Monday, 24 November 2014

The Tuesday Truth

This week's Tuesday Truth is written by Hester Russell Solicitor at Harthills Solicitors and committee member of the Criminal Law Solicitors Association

It’s now about 24 years since I first ventured into a solicitors’ office in Hereford.  During that week of work experience I quickly realised that I had no interest in Wills and Probate but that Criminal work was fascinating.  Visits to the Hereford Magistrates’ Court confirmed to me that – were I to become Criminal Lawyer – I could almost certainly make a difference.  As an idealistic 1990’s teenager “making a difference” was what really mattered to me; many years later it still does.  Criminal Law at University fuelled my enthusiasm and by 1997 I had secured myself a training contract in a high street practice in Rotherham.  Having confirmed to the – at first incredulous - partners that I had no passion for personal injury or family work I qualified in 1999 and threw myself into a life of crime!  In 2003 I became a salaried partner and ultimately head of the criminal department.
In 2008 I moved into equity partnership at Harthills in Rotherham, taking over responsibility for the Crime team from an inspirational predecessor as he moved into his hard-earned retirement.  Harthills is a firm with a strong local reputation built through the provision of a top quality service to legal aid clients.  Whilst Mr Grayling has done all he can to destroy small, specialist legal aid firms such as mine we continue to fight for individuals dealing with family difficulties, mental health problems and criminal allegations. I have been fortunate enough to receive instructions from a wide variety of clients, with a number of high profile cases hitting the local and indeed national headlines.
Feeling festive?
For me the first sign that Christmas is once again around the corner is not the John Lewis advert, nor is it the festive radio playlists; it is the “Christmas on-call rota”.  It’s a time of sharing – sharing responsibility that is.  There is, of course, no seasonal pay incentive for Criminal practitioners (Thursday 25th December will attract no greater police station fee than any other day since Thursday 20th March when we received an unwarranted 8.75% pay cut).  Yet every year, without fail, solicitors across the land volunteer to leave presents unopened, sprouts uneaten and relatives to fend for themselves.  We do this not for our own convenience but because we feel a sense of responsibility towards people in crisis; people who need our help. 

I wonder what New Years’ resolutions Mr Grayling has planned after what has, for those of us who struggle on within his failing justice system, been an annus horribillis.   Will the Ghost of Christmas 2013 visit the Injustice Secretary during his festive slumbers and tell him to take a long hard look at the damage that he has inflicted upon this country during the last twelve months? 

The headlines:-

23rd December 2013 “Chris Grayling branded ‘a Scrooge’ for banning festive presents for prisoners (The Independent )

6th January 2014 Barristers Strike to delay hearings in protest over cuts in legal aid fees (London Evening Standard )

19th February 2014 Chris Grayling is bullying his way to a worse criminal justice system (the Guardian

7th March 2014 Lawyers stage second walk out over legal aid cuts (BBC News UK

2nd April 2014 Grayling, Grayling, Grayling – OUT, OUT, OUT (thejusticegap )

26th May 2014 Look who’s talking.  Chris Grayling gets a wigging over court translators (the Guardian

26th June 2014 Grayling’s tough justice is as expensive as it is useless (

4th July 2014 Another bad week for Grayling (NAPO blog )

19th August 2014 Grayling in a state of unparalleled denial, experts warn (

19th September 2014 Chris Grayling’s legal aid cuts ‘so unfair they are illegal’, rules High Court (the Independent

27th October 2014 House of Lords votes against Grayling’s plans to restrict judicial review access (the Guardian

16th November 2014 Mr Grayling, how do you account for these prison suicides (the Independent  )

 A variety of journalists and a selection of publications, all containing articles that should wake even the most hard-nosed politician from the living nightmare that is being inflicted upon so many within the this country’s faltering legal system.  Were Mr Grayling to stop and listen he would surely realise that his policies are reducing access to justice, causing misery, reducing the likelihood of rehabilitation and – tragically – increasing the occurrence of death in custody.

Look to the future
Each of us who abstains from festivities in order to care for the vulnerable should continue to feel pride in the work that we do and feel thankful for the difference that we make.  We must continue to use our voices to stand up for the rights of those who are unable to speak up for themselves, and as we approach another year we must work together and do battle against Mr Grayling’s bah humbug attitude to the Criminal Justice System and those within it. 



Monday, 17 November 2014

The Tuesday Truth

This week's Tuesday Truth is written by Mark George QC
We either stand and fight together or we all go down to defeat!

I recently attended the CLSA conference in London.  Having felt deflated ever since the leadership of the Bar did its dirty deal with Grayling back in the Spring it was an uplifting experience.  At least one side of the legal profession is still up for a fight against Grayling’s plans to decimate criminal legal aid.  And no one can be in any doubt how high the stakes are here.  The livelihoods of many solicitors and their staff are at direct risk.  Our clients face a future of minimum standards representation by demotivated half-qualified legal operatives.  And the criminal Bar faces extinction.

Many reading this will already be well aware of all of this.  Unfortunately I am not so sure the leadership of the Bar in general and the Criminal Bar Association in particular has yet grasped this inconvenient truth.  Of all of my objections to the Grayling deal I will repeat just one.  The Bar and solicitors fought together earlier this year.  The days of action and the “no returns” policy could not have been carried out by the Bar without the full and enthusiastic support of criminal solicitors. It was they who amongst other things had to smooth the feathers of clients no doubt angry that their “brief” had not turned up and consequently their case could not be dealt with as they had expected.  If solicitors had not supported the Bar the action simply could not have taken place.

There can be no doubt that the “no returns” policy in particular was a spectacular success.  It rapidly brought the criminal courts to the edge of total chaos.  It was that that brought Grayling to the table after a year in which he had refused even to talk to the previous chairman of the CBA.  Quite how he was in a position to dictate terms to the Bar is beyond me.  I am in no doubt that the Bar should have told Grayling there would be no deal with them unless he also made an acceptable offer to settle with solicitors.  The reason is simple.   We had fought together and you don’t leave your allies high and dry by making peace with the enemy on your own.  If Grayling wasn’t prepared to do a deal with solicitors as well as the Bar the Bar should have told him what he could do with his deal.

So I completely understand the fury and anger of all those solicitors who think the Bar sold them out. We did, and I am sorry the leadership of my side of the profession let you down so badly when I thought we finally had a leadership who understood the need to fight together and win together.  Many of you I know feel that now it is everyone for themselves. The Bar has shown itself to be treacherous and unworthy of trust.  Unity has no chance now.

And that will come as music to Grayling’s ears.  The fact is there is still much to fight over.  Dual contract have to be smashed.  There is no alternative.  This is every bit as dangerous as the threat of PCT last year.  Equally barristers must assume we will have to fight whichever party is in government next year as they will almost certainly seek further cuts in advocacy rates.  Solicitors know that it is almost impossible for them to take direct action against the MoJ.  Equally we all know that the Bar not only can take direct action but if it is willing to do so again it can easily bring the justice system to a juddering halt.  That however requires unity.  Solicitors need the criminal Bar to be prepared to stand up to bully-boy Grayling and take direct action in whatever form.  And the Bar needs the support of our solicitors for the same reasons as earlier this year.
I therefore ask all solicitors to please be prepared to forgive our leadership and if the Bar is prepared to work with you to accept that offer.  The chairmanship of Tony Cross QC did not start well.  His Monday Message in September offended many solicitors because of his apparent call to turn the clock back about twenty years to the days before solicitor advocates.  We all know that Tony represents the criminal Bar but this approach was unfortunate and ill judged to say the least.  Fortunately many barristers appreciate that the realities of life mean solicitor advocates are here to stay.  I am glad to read in the most recent MM that Tony does at last seem to appreciate the need to “build bridges” and to seek to work together with our solicitors.  It would be easy for solicitors to turn away and tell him it is far too late for that.   I understand the sentiment. But for the reasons I have given that would be a fatal mistake.  We have to work together, we have to take up arms together against the MoJ and this time we will not do any deal unless both sides of the profession agree.    This time its death or glory.

Sunday, 9 November 2014

The Tuesday Truth

This week we are delighted to publish the speech given by Jon Black last night when he was elected President of the London Criminal Courts Solicitors Association.

I Thank Ed mill who  inspired me to use notes for this speech.

I actually dreamt several weeks ago that this moment has arrived and I still hadnt written a speech - I had
To turn to Nicola and borrow a couple of sheets of A4 to scribble away during dinner.

Talking of dreams , I have often felt this year like Toto accompanying Dorothy along the yellow brick road to MOJ , along the way we were joined by Robin  Murray a tin man with a heart , the scarecrow in Paul Harris with a brain, and of course the lion like bravery of Bill Waddington . We, along with many others I will mention pulled the curtain away to reveal not a wizard in Petty France,  but a politician, surrounded by flying advisers,  who when confronted by lawyers with brains, heart and bravery,  along with an annoying dog, had his ideological agenda exposed.

It's very fashionable to knock Chris Grayling; it's very fashionable to dismiss him for being the first Lord Chancellor not to be a lawyer - Which might well be the case but let's be careful not to fall into to me same school of elitist thought which  says that Solicitors should not appear in the Crown Court or play for the first 11 ;

I am delighted to look around this room and see amongst our number, some who have witnessed 30 or 40 years of change.

We as a profession are accused of being dinosaurs, fat cat dinosaurs if ever they existed, but we have adapted to much change, and will continue to embrace any change for the better.

When I started 20 years ago we would send a non qualified person to a local police station, normally round the corner from the office, they would bill at a reasonable hourly rate and act in a supportive role for a client who could make no comment at will.

With inferences came accreditation, rightly so given what was at stake, and because the stakes were accepted to be so high remuneration was reasonable.

A client charged would go to a local magistratescourt near the office, could elect their trial and not be expected to formally enter a plea until they knew the case against them.
If the CPS inefficiencies prevented them from serving their papers within timescales, the case may be dismissed.
We could challenge the evidence at committal before it went to the crown court and be paid fairly for preventing public expense further down the line.

There has since been a continuing obsession with rebalancing the scales of justice, which politicians have constantly said to be firmly balanced in favour of defendants.  Day in day out prosecutors are routinely breaching the Criminal Procedure Rules that were introduced to enable a fairer and more efficient  justice system, yet it is astonishing the latitude that they are routinely given in many courts by late applications whether to admit hearsay, to serve evidence or use screens .

When I first started we would instruct counsel in The Crown Court because we had enough to do working the files properly at hourly rates.

Fixed fees are in some cases so derisory that it is difficult to complete a thorough job, but at the same time we are threatened by regulatory intervention if we dont do so to certain standards. I billed a case that was a cracked trial last week, the fee was £259, barely covering the cost of the file opening process, let alone a prison visit or clerk to attend the advocate.

Solicitors cannot be expected to be just litigators anymore,  and there needs to be an understanding that we are not appearing in The Crown Court just for the sake of cutting out the Bar,  but because we need to, we want to and we are capable of doing so.

Of course there are inadequate HCAs by which we all mean both solicitors and barristers , I have sufficient  self awareness to acknowledge I haven't always crowned myself in glory,  but we shan't pander to elitist notions that we are not able to bat for the first 11, or the ideas emanating from the Rivlin Review that we must certify that clients have been notified that they could use a real barrister instead of the imposters that call themselves Solicitor advocates; or even any attempts in the wake of the QASA defeat to campaign for the curbing of the plea only advocate scheme.

Our association prides itself on positive responses to adversity, and it is for that reason that as an organisation, Julian and I, with Diana as training officer, are keen to ensure we can provide a comprehensive advocacy training program to our members. Critics of solicitor advocacy will either be silenced by our actions or be prepared to include us in any debate. But let's avoid cheap shots aimed at solicitor advocates when the reality is the challenges facing access to justice lie elsewhere , and the recent conciliatory overtures in today's MM is a start .

Change has continued at pace marshalled by the Emporer and his new clothes - sorry I don't live in the world of children's stories - but it's a fine analogy for  A Lord Chancellor who doesn't want to hear anyone who points out to him that his policies  leave our justice system exposed .   This is a Lord chancellor that wants to use change not as a force for good but to return us back to Pre Victorian values

Far be it for me to brag about my Bailey practice , but on a display I was reading last week at The Central Criminal Court I read the following description of Newgate life 200 years ago:

"The Newgate Gaol keeper ran the prison as a commercial enterprise . He profited by selling goods to prisoners. Wealthy prisoners paid more to rent better rooms and eat well. Poor convicts fell on the mercy of their relatives, charitable donations or were permitted to beg outside prison

Back then justice really was for sale and that is where we are heading now.

Our own advocacy skills are beyond  dismissing  Grayling simply because  he is the first non lawyer in 400 years  to take the post.

We have proven we can use our skills as lawyers to tell him when he is wrong and to object to any proposals that may lead to the wholesale commercialisation of the justice system.

He was brought in not because of his knowledge of the legal system but to marshal cuts and privatisation .

And I have tried hard to avoid personalising this speech but it is hard not to get personal about a man :

- who won't listen or even dismisses from office  anyone who points out his new clothes don't fit.

- Who won't negotiate with those who criticise him.

- Whose idea of a bill of rights is a reward chart for those who don't speak out and those who comply.

- Who rewards with a stake in the privatised justice system those who donate to his own party such as Serco and inter serve .

This is why LCCSA refused to be brought off with an empty promise that they would delay dual contracts if we abandon JR.  And unlike other organisations, we won't be scared to speak out for fear of losing our negotiating position it was famously said somewhere   do right fear no one " .

How he is in office is anyone's guess - you might like to think he has a stash of photos of David and George in their Bullingdon days running through the cloisters of Oxford in a state of undress, I couldn't possibly comment .

In February he intends to showcase the justice system at The Global Law Summit. Mr Grayling  has dressed up a legal business fair as a celebration of 800 years of the  Magna Carta . At over £1000 per delegate the event includes speakers such as:

Jonathan Drimmer, Vice-president and Deputy General Counsel of Barrick Gold Corporation;

Georg Kell, Executive Director of the UN Global Compact;

Rosemary Martin, Group General Counsel and Company Secretary of Vodafone;

Sir Michael Rake, Chairman of BT Group and Deputy Chairman of Barclays PLC;

Graham Vinter, General Counsel of BG Group;

And with no sense of irony - Chris Grayling Lord Chancellor is addressing a summit to celebrate a charter that includes a clause :

"We will not make men justices, constables, sheriffs, or bailiffs unless they are such as know the law of the realm, and are minded to observe it rightly."

I Apologise, I did say I wouldn't criticise him for his lack of legal training.

We intend along with the Justice Alliance to make a lot of noise and draw attention to the disgraceful fact that this event ignores the painful destruction of our justice system by one of its own keynote speakers.

This is one of Two major events this year in which we need to put access to justices at top of the agenda - the other being  the General election on May 7th.

Whilst labour have now committed to say they can't reverse the cuts - this issue needs to be on the agenda. We need to ensure politicians understand the real impact of the erosion of legal aid on their constituents who see representation by solicitors as less remote than that provided by their parliamentary representatives . Every constituency should be holding "legal aid or justice hustings "

I am proud to be part of an association that took The MoJ on in the only way we could at a time when we were abandoned by those we thought were there to support us and it is imperative that others who benefit from the work of the association join the membership to ensure we can continue this work in years to come.

Lawyers should and must work together to protect the justice system and this year we need to address the  un- lawyerly practices  that takes place as work becomes tighter, competition increases and firms find themselves stooping to new levels to obtains cases.

We need a consensus that it is not acceptable to scramble for cases, to use fixers, to make unsolicited visits to clients of other firms , to lie about the role of the duty solicitor or even impersonate the duty solicitor.  Firms have grown using these tactics at the expense of others who have closed down as a result. We need to show firms that this helps no one it just speeds up the race to the bottom.

The MoJ exploit the perceived oversupply and this scramble, by seeing the goodwill of firms extended to the point that they are cutting their losses by doing more and more work for free to keep the client base. The fee structures exploit this desperation and the willingness for us all to participate in loss leaders, be it a weekend spent in police station on a murder for little over £200 only to find our representation has been so effective to lead to no charges,  or  the crown court fixed fee which  barely covers file storage costs; yet we are criticised for not sending clerks and relying on counsel to assist with the preparation of a case.

And let's just be clear about one further thing, fee sharing may happen for advocacy services , but is not as widespread as believed and exists amongst both sides of the professions.

The team

This task ahead  cannot be achieved without the team we have , we don't have a first 11, but in our committee we have a squad with strength and depth. We  saw that many times over the last year .

I enjoyed a post interview pint with our advocate editor Gwyn Morgan who led me into a pub game, whereby she likened the LCCSA committee to a football team.

I'd like to share her thoughts building from the back:

Our finances are in a safe pair of hands with Tim Walker in goal

And solid at the back we have our Vidic and Ferdinand  Tony Miesels and Diana Payne

Supported by Rakesh Bashin and Greg Foxsmith as wing backs , both ready to  bring the ball up and get back down  the pitch to help

In the centre the pitch we benefit from the creativity and experience of Steve Bird  working alongside our immediate past president Nicola Hill as the box to box midfielder , capable of scoring some great goals .

We are fortunate enough to have options on the bench if we need to protect the defence with Mel Stooks coming on to help defend our lead .

On the flanks we benefit from the energy of Ali Parker and Jenny Wiltshire .

I promise that I didn't  as much as raise smile when Gwynn suggested putting Paul Harris in the hole  with his influential attacking play;  and it was decided to go for glamour with the number 9 shirt - My Vice President attack dog  Julian Hayes, always dangerous in the box ,

"So where does that leave me ?" I asked , "oh you can be the "super sub " in hour of need like Goetze on the bench" . At least that enables me to spend the first half tweeting .

Alongside me on the bench we have options with Zaki, Sandra, Rhona , Jon,  lucinda , Mark, Ed and Gavin all of whom add strength in depth .

Malcolm and Raymond are track suited player coaches who can come on in the hope that experience can lead to a late goal and of course we have Sandra without whose patience management skills , none of this would happen.

Bill - I am delighted to be able to continue the ever developing friendship with the CLSA,  I'm  originally from Harrogate , as is Sandra, Julian from Wearside, Greg from Plymouth , Lucinda from Wales , Mel from Blackburn  and Malcolm from Bradford , The LCCSA is more provincial  than the CLSA !

When Nicola asked me to be Junior Vice President two years ago -my reaction was "it's a bit of a poisoned chalice"  She curtly remonstrated me "Thank you I'm honoured is what you are supposed to say "- so I did . And of course I am.

At that time Grayling had just become Lord Chancellor - we knew a bombshell was on the horizon but never imagined the campaign we have fought would run through three presidencies of the association.
 thought i might be lucky. 

However we all sit here with baited breath awaiting their next move.

What is more daunting is following in the footsteps of Nicola's incredible and dynamic leadership. A non legal aid lawyer whose dedication to this fight has shown that she cares more than many who of those rely on public funded work for their livelihood.

We considered asking Russell Brand to speak tonight but we're concerned he might be interrupted at the end of every sentence by Dave Rowntree shouting -Parklife

When I asked Sandra to suggest a guest speaker, a solicitor friendly Judge , she didn't just find one , but 6 others and and I found the 8th .

We are delighted to welcome eminent guests from Snaresbrook,  and thank you all for supporting a profession under great deal of pressure we have experienced recently. HHJ Kennedy was a solicitor at whiskers, not a fat cat firm, and many will remember him as a stipe  at Thames . When the list caller would tell us that mr kennedy was sitting , we knew the day would get better, and not simply because her answer wasn't Jackie Comyns. 

Monday, 3 November 2014

The Tuesday Truth

Today’s Tuesday Truth focuses on 2 events on 31st October: The judicial intervention describing the state’s avoidance of its responsibility to ensure access to justice and the CLSA conference at which the Labour party unveiled a plan ( or perhaps is better referred to as a micro plan or planette) to ensure that access to justice under a Labour government will remain an aspiration rather than a reality.

The judgment handed down by the head of the Family division on Friday 31st October provided overwhelming evidence of the erosion of access to justice at the hands of this government. The story set out below is not about austerity, it is about an appalling withdrawal of public funding for vulnerable members of society. It is nothing short of shameful for a democratic country to have allowed such a scenario to arise, but it is not surprising bearing in mind the consequences of LASPO.

The issue before the court was whether a little boy D should live with his parents, his wider family or as argued by the local authority be adopted outside the family. The issue therefore for both the boy and his parents could hardly be of more profound significance. Both parents had severe learning difficulties.

The court’s main and understandable concern was with fair trial rights and access to justice where a state agency sought to take away a child from their parents permanently and that same state had introduced changes which denied the parents access to legal aid to defend such an action. The court described this scenario as unthinkable.

The judge criticised the state for washing its hands of a problem that it had created describing its conduct as both "unprincipled and unconscionable". In circumtances which were wholly predictable, the state had placed itself  in breach of its obligations under the European Convention of Human Rights. Legal representation was only available if lawyers agreed to work for nothing.

How can we stand by and allow this government to proceed with this abuse of power? All lawyers whatever their background should be appalled and each of us lawyers and non-lawyers alike should be alarmed by the  extra tools the state is awarding itself to defeat anyone or anything that gets in its way.

On Friday 31st October at the same time that Sir James Munby's judgment was gaining circulation, Andy Slaughter shadow minister for legal aid addressed the Criminal Law Solicitors Association conference. Much of his address was spent criticising the current Lord Chancellor for his attack on access to justice.

We are all too aware of the brutalist excesses of the current Lord Chancellor. The audience was much keener to hear how any future Labour administration would address the now yawning justice deficit.

Regrettably, Mr Slaughter said  little to enthuse an audience that has taken the fight for justice to the courts and the streets. 

He indicated that if elected his government would carry out a full review of legal aid. There would be "consideration"as to whether in light of the reducing spend ahead of schedule on criminal legal aid there was any need for the second cut of 8.75%. He also indicated such a review would consider whether the two tier approach to criminal legal aid contracting was the best way forward particularly in view of the evidence currently available. Many interpreted this as a strong hint that if Labour came to power they would abandon the 2 tier proposal. This is welcome but of course by itself does not cure the two tier justice system which has already appeared under the last two administrations.

He was criticised for stating that a labour government would not reverse cuts and would place greater emphasis on mediation, in other words preserving the restrictions on access to justice introduced by the current coalition government.

In truth successive Conservative and Labour governments have not been kind to the provision of legal aid. Slaughter said he wants to engage with the profession but as Greg Powell former president of the LCCSA pointed out, numerous ministers with the portfolio of  legal aid have been polite in exchanges and meetings but none have ever really listened.

Robin Murray vice chairman of the CLSA raised the interesting issue of the role and power of civil servants in legal aid arrangements. The costs for delivery seems to have risen consistently for many years whilst our fees have been so savaged for nearly 20 years that they are barely sustainable.

Why do we need legal aid contracts at all? Surely if a firm has an SQM or other acceptable quality mark they should be able to apply for a legal aid order for a particular matter and claim from the agency in the appropriate way. No contracts, no franchising, potential for huge savings at the legal aid agency end but of course less jobs for civil servants.

The CLSA conference rightly highlighted the outstanding leadership of both Bill Waddington and Robin Murray who had led the profession with courage and had contributed so much particularly in relation to the JR victory.

In a panel discussion at the end Richard Miller of the Law Society stated that the Law Society had raised many problems with the MOJ about the dual contract approach and had not received any proposed solutions. Furthermore he stated that if the MOJ proceed with the duty contract tender the Law Society would seek legal advice re a judicial review and would want to work with the Criminal Law Solicitors Association and London Criminal Courts Solicitors Association. Richard Miller has always been a great friend to the profession but it was still reassuring to hear a Law Society Official speaking in these terms at the conference.

Finally at the same panel discussion Mark George QC emphasised how many members of the bar had been and remained opposed to the deal struck by the bar. He stated that the CBA had effectively accepted the first offer as soon as Grayling came running. He said that the biggest danger to the bar was 75% of its suppliers being wiped out through the duty solicitor tender.

He emphasised the need for unity. On the same panel Jon Black due to be elected President of the LCCSA next Monday 10th November stated that the leadership of the representative organisations would need proper assurances from the bar before there could be any joint engagement in future protests.

So where does that leave us all?  We await the MOJ proposal on the duty solicitor contract scheme, but the bigger picture is bleak, we need to fight on the principle of legal aid and access to justice whether civil or crime.  The CLSA conference applauded the leadership and fight showed by the leadership of the CLSA and LCCSA, the fight is far from over. There is an election coming we need to make sure that legal aid remains on the agenda. It is clear that the Labour Party either remains in denial about the disintegration of our justice system or is so in thrall to the austerity project that it would rather sacrifice access to justice than take a lead in restoring equality and fairness through restoration of legal aid funding and scope.