Monday, 9 March 2015

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 15th. 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 8th 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.





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