Guest post by Laura Hoyano: Terminology does matter: ‘believe the victim’, investigative mindsets and unlearned lessons from miscarriages of justice

I am delighted to host this guest blogpost by Laura Hoyano, a barrister and Senior Research Fellow at Wadham College, Oxford.

 

On 18 December 2014, Detective Superintendent McDonald of the Metropolitan Police (MPS) declared to the media that ‘Nick’ had made “credible and true” allegations of child murder and horrific abuse against a deceased Prime Minister, current and former MPs, Peers, a Home Secretary, Heads of MI5 and MI6, and a D-Day hero and head of the armed forces. On 22 July 2019, ‘Nick’, now named as Carl Beech, was convicted of 12 counts of perverting the course of justice and one count of fraud, and sentenced to 18 years’ imprisonment. Irreparable damage was done to those wrongly accused and subjected to a deeply flawed investigation. As more of the unredacted review of Operation Midland of retired High Court Judge Sir Richard Henriques has been published, we know more about how this débacle came about. But have the lessons been learned?

This description of ‘Nick’s’ complaints was planned (Henriques [2.4.9]). DSU McDonald made his declaration without having read any of his interviews or blogs ([2.4.9 response to MPS]), which showed “gross inconsistency” ([2.4.14]).

 

The genesis of the “belief” directive

McDonald justified it on the basis of MPS Special Notice 11/02 “Principles of the Investigation of Rape and Serious Sexual Assault”: “It is the policy of the Metropolitan Police to accept any allegation made by any victim [sic] in the first instance as being truthful. An allegation will only be considered as falling short of a substantiated allegation after a full and thorough investigation.” [quoted by Henriques [1.21]).

The 2002 Notice was issued against a background of justified concern about the high number of sexual assault allegations being ‘no-crimed’ with little or no investigation. A 2014 Report by Her Majesty’s Inspectorate of Constabulary found that of the 1,077 reviewed decisions to ‘no-crime’ a reported rape, 220 were incorrect; in the worst forces, more than two-fifths of rape no-crime decisions were wrong ([7.70]-[7.71]). HMIC recommended that for recording all forms of reported crime – notwithstanding that only 6% of errors could be attributed to the ‘victim’ not being believed ([7.75)] —  the “presumption that the victim should always be believed should be institutionalised” ([1.31]).

 

Recording and investigating rules become conflated

Guidance for Operation Hydrant (Nov 2015), a hub which co-ordinates the investigations of non-recent sexual abuse allegations against other prominent persons and institutions in England & Wales, stated that “[t]he focus of the investigation is on proving or disproving the allegation against the suspect, and not on the credibility of the victim. Investigators will need to consider issues relative to the victim’s credibility but this should not be the primary focus of the investigation.” This injunction is contradictory, and even non-sensical when the only evidence is an accusation and a denial. The guidance was republished in this form in Nov 2016, after Henriques; it is under review, but only in Sept 2019.

 

Henriques’ demolition of the ‘belief’ directive

Henriques provided a devastating critique of the ingrained terminology of victimhood and belief which tainted the police’s approach to ‘Nick’ during Operation Midland [para 1.23]: “a starting point that eliminates doubt has the hallmark of bias”, striking at the very core of the criminal justice process, which “has and will generate miscarriages of justice on a considerable scale” ([1.30], [1.31]). He found “plain evidence” that “an instruction to believe complainants has over ridden [sic] a duty to investigate cases objectively and effectively” ([1.25]), and that “a major contributing factor” in the many police failures in Operation Midland was the “culture that ‘victims’ must be believed” ([2.3.8.58]).

 

Responses to the Henriques Review

The College of Policing commissioned from Assistant Commissioner Beckley (MPS) a comprehensive and thoughtful Review into the Terminology “Victim/Complainant” and Believing Victims at the Time of Reporting(Feb 2018).  AC Beckley observed that “[i]t is not at all surprising that, for officers and staff, “believe” and “belief” has leaked into the wider investigative environment” ([8.4]), and concluded that “maintaining a stance involving believing victim accounts, however limited, has potential to undermine the legitimacy of the process” ([8.6]).  The result was a clear recommendation from the College of Policing that whilst the term ‘victim’ should be retained, the  Home Office should amend the crime recording counting rules to remove the words “The intention is that victims are believed” to be replaced by “The intention is that victims can be confident they will be listened to and their crime taken seriously”. Training materials would then be reviewed to provide guidance on “how accounts (including initial accounts) can be clarified, tested and appropriately challenged in the most supportive and explanatory way possible” ([Beckley [8.10], [8.12]).

The Home Office rejected this considered view in September 2019, retaining the controversial wording in the Crime Recording General Rules whilst adding (in italics):

“The Standard directs victim focused approach to crime recording. The intention is that victims are believed and benefit from statutory entitlements…. This seeks to ensure that those reporting crimes will be treated with empathy and their allegations will be taken seriously. Any investigation which follows is then taken forward with open mind to establish the truth.”

The diktat to ‘believe the victim’ appears throughout the Standard as a “presumption”, eg paras 3.2, 3.5, 3.8.

The 2019 edition of the draft guidance for Operation Hydrant repeats this advice to Senior Investigating Officers, claiming, rather anxiously, that it is “entirely consistent with the approach that should be taken at the outset of an investigation into non-recent child sexual abuse and acknowledges the need to gather all evidence, both towards and away from the allegation” ([1.2.3]).

So the inherent logical contradiction criticised by Henriques is now entrenched in this ‘two phase’ approach: how can an officer be required to “believe” the complainant, and then suddenly become objective and impartial in interviewing the suspect ([1.25])?

“Any policy involving belief of one party necessarily involves disbelief of the other party. That cannot be a fair system… That is a simple reversal of the burden of proof.” ([1.26], [1.27]) “The instruction foisted upon investigators to believe a ‘victim’ perverts our system of justice and attempts to impose upon a thinking investigator an artificial and false state of mind. If a judge were to direct a Jury to believe a complainant during evidence in chief, and only to question credibility thereafter, it would constitute a most  serious misdirection.” ([1.32]).

 

Rhetoric snags on legal duties

Moreover, the ‘belief’ injunction snags on (at least) six more protruding procedural nails for the police, from start to finish of an investigation:

  • their duty under the Criminal Procedure and Investigations Act 1996 Code of Practice para 3.5 to investigate *away* from the suspect is triggered at the complainant’s initial interview, yet the interviewer is instructed to “believe” the complainant in this and (presumably) subsequent interviews and in taking a witness statement (‘Nick’ gave 17 hours of recorded interviews over 6 months);

 

  • ex parte applications for search warrants give rise to a duty of candour to the court under Criminal Procedure Rule26(3), requiring a mindset of balanced scepticism in evaluating the consistency of the totality of the evidence (this duty was unlawfully breached in Operation Midland according to Henriques ([2.4.9 response to MPS], [2.4.47], [2.4.49], [2.4.51], [2.3.8.56]) and the district judge who issued the warrants, but not according to the Independent Office of Police Conduct);

 

  • files sent to the Crown Prosecution Service must identify and evaluate weaknesses in the prosecution case;

 

  • their common law duty to disclose any information which might assist the defence immediately arises if it would assist with the early preparation of their case including at a bail hearing (CPIA Code of Practiceparas 6.6, 7.1);

 

  • their specific duty to disclose any material casting doubt on the reliability of a prosecution witness, such as the complainant (CPIA Code of Practice para 7.3) and

 

  • their continuing statutory duty under the CPIA throughout the proceedings to disclose material to the defence which might undermine the prosecution case or assist the defence (CPIA s. 7A).

Henriques’ observation that “a genuine and truthful complainant has nothing to fear from a directive that prioritises investigation ahead of ‘belief’” ([1.35]) is unanswerable; a complainant is entitled to be treated with dignity and seriousness, but not to go unchallenged at any stage through probing questions.

It is inexplicable that the Home Office has rejected Henrique’s irrefutable and unqualified condemnation of the terminology of ‘believe the victim’ as impeding open-minded and impartial investigations. What greater evidence of this is required than Operation Midland?

The Rules should record plausible allegations for the narrow purposes of initiating investigations and quantifying police activity in various offence and geographic sectors. The College of Policing’s recommendation was correct: ‘belief’ is unnecessary for the Standard to be rigorous and effective. Investigative training must stress a neutral starting point, not expect officers to hold two conflicting mindsets. Otherwise mistrials will continue when police witnesses cannot defend the impartiality of their investigation under cross-examination, or refer to complainants as ‘victims’ whom they were required to ‘believe’ from the outset.

 

Laura Hoyano is a barrister at Red Lion Chambers, a Senior Research Fellow at Wadham College, Oxford, and a member of the Faculty of Law, University of Oxford. She represents the Criminal Bar Association on the end-to-end review of obstacles to the prosecution of serious sex offences being conducted by the Ministry of Justice and Home Office.

Guest post by Joanna Hardy: We need to talk about lunchtime

A few years ago, a poster was stuck up in the robing room at Snaresbrook Crown Court. There was to be a charity raffle.

The prize? “Win lunch with the Snaresbrook Judges!”.

This prompted much mirth. An unimpressed barrister scrawled beneath it “Second Prize: TWO Lunches”. Another quipped that they would rather eat their own wig. Counsel threatened to enter their opponents into the raffle for a laugh, hoping to inflict an hour of judicial caesar salad on those who had wronged them.

This was all light-hearted. Everyone knows the Snaresbrook judges are really rather nice and, importantly, they have a dining room. And actual cutlery. The dark days of 2012 are long behind us and we try not to mention them in polite company.

I thought about that raffle a lot yesterday. I was wrestling with a Crown Court vending machine to extract my own lunch. A Kinder Bueno and a carton of Ribena. This was my seventh day of Vending Machine Bingo at a court with no catering facilities save for a roaring trade in the rare and disgusting delicacy of refrigerated packets of crisps.

The slot swallowed my money, the machine rumbled into action, the metal coil jammed and my chocolate bar was stuck. I eyed the machine for size and wondered if shaking it might be considered professional misconduct. I recalled that more people are killed by vending machines falling on top of them than from shark attacks. I decided not to risk it and poured more money in. Two Kinder Bueno. Jackpot.

I glanced at the time. A quarter of lunchtime had passed. I needed to see my client in the cells, see my opponent to discuss some evidence, finalise a document for the jury, consider some recent disclosure, return a frantic call from my clerk and, time permitting, use the bathroom. Clock ticking, time tocking, I shoved the chocolate into my mouth. “A speed lunch! The finest tradition of the bar”, a senior barrister bellowed at me as he commenced his own futile battle with the evil vending machine.

It was then I realised – we need to talk about lunchtime.

If a speed lunch, or no lunch at all, are traditions of the bar then they are bad ones. Like all traditions, we ought to occasionally ask ourselves why we are still doing them.

If the Wellbeing initiative is to conquer anything then her first victim must be the macho work culture that led us here. The at-all-costs attitude that shames people for basic activities like having a cup of tea or gathering their thoughts. The creeping obsession with sitting statistics and an unquestioning devotion to the “effective use of court time” has a price. Are we, as counsel, willing to pay it?

Because one thing we do find time to swallow is the frustration of being asked to perform a lunchtime miracle at a court that has closed the canteen, hired no recorders, broken the boiler, locked all the conference rooms and sealed off half the toilets. It is our shoulders that bear the loss of lunch, rest, and wellbeing to keep the show on the road, to keep the statistics high and to not keep anyone waiting.

As part of our Wellbeing revolution, we ought to now consider how we realistically structure the court day in the scorched landscape of cuts, closures and reduced facilities. It should be widely acknowledged that there will be trials and times when a longer lunch break, or multiple short breaks, are appropriate. Not always and not often. But for those trials where time is short, pressure is high and facilities are lacking we must call it out. We should be bold enough to insist that heavy tasks are undertaken within court hours and brave enough to recognise there is no shame in needing a rest. Justice is not a race and it will not be achieved by a drained, exhausted profession. We ought to now insist that the “effective use of court time” includes provision for us to remain effective too.

Joanna Hardy is a criminal barrister at Red Lion Chambers. She tweets @joanna__hardy

Guest blogpost: Why we should accept the deal

I am pleased to host this guest post from a junior member of the criminal Bar, who argues why we should vote to accept the deal arising out of the Criminal Bar Association’s negotiations with the government.

I’m a junior criminal barrister. I’m not a member of the CBA Executive, nor associated with them. This post was drafted to help me decide how to vote; perhaps it will be useful to you too.

I am deeply concerned that we are not looking at the whole picture. There are so many other concerns intimately wrapped up in how and how much we are paid for a case; ultimately a sense that justice, despite our best and most valiant efforts, is not being done.

We must look more broadly when we consider this deal, and so I publish this anonymous piece in the hope that my colleagues will also consider all the issues.

I am deeply concerned by what we already agree upon:

  1. Money for legal aid is not a vote winner. The public, parliament, and papers laud us as fat cats, leaving politicians to cut deeply the budgets of the MoJ and CPS. No department has lost so much, with so little uproar, that affects so many people. Just today, we see stories of the families of the London Bridge terror denied legal aid, and Sir Brian Leveson warning that the Justice system is on the brink of collapse. Yet there are no protests, no angry marches – no public backing at all. Compare this to the doctors strikes of 2015. If there is a PR battle over legal aid, we are in full retreat; our villages burning, and our castles broken.
  2. Cuts have consequences. Courts are closed, Recorders are told there is “not enough work”, and cases are now being listed well into 2020 – at the same time, fewer criminal are caught and prosecuted, and police numbers are at record lows. We know that the impact is that there are both miscarriages of justice, and that prosecutions are not brought while crime rises. Without cases being brought to court, there is no work for barristers to do. Without cases being brought to court, the guilty walk free.
  3. The CPS has ignored our complaints for too long. We are not paid for key parts of our jobs – the hours of preparation required, the endless chasing for disclosure, and reviewing unused. These are vital – not just to prosecute and defend effectively, but to uphold our ethical duties to ourselves, our profession, and the administration of justice.
  4. The only promise we have is a review of AGFS. No new money has been promised. No new principles have been published. The only promise we have is a review.
  5. Fees are not being paid when honestly earned. The CBA’s Monday message has regularly highlighted appalling conduct from the CPS, with civil servants deliberately setting out to deny fees and ongoing work.
  6. Fees have not increased for 20 years. While we are not mathematicians, even a cursory knowledge of numbers will tell you that 20 years of static fees is a massive real term pay cut. Far from being wealthy, most juniors 0 – 2 years’ Call would be better off on benefits or working at McDonalds. Many leave the profession with back-breaking debt, their loans, credit cards, and parental patience finally exhausted. Those outside London fare better, it is true. But it is the future of the Bar who are leaving. Already we hear of the decrease in quality of advocacy – how will we sustain ourselves for the next 20 years? The next 50?

Here, our paths diverge. I believe there are 6 compelling reasons to vote for this deal, right now, as a tiny, incremental, step to safeguarding the future of the Criminal Bar.

  • Voting for this deal gives juniors an immediate financial boost from September 2019.Fees are not what they once were, nor does accepting this allow us to forget what rates used to be, but a 25-40% improvement will sustain junior juniors for a little longer. For senior juniors, this ameliorates the cash flow problems that many CC trials run into, with payment now made when a case ends but is adjourned for sentence. Day 2 of trial will be paid, and the start of trial will now be defined correctly, as the day the trial actually starts. It’s important to note that this is new money from the Treasury, not from the CPS budget. That money can, and will, be reallocated if we do not take it.
  • Voting for this deal results in a promise to review AGFS by November 2019. This review will focus on three areas: PPE, cracks, and unused material. Banking this deal now does not take away from the need to advocate, persuade, and push forward with the AGFS changes we need. Further, the AGFS review separates the money for AGFS from the overarching Criminal Legal Aid Fees review – rather than fighting over one giant pot, we can have a separate, focussed review of AGFS alone.
  • Voting for this deal acknowledges its interim nature and retains our power to strike. This is not the final chapter, the last word, or the end of the conversation. We were given 50% of what we asked for. The remaining 50% is constrained by the Parliamentary timetable, something that not even the most fearless of us would contend with. Banking this offer does not prevent us from taking future strike action, if the government’s promises are not kept.
  • Voting for this deal gives us time to get the public onside.This deal is portrayed as a doubling of fees– if we reject it, we will lose credibility and what little public support our most high-profile advocates have gained for us. As a profession, we have done a shockingly awful job of explaining why justice is the vital thread that holds the fabric of society together. While the UK’s highest circulation paper blasts legal aid, and another perpetuates the myth that all lawyers earn vast sums, we are losing the PR battle. We have been losing the PR battle for so long that we have to clamber out of the ravine, schlep across vast fields, and slog through the forests before we finally reach the behemothian mountain we have to climb.
  • Voting for this deal demonstrates political acumen. Changes to AGFS require parliamentary time. Where are those parliamentarians? On holiday. Until September. We cannot ignore the fact that who we are negotiating with matters; if, as is likely, there is a change of government and a change of leadership at the CPS and MoJ. We cannot guarantee that a future justice secretary (perhaps Mr Raab?) will be particularly endeared to the Criminal Bar. Taking this deal results in progress, and still leaves us our most powerful option – a full-throated strike – when or if future promises are not kept. Further, it allows us to plan strikes more carefully. We need a proper PR strategy. We need a hardship fund for juniors. We need a detailed protocol for the unavoidable ethical dilemmas. We need the backing of the regional chambers to not break the strike. We need the backing of senior juniors, of Silks, and of the entire Bar. This takes time to build.
  • Voting for this deal allow us to be united for the first time. We all have competing interests, we all are fiercely independent, and we all cannot own up to that – until we do, we will not succeed, either for ourselves or society. Those competing interests broadly split into 5 categories: pupils, junior juniors, juniors, senior juniors, and Silks. Many of those now calling for action are those who stood by last time, and the time before that, and the time before that. We have long been content to pull the ladder up after ourselves, caring little for the most junior. You cannot claim unity while ignoring the issues of the most junior. You cannot claim unity when the future of the Bar are leaving.

 

We are not united

As a profession, we do not care that the most junior are struggling. For the last 10 years, low junior fees were seen as the “price to be paid” to ensure that work was brought into chambers for the most senior. Junior juniors were expected to be grateful to be thrown scraps of work, and told never to complain if you want to rise up the ranks.

Cash flow is a raging, pulsating anxiety in the minds of all juniors. Many have aged debts of £20,000, or more, on top of student loans. Rent does not wait. Bills do not wait. Travel must be paid. Those with 20 years’ experience forget that fees are the very same amount right now, while housing costs have increased by 400%. In 1998, the average UK monthly rent was £199.75– now, it stands at £934(and £1,602 for London). Those figures are typed correctly; we, the most junior, are expected to survive on the junior wages of 20 years ago, with today’s costs. Those who continue to expect the “price to be paid” will likely find that the price is the collapse of the Criminal Bar.

Making it to 10 years’ Call does not smooth the road ahead. With fee cuts taking hold in complex trials, many juniors have diversified their practice or taken secondments to stay afloat. Did those Silks and senior juniors need to diversify to pay the mortgage? Opportunities to be a junior on a serious trial are few and far between – some who manage it must do so for free, while still paying huge rents and bills. Being a junior on a trial is essential to grow and learn; without those juniors, who will prosecute or defend the alleged criminals of the future?

What of life at the Bar? The world outside has changed; look at Google’s luxurious officesor the 32-weeks maternity pay at Accentureto recognise how seriously the rest of the world takes wellbeing. At the criminal Bar, we expect women to choose between family and career. At the criminal Bar, we expect you to be in court or in hospital.At the criminal Bar, we expect you to witness the full uncensored horror of humanity, with no counselling, therapy, or support. Would anyone in the commercial world accept this? The grinding hours? The unpredictable commutes?

Finally, we arrive at the peak of the issue. We so often work for free. So much of our time and effort is unpaid. The juniors work for free to benefit the seniors. The juniors work evenings and weekends – unpaid – to prepare cases. We cannot build a career, a justice system, or a life on thin air. Until everyone, everyone, agrees that this is unacceptable, we cannot fight this properly.

What we, the most junior, are asking for is simple:

  1. To be properly, and quickly, remunerated in line with our skills and the complexity of the case.
  2. To talk honestly and openly about unpaid work, work paid months late, work not paid at all, and the demands it places on us and our families.
  3. To agree on how the system should reflect the frankly skewed nature of London living. Does the Bar even have a future in London?

 

The path lies ahead, yet untrodden

Those who path calls differently, for action – what are your goals? Your objectives? What will action result in? How much money is enough? What plans do you have to protect juniors who will inevitably struggle? How many of your solicitors have you persuaded to buy in to action?

Those who yearn for action have no business going on strike without being clear, and realistic, about what you want for your livelihood and profession. Otherwise, you will repeat the vicious circle of the past – brief action followed by swift and total capitulation. Again, the most junior will lose.

The brutal, broken reality is that we do not, right now, have the strength to fight. Our junior juniors will crack under the financial pressure and break the strike or leave entirely. Our reputation and public image will sink lower. Our chambers and colleagues are not prepared for sustained action.  To make a mistake now will compel even more to leave.

Those that leave are the Bar’s future. They are the Judges that will never judge, the Silks that will never take it. They are the advocates who are not being fiercely advocated for, by those who have already made it.

Guest Blogpost by Greg Powell: A brief history of legal aid

I am delighted to publish this guest blogpost by Greg Powell of the London Criminal Courts Solicitors’ Association (LCCSA). There is presently a lot of discussion in the media about legal aid, and in particular the rates paid to lawyers under legal aid. This analysis is vital to understanding how we have arrived where we are, and is essential reading for anybody reporting or commenting on the dispute between criminal justice professionals and the government concerning legal aid.

 

  1. The Expansion of Legal Aid

1.1      In the 1970s and 80s there was a large expansion of Legal Aid which was at that time essentially an adjunct to the other work of solicitors firms, there being some 7000 suppliers, Legal Aid work sitting alongside normal commercial work like conveyancing, probate and contract.

1.2      Administered by the Law Society the hourly rates were not as high as those prevailing in the private client and commercial world but nevertheless were related to the cost of time.

1.3      The cost of time was calculated by assigning a target for chargeable hours for each fee earner, usually 1200 hours per annum, a notional salary for solicitors and partners and dividing overheads by the numbers of fee earners to find out applicable hourly rates.

1.4      Provision was made for lower hourly rates for travel and waiting, a problem that has always been apparent in legal aid work which is often not office based but court based, and in the case of crime, prison and police station based, with the consequence that large parts of chargeable hours were consumed in lower paid hourly rates. Fixed fee schemes containing ‘rolled up’ time spent travelling and waiting ‘hide’ the true costs of cases within their simplicity.

1.5      However, in terms of cost benefit it is also to be noted that the organisation of courts and the interaction of advocates and the tribunal and particularly the flow of work provided by ushers in Magistrates Courts is highly efficient; face to face interactions provide courts with good quality information upon which to base decisions.

 

  1. A Changing Supplier Base

2.1      As Legal Aid expanded the Law Society administration was unable to cope. Delay in payment became a well-known public fact and eventually the decision was made to move the administration of Legal Aid away from the Law Society into the hands of an independent Legal Aid Board. This was at inception essentially a cashier organisation but it also had within it a desire to promote and implement policy.

2.2      What had also happened is that a number of more specialist Legal Aid suppliers had come into being whose main purpose was to provide Legal Aid services in the community, usually both civil and crime covering the full range of civil, family law, welfare benefits, housing, mental health and immigration. In essence a numerous and independent “legally aided” sector was a by-product of the expansion of funding and scope.

2.3      It had been, and remains, a major component of this system that the supplier base provides its own capital in order to set up organisations, provide premises and employ people.  In this sense it is a free market where entrepreneurs have invested their own capital identifying gaps in the market and establishing businesses.

2.4      There were parallel changes in the private solicitor marketplace as conveyancing lost its fixed fee structures and in the more successful private client firms partners often became dissatisfied with low hourly rates of return in legal aid work and began shedding that work, a process accelerated from the 1990s as Legal Aid rates became frozen and eroded by inflation. Lord MacKay decided to abolish his Legal Aid Advisory Committee.  The current panel constituted to assist in the review of criminal Legal Aid is a distant echo of that forerunner.

 

  1. The Rise of Contracting

3.1      The Legal Aid Board brought forward the idea that suppliers would be contracted to supply Legal Aid services coupled to the idea of a quality mark. This had some basis in academic research (see the book, Standing Accused by McConville and Others which lamented poor standards in criminal work).

3.2      Other major structural developments were the establishing of the Crown Prosecution Service following major public scandals involving forced confessions by police officers and also the technological development of tape recording which allowed a new mode for conducting interviews.  The 1984 Police and Criminal Evidence Act also introduced the idea of the delivery of rights by independent Custody Officers whilst extending police powers.  One particularly significant development was the decision to allow the police 24 hours in which to detain a person before charge.  This was fiercely debated with 12 hours as a viable alternative but this was rejected and 24 hours underpins the subsequent development of a lackadaisical approach to the investigation whilst the person is in custody. Providing access to legal advice in the Police Station was a major costs driver.

3.3      Initially contracting was to be voluntary and was expressly said not to be a policy which would become compulsory.  Of course it did and very unfortunately contracting become a major dividing factor, there being separate crime and civil contracts.  This rupture of services had profound consequences on the market causing firms to choose between spheres and although many continue to operate both there was also a large bureaucratic burden.  That burden was another factor in private client firms continuing to abandon Legal Aid services.

 

  1. A Rich Ecology

4.1      What the entrepreneurial activity had created, in the context of the expansion of Legal Aid to meet need, was a rich fabric of firms and services. We have sometimes likened this to the ecology of a rainforest, diverse, valuable and especially establishing in local communities a variety of client choice and a feeling amongst clients, usually poorer and working class, that they had access to justice through “their” solicitor.

 

  1. Reform and the Market

5.1      The foundation of reform was a myth, that Legal Aid expenditure was “out of control” accompanied by a sinister subtext that the forces driving expenditure were the supplier base improperly exploiting Legal Aid. Academic research showed that the driving factor was in fact the rise in need and volume of cases and a tsunami of legislation, especially in crime.  Nevertheless this myth took hold.

5.2      The Paradox in the early 2000s was that the government was substantially investing in workers compensation schemes and rightly so, but whilst it spent billions on the one hand in those schemes it sought to cut Legal Aid expenditure by millions on the other.

5.3      Lord Carter proposed a crude simplistic trade off of volume for price a theme that has bedevilled so called “reform” ever since and dominated proposals for change.

5.4      The proposals that came forward were administratively complex and essentially foundered as they were unable to resolve contradictions between rewarding incumbent suppliers with market share and providing opportunities for new entrants, whilst also hopelessly confusing the nature of the market with other markets where there are multiple opportunities for suppliers to bid for work.

5.5      This is worth spelling out.  The Ministry of Justice is a single purchaser of Legal Aid services.  It sets prices.  The suppliers when they bid for work (however defined) face an existential crisis.  If their bid fails then they are out of business.  There is no alternative place for them to bid.

5.6      In other words this Legal Aid market for services is not like, for example, the NHS, which procures across a vast organisation for multiple services offering bidders the opportunities to bid for difference sizes of contract in different geographical areas in circumstances where, therefore, the failure of a bid is not terminal to their business.

5.7      It was an historic strength of the system that it was open. In other words there were no limits on the number of contractors and sufficient prices allowed a degree of entrepreneurial activity to fill in gaps in the market place. As prices have declined so has that activity.  However there are two other benefits from the way in which this market has operated.

5.8      A key element to successful entrepreneurial activity has been establishing reputation and this has been driven by the other key element of client choice.  The introduction of the Duty Solicitor Schemes enabled firms to source a more “captive” work stream and gain clients through duty solicitor activity in courts and police stations. Nevertheless it still remained and remains an important element for all firms that the quality of what they do is sufficient to draw that client back to them or achieve word of mouth referrals. In this way client choice drives quality.

5.9      Unfortunately restrictions on the ability to transfer Representation Orders have led to a decline in consumer/client choice.  There is a consumer paradox for people who are initially arrested, represented by a duty solicitor and bailed or released under investigation.  At that stage, pre-charge, there is no Legal Aid available and they are actually free to make enquiries in the marketplace to find out if the solicitor they have accessed accidentally as the duty solicitor is the person best placed to represent them or whether they could find an alternative with better reputation. In this way consumers are free to move around within the market.

5.10    However, if for example, a person is arrestedfor murder, has a duty solicitor and is remanded in custodythey then find it very difficult to change due to the rules which to this degree undermine an aspect of client choice.

5.11    Contracting has also restricted the market by restricting the opportunities for new entrants to the start of each contract cycle as well as being a system which has severed civil and criminal services. The most startling reform that could be contemplated would be ending contracting completely.  This would be a return to a pre-contracting era where all firms needed to do was to keep within the rules in respect of claims and payments.  In other words that the work was properly done and claimed.  Such a more open system would certainly allow new entrants and with other incentives and structural changes, allow firms to re-establish mixed practices of civil and crime and provide more local integrated services needed to meet the vast unmet need.

5.12    It is not difficult to be imaginative about what is possible in the Legal Aid market.  The Legal Services Commission as the successor to the Legal Aid Board had a worthwhile initiative through which firms took on trainees who were subsidised directly by the LSC in return for a contractual commitment to stay in Legal Aid work for a period of time.

5.13    Legal Aid as a bespoke subject ought to be an option within law school courses and participation can be leveraged through grant, the relief of debt and payments to suppliers to provide subsequent training contracts.

 

  1. AFundamental Problem

6.1      Underpinning access to justice are the rights to a fair trial and equality of arms between the parties.  Crucial is the adversarial system working properly to ensure that the court has before it all admissible evidence in order that the fundamental objective, which is the pursuit of truth, is achieved.

6.2      No one is facing up to the work, time and costs issues posed by the explosion of electronic material.   It simply means that in cases where it is relevant (and there is often a contest about what is and what is not properly served as evidence or unused material) the evidence has got be examined and deployed by prosecution and defence.  These are tasks which have made the process of litigation more time intensive and more costly.  This is for the police as investigators, the prosecution as an independent prosecutorial body assessing the evidence and for the defendants. All require extra resources in the long term in a degree of magnitude to properly cope with the technological development.  There is no shortcut and it simply requires more money and acceptance that this will be a demand led system that cannot be contained with fixed “envelopes” of cost.

 

  1. The Erosion of Value

7.1      The above argument in relation to the explosion of electronic material forms a context for the major other issue which has been the erosion of value.  It is not possible for solicitors and counsel to continue negotiating around the same envelope of money being deployed for cases in new ways.  Inventing other proxies for value or combining proxies with time or combining other structures of payment such as standard fees, non-standard fees, higher-standard fees still has to account for both the explosion in evidence and the fact that current values have been eroded to a degree where the work is unsustainable.

7.2      That unsustainability is evidenced by the recruitment and retention crisis within solicitors firms conducting criminal work.  It is also evidenced by the almost complete separation of private client work and Legal Aid work within the solicitor’s profession and by the advancing age of the cohort of duty solicitors.

7.3      Research might also reveal a very similar pattern in relation to the ages of partners or directors of firms within the supplier base which is also similarly advancing. Career opportunities have been truncated by the short horizon of business, the uncertainty of profits and the lack of career paths.

7.4      One way of exiting is to the Crown Prosecution Service which now offers substantially better terms than are available generally within the defence community.  Another way of exiting is to simply abandon the work and take up different careers. For students with vast debt Legal Aid is deeply unattractive.

 

  1. Access toJustice

8.1      It was a by-product of the expansion of Legal Aid and the availability of firms within communities providing a range of legally aided services that many millions of people could buy into the ideathat there was a degree of access to justice.

8.2      Much is written about alienation, voices not being heard, and the unrepresentative nature of politics, inequality and the socially excluded. Legal Aid cuts, in particular LASPO, have formed a backdrop which has accentuated exclusion.

8.3      Exclusion also has direct economic consequences.  A family with less income because they are unable to challenge welfare benefit decisions live in greater poverty.  Children in greater poverty   are more likely to fail in the education system, often being excluded, more vulnerable to drift into gangs, crime and county lines drug dealing. Similarly challenging are living in conditions of disrepair, losing housing and the gross disruption of family life where there are cycles of imprisonment, alcohol and drug abuse and devastating adverse immigration decisions and deportation.  Many live and are brought up in deeply hostile environments and too often the inability of fathers to access contact and maintain parenting has potentially disastrous consequences.

8.4      Add to these other factors such as loss of youth clubs, social workers, and the pressure of schools to exclude pupils.  It is no wonder that the world of gang affiliation with its sense of identity and drug dealing giving access to otherwise unattainable riches is such a lure to young people and indeed older people involved in organised crime.

8.5      The extent of organised crime has been highlighted by the National Crime Agency in its bid for between £2-3billion to combat what it describes as a major threat to security and wellbeing.  Will that funding and these initiatives drive more cases into the Criminal Justice System?  The idea that more cases will arise which demand more resources stands in stark contrast to falling volume as a result of the debacle of the RUI stance adopted by many police forces in relation to the many thousands of people arrested.

8.6      What all of this means, including the review itself, is an extremely unstable environment for Legal Aid practitioners. Low margins make firms highly vulnerable to changes in case volume and case mix.  A two year “review” is irrelevant to the immediate crisis.    What is required is at least a short term injection of funds, the making good of the last 8.75% cut which was predicated on the manipulation of the supplier base producing fewer suppliers with higher volumes, which never took place, and which was in itself arbitrary and unfair.  What is also needed however are not only higher levels of remuneration, but an imaginative reworking of incentives and structure to support an independent legal profession and a degree of stability which would allow businesses to flourish whilst meeting need.

 

  1. London and its Hinterland

9.1      At over 650 square miles with the largest concentration of population in the country London poses particular problems for Legal Aid lawyers.

9.1      It is an area of higher cost. Those costs relate to the costs of business premises, higher wages and higher costs for employees for accommodation and travel.  In a recent Reed Business Support Salary Guide for 2019 an Office Manager in London is said to command a wage of £40,100.  In the East Midlands the figure £23,700 and the North East £29,200 and the North West £23,900.  In the South West and Wales the figure falls to £22,300.

9.3      Traditionally the particular costs base of London were recognised by additional London Weighting supplements on hourly rates.  There is a powerful case for the reintroduction of London Weighting within any newly devised scheme.

9.4      Another myth is that there was an oversupply of firms in London. This is not true and the number of firms is proportionate to the population.  This was established in passing by the KPMG report in the failed debacle of tendering Duty Solicitor Schemes.

9.5      London is the centre of political protest and government and inevitably public protest type crime tends to arise more often and so does financial crime attached to London being the centre of financial services.

9.6      A fundamental problems for practitioners has been the complete absence of planning.  There is no court near a police station which is near a prison, they are spread haphazardly. The system has developed without the slightest regard for efficiencies that might arise from locating services together.  Indeed plans to relocate remand prisoners only in Wandsworth, Belmarsh and Highdown, which is actually outside London in Sutton, would only exacerbate the problems.

9.7      Very large distances must now be traversed across London for defendants, ‘victims’ and witnesses and indeed all the participants in the court process.

9.8      The idea has been advanced frequently by the LCCSA for over a decade that there ought to be reform of the Duty Solicitor Scheme.  At present solicitors join two courtschemes plus associated youth court schemes but are allocated to as many as eight or nine 24 hour police station schemes depending on the location of their office.  This thins volume in any particular court.  Bringing the schemes into line so that solicitors are allocated two or three police stations schemes most contiguous to their office and the court schemes ought to produce a greater volume of work for firms in their local courts.

9.9      Incidentally scheme inflation, by which many more people joined each individual scheme, was a product of a policy decision by the LSC to automatically allocate all qualifying solicitors, depending on the whereabouts of their office to every scheme that was available.

 

  1. Opportunity or Threat? The Criminal Legal Aid Fee Review

10.1    The immediate impulse for the review was the promise to the Bar to review the AGFS arrangements.  That promise was then conflated with the existing idea of a review of the LGFS (no doubt more urgent from the perspective of the MOJ after the successful JR of their plan to cut £30M or so from the LGFS Scheme) and then in turn extended to encompass all fee schemes, police stations, magistrates’ courts and the VHCC scheme.

10.2    Three elements dominate legal aid fees for the last twenty five years. The erosion of fee structures by inflation.  The endless cuts to EVERY fee scheme. The hugely bureaucratic, unmanageable and failed ‘reform’ proposals encompassing Best Value Tendering, Price Competitive Tendering and 2 tier contracting of duty solicitors schemes and other similar debacles including VHCC and family contracts. The 2 Tier debacle was accompanied by a completely arbitrary 17.5% cut in fees.  What is extraordinary is the sheer scale of that cut; 17.5%, not 1.5 or 2% but this huge figure.  Subsequently 8.75% was restored after the failure of the scheme, still leaving practitioners with a completely arbitrary 8.75% cut.

10.3    The common theme has been an approach to Legal Aid as a ‘market’ (fundamentally misunderstood, see para 5.) to be manipulated with the sole objective of driving down price (cuts) encouraged by overtures from a handful of ‘larger’ suppliers who sought greater volume and market share.  In civil the hatchet of LASPO simply removed access to justice for millions of people and further disrupted and eroded the supplier base. .

10.4    What has been absent is any coherent view of Legal Aid based on principles of fair trial, equality of arms or access to justice through increasing the resource that enables people to believe they have the means (legally aided lawyers) to pursue their rights, that their stake in society and belief in its fairness, in the application of the rule of law to them, has meaning because they can rebalance the unfair advantage of ‘others’ who have the power (landlords, Councils, the DWP, insurance companies, the Home Office, Police) by instructing ‘their’ lawyer. This is the real context of rearranging fee structures; it is not an end in itself but only one component of policy that ought to have this enabling outcome. This Review perpetuates the division of crime and civil being confined to criminal Legal Aid fees when the reality is that legal aid services are accessed across lifetimes in multiple ways as need overlaps the civil and criminal boundaries.

10.5    That vision is entirely absent from this Review which is framed as the ‘right time to think more widely about the future of criminal legal aid schemes’, without any commitment to any funding increase, only to the ‘right level’ of legal aid provision. It is most likely to be a missed opportunity and actually another ‘cut’.  The ravaging of value by inflation will not be addressed by a permanent compensatory mechanism, and any ‘ambitious’  attempt to manipulate the market will yet again misread its reality and lead to JR and debacle.  Is this to be a moment (actually a year or two with continuing ministerial reshuffles) for reinvigorating access to justice (restoring the £1 billion about 1/800thof government expenditure) or another episode in the erosion of Legal Aid and its supplier base?

10.6    In the period 2004/2005 to 2019 Government Expenditure rose from around £400 billion to over £800 billion.  In that period removing £1 billion from Legal Aid was a political choice.  The courageous and correct political choice would be to restore access to justice by expanding the Legal Aid spend by £1 billion.

10.7    The complete absence of a commitment to restore funding levels and the absence of vision are depressing.  There is little to indicate that the trajectory of the history of Legal Aid will change.  Rather that the reality that will emerge will remain one of cuts, loss of services and more people who believe that justice is not to be found within the society in which they live.

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.

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