The Tuesday Truth

This week's Tuesday Truth is written by Rhona Friedman, Paul Harris and Ali Parker

So long, farewell, auf Wiedersehen, goodnight…? 

John Haythorn is a Partner at Woolcombe Yonge Solicitors in Plymouth. He has been a partner since 1982 and is Head of the Criminal Department. His firm have served the local community for many years and John still gets up on a Saturday morning to act as Court Duty Solicitor. He continues to cover out of hours police station work.

On Thursday 9^th April John had a visit from Gary Streeter the Conservative candidate for South West Devon who is standing for re-election to the seat he has occupied for the last 5 years.

It did not take Mr Streeter very long to realise that he could not count on the vote of John Haythorn bearing in mind the sustained attack on access to justice that his government have mounted over the last 5 years which has had a profound effect on Mr Haythorn’s firm.

Mr Streeter’s parting words were that there was going to be a Labour government and that “Hopefully they will look after you better.”

John Haythorn told Tuesday Truth “I was very surprised bearing in mind the campaign was only two weeks old, it was incredible to hear an MP of one of the two major parties conceding defeat whilst canvassing”

 Does Mr Cameron realise that at least one of his MPs expects Labour to win the next election, do others feel the same? It would be unsurprising if the Tory attack on essential services was not translating into difficult conversations for Tory candidates on the campaign trail.  

It is not just lawyers who are much more likely to vote against this government. Many doctors and teachers feel exactly the same. Retirement levels in the National Health Service are high whilst recruitment is apparently at an historic low. With an ageing and expanding population and the barmy introduction of the internal market and rip off PFI schemes the National Health Service has never been under more pressure. Suddenly as an election looms Cameron talks about investment in the Health Service too little too late and to be funded by as yet unidentified cuts elsewhere as George Osborne has ruled out an increase in taxation.

Many in the public services including legal aid lawyers are now looking to what Labour or a progressive alliance of Labour and others can offer which brings us to last week’s launch of Labour’s Crime and Justice initiative. The proposed programme is outlined in the pamphlet 'A Better Plan to Secure Safer Communities"

Labour's disappointingly short section on the justice system begins:
"Our justice system relies on a fundamental principle: confidence"
Stirring words? Not so much.  'Confidence' is not a principle at all. It is a feeling. At
that stage, some cynics and lovers of English as she is wrote may have stopped feeling confident.

However, there are some promising aspects to the programme. Former DPP Keir Starmer QC, Labour's rising star has said that Labour must review all the legal aid cuts
within one year of taking office.  What those who care about our justice system ask of Labour if the party wins power is that this review is comprehensive and that all agencies involved in delivering justice must be involved in an intensive engagement process. The review must examine the damage to our rule of law that has been wrought through the assault on access to justice which has only served to increase social inequality and has not even achieved the Tories promise of savings because costs have merely been displaced on to other parts of the courts, prisons and social welfare budgets.

Then there is the 'Victims Law' co-authored by Keir Starmer which is to include a right to review dropped prosecutions.  It is of course right that victims’ interests are properly served by our justice system, the concern for victims appears genuine but this concern  cannot be allowed to undermine fair trial rights that are at the very heart of our adversarial system.

As has been said in this blog before the best way to protect victims’ rights is not to promote them in binary opposition to the rights of the defendant. A properly funded and resourced criminal justice is the most effective way to promote the interests of those who are the victims of crime.

The proposal to brief witnesses as to the detail of the defence case which is seemingly a part of this “victim centred “approach is an affront to the interests of justice. The underlying assumption that every single witness and complainant is truthful and fair-minded is a fantasy that only political pamphlets and CPS rookies engage in.  Those politicians and lawyers who champion this idea are recklessly underplaying the vast coercive powers of the state which no defendant and no defence team can ever hope to match. That is why the system evolved to embed safeguards to ensure equality of arms. That level playing field is being dug up from under us by the twin assaults of legal aid cuts and rampant managerialism which is already skewing the fairness of proceedings and resulting in perverse decision making in which the self defeating mantra of “case progression” is now routinely trumping the proper interests of justice.

This government has carried out a sustained assault on education, National Health and Access to Justice under the false premise of austerity. But those people who have devoted their professional lives to the public services have not given up the fight and their continued efforts to take the fight to the government and to enlist the help of wider society have not gone unnoticed.

On Monday the Guardian published the results of a YouGov poll which found that 82% of the respondents believed that access to justice was a fundamental right

http://www.theguardian.com/law/2015/apr/13/justice-concern-free-healthcare-yougov-poll-legal-aid-cuts

On the same day the Guardian helped to launch Legal Aid Team! An animation celebrating legal aid and lampooning its enemies voiced by amongst others Maxine Peake, Joanna Lumley, Sally Hawkins, Simon Callow and Kevin Eldon.

.http://www.theguardian.com/law/video/2015/apr/13/superheroes-legal-aid-video

Next week on 23^rd April we have the Vote for Justice Rally.

http://www.clsa.co.uk/

We have had two and a half years of meetings, walk outs, demonstrations, lobbying, briefings and legal action. On May 7^th we get the chance to send another kind of message to the government. Many of us will be voting with issues of access to justice and the rule of law firmly in mind when the X goes in the box.   Do come along to the Vote for Justice Rally to discuss what happens after the votes are counted because whatever the composition of the government we will still be confronted with a criminal justice system which is less and less able to ensure a fair outcome and a civil justice system which since April 2013 has been engineered to deny millions of people representation and redress in court.

 

 

 

The Tuesday Truth

The author of the excellent piece below wishes to remain annonymous in order to ensure there is no possibility of the clients she refers to being identified. I am extremely grateful to the author for the frank and detailed account provided of the work that Solicitors do and the description of the truly depressing state of our Justice System.

 

A week in the life of a Criminal Solicitor

 

My week started on a Sunday, although it's hard to define where one working week ends and another starts when you are a criminal legal aid solicitor.

Sunday night was spent preparing a trial for the following day. This wasn't a case that required preparing the night before because I hadn't bothered looking at it. On the contrary I had spent the last two months trying to resolve the legal aid situation for the client who was "self-employed", which as any criminal solicitor will tell you is their worst nightmare when it comes to legal aid applications. Notwithstanding the fact that he had provided the Legal Aid Agency with everything he possibly could in view of the fact that his business hasn't yet been trading for twelve months, they hadn't managed to consider the final submission. The client was left with three choices; represent himself, pay privately or apply to vacate to continue with his quest for legal aid. The client chose to pay privately - confirming his instructions on Friday night. As any experienced defence solicitor will tell you they don't expect to have a weekend free of working and all this meant was preparing a trial over the weekend. This case involved two assaults on two complainants; a s39 assault and a s47 assault resulting in four staples to the back of the head. Two complainants, two independent witnesses and a handful of police officers. Nothing untoward aside from the fact that neither of the statements for the two independent witnesses had been served despite them having been identified as "live" witnesses. They also appeared on the schedule of unused material as having "refused to provide an account".

Fast forward to Monday morning and a 9am meeting at Court with the client followed by the taking of a statement of the defence witness who had also attended. At 9.45am I spoke to the Prosecutor to confirm that we were ready to go and that the two complainants had attended. Her reply was "yes and the independent witness". She then proceeded to tell me that one of the males identified in their live evidence list had attended court. I asked her for his statement and she told me there wasn't one. I showed her the unused and she said she had no idea why or how he had turned up at court.  She told me she was willing to press on and call him without a statement. I told her I wasn't. I told her I would need to see the endorsement in relation to his refusal to provide a statement and would need to know what had happened in the last six months resulting in his attendance today.  Needless to say the case was put to the Magistrates who agreed that it couldn't possibly be in the interests of justice to proceed with the trial today. All in all a waste of time for everyone.

I returned to the office and was quickly spotted by a colleague who had been covering a trial on my behalf that afternoon. Of course there would be no reason why I couldn't now cover that with my first trial having been adjourned.  My second trial was something that had previously been listed twice in January. The defendant, a man of good character, had been charged with the harassment of his former partner with whom he had two children. The case against him was twelve text messages sent over fifty eight days all requesting contact with his children. No threats, no name calling, nothing abusive or aggressive at all, simply requests by a father to see his own children. The complainant's evidence was that she had not responded to any of them. She had never told him to stop sending them nor had she made any arrangements for him to have contact. He had never been warned by the police.  The defendant had since returned to France where he lived. Letters had been sent to the Crown inviting them to review  the case on a number of occasions, they had never responded.  The first trial had been listed on the 27th January but the interpreter's car had broken down and another one could not be located.  The defendant had flown back into the country for a trial that now couldn't take place through no fault of his. The court adjourned the case for two days and said that they would open a court specifically for the trial.

Two days later the defendant re-appeared and the court and the prosecution couldn't accommodate the trial because of over-listing and so the matter was adjourned until today. I attended at court and spoke with the prosecutor to ask whether they had considered the case in light of my correspondence.  They had but had decided to continue and hadn't bothered to respond.  An interpreter had attended and with a District Judge in place we were ready to go.  The prosecutor then decided to ask to amend the charge to include a further date, I objected and the District Judge refused the application.  The prosecutor then applied for special measures, out of time and on the basis of a highly prejudicial application that was akin to a back-door bad character application on a man of good character. I objected and the District Judge was furious with the application, describing it as "flowery and emotive".  Notwithstanding the conduct of the Crown she allowed screens.

Eventually the trial started. The complainant gave evidence. During cross examination I asked  what efforts she had made to resolve contact issues. She told me that she had been to see the Family Court who told her that she couldn't do anything unless there had been harassment or violence.... When were you given this advice I asked her? July last year she replied. Her statement to police was dated the 21st July 2014. Was it before or after your statement to police? I can't remember. So there we had it, an allegation of harassment, which wasn't harassment all made because she couldn't resolve contact issues without him having been convicted through the criminal courts. A point accepted by the District Judge and the case resolved quickly by way of a submission, an application for costs from central funds (no legal aid and privatley paying) and a failed application by the Crown for a restraining order.

Tuesday brought me some respite from Court. I spent the day preparing for the three other trials I had listed over the next two days. I saw clients in the office and fielded numerous phone calls in other cases.

Wednesday was another day of two trials. The first, again without legal aid, involved a woman of good character (with a law degree) who had called 999 because her husband (who had broken her nose in 2009) had been aggressive and wouldn't leave her alone. The defendant managed to get away from him and shut herself in the study to wait for the police.  An officer attended and the husband opened the door.  The officer asked what had happened and the husband said that the defendant had slapped him. The officer decided to ask the defendant what happened but in the absence of any caution and on body cam. The defendant in a very animated fashion tried to explain and during her explanation accepted she slapped him.  Ignoring all other parts of her account or the fact that she made the initial call, the officer arrested the woman. The husband had refused to make a complaint but she had still been interviewed and charged.

Due to her employment the defendant was not eligible for legal aid.  The case had previously been listed for trial and she had attended unrepresented.  The court had been intent upon pressing ahead but had told her to speak to the Duty Solicitor which she wasn't entitled to as the matter was listed for trial.  I was in court and briefly considered matters on a pro bono basis. I advised her to apply to adjourn the trial to instruct a solicitor. I advised her to explain to the court that primary disclosure had only been sent to her three working days earlier.  I made the decision not to apply for her as my goodwill extended only to her as opposed to the court. She applied and was refused.  She was sent back out of court to read the papers. She told me what had happened and so I spoke to the court clerk about my concerns and about the potential for appeal and judicial review. Unsurprisingly the court clerk found that they had 'insufficient court time' and so it was adjourned to a new trial date.  As is usual with defendants she left it until two weeks before the trial to instruct me. I considered the evidence, took a statement from the client and then wrote to the Crown indicating that I believed the "admission" and the body cam footage to be inadmissible. They didn't respond. I attended Court for the trial and explained my concerns to the prosecutor who agreed and said she wouldn't rely on it. The case proceeded to trial and it took the Magistrates less than five minutes to acquit. Another application for costs from central funds and another waste of everyone's time.

Back to the office to prepare for something I had listed as a trial that afternoon. Another domestic assault with another client who was refused legal aid and couldn't pay privately. In this case a s36 direction had been made and so I would be paid for cross-examination only. This was a complicated case with two allegations, one involving a bite. I attended court to be told that the complainant and defendant had arrived together. The complainant had been the subject of a witness summons after she had made a retraction statement which had never been served. In actual fact the existence of the retraction statement only came about because I made an educated guess just as the trial started. The prosecution hadn't of course bothered to print a copy off and so I was forced to consider it on the laptop.  The prosecutor was ready to proceed with the complainant as a hostile witness. The cross examination was therefore far more complicated than normal, there were tears and a break to allow the complainant to compose herself. I was then faced with the dilemma of whether to remain and conduct the rest of the trial pro bono or leave. On this occasion I left. I returned to the office feeling frustrated that I couldn't do more but I had appointments in the office and further case preparation to do.

Thursday morning saw me at the Crown Court in my capacity as instructing solicitor to a barrister. I attended knowing that I wouldn't be paid but because I felt for my client. A single mother of good character facing imprisonment for an offence of blackmail. A stupid moment of madness actually brought on by a twisted notion of morality. She had been before the Court the previous week with her co-accused. They had come prepared for sentence having told their children that they wouldn't be coming home and with social services waiting in the wings. Unfortunately the sentence hadn't gone ahead because the probation officer was on sick leave and the report hadn't been typed. The Judge was  furious. The probation service requested a further three weeks. The Judge gave them a week. Fortunately the hearing was effective and she received a suspended sentence.

Another afternoon, another trial. This time another allegation of harassment at the end of a relationship breakdown. Both respectable people with a two year old child. A male defendant who simply hadn't coped with the thought of his partner with someone else. No violence, no threats just overly emotional, angry behaviour despite a warning from police. This defendant had contacted me practically every day since his first appearance which is typical of the behaviour of some clients who are totally consumed with worry. It is also something that the fixed fee can  never account for. This case, although prepared for trial was resolved relatively easily with a basis of plea, a fine and a very weak restraining order for twelve months that suited both parties.  The real truth is that this case didn't need to be in the criminal courts and could have been resolved by mediation.

I had much to do before leaving and notwithstanding the fact that most people were leaving the office in good spirits for the long weekend I was still trying to clear my desk. I saw a witness, prepared her statement, updated my files, sorted out a case for the following week and prepared a brief before finally escaping to go home and see my family who I had barely seen all week.

Sadly this is a fairly typical week for a criminal legal aid lawyer. A justice system at breaking point. Two defendants of good character both refused legal aid but acquitted because they should never have been charged in the first place. Delayed cases because of interpreter and probation problems. Unpaid attendances upon vulnerable clients out of a sense of caring and a part-involvement in a case that should have been legally aided. Sometimes I wonder why we bother and then I remember that we do it for the clients. The vulnerable or unlucky defendants all presumed guilty and unworthy by the public who would be treated unjustly if we weren't there to fight for them.

The Tuesday Truth

Not a good week…………………

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

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

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

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

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

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

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

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

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

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

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

 

To the tune of That's Amore

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Tuesday Truth

 

Home Alone

 

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

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

Can pay will pay

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

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

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

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

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

Digital Deadenders 

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

 

 

The Tuesday Truth

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

There’s no fun in being a canary called Cassandra 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

---

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

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

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

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

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

 

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

 

The Tuesday Truth

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

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

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

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

A back room at Carrington.

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

There was a knock on the door.

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

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

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

“There were some technical issues.” responded Grayling

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

"We can sort it” assured Grayling

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

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

“Don’t be impertinent.” said Fergie.

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

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

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

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

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

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

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

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

Applications for Legal Aid

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

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

 

 

 

 

The Tuesday Truth

CLSA/LCCSA Judicial Review- More Funds needed please

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

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

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

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

 

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

 

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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