Plus ca change…

Change Letters

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

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

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

Why do I want that?

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

Is that selfish?  Possibly.

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

Is it understandable?  Absolutely!

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

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

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


Once more unto the breach…


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

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

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

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

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

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

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

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

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

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

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

The consultation documentation can be found here.

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


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…


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.

It could be you…



When the National Lottery started it’s adverts all carried the tag line “It could be you…” with big finger pointing from the sky towards the lucky winner. I don’t think they still run that tag line as more and more people realise it’s probably not going to be them and less people seem to be taking part. Still if you don’t want to take part in that lottery, then you could always take part in the lottery that is legal aid funding and see whether or not you can get representation.

You could be like Rose. Rose is thirty-two, she has two children, Ellie, a cheeky six year old with a mop of golden curls and Samuel a quiet, reserved four year old. Samuel doesn’t like to talk to people, he has seen and watched the two most important people in his life shout and scream at each other and he doesn’t know why they do it, he just wants them to be happy. He sits between his Mum and her friend Jackie clutching his Buzz Lightyear toy trying to get as close as he can to the protection of her.

They all sit in the institutional, dirty cream coloured waiting area outside of Court Three. The metal benches offering little comfort as Rose waits to. E called into court. They have all been there for the past hour, the usher told them they should be in soon. The case before them has over-run, a tenant trying to avoid being evicted is pleading his case without a lawyer, whilst the landlords solicitor points out just how much he owes in rent and the fact he has contracted pneumonia from the damp in the flat and has not been able to work for six weeks is not an excuse.

The delay is doing nothing to calm John sitting across from them. John has a few sheets of paper clutched in his hand. He keeps riffling through them, every now and then angrily underlining something with a pen he keeps taking in and out of his pocket. He looks up at Rose, in a low voice barely audible to anyone else, “It’s all bollocks you know. I’m going to rip you apart in there!” Rose holds Ellie that little bit tighter, shifting in her seat, looking down at the floor, and tries not to catch his eye.

This scene is played out in one form or another across court waiting rooms on a daily basis in every town in the country. Changes made to civil legal aid over the past couple of years mean Rose cannot get legal aid to employ a lawyer to help her with her situation. All she wants is to get away from John, protect her children and get somewhere to live. He holds the key and the purse strings, his pride and his nature blinds him to what is best for his children and their well-being and so they all end up in court. More and more women, and frequently men seeking to get out of an abusive relationship must appear alone in court, unrepresented to face the very person they are seeking to get away from. Judges not only have to rule on the situation, give redress and protection but manage proceedings where neither party is represented and legal argument gives way to verbal argument and abuse and sometimes physical violence. The reason they are there forgotten in the emotion of a relationship unravelling before them. There are no winners here, no-one gets what they want and problems fester and simply get bigger.

Sadly, it’s not just family law.

It’s housing, employment, welfare benefits, all the areas civil law touches upon and importantly all the areas of law that you might conceivably need to use to resolve a problem at some point in your life. Across the board there have even savage cuts not only in the level of payment made under civil legal aid meaning there are fewer and fewer firms able to carry out the work but also in the areas of law it is available for. If you need to resort to the law to resolve a situation then it is very likely you will go to court alone unless you can afford to pay for a solicitor yourself.

As I write this the Ministry of Justice are preparing to announce the results of the second stage of their consultation on criminal legal aid. Even before the “reforms” are finally announced criminal legal aid has been going the same way as civil legal aid. There are very many offences for which you will simply not get legal aid. Offences where admittedly you cannot go to prison if found guilty, but where a conviction might have a very real impact on your life.

If you face an offence in the magistrates court and there is a prospect that you might conceivably go to prison then you can apply for legal aid. The first stage is that your income is assessed. If you earn at about the living wage or above then you won’t qualify for legal aid, no if’s not buts. You will need to pay for your own solicitor, or represent yourself.

If your case has to go to the Crown Court then you will get legal aid but will have to pay a contribution towards it. If you are fortunate not to need to apply for legal aid, or your barrister and solicitor think they can work for less than the legal aid contribution, you can choose to pay for your defence privately. If your case was one that was charged after October 2012 and you are then found not guilty, then you won’t get any of your costs back, none of them, only out of pocket expenses such as travel costs.

If your case was charged after January 2014, and you pay for your own defence and are found not guilty you can apply for some of your costs back, but this will be limited to the hourly rates your defence lawyers would have been paid under legal aid. This will be a lot less than you had to pay them to do the job. Whatever amount it is you will be left short, funding the gap between legal aid rates and private rates.

How can that ever be fair?

You will have been arrested and prosecuted by the state, found not guilty and still left out of pocket. You may have had to sell your house, take a loan, perhaps even have lost your job in order to fund your case, and certainly I have had clients in this position.

This is the state of affairs before the further cuts and reforms are made. The situation will only get worse after. The rates paid to your solicitor and barrister are to be further cut. This will mean that very many firms will go to the wall. The days of the small friendly one man band are numbered. The talent previously attracted to the criminal bar will go elsewhere. You might think lawyers deserve it, forever bleating about how they can’t afford this, can’t afford that, having to work all hours on their cases. Why should they be immune from the austerity measures? Well clearly we should not, none of us think that we should.

Yet, the cuts to legal aid are not just austerity measures, they go much further than that. They are based on data that is out of date and out of touch with what is happening in the real world. The cuts are not just economic measures they are ideology and the government seeking to engineer the market for their own purposes.

As a result of cuts to the legal aid rates we will see firms go out of business, and these firms will never come back to criminal defence, barristers leave the profession upon whom the state rely to prosecute the cases we are all appalled about and the bright young talent that is needed to preserve that which goes to the heart of the system, a passion for justice and what is right simply be prohibited from entering as they cannot afford to.

We are constantly told that times are hard, that we must make sacrifices and that the books must balance. It is only when it makes political sense to spend money that money is suddenly found down the back of the treasury couch, the recent floods being one such example.

Justice needs to be preserved and it needs to be for all. You simply cannot have it any other way if we are to ensure that Rose and all like her will get what she deserves and not what John thinks she deserves. Those of us who work in criminal defence are not yet in the position of our colleagues in civil legal aid but we are getting there and perhaps very soon.

Finally and this is really my point, if you think that this really doesn’t affect you then consider this

One of the biggest stumbling blocks I and my colleagues across the profession are coming across in trying to highlight are concerns for legal aid is the perhaps understandable attitude of “So what, I am not a criminal! I don’t break the law so why do I need to worry about the possible loss of solicitors and counsel. What does it matter to me that there may be fewer and fewer able defence lawyers to properly represent me, I will never need one.”

I am fairly sure that neither Mr Le Vell, Mr Roache or Mr Griffin thought that they would need a lawyer to advise them in the police station, that they would come to rely on their barrister and solicitor to try and ensure justice was done. I am sure that they never expected to open their front doors in first thing in the morning and find a number of police officers standing outside waiting to arrest them and search their houses.

This is exactly what I and many of my colleagues had and continue to try and warn people about, why we have been so vocal about the changes and reforms to the legal aid system. That without a properly funded system of legal aid, justice for all is something you can hope for but perhaps not receive. There is simply no-one who can say that they will never be arrested, never find themselves having to look in the eyes of a magistrate, a Judge or the jury and seek to persuade them that the allegations made against them are false.

Please, in the next few days, when you see the coverage given to the legal aid reforms and when a Ministry of Justice official tells you how necessary they are and how the legal aid budget is the most expensive in the world; when you see my colleagues and friends standing up for the right to a properly accessible defence and representation don’t think it’s just about us protecting our jobs and our pay. Think rather what if it was me, what if the prosecution finger was pointing at me, without access to legal aid and a properly prepared defence who is going to stand up for me?

By the light of a dying star…


“A great deal of talent is lost to the world for the want of a little courage…”

Sydney Smith

Hannah Evans is a third six pupil at 23 Essex Street, a young barrister with fire in her belly and a passion for what she does. She gave a speech at the One Bar event arranged by the Bar Council on 8 February. Her speech, which makes compelling reading and exhibits a greater level of understanding of the career she is embarking upon than anything trotted out by the Ministry of Justice can be read here.

Hannah is like so very many of the Junior Bar, burdened with debt trying to get the tiniest toe hold in the profession. There are so many young, talented people at her level in both sides of the profession working in publicly funded areas of law who we are at very real risk of losing when the cuts proposed by the Ministry of Justice are imposed.

The majority of the profession, both barristers and solicitors do this job realising that they were never going to be rich. They do the job with a passion for the job, with a firmly held belief that what we do is something good, to try and make their clients problems a little easier to bear. We don’t do the job to put rapists and murderers on the street but to ensure that we at least try and do what is right and ensure justice is done. Hannah is right, we did not enter the profession for the money, but we do expect and perhaps deserve to be paid enough to make the job viable.

The Bar have waged a good campaign of opposition to the proposals made by the Ministry of Justice on cuts to funding. Solicitors put up a good campaign on the issue of choice for clients, we have been less coherent on cuts to fees and the “consolidation of the market”. This is an area where differing groups of solicitors do not agree.

Many of the bar are rightly regarded as experts in their profession, and much of the new talent is attracted to the Bar for that reason. The Bar deal with the most serious cases that come before the courts; the more complex, the more newsworthy and the ones that capture the imagination and horror of the public more frequently. A properly funded and supported Bar is vital to ensuring that these cases attract bright, young talent to ensure the vitality and diversity of the bar necessary to do these cases justice in every sense of the word.

Yet the Bar is not, and nor should it be the sole repository of all the talent and expertise in the profession. Solicitors, regarded by some as the junior profession possess a great deal of talent, commitment and expertise displayed across the country on a daily basis in police stations, courts and offices. All criminal cases start life at the Magistrates Court, and a very large proportion of those start life in the police station with a suspect under arrest, facing a police officer across a table with a few witness statements that are have the power to change their life in a very real way spread out before them. The advice the solicitor gives at that time, often late at night or in the small hours is crucial. It is something I have tried to instil in those I have had responsibility of training across the years, cases are more often than they think won or lost in that harried process of getting disclosure, instructions and giving advice. It’s not just an interview to get through, it’s what goes to the heart of what we do.

The decisions taken at the Magistrates Court, the information gleaned from those same statements and taken from the client when there are six other people to see and the bench are itching to get on will fundamentally shape the way the client is dealt with.

We are, as solicitors, at the front end of the process. We are the ones that answer the phones at 2am to an anxious Mother whose son has breached his bail and who has two officers on her doorstep wanting to arrest him. We are the ones that liase between the client, the bailiff, the Doctor, Social Worker and any number of other professionals that the clients cannot or do not want to engage with in their hectic lives. We are the ones that spend the time reassuring the family man, who has never been in trouble before, who after working twelve hours nodded off at the wheel of his car causing an accident that sees him facing court for dangerous driving and facing loss of his job and loss of family home.

Like the Bar we do this against the reality of ever decreasing fees both in real terms and in respect of what work we are even paid for. Whole parts of the job we do is now simply not paid, or is covered by a fixed fee at such a level that it may as well not be paid. Hours are spent waiting in police stations and courts that we cannot claim for. Hearings are adjourned because there is no interpreter, no time and even no court to allow the case to be heard. The Lord Chancellor wants to cut those fees even further.

The preservation of the bar is important but so is the preservation of the criminal defence solicitor at all levels and from a diverse background. There are so very few firms able to offer training contracts and even fewer able to offer places to their trainees if they can offer a contract. The brightest and most able young lawyers don’t want to do publicly funded work. Many can’t afford to, yoked to the debts they have from their degree and LPC courses.

What is clear is that any cuts will result in a loss of large numbers of solicitors no longer doing criminal defence work, either through choice or through necessity. They will lose their jobs as a result of their firms no longer offering criminal defence work or because the bank manager simply does not see them as a viable business anymore. I already know personally of friends and colleagues across the country who have decided to give it up, some by choice opting for early retirement and of some having it imposed upon them. I blogged last year that these cuts represent an extinction event for the profession as we know it. Chris Grayling has made it clear that despite the warnings, the concerns and the very real alternatives proposed to him he intends to press on regardless.

The future of the Bar is and perhaps always has been inextricably linked to the so called junior profession. It’s where their instructions are derived from and whilst there has been a rise in the number of HCA over the years, where the Bars work will still continue to come from. I and others in my profession have instructed the junior bar for low fees to conduct trials and hearings and no doubt will continue to do so. The fees are low because we are paid low fees in the first place, if as a profession we could pay more I have no doubt that we would. It is these cases that the junior bar use as a training ground for their advocacy, it is these cases that help forge the relationship between the solicitor and counsel. Certainly for me this is how I have forged some of my most enduring relationships with counsel and gone on to brief them on ever more serious and complicated cases in the Crown Court and beyond. It is these relationships that will be at risk if the smaller firms go to the wall under the proposed cuts.

We stand side by side as professions working for our clients. We need to continue to stand side by side to protect our clients from these cuts and the impact it will have on them against a Government and a Lord Chancellor who simply chooses to ignore the reality of what he is doing.

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


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