Guest post by Joanna Hardy: Court closures and the cost of losing local justice

I am delighted to host this guest post by Joanna Hardy of Red Lion Chambersarticulating better than I can the appalling legacy of the Ministry of Justice’s continued selling-off of our courts. 

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The idea of living in the converted entrance hall of Acton Magistrates’ Court would surprise most lawyers. It used to be a sad place. Chewing gum used to cling to the floor, tackily collecting a thousand stories. The waiting-area seats groaned whenever a defendant rose to tell the local Magistrates why he had stolen the bicycle, punched the man or skipped his railway fare. The graffiti in the toilet documented the rights and wrongs of many stories and sub-plots. Defendants, victims and their respective families filed in to see justice being dispensed, case by case, crime by crime.

It was the turnstile of local justice.

Living in a converted Magistrates’ Court is not cheap. In 2017, the going rate was around £1.4 million. “Be the judge of this three-bedroom home” quipped a property article, “sleep in what used to be the grand entrance hall of Acton Magistrates’ Court”. The chewing gum has, presumably, gone and been replaced by a “rooftop terrace and steam room”. It looks happier now.

Acton might be at the start of the alphabet, but she is not alone in her dramatic makeover. Brentford Magistrates’ Court is now a luxury building that retained the cell area for trendy bicycle storage. Old Street Magistrates’ Court is a fancy hotel where you can “have a tipple” in the spot the Kray brothers once stood.

Time and again the sites of local, gritty justice have been transformed into luxe properties with corresponding price tags.

Recent figures reveal half of all Magistrates’ Courts have closed since 2010. Those pursuing local justice are increasingly finding that it is not very local at all. Courts are being consolidated and warehoused into larger centres spread out across the country. Community justice now needs to hitch a ride to the next town.

The benefits of justice being dispensed within a local community are keenly felt by those involved. For better or for worse, defendants can sometimes lead difficult, chaotic lives. Someone who is addicted to alcohol or drugs is unlikely to make a cross-county trip by 09:30am. Someone dependent on state benefits might not prioritise a peak train ticket to their court hearing if they are budgeting to feed their children. Their delays will cost society money. It might cost complainants and witnesses their time and a considerable amount of anxiety. If a defendant does not turn up at all then stretched police resources may be diverted to locate them. The community suffers.

Victims and witnesses might also struggle to make an expensive, time-consuming trip to a far-flung court. Those with childcare or employment responsibilities might not be able to spare an entire day to give evidence for twenty minutes. In some areas, the additional distance may cause witnesses a real discomfort and unease. There have been suggestions that some courts are so poorly served by public transport that witnesses and defendants could end up inappropriately travelling together on the same bus.

The benefits of local justice are clear in the day-to-day running of our courts. In some local cases, police officers still attend bail hearings. Put simply, they know their beat. They know the shortcut alleyway behind the pub, the road that is notorious for teenage car racing, the park where trouble brews. Their local knowledge helps to improve the practical decisions of the courts and to keep society safe.

The neighbourhood officer joins a long list of local benefits. Youth defendants attending a courthouse in their community can go back to school or college after their hearing. That preserves a shred of stability during a chaotic time. Probation officers sometimes know repeat offenders from earlier court orders or programmes. That helps with continuity of services including mental health, drug and alcohol treatment – often being coordinated by a GP down the road. Magistrates themselves are regularly drawn from the immediate geographic area. A community problem emerging at a particular football stadium, pub, school or street then attracts a consistent approach and a local focus.

Our justice system will be immeasurably poorer by the aggressive, short-sighted contraction of our court estate. Local knowledge, neighbourhood agencies and community justice have been gambled for large court centres making rulings from afar. The inevitable delays will waste public money. Complainants and witnesses will be inconvenienced. Police officers will be stretched. Decisions will be made in far-removed buildings distanced (in more ways than one) from the real crime on our streets.

The next time an advertisement surfaces for a luxury converted “Courthouse” building we ought to remember the real value of community justice and how much losing local courts might cost us all.

 

Joanna Hardy is a criminal barrister at Red Lion Chambers.

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GUEST POST: An open letter to the Chair of the Criminal Bar Association

An open letter to the Chair of the Criminal Bar Association in relation to legal aid rates under the Advocates’ Graduated Fee Scheme (AGFS), signed by 193 criminal barristers.

 

Dear Chris,

We write to you and the CBA executive as junior Criminal barristers of 0-12 years’ call, in the wake of the government’s consultation response to Amending the Advocates’ Graduated Fee Scheme (AGFS 11), published on 10 December 2018.

We recognise the unenviable task the CBA executive faces in negotiating with the MoJ, and do not write in an effort to sow discord.  However, what follows is an earnest and unapologetic attempt to convey to you and the CBA leadership the strength and depth of our feeling against AGFS 11, even as amended.

The Monday Message sent on 10 December 2018 described the proposed amendments as “tangible progress”, and sounded a note of optimism that “[w]e are beginning to turn things around”.

Regrettably, we do not share this optimism. We are alsounderwhelmed by the degree of progress.  The fact that it is unprecedented does not of itself render it acceptable or worthy of celebration; following, as it does, over two decades of savage and dangerous cuts to the justice and Legal Aid budgets.

The 1% uplift and implementation of the newest statutory instrument with investment of the “additional” £8 million was simply the fulfilment of a promise; a promise on which the government had sought to renege.  On any view, the government’s reliance on out-of-date figures on which to base its offer of a £15 million “increase” was at best a mistake and at worst a conscious and cynicalmisrepresentation.

We are angry.  We believe that:

1. The current AGFS scheme is not fit for purpose;
2. Dramatic changes need to be made to the structure of how AGFS is paid;
3. There needs to be a significant increase in funding across the board (both defence and CPS funding);
4. A delay of 18 months until renegotiation is unacceptable.

It would be wrong to think that we at the (junior) junior Bar are not equally concerned with the destruction of PPE as those more senior. Its loss in paper-heavy cases represents the dismantling of our future. Moreover, when senior members inevitably begin to choose their cases more shrewdly, those of us lower down will face the unenviable choice of taking on cases we fear are too complex for our call or having gaps in our diaries.  We are seeing many examples of this happening already.

The current structure of payment, whereby guilty plea fees and cracked trial fees do not reflect the work involved in preparing for guilty pleas and ineffective trials (especially in cases that run to several thousandpages and beyond), is also creating a real risk to the quality of representation. The lack of adequate remuneration for work done out of court is greatly exacerbated (especially in the case of junior juniors) by the ubiquitous use of warned lists, with their in-built likelihood that counsel who prepares the case will not in fact do the trial (notwithstanding advices on evidence, conferences, legal arguments, defence statements, etc.). This has already begun to erode that quality of representation, with individuals understandably finding it impossible to justify the preparation time previously allocated to such cases, and to “go the extra mile”, as was previously routine.

The fees report due in 2020 will be redundant by the time it is published. There will either have been the dramatic change in funding that is needed by then or many of us will already have left the profession.  We are haemorrhaging talent. The idea that we don’t yet have a clear enough picture of the effect that AGFS 11 is having, and will continue to have, is laughable.  Whether the government likes it or not, the experiences of individual barristers are telling, and taken together they start to add up to irrefutable evidence.

Junior juniors are voting with their feet. They are either ceasing to conduct Legal Aid work (whether by moving into other areas of practice or going on long-term secondment) or they are leaving the self-employed Bar altogether.

We expect the MoJ to continue to listen and engage with the profession now, not in 2020.  What we want is a coherent and sustainable system of remuneration for work done.  This can and must be achieved without delay, through further negotiation. Plainly, we can only speak on behalf of those who have signed this letter, but for our part, we are in favour of direct action in the New Year, if needed to bring the MoJ back to the table. We acknowledge this will require careful planning and some creativity, with every effort made to protect those who would be financially unable to participate in, for example, a return to ‘no returns’.  We envisage discussions to that end early in the New Year and are cognisant of the need to prompt a meaningful response from government before March (n.b. Brexit).

At the juniors’ meeting on 24th November 2018 the mood was plainly, and strongly, in favour of further industrial action. It may be that the “additional” funding for AGFS11 has placated all of those individuals, and those whose views they conveyed to the meeting. All we ask is that the CBA does not simply assume that this is the case. Certainly, in respect of those who have signed this letter, it is not.

21 December 2018

Sent on behalf of:

1. Natalie Bird, 2 Bedford Row [2015]
2. Sam Shurey, 2 Bedford Row [2015]
3. Emilie Morrison, 2 Harcourt Buildings [2013]
4. Imogen Nelson, 2 Harcourt Buildings [2014]
5. Sam Barker, 2 Harcourt Buildings [2014]
6. Amy Oliver, 2 Harcourt Buildings [2016]
7. Will Martin, 2 Hare Court [2010]
8. Charlotte Watts, 2 Hare Court [2012]
9. Joshua Scouller, 2 King’s Bench Walk [2012]
10. Matilda Robinson-Murphy, 2 Kings Bench Walk[2015]
11. Patrick D.Harte, 3 Temple Gardens [2006]
12. Charles Durrant, 3 Temple Gardens [2006]
13. Jodie-Jane Hitchcock, 3 Temple Gardens [2006]
14. Kate Chidgey, 3 Temple Gardens [2006]
15. Nick Whitehorn, 3 Temple Gardens [2006]
16. Andrew Horsell, 3 Temple Gardens [2009]
17. Carina Clare, 3 Temple Gardens [2012]
18. Will Glover, 3 Temple Gardens [2012]
19. Cameron Scott, 3 Temple Gardens [2012]
20. Nargees Choudhury, 3 Temple Gardens [2013]
21. Ruth Reid, 3 Temple Gardens [2013]
22. Karlia Lykourgou, 3 Temple Gardens [2013]
23. Beverley Da Costa, 3 Temple Gardens [2015]
24. Brad Lawlor, 3 Temple Gardens [2016]
25. Emily Lauchlan, 4 Bream’s Buildings [2012]
26. Ryan Brennan, 4 Bream’s Buildings [2012]
27. Rebecca Bax, 4 Bream’s Buildings [2012]
28. Ylenia Rosso, 4 Bream’s Buildings [2014]
29. Kiran Pourawal, 4 Bream’s Buildings [2014]
30. Syam Soni, 4 Bream’s Buildings [2015]
31. Rebecca Moss, 4 Bream’s Buildings [2016]
32. Christina Josephides, 4 Bream’s Buildings [2016]
33. Michael Cameron-Mowat, 4 Bream’s Buildings[2017]
34. Phoebe Bragg, 5 King’s Bench Walk [2015]
35. Kate Parker, 5 Paper Buildings [2014]
36. John Oliver, 5 St Andrew’s Hill [2008]
37. Dave Williams, 5 St Andrew’s Hill [2009]
38. Karl Masi, 5 St Andrew’s Hill [2011]
39. Alexandra Davey, 5 St Andrew’s Hill [2013]
40. Nick Jones, 5 St Andrew’s Hill [2016]
41. Puneet Grewal, 9 Bedford Row [2010]
42. Charlotte Mitchell-Dunn, 9 Bedford Row [2012]
43. Alex Matthews, 9 Bedford Row [2012]
44. Dréa Becker, 9 Bedford Row [2012]
45. Katie Mustard, 9 Bedford Row [2014]
46. Richard Reynolds, 9 Bedford Row [2014]
47. Leena Lakhani, 9 Bedford Row [2015]
48. Stefan Hyman, 9 Bedford Row [2015]
49. Aqeel Noorali, 9 Gough Square [2017]
50. Helen Dawson, 15 New Bridge Street [2015]
51. Oliver Kavanagh, 15 New Bridge Street [2015]
52. Ellen Wright, 15 New Bridge Street [2017]
53. Tom Lord, 15 Winckley Square [2009]
54. Kimberley Obrusik, 15 Winckley Square [2010]
55. Lucy Wright, 15 Winckley Square [2011]
56. Colette Renton, 15 Winckley Square [2015]
57. Sarah Magill, 15 Winckley Square [2016]
58. Holly Nelson, 15 Winckley Square [2017]
59. Patrick Duffy, 23 Essex Street [2007]
60. Nathan Rasiah, 23 Essex Street [2007]
61. Daniel Lister, 23 Essex Street [2009]
62. Carolina Cabral, 23 Essex Street [2009]
63. Jeremy Rosenberg, 23 Essex Street [2009]
64. Elisabeth Acker, 23 Essex Street [2010]
65. Helena Duong, 23 Essex Street [2010]
66. Victoria Gainza, 23 Essex Street [2010]
67. Rupert Wheeler, 23 Essex Street [2010]
68. Sarah-Kate McIntyre, 23 Essex Street [2011]
69. Alex Mills, 23 Essex Street [2012]
70. Sam Trefgarne, 23 Essex Street [2012]
71. Daniel O’Donoghue, 23 Essex Street [2013]
72. David Dainty, 23 Essex Street [2013]
73. Sasha Queffurus, 23 Essex Street [2014]
74. Robert Smith, 23 Essex Street [2014]
75. Tom White, 23 Essex Street [2015]
76. Kelly Cyples, 23 Essex Street [2016]
77. Josephine Teale, 23 Essex Street [2016]
78. Amelia Clegg, 23 Essex Street [2017]
79. Sushil Kumar, 25 Bedford Row [2009]
80. Henry Dickson, 25 Bedford Row [2012]
81. Laura Collier, 25 Bedford Row [2013]
82. Natasha Lloyd-Owen, 25 Bedford Row [2013]
83. Tom Flavin, 25 Bedford Row [2013]
84. Joy Lewis, 25 Bedford Row [2014]
85. Vida Simpeh, 25 Bedford Row [2014]
86. Nick Murphy, 25 Bedford Row [2015]
87. Suzanne Payne, 30 Park Place [2014]
88. Andrew Kerr, 33 Bedford Row [2006]
89. Dudley Beal, 33 Bedford Row [2014]
90. Stephen Reynolds, 33 Bedford Row [2014]
91. Roxanne Aisthorpe, 36 Bedford Row [2011]
92. Catherine Rose, The 36 Group [2017]
93. Dharmendra Toor, The 36 Group [2010]
94. Nadeem Holland, The 36 Group [2006]
95. Gerwyn Wise, 187 Fleet Street [2010]
96. Edward Duncan Smith, 187 Fleet Street [2011]
97. Daisy Monahan, 187 Fleet Street [2012]
98. Liam Edwards, 187 Fleet Street [2014]
99. Vakas Hussain, 187 Fleet Street [2014]
100. Gavin Capper, 187 Fleet Street [2015]
101. Tom Worden, 187 Fleet Street [2017]
102. Robert Levack, 187 Fleet Street [2017]
103. Sebastian Cox, 187 Fleet Street [2017]
104. Ann Crighton, Ann Crighton Chambers [2015]
105. Becky Owen, Becky Owen Law [2007]
106. Libby Anderson, Charter Chambers [2016]
107. Simon Elliott, Church Court Chambers [2007]
108. Alison Pryor, Church Court Chambers [2008]
109. Richard Mohabir, Church Court Chambers [2009]
110. Colin Witcher, Church Court Chambers [2010]
111. Tomas McGarvey, Church Court Chambers [2010]
112. Chiara Maddocks, Church Court Chambers [2011]
113. Fiona McAddy, Church Court Chambers [2011]
114. Anthony Eskander, Church Court Chambers [2012]
115. Estelle Thornber, Church Court Chambers [2012]
116. Michael Polak, Church Court Chambers [2012]
117. Gregory Wedge, Church Court Chambers [2014]
118. Holly Kilbey, Cornwall Street Barristers [2010]
119. Jeanette Stevenson, Cornwall Street Barristers [2012]
120. Andrew Parker, Cornwall Street Barristers [2016]
121. Georgia Luscombe, Drystone Chambers [2017]
122. Peter Killen, Exchange Chambers [2015]
123. Maya Chopra, Farringdon Chambers [2014]
124. Tom Hoskins, Foundry Chambers [2007]
125. Jonathan Underhill, Foundry Chambers [2008]
126. Merry van Woodenberg, Foundry Chambers [2012]
127. Jessica Tate, Foundry Chambers [2012]
128. Christopher Harper, Foundry Chambers [2013]
129. Sophie Murray, Foundry Chambers [2013]
130. Sophie Stannard, Foundry Chambers [2015]
131. Bethany Condron, Foundry Chambers [2016]
132. Yusuf Solley, Furnival Chambers [2009]
133. Sophie O’Sullivan, Furnival Chambers [2011]
134. Selena Jones, Furnival Chamers [2011]
135. Sam Stockwell, Furnival Chambers [2012]
136. Mandisa Knights, Furnival Chambers [2013]
137. Tulay Hodge, Furnival Chambers [2014]
138. Sadaf Etemadi, Furnival Chambers [2014]
139. Shannon Revel, Furnival Chambers [2014]
140. Chris Waymont, Furnival Chambers [2014]
141. Hannah Burton, Furnival Chambers [2014]
142. Andrew Taylor, Furnival Chambers [2015]
143. Charlotte Bellamy, Furnival Chambers [2017]
144. Shahida Begum, Garden Court Chambers [2008]
145. Meredoc McMinn, Garden Court Chambers [2015]
146. Elizabeth Garcia, Garden Court Chambers [2016]
147. Charlotte Bull, Goldsmith Chambers [2016]
148. Hannah Whelan, KCH Garden Square [2010]
149. Priya Bakshi, KCH Garden Square [2012]
150. Elisabeth Evans, KCH Garden Square [2012]
151. Samuel Coe, KCH Garden Square [2012]
152. Daniel Harman, Kenworthy’s Chambers [2008]
153. Simon Blakebrough, Kenworthy’s Chambers [2011]
154. Robert Lassey, Kenworthy’s Chambers [2016]
155. Sarah Cook, Kenworthy’s Chambers [2016]
156. Michael Shilliday, Lamb Building [2012]
157. Hannah Hurley, Lamb Building [2012]
158. James Hay, Lamb Building [2012]
159. Simon Gurney, Lincoln House Chambers [2006]
160. Lee Hughes, Lincoln House Chambers [2012]
161. Isobel Thomas, Lincoln House Chambers [2012]
162. Marianne Alton, Lincoln House Chambers [2014]
163. Matthew Bolt, Maidstone Chambers [2012]
164. Kate Smith, Maidstone Chambers [2013]
165. Anita Davies, Matrix Chambers [2011]
166. Margaret Morrissey, Morrissey’s Chambers [2015]
167. Katrina Wilson, No.1 High Pavement Chambers[2007]
168. Lucky Thandi, No.1 High Pavement Chambers[2011]
169. Abigail Hill, No.1 High Pavement Chambers[2013]
170. Almas Ben-Aribia, No.1 High Pavement Chambers[2013]
171. Rebecca Coleman, No.1 High Pavement Chambers[2013]
172. Lucy Jones, No.1 High Pavement Chambers [2014]
173. Helen Marley, No.1 High Pavement Chambers[2016]
174. Ramya Nagesh, No.5 [2008]
175. Philip Vollans, No.5 [2015]
176. Thomas Coke-Smith, QEB Hollis Whiteman [2011]
177. Arabella MacDonald, QEB Hollis Whiteman [2012]
178. Eloise Emanuel, QEB Hollis Whiteman [2012]
179. Kathryn Hughes, QEB Hollis Whiteman [2013]
180. Ruth Broadbent, QEB Hollis Whiteman [2016]
181. Kyan Pucks, QEB Hollis Whiteman [2016]
182. Lauren Sales, Red Lion Chambers [2010]
183. Timothy Kiely, Red Lion Chambers [2014]
184. Marcus Harry, St Ives Chambers [2008]
185. Justin Jarmola, St Ives Chambers [2009]
186. Anthony Cartin, St Ives Chambers [2010]
187. William Douglas-Jones, St Ives Chambers [2011]
188. Lucinda Wilmott-Lascelles, St Ives Chambers[2014]
189. Aadhithya Anbahan, St Ives Chambers [2015]
190. Alexander Pritchard-Jones, St Ives Chambers [2015]
191. Gemma Maxwell, St John’s Buildings [2014]
192. Stephanie Wookey, Thomas More Chambers [2010]
193. Genevieve Moss, Thomas More Chambers [2015]

GUEST POST: An open letter to The Criminal Bar Association, The South Eastern Circuit and The Bar Council

Below is an open letter published by five junior criminal practitioners in relation to the new Advocates Graduated Fee Scheme (AGFS), which for non-lawyers is the scheme for payment of defence advocates in legally aided criminal cases. 

 

19thNovember 2018

 

We write in relation to a case which has just collapsed at the Crown Court sitting at Inner London. We write to express our dismay at the remuneration under the new AGFS scheme and the consequences which will now follow.

This was a five handed Conspiracy to Kidnap and Blackmail case and was listed with a four week estimate, due to commence today (19thNovember 2018). All counsel/advocates were instructed at the outset of this case.

The evidence was voluminous to say the least, with near enough 10,000 pages of used and served evidence and all counsel taking approximately 2 weeks out of court on various days to prepare the case for trial. Much of the evidence consisted of telephone transcripts and translated Spanish telephone evidence along with cell site mapping.

Only last week, the Crown disclosed information relating to the complainants character and that he was now refusing to come to court to give evidence. Indeed, he lost contact with the police officers in the case and switched his mobile phone off. This resulted in the crown applying to adduce his evidence under the hearsay provisions.

All defence counsel prepared skeleton arguments outlining their objections to the Crown’s application. These took several hours to research and prepare. There is no (and it should be highlighted, never has been), provision for payment for written work under the graduated fee regulations; a fact which in itself is utterly unacceptable.

But even more disgraceful are the rates of pay for such a serious case with thousands of pages of evidence and the fact that this trial has now ‘cracked’. With no provision for payment of Pages of Prosecution Evidence served (PPE), the brief fee is now only £1,105 (being a category 13.1 offence). Had the trial been contested, the brief fee would not have been much better (amounting to only £1,300). Both of these derisory figures amount to a reduction in advocates fees of approximately 80% as compared to the AGFS scheme which existed pre April 2018. Moreover, the above cracked trial fee is the total payment for all preparation in this case, is of course gross and so chambers rent, clerks fees and tax will need to be paid from this amount. To add insult to injury, the four week gap in our diaries now looms large.

It is, quite frankly, an absolute scandal that these new AGFS fees were ever agreed and that criminal barristers are now being expected to work for such derisory rates.  Each and every one of us defending in this case is making it clear to you that we will no longer undertake cases which are PPE heavy.

Enough is enough!

 

Mustapha Hakme (9 Bedford Row)

Zarif Khan (Drystone Chambers)

Archangelo Power (2 Bedford Row)

Paul Firmin

Phillip Hill

Guest post by Mukul Chawla QC: Reflections from my years at the independent Bar

I am delighted and honoured to publish this guest post by Mukul Chawla QC. Many readers will know that, after 35 years at the independent Bar blazing trails that leave us mortal practitioners feeling very humbled indeed, Mukul is stepping down as Head of Chambers at Foundry Chambers (formerly 9-12 Bell Yard) for a new beginning in employed practice. Here, he offers some reflections on his time at the independent Bar and on the fate of the criminal justice system.

 

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What follows is a self-indulgent and personal reflection of my years at the independent Bar and my thoughts (which echo those more eloquently set out by others not least the owner of this blog page) of the present and future state of the Criminal Justice system. If that introduction is not enough to put you off, may I thank you in advance for taking the time to read this.

Three weeks ago, I concluded my final speech in a murder at the Central Criminal Court and was allowed to tell the jury at the end of it that, because of a longstanding previous engagement, I would not be able to return to the case.

The longstanding previous engagement was my leaving the independent Bar to join a firm of International lawyers in the City of London as a partner in its White Collar Crime team.  I have now been working in that role for three weeks and it has given me an opportunity to reflect on what I have left behind. At a time when my good friend Max Hill QC is about to take up the reins as Director of Public Prosecutions, I thought it was an appropriate moment to put down some of my thoughts on what the past thirty five years have meant to me and my fears for the future of the Criminal Justice system.

I was called to the Bar by Grays Inn in July 1983, a moderately fresh faced 22 year old who had played too much rugby and done too little academic work to achieve anything approaching decent grades. Like many of my contemporaries my academic achievements would not even get me an interview at any moderate set of Chambers today. In those days my university and Bar School tuition fees were paid for in full by the local authority. I did not have to pay for the privilege of undertaking pupillage but neither was there any pupillage award. Its equivalent, so far as my pupil master was concerned, was his complete insistence that while I worked with him, I did not pay for lunch or the near daily outings to wine bars around Fleet Street. My pupillage consisted of following my pupil master around various Crown Courts in London with occasional trips to the High Court and working on a variety of criminal and civil papers for him when we were not in court.

As it turned out I was incredibly lucky. When I got to my feet, I was invariably in court every day and often conducting several hearings each day. Most of my first five months on my feet were spent in the Magistrates Court but there were also plenty of appearances in County Courts and in Employment Tribunals.

Three weeks before my tenancy application was due to be considered, my clerks managed to miss a fixture for a senior tenant at Inner London Crown Court – a multi-handed heroin supply case. When I returned to chambers at 11am from a quick hearing at Bow Street Magistrates Court, my senior clerk handed me the papers tied with pink tape, gave me my taxi fare (you can tell how guilty he felt!) and sent me on my way to Inner London. The Judge was, I understand, incandescent before I arrived but took pity on me when I stammered my apologies for my late arrival. However, he was not sufficiently sympathetic to agree to adjourn the case to the following day so that the counsel who had been instructed could undertake the trial. He did, however, grudgingly allow me twenty minutes so that I could speak to my client. My client’s first words to me in the corridor outside court and in the hearing of my prosecutor and a number of my co-defending counsel were “I don’t want no fucking Paki defending me.” I gulped and explained that I was all he was going to get.

My first Crown Court trial had not started in the auspicious way that I had dreamt of. Our relationship never really improved. The next two weeks were spent in a haze of panic, sleeplessness and endless writing and crossing out questions to ask and points to make. I had one point in my favour. The police officer who interviewed my client had neglected to write down that he had cautioned him in accordance with the Judges Rules (this was pre PACE). The more he insisted that he had cautioned my client the sillier he looked. Wise words from one of my co-defending counsel prevailed upon me in that, while I had wanted to make this cross examination last hours so that I would be seen as the new Rumpole of the Bailey (or, at least of Inner London), I only needed to ask half a dozen questions before resuming my seat. In the event, after two weeks my client was acquitted (I still suspect that the Jury felt sorry for him because of his representation) and because the Judge had heard of my difficulties with my client, he insisted on telling my client how fortunate he was in being represented by me.  Two senior members of my chambers were in court waiting to be called on and heard the Judge’s comments. My client didn’t wait to say thank you.

A week later, the Chambers Tenancy meeting took place and thanks in large part to what was reported by those who had been in court, I was offered a tenancy. I was taken for a drink by a senior member who was to become a good friend, Ian Goldsworthy. His advice (only half in jest): “If I were you, my boy, I would give it up now while you still have a 100% success rate.” Two days later and following a trial for shoplifting, my success rate had plummeted to 50%.

The next few years were incredibly busy. I would often spend weeks in the same court with a jury being sent out in one case and immediately starting the next one. One or two judges, I suspect, became heartily fed up with me. My speediest full trial was at Croydon defending a man charged with handling stolen goods. The jury were sworn at 10.35am and returned their verdict at 11.10am (thankfully one of Not Guilty). I was always accompanied by a solicitor’s representative. In many ways, the solicitor’s rep was the glue that held trials together, who could smooth difficulties between counsel and the defendant, who would make notes, be a sounding board and support the advice being given. Those who undertook this task were often people with very substantial experience in attending court with counsel. The vast majority of counsel today have never had that assistance and the system has suffered immeasurably in consequence.

My luck continued. For a long time, from the late 1980’s, I acted for the Police Federation representing Police Officers in discipline hearings and in criminal cases. All of those cases were challenging and some immensely so. But in the process, I represented police officers charged with criminal misconduct, perverting the course of justice, corruption and manslaughter. Some of those represented the highest profile cases of their kind and included the defence of the Guildford 4 and Birmingham 6 police officers and the officers charged with the unlawful killing of Joy Gardner. I represented a retired senior officer in the Macpherson Enquiry following the brutal racist killing of Stephen Lawrence and the grossly inept police investigation that followed. I represented police officers from Regional Crime Squads and the Flying Squad charged with the most serious allegations of corruption.

I was on the Customs List which meant that I split my time prosecuting and defending. I would defend policemen and prosecute suspected drug smugglers and VAT evaders. It was exciting and exhilarating work. It was always rewarding both professionally and financially. Unlike criminal practitioners today, I do not remember worrying about fees or about paying my mortgage or payments to my pension or healthcare or critical illness cover. I was able to save and invest some money. Please do not misunderstand me. I was not wealthy but neither was I struggling to make a decent living.

In 1996, I was asked to become Standing Counsel to the Customs and Excise and having decided to accept that appointment, I resigned from the then nascent monitoring scheme for Treasury Counsel at the Central Criminal Court.

From 1996 to 2001, I was a busy and, I think, successful senior junior undertaking specialised criminal work both defending and prosecuting substantial cases. Those cases were not without moments of substantial humour and embarrassment. On one occasion, I was being led in a trial at Leeds in front of Mr Justice Ognall. My leader was making a submission about which he had not spoken to me and which took me completely by surprise. My usual poker face was clearly absent as Ognall J, (like me, clearly struggling to understand the submission) said at one stage: “Oh Mr X, if only you could see the expression on your junior’s face!”

By now a substantial part of my work was in fraud cases and I would be instructed in cases by and against the Serious Fraud Office.

I took Silk in 2001, two months shy of my 4oth birthday. Again I was lucky. I still defended and prosecuted in the same sort of cases as I had as a Junior but now I was right at the sharp end. And I loved it.

I was one of a number of counsel who were part of a new record for trial length. Between 2003 and 2005 I defended in the longest ever trial in front of a Jury (June 2003 to March 2005) – the Jubilee Line fraud and corruption case. The prosecution had estimated that the trial could take 6 months. Those of us defending thought it could take 12 months. The Judge warned the Jury it could take 18 months. We lost one juror who became pregnant, another who was charged with some allegation of fraud and the trial eventually collapsed when, after 21 months, a further juror simply (and understandably) said he had had enough when the end was nowhere in sight.

I have enjoyed prosecuting and defending in fraud and corruption cases, prosecuting export control cases and defending insider dealing and health and safety cases. More recently I have prosecuted a handful of murder cases. I have had a rich and plentiful diet of appearing in court and advising companies and individuals facing a variety of criminal and regulatory issues.

But my time at the Bar is not defined by the cases that I have undertaken. It is defined by the sense of camaraderie that exists in every case with your co-defending and opposing counsel, the jokes that you make and that are made at your expense and the fact that, however hard you fight in court, you will always enjoy the company of those with whom you have been in fierce dispute when sharing a drink in the pub.

More than anything, my time at the Bar is defined by the friendships I have made. There are simply too many to list here and so I will confine myself to mentioning three people who have been special and inspirational to me and whom I count myself as truly fortunate to be able to describe as close and lasting friends.

Edmund Lawson QC was my mentor and dearest friend at the Bar from my days of pupillage until he died, much too early, at the age of 60 in 2009. He was prodigiously clever and hard working. He had fantastic judgment – almost his first advice to me was: “If you are thinking of doing something but it would make you blush then or if you had to tell someone you respected about it, don’t do it.” But he was much more than those things. Among other things he was modest, fun, generous always great company and someone who made everyone with whom he came into contact feel special. The most difficult speech I have ever had to make was when I delivered the eulogy at his funeral.

I first met Julian Bevan QC when he prosecuted my clients in the Guildford 4 police officers case. He was one of those people who always took his cases seriously but regarded his  own very considerable abilities with much disdain. He was the consummate jury advocate exuding calm and utter restraint. You would never guess that he had, moments before going into court, been a nervous wreck. One of my tasks as his junior was to be able to roll a cigarette for him when his hands were too shaky to put the tobacco in the paper. In one case, I remember vividly how he was able to completely turn a hostile jury by the sheer power of his advocacy, putting difficult propositions into simple words while generating complete trust in what he was saying. He was unbelievably generous to me, constantly recommending me to solicitors for difficult cases. He was and remains a constant source of delight. Now that he is enjoying retirement, I treasure the lunches and dinners when we meet and are able to gossip like adolescent schoolboys.

Ra Healy QC was one of my first pupils in 1992. In many ways, we have grown up at the Bar together albeit that she is rather younger than me. She became my pupil just at the time when my practice was blossoming. I knew I was going to like her when she told me early in her pupillage and with justified confidence that my analysis of some legal issue was completely wrong! In reality she is a proper lawyer and a great advocate. By rights, she should be arguing esoteric points of law in the Chancery Division or the Commercial Court. But she loves being a Jury advocate and she is terrifically good at it. Her sense of irreverence has not deserted her. A few years ago I was leading her in an insider dealing case. When cross-examining an expert on derivates trading, I mis-calculated a percentage difference. When the Judge looked quizzically at me and suggested that my maths was faulty, Ra piped up to say to Judge and Jury “Pah! Just as well he doesn’t style himself as a fancy fraud specialist!”  Over the years she has become a real friend and a confidant. She was the only one at the Bar whom I told when I was thinking of leaving the Bar. With Ra, I know that my leaving Chambers will not change our relationship.

So, the question that I have constantly been asked is: Why leave the independent Bar? The short answer is that I was given the extraordinary opportunity to work in an area in which I am comfortable but with completely new challenges and opportunities. It was, in reality, an opportunity that I could not sensibly refuse.

But it is more than that. Life at the Criminal Bar has become a grind and for many, an intolerable one. The cases that we do are becoming more and more complex. They are uniquely challenging and important for defendants, victims and the public at large. The vast majority of barristers and solicitors doing this work see no future in terms of personal development and financial security to make this a profession that can be enjoyed and sufficiently remunerative to be sustainable.

In the last few years I have seen talented junior members leave the profession to work for the CPS, SFO and FCA as well as joining firms of solicitors. In the main, that is not something that they have wanted to do but something that has been forced upon them.  Those who are doing well (and there are fewer of those than many would think) have seen such extraordinary structural changes in what we do that is done under the most difficult circumstances. Thus and by way of example only, even in high profile murder cases, it is extremely rare to see a solicitor’s representative in court supporting the advocate. It is not just that the fat has been cut from the bone, but huge chunks of flesh have been eviscerated in the drive to achieve economies.

It is positively debilitating as a Head of Chambers when you hear of stories of juniors who cannot afford a train fare to get to court because the CPS or the LAA has failed to make payments long overdue. These are not apocryphal or anecdotal stories. These are things I have seen first-hand.

You may argue that the profession has become too big and that it should be leaner. But I am not here speaking of the dearth of work but the simple fact that the work required to be done, the payments that are made for that work and the way that those payments are made, and often not made, cannot sustain this profession either in its present numbers or in reduced numbers.

However, this is only one part of the problem. The entirety of the Criminal Justice System is in crisis. Successive governments have cut funding to all parts of it, whether in terms of the Legal Aid budget, funds available to prosecutors, police, probation services and prisons. From detection, investigation, trial and all the way through to prison, community penalties and eventual rehabilitation efforts, no government in recent memory has shown any inclination of caring about any of it. And so, at every stage, despite the best efforts of all those involved in every stage of the process, mistakes will occur; short cuts will become common place if that has not already happened.

I have come to the view that unless there is a really substantial injection of funding in all areas of the system, the Criminal Justice system will simply collapse. It will be unrecognisable and will, in reality, be anything but Justice. And by that I do not mean for the direct participants in it but for Society at large. Members of the Bar, Solicitors  and their professional organisations have tried to warn governments of the consequences of under-funding for almost as long as I can remember. Our words have consistently fallen on deaf ears. Even the occasional promises to improve aspects of it have proved illusory. I have no confidence that the position will change.

And so, I am sorry to be leaving the profession but only to an extent. While I am excited by the challenges that I will face in the years to come, I am leaving this profession which has given so much to me with real foreboding. I hope (perhaps in vain) that, in this respect at least, I will be proved wrong.

Guest post: Some calculations on the new Advocates’ Graduated Fee Scheme

In the latest of a series of guest blogposts looking at the consultation on the proposed new Advocates’ Graduated Fee Scheme, a contributor has offered the following calculations and comments.

 

Dishonesty

For dishonesty offences (category 6), we propose increasing the basic fees for trials, guilty pleas, and cracked trials:

  • in band 6.1 by around 5% (meaning, for example, that the basic trial fee for a leading junior would increase from £12,000 to £12,675);
  • in band 6.2 by just over 50% (meaning, for example, that the basic trial fee for a leading junior would increase from £7,500 to £11,440).; and
  • in band 6.3 by around 40% (meaning, for example, that the basic trial fee for a junior would increase from £2,000 to £2,825).

 

Band 6.1 is frauds over £10,000,000 or 20,000PPE. Band 6.2 is frauds over £1,000,000 or 10,000PPE. Band 6.3 is frauds over £100,000.

I have defended one Band 6.3 (that became a 6.2 by virtue of PPE) in 8 years and do 6.1s and 6.2s based on monetary threshold every NEVER. Those increases are also for leading juniors –  I have never been led never mind led anybody else. The frequently encountered frauds are category 6.5 (< £30,000) and are currently worth £325 on a G plea at PTPH; £450 if you manage to persuade the court to sentence on another day.

 

Drugs

For drugs offences (category 9), we propose increasing the basic fees for trials, guilty pleas, and cracked trials:

  •  in band 9.1 by just over 15% (meaning, for example, that the basic trial fee for a leading junior would increase from £7,500 to £8,700); and
  •  in band 9.4 by just over 30% (meaning, for example, that the basic trial fee for a junior would increase from £2,000 to £2,625).

 Band 9.1 is 5000 PPE or 5kg of cocaine or heroin (for when you’re representing Scarface or the Taliban), 10,000 ecstasy pills (10,000 Es? The “Madchester” scene was the early 90’s, Shaun Ryder…) or 250,000 LSD tabs (not even Keith Moon, The Jimi Hendrix Experience and the Rolling Stones combined used that much. When did you EVER do an LSD case? 1968?). This increase is also for leading juniors only.

Band 9.4 is 1,000 PPE or 1kg of heroin or cocaine (more likely to be encountered by practitioners in your regional conspiracy cases).

However the standard drugs cases we regularly encounter that have less than 1000 PPE and involve a Kinder Egg’s worth of class A or < 40kg of cannabis (yes, <40 kg) attract no increase above the current £400 for a guilty plea and sentence on the same day.

 

Junior advocates

For junior advocates, both the junior bar and solicitor advocates, we propose:

  • increasing the basic fees for trials, guilty, and cracked trials in standard cases (band 17.1) by almost 20% and the daily refresher fee by more than 15%.

 Thanks, so my guilty plea to having an offensive weapon/blade or either-way burglary now gets a massive £55 increase on a guilty plea at PTPH from £275 to £330.

  • increasing the basic fees for trials, guilty pleas, and cracked trials in a range of other offences bandings, including bands for dishonesty offences (category 6) burglary and robbery offences (category 11), firearm offences (category 12), other offences against the person (category 13), exploitation and human trafficking offences (category 14) and public order offences (category 15)

 See Table 7, Table 8 and Table 9 on page 28 for the proposed increases to cases we encounter more often:

  1. Section 47 ABH, threats to kill, s.20 GBH/wounding (all category 3.5) currently attracting a basic fee of £600 or £300 for a guilty plea at PTPH; proposed increase to basic fee of £675 or £337.50 for a guilty plea at PTPH.
  2. Frauds of <£30,000 (6.5) or <£100,000 (6.4) currently attracting a basic fee of £650 and £750 respectively; proposed increase to £800 and £1000 respectively.
  3. Indictable burglary offences (Category 11.2 only; currently a basic fee of £675 or a guilty plea at PTPH attracting £340; proposed fee of £750 or a guilty plea at PTPH attracting £375 [G plea being 50% of the basic fee – see page 15 paragraph 60].
  4. “Other offences against the person” (Category 13) is your false imprisonment/kidnap; currently basic fee of £1300, guilty plea at PTPH of £650; proposed increase to £1460 or £730 for a guilty plea at PTPH.

 

Moving several offences (harbouring an escaped prisoner, the intimidation of witnesses, the intimidation of witnesses (sic), jurors and others, and assisting offenders) out of the standard cases band at 17.1, and into the offences against the public interest band at 8.1, with the basic fees for trials, guilty pleas, and cracked trials in these cases increasing by more than 100% as a result

 Good, but how often do you do these? Just one example; In 2016-2017, the annual NOMS Digest figures showed only 4 escapes from prisons, 3 from NOMS prisoner escorts and 8 from contractor escorts making a pool of 15 possible opportunities for somebody to commit the offence of harbouring an escaped prisoner that year unless they had a vacancy in their back bedroom for somebody who remained at large from the year before…

 

Increasing the fee for ineffective trials from £300 to £350, an increase of more than 15%

 Some courts are renowned for clinging onto trials even when the wheels are coming off. We have all experienced courts that are willing to proceed in absence of the Defendant or force the Crown, when they are unable to secure witness attendance, to accept pleas to lesser offences all to avoid an adjournment and the consequential effect on MOJ statistics.

 

Increasing the fees for appeals against conviction by 20% (which would mean, for example, an increase from £250 to £300 for a junior).

 Good news for new starters.

 

And finally, we propose implementing a 1% increase to all fees for cases with a Representation Order granted on or after 1 April 2019

 £1.25 increase to my sentence fee (assuming I don’t get sentenced the same day I plead) and not enough of an increase to cover the cost of a cup of tea from the court canteen.

 

Guest post by Francis FitzGibbon QC: A response to Michael Turner QC on Advocates’ Graduated Fees

Another former Chair of the Criminal Bar Association, Francis FitzGibbon QC, writes in response to this week’s guest post by Michael Turner QC.

 

This is my reply to Michael Turner QC’s post. He doesn’t seem to have read the first ‘Monday Message’ by Chris Henley QC, the current Chair of the Criminal Bar Association.

Dear Mike

Having known you for over 30 years, since I was a pupil and you were a kind and generous junior criminal tenant at Cloisters, I am saddened and angered by your mean-spirited and ill-informed attack in the Secret Barrister’s blog on your successors as Chairs of the Criminal Bar Association. It calls for a public as well as a private reply, so I am going to put this letter in the comments below your post.

You resort to gratuitously and deliberately offensive personal comments: like a bad advocate or a third-rate politician, masking the feebleness of your argument. And you don’t even have the courage to name those who you regard as having failed the profession. ‘Willing to wound but afraid to strike’ sums it up.

On the substance, such as it is, you are perpetuating a false and dangerous ‘stab-in-the back’ narrative. The Bar leadership achieved genuine progress in the drawn-out AGFS negotiations. For all your fighting talk at the time, by how much were legal aid fees increased when you were Chair of the CBA in 2012-13?

You complain that there was no judicial review of the AGFS proposals: what decision or action by MOJ do you regard as being so flawed that a JR would have been feasible, let alone successful? I don’t see how an increase in the budget, following years of negotiation and an agreement, could be susceptible to judicial review. Have you considered the costs implications for the CBA and its members?

There was no question of the Bar taking an unfair advantage over the solicitors: remember that HCAs will benefit from the increased fees and their firms still retain the benefit of claiming litigator and advocacy fees for the same case.  If this is your attempt to curry favour – good luck.  Their battle with MOJ was different from ours. They were faced with an actual cut – we had a redistribution of a stable budget to negotiate, and ended up with an increase. The reason for the proposed LGFS cut was that the inflation of PPE claims by reason of increased volumes of ‘pages’, and the Napperdecision, blew a big hole in MOJ’s budget. Very different considerations applied to AGFS, as you should know.  If you can think of a principled basis for continuing to use page counts as a basis for calculating fees, I’d like to know what it is. There is no reason – and you give none – for reading the MOJ’s failures over LGFS across to AGFS. You are too smart to subscribe to infantile conspiracy theories – I hope.

You also need to understand that this was a negotiation – the sort of thing that your models in the trade unions have been doing for decades, in the interests of their members. That means give and take. You may regard compromise as a dirty word, but that’s what responsible people do.

Your apparent prescription – belligerence, divisiveness, sub-Churchillian rhetoric – is ill-suited to such negotiations. The Bar rejected it in a democratic vote – narrowly but nonetheless. The arguments on both sides were exhaustively laid out before a sophisticated electorate. Pragmatism won the day. Demanding the resignation of the current leadership, after the vote and three days into their terms of office, is nothing short of ridiculous.

No one says the settlement is perfect or the last word on the subject. We will see the true impact of the new scheme in the coming months, and we should not prejudge it. Your intervention – nasty, ill-informed, but mercifully short – does nothing to advance the Bar’s cause. And despite your disclaimer, it stinks of sour grapes.

I hope you will think better of what you have written. It is unworthy of you. You risk becoming an embarrassment to yourself.

Yours ever

Francis

Guest post by Michael Turner QC: Advocates’ Graduated Fees – Where are we now? Up the creek

Michael Turner QC, former Chair of the Criminal Bar Association, writes regarding the new Advocates’ Graduated Fee Scheme. 

 

Much of what I would wish to say has been more ably put by Polly Toynbee in this recent article.

However, now that the cuts under the new Advocates Graduated Fee Scheme are beginning to bite, it is worth looking at what they actually mean. I set out only some examples of payment under the new scheme below:

 

Multi-handed Violent Disorder – up to 10,000 ppe + CCTV evidence

Brief fee: £750 (including all prep, cons and day 1 of trial)

Refresher: £400

 

Multi-handed conspiracy to GBH – up to 10,000 ppe + CCTV evidence

Brief fee: £1,000 (including all prep, cons and day 1 of trial)

Refresher: £500

 

Multi-handed conspiracy to Kidnap/False Imprisonment – up to 10,000 ppe + CCTV evidence

Brief fee: £1,300 (including all prep, cons and day 1 of trial)

Refresher £500

 

Child Cruelty/Child Neglect – up to 10,000 ppe, regardless of complexity, regardless of expert evidence on both sides

Brief fee: £750 (including all prep, cons and day 1 of trial)

Refresher £500

 

s20 GBH; Threats to Kill – up to 10,000 ppe + CCTV evidence

Brief fee: £600 (including all prep, cons and day 1 of trial)

Refresher: £325

 

Assisting an offender (even when your client is on the indictment in a murder trial but only charged with this offence) – up to 10,000 ppe + CCTV evidence

Brief fee: £550 (including all prep, cons and day 1 of trial)

Refresher £300

 

Some of these fees might increase modestly when the scheme is revised this autumn but these are the fees that we will currently receive if we accept these cases. Maybe more importantly, it was a mantra of the latest action that in taking the stand we were, we wanted to save the legal aid system as a whole. That cry was dropped almost as soon as it was uttered and did certainly not feature as part of the negotiations.

Whilst we were making our own ridiculous deal with the Government and thinking yet again we had got one over on our sister profession, they were taking the Government to Court. And guess what? They won.

Whilst we have given away the 10,000 page count they retain theirs.

Why did the Bar Council or the CBA not take judicial review proceedings, one may well ask. I am afraid I have not got the answer. I have asked them to publish any advice they had on the matter, however. That presupposes they sought any. To many of us this now an open wound as we were crying out that no negotiations could be continued and certainly not concluded until the Government revealed their figures. Well once again, when that stance has been challenged the court has wholeheartedly agreed.

In times gone by, when our leaders had made such a hash of things they would have hung their heads in shame and resigned. Taken the honorable way out. Not a bit of it; they prance around like the Emperor in his new clothes.

Do our venerable leaders have any idea how to rectify what has been given away so readily ? I expect that the answers will come on the back of a postage stamp, if at all.

This is not written as an “ I told you so piece”, but more to lay down the gauntlet to those who now lead us to suggest where we might acquire a paddle, more accurately two 90 horse power engines.

 

Michael Turner QC