The Tuesday Truth

Today’s Tuesday Truth focuses on 2 events on 31^st 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 31^st 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 31^st 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 10^th 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. 

Tuesday Truth

This week's guest contributor to the Tuesday Truth is Ali Parker experienced Solicitor from Saunders Law and member of the London Criminal Courts Solicitors Association Committee.

This is my first attempt at writing the Tuesday Truth. Initially, it was superbly authored by Paul Harris and Rhona Freidman. But they both went to ground shortly after the Lord Chancellor announced plans to increase sentencing for internet trolls to two years imprisonment.  I am assured this is a pure coincidence.

Last week, Greg Powell proposed a logical, holistic and financially honest solution to the legal tensions arising between a democratic state and its citizens. Anybody who tells you that the ‘legal aid brigade’ cites problems but proposes no solution should be directed to this.
This week my theme is about breaking records, because we now live in momentous times. It is all moving very fast and, like Ferris Bueller, I think we ought to stop and take a look around because otherwise we might miss it.

1. The Latest Consultation.

The big news must be the thousands of responses flowing in to the third Ministry of Justice consultation on consolidating and cutting the provision of criminal legal aid. This was a monumental effort in such a timeframe and shows the strength of feeling.

It follows that my first ‘record’ is one of speed. I suspect a three week period is truly Guinness-worthy as the shortest government consultation ever. If anybody can name a shorter one in any democratic country, do please let me know. In fact, please name that consultation within 9 seconds, after which I am sorry, but your input will not be considered.  

2. The Otterburn Identity

Secondly, Andrew Otterburn and Vicky Ling of ‘Otterburn report’ fame took the record-breaking step of responding to the legal aid consultation based on their very own data. They did so to point out that their findings and figures had been misinterpreted, and that they do not accept the MoJ’s market assumptions provided to KPMG. I have never heard of such a step before. Can we safely assume this has been said in private ever since February 2014 when the MoJ’s conclusions were published? Would Otterburn and Ling have spoken up if, heaven forbid, the CLSA & LCCSA had lost last month’s judicial review?

3. The Law Society: Two Tier, or not Two Tier?

My third record goes to the Law Society for most dramatic ‘Road to Damascus’ conversion. To paraphrase our professional body:
October 2013: “We welcome the MoJ’s revisions to price-competitive tendering, but further modifications will be needed to ensure a viable market.”
October 2014:  “The entire scheme needs to be abandoned.”

I welcome their change of heart - and let no one pretend that there has been no change. In fact, it is all the more surprising because unlike everyone else, the Law Society was privy to both Otterburn and KPMG reports throughout.

I could speculate about what caused these transformations, but I will not. I fear that to engage in wild speculation without any hard evidence is at best irresponsible, and at worst might open up a career path within the Ministry of Justice.

In fairness to the Ministry, one could argue they been entirely consistent: They are trying to patch up one sham consultation by launching another one.

4. Human Rights Hokey Cokey.

My fourth record goes to the new Conservative position on the European Convention of Human Rights. They have previously talked of a ‘British Bill of Rights’ (will it apply only to Britons?). Now we also know they would not only repeal the Human Rights Act 1998, but they will also overrule Strasbourg Court judgments by UK Parliamentary majority. So my fourth world record would go to the UK: potentially the very first nation to subscribe to international human rights, unless its politicians decide to ignore them. This is truly the first time the Strasbourg Court has been made legally subject to the ‘Daily Mail test’.

Still, at least this will stop all those serving prisoners voting in our elections. Pardon? What do mean there aren’t any?

5. No Food for Thought

The fifth record is the ground-breaking failure to renew many Crown Court catering contracts, meaning all parties involved in trials must dash to local cafes/ newsagents/ kebab houses to grab a bite at precisely the same time.  According to the resident judge at Oxford Crown Court “It is a potential problem that concerns us because if everyone is going to Tesco and local cafes, chances are you are going to be standing in the queue or sitting next to someone in the case and people sometimes talk without thinking.”
I fear there is not only a danger of eavesdropping or loose talk. There is also a real danger that when jury discussions start informally early (which we know they do), if there is only one convenient place to eat, you might actually find the trial witnesses, the investigating officer, and even the defendants chipping in with their views on the evidence.

When the government explained their cuts by saying “We’re all in this together”, I had no idea this extended to jury deliberations. 

6. You know who.

My final record, fittingly, goes to Mr Christopher Grayling MP himself as the first non-lawyer to become Lord Chancellor.
Mr Grayling said this week that he considers it a positive benefit to the legal system to have a non-lawyer in charge of it. Judging by his chirpy disposition before the Constitutional Affairs Select Committee, he considers each adverse judgment (they are mounting up) as a positive badge of honour.

The same cannot be said, however, for former colleagues and industry experts who are finally turning against his policies. Every politician needs allies, but Mr Grayling is getting ever more isolated. New critics include the former Attorney General Dominic Grieve QC, the previous Justice Secretary Ken Clarke QC, and the Spectator Magazine.  I can now almost picture Mr Grayling, on reading his consultation responses, wheezing: “Et tu, Law Society?”

To clarify: I do not personally subscribe to the view that the Lord Chancellor must be a lawyer. But I do feel he or she should be able to think like one. Every Lord Chancellor should subscribe to a logical, intellectual honesty and rigour which will always expose political ideologies as simplistic, and even childish. Ideologues have neither the empathy nor the basic will to understand their opponent. They tend to make bad lawyers because they can only see one side and, whatever the evidence put in front of them, they repeat the same thing over and over again until even their allies start to tap them on the shoulder.

Is any of this starting to sound familiar?

 

The Tuesday Truth

 

Otterburn Gambaccini and Magna Carta

 

PLEASE RESPOND TO THE CONSULTATION ON LEGAL AID WHICH CLOSES TOMORROW. THE LINK IS:

 

https://www.lccsa.org.uk/transforming-legal-aid-crime-duty-contracts-consultation/

 

We do not apologise for reiterating the need for everyone involved in criminal justice to respond to this Consultation.

The Ministry of Justice website states as follows “We are now consulting on the reports undertaken by Otterburn Legal Consulting and KPMG (including MOJ’s response to the analysis) of findings, assumptions in their analysis, as well as a number of duty provider contracts that should be tendered in the forthcoming procurement exercise by Otterburn Legal Consulting and KPMG.”

 Amazingly, Otterburn Legal consulting whose report is the subject of this Consultation, have taken the highly unusual step of responding to the consultation itself. This demonstrates not just the degree of professional dismay that the expert authors have clearly experienced but also the high stakes involved in the Consultation; no less than the fate of criminal defence in England and Wales.

 In the report,

http://www.otterburn.co.uk/141008%20MOJ%20consultation%20questions%20-%20AO_VL%20response.pdf

Otterburn state that the Duty Provider Contract Additional Information published by the Legal Aid Agency in February 2014 included a reference to the findings from Otterburn that bidding organisations would employ at least one full-time fee earner with relevant experience of crime work for every £83,000 of the indicative contract value.

 Otterburn state in their response that this was not the finding of their report, this was a calculation made by the Ministry of Justice based on certain figures included in the Otterburn report.  Otterburn state that they do not agree with the way that the figures have been calculated which imposes an artificial constraint on firms’ ability to develop different operational models.

 Otterburn then comment on the assumptions adopted by KPMG. Otterburn make clear that they had no input into the design of the KPMG financial models or the underlying assumptions that these were based on.  Otterburn say that they were very clear that the assumption that firms would give up 50% of own client work if awarded a duty solicitor contract “was incorrect and would not happen”.   Of course not as all firms rely on their own clients to generate the majority of their profits.

 Otterburn also describes as unsafe; the KPMG assumption that work levels would remain constant for the purpose of modelling future contract sizes.

 They also take issue with the MOJ’s assumption that a 5% profit margin was unnecessary, and call it “highly imprudent”. They accuse the MoJ of adopting a “high risk assumption”. 

 All of the above may appear boring and technical, but it is of real importance. Of greatest significance is the fact that Otterburn whose Report we are being asked to respond to have now undermined key figures, analysis and assumptions which underpin the Consultation.  This is a damning verdict not only on the narrow issues the MoJ wants us to consider but also more crucially on the validity of the model that the MoJ wants us all to accept as a fait accompli.

 Otterburn has had the integrity to speak truth to power. We must honour that integrity by responding.

 THIS MEANS IT IS EVEN MORE IMPORTANT TO RESPOND

 Police Bail

This week the police announced that they will be taking no further action against Paul Gambaccini who had been on bail for nearly a year.   There were the usual indignant voices in the press complaining about the injustice of this man being on bail for so long  without knowing whether he was going to be charged with criminal offences.

 Paul Gambaccini is the thin edge of the wedge.  There are many, many more on bail for very long periods of time, their lives effectively on hold, and for every suspect who is on bail for months at a time there are victims equally subjected to the agonising wait, not knowing whether they will be giving evidence or not, not knowing what is going to happen to their case.

The Law Society has recently been extremely vocal about how extended bail periods, and I read recently that even where a decision is finally made and suspects are charged some cases are being listed in 2016!

 We need to stand up for every part of the criminal justice system that is under threat; for prisons, for probation, for victims, for suspects, for defendants, for the police, and for the courts.

 In February 2015, Mr Grayling seeks to showcase our legal system to the world, the flim flam of pageant a mask concealing the dismantling of our justice system.

We must show the world the current state of our justice system, a 21^st Century edifice with early 20^th Century access to justice.

Mr Grayling has degraded or traduced every element of our justice system including the panoply of rights that the post war generation introduced.  Independence, rigour, access and choice all gone or going. This is what the world needs to hear.

 

 

 

The Tuesday Truth

By Rhona Friedman and Paul Harris

 

Ten Reasons Why You Must Respond To the MOJ Consultation on Criminal Legal Aid

1. To preserve access to justice
2. To preserve client choice
3. To prevent the robust  justice system we are proud of being eroded away
4. To preserve the rule of law
5. To allow communities to retain access to their local solicitor
6. To prevent a reduction in quality of advice as substantial fee cuts and expansion costs force firms to employ inexperienced and under qualified fee earners
7. To prevent 75% of firms going out of business
8. To prevent the independent Criminal Bar losing 75% of its suppliers
9. To provide a future for junior barristers and solicitors
10. To prevent the inevitable fiscal waste of a future Government having to fix the mess caused by the MOJ ignoring the stark conclusions of its own experts and warnings from all professional bodies about the folly of this doomed plan

 

The Ministry of Justice- Its own evidence

Otterburn report

The Bullet Points

• Few firms will survive in the medium term without a duty solicitor contract
• Few firms could afford to invest in the structural changes needed for a larger duty contract
• Rural areas need a different approach by the MOJ for Duty Solicitor Provision
• Hardly any firms could survive the overall reductions envisaged
• A profit margin of 5% is required for a firm’s  sustainable future
• Fee Reductions should not take place before consolidation

 

The PA report (the one they suppressed):

 The Bullet points

• Legal aid fees declining since 1994
• Firms who only derive 50% of their revenue from criminal legal aid may survive for a time but will only operate on a 1.6% profit margin
• Firms who are more reliant on criminal legal aid are unlikely to survive
• Firms who derive less than 50% of income from criminal legal aid are better placed BUT report acknowledges that the effects of cuts in fees and scope in other parallel areas of practice have not been factored in  
• MOJ vision of super firms hoovering up contracts is undermined because big is bad for sustainability and the market will be so sickly that outside entrants like Eddie Stobart and Tesco Law will not want to enter
• Scaling up difficult because of lack of access to lending
• Restructuring in the way envisaged by the MOJ  difficult in short and medium term because of existing commitments regarding premises, IT etc and time needed for mergers
• Likely consequences of firms being unable to scale up is a gap in provision in major urban areas such as London and Manchester, the West Midlands and West Yorkshire

 

KPMG

The Bullet Points

• The assumptions
• Modelling based on constant volumes and on 2012-2013 data
• Modelling based on break even point rather than safety net profit margin.
• In order to have capacity to scale up for duty contracts firms will surrender 50% of their own clients because duty work offers commercial certainty
• Firms can scale up because they have 15% latent capacity i.e. could take on 15% more work through reorganising existing structures
• The reorganisation would include “reallocation of some staff (likely to be fairly junior) from other areas of the firm to work on criminal legal aid work”
• Consolidation unlikely to occur in the manner required by the MOJ model
• Firms are cash poor calling into question the ability to invest in the way required
• Threat to long term sustainability of firms because of low profit margins in the model
• In 30 of the 53 procurement areas outside London and in all the London areas  KPMG was unable to find any size of contract that would be economically viable

Round peg square hole. Small children capable of learning from experience, or from watching and copying those who have mastered feats of logic married with application; abandon attempts to forcibly impose their will on structures that are not amenable to brute force. The MOJ appears incapable of this kind of considered thought, intent on ignoring calamitous economic base lines, experiential knowledge and expert forecasts. This is the work of crazed wreckers, an Alice in Blunderland approach which would be alarming enough if it was merely the imposition of another doomed central IT project or privatised support service.

 

Please Respond!

We must shock the Ministry into sanity by our responses to this Consultation otherwise we all witness the MOJ’s headlong run down the rabbit hole taking our criminal defence system with it.

“In another moment down went Alice after it, never once considering how in the world she was to get out again.”

You have until 15th October. Please Respond. 


The links: the LCCSA and CLSA HUB (please respond through this).  This has all you need: the consultation paper and the three reports.  It also guides you through your response, and will email it to MOJ once your happy with the content.

Wednesday 8th October:

LCCSA London Event re: Responding to the Consultation


Greg Powell from Powell Spencer explains the Consultation


Book here.

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.

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 19^th 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. 

 

 

 

 

 

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 café 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.