The Tuesday Truth

Not the Global Law Summit – A Festival for Justice

Here’s a conundrum. 

Q: When is an anniversary celebration not an anniversary celebration?

A: When it’s the Global Law Summit .It’s billed as a celebration of the 800^th anniversary of the Magna Carta but any connection with the Magna Carta ends there. Indeed the Prime Minister himself introduces the Summit as “yet more evidence that Britain continues to lead the way in promoting free enterprise, economic growth, and the Rule of Law around the world”.  The only possible explanation for thinking this guff has anything to do with the Magna Carta must be drink.

The first clue for that is they got the wrong date.  The three day Summit starts on 23^rd February some four months ahead of the actual 800th anniversary. Only the most churlish would point out the real anniversary falls after the general election.

I have scoured the Magna Carta and nowhere can I find anything that strikes any chord with the Global Law Summit. Nowhere does it say in the charter that after nearly 800 years thou shalt organise the following:

• As many of the richest Queens Counsel and business people as can be found to gather together in the City of Westminster to venerate and celebrate liquidity, leverage and free enterprise.
• Chargeth £1750 per ticket for the privilege of ye olde worlde networking as truly the Summit doth provide a “valuable opportunity to meet and do business”. When thou does find that few men ( they are nearly all men ) want to forketh out such a princely sum , cut ticket price in unseemly panic and do mass ring round of legal community 
•  
• Assemble the top business monopolies including the Chairman of BAE systems who haveth such a proud record of building armoured fighting vehicles, combat aircraft and nuclear submarines to ensureth military personnel are ready for deployment, and understandeth first hand the effects of the rule of law having as recently as 2010 had to pay more than a Kings Ransom in fines for corrupt behaviour.
• If that shalt not be enough inviteth a Managing Director of Goldman Sachs and a Company Secretary of Vodafone to marketh this Great Charter
• Do not inviteth a single legal aid solicitor to speaketh as they be the scum of the earth and also they hath not even the reduced princely sum required to payeth the entrance fee.

 

In fact the real Magna Carta does not have that many remaining clauses, only three, of continued relevance including the most renowned which has a slightly different aspiration than the Summit -

“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 other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right to justice”.

 

One reason why the actual wording of the actual Magna Carta is not recorded at all in the celebration of the Magna Carta’s glossy brochure maybe that these words jar somewhat with what this government has been up to over the last five years. Access to justice has been decimated by the LASPO ‘reforms’ providing comfort to the Rackman landlord and bullying employer with legal aid all but removed for employment tribunals and halved for housing cases.

The Magna Carta was the foundational document of civil liberties and a vital defence  against the despot, King John (who had a penchant for taking his people into useless failing wars abroad). Today we have our own despot against justice, the inappropriately named Minister of Justice, who is picking on the most vulnerable in society, intent on decimating further basic rights of judicial review, and seeking the closure of 1000 criminal firms by ill thought out, rushed cuts, following ill thought out rushed privatisation of probation and court services. Everyone knows that miscarriages and injustice will become widespread. Many of us predicted the chaos that would ensue once the MOJ contracted for cut price interpreting and foresaw the nosedive in the quality of forensic  science evidence once the market was opened up to cut price experts. 

The only way to respond to the absurdity that is the Global Law Summit is to organise Not the Global Law Summit events. The Justice Alliance (formed out of the London Criminal Courts Solicitors Association) links together those who work within the justice system and those who use legal aid, charities alongside unions, grass roots campaigns and professional organisations. We are going to Runnymede on Saturday 21^st February in order to deliver the Magna Carta from there  in a relay to the summit, from whence it was signed. Silly hats are probably compulsory; the infamous King John Grayling puppet is keen to attend. We shall assemble nearby the Summit at Old Palace Yard opposite Parliament on Monday 23^rd February at 1pm. All lawyers, probation officers, civil servants, civil libertarians, protestors, and anyone who can’t afford the entrance fee to the Global Law Summit should come together in one mass non summit. From there a delegation will deliver the Magna Carta to the summit in the hope that someone actually reads it.

The Not the Global Summit Festivities will continue in the evening with a Stand up for Legal Aid, justice just got funny night at the Union Chapel (https://justiceallianceuk.wordpress.com/) , where the words free enterprise are banned, it may not be funnier than the real Summit but a ticket is less than 1% of the cost.

by Matt Foot with historical  inaccuracy guaranteed by Rhona Friedman

 

 

The Tuesday Truth

2015: A defining year for Criminal Justice

Dream a little dream

Although there is not much of January left I still feel entitled to set out some New Year’s resolutions (unrealistic dreams) for those involved in the delivery of Criminal Justice. I feel particularly strongly about this as I have already abandoned all of my own New Year’s resolutions, yes I admit it, I am eating big chocolate buttons again, putting sugar on my cereal and am back on the non fruit mid morning and mid afternoon snacks.

Constructive Engagement with the MOJ 

Obviously I hope the LCCSA, CLSA and Law Society win their judicial review against the MOJ duty solicitor contract proposal but really this wish is merely the tip of the iceberg. We need to be able to properly engage with the MOJ, in particular the civil servants who devise these proposals.  

Surely their primary purpose should be to facilitate a fair system for legal aid which preserves access to justice, and which depends on quality litigators and advocates. This engagement needs to take place without the spin and the misinformation and in the context of a longer period of review and research and engagement.

Re-engagement with the Bar

 A year ago the National Justice Committee was set up comprising the leadership of the bar, solicitors, and legal executives. It ended on a Tuesday in late March with the non bar members sitting round a table in EC1 wondering where the bar had got to. The answer was revealed two days later, they had been in meetings with the MOJ.  Six weeks before that unhappy split I spoke at the Bar Council Legal Aid event on behalf of solicitors and spoke of the importance of the independent bar and unity between the professions. At the same event Sarah Foreshaw the then leader of the South Eastern Circuit suggested that we lobby the Bar Council and the Law Society not to support the Global Law Summit in February 2015 marking  the 800^th anniversary of the signing of the Magna Carta. Well actually the 799^th and 8 month anniversary, the shindig having been brought forward seemingly for purely political reasons.

I will spare us all from a further rehearsal of all the historical details but currently the relationship between the Bar leadership and Solicitor’s leadership is tense and untrusting. A year ago the Law Society was the MOJ’s darling and the Bar was the rebellious irritant that had the nerve to oppose the MOJ and organise industrial action. The Bar condemned the Law Society in strident terms for its lack of fight and unsuccessful appeasement policy. Today it is the Bar leadership enjoying the cosy relationship with Petty France whilst Chancery Lane is instructing Dinah Rose QC to fiercely interrogate the lawfulness of the two tier proposals in court. What a difference a year makes.

So my New Year’s hope for the Bar and Solicitors is that we find a forum to resolve the issues that divide us and focus on the many more issues that unite us. The issues that divide us are being gloriously exploited by the MOJ both in public and private. My personal view is that the resolution of such issues must be in private through the establishment of a body of the relevant leaders to address the difficulties over referral fees, the issues around the independent bar and solicitor advocates. Whilst it may take difficult negotiations to resolve the problems between ourselves, this can be done.  We must address these problems head on and then devote our time to the bigger threat, the attack on access to justice.

I can hear many of you saying “Paul don’t be so naive, we had a working group  last year and look what happened” or “Do you want to give up all those Tuesday nights again for those pointless meetings, hours and hours of your life that you will never be able to recover”.

I don’t want to give up what free time I have but I believe it has to happen. As with the Law Society there will come a point when the Bar’s relationship with the MOJ hits the buffers.  There may be a new party in power and suddenly the leadership of the Bar may need solicitors to help in fighting its corner and by then it may be too late. There are probably enough people of similar mind within the leadership of the Bar and the Solicitors so let us make it happen and let us end 2015 presenting a united front to the Ministry of Justice.

Not the Global Law Summit   

Following on from the above we need to pull together to fight for legal aid as a principle not as an ever decreasing cake where we are all competing for a slice. In this regard the Justice Alliance (headed by Matt Foot, Rhona Friedman and others) is organising a number of events and demonstrations to illustrate that the Global Law Summit celebrating 800 years of Magna Carta is a cynical commercial stunt organised by the Tory party for lawyers for the rich to tout for international work whilst the true principles of Magna Carta of access to justice, state accountability and civil liberties are ruthlessly being eroded by the government in the name of austerity. Civil and criminal solicitors and barristers must pull together to fight for access to justice so that by the end of 2015 we have reversed LASPO and have reminded the government that in a proper functioning democracy its duty  is to provide proper access to justice. In this respect I understand that Tony Cross Chairman of the Criminal Bar Association has agreed to speak at the Global Law Summit (Tory marketing party). Paying lip service to the rule of law at these types of events is not good enough, if you cannot say it as it is then in my view do not go as  presence potentially gives credibility to this sham of a celebration.

Probation

The Probation Service has been savaged by this government, part sold off, split in two; many valuable members of staff dispensed with, their work unnoticed or undervalued. The Ministry will say these reforms save money and improve efficiency. But greater inefficiencies are created, risk management is undermined and any cost saving in probation is ultimately a false economy creating extra costs elsewhere. I hope by the end of 2015 there will be a greater appreciation of the work done by probation service and steps will have been taken to reverse the reforms undertaken by the MOJ.

Prisons

The number of inmates is growing whilst prison staffing levels are reduced to the point when officer morale is at rock bottom, they spend their days fire fighting the results of cuts and overcrowding and allowing inmates a regular shower let alone useful rehabilitative work is beyond them.   If the government is allowed to continue to sell off the prison system we will end up with a US style system in which the companies who own prisons are incentivised by how many prisoners they can lock up and there is no motivation to rehabilitate as they need the repeat custom to appease the shareholders.  Savings from the prison budget are a true false economy not just financially but in the price society pays for a system where for the majority incarcerated there is little prospect for rehabilitation. So yes Mr Grayling there is a prison crisis and the Lord Chancellor’s resolution should be greater investment and understanding of the role the prison might play for the 21^st century prisoner in terms of rehabilitation

Police: 

Many of the liberals and lefties who read this blog might raise an eyebrow at me mentioning the police who have also been savaged by cuts and unwelcome reforms. However if they do not have the resources to do their job properly there is a knock on effect on everyone else in the system. Theresa May is suggesting a new law where a suspect cannot be bailed for more than 28 days without a decision being made re charge. I support this idea but believe that some of the delays in investigation are caused by lack of resources caused by Ms May’s own government, so I think the police should have the appropriate resources to do  their day to day job.

I could say much the same regarding  the court service and the CPS but some of you may  have had enough so I will finish as I started on a personal note, this time next year hopefully Spurs will have just qualified from the group stages of the Champions League for the knock out phase.............now that is dreaming.

 

The Tuesday Truth

This week's Tuesday Truth is written by Hester Russell of Harthills Solicitors and committee member of the Criminal Law Solicitors Association

 

 

Why can't we live together?

 

Dear Chris
Well, here we are again.  Court (again) on Thursday.  I don't think that anyone can believe that it's actually come to this. We have a very expensive legal system (you say); you want to make things easier (you tell me).  You know what Chris, change the bloody record!  Do you think I'm stupid?  I've seen those figures you've been pretending you haven't seen, I know that you are not being entirely upfront about all of this.

Do you remember how things used to be? I was so carefree in those wonderful, heady days. Remember?  Remember how it was before Chris, in those days when a fixed fee was almost enough to justify those years of student debt and those sorrowful searches for a training contract; when victims of domestic abuse could access help safely without "evidence" that they were victims, when prisoners could read books sent in by caring family and when interpreters always came to court when required and interpreted!  Where did it all go wrong Chris?  You must, surely, ask yourself the same question.

You wouldn't see sense Chris, don't say that I haven't tried.  I asked for mediation, remember?  You say you like mediation; it's cheaper, it's less stressful, keeps the bloody lawyers from interfering!  Yet I tried, I asked for mediation and you just bloody ignored me.  Like I wasn't even there and like I didn't mean a thing to you.  I sent you letters, e-mails!  We should have a very close relationship Chris; we should be working on this together, maybe even as a team.  Of course you've largely ignored me, or got your "mates" to send me emails telling me you don't want to speak to me.  Worse, you send your mate to court and in her statement she says that nothing I say would make any difference anyway!!  What is wrong with you?  We are in this together Chris and vulnerable people depend on us both.  I just want you to understand how much damage you're doing.

Think of the children Chris, that really is the very least that you can do.  When they keep asking why they can't see they can't see their daddy Chris, when their daddy can't get a solicitor because he's held down a modest job... well that's not my doing.  I'm not sure that these children will ever recover from this ordeal Chris and I think you should be ashamed of yourself.

Seriously, what is going on?  I can't find a solicitor within a thirty mile radius who deals with housing work, I'm struggling.  Thank you for funding the local students at the advice centre by the way - they were lovely.  They weren't qualified and they told me so but we really did have a nice chat.  I hope that nice young woman will become a solicitor one day; she said she always wanted to be you know, but she says there just isn't the work these days.  What a loss.  Says she's most likely going to try and get waitressing work when she graduates unless she can find work in a commercial firm.

Look Chris, what I'm trying to say is that I'm tired of all this.  I'm tired of fighting when I could be doing better things, I'm tired of spending time and money that I don't have taking you to court.  I hope and I pray that that the Judge will see through you again next week Chris but look - whether he does or he doesn't - can you just stop.  Will you please listen, will you please engage.  Believe it or not I want out of this awful relationship just as much as you do; but for the sake of us all, for the sake of the future please, please listen.

Love
The Solicitors United xx

 

The Tuesday Truth

This week's Tuesday Truth, the first of 2015 is written by Jon Black, President of the London Criminal Courts Solicitors Association

Cutting a Deal

This week I have been asked to "hold the conch" following on from previous esteemed
authors. The beauty of the Tuesday Truths is we can tell it as it is and deal with those
"elephants in the room".
Please do not read this piece as a declaration of war upon the bar. That is not the intention, like most of us I see the survival of an independent bar as being as crucial to our justice system as is the survival of sufficient firms to provide access to justice and client choice. Just as we would hate to see individual barristers on the poverty line we do not want to see firm closures and mass redundancies for our colleagues in solicitors firms. The two tiers and indeed the second cut due in July 2015 will achieve precisely that which is why both must be opposed.

In the High Court on 23^rd December 2014 the thrust of the MOJ's opposition to our application for interim relief was that it was vital to adhere to the tight timetable as dual contracts and forced consolidation are enabling devices for firms to absorb the second cut which must be implemented in July. Counsel stated that without consolidation firms who suffer the second cut will otherwise be complaining that they cannot survive. This was the first that we had heard that the second cut was a certainty. At the time of the much maligned deal in March that the bar made with the MOJ, we were told that not only was the AGFS cut to be delayed until summer 2015, but that the second cut for litigators and lower work was to be considered subject to the findings of the Jeffrey and Leveson reviews.  

By the time the Consultation response was published on 27^TH November 2014 we were told that litigator fees and lower work were to be the subject of a further cut in July 2015 subject to review. Curiously no mention was made of the postponed cut to AGFS. Enquiries were made as reported in a recent Tuesday Truth.  We were told to our surprise that the AGFS cut was subject to a number of “separate criteria “including crime rates and expenditure.  

It seems the MOJ consider that the second cut for solicitors is now inevitable regardless of crime spend or other criteria. What is the rationale for this different treatment of the two sides of the profession?

We have seen the correspondence circulated between the Bar Council and The Lord Chancellor about referral fees and giving the client “choice of advocate”.  http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2014/december/bar-secures-vital-advocacy-reassurance-from-lord-chancellor/

Whilst many have said an assurance from the Lord Chancellor is not worth the paper it's written on nevertheless questions arise as to how this “vital assurance” came about, its underlying motivation and what was offered to obtain it.

Imagine that there have been on going talks between the Lord Chancellor and the Bar leadership, the content of which was withheld from the majority of the bar. Imagine if in the weeks up to 27th February 2014 the MOJ agreed to implement the first cut for litigators on 20^th March 2013 but not implement the same for advocates until June 2014 with the proviso that it could then be argued that the savings following the fee cuts impacted upon the need for a cut to the AGFS. The timing of any cut for advocates could then be postponed to the summer of 2015. 

In return for an abandonment of the very effective bar action to withstand the assault on justice the AGFS fee cut becomes a can which repeatedly gets kicked down the road. One wholly predictable effect of the litigators fee cut and the ring fencing of the advocates fee has been a further increase in house advocacy which in turn has led to pressure on the  bar leadership.

Rather than a return to fighting the disease not a symptom imagine that the Bar leadership had continued to negotiate over fee structures including the imposition of separate criteria for implementing the July 2015 cuts leading to a dichotomy in which the solicitors cut must happen for no other reason than it had been announced, but the advocate’s cut is subject to “other” considerations.

Imagine that as the second solicitor's cut became an inevitability (as stated by the MOJ in the High Court on 23^rd December 2014) the Bar leadership sought via its special relationship with the The Lord Chancellor to reassure members that they were fighting their corner by addressing the perceived problem of referral fees and seeking a means by which clients would be  advised that they can instruct an  advocate of their choice.

It is depressing that whilst the majority of the profession is trying to promote and defend access to justice and the principle of legal aid itself the Bar leadership remains committed to its public campaign of getting solicitor advocates out of the courts. Whilst I respect and recognise their concerns about protecting members of the independent bar these difficult issues would be better resolved through direct discussions and negotiations with solicitors’ bodies and The Law Society. Instead the course being followed simply enables and encourages the Lord Chancellor to exploit disunity.  

Referral fees may be a problem but they are not so prevalent that they could lead to the destruction of the independent bar. If there are abuses going on which may even amount to criminal behavior on the part of a tiny minority of lawyers (both solicitors and barristers) and those who administrate cases then this is an issue both sides of the profession can agree to address after we have fought off an existential challenge in the shape of the current Lord Chancellor.

In any event the referral fees issue ranges from at one extreme rumoured back handers to clerks and to a few individuals to commercial agreements to split fees. If bar rules preclude the latter then and clerks and barristers should be saying no.  

 On occasion freelance advocates receive between 70-100% of the brief fee. Those lucky to receive 100% are better paid than those with chambers overheads. Those who receive slightly less are paying no more than counsel pay to their chambers to cover certain overheads. Whatever the arrangement this ought not to act as an incentive for instructing an advocate in a case which they are not equipped to appear in.  In any event the prize of 20-30% of any AGFS is surely not enough to risk the reputation of a good firm by providing poor service? Solicitors, especially those who fail to succeed in winning a duty solicitor contract will be primarily concerned about their reputations, they are not likely to want to let clients, upon whom they depend for continued instructions, be poorly represented. The specialist quality mark is a key factor that firms need to adhere to.

 Moreover, is the use of an employed HCA fee sharing by virtue of the fact that they are salaried? Where is the line drawn? If a barrister of substantial experience is employed in house is there a conflict of interest in the decision to instruct him or her in a case? Does the practice of some chambers in providing pupils for lower work for no fee on the basis the crown court work is returned to chambers indirectly amount to an indirect referral fee?

This concern expressed in the letter to the Lord Chancellor leads onto the bizarre call for clients to be advised that they have a “choice” of advocate. How exactly is this to work? A PCMH form where an advocate ticks a box stating that their client has been advised of the following menu?

a. Leading junior barrister

b. A barrister but with no guarantee that the trial barrister will be the one that has been instructed from the outset because of overrunning cases, double booking etc

c. A solicitor advocate / in house counsel with a working knowledge of the case

d. An inexperienced solicitor advocate / very junior barrister

 This all emanates from the concern that there is an uneven playing field for access to advocacy services and that firms cherry pick cases.  However, If the shape of the market is changing as a result of consolidation then more firms will be retaining advocacy in house, to be conducted one would hope by skilled advocates.

Over the last few years fixed fees for litigation services have meant that solicitors simply can't make it pay without also providing an advocacy service. Those negotiating to marginalise solicitor advocates would do better to take some time to look closely at the fees payable. Many of us have worked cases to the bone, employed experts and visited far flung prisons as part of the thorough preparation of the case. This preparation has been key to a successful outcome at court. Is it cherry picking if the solicitor advocate attends court to see the case through rather than hand it over to counsel who has only seen the papers 12 hours earlier? Would it surprise those lobbying against such "cherry picking " to know that the litigator fee for such preparation might be as low as £300, thus the only way in which such careful conduct approaches viability would be for the advocacy to be kept in house?

Conversely of course, we are not so myopic as to not be aware of those cases in which the solicitor collects the litigators’ fee, having allowed most of the preparation to be conducted by counsel. This is a sad result of plummeting fees and the pressures on firms.

The solution is clear; fair rates for proper, thorough conduct.  It is only when we all see beyond the issue of self preservation and are not fobbed off by the Lord Chancellor bearing limited, short term and self interested concessions, that we will overcome these problems. It is a much bigger picture than referral fees and choice of advocate. A focus on these narrow issues will do nothing to preserve either side of the profession in the long term. These twin obsessions are divisive and reductive diversions which play into a very crude and obvious MOJ tactic of divide and rule.

 If my analysis is incorrect then I invite a rebuttal, but I do so in the interest of unity and a desire for both professions to campaign jointly for a fairly remunerated legal aid system which ensures clients access to robust case preparation and advocacy.

It is time to refocus on what this campaign has been about from the start, access to justice and proper protection of our fellow citizens when facing the most coercive powers of the state to prosecute and imprison. Allowing it to be become a trade practice dispute does a disservice to those we are fighting for.

Jon Black

 

 

The Tuesday Truth

The final Tuesday Truth of the year is written by Bill Waddington Chairman of the Criminal Law Solicitors Association.

It is hard to imagine that it is well over two years since the MOJ told the profession that it intended to change the system under which we operate.  No one could have ever foreseen all this time later   we would be where we are now with the situation still unresolved and fighting the Lord Chancellor’s proposals to completely change the landscape in what we consider to be a very dangerous way.

We would say   that all he had to do was to sit down with us and listen to what we had to say.  He would say that he has sat down with us – the problem is that nobody has been listening.

It seems like only yesterday, but in fact it is precisely 12 months ago, December 2013, when we were in much the same position as we are now.  For a quick trip down Memory Lane does everyone recall that we had worked during the course of that year on two full Consultation responses, the first to rid ourselves of the ridiculous and unworkable plan of PCT and the second to oppose the equally ridiculous and unworkable plan of two tiers?

We had done so under the strict time limits imposed upon us by the MOJ in order to respond.

 Their timetable you may recall was to respond in full by December 19^th 2013. But they didn't and Christmas therefore was relatively enjoyable, but there was still the worry about what proposals would be when eventually  issued.

Their problem was that they could not  respond by the date they set themselves and it was over more than two months later when the belated response was published.  The simple reason for that delay, although this would never be conceded by the MOJ is that they had created a two tier monster which even their own loyal experts were not able to control.  When published the profession was stunned at what appeared to be and has subsequently been shown to be a wholly unworkable scheme .

Again, our invitations to the MOJ to sit down and talk to us went unanswered and they ploughed on regardless.

They ploughed on in a way which Burnett LJ described as being “so unfair as to be illegal.”

Do you remember it was December last year when a small group of solicitors from all over the country met on the windiest day since records began in Birmingham to agree to support the Bar’s half day of action on January 6^th with our own training day?

Those were the days.

Do you remember it was March when the equivalent of 750 contract holders attended a meeting at very short notice in Manchester ?  That meeting was just 24 hours or so before the first 8.75% cut was made. We had  been given less than three week’s notice of this. 

It was a bitter sweet day.  I recall two solicitors approaching me after the meeting, both owners of small firms who had been going about their business for many decades and confirming to me that they were returning to their offices the following day to begin the process of closing down. They simply could not operate their business on fees of 8.75% less.  Many have since followed that route.  Many others have done so involuntarily.

But most suppliers are still here – clinging on by their finger nails to keep this system going and to keep their businesses going. That is what we people do .

I’m sure the profession will agree but we should not after all this time still be talking about two tier, a system conceived and developed by the MOJ in conjunction with just one ,perhaps  two of the old school from The Law Society who really had no business agreeing two tier as a way forward when all the Practitioner Groups had unanimously rejected the concept.  They should never have allowed themselves to be placed in that position .

We are so very grateful for the change of attitude and thinking by the new  Law Society leadership .

All the evidence points to the fact that the two tier system will not succeed.  Even the MOJ’s own experts have approached it with more caveats than the Lord Chancellor has had hot lunches. Well you would wouldn't you, if you were seeking to impose a completely new untried untested system and had no expertise in this particular market when trying to  replace one that has worked very well for decades?

Following  the most recent Consultation  (clearly prepared prior to and in anticipation of  the victorious Judicial Review), more than 4,000 responses confirmed to the MOJ yet again  that their conclusions in the response were flawed, unsustainable, unworkable, unnecessary and yet again our invitations to them to sit down and discuss a managed way forward were rejected.

There was no other choice but to issue this further Judicial Review . Our members require it . Our legal team was scrambled together once again to set the wheels in motion.  We very much welcome not only the financial contribution from The Law Society but also the fact that The Law Society itself challenges the Government’s latest decision by way of JR.

There was a brief setback on Friday when our application for interim relief was considered on the papers and rejected. 

I can now reveal that following a weekend of discussions with our legal team and consultation with our committees, instructions were delivered on Sunday night to our legal team to pursue an application for interim relief to a full hearing prior to Christmas.

Notice was given on Monday 22^nd December in the morning. The hearing will be tomorrow at 10.30am. We wish the legal team every success.

Again, it is something that absolutely MUST be done.  We could not as representative organisations sit back and let the opportunity for an application for interim relief pass once we knew it was possible that such an application could be heard before Christmas.

The advice we can give to the profession for now is twofold:-

 1.       Hang fire on your contract renewal notice.  The time limit for this is 12pm 23^rd January 15   and there is no need to rush.

2.       Hang fire on your tender application if you are making one.  We predict that many will for the simple reason that you have to in order to survive.  There is no other choice.  However, whether the application for interim relief succeeds or not, the full claim is to be heard on the 15^th and 16^th and there is certainly no need for any tender application to be lodged prior to that day.  The deadline is of course 29^th January 2015.        .

For now, most of you will be preparing for a Christmas break.  Unlike many walks of life however, there will be one/two people from each office up and down the land who will be on call on Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve, New Year’s Day and the holiday days in-between.  We do this because we consider it  our duty to do it.  It is part of our job, the job we chose to do and the job we would all like to keep on doing if only the MOJ will stop interfering .

Those far less fortunate than us , need us . The people we represent. If we did not do it the system would grind to a halt.  If we were not here the system would grind to a halt.  That is something the Lord Chancellor ought to bear in mind.

On a personal note , I would like to say this .

Thank you for the considerable support you have provided to both organisations and your own profession in continuing this fight. 

Thank you to The Law Society for its financial support and legal support with this latest JR.

We will need more financial support, that is for sure and I ask you to consider digging deep and donating through to the JR fund.

http://www.criminallawyersunited.com/donate-to-the-campaign-fund/

 

It is the festive season and the season of goodwill and peace to all.

With those thoughts in mind , I would like to conclude with three suggestions.

I would like to invite the Lord Chancellor to take seriously the suggestions we have made for months now about alternative ways forward.  Ways which will not mean two thirds of the profession disappearing.  Ways which will not mean the creation of advice deserts.  Ways which will not mean that this profession follows what has happened in the world of civil legal aid and the backlash that we now see flowing from the ill-conceived LASPO cuts.  The Govt ignored all the warnings about those cuts before they were made. They pressed on regardless and now look at the mess, the injustices and the broken system.

To ignore those warning was foolhardy. To press on with the ill conceived and unworkable reforms for the criminal justice system would nothing short of  reckless.  No Govt department should behave in that way .

It is perhaps appropriate as well to call upon the Labour Party and perhaps even the Liberals  if they feel secure expressing an opinion which is contrary to the Govt's

Now is the time for them to condemn the two tier system and for them to understand that if they inherit this then they will have a dog’s breakfast for a criminal justice system. 

I would like this profession and the Bar to support the fund in any possible way they can. We know many have and thank you for that. But more is needed. The Bar has  to wake up to the dangers posed to the professions and the Criminal Justice system if these proposals become reality and the MOJ succeed in the plan kill off  two thirds of the solicitors firms by introducing what is effectively PCT by the back door .

Happy Christmas to you all and the very best for 2015 (and fingers crossed for an Christmas present  on Tuesday ).

I wonder what the message will be in the build up to Christmas next year. We know what it should be.

 

 

 

 

 

The Tuesday Truth

SERIOUS HEALTH WARNING:

THE MOJ PROPOSALS ON DUTY CONTRACTS WILL DAMAGE THE JUSTICE SYSTEM FOR ALL

One of the most depressing aspects of the Government’s proposal to sell off 527 duty solicitor contracts is that most of the agencies in the Criminal Justice system and most of the public are unaware of the likely consequences of such proposals.

The disastrous consequences of this ill thought out restructuring will be exacerbated because it will coincide with substantial changes to procedure in both the Magistrates and Crown Court.

In the Magistrates Court, Transforming Summary Justice will be rolled out. In summary some of the highlights of this proposal are that:

1) Likely Not Guilty pleas will be listed 28 days after charge,

2) Prosecution preparation is to be front loaded so initial details of prosecution disclosure will be available in advance of the hearing,

3)  There must be a prosecution lawyer with decision making power at the first hearing

4)  Primary disclosure will be served on that date

5)  There should be greater scope for engagement between the defence and crown in advance of the hearing and proper progress

6) Guilty pleas to be listed 14 days after charge

 

In the crown court the traditional PCMH, which has effectively become the centrepiece for case management will be sidelined for an earlier Case Management hearing, probably 28 days after sending or allocation, there will also be a national early guilty plea scheme.

The consequences of the Crown Court changes are that defendants will probably have to enter their plea much earlier than now and potentially on less disclosure. Again the Crown will be asked to frontload their preparation so as to ensure these new deadlines are complied with.

Both these new schemes are linked and it is recognised that both will fail if the Crown cannot deliver.

However whilst all these changes in culture will be taking place the government will be awarding 527 duty solicitor contracts following a tender process. Firms can apply for more than one contract and therefore it is likely that no more than a third of the current firms will get a duty contract.

The Government’s own economic evidence suggests that most firms will not survive without a duty contract.

How does that affect the criminal justice system, the administration of justice and society at large?

Its simple really:

Many clients will not be able to choose the solicitor they trust as they will have gone out of business

The solicitor they are allocated may have more work at a lower price but that will mean they can only exist by using less experienced staff to provide important advice which could affect reputation and liberty

The vulnerable , mentally ill and young will be much more exposed to miscarriages of justice with the quality of their protection reduced

The traditional defence model will be replaced with a factory type model and the increased pressure to be ready for an earlier case management hearing at the Crown Court will come at a time when the defence will have the least experienced resources hence reducing proper engagement.

Clients who might plead guilty normally with a lawyer they trust may delay their plea hence increasing the number of hearings not reducing them

There will be an increase of litigants in person with experienced clients unwilling to be allocated a lawyer if their normal firm no longer exists

 The Government proposal is predicated on an assumption that firms getting a duty solicitor contract will give away 50% of their own client work, so really client choice may end up being an empty promise

The Government proposal also has a sub theme the deskilling of the defence. There is no longer a reference to the “duty solicitor”, instead  the “duty lawyer” who does not in fact even have to be a solicitor.

 The effect of these proposals is that over a period of time many experienced lawyers will either leave the profession or be consigned to “managing” far less experienced fee earners who through the forced economics of the proposal will be the front line fee earners.

For many years the contribution of solicitors has not been given the credit it deserves, these proposals will so restrict them financially that the whole system will suffer at a time of real change in process in courts

Whilst there is a desire to hasten the process in the crown court more defendants may delay a likely guilty plea increasing uncertainty for victims and increasing hearings.

The combination of the changes in process in court procedure and the allocation of duty contracts may well lead to chaos, unrepresented defendants, victims forced to wait longer than they might and giving evidence where they might not have needed to, the exact opposite of what the aforementioned schemes are designed to achieve. Justice in meltdown.

The Government think they can get away with this, it is not an issue that particularly engages the electorate and by the time the damage has been done it will be too late and Grayling will be wreaking havoc in another department

The tender process is a disgrace, Marks and Spencer would have trouble completing it in time let alone a small firm whose fee earners spend most of their time servicing their clients Big firms, medium firms and small firms have all complained about the tender.

The limited period for submission , the fact that it is over Christmas  and the confusing and unnecessarily demanding nature of the questions are all probably partly motivated by the fact that the LCCSA, CLSA and now at last the Law Society will not play ball.

The two representative organisations have announced they will JR the proposals and have forwarded a letter before action. The Law Society has done the same.

It is great that they are now involved and still offering financial support to the associations. Nevertheless it is crucial that the LCCSA and CLSA are parties to the litigation. Our position to the law society is similar but not identical in relation to our claim. The history of the discussions that have taken place between the MOJ and Law Society, many of the minutes of which I have seen, demand that should there be any negotiations at a later stage the LCCSA and CLSA MUST have a seat at the table which is only guaranteed by being a party to the litigation.

So I am afraid we need a bit more money, we secured most of our costs in the last JR, but it cost slightly more than anticipated and this JR with a wider ambit together with an application for interim relief will be more expensive.

The LCCSA and CLSA have led the profession in their fight against these proposals and it is partly this leadership and the victory in the JR that places us in the position of going into this litigation with the Law Society by our side. The claimants have instructed excellent solicitors in Kingsley Napley and Bindmans respectively and outstanding leading Counsel in Jason Coppel QC and Dinah Rose QC, a bit like Pele and Cruyff in their prime.

We need everyone to donate however small or large and we need these donations now. Anyone who has any type of investment or interest in a fair and accountable justice system should contribute. Please also forward the link for donation and this blog to others .

http://www.criminallawyersunited.com/donate-to-the-campaign-fund/

The fight cannot end here, please lobby your MP, your local Crown Court Judge, please forward this to your friends.

Tell them that if they are ever accused of something and cannot afford representation the options are bleak.

Tell them if they are the victim of a crime they may still have to experience lengthy and inappropriate delay

Tell them that if they care about access to justice ACT NOW BEFORE IT IS TOO LATE

The Tuesday Truth

Carry on Doctor

On the 31 October 2014, Fiona Woolf resigned as Chair of the Government’s child abuse inquiry.  Her resignation was due to her previous links with the Westminster political establishment, and more specifically to a Home Secretary who may come in for criticism and further scrutiny.   In other words perhaps belatedly for many , Fiona Woolf realised that  the  public is  entitled to expect that the person appointed to this role is entirely independent and cannot have her impartiality undermined by previous associations and links.

 

At the end of last month it was announced that former Law Society Corporate Affairs chief, Dr Patricia Greer, has been employed by the Lord Chancellor to conduct a review of access to legal services.   It appears that her role is to investigate ways to improve the affordability of legal services’ Greer was part of the small Law Society team who worked with  the Ministry of Justice during last year’s discussions over the two tier  own solicitor/duty solicitor contract scheme. The Law Society’s approach to the Consultation process and their public pronouncements regarding the model adopted triggered the vote of no confidence in the Law Society.

Much of the economic evidence available suggests that firms not securing a duty contract (likely to be in the region of two thirds) will go out of business, thus effectively removing client choice by the back door.

One of the raison d’ etre of The Law Society as reaffirmed with rather more vigour under its new President is to promote access to justice and preserve client choice. The Law Society under its new stewardship has very clearly come out against the final model of the two tier contract because it will reduce access to justice and constrain client choice,

Therefore, we now have a situation in which an official very much at the centre of a much derided restructuring of the criminal justice system has now taken herself off to the other half of the two tier equation.  

Presumably there is potential for Ms Greer to actually be working on access to legal services issues arising out of representations and arguments which may be the reverse of arguments put forward whilst she was at the Law Society.  It  is also possible that whilst working at the Law Society Ms Greer may well have gleaned confidential information from and about practitioners and about The Law Society that were pertinent to negotiations with the Ministry, material which she takes with her to the Ministry. This is not about casting imputations on her integrity as to whether she would deploy that information, rather that there appears to be a strong possibility of a conflict of interest. .

For those who have forgotten, the Judicial Review was about the non-disclosure of reports including one by KPMG who were tasked by the MOJ to address crucial questions of modelling.

The contents of the KPMG report and its key assumptions have come in for sustained criticism with some of the kinder comments describing it as economically illiterate and displaying a critical lack of knowledge of the market.

During the course of the Judicial Review, through disclosure, we discovered that P A Consulting had also prepared a report for the MOJ stating in summary that it was not really possible to achieve the economies of scale that would make the MOJ’s preferred restructuring approach sustainable.

Throughout the period leading up to the announcement and disclosure of the proposal and the disclosure of these reports the Law Society was forced to sign up to various confidentiality undertakings which meant that they were unable to disclose them to the very people they represent.

It is no doubt a coincidence but the MOJ blurb released to mark her new position revealed that Ms Greer had previously held positions with KPMG and PA Consulting Group. It’s a small world , the world of revolving doors.

Her appointment will strike many as entirely inappropriate because of the kind of professional associations that lead to accusations of conflict of interest.

This appears to have become standard operating procedure for the political class. We learnt recently that, Stephen Dorrell MP has just taken up a post at KPMG. The firm is considering bidding for a one billion pound deal to manage the medical records of all patients.  He only recently quit as Chairman of the powerful House of Commons Health Select Committee.  Although he will step down at the next general election as MP, he will be employed by KMPG and be in the House for the next 6 months.

 

Two Tier Fee Cut

In March of this year the Ministry of Justice announced that prior to any further fee reductions for litigators and advocates the MOJ would consider a number of criteria. Bill Waddington chairman of the Criminal Law Solicitors Association has pushed the MOJ for disclosure of these and has discovered amazingly that the criteria for litigators and advocates although similar is different in two very significant ways

For litigators the criteria are the Leveson reviews, CJS reforms (eg digitisation) and the impact from earlier remuneration changes. For advocates, there is also the Leveson review and CJS reforms, but in addition there is the Jeffrey Review, any impacts on legal aid spend from falling crime rates, and an analysis of income and earnings of criminal advocates including effects from changes in recent years.

There seems no reasonable explanation for the difference which is clearly important. Litigators are obviously equally affected by falling crime rates and must be equally entitled to have their income and earnings considered in light of recent changes. Des Hudson, Chief Executive of the Law Society informed practitioner groups in March 14 that the review would be based on the same criteria. Have the bar secured these additional favourable terms as part of a deal? To be honest, I have no idea and no evidence to suggest as such, but we deserve an answer to this difference which on the face of it favours advocates and contradicts what we and The Law Society were told in March 14. I understand that both the President of the LCCSA, Jon Black and the chairman of the CLSA, Bill Waddington will be making further enquiries of the MOJ and seeking an amendment of the criteria so that both litigators and advocates are subject to the same factors in any further reviews.

In conclusion the MOJ appear anything but a fair and transparent body.  It is  proceeding with a tender that on their own evidence is likely to cause market collapse. It talks  austerity but means ideology and its governing ideology involves restricting  access to justice. After all if it was austerity how could the Ministry justify the vast increase in the expenditure in external legal advice in 2012/13 £34.2m up from £21.9m the year before. The spend for 2013/14 will be similarly eye watering bearing in mind its sequence of losing judicial reviews as a result of unlawful policy and procedural decisions.

This is a Ministry that foists destructive reorganisation on others but in its own secret deal making, appointments and spending demonstrates a business as usual approach, don’t do as we do, do as we say. .

If there is to be a meaningful and open review of the justice system that should start from the top , physician heal thyself.  

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