.

The prosecution case looked strong, all of the witnesses corroborated each other, all were consistent. Connor had a simple defence he simply hadn’t done it but we couldn’t find a reason why these four girls might be making it up. We spent a long time going through the various statements, he provided dates and times, comments made by him and to him. It was going to come down to who the court believed the most. Connor thought about it , but not for long. He was not guilty, I believed him, his Barrister believed him, not that matters. If a client professes innocence we fight for them with all the skill and expertise we have.

So a trial was fixed. The trial started on a very hot day in June, in a court without any natural light and oppressive in its closed in atmosphere. “This is what hell will feel like” Connor whispered to me.

The first of the witnesses was called and under cross examination remained steadfast in her evidence. Unshakeable and adamant that Connor had touched her more than once in places she realised were bad. The jury looked at this little girl; bright and smiling initially, tearful and dark when talking about what Connor had done to her and I could see the verdict being formulated behind their impassive faces. The future looked grim for Connor.

The second girl was less certain. She couldn’t remember some details, she got dates wrong and was vague about things. She wouldn’t look up from her lap and the jury mostly saw the top of her head across the live TV link. Looking across at the jury, it was difficult to judge how they felt about this girl and her evidence but there was obvious concern for her distress.

Then came the third witness. From the outset she was clearly reluctant to be there. Again, she didn’t look up when she was being cross-examined, and very soon after the cross-examination started she began to cry. Quiet sobbing became almost hysterical anguish. Connor’s counsel waited allowed the tears to subside and went on with the examination. A few moments later, “I’m sorry, I’m so sorry Connor, we made it up!”

Stunned silence. A question from the defence about what she meant went unanswered save for more tears. “Perhaps a short break would be appropriate?” ventured the Prosecutor.

Ten minutes, turned to twenty, and on to nearly an hour. A sheepish Prosecutor came back and confirmed that the Crown would not be proceeding. A short while later the Jury were thanked for their time, they would not be needed. Connor was told that he was free to go allowed to leave, an innocent man with no mark against his character. The Crown confirmed that it had all been a lie, made up by the first witness after she had fallen out with Hannah over a boy, the other girls backing her up and tagging along initially because it was a laugh, later through fear of what would then happen to them.

Connor asked what would happen to them, would they be prosecuted? He was told that they might be, a lot of time and money had been spent in prosecuting him, not to mention the impact and consequences on his life. He smiled, “For what it’s worth I don’t want anything to happen to them, they are just young girls, who can say that they have never done anything silly when they were younger.”

In time Hannah was returned to Connor and the last I heard they had moved back to Ireland. I had a card from him a year later on the anniversary of the last day in court, with a picture of Hannah and him smiling and happy, thanking me for all that had been done.

It is these cases that make the difference and cases like these that underline why my colleagues and I do the job we do with its long hours, frustrations and shrinking renumeration.

Those of us who do this job have done so for a long time not knowing what is coming around the corner. Every time there is a consultation, a new idea thought up by people who have never actually done the job, we have rolled with it. We regularly turn up to court with no papers and clients wanting to get on straight away; we cobble together a set from the court, the prosecutor and sometimes the client. We sit and read everything quickly and advise the client. We bang heads with the prosecutor, arguing for bail, a basis of plea, trial issues. We appease the client, the clients girlfriend and his worried looking Mum. We make sure the forms are signed, dates are put in the diary and cases are prepared as best we can. We do this in every case whether we believe the client or not, that is not our job. We do it because everyone is entitled to justice, guilty or innocent, rich or poor.

Justice needs to be available to everyone, in every case and their needs to be people willing and able to try and ensure it is. The cuts to legal aid and “reforms” proposed put this in jeopardy and I have sought to oppose them whenever I can and raise awareness of the issue with whoever is willing to listen. Legal aid and the justice system costs money and those who work within it deserve to be properly paid for the work that we do.

It is for that reason that we are currently engaged in a battle with the Ministry of Justice to oppose these cuts, but it is for Connor and all those like him why I became and continue to be a criminal lawyer.

Transforming Legal Aid – The next step is into the unknown…

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When I first started blogging about the legal aid reforms proposed by Chris Grayling I referred to them as an extinction event for the profession. The proposals as they stood at the time were likely to drive all but a very few providers out of business. It was envisaged that the reforms would result in widespread firm closures, job losses and a devastation of the junior Bar. Nearly a year later the situation is no better, and arguably a lot worse.

The Ministry of Justice posited the need for the reforms as being effectively out of their control; like countless others before him Grayling relied on “just following orders” claiming he had to make his books balance after a spending review was imposed on him from above. What he didn’t do was fight his corner and fight the level of cuts required of his department.

After that he went on the offensive, briefing and briefing hard against the profession. Whenever the reforms were discussed by the Ministry the same old phrases were trotted out; most expensive legal aid system in the world, £2 billion of hard earned tax-payers money spent last year, reforms designed to ensure a stable supplier base and protect access to justice for all.

Those reasons have, over the last twelve months been shown to be at best inaccurate, at worst intentionally misleading. Little surprise there, from a Minister who has a track record for being openly dishonest with facts and figures. Both sides of the profession have time and time again highlighted how the Minister has got his figures wrong and why the proposals were not just wrong but incredibly short-sighted and did nothing to enshrine access to justice.

Last Thursday the Ministry of Justice released their response to the last consultation on Legal Aid. Two months later than it had been originally promised and totally ignoring the concerns raised by the varying factions of the profession. It is perhaps a measure of quite how bad the proposals are that there are no winners in these reforms, only losers, some heavy losers and some very heavy losers. There is nothing in the proposals that will give heart to the smaller firms, and very little that give heart to the likes of the Big Firm Group. More worrying to all of us as legal aid lawyers is the fact that access to Justice is the biggest loser.

If we are honest with ourselves, and to be blunt as a profession we rarely are, these cuts were signposted a long time ago and we blindly carried on hoping the day would never come. Lack of leadership from the Law Society, the protection of vested interests and the minutiae of just doing the job meant we carried on regardless.

We showed the Ministry that we could stand together and managed to stage a half day of action, but in the peculiar way that the profession seeks permission for everything we wrote to the courts and the sitting Judiciary and politely asked that our clients cases be adjourned or put back in the list. The courts kept going and there was very little chaos and the wheels of justice simply ground a little slower for three or four hours.

The consultation response was expected in December, the fact it was published over two months was the first example of irony in the document. The Lord Chancellor wants the profession to demonstrate they can work efficiently, quickly and cost effectively; aims he clearly doesn’t expect of his own department. The delay might be excusable if the proposals had genuinely considered and actioned the proposals put before him. What we got was in reality the worst possible compromise.

There are in reality two schools of thought as to what we as a profession, and by we I am talking about solicitors, wanted from the consultation. The big firm group wanted extreme market consolidation which would give increased volume. Although they oppose the cuts in fees they could make them work if the volume was there. The rest, oppose market consolidation and cuts in fees and want a totally open market for own and duty clients. If we fail then we fail because of ourselves and not because of some half-baked attempt to engineer the market. Now many of us will fail because of a way of working has been imposed on us that takes no heed of what we do and why.

The Ministry of Justice smiled, nodded and politely listened to what we had to say. They met with some us, they snuggled up to the Law Society and took large parts of what they had suggested and then added a huge cut in fees. So what we get is market consolidation, dual contracting and a cut in fees that means no one can do the job and work with a guarantee that their future is sustainable. What we have is not enough market consolidation that allows the BFG enough volume to survive fee cuts; too much market consolidation to allow the smaller firms to even open their doors.

The Ministry of Justice has done exactly what it intended to do when it first published the initial consultation document. Client choice is academic if there are no firms able to do the work. The reality is that unless you secure one of the duty contracts then you cannot really open the doors to the own clients. If you don’t have a duty contract then at the end of the day where are your own clients going to come from in the future, what happens when your own clients grow up and stop offending, and most do?

So what do we do now?

There will be no immediate climb down by the Ministry of Justice. Chris Grayling is a man with a mission, and like zealots and missionaries before him he is blinded by the cause he follows. Politics is a cruel mistress, but for politicians it is a mistress that must be followed and appeased. He is well aware that he may be in post for less than another 18 months. If he loses his position after the next election and finds himself in opposition he wants to be able to say to his political masters that it’s not his fault, he made the cuts asked of him, he has shown that he will not bend to whims of this he represents, he did not cave under the pressure.

I was talking the other day to a client who has some extreme and frankly unpleasant views on a lot of political issues. He said “Campaigns for change only work when you can convince those other than the activists to care about what you are campaigning for”

In the context of lawyers fees, legal aid and access to justice this is the key for us. We strike to raise awareness of the issue and protest the cuts. In doing so we must ensure the public know why, and we must gather the momentum of their support, to do anything else it all becomes a pay negotiation and we all know it is so much more than that.

As we stand outside the courts we usually stalk through make sure you tell those who ask why.