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.

LEGAL AID CAMPAIGN:THE STORY SO FAR AND HOW THE FIGHT MUST CONTINUE

 Introduction

On 5^th September 2013 the MOJ issued a second consultation on Criminal Legal Aid, effectively in conjunction with the Law Society. I have been heavily involved in the legal aid campaign on behalf of the London Criminal Courts Solicitors Association and have sat on the Law Society Criminal Practitioner groups sub committee. As well as various Law Society representatives the meetings are attended by the Criminal Law Solicitors Association, the Big Firm group, the Society of Asian Lawyers, London Criminal Courts Solicitors Association, the Criminal Bar Association and the Bar Council.

The purpose of this report is to set out the history of the campaign, discussions and negotiations as they have progressed. I am keen to be open and transparent about what has occurred. For my part I am a partner in a medium sized firm and like everyone I want my firm to survive, I have no desire to see hundreds of firms go out of business and no desire to see the independent bar decimated. I supported the Law Society version of consolidation, not because I am ideologically in favour of consolidation, but because it seemed the gentlest form of consolidation which would allow firms effected time to restructure. Additionally, the extent of restructuring needed was substantially less than in other models. It seemed a far cry from the PCT plan. I opposed the severing of the link between duty solicitors and slots.

The campaign pre close of Consultation on June 4^th 2013

On May 22^nd 2013 at Friends House, at an event hosted and arranged by the Criminal Law Solicitors Association, the audience voted not to negotiate with the MOJ until PCT had been removed and client choice retained.

The venue of Friends House was full of angry, determined lawyers, united against the MOJ proposals.

In the morning there had been a demonstration organised by the London Criminal Courts Solicitors Association opposite the House of Commons. Many attended and the demonstration captured national press interest with high profile speakers and a coffin carrying away our justice system. We all appeared to stand united against these proposals

On 4^th June 2013 the consultation concluded with a huge demo organised by Save UK justice outside the Ministry of Justice. There was considerable press interest, roads were closed and many attended to express their opposition to this assault on our Justice system.

At this point there was a huge momentum against these proposals, which were criticised by many MPs, judiciary and other agencies within criminal justice.

The MOJ were continuing to get criticism in respect of other contracts they had agreed, such as the interpreters. There were 16000 responses to the consultation; an incredible amount.  Large sections of the press gave sympathetic press coverage.

The Justice Select Committee were hearing evidence on the proposals. Grayling seemed to be in trouble, he frequently delivered clumsy interviews to assist our campaign, such as “not bright enough to choose your lawyer” (too thick to pick), ridiculous comparisons with NHS. We were even finally dispelling the myth of the fat cat lawyer.

After the consultation closed:

The Big Firm Group submitted an alternative proposal shortly after the consultation concluded. As far as I am aware, whilst other firms or individuals may have submitted alternatives when responding to the consultation, this was the first time a body /group representing the interests of any part of the defence community submitted an alternative proposal to this consultation. I have not been shown the proposal despite requests but understand that the proposal opposes PCT and removal of client choice. Its premise was that for firms to absorb cuts there had to be substantial consolidation, the extent of which should be linked to the level of cuts. I understand no figures were mentioned but one member suggested there should be a maximum number of contracts per area.

Of course it is right and proper that any group representing any interested party in these proceedings is entitled to submit an alternative proposal. The Big Firm Group (set up to protect the rights of large firms) appears committed to a substantial reduction in the number of firms or entities delivering criminal legal aid. Their paper states (as I understand it) that any reduction of prices must be linked to substantial increases in volume of work (economies of scale) but that means far less suppliers. Bearing in mind where the campaign was at that point I felt  that it was a mistake to be offering compromises or alternatives , effectively acknowledging that there would be cuts and that there was a need for consolidation.  Arguably no such campaign before in terms of legal aid had been that successful, there seemed to be unity, the MOJ road shows had been a PR disaster for them, we were winning.

The BFG were open with the Law Society and the practitioners groups that the proposal had been submitted although only a privileged few were privy to the details. The Law Society, for good  reason, was committed to maintaining unity and also felt there was urgency in submitting their own alternative so that the MOJ had more than one alternative to consider. It is probable that the Law Society would have felt it appropriate to submit an alternative regardless.

The terms of the alternative was discussed at practitioner group meetings. There was not agreement on all matters. There was detailed discussion re timing of the submission as Grayling was due to appear before the Justice Select Committee the following week. The Law Society were keen to go ahead as soon as possible and submitted their alternative proposal. Grayling used the submission and his appearance before the Justice Select Committee to announce that client choice will be retained and to praise the Law Society for their engagement and criticise the Bar for their non -engagement.

The Law Society took a battering from many solicitors and barristers. Of course at that time little mention was made of the Big Firm Group submission which was of course a relevant factor in their submission. There is no doubt that the Law Society alternative supported consolidation, but on a fairly gentle and slow basis, which was a far cry from the effects of PCT ie a maximum of 400 firms.

The Law Society had conducted a survey of its members which was poorly responded to.

We were effectively at the beginning of the summer and meetings went on throughout the summer between the Law Society and the MOJ and the Law Society and the Practitioner groups listed above. It became clear that the MOJ were interested in a 2 tier approach, ie an own client contract and a duty solicitor contract. This was opposed by all practitioner groups. It is hard in fact to recall an issue where there was such consensus over all the meetings.

The Law Society made it clear that they felt the MOJ was heading in the above direction but appreciated that it was opposed.

The last practitioners meeting on 29^th August 2013 was cancelled. It is likely at that point the Law Society were in discussions with the MOJ about the new proposal.

Then of course last week on 5^th September came the joint MOJ  and Law Society announcement about the new consolidation.

The Law Society clearly felt that the agreed proposal was the best that could be achieved and that PCT was still on the table. This was a legitimate view and many people at the Law Society have worked hard to do their best for the profession and have not deserved the criticism they have got and will continue to get.

However it seems to me that the starting point is the CLSA conference on 22^nd May when it was agreed that we would not negotiate until PCT was off the table. There were 1000 people in that room all of whom agreed with the resolutions passed.

What would have happened if all groups/Law Society etc had maintained the above line and said we want to engage on alternatives, we want to improve the criminal justice system but only when PCT and abolition of client choice are removed.

In my view Grayling had no choice but to reverse his policy on client choice. Leading members of the coalition both Tories and Lib Dems were coming out against the proposal. Politically it was becoming a non starter.

What about PCT? Having completed an about turn on client choice PCT was in trouble. However the Law Society at the very least still believed it was on the table and that he might still have gone ahead with it regardless. They felt the above deal was the best alternative that they could achieve in order to avoid tendering. They objected to the level of cuts.

Had the Law Society maintained their objection to the two tier system and refused to be party to a joint agreement in announcing and promoting this consultation what could have happened? Grayling could still have gone ahead with the two tier system. He did not need the Law Society approval.  In fact, it was my understanding from the Practitioners meeting that he planned to do that anyway regardless of Law Society endorsement.

He could have pursued PCT, but he could not afford another disaster such as the interpreters or G4s etc in a build up to an election. All he wants are cuts, he said at the very beginning, give me an alternative.

What would the members have said if the Law Society had objected to the two tier proposal and any revised proposal on PCT? Would they have preferred that the Law Society maintained their opposition even though PCT was still in theory on the table as opposed to doing the deal which appears to have been done? As the Law Society have worked with the MOJ on this proposal are they now limited in voicing proper objections through responding to the consultation other than in relation to the level of cuts and number of duty solicitor contracts?

Where would we be if everyone and I mean everyone, had stuck to the resolution voiced by Robin Murray on 22^nd May 2013? Did we have the initiative and throw it away?

Perhaps the BFG proposal is very similar to the duty solicitor contract; increased share of duty solicitor work to compensate for cuts. Would many firms survive without a duty solicitor contract and if so is client choice being limited through the back door?

One influential member of the BFG group stated that the maximum 570 duty solicitor contracts proposed in the new consultation was too many and there should be greater restrictions on firms obtaining own client contracts. In other words the MOJ have not gone far enough in terms of consolidation.  Additionally, the cuts come before the consolidation so perhaps the new consultation is a long way from satisfying the BFG.

Where now?

There is still much can be achieved by unity and open and sensible communications. Although the Law Society have said that they object to the cuts, most people are reading and seeing that the Society supports the MOJ consultation.

They need to shout from the rooftops about their opposition to the cuts and work with the practitioner organisations in preparing detailed responses on the cuts issues. There is still much to argue. Every day we read about the courts being in crisis, the CPS being in chaos, cases collapsing, and interpreters not attending court as required. This is the result of the cuts by the MOJ, the cuts which are eroding our justice system. The legal aid spend is shrinking, arguably the amount Grayling wants to save would be saved if he did nothing.  The Law Society needs to argue for greater transparency over figures and projections.

If a maximum of 570 duty solicitor contracts are awarded this will decimate firms, the Law Society state they will argue for more and they are jointly instructing economists with the MOJ to advise on this issue. This may not be enough; they need to work with the practitioner organisations in looking in more detail at what happens at the coalface and how a greater number of contracts should and must be awarded. If most firms who do not get duty solicitor contracts go out of business then client choice will go indirectly. Consortium and mergers may be a viable option but not if it leads to the removal of the high street firm serving its community. The MOJ have constantly shifted their position on figures, policies etc, perhaps the Law Society may have to announce an about turn on the extent of their support for this new consultation.

Many lawyers are disappointed understandably and with justification about the representation they have received. If many firms are wiped out then winning the PCT battle is not really a victory. There is still time but really only one last chance to get it right.

An exciting week in Criminal Justice

AN EXCITING WEEK IN CRIMINAL JUSTICE

It has been a busy week for Criminal Justice in the news!

Firstly we had the announcement by HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate that cases were being delayed because police officers were not providing the right material to the prosecution in terms of disclosure. What a surprise! After all the training and various initiatives including Nareys, Speedy Summary Justice and Stop Delaying Justice, one would have hoped that this fundamental part of the process would be in place to assist the Crown, defence and the courts. Of course this government has savaged the police budget and one suspects that part of the problem is probably resources. By the way, and please do not tell anyone, I hear there is a new initiative on the way called the J.P.G. (Just Plead Guilty scheme). You will not even have to be arrested, the police will stop you because they do not like your car and fine you there and then and impose points. Where a trial is needed a van will be provided with windows to ensure the process is transparent.

This development was followed by conclusion of the consultation on Legal Aid. Mr Grayling, who has clearly been allocated an adviser as opposed to choosing one, rolled out the fat cat lawyer figures again. Additionally he then stated that it’s either a good health system or the justice system. This seems incredible bearing in mind that the £220 million the government seek to save on legal aid would not maintain the NHS for a day. Mr Grayling is in charge of the Justice budget not Health. Did Mr Osborne ring him and say unless you can get me £220 million I will be kicking people out of hospital beds (for less than a day)? Perhaps it is just the comment of a desperate politician shocked by the strength of reaction to this ill considered and rushed consultation.

We are entitled to, and should expect, a proper health and justice system. Mr Grayling’s ill advised comment about the health service follows on the back of his comments about individuals not being able to choose their own lawyers. Prior to this we had the consultation which on occasions refers to offenders and criminals as opposed to suspects, defendants and individuals. Bye-bye presumption of innocence and welcome to the J.P.G. (Just Plead Guilty scheme)

Of course, regardless of the MOJ offensive on lawyers, it is difficult to avoid the opposition of the judiciary to these proposals. They have responded to this paper by condemning the proposals. Sir Anthony Hooper, a now retired and hugely respect Court of Appeal judge, has also spoken out publicly against these plans.

The DPP has announced that victims can now challenge the decision not to prosecute the case in which they have made allegations. Whilst I applaud the sentiment of this idea, when one considers how under resourced the CPS are how will they cope with this additional burden? Most solicitors report great difficulties in obtaining disclosure on time or even obtaining a response from the CPS. Many summary cases are delayed or disclosure is late. This is also at a time when there are far fewer cases being prosecuted, not because crime is substantially down but because less matters are reaching the courts. So the numbers of prosecutions have been significantly reduced. The CPS struggle to effectively prosecute even that reduced workload. Now further resources will now be diverted away from the front line to consider reviews from complainants as to why their case is not being prosecuted. These reviews will probably have to be considered by a senior lawyer. So at court you will have designated case workers who cannot make decisions on cases and are not lawyers, whilst the senior lawyers will be back at the office considering cases when a decision has been made not to prosecute. You could not make it up.

In The Times there is an article about protecting the interests of young complainants giving evidence, which can lead to long term distress and trauma particularly as a consequence of protracted cross examination. Obviously defendants denying offences are entitled to their advocates robustly cross examining and testing the evidence against them. However the skilled and expert advocate should be able to meet that aim and be sensitive to any vulnerabilities issues that may exist around the prosecution witness. Will there be many left if the government proposals on legal aid are introduced?

This brings me to the conclusion of this piece. The government proposals in relation to the whole of criminal justice are frightening. Selling off the courts, probation, the prisons and the defence risks a loss of independence, transparency and fairness. Perhaps it is not about money, perhaps it about reducing state accountability. They have mismanaged the budget to such an extent that one wonders if the current team are qualified enough to manage this department and budget. The average combined fee for Magistrates and Police station representation is approximately £550. The approximate cost of delivering defendants in custody to court per year is £85,213,700 If 25% of cases in the Magistrates Court involve custody cases (this may be a substantial overestimate) then the cost of bringing a defendant to court for a hearing is just under £400. If of course the number of cases is nearer 12.5% then in fact the cost per hearing is just under £800. When you consider that the police station representation can involve several attendances and the court fee can involve a number of appearances the representation costs appear very good value. The transport costs seem very expensive. How can the MOJ have reached a contract on these terms with G4s? How reckless are they with tax payer’s money? I also understand that the MOJ are urgently reviewing what could be a massive overpayment on the provision of tagging contract. Are they paying more for the tagging device than the legal representation?

An independent justice system needs a properly funded prosecution, police, probation, court service and defence. All of these bodies must be independent, they are not economic units, and they represent the vital elements of an independent justice system; a vital part of a proper democracy. Mr Grayling, crime is down, you are saving money, stop what you are doing and proper engage with those at the coalface across the board of Criminal Justice.