The Tuesday Truth

Not a good week…………………

So we lost the appeal against the JR, the government still plan to proceed with 2 tier, despite the constitutional convention of purdah (which prior to a few months ago I thought was the female character in the New Avengers) and by the back door they brought in a Court tax which looks like a means to bully the poor into pleading guilty.

Do not worry, the burden of proof still exists, innocent till proven guilty, the hallmarks of our great system still in place, well sort of but if you dare plead Not Guilty, dare test the prosecution case, well it will cost you.

In fact the sentencing process will now take much longer and all defendants will get free calculators because you will need to calculate the fine, prosecution costs, the victim surcharge and the court tax, and work out how many years it will take to pay off. It will take the Magistrates an hour to explain all of that. Simple Summary Justice………….

Jamie Hamilton perfectly summaries how outrageous this new Court/Trial tax is in his blog https://jaimerhblog.wordpress.com/2015/03/27/the-trial-tax/

 The loss of the appeal against the JR refusal was a disappointment for all. If the duty solicitor proposal is ever introduced, both solicitors firms and the bar will be decimated.

With an election looming the time for finding a common way forward has never been more important. I have said it before and will say it again both arms of the profession need to address the few areas of division in private not public. We need our leaders to look forward to the post election period; whoever is in power will not be handing out increases in fees.

Grayling’s decision to proceed with the tender despite purdah and Labour’s stated policy not to proceed with this scheme if elected reflects his entire attitude to the provision of justice, cut, restructure and privatise first and ask questions after.

Convention appears to demand that he postpones the introduction of this controversial policy until after the election. What advice has he been given by the Civil Service? Many think he has been told to stop but that he has so little respect for the constitution he is supposed to protect that he intends to go ahead regardless.

Can we make access to justice an election issue? What can Labour really offer? Can we show that a proper and fair democracy needs proper access to justice for all not just the wealthy? Previously this has never been a big election issue but now it is time to hold the key people to account: Grayling, Hughes and many others.

The Panorama on DIY Justice is another independent review of this government’s performance on access to justice. Watch it if you can.

The Tuesday Truth is not a political blog, we like to publish a range of contributions and opinions, but we are delighted to finish this week with a ditty written by Ali Parker ……….Perhaps we may hear you singing it outside a court building in the near future. 

 

To the tune of That's Amore

When the legal aid cuts
Are vindictive and nuts
That's the Tories

When you get back no costs
Even though the State lost
That's the Tories

When the translator's late
And the usher's irate
That's the Tories

When the van's disappeared
And cell staff are in tears
That's the Tories

When court canteens are gone
And Starbucks costs a bomb
That's the Tories

When court fees have been hiked
And Probation's on strike
That's the Tories

When the CPS file
Is floating down the Nile
That's the Tories

When insisting on proof
Is considered uncouth
That's the Tories

When the poor and the frail
Swell the numbers in jail
That's the Tories.

When G4S overclaims
But then no one gets blamed
That's the Tories

When reforms are just dense
With no financial sense
That's the Tories

When you try to assist
But your points are dismissed
That's the Tories

When Chief Whips swear at cops
And still sue them for lots
That's the Tories

When their top QC leaves
Fare thee well Dominic Grieve
That's the Tories

When they crack down on thugs
But give Clarkson big hugs
That's the Tories

When human rights get bashed
Unless you've tons of cash
That's the Tories.

When the sum of all fears
Is to think 'five more years'
That's the Tories.

When the last fallback plan
is to vote Miliband
That's the Tories

 

The Tuesday Truth

 

Home Alone

 

According to the Corston Report in 2007about 18,000 children each year are separated from their mothers by imprisonment and it is estimated that 200,000 children under 18 are affected each year by a parent in prison. What is of concern is that Courts are not always informed of such dependants when performing a sentencing exercise. There are increasing examples of defendants appearing at court for sentence , not notifying any member of their family and then receiving custodial sentences. On occasions leaving children at school uncollected, or at home with no food or money This is unbelievable because a dependant being deprived of its sole carer is powerful mitigation but apparently there are examples of this information not being made available partly because the client is too embarrassed and simply expects to be home from court to collect the kids or worries that if they do tell someone their children will be taken into care. Occasionally it is missed by the defence advocate and even the probation service. It is conceivable I suppose for a Duty Solicitor in a busy court with a long list to work through to miss this type of information.

Putting aside our obvious sadness at the number of children affected by parents in custody there is a real problem in the system if children are left without care or arrangements because the court simply are unaware of the dependants. How can that information be missed? Are we and probation so stretched that this could happen?  Are the pressures to reform and  cut costs so great that we are losing grip of what is important?

Can pay will pay

I was delighted to learn that the Trial Advocate will now be paid the Crown Court Advocate’s fee as opposed to the Advocate who attends the first hearing in the Crown Court, usually a Preliminary Hearing or Plea and Case Management Hearing

Only recently I had an experience where instructed Counsel who had had the case for over 6 months returned it at the last minute as the trial they were in had overrun significantly and neither they or their clerks had informed me until close to the trial. Chambers could not offer me a suitable replacement and I was fortunate to find a very reliable and able Solicitor Advocate who was able to conduct the Trial. I agree with Tony Cross of the CBA that it is much fairer for the advocate who conducts the Trial to be paid the case fee and saves considerable bureaucracy and angst  at the end when the advocate entitled to the biggest portion of the fee has to chase others entitled to much less to get paid.

This is one of the many initiatives to emerge from the Leveson review. Case ownership and engagement are two features to be emphasised in Case Management. For those who have lost many months of their lives trying to speak to the appropriate person at the CPS, this should all be about to change following the “Transforming Summary Justice” Review and the Leveson Review.

As I write this I sense those reading raising their eyebrows, “Have you lost all sense of reality Harris? Isn’t this just a further reinvention of the wheel?”

Well only time will tell, but these initiatives will create rules and obligations that will require parties to engage earlier, to have proper ownership of files. This will mean advocates in trials will not be able to pick up the papers the week before but will have to be actively involved in the case management from an early stage even if it is one of 3 cases they have in a warned list that particular week

Digital Deadenders 

Notwithstanding all the senior judicial oomph going into The Leveson Review, Transforming Summary Justice and the restated commitment to move Criminal Justice into the digital age the only way in which these initiatives will have the desired benefits is for the defence to have the appropriate resources to properly participate. The investment in these initiatives will be substantial, but  leaving aside the question of where defence lawyers will find funding for IT in our increasingly zero profit world, spending vast sums of money on IT is pointless if you do not have the right personnel to take advantage of such equipment in the Courts, CPS and defence.. After all Criminal Justice is about people; the victims, the witnesses, the defendants, those who prosecute and defend, the juries and the judiciary. The whole system may be digitised in two years time but without increased funds at every level we will be working in a digital knackers yard; nice tech, shame about the content.  

 

 

The Tuesday Truth

This week's Tuesday Truth is by Rhona Friedman, Criminal Solicitor and Co-Founder of the Justice Alliance. Rhona has edited most of the previous Tuesday Truths.

There’s no fun in being a canary called Cassandra 

If someone, Paul Harris say, writes the definitive history of the attritional battle between criminal lawyers, the Coalition Government and the Ministry of Justice,  a short chapter should be devoted to how most of us in our decaying criminal law silos failed to grasp the LASPO horror show , the calamity of all calamities that was about to engulf the civil lawyers who are our friends, business partners, and the people whose name we know but don’t physically recognise at the office Christmas party.    

The Law Society, LAG and LAPG tried to tell us all but we weren’t ready to listen. Civil law; arcane, worthy and lets face it often just a little bit dull could not rouse us from our myopic moaning about falling fees, ever extending bail dates, the bizarre irrationality of the LSC/LAA and the inability of the CPS in an age of wearable IT and intuitive robots to match voice mail addresses with the right person.  The campaign against LASPO never really caught hold of the imagination; no strikes, no puppets, no chanting hordes invading MOJ HQ and little traction in the press.

It is this failure to pay attention at the right time to the right stuff that characterises our age. In a time of seemingly limitless information instead of rooting out the statistics that show that austerity as an economic blue print is not working and can never work, that the ratio of public indebtedness has increased since May 2010 because of our support for the financial sector and that in an era of punitive welfare sanctions, over stretched mental health provision and ever rising rents, homelessness in London has increased by 80% since 2010, and nationally by 55%,. We are, as a society, prone to bamboozlement like crib bound infants, seduced by shiny, shiny distractions, floating and spinning just out of reach.

Now all of those dire warnings from our clued up confrères in civil law have come horribly true.  Two reports came out last week. The first Magna Carta today? a joint report by Professor Marjorie Mayo and Dr Gerald Koessl of Goldsmiths and Unite the Union[i]  is as you might expect, academic, politically engaged and name checks Pericles, Thomas Paine and Zygmunt Bauman, so far so unlike a typical MOJ press release.   

Its headline findings are that 623,000 people, 80% of them from the most disadvantaged sections of society have been adversely affected by the legal aid “reforms”.  54% of the benefit claimants who have been affected are thought to have a disability. Women are particularly affected especially those most at risk of domestic violence.

The report tells us that “Legal aid “reform” has been and continues to be wrong headed, vindictively punishing the poor, constituting an assault on democracy.” This may appear too politically partisan for some but step back and consider that “Access to justice has been seen as a fundamental right in Britain from Magna Carta onwards, predating the establishment of legal aid, providing resources to ensure that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right. “ [ii]

We all know someone who is now unable to find advice or fund a lawyer to challenge a bad decision or enforce a right. Frederick Wilmot Smith whose November piece in the London Review of Books[iii] is referred to extensively in Magna Carta today?  writes “The legal system is [   ]  a key means of ensuring that the distribution of the benefits of the welfare system is conducted correctly; if anything, legal aid should be called a foundation, not a pillar, of the welfare state.”   

If legal aid is the bulwark which must be dismantled if the post war settlement and welfarism are themselves to be deliberately dismantled then it is actually a short intellectual joining of the dots to what Wilmot Smith calls the Government’s objective to seek “emancipation from its legal duties” and the conclusion that the assault on access to justice has been deliberately designed and timed to ensure that just as the ideologues shrink the state to a pre war rump under the cover of the austerity scam the ability to ensure legality and procedural fairness in Government decision making has been constrained in an unprecedented way.   

Still not convinced? Well if you want to punitively sanction over half a million benefit claimants but don’t want to deal with the expected glut of appeals then you have to ensure that those affected have no legal right to challenge the decision making process.

If you are still buying into the mantra that we have to cut back to stay afloat then the non evidence based cut first and attempt to justify later approach which MOJ Permanent Secretary Ursula Brennan admitted to in front of the Public Accounts Committee last December doesn’t make any economic sense. As Steve Hynes of the Legal Action Group reported in 2012[iv]  every one pound spent on legal aid advice saves the state six pounds.

Legal Aid cuts do not equal savings as the Justice Committee concluded in last week’s second report on LASPO two years on.[v]  Like the Goldsmith /Unite report, the Committee found that access to justice has been harmed and that  “The Ministry of Justice has failed in three of its four objectives for LASPO: it has not discouraged unnecessary and adversarial litigation at public expense because the courts and tribunals are having to meet the costs of a significant rise in litigants in person and a corresponding fall in mediation; it has failed to target legal aid at those who need it most because it has failed to properly implement the exceptional cases funding scheme; and it has failed to prove that it has delivered better overall value for money for the taxpayer because it has no idea at all of the knock-on costs of the legal aid changes to the public purse.”

The only objective which was met was to make a £350m cut but at what overall cost?

 What can we learn from the LASPO debacle?  Listen to the experts, the people in the field. If 20,000 respondents say something is going to be a hideous disaster, doomed to ignominious failure causing generational damage to the whole Criminal Justice system, then that’s not for nothing.  It seems obviously reckless if not perverse to dismiss that evidence as the clamour of the vested interest.  

“We told you so” is the most sterile and redundant retort in the English language. No criminal lawyer who cares about justice and the state of democracy in this country is going to revel in the schadenfreude of system collapse.  We don’t want to be canaries called Cassandra.

 

---

[i] Mayo and Koessl  (2015) Magna Carta today?  

http://www.unitetheunion.org/uploaded/documents/MagnaCartatoday11-22136.pdf

[ii] Mayo and Koessl p7 and Wilmot Smith  -see below quoting from  the White Paper for the Legal Aid and Advice Act 1949

[iii] Frederick Wilmot Smith · Necessity or Ideology?: Legal Aid · LRB 6 November 2014

[iv] Steve Hynes (2012) Austerity Justice, London: Legal action Group

 

[v] Justice - Eighth Report
Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/31102.htm

 

The Tuesday Truth

If Chris Grayling were a Premier League Manager, he’d have been sacked a long time ago.

Whatever happens this week in the Court of Appeal, when solicitors with one, loud, unified voice appeal the decision of the High Court to refuse judicial review of his legal aid reforms, his record of defeats in the High Court (10 at the last count) would have seen off most football managers.

It might be of concern that the standard of performance required at a football club is higher than the one required in government. In fact, if you take it further, most of the victors in the High Court have far less resources than the Lord Chancellor, and these defeats are the same as Manchester United losing in the third round of the FA Cup to Crawley every week.

In fact, let’s say the MOJ called in Alex Ferguson to have a chat and a bit of a review. Indulge me, just imagine it.

A back room at Carrington.

Fergie tapped his fingers on the table impatiently. The record in front of him was poor. Worse even than Moysie

There was a knock on the door.

“Come in” boomed Fergie and a tall, nervous figure entered the room.  “Sit down Grayling”

“This needs some explaining” said Fergie waving a piece of paper in front of the man opposite him.

“There are barely any victories here at all. Let’s start with this one, never heard of these people, the Public Law Project? They have a miniscule transfer budget and yet you lost to them!  No proper preparation, no strategy, who is your coaching team? ”

“There were some technical issues.” responded Grayling

“Technical issues!”  “Something went badly wrong here”

"We can sort it” assured Grayling

“This was illegal, you could get us kicked out of Europe.” shouted Fergie

“Isn’t that what we want?” questioned Grayling

“Don’t be impertinent.” said Fergie.

Grayling looked nervously on as he saw Fergie move towards a pizza on his desk. He thought Pizza gate was the other way round.

 “Who are these people who advise you? This asbestos case, what review took place? , Did you consult properly? Who are your backroom boys and girls ?  Who are they accountable to? Inquests and legal aid for bereaved families an own goal if ever there was one.  And as for a book ban for prisoners did you let the youth team coach write that Prison Service Order?   

10 defeats, you could destroy something really special here, and something we were proud of….”

I would go on but the seriousness of the matter is not lost on any of you.

Beyond the appeal this week, what is the future of the criminal legal aid provision? What is the future for access to justice in a week when court fees have gone up as much as 600%? If we win the appeal, it seems the duty solicitor sell off is over and we wait until the election to nervously see what’s next.

With an MOJ victory, they’ll proceed even further with the tender process. The original timetable would have had successful bids announced on June 15^th. Of course, the Labour Party has said they will not proceed with this policy if elected, and so we may have the bizarre situation of a tendering process having been carried out for a policy which would be rejected as one of the first actions of a new government.

As we have no idea who will be PM by the 8^th May, the Civil service must clearly wait to find out who enters Number 10 and let the people’s elected government decide the fate of this policy, out of respect for the election process and our democratic tradition.

Yet the worry is that the MOJ will ignore established political etiquette  and attempt to bulldoze on with these unfair and unjust reforms to the UK Justice system.

Applications for Legal Aid

The arrangements for submitting legal aid in Criminal cases have  recently changed with an emphasis on a centralised system with scope for submitting applications electronically. We were assured that applications would be processed quickly and this new scheme would benefit all. However there are alarming reports emerging of far greater delays in certain areas than previously existed. In addition to the delays there are peculiar refusals on the interests of justice test when the threat of custody is blatantly obvious.

Only in this profession are we expected to attend court when the issue of funding is still not determined. The guidance in the Magistrates Court is that first appearances will not be adjourned if legal aid is not granted. Refusing to act in such circumstances is perfectly permissible but many Solicitors fear they will lose the client to a less scrupulous lawyer if they refuse to act.  In certain areas solicitors have agreed not to act without legal aid being granted and not to poach clients. This has led to the possibility of lists of first appearances (with some clients in custody) of unrepresented defendants. Not surprisingly where this has arisen arrangements have been made to expedite legal aid applications.  The courts would grind to a halt if there was a huge increase in unrepresented defendants.  We should not be a unique profession in that we provide assistance on the possibility of payment.The new initiatives to increase efficiency are very much dependant on progress being made at the first appearance where effective case management is expected. Quality defence engagement will hugely influence whether this will work. However if you expect the defence to participate greater efficiency needs to begin at the start with the processing of legal aid. We all have interest in increased efficiency, but this means each part of the criminal justice system needs to up its game.

 

 

 

 

The Tuesday Truth

CLSA/LCCSA Judicial Review- More Funds needed please

On Friday 27^th February 2015 the Court Appeal granted leave to the CLSA, LCCSA and Law Society to appeal against the High Court refusal of those applicants judicial review of the Ministry of Justice’s Legal aid reforms. The Judicial Review specifically related to the MOJ proposal to sell off 527 duty solicitor contracts for provision of Criminal Defence work, a policy likely to result in a substantial reduction in access to justice and quality of representation. The economic evidence suggests that most firms will not survive without a duty contract. As well as securing leave the injunction against this tender process was preserved by the court until the full appeal on 10^th and 11^th March 2015.

This is a substantial achievement. The CLSA and LCCSA have led the campaign against these proposals and deserve considerable credit for continuing the fight. However the JR appeal fund needs more money now.

You may have given before, and that is fantastic but the fight goes on because what is at stake is access to justice, equality of arms and state accountability. The LCCSA and CLSA has assembled an outstanding team of lawyers to fight the cause supported by dedicated volunteers from both associations but they need your help. PLEASE CONTRIBUTE NOW. The link is http://www.criminallawyersunited.com/donate-to-the-campaign-fund/

Relay for rights/Stand up for Justice at Not the Global Law Summit 

 

Written by Subashini Nathan who was called to the Bar in 2013. She is currently an immigration paralegal at Birnberg Pierce and Partners, seeking pupilage. 

 

I was brought up near Rochester Castle, which in 1215 was held by the baronial forces against the Crown. It was the site of a seven week siege led by King John. Severe food shortages led to Rochester surrendering to the King, but his victory was brief as King John died the following year.

800 years later, and I find that we are still struggling with arbitrary and unaccountable power. This Relay was us: ordinary people, charities, NGOs and lawyers resisting the siege laid by King John Grayling in his destruction of the rule of law, due process and access to justice.

I have been part of the Justice Alliance as a voice from the Tamil community, representing an NGO, since the beginning of Justice Alliance in June 3013. When Matt Foot and Rhona Freidman shot round the idea of a Relay, I was up for it. I enjoyed doing Duke of Edinburgh expeditions whilst in school, and I thought the relay would be a piece of cake, which it was if you like hard blister inducing soggy fruit cake that is at risk of being dronwed by the Thames.

We started on a sunny Saturday, at 12 noon in Runnymede, where hundreds of us turned up with non baronial banners and carrying water bottles and blister plasters, not spears this time. We rallied on borrowed US soil, the site of the Americal Bar Association’s Magna Carta memorial.

Words of support from Emma Thompson were read out and we heard from Susan Matthews about the battle to clear her son Alfie Meadows who sustained a brain in jury when arrested by police at a student fees demonstration. Ruth Hayes of Islington Law Centre then explained the huge impact of the legal aid cuts across the advice sector. We were sent on our way by Anthony Barnett founder of Open Democracy who provided the historical context for where we were and what we were about to do.

The Relay was to carry Clauses 39 & 40, which were read out by Anthony Barnett at the start of the 42 mile journey.

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

 

With the ceremony over we were off accompanied by King John Grayling, some four-legged friends, family members and children. We had to carefully tread past crazed wild horses, and we avoided being stranded on the wrong bank of the river at Shepperton just catching the last ferry to the South bank captained by Ferryman Dave (no relation to Brian, his joke not mine!).

The hardest day by far was the Sunday, where we made an early start in Walton on Thames and pegged it to Richmond. We arrived at the appointed pub to join a much larger crowd and shuffled on to the Thames Path towards Putney. We walked through the rain, dodging the river as it broke the bank and flooded the paths. Frequent stops at pubs (one inhabitated by a suspiciously young looking Anthea Turner) kept us going as we walked under low bridges, cutting through mud, runners, cyclists and low hanging branches.

On Monday morning limping by now we walked from St Mary’s Church Putney, the scene of the Putney Debates, to Westminster, with King John Grayling in tow. As we got closer to Westminster, we were joined by an ever growing crowd of supporters, musicians and the wonderfully charming Maxine Peake. I was shocked and humbled at the turnout in Old Palace Yard which showed that the Justice Alliance is a movement that is relevant and well-supported nearly two years after its formation.

The Rally kicked off with Greg Foxsmith staging a mock impeachment process of King John Grayling who had nothing to say for himself. In between there were inspirational speakers which included Jon Black and Robin Murray of the London Criminal Courts Solicitors’ Association and the Criminal Law Solicitors’ Associatio; the leader of the probation officers union NAPO , Justice Alliance Co-founder, Matt Foot,  Labour MP Karl Turner; Marcia Rigg, whose brother Sean Rigg died in police custody; co-director of INQUEST, Deborah Coles and Barry George’s sister, Michelle Bates. What really hit home was hearing the final words of Professor Costas Douzinas, “The only battle we do not win is the battle we do not join”  followed by a few home truths from a young man Awate Suleiman talking about his experiences at the hands of our injustice system.

The Rally led by banner-men, minstrels, a jester and King John Grayling then headed out to Queen Elizabeth II Conference Centre, the site of the Global Law Summit. A delegation managed to persuade the organisers to accept the Magna Carta (or rather the Relay’s copy). A letter accompanying it asked that clauses 39 and 40 of the Magna Carta be read out in the conference itself. Crowds of nervous looking delegates gathered at the windows of QE2 to take a good look at the side of the law that was never discussed within the Global Law Summit.

That evening Stand Up for Justice: Justice Just Got Funny (CPD to be confirmed) was a fantastic, well organised end to the 42 miles Relay. I was lucky to bag a seat in the front row and had the joy of heckling Stewart Lee and riffing with MC Ian Stone.

The full three days would have not been the same without the cheer, goodwill and support of the many people who turned up and out to walk with us. As someone just starting out in a career in legal aid law the difference between the suits at the Global Law Summit and the hundreds of people who supported the Not the Global Law Summit was stark. They looked embarrassed and shifty and we were proud and united in defending legal aid and the Magna Carta principles which undperpin access to justice.