Tuesday, 30 September 2014

The Tuesday Truth

This week’s Tuesday Truth is brought to you by Rhona Friedman Criminal Defence Solicitor  and co founder of Justice Alliance and Paul Harris former President of London Criminal Courts Solicitors Association and Managing Partner of Edward Fail Bradshaw and Waterson

Dear Labour Party - Its called a System for a reason

Eighteen months of anti-Grayling rhetoric from the Labour Party have been accompanied by the same period of fence sitting and stoic refusal to actually enunciate what your plan is for the entropic, necrotic, post Grayling Justice System. A system seriously diminished after LASPO and unsustainable fee cuts. In criminal justice there have been no fee increases since 1994 (if you don’t trust us to tell you that see Deloitte’s Report to the MOJ of May last year). You may have to ask quite persistently though as they tend to hide reports until a court tells them to disclose them.

We now hear from the Shadow Justice Minister Andy Slaughter (if you were misquoted Andy do let us know by the way) that a Labour Government would not reverse the cuts. Putting aside whether a trip in the Tardis back  to 2007 and 2008 and to a Conservative strategy meeting would tell us once and for all that austerity is an ideological and political choice to shrink the state rather than existential economic necessity, it appears that you may be unfamiliar with the nature of the Justice System and how it depends on both the rule of law and access to justice across all its component parts.  It is called a system for a reason. It is interconnected and interdependent. You cannot blithely decide to “save” some bits of it by policy or statutory reversals in Judicial Review, Conditional Fee Arrangements and legal aid for children and abused women in civil justice and then leave the criminal justice system in utter disarray and degradation.

Let us speak in terms that the modern politician understands; a lovely binary of the deserving and undeserving citizen. Victims good and Defendants bad. 

Hang on a minute, children and abused women are also victims in the criminal justice system. Sometimes they are also defendants. What to do? Votes are at stake. Shore up access to justice in the bits of the Justice System you think the general public can stomach and ignore the bits that you think the public aren’t that bothered about funding properly, the criminal justice system- police station investigations, trials and sentencing.

Practitioners invite you to walk a mile in our shoes and experience first hand the state of our criminal justice system in the Magistrates Court and Crown Court. These things happen every day in every court:

Victims (good) having their cases delayed for months because cuts to the courts budget mean there is no available court. This is bad by the way.

Victims (good) turning up to court to give evidence and being told to go away again because the private contractor whose main contracting duty is to bring the defendant to court has not brought them. This is also bad. 

Victims (good) turning up to court to give evidence to find that the privately contracted Capita interpreter can’t actually do the interpreting (ok the victim isn’t now quite so good because English isn’t their first language). Again though bad outcome. 

Victims (good) turning up to court to give evidence to be told to go away again because a key piece of prosecution evidence has not been served because of CPS staff cuts. Bad, bad, bad.

Victims (good) bumping into the accused on bail during the trial at the local Greggs because the court canteen has closed due to cuts and because of, yes cuts, there is no defence representative available to make sure the defendant maintains a discrete distance. Really not good.  

Victims (good) not achieving justice because there has been a flight of quality from the prosecutorial ranks.  Very, very bad indeed.

Defendants (probably bad until they are proved innocent in which case they become so careless that they have been prosecuted for something they didn’t do that if they paid privately they can’t recover the money they spent on their own defence) are on bail or remanded in custody for months because their trial is delayed for, well take your pick of the reasons cited above.  Not good.

Defendants (probably bad etc) being convicted for something they didn’t do because the CPS has not served undermining evidence or their defence teams are too under resourced and lacking in experience to plough through the unused for the key defence point or find the witness with the key recollection.  Not good at all, actually disgusting and terrible in equal measure. 

This, for those who remember the early 1980’s and 1990’s, is called a miscarriage of justice. Miscarriages of justice cost money to fix but even more importantly they cause human misery on an unimaginable scale and bring our Justice System into disrepute. They are on the increase and if you get in you may find that you have to do something about them because after a while they become impossible to ignore, Royal Commissions and Inquiries start and it all gets public and messy.  There will be damage to social cohesion because people see that only those of their fellow citizens with deep pockets get a fair trial.  People equate access to justice with fairness and the social compact between citizen and state, the executive and the political class.  Guess what, not just the Scots care about that.     

Why you should care? Well because fair trial, robust and rigorous defence and prosecution are central to the Rule of Law but because of the localised mess you may have to clear up. The “so stupid it beggars belief” MOJ plan to restructure the market, or “savage it” as their own barrister bizarrely, though accurately, described it in the High Court the other week, relies on a contracting plan so ill thought out that according to the MOJ’s own expert report the areas where the omnishambles will have the most deleterious impact are London, Greater Manchester, West Midlands and West Yorkshire. Your heartlands for now. 

Yours etc xxx

Message to the Profession (both parts)

The Labour Party’s lukewarm approach to legal aid demonstrates further it is essential that practitioners join either the London Criminal Courts Solicitors’ Association or the Criminal Law Solicitors’ Association. Both these organisations have led the campaign against the cuts and barmy restructuring for over 18 months. The Associations have taken the fight to the Government and on occasions to The Law Society and the Bar. They have fought a hearts and minds campaign so that for the first time there is a media understanding of the issues at stake and yes they have brought you a giant puppet of the Lord Chancellor fusing 60’s style agitprop with public street art.

The Associations now call upon everyone across the profession; solicitors, legal executives, barristers, clerks, District Judges and Judges to respond to the Consultation forced by their Judicial Review. Point scoring was attempted by the MOJ because of the fall off in responses to Consultation 2 even though in excess of 2,000 responses was still an impressive number. The first Consultation garnered 16,000 responses because client choice was to be eradicated in the post PCT world. We all won that fight but make no mistake client choice will exist in name only under the existing proposals.

In the Monday Message this week, the Chair of the CBA referred to both the successful judicial review brought by solicitors, holding the government to account, and the new consultation. We are grateful to individual barristers and chambers who contributed to the JR fund.  We welcome the Chair’s encouragement that barristers respond to the consultation and see absolutely no reason why individual barristers, barristers’ chambers, the Criminal Bar Association and the Bar Council cannot publicly denounce the two tier plan and individually and by cohort respond to the Consultation and speak out on behalf of this assault on the Criminal Justice System. This  is currently the most vital way to demonstrate common ground and unity.

Monday, 22 September 2014

The Tuesday Truth

Thanks to Rhona Friedman, Solicitor at Bindmans Solicitors and co-founder of the Justice Alliance for this week's Tuesday Truth

The art of spin and the unlawful actions of the MOJ  
Chris Grayling has announced that he does not want Scottish MPs with their crazed socialist ways having a say in the administration of Justice in England. To be honest most of us would be far happier if Mr Grayling did not have a say in delivering justice in England.

On Friday 19th September the High Court was asked to consider two aspects of the draconian reform project embarked upon by the Government since 2011 which bore poisoned fruit last year with the introduction of LASPO in April and the summer and autumn Consultations on cuts and restructuring in the criminal justice system. 

It was Black Friday for the MOJ. In the morning the High Court granted permission to campaigning group Rights of Women challenging the legality (post LASPO) of the way legal aid in the Family Court is restrictively granted to women who have experienced or are experiencing domestic violence. In the afternoon, seemingly to the surprise of the Ministry, the Honourable Mr Justice Burnett quashed the Ministry’s decision to reduce the number of criminal defence contracts available in their tendering process ruling that the consultation process did not “enable consultees meaningfully to respond” and that the “failure was so unfair as to result in illegality.”

The unfairness pivoted on the Ministry’s decision to supress two reports on the nature and substance of the proposed new arrangements. In Court the Ministry tried out two different explanations for its failure. Firstly, that releasing the reports to the profession would have resulted in delay, an excuse arrived at on the back of the currently popular fag packet, as it neither appeared in legal pleadings nor was supported by any evidence. Secondly, that releasing the reports would have made no difference as the Ministry could both predict all possible objections and had unanswerable responses to every permutation of complaint. This is ministerial hutzpah as imagined by a Soviet Commissariat. The flimsiness of the official line exposed when the Lord Chancellor backed away from explanation two saying that was merely the personal opinion of the senior civil servant who was the MOJ’s ill starred star witness. 

After such a clear judgement which in measured tones described what many believed to be a rigged process leading to defective decision making so serious as to be illegal it might have been expected that the Ministry charged with administering the Justice system would respond in a way that at the very least indicated it respected the decision of the Court and the seriousness of its failure. Instead the Press Office via Twitter said that the  ruling raised “some technical issues which we’re considering.” Using the same medium, leading legal commentator David Allen Green described the Ministry as being in “bewildered denial” while Dinah Rose QC lamented the “corrosive lack of respect for the judicial system”  demonstrated by the MOJ.

The messages coming out of the Ministry of Justice are injudicious and leave the impression, hopefully wrongly, that the Ministry will go into a huddle to work out how they can give the impression of procedural fairness whilst as before running a consultation whose outcome is predetermined. At least this time respondents will have a chance to consider the two reports which the MOJ acknowledged although suppressed. The bonus prize is the eagerly awaited perusal of a third entirely secret report (only revealed in Court)  by an outfit called PA Consulting Group which amongst others things has recently developed a revolutionary paper towel and overhauled Danish air traffic control. Their take on the criminal justice system will be fascinating as spills and near misses are now every day occurrences.

No wonder the Lord Chancellor wants to restrict access to Judicial Review. He does not want forensic scrutiny of his loaded dice approach to law making and reform. The ducking and diving taints most MOJ releases on the criminal justice system.  Journalists asking for a Ministry response to the latest controversy over the scorched earth policy of fee cuts and restructuring are subjected to the same endlessly recycled sound bite “At £2bn we have one of the most generous justice systems in the world”. This is now the incredible shrinking budget as the latest version of the press mantra puts the figure at £1.5bn, a reduction of 25% in under two years.  The system is on its knees and the “crisis what crisis” approach is becoming increasingly untenable as more and more people inside and outside the profession see through the posturing and spin. 






Monday, 15 September 2014

The Tuesday Truth

The Tuesday Truth
Yesterday the Government published a victims’ charter. The stated intention of the charter is to put victims at the heart of the Criminal Justice System. This is hardly rocket science, the purpose of any Criminal Justice System must be to ensure that victims are protected, the guilty are convicted and the innocent are acquitted.

However, it is hard not to be cynical about the timing of the release of this charter.  Throughout this Government’s term in office it has hacked away at every part of the Criminal Justice System.  The Coalition has made huge cuts to the police force, the agency tasked with protecting victims, looking after their interests, investigating crimes and bringing offenders to justice.  It has made huge cuts to the CPS, the lawyers tasked with prosecuting these cases, advising the police and ensuring that these cases are properly prosecuted. It has made huge cuts to the Court Service undermining the ability of administrative staff to communicate effectively with all agencies involved in the Criminal Justice System. Facilities in court need repair, one court reported that the tannoy system was broken and there were no funds to fix it. Court canteens have been closed so that complainants, defendants, jurors and lawyers traipse off each lunchtime in search of the nearest cafĂ© or sandwich shop. 

The new arrangements for interpreters have led to the standards for translating dropping in many cases below an acceptable level. Many victims and prosecution witnesses give evidence in a language other than English. When it has been realised that their evidence was not properly translated, trials have  to be adjourned and re-started again with  complainants and witnesses having to go through the entire process again.  This has occurred in cases involving young witnesses and complainants in serious sexual cases.
Every day in our shambolic justice system complainants and witnesses have to wait around at court only to be told to come back on another date.  Play delay bingo with the recurrent failures; poor liaison with witnesses, a failure of the private contractor to get the defendant to court from prison, a non existent translator or late disclosure of key evidence.

So consequently it is difficult for me to take seriously a victims’ charter when all of the actions of this Government have made life much worse for victims in the criminal justice system. 

The needs of victims are obvious and simple.   Instead of publicising a glossy brochure with nice catchphrases for the public to swallow prior to a general election, this Government would have been better off investing in the people who actually make the criminal system run.  Instead they have damaged every single element of the system.

The timing also handily diverts attention away from the concern over the crisis in suicide, self harm and violence in our prisons.  

There is nothing in the Victim’s Charter which makes up for the daily failing of victims in an under resourced, dysfunctional criminal justice system.  This is a desperate attempt by the Lord Chancellor to try and cover up many of the other disasters in the department he has presided over.   If he and the Prime Minister think the public will fall for this superficial paper exercise they are sadly mistaken.

On Friday in yet another judicial review triggered by the Justice Secretary’s cavalier disregard for fairness and protection of the vulnerable, a group representing women victims of abuse will challenge the lawfulness of the denial of legal aid to women in abusive relationships. The much heralded safety net which was supposed, post LASPO, to remain in place for women experiencing domestic violence has not worked. The pressure group Rights for Women report a huge increase in women unable to get legal help or going into debt trying to hire a lawyer to fight for them.

If this government cared about victims why has it shut the court door on so many who desperately need justice?    Answers on a postcard to Chris Grayling, Lord Chancellor and Secretary of State for Justice.