The Post Office Scandal: What next?

 

 

1. It has taken an ITV drama to prompt the government into taking immediate action to put right (insofar as that is even possible) the terrible injustices and loss caused to the sub-postmasters.

 

2. None of the material that was disclosed in the ITV drama was news to anyone.  It had been widely reported  in a number of newspapers and of course there is both the damning civil judgment in 2019 and the damning Court of Appeal judgment in 2021.   But now after the ITV drama the Government have suddenly deemed this urgent enough to take steps to expedite the appeal process.

 

3. In short, they are passing legislation so that all postmasters convicted following post office prosecutions in these matters will have their convictions removed and then be entitled to compensation.

 

4. On a pragmatic basis, I welcome the step and it seems the quickest way to end the nightmare. The sub postmasters are the biggest priority and anything that can be done to expedite the end of this should be done.

 

5. That said, I have a number of concerns.  This is another example of the Government effectively intervening and potentially undermining the independence of the courts.  Many people were up in arms when following the Supreme Court judgment on Rwanda the Government simply passed a law saying that Rwanda was safe.  In other words, the Government did not respect the court’s decision and so they just passed a new law to get round it.  This threatens and undermines the independent and integrity of the court and clouds the division between the State and the Court and the respect by the State for the court system.

 

6. In this situation, which  the Government are fairly describing as exceptional,  they are simply removing the court from the process and just passing a law that removes these convictions.

 

7. There is a risk that this step takes a very dangerous precedent and we have now seen two examples of the Government passing legislation effectively to get round the decision of the court or to overcome the court’s slowness and lack of resources to expeditiously process a large number of appeals.

 

8. One of the problems is that many of the postmasters wrongly convicted are uncomfortable about coming forward and have little trust in the court system or those prosecuting these cases.  For many of them, they simply want to forget all about it and not re-open these wounds.

 

9. What does this say about our Criminal Justice System?   Is there any way the Court of Appeal could have expedited the process of dealing with these matters.   I would suggest  that it would be difficult but not impossible.   Part of the problem is the lack of resources in our Criminal Justice System through lack of investment by the current Government.

 

10. However, perhaps one Court of Appeal judge could have been  appointed to case manage all of the appeals and expediting them in large groups for the Court of Appeal.   Ideally and possibly many of the appeals will simply have been non-uncontested in any event.  The sub-postmaster would then have his/her day in court where the court would hear about their personal circumstances and be able to publicly announce that their appeal had been allowed.

 

11. The post office could have been removed from the entire process and a special team of prosecutors could be appointed to expedite these appeals.   Firms of solicitors who have been dealing with these matters could reach out to the sub-postmasters and try to make the process as user friendly as possible.   Many will say that this will be far more time consuming and expensive than the current proposal and they are right. 

 

12. However bearing in mind what is at stake and the message it sends perhaps the government should have taken this course. It would give those who are wrongly convicted confidence in the appeal process. It would also demonstrate that the government are truly invested in the rule of law, and an independent and robust court system.  I appreciate some will say that as a solicitor who has acted for some sub postmasters on a legal aid basis that I have a vested interest. However whilst I raise these concerns, in this unique case I do  support the legislative alternative because it is probably best for the postmasters but I do not think it is ideal.

 

13. I am also concerned about the requirement that  sub-postmasters must now sign a statutory declaration confirming that they are innocent and if it emerges that they have lied, then they will be open to further prosecution.   

 

14. The way our Criminal Justice System works is that those prosecuting bring the case and  have to prove guilt beyond a reasonable doubt.  Private prosecutors have to comply with certain strict guidelines in relation to integrity, honesty and candour. If it is clear that the  evidence or any part of it is tainted then the integrity of the prosecution is flawed.  Courts expect that prosecutors are being fair and honest when bringing prosecutions.    The post office can no longer assert that they tick those boxes  and therefore I respectfully submit that any prosecution that they bring or have brought is flawed and therefore bearing in mind the onus is on them, the requirement for sub-postmasters to sign such a declaration is both unnecessary and inappropriate.  I am sure many will disagree.

 

15. However, furthermore what if, for example, a postmaster is partly guilty of an offence of dishonesty, the value is hugely exaggerated by the  malfunctioning Horizon system.

 

16. Will sub-postmasters have available legal advice in relation to whether they should sign such a declaration.  Will they be expected to fund it?  Will there be  public funding available?

 

17. What lessons can be learned from this?  The rules on private prosecutions must be reviewed.  The presumptions about the reliability of computer evidence and other forensic evidence also needs to be reviewed.

 

18. Are the courts accessible enough for the individual?  This Government has underfunded the Criminal Justice System, many good committed people have  abandoned being involved in criminal justice.  If such further miscarriages are to be prevented, a robust and properly invested Criminal Justice System is an absolute necessity.

Bye bye to the Criminal Procedure Rule Committee

So today I say goodbye to the Criminal Procedure Rule Committee after 8 years as one of 2 solicitor representatives.

There are some (even in my office) who are not always that complimentary about the Committee and the effect it has had on the Criminal Justice System.

Let me give you an example.

A couple of years ago, one of my partners marched into my office, waving a form around, exclaiming “this is your fault”! He had been asked by the clerk in the Magistrates’ Court to explain at a first appearance, where the defendant appeared charged with murder having been extradited (without interview), to explain what the relevant issues were…

That said, my experience has been positive, and an education. The Committee is made up of nearly all of the major stakeholders in the Criminal Justice System: the judiciary from all courts that deal with criminal matters, the police, the Crown, court clerks, defence and many more.

The Committee is charged with making the rules that govern criminal procedure and implementing new legislation, even when the members unanimously oppose it. A very relevant and current example is the ongoing debacle concerning the procedures brought in following changes to bail time limits. All of the stakeholders sitting around the table were against these proposals, stating that such changes would not cure the ills complained of (i.e. suspects left on bail for long periods), but would in fact make the situation much worse. This has turned out to be entirely correct.

Over the years the committee has tussled with some of the major challenges in our system, largely brought about through decreasing resources. For example, problems with disclosure have featured on many occasions, and the committee has considered sympathetically concerns raised by the defence and practitioner groups. Indeed subgroups have been set up to focus specifically on these challenges. Other current hot topics include intermediaries and delegated powers of court officers.

I have sat on a number of committees in a representative capacity over the years and at times the experience has been frustrating. It has been difficult to convey the coalface experience of practitioners and the reality of what goes on in court. This has not been the case with the CPR Committee. It is made up of people who have themselves significant experience of the system (and its failings), but who are also willing to take on board the practical experiences of other stakeholders around the table. In short, they are willing to listen and, where possible, to act. This extends to other organisations and individuals who raise relevant issues with the Committee.

Whilst there is often vigorous and amicable debate, a fair hearing is always guaranteed. Which is a good thing, because with the make-up of the committee you are effectively appearing before a magistrate, Crown Court judge and a fully constituted court of appeal all at the same time, so there is nowhere to go for an appeal.

Sometimes it does feel like we are simply rearranging the deck chairs on the titanic. And I do occasionally wonder whether a Criminal Justice system running properly and in accordance with the Criminal Procedure Rules and Practise Direction is a parallel universe. However, despite all of its challenges, there exists within the CPR Committee a common motive to preserve a fair system, and it gives practitioners an invaluable opportunity to influence changes and convey the reality of “Criminal Justice in action”.

 

 

Confessions of a Van driver

Last week I went to the supermarket where I was served by a nervous teenager. He was probably working part time whilst studying. I could not help but cast my mind back to my own chequered part time employment history while I was a schoolboy and student. Given the sometimes precarious nature of legal aid work it seems appropriate to look at what other skills I might have

My first job in WH Smith aged 15 ended in dismissal after 3 weeks. I am not entirely sure what I did wrong. It was unfortunate that when I was on the till the police were called because of the queue all the way round the store and half way down Edgware High Street.

Once I recovered from the post-traumatic stress of being rejected by a major retailer and the long term career implications of such a dismissal I got a job in Martin the Newsagent in Mill Hill. I was very happy here and worked there for over a year and half. In fact one my greatest achievements as a salesman took place in that period when a man came in and asked if we had a magazine called “Ero”. I replied “no, but we had a chocolate bar called Aero”. He said “ok, I’ll have that!”

This job came to an end when I was studying for my A levels but my next gainful part time employment was on the food section in Marks and Spencer’s in Brent Cross. This was a never to be forgotten experience.  When the store opened at 10.00am it was like starters orders in a horse race. The doors would swing open; shoppers who had waited patiently armed with their trolleys invaded the store heading straight for the food displays.

My last day in this job was marred by an unfortunate experience which in fact was not linked to me leaving. I was on the till, there was a queue (of course) and a man with his trolley appeared before me. He said “it’s such a pain doing the food shop, but I have lost my wife”. He said it quickly and without emotion and I formed the view that his wife had abandoned him in Brent Cross to do the food shop whilst she shopped somewhere more interesting.

I responded as helpfully as possible “there’s a place you can go upstairs where they will make an announcement and arrange a meeting”

He replied immediately “No she died”. There was stunned silence as all the customers behind him in the queue looked on disapprovingly. I arranged immediately to be relieved on the till. Fortunately there was no need for security.  As I said above this was my last day.

When I was a student I got a part time job as a van driver delivering and collecting people’s ironing. In my adolescent teens I cannot deny having seen the series of terrible films “ confessions of a window cleaner/ plumber etc” and I wondered optimistically as a student looking for some adventures whether I would be writing my own sequel.

That was not to be. I did suffer death by a hundred hangers when having to do an emergency stop in the van all of the garments were thrown forward with the hangers lodging in my neck. However my worst experience was when I went to a block of flats with 2 entrances each one in a different street. I could not park so I abandoned the van in the road as I rushed in to deliver the ironing. The customer gave me some more clothes for ironing and I rushed back to the van but unfortunately went out a different entrance. Not realising what I had done I thought with horror I had lost the van, everything in it and my job. I could hear a great deal of hooting though where I had caused a traffic jam and eventually found the van and many other angry drivers stuck behind the van.

There were other jobs with other mishaps and as I read this back now I realise it is lucky I have had my present job for 26 years as I may in fact be otherwise unemployable.

On a slightly serious note I guess it was these jobs and first experiences in work that gave me some valuable life experiences. I try to avoid Brent Cross.

A modern day Purim Miracle

 

As court duty solicitor, I am required to represent any defendant appearing at court without his/her own legal representation. On one occasion, I arrived at court, to be greeted by the court usher, who directed me towards a rather agitated orthodox Jewish man, who required my assistance.

 

“Good Morning” I said to him, introducing myself. 

“I have been charged with drink driving!" he shouted, his voice full of panic. "But you have to understand. It wasn't my fault. It was a religious festival. I HAD to drink!!"

I paused for a moment. Most of my clients claim that it wasn't their fault. Very few blame God.

"This religious festival." I asked. "Was it Purim, by any chance?"

The man, who until this moment had been pacing back and forth, stopped still. He looked straight at me. 

“Boruch Hashem! The Almighty has sent me a Jew to save me!" 

“Not quite." I said. "I've been sent by the Legal Aid Board".

 

At this point, I began to wonder whether volunteering the information that I was Jewish, and aware of the traditions of Purim, might have been premature. The client, let's call him Mr Mordechai, was insistent that the  police had not given him his own sample of blood to test, which he was entitled to, as he was only just over the limit. So I advised him to plead 'not guilty', and Mr Mordechai began to visit me at my office to prepare for his trial.

 

And so began a lawyer-client relationship, and a court case, that I have never forgotten, although it happened over 20 years ago now.  During his client consultations, it became clear that Mr Mordechai was much more interested in the particulars of my personal life than on the specifics of his own case.

 

On many occasions, while I was trying to investigate the details of his arrest, he would launch into investigative enquiries of his own. 

"So Mr Harris. You have children, yes?"

"No" I said. 

"But you live with your wife, yes?”

“No” I said

“Aah” he responded, “You live with your parents.”

“No” I said. "I live on my own."

“Alone!" he said, with tangible concern, “Alone is not good. Listen. When this is over, I will find you a wife!"

 

On a separate occasion, he asked me for my Hebrew name and he seemed genuinely delighted to discover that I am a Cohen. This did lead to some confusion, however, when he rang the office; I once arrived to hear the receptionist, a stalwart of London's East End, telling a caller "No. You must have the wrong number. There is nobody called Shmuel HaCohen working here". 

 

Occasionally, he would attempt to steer the conversation into Hebrew, even though mine was quite limited. I attended a six-month Ulpan in Israel after I finished University, so I am able to order a falafel or buy a bus ticket.  Unfortunately, there had not been a lesson on saying "There are in excess of 80 milligrammes of alcohol in 100 millilitres of your blood." 

 

As a result of these distractions, as the trial approached, I became concerned that Mr Mordechai was not taking the process as seriously as he should. He seemed to be mistakenly of the view that being represented by a Cohen with patchy Hebrew would be sufficient.

 

At our final meeting before the trial I gave him a series of very strict instructions. 

"Mr Mordechai” I said. “It’s very important that you listen to these instructions. Do not call me Shmuel in the trial process. Do not speak in Hebrew when giving your evidence. And, most importantly. Do not drive to court. If you are convicted, you will be banned from driving immediately. So please, do not drive to the court.”

 

The trial was listed at Thames Magistrates Court at 2pm. I had advised him to be there at 1pm.

At 1, he was not there.

1:05 - no sign.

1:15 – still no sign

Finally, at 1:25 he arrived.

“Where have you been??” I asked

“It was hard to park” he responded

 

There seemed little point focussing on his ignoring my advice about driving and indeed his complete lack of acknowledgement that he might be convicted. I needed to concentrate on the matter at hand, and began to run through his evidence again with him before the trial started.

 

As I was talking, Mr Mordechai interrupted and said, “I think it would help if you gave me the Cohen blessing before the trial.”

“Don’t be ridiculous” I replied.

“I want you to do it. You’re my lawyer. I’m the client. That’s what I want.”

“I don’t even know it” I stated.

In shul, the priestly blessing always makes me feel rather awkward. I wondered what the court clerk would say if I took off my shoes in the court lobby and started chanting ancient incantations. But Mr Mordechai had no such concerns.

“No problem” he said, grabbing my hand, “I will tell you what to say and you can just repeat it”.

And so there I was, outside Courtroom 2 at Thames Magistrates Court. Whilst colleagues and friends were taking last minute instructions, giving advice and checking that witnesses had arrived, I was asking God to ensure that his heavenly face shone with light over my client’s face.

 

The trial began. The two officers who had stopped him in his car and escorted him to the police station both gave evidence. Although present when the custody officer had processed the drink drive test in the custody suite, these officers (rather conveniently for Mr Mordechai) could not remember whether or not the suspect had been offered his own sample of blood to test.

 

This meant that the custody officer, who also gave evidence, became a key witness. If we could establish that he also could not remember whether the client had been offered blood, we might have a chance. I was fairly confident. It was a busy police station. There were suspects being brought in and out all the time. It was usually a scene of chaos. How could he possibly remember a single arrest for drink driving?

 

“But Mr Harris” he said, when being cross examined, “I had been off work for 6 months. This was my first day back. It was my first job. I remember it clearly. I offered him his own sample and he declined. Also, he was dressed as a pirate.”

 

Things were not going well. But then, the custody officer, seemingly in an effort to promote his efficiency, produced the exhibit label which would have been attached to the blood sent to the laboratory. But the label did not have Mr Mordechai’s name on it. Just a number.

 

It was incredible. Some might call it a miracle. Suddenly, the prosecutor was in a panic. Unless he could demonstrate that the number on the label related to my client, he could not prove it was his blood and, therefore, could not prove the case. The prosecutor, in a desperate attempt to save his case, asked to recall the two officers who had already given evidence, in the hope that they could confirm that the number on the label did indeed relate to Mr Mordechai. I, of course, objected, on the grounds that their evidence would be tainted by the discussion they had just heard in the court. There was a rustling of papers and whispered panicky conversations between the prosecutors and his team as they frantically sought to save the case. And all the while, Mr Mordechai sat in the dock, oblivious to what was going on, gesticulating to me and asking when he could have his say.

 

Finally, the judge turned to me and said, “Do you agree that the prosecution have not put forward any evidence that the number on the label relates to your client.”

“I do” I said.

 

The judge continued, “And do you submit, Mr Harris, that I have not heard evidence that the blood exhibited was definitely your client’s”

I needed no encouragement to agree.

“Do you therefore submit, Mr Harris, that there is no case against your client?”

I agreed and the judge dismissed all charges.

 

Stunned, I turned to Mr Mordechai, who was still sitting in the dock, without any clue as to what had gone on. I went up to him and said “It’s over. Case is dismissed. Let’s leave”

“I have not had my say” he responded with indignation. “I want to have my say!”

“Forget that. Believe me. It’s not going to get any better.” 

 

As we left the building, Mr Mordechai gave me his advice and I gave him mine.

He said, “In view of what just happened, I presume you will now become more religious”.

I replied, “In view of what just happened, I presume that next Purim you won’t drink and drive”.

 

He thanked me for my hard work and then, as he turned to leave the court, smiled and said “On Simchas!”

 

We have not met at any simchas since.

 

HAPPY PURIM. DON’T DRINK AND DRIVE.

 

THE TUESDAY TRUTH – 1st March 2016

 By Greg Powell

Après La Débacle

La Débacle, a novel by Emile Zola published in 1892 deals with the humiliation of the French Army by Prussia 20 years earlier.  Fast-forward almost 150 years to another process that merits that description, the LAA/MOJ Débacle known as Two Tier Contracting which always appeared a project too far and too complex for the administrative resources of the LAA and so it proved. 

The costs of course, in cash expended, time and emotional and financial uncertainty are inevitably again borne by and within Solicitors firms.  In the highly lopsided world of contracting the LAA has imposed a series of disasters upon our profession, staggering from one PCT to the next BVT to the next tendering apparently without any “lessons learned” period of quiet reflection. 

All of which obscures the much greater and compelling truth which is the pauperisation of rates of pay which coupled with aggressive managerialism and the delays of means tested applications leads to defendants and their lawyer’s everyday facing pernicious choices.  Plead or not, lose credit or not, act and advise without certainty of a Representation Order or the evidence – “your client knows what he did”, Judges turn blind eyes to the practical realities of Solicitors and Counsel litigating cases. 

So, in January 2017 we are to have a new version of the contract. The fiasco of 2 Tier provides the context therefore for a number of questions:

How are 24 hour police station duty slots to be allocated?

Is there substance to the endless anecdotes that scheme lists are littered with “ghosts” (the retired, the dead, the abroad, the conveyancer, the “he never actually goes to the court” etc.)

Is London different, (as the LCCSA have contended for the last 20 years) and is there an issue concerning the number of schemes for which any solicitor is eligible? 

Should allocation in London be based on boroughs or criminal justice areas?

How are change, closures of courts and police stations, to be accommodated within the arrangements?

What of the contractual position of freelancers?

What should be the criteria that qualifies a person to be a Duty, maintain that membership and which is verifiable by a newly proactive LAA?

What of “touting”, payment for cases and other malpractices?

My own view is that simplicity has huge advantages to sides, solicitors and the LAA.  That a period of calm and certainty would be welcome.  That the real debate should be about rates of pay. 

Two basic models feature in proposals, the events based and hours based.  It is possible to invent hybrid versions but immediately complexity and that incurable tendency of bureaucrats to tweak and twiddle comes to the fore.

Events Based
The present system is events based.  A minimum number of magistrates’ courts and police stations attendances per year.  It seems it is the intention of the LAA to actually “police” a future contract with the beneficial side effect of dealing with the ghost problem.  Being a Duty Solicitor means possessing a skill set.  People in court and police stations benefit from experienced and skilful people representing them and it would be a hope that the arrangements would encourage Duty Solicitors of experience to actually do police stations and court duties. 
On that basis, and having a very watchful eye on the necessity for a simple and verifiable scheme that has the least administrative and cost burden, I favour a basic minimum requirement that has come to be known as 4x4. 
4x4
A basic requirement that a Duty Solicitor actually does four court duties per year and four 24 hour slots (evidenced by records of attendance, cases dealt with, all objectively verifiable by reference to the court and custody records).
This might be a part of a larger set of police station and court attendances e.g. 12x12 but the merit is in the DOING directly related to rota membership.
Hours
Hours based schemes are more complex.  So many hours per week doing criminal litigation with alternative of per month and a minimum per year (e.g. 17.5 hours per week or 350 per year) are not usually related directly to duty work. 
There are also issues for freelancers which revolve around the hours to be completed for the firm to which they are primarily attached (who receive the duty slots).
These schemes are advanced in conjunction with the other very contentious issue called “Breaking the link”.

Allocation
Pursuing the theme of simplicity (avoiding litigation) and minimal administrative burden I favour a continuation of allocation of duty slots in the names of Duty Solicitors.  It is simple, appropriate and transparent.  Coupled to the event based 4x4/ plus (as above) it is a well understood workable system. 

Others – Break the Link
Another view currently advanced is a new form of allocation based on a firm’s historical volume with some tweaking or adjunct to try and ensure that a firm with ghosts is not over rewarded. 
This is, for those who are especially keen on 2 tier, another method of achieving allocation without any link to named Duty Solicitors.  However we have been here before in an MOJ consultation some years ago.    I am certain any attempt to use history as a basis has all the potential for complaint, litigation, delay and then abandonment that 2 tier had.   “My allocation is based on the wrong statistics, that police station closed, this is unfair to new entrants and so on”.
So let’s keep to the non-litigated familiar allocation that works, keep the link, be events based, be transparent and create workable minimum compliance criteria which lead to transparent easy verification.

Let’s not forget the much more compelling issues, low rates, nothing for travel and waiting, nothing for Sendings and S.51, and nothing for the factors that make litigation so difficult, clients who are vulnerable, have mental health issues and are in custody. And whatever happened to London Weighting?
I would need another Tuesday Truth for London as a uniquely complex challenging space. 
Above all let’s try to avoid another Débacle. 

There is a LCCSA meeting on 7^th March 2015 at 5.30pm at the Law Society to discuss these issues.  All LCCSA members welcome. Please notify the administrator in advance so as to reserve a place.                                       .

 

The Tuesday Truth

(the author of this week's Tuesday Truth wished to remain annonymous)

Dear Leaders of The Bar

I write this letter out of complete and utter despair.  I write this in the hope of stopping the absurd two pronged attack that criminal solicitors (and to some extent the Junior Bar) are faced with from the MoJ and the stance that you have adopted in recent times.

I am a Solicitor and have been for over thirteen years. I am proud of what I do.  I have an All Courts Higher Rights qualification which I obtained through the examination route. I am a Duty Solicitor and I am police station accredited.  I am no less qualified than any member of the Bar.  I am not second best to anyone and neither are any of my Solicitor colleagues. I should never have to say this or set it out in an open letter. I have complete respect for my Barrister colleagues whether Junior or Queens Counsel. I would like to think that they have the same respect for me. Why is it then that Solicitors are continually made out to be a 'poor relation', either by the government or through the recent consultation paper that you helped to draft.

Personally I choose not to use my Rights of Audience at the Crown Court but that is very much a personal choice.  I have specialised in criminal law for my entire career and I have had many clients ask me to conduct their case in the Crown Court.  I have always refused.  I instruct Counsel on 100% of my cases. I choose the appropriate Barrister for the case.  I have never, ever been instructed by a client who has asked for a particular barrister. The simple fact is that the client instructs me because of my reputation and in turn they trust me to pick the barrister.  To try and suggest that I might pick someone who isn't suitably qualified to deal with my client's case is absurd. I want that client to come back to me or if not to recommend me to everyone that they know. I want to ensure that, together with my chosen Counsel, we get the best result for that client.  This is how our business operates; we get results, we get a good reputation and so we get more work. It is a simple concept but it is one that you choose to ignore. 

For the last two years the Solicitors profession have been through the most torrid time and it doesn't get much worse than the last week. At the moment there isn't a criminal legal aid solicitor who isn't beside themselves with worry about the future.  Whether they are a firm owner or an employee, whether they are part of a firm who have bid or not they are all united by an uncertain future.  The very last thing that the profession needed was announcements at the eleventh hour about a consultation designed purely to rid the Courts of Solicitor Advocates. A completely unnecessary diversion at this point in time but one that you have persuaded The Lord Chancellor is of paramount importance.

The irony of your failure to focus on what is really important is that you have completely ignored the consequences that two tier will have upon the Bar.  You see if two tier is introduced larger firms who don't need an own client following will be given a guaranteed volume of work.  Once those firms get the guaranteed volume then results matter less. In fact they don't need the client to return to them because they have a guaranteed replenishment of clients. This means it will matter less who they instruct at the Crown Court and due to the further cuts the solicitors profession are about to incur, in some cases they will be forced by financial constraints to keep more and more work in-house.  

Your failure to deal with two tier means that you are complicit in the downfall of the Junior Bar via two tier. Please don't get me wrong I understand that you think that by commissioning self-serving reports about Crown Court advocacy and assisting with consultations you will somehow preserve the Bar but the reality is you won't. Your best chance of supporting and preserving the Bar is through working with the Solicitors profession instead of consistently doing them a disservice.

The fact is we are two halves of the same profession. One should not have to exist without the other. One should not want to exist without the other.  I read an interview with a QC recently who boasted of his close friendship with The Lord Chancellor and was suggestive of the fact that one of the main problems within the system is Solicitors with Higher Rights.  With the greatest of respect this is nonsense. The Bar might well find Solicitor Advocates undesirable because of the additional competition but equally Solicitors find Direct Access Barristers undesirable. The blurring of our roles is what causes fragmentation amongst the profession, however it is sadly a case of cause and effect and rather than addressing the cause you seem to ignore that in favour of focussing upon the effect. The cause that you should be focussed upon is cuts and latterly two tier.  The fact is that criminal legal aid solicitors have sustained nothing but cuts for the last twenty years and they just cannot take any more. The employment of Solicitor Advocates might well pose a threat to the Junior Bar but the greater threat is what forces the employment of them.  It is for this very reason that the timing of the consultation is interesting. You see the scheme that you propose quite simply cannot work with Two Tier. Some of the firms who have bid for two tier have done so knowing the scandalously low rates they will receive for police station and Magistrates Court work, never mind the LGFS post January 2016. They have calculated that they can undertake the work because in order to survive they will keep Crown Court advocacy in-house. This might well be something that neither you nor the MoJ are approve of but this is the consequence of two tier and cuts.

This leaves us with an interesting dichotomy; two tier and cuts or quality advocacy in the Crown Court.  This is by no means an acceptance of your underlying assertion that Solicitor Advocates are a poor quality substitute but simply repetition of the fact that two tier will be the demise of the Junior Bar. 

The consultation raises a number of interesting issues, not just for Solicitor Advocates;

1.    Referral Fees.  How big is the problem actually? In thirteen years I have never come across anyone paying or receiving referral fees. I don't doubt it happens but where is the evidence that the practice is increasing? If, as you say, the practice has increased because of legal aid cuts then surely you should tackle the issue of the cuts.

What actually constitutes a referral fee? Do we now put an end to Chambers parties or to Chambers sponsorships of Solicitors events?

2.    Client choice. When advising the client about their choice of advocate should Solicitors now make all clients aware that their Barrister may not always be available to cover each and every hearing whereas an employed advocate will? It has been a common and frustrating point for years.  Solicitors having to manage their client being annoyed at the last minute change of Counsel.  The availability of in-house Counsel for every hearing is undoubtedly a positive benefit for a client.  Should we now insist that every hearing is covered only by the Barrister instructed to create a level playing field? If we were to adopt this approach then it would have exactly the same effect as no returns and think of the damage that would cause to the Junior Bar.

 

The problem is that the consultation is largely self-serving and because the Solicitors profession have been deliberately excluded from it the consequences have not been properly considered. It is QASA through the back door but without the much maligned plea only advocates which let’s face it was always a great bug bear from it. Parts of the consultation are an affront to those of us who do the job properly. It is beyond offensive to try and suggest that briefing work in-house may constitute a conflict of interest. It is also unhelpful to the Junior bar, some of whom seek to put the uncertainty of self-employment behind them by seeking the security of in-house employment.

You should not misunderstand the purpose of this letter.  It is not, as you might think, a piece written in defence of Solicitor Advocates or the increased use of them. I am also not ignoring the fact that there are firms in existence who do use HCAs purely for financial gain and with little regard for whether that person is the most appropriate advocate for the client’s case. I do not condone that. I am not so naïve to think that there aren’t inexperienced HCAs put in the most awful predicament by their employers by being instructed in cases that are way beyond their capabilities.  This is something that shouldn’t be allowed to happen. The bottom line is that I accept all that but trying to restrict the use of HCAs after cuts and two tier is a bit like closing the stable door after the horse has bolted. 

It is about time that the Leadership of the Bar actually looked at the issues that affect their Junior Members and worked out the best way of dealing with them. Two tier will increase use of In-house Counsel whether you like it or not.  One wonders what will happen to the Chambers who have submitted tenders as a consequence of your suggestions of a conflict by briefing in-house? Your consultation and two tier are like trying put a square peg in a round hole.  They just don't fit together. Many of us only want to see quality HCAs appearing at the Crown Court as the poor ones or the less capable do nothing for our reputation, in the same way that Barristers paying referral fees do nothing for yours. We are, however, best placed to address these problems together.  What Solicitors and Junior Barristers do not need is a transparent attempt at restoring an ancient closed shop for Crown Court advocacy by the Senior Bar.

The fundamental point is that we all want a quality profession. We all want to be properly remunerated. We shouldn't be at each other's throats.  Solicitors are tired of fighting off attempts to see them out of business from every angle.  The Leadership of the Bar should respect this and offer support, after all we are both here to provide the same service. We don't want you to fight our battles for us, what we want is for you to understand that our battles are your battles.

Yours sincerely

A Solicitor

The Tuesday Truth

By Jon Black President of the LCCSA

Jeremy Corbyn wasn't everyone's choice of leader, but the sheer size of his victory clearly demonstrates the level of support he enjoys. Whether you voted or not, whether you welcome his election or not, one thing is for sure, he is a non-lawyer who is and always has been fully engaged in Justice Issues.

On 22nd May 2013 he spoke at the rally before the famous Friends meeting house event, he spoke at the first ever Justice Alliance rally and he was a fastidious critic of government policy as part of the all-party group on legal aid. He maintained that The Government were wrong to demonise hard working and dedicated lawyers as part of its attempt to dismantle and discredit this vital pillar of the welfare state that was created with the intention  to enable equal access to justice regardless of means.

Whatever it is you may not like about the new leader of Her Majesty's opposition, (and although politics should never be about single issues), he gives a damn about justice.

I didn't vote for him but I recognise that he has brought a renewed political energy. Hours after his election as leader he emailed the party membership inviting those he represents to provide instructions for PMQs . I have drafted a series of questions which I would invite him to pose to Mr Cameron given that we have a leader who is well briefed with justice close to his heart.

Here is what I would instruct him to ask the Right Hon David Cameron MP:

1. With scores of magistrates resigning and the judiciary ignoring the punitive court charge , which financially  penalises those who seek to clear their name , can the government afford to continue to place the courts in this legislative straight jacket ?

2 Why do the government continue to attack our legal aid system in the name of austerity without any proper review of the effects of those cuts in particular the knock on costs in other areas of the Public Sector?

3.In whose interests is it to pursue  a mechanism whereby over 1100 of the current providers of criminal legal aid will be forced to close down , causing not only financial ruin for those firms but substantially removing client choice and therefore access to justice?

4. The Lord Chancellor's publicly stated position is to move away from a two tier justice system, yet his actions exacerbate such a gulf, how do the government intend to bridge such a gap?

5. Why has the government failed to learn the lessons of the disastrous cuts to civil legal aid?

6. Why have the government chosen to ignore the warnings of its own economic experts as to the viability of a scheme that carries so much social and economic cost?

7.The government welcome the Leveson reforms, and intend to implement the same, how can they work if there are no quality firms and experienced lawyers available to implement them?

8. What provision have the government in place in the event of the market collapsing?

9. Why don't the government prioritise quality over market forces in situations whereupon an individual's Liberty and character, and therefore future prospects are at stake? Is justice that cheap?

10. How can the government justify an expensive and anti-competitive recruitment process for its own PDS when private practices will close as a result of these reforms?

11.What is the cost of firm closure and if the market is being artificially controlled, what financial and practical assistance are the government going to give those firms forced to close as a result of the reforms?