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.

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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.

Beyond Reasonable Doubt – Part III – Why was Bill Roache Prosecuted?

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The acquittal of William Roache at Preston Crown Court of all charges of rape and sexual assault has led to a number of differing views being aired as to whether the prosecution should have ever been brought. Headlines in various papers, leader articles and TV and radio news and comment programmes questioned whether the prosecution was a witch hunt. On the steps of the court having thanked his legal team, family, friends and many, many others Mr Roache in a very measured way commented that there were no winners in cases like these. This led to Christine Hamilton, who seems to have elevated herself to a legal spokesperson in matters like these to comment “…save the lawyers…” Quite why she gets trotted out every so often I really don’t know. In the same way I saw Carol Decker of T’Pau questioning whether the whole system of prosecution of cases of this type needs a fundamental overhaul on Sky News the following day.

Prosecuting or defending cases of this type is not an easy job, and one that is so very easy to criticise after the event. Remember the furore after the prosecution of various sex offenders and how shocking the conduct of the defence was? How unfair and deeply flawed the system is that made the victims of the Oxfordshire child grooming ring relive their ordeal time and time again at the hands of the defence barristers.

Mr Roache has had his life put on hold for over a year, his personal and public life put under forensic examination both in the court and in the pages of the papers. Every salacious detail of the alleged crimes reported in detail, each prosecution allegation discussed and every defence witness commented upon. Following the acquittal the same media questioned the sense in pursuing the allegations, wondered how such a seemingly flimsy case was ever put before a court, how Bill Roache has been put through the wringer and how his life may never be the same again. More fundamentally why those in the public eye are pursued with such vehemence and apparent disregard for their public status, after all haven’t all those who met him always said he was a very nice man and not capable of such things, should that not have been enough?

I do wonder how the headlines and the commentary would have differed had the twelve jury members made a different decision. Of course we already know, there would have been criticism of a system that makes a victim relive the ordeal questions would have been asked as to how he could have got away with it for so long and nobody done anything, there would have been people who had never met him proclaiming that there was in their opinion something a bit odd about him, how he used his public status to do shocking things and get away with it. Not one person would have suggested that the CPS were wrong to pursue the prosecution, that it was a witch hunt. For certain the former MP Denis MacShane would not have suggested that his case was simply a result of the CPS being keen on celebrity prosecutions.

The media reporting in this case has focused on the fact that under scrutiny by the defence cross-examination the evidence simply did not hold up. One witness conceding that she had no recollection of the incident she originally complained of leading to the trial judge directing the jury to acquit. Another witness describing that she had been warned by an actor who was not in the show at the time to be wary of Mr Roache. It is perhaps understandable that after the verdicts have been reached and fuelled by the media people ask why was the money wasted in prosecuting these cases.

As I have commented before in my previous posts in this series, what we see and hear reported during the course of any trial is but a snapshot, a sound bite of what happened in court. We cannot and perhaps should not have the whole case paraded before us. We are not party to all the evidence presented to the jury. We are not able to see the various witnesses give their evidence and what they say, and often more importantly how they say it. We have not seen how the defendant or the witnesses reacted to the way a point was made, an allegation put which is so very important in cases like this. It is easy to make a judgment as to the strength of the case when the case has concluded.

What can be said for certain is that the police who investigated the allegations and the CPS who took the decision to prosecute would have examined the evidence very carefully before making a decision to put the charges to Mr Roache. The evidence would have been subject to scrutiny before it was ever put before the jury. If the witness evidence did not stand up under examination by the CPS then it is unlikely to have got to court. I haven’t seen the statements made by the lady who under cross examination stated she had no recollection of the event she was complaining about, but I can say with some degree of certainty that that fact didn’t appear in her witness statement.

Any decision to prosecute is subject to either the Threshold Test or the Full Code Test. The threshold test is used where the suspect presents a real bail risk and not all the evidence is available at the time when they must be released from custody. It is used in cases where there is insufficent evidence to pass the full code test but there is a belief that the evidence needed to pass the full code test is likely to become available within a reasonable time, the serious nature of the case needs an immediate charging decision and there are substantial grounds to object to bail. In applying the threshold test the prosecutor must have a reasonable suspicion that the suspect committed the offence and that the evidence they do have is relevant, able to be put before a court and could be used in the case.

If they are satisfied of those grounds they must then be satisfied that there will be further evidence within a reasonable period that would establish a realistic prospect of conviction. If satisfied then the public interest test of the full code is applied.

Bill Roache was charged after a review of evidence under the full code test is a two tier process, an examination of the evidence followed by a decision as to whether a prosecution is in the public interest.

There must in any given case be sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge, considering what the defence case might be and how the defence case might affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

So how does a prosecutor decide that there is a realistic prospect of conviction? That decision is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence, and any other information that the suspect has put forward or on which he or she might rely. If in the view of the prosecutor an objective, impartial and reasonable jury or bench of magistrates or judge hearing that case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.

This important because when the jury consider the evidence they apply a different standard of proof. They must only convict if they are sure that the defendant is guilty.

When considering the evidence the prosecutor must ask can this evidence be properly use in court, is it reliable evidence and is it credible.

In the case of Bill Roache then prosecution must have believed that the evidence was al these things; that the witnesses were able to give evidence that was reliable, that they and the jury would believe. For that reason it is unlikely that the evidence the prosecution relied on contained any of the facts or omissions that the defence highlighted and led to the acquittal.

Having satisfied itself that there was sufficient evidence to justify a prosecution, the prosecutor would then have gone on to consider whether a prosecution is required in the public interest.

A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour. In some cases the prosecutor may be satisfied that the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by a caution or some other form of out of court disposal, and of course only if the suspect made an admission would such a disposal be offered.

The prosecution would have considered;

How serious is the offence committed? As a rule of thumb the more serious the offence, the more likely it is that a prosecution is required. When deciding the level of seriousness of the offence committed the prosecutor would have considered Bill Roaches culpability and the harm to the victims.

Culpability looks at how the defendant was involved, whether the alleged offences were planned, whether they have previous criminal convictions, or offences have been committed whilst on bail, whether the offending was or is likely to be continued, repeated or escalated.

The circumstances of the victim are very important. The more vulnerable the victim is or in the case of Bill Roache was, the more likely it is that a prosecution is required. This includes where a position of trust or authority exists between the suspect and victim, so in this case the fact that Bill Roache was said to have used his celebrity to allow him to commit the alleged offences.

In deciding whether a prosecution is required in the public interest, prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim’s family.

The Prosecutor would have also considered if a prosecution was likely to have an adverse effect on the victim’s physical or mental health. If there is evidence that prosecution is likely to have an adverse impact on the victim’s health it may make a prosecution less likely, taking into account the victims views.

The age of the suspect is also an important factor, particularly if they are under 18. The best interests and welfare of the child or young person must be considered including whether a prosecution is likely to have an adverse impact on his or her future prospects that is disproportionate to the seriousness of the offending. A very young suspect may not be prosecuted.

However, there may be circumstances which mean that notwithstanding the fact that the suspect is under 18, a prosecution is in the public interest. These include where the offence committed is serious, where the suspect’s past record suggests that there are no suitable alternatives to prosecution, or where the absence of an admission means that out-of-court disposals which might have addressed the offending behaviour are not available.

The greater the impact of the offending on the community, the more likely it is that a prosecution is required. In considering this question, prosecutors should have regard to how community is an inclusive term and is not restricted to communities defined by location.

Finally the prosecutor will also consider whether a prosecution is proportionate to the offending and in considering this, cost is always an issue. CPS guidelines in relation to historic sex crimes suggest that these cases should be prosecuted in as many cases as possible.

With this in mind the CPS, clearly believed that their evidence passed the necessary test and that in all the circumstances a prosecution was a right and proper course of action. Presented with all the evidence and not prosecuting is likely to have raised even more criticism. Nazir Afzal, chief Crown Prosecutor for CPS North West said “We have a duty to those who make complaints of serious offences to listen to the allegations, and assess the evidence against the same evidential standards we use for all criminal cases, no matter who makes the complaint, or who the suspect is.”

So were the CPS right to prosecute Bill Roache? Perhaps a better question to ask at the end of it all was not why was he prosecuted, or should he have been prosecuted, but why should he not have been prosecuted presented with all the evidence it had. If the evidence passed the necessary tests, if there is a need to see those who commit offences of this type punished, if there is a belief that justice applies to all regardless of position, power and status and if an acquittal is just as important when someone is innocent as a conviction is when they are guilty then there is no reasonable or sensible argument that could be advanced against a prosecution.

Perhaps he was right that there was no winners in a case like this, but perhaps there were. The belief that those who make allegations of this type will be taken seriously means that others who have suffered abuse can come forward; and those that are facing accusations can rest assured that the system will convict the guilty and acquit the innocent.

Finally, because I cannot miss an opportunity to highlight the issue of legal aid in discussing a case like this, please read this http://t.co/tEHFNn5f2j

The truth, the whole truth and nothing but the truth…

There is no room for politics in justice and no justice can be found in politics.

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The opposition to The Lord Chancellors “reforms” to the wider criminal justice system and to legal aid particularly has been on very many fronts; lack of choice, diminution of quality, damage to the long term sustainability of the profession, the destruction of the junior bar and the inevitable lack of talent from which the senior judiciary are chosen. The justification for the reforms has been pretty one-sided from the Ministry of Justice, principally cuts in expenditure must be made, should be made and will be made. As a country we have the most expensive legal aid system in the world and most of the profession are paid far too much money.

If I was in court presenting the case against cuts it would be at that moment that I might pause, look at the Minister, tilt my head to one side and ask him whether he seriously believed what he was telling the court? Pressing him further, I might go on to remind him that he had sworn on oath to tell the truth, that he was deliberately setting his face against the overwhelming evidence against him and was simply choosing to ignore a number of inconvenient truths for political purposes?

Politicians of any political colour have one simple aim, to stay in power as long as they possibly can. I am sure that most politicians enter the fray with the grandest of ambitions and the loftiest of intentions. That they genuinely believe that what they are doing in our name is for the best, that they have a plan to improve the lot of those who elected them and that if only they had the time they could carry it through. How depressing it would be if our politicians simply wanted to get elected for more mundane and sordid purposes, because power begets power and money, for Directorships, speaking positions, consultancies and the myriad way that venal men seek reward. The reality is of course that there are no votes in preserving a vibrant and diverse legal system, that no politician wants to be seen to be the one that pays the lawyers, that no political party wants to be seen to expand or even preserve the rights of the so called “criminal class”, the benefit scrounger or anyone who doesn’t quite fit to the Daily Mail ideal of a decent British chap.

So what is to be done when confronted with a larger and larger body of evidence, cogently and persuasively argued by those who know a thing or two about their profession, the principles of justice and the importance of independence?

Very simple, lie of course, tell little lies, big lies and outright whoppers. Keep telling them, create figures that demonstrate your point, brief sympathetic media and simply shout down those that oppose you. After all it’s the lawyers who have first class tickets on the gravy train, they are the ones that represent those that as a society we all fear, the ones that governments have been trying to protect you from. They are the ones that support those ridiculous human rights, rights for prisoners, asylum seekers and those work shy malingerers that those wonderful people from ATOS say are well enough to work but choose not to.

Ever since the first legal aid consultation was announced the Ministry of Justice have sought to brief the press and persuade the public that the legal aid system is the most expensive system in the world, that the majority of barristers and solicitors are paid huge unwarranted sums of money from the public purse and that any complaints we might make are just the cries of a fat cat being squeezed.

Yet the evidence does not stack up. The facts repeatedly show that we as a profession work harder, longer and more effectively for ever diminishing returns.

The £2 billion figure which is still unbelievably clung to like a four year olds comfort blanket is a lie. The cost of criminal legal aid has fallen year on year and continues to fall, costing the taxpayer less each year. The Ministry of Justice even underspent the budget last year.

The majority of barristers last year didn’t get to take home £84,000 but a much more average figure of £34,000. For many of the junior bar £34,000 seems like a lottery win and an unattainable goal. Saddled with debts from student loans and professional fees incurred as they were sold an impossible dream of triumphantly striding through the Royal Courts of Justice whilst desperate defendants petitioned them to take on their case, the figures bandied about by the Ministry are frankly insulting.

If you want the truth then look at this which sets the record straigh

The legal aid system costs the taxpayer approximately £32 per person per year. This ranks us tenth in a list of comparable countries and systems. This is not by any estimation the most expensive system in the world, but to tell you otherwise would be to expose the lie that the Ministry are trying to sell you.

In a system that is based on the pursuit of truth from the very outset to the closing of the case, the biggest lie sold to you by Chris Grayling and the Ministry of Justice is that his reforms are designed to ensure we preserve the best system of justice in the world. Perhaps we had such a system, sadly we cannot lay claim to that title any more.

A system that has been stripped out from the top to the bottom cannot be the best in the world. A hollowed out police force, a probation system sold to the private sector, the daily lottery of whether the interpreter booked for court will even attend, a system of payment that would rewards a guilty plea rather than a trial and a prison service that simply warehouses those it incarcerates in ever bigger sheds.

There is no room for politics in justice and no justice can be found in politics.

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

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

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

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

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

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

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

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

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

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

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

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

Time to listen…

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

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

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

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

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

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

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

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

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

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

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

I do not accept these criticisms.”

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

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

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

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

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

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

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

The person behind the file…

 

 

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

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

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

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

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

This is what Chris Grayling is taking away, this is what he is trying to dismantle in favour of a cheap, efficient and acceptable service. This is why I and thousands like me have signed the petition against the reforms, why I submitted a response to the consultation and wrote to my MP warning him of the dangers.

If you want the right to choose the lawyer that will care about the name on the front of the file then please do the same. 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.

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.

As the MoJ prepares further spin, as the BFG explains why they are best placed to represent the needs of your clients, as the Law Society placate the MoJ with compromise, take a moment to remember it is the name on the front of the file that got you interested in doing it in the first place. All we do is measured against that.

#saveukjustice petition

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