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.

Advertisements

By the light of a dying star…

images-25

“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.

What Mr Grayling doesn’t want you to know…

images-28

As the e-petition started by Rachel Bentley reached 60,000 signatures over the weekend, the Ministry of Justice posted a response to it as they are apparently entitled to. Clearly written by a member of staff in a hurry, “pubic” rather than “public” creating a few laughs, the response does little more than re-hash the information and the arguments put forward by the Ministry and Grayling over the past few weeks.

The same arguments that Ministry staff were unable to answer when questioned by lawyers all over the country in the recent engagement meetings (if this is engagement, the wedding is going to be fun). The same arguments that Grayling has trotted out to the press and which some of the press have simply lapped up and printed verbatim and in particular the Express and Daily Mail. The same arguments that have been forensically dismantled by a great number of lawyers, blogging, speaking and engaging with the public.

The reality is Grayling has decided that he will make cuts, he has decided how he will make those cuts and even agreed the amount of cuts he will make with Osborne, if yesterday’s headlines are to be believed. The consultation is, as I said in my first blog on this subject, a sham, fig-leaf of respectability. The Lord Chancellor has said over and over again that PCT will come in, and with PCT comes the removal of choice, the dumbing down of the profession, the greater risk of miscarriage of justice and the loss of most of the independent bar.

If the proposals are beyond reproach, beyond criticism and are so very necessary then The Lord Chancellor need have no worry about a debate as he would be able to show to us all and his colleagues how well reasoned they are, where we who actually do the job and appreciate the realities of it are wrong. As it stands there will be no debate, the proposals will never be subject to scrutiny and more importantly for us all as lawyers, no-one will test the evidence.

Let us for a moment then consider what the Ministry have said on the petition.

Mr Grayling tells us that we have the most expensive legal aid system in the world, with over £1billion pounds of tax-payers money spent on criminal legal aid. Both facts are untrue.

In comparing legal aid systems the Government fail to account for the fact that we have an adversarial system, pitting one view of the evidence against the other. Other legal systems use the inquisitorial system, evidence based but by a tribunal seeking the answers. Both have their advantages and both have their disadvantages, an adversarial system costs more for lawyers, an inquisitorial system costs more for investigation and judges/courts. If this is taken into account the net effect is that we spend on average the same as most other criminal justice systems in the world.

Mr Grayling doesn’t want you to know that.

The £1billion plus figure is an old figure. The figure for last year is less than £950 million, for the next year likely to be less than £900 million. In fact the criminal legal aid budget has been reducing for some time. Cuts already imposed, the lessening of work through the courts, the introduction, removal and then re-introduction of means testing in both the Magistrates and Crown Court have all seen the figures reduce. Fees in the Magistrates and Crown Court have not increased in over ten plus years, and many have been reduced already or removed all together.

Mr Grayling doesn’t want you to know that.

The proposals seek to remove the right to legal aid from prisoners that want to complain about conditions, categorisation and the like. This is an easy target for the Ministry and sure to gain support from the members of the general public. Why, after all should the people who have committed a crime be allowed to complain about the conditions they are held in?

As Grayling said in an interview with Catherine Baksi reporting in the Law Society Gazette that “We know the people in our prisons and who come into our courts come from the most difficult and challenged backgrounds.” If we accept at face value this comment, and see it as recognition of the problems in prison rather than a perjorative description then that the fact that is recognised and yet the government still seek to limit access to justice is very worrying.

Surely, it is for this very reason that those serving a prison sentence who have issues as to their conditions, sentence and categorisation should be allowed access to legal aid to challenge these decisions. The fact that they need to seek legal advice is indicative that the complaints system has either not been working for them or simply doesn’t address the needs of the prisoner. Why would a person imprisoned by the State feel that the very system that they are complaining about would take their complaints seriously?

Mr Grayling doesn’t want you to know that.

High value cases swallow up millions in tax-payers money. Really? Bears relieve themselves in woods, and the Pope is Catholic. This is hardly news. Difficult cases mean lengthy prosecutions, which means in many cases lengthy and complicated defences. Is it right that a complicated case should have legal aid restricted, refused because it costs too much money? Should the right to properly test a case and explore a legitimate defence be compromised because it swallows up money.

What Mr Grayling wants you to believe is that lawyers have been wasting your money on cases that you might find morally or ethically repugnant, cases like Abu Qatada who has spent over £500,000 of your hard earned tax on legal aid defending deportation over the last ten years. Yes, that is a lot of money, no it’s a huge sum of money. Whatever you might think of Qatada, his views and his politics he faced extradition and was entitled to contest it, within the law and using the law. The Government were entitled to try and extradite him, they lost not because of the legal aid being spent, but because the law was against them. It’s not, contrary to what Mr Grayling would have you believe, the defence lawyers that bring these cases. It’s the Government, it’s the prosecution of offences committed when someone allegedly breaks one of the laws that the Government have passed.

If Mr Grayling really wants to cut the legal aid budget simply make nothing illegal, no crimes, no criminals and no need for lawyers. Now that’s something I don’t want Mr Grayling to know.

Legal aid and the access to justice it allows is not something we can choose to give to one because we sympathise with their views and actions and refuse to others because of their views and actions. Justice is only justice when it is applied in an even handed way.

Mr Grayling doesn’t want you to know that.

Mr Grayling also targets high paid counsel, who shock horror were paid more money than the Prime Minister and some senior civil servants, and of course more than him. Some were paid nearly £500,000 in one year! This is clearly designed to offend the readers of the Mail and Express who all pay their taxes and contribute to society. How dare someone be paid well for a job of work.

Except the headline figure does not explain the detail of where that money may have come from, how many cases, how many years those cases ran on before conclusion. It also fails to say that counsel are self-employed. That figure if £500,000, and only a very very few earn at that level in any one year and virtually none consistently is not money in the bank. From that money, tax will have had to be paid, National Insurance, VAT, Chambers rents, clerks fees, travel costs, books and materials to allow the work to be done in the first place. There will have been no holiday pay, no sick pay available.

Mr Grayling doesn’t want you to know that.

Under the reforms those who do not have a strong link to the UK will not qualify for legal aid. Essentially those that have been in the UK for less than a year will not be eligible to legal aid. This will mean that those who seek asylum will be unable to access legal aid for the first year they are in the UK, after which they will likely not be in the UK. Those that have been trafficked into the UK by criminal gangs cannot access legal aid to ensure and preserve their rights. Perhaps an extreme example but if applied, the baby who is the subject of care proceedings cannot have a lawyer to represent their rights, because they haven’t been in the UK for a year. So it may save some money, but where is the justice?

Mr Grayling doesn’t want you to know that.

Under the proposals Mr Grayling tells us that you will still have access to quality duty solicitors and lawyers. He doesn’t tell you that three in four current firms are likely to disappear over-night. He doesn’t tell you that the firms that will take your case will be allocated to you and you will not be able to choose the lawyer you trust or want. He doesn’t tell you that you will not have the right to change the lawyer allocated to you if they don’t provide you an acceptable service.

He doesn’t tell you that the fees he will be prepared to pay give the lawyer an incentive to settle a case early, and in criminal cases that means pleading guilty. He doesn’t tell you that firms like G4S, Stobarts and Tesco have all indicated that they would consider bidding for a contract. These are all companies who are listed on the stock market; all companies who are accountable to share holders and not you, the public or their clients.

The fact a lawyer will be available to you is not Mr Graylings choice, a couple of years ago the Government seriously considered the possibility of removing face to face access to a solicitor in the police station if you were arrested. It’s only a matter of time before Mr Grayling thinks about this again, before he thinks of another way to “save” your tax and without a committed and broad base of defence lawyers available, who will stop him then?

Mr Grayling doesn’t want you to know that.

The petition needs 100,000 signatures for the issue to be considered for a debate in Parliament. Mr Grayling doesn’t want that to happen, as he knows he cannot fudge and bluster his way through the questions that have and need to be asked as he and his Ministry have done so far.

If you value justice, if you value accountability, if you believe that spending on criminal legal aid a sum equal to less than 0.5% of all the money the Government spends annually is a price worth paying for a fair and just legal system then please sign the petition to help ensure a debate.

Over the past few weeks many people have written so many very good reasons why the reforms are fundamentally wrong and why they need opposing, and should not be imposed. You can, and please should read them here. and Mr Grayling really doesn’t want you to know that…

The person behind the file…

 

 

Picss

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

Contact your MP

Online Consultation Response