Guest post by James Chalmers and Ryan Whelan: Melanie McDonagh is plain wrong on “upskirting”

I am delighted to host a guest blog by James Chalmers, Regius Professor of Law at the University of Glasgow, and Ryan Whelan, an Associate at Gibson, Dunn and Crutcher LLP.

Readers may be aware of the events of recent days in relation to the campaign by Gina Martin to create a specific criminal offence to address “upskirting” (about which I wrote here). Last Friday saw the second reading in the House of Commons of the Private Member’s Bill introduced by Wera Hobhouse MP, and an objection to the Bill by Sir Christopher Chope.

The Spectator published a comment piece by Melanie McDonagh in which she wrote in support of Sir Christopher and against the merits of the proposed law. Here, two partners in Gina Martin’s campaign respond to that article. 

Upskirting is on the political agenda because of the tireless campaigning of Gina Martin, a 26 year old woman who was upskirted at the British Summer Time Festival last July. On Friday, to the shock of Parliament, Sir Christopher Chope blocked Wera Hobhouse’s Private Member’s Bill in support of Gina’s campaign.

After months of work by Gina’s campaign, Wera’s Voyeurism (Offences) Bill had earlier in the day been supported by the Government. With the Government on board it was widely expected that it would pass through the House and progress to committee stage, where details would be examined and amendments possibly made.

Sir Christopher put a spanner in the works by objecting to the Bill’s progress, a decision met with calls of “shame” from his Conservative colleagues. The disappointment and anger across the House – particularly among the Tory benches – was clear to see (and has been underlined by numerous subsequent tweets, and the Spectator’s own leak of Whatsapp messages between Tory MPs).

While the optics are poor, it is not fair to characterise Sir Christopher’s objection as being a defence of perverts. As he confirmed in conversation outside the chamber, Sir Christopher had not looked at the detail of the Bill and was not even familiar with upskirting. Sir Christopher’s objection is neither personal nor related to the Bill’s content. He objected because he feels that Private Members’ Bills should not be passed without debate.

Given the basis for this objection, a point of principle on the scrutiny of Bills in Parliament, we were perplexed to read Melanie McDonagh’s Spectator article “In defence of Christopher Chope’s ‘upskirting’ objection”.  McDonagh’s article (which is the most read on the Spectator website as at the time of writing) does Sir Christopher a disservice by associating him with a view that is utterly confused about both the current law and the proposed reform.

On the current law McDonagh states that “bad behaviour of this kind” – her euphemism for upskirting – is “dealt with under the offence of outraging public decency, as voyeurism”. This is legally illiterate. Outraging public decency and voyeurism are two entirely separate offences. To conflate the two is to miss the point.

Upskirting often takes place in populated public places. Outraging public decency, a common law offence which requires two or more people (other than the defendant) to be capable of seeing the act, is therefore available to prosecute most upskirting. But it is neither an adequate nor appropriate solution.

First, the offence does not provide full protection to women. If the prosecution cannot prove that two persons other than the defendant could have seen him take the “upskirt” photo, the offence cannot be used. So, for example, that if upskirting takes place when a woman is on a street or in another public place alone, no prosecution is possible. That is not acceptable.

Second, the offence does not reflect the wrongdoing. Upskirting is a sexual offence with a victim. The public are rightly outraged by upskirting but this outrage is secondary to the harm it causes. A charge of outraging public decency fails to acknowledge the harm to the victim, and fails also to recognise upskirters for what they are – sexual offenders.

The more appropriate offence of voyeurism is, in contrast, not generally available to prosecute upskirters. The reason: to prosecute for voyeurism the upskirting victim needs to have been observed doing a “private act”, which is not normally the case. This is why the Scottish Parliament modelled the Scottish offence of voyeurism on the English one but added extra provisions to that offence in 2010 to ensure it would cover upskirting.

As to the proposed reform as contained in the Bill, McDonagh says in her article that dealing with upskirting as voyeurism “sounds about right”. It might therefore have been expected that McDonagh would welcome the bill, that being not only the effect but the title. Not so. Instead, for reasons that are hard to fathom, McDonagh considers the bill to be a “preposterous exercise” that has been heroically “seen off” by Sir Christopher. You couldn’t make it up: McDonagh thinks (without realising it) that the bill is “about right” but characterises it as “preposterous”.

Continuing the theme in her views on sentencing, McDonagh inexplicably thinks upskirting does not “warrant” an individual being put on the sex offenders register (really?!). Consistent with her suggestion that upskirting is a minor irritation rather than the violation that it is, McDonagh also takes exception to the proposed two year maximum sentence, describing it as “excessive”. These points, she seems to suggest – with no basis – may have factored into Sir Christopher’s thinking. But we know that not to be the case (from Sir Christopher) and her points are again ill-informed: the bill makes no provision for sex offender registration (albeit that the Government had proposed to make this amendment at a later stage) and while voyeurism carries a maximum two year sentence, an offender prosecuted for outraging public decency could theoretically face a life sentence.

In defending Sir Christopher, McDonagh inexplicably seeks to ride two horses: insinuating on the one hand that upskirting is too trivial to warrant the attention of the criminal law, while on the other suggesting that prosecutors should target it with an offence allowing for life imprisonment. Which is it?

The Bill is on no view the “preoposterous waste of time” that McDonagh alleges.  It is an unobjectionable, necessary and proportionate response to a problem that is inadequately and inappropriately addressed in the current law. Those who have engaged on the detail and know the relevant law agree: upskirting is a gap in the law and that gap needs to be filled with legislation that will allow upskirters to be prosecuted appropriately in all circumstances.

Any proposal to modify the criminal law requires careful scrutiny. While we think that Sir Christopher should have allowed the Bill to progress and receive that further scrutiny in due course, we understand his position. McDonagh, however, in seeking to defend that decision, does Sir Christopher a disservice by associating him with a series of ill-informed claims that he has never himself made.

James Chalmers is Regius Professor of Law at the University of Glasgow.

Ryan Whelan is an Associate at Gibson, Dunn & Crutcher LLP. Mr. Whelan has been advising Gina Martin on her campaign (pro bono) since August 2017.

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Guest Post: The Secret BPTC Student on legal aid cuts and the criminal Bar

I am delighted that a current law student, and soon-to-be criminal pupil, has taken the time to write the following explainer on the ongoing dispute between the criminal Bar and the government over legal aid fees and the funding of the criminal justice system. A point which would be easy to lose – and which, more importantly, the Ministry of Justice hopes will be lost – in the clamour is that this is not simply about lawyers’ fees. The Ministry of Justice’s new legal aid pay rates for advocates (“Advocates’ Graduated Fee Scheme”), which amount in practice to a cut of up to 40% in complex cases, is simply the final straw. Our argument is that criminal justice across the board has been subjected to financial cuts unrivalled in other government departments, with the result that every aspect – from the police to the Crown Prosecution Service to legal aid to the crumbling fabric of our courts – is on its knees. Something has to change. This is the message that needs dutifully repeating to the public, as the below post emphasises. It also contains a very kind plug for my book, which I am obviously going to support.
 
The Criminal Bar is taking direct action as a result of new legal aid cuts. This post explains why action is being taken and why everyone should care about it. 
 
Since 3 April, 90 criminal chambers (at the time of writing) have refused to take on new government funded legal aid cases; this means that defendants will be unrepresented in the Crown Courts (where the most serious cases are tried). Such action could bring the courts system to a halt – a matter not lightly embarked upon. 
 
Action is being taken because the criminal justice system is in crisis.
 
Chronic underfunding of the criminal justice system has resulted in: 
  • cases not being heard for months if not years after an incident, 
  • victims and witnesses unsupported through the process, 
  • defendants on low incomes go unrepresented (being ineligible for legal aid),
  • police fail to disclose vital evidence until the 11th hour, 
  • prosecutors given only 15mins to prepare trials in the Magistrates’ Courts (where most cases are heard),
  • despite the backlog of cases, judges are unavailable to hear them and courts are being closed,
  • the prison estate is in meltdown, with violence and drug use soaring each year,
  • the probation service fails to appropriately manage offenders in the community, 
  • some forensic labs operate without proper certification, affecting the reliability of scientific evidence presented in court, 
  • and in one incident, part of the ceiling of a Crown Court fell in. A terrifyingly apt metaphor for the current state of our justice system. 

The most likely result of a broken criminal justice system? Miscarriages of justice.

This is not theoretical. 

On 27 March 2018, the Chief Inspector of the Crown Prosecutor Service gave evidence to MPs on the Commons Justice Committee. He approvingly quoted from a report (by the Criminal Cases Review Commission), which stated that, “…disclosure failings were the single most frequent cause in the steady stream of miscarriages of justice.” 

Miscarriages of justice have already occurred. You might be its next victim. And the situation is about to get worse…

From 1st April, legal aid rates have been cut by approximately 30%. This is on top of previous cuts to legal aid. Why should anyone care about this?

The principal consequence is that it makes it more likely that guilty people will go free and innocent people will be imprisoned. 

Barristers are independent, self-employed individuals who represent clients at court; as a result, they must prepare for cases during the evenings and at weekends, often at low rates or sometimes for free. Currently, the average yearly earnings for a junior criminal barrister starting out is around £12,000 gross, less than the minimum wage. 

As a result of these cuts, swathes of the bar will no longer be able to survive in practice, with women, those from BAME backgrounds and those at the most junior end bearing the brunt. If the bar remains a profession where only those with wealthy parents can afford to enter, it will neither become representative of the people nor will it guarantee high quality advocacy. Moreover, judges are predominantly drawn from the bar and their judgments have enormous impact upon the country. We need talented advocates who are representative of our society, at all levels of expertise, in order to ensure a fair justice system. We must retain our advocates and call for proper funding of the system as a whole.

As the late Sir Henry Brooke said, “This is not about money for lawyers. The liberties of England are at stake.”

 

Lawyers are taking action to save the criminal justice system. Please support them. 

How you can support our criminal justice system:
  1. Please share this blog post with everyone you know. 
  2. Please buy and read a copy of The Secret Barrister’s book ‘Stories of The Law and How It’s Broken’. It will both inform and entertain you about the crisis in our justice system. No legal knowledge needed. Published only two weeks ago, it has made the Sunday Times best sellers list, been quoted in Parliament, and lawyers have crowd funded to send a copy to every MP. Available on Amazon at: https://www.amazon.co.uk/Secret-Barrister-Stories-Law-Broken/dp/1509841105
  3. Write to your local MP. Let them know that their copy of the Secret Barrister’s book will be arriving; ask them to put it at the top of their reading list and ask them to take action to save the criminal justice system.

The Secret BPTC Student

Why Criminal Justice Matters: Live Event at the RSA

On Tuesday evening, the RSA (Royal Society for the encouragement of Arts, Manufactures and Commerce) hosted an event, “Why Criminal Justice Matters“, at which a panel of industry experts (plus me) discussed the plight of the criminal justice system, and what can be done to remedy its failings.

The discussion was chaired by Joshua Rozenberg QC, and the panel featured:

  • Penelope Gibbs, Founder of Transform Justice
  • Angela Rafferty QC, Chair of the Criminal Bar Association
  • Jonathan Black, Partner at BSB Solicitors
  • Nazir Afzal, Former Chief Crown Prosecutor for Northwest England at the Crown Prosecution Service
  • Me, via live Twitter feed.

It was a thoroughly enjoyable event, and I am extremely grateful to all  concerned for their participation and support. Tickets sold out quickly, I’m told, but for anybody who wasn’t present and didn’t catch the live-stream, the event can be watched for free here:

 

Guest post by Mary Aspinall-Miles: We must confront the criminal justice system’s warped attitude to time

I am delighted that the wonderful Mary Aspinall-Miles (@MAM12CP) has agreed to write a guest post for this blog. Mary practises criminal law at 12 College Place Chambers, with a particular expertise in sexual offences. She also sits on the executive committee of the Criminal Bar Association. 

NOTE: This article was written long before the recently-reported case of R v Itiary, and is not a response to or a comment on any reports in the media concerning that case.

I used to work in commerce. I was a headhunter/recruitment consultant. It was soul-destroying stuff for me, but was very well paid. Lord knows why I left, though my boss who nearly sacked me does (“I am glad you’re off to Law School. We never could work out why the likes of you worked here”).

But here’s the thing.

I had set hours I was expected to be in the office. Arrive by 9.00, leave at 17.30 and an hour for lunch. I was expected to call leads, clients and candidates out of hours, but I was incentivised to do it by commission. There was a direct correlation between hard work, success and monetary reward.

old-man-time-watch-160785

A friend was a teaching assistant at a primary school; she had contracted hours for which she was paid, but at the end of the school day/her day, she left and did not have to THINK about her job at all. My father is an eminent scientist but self-employed. His work ethic and self-discipline is astonishing and may appear punishing, but his work is his passion and his life. There are deadlines to be met which can lead to stressful periods, and financial worries caused when projects are pulled without warning or when politics intervenes. My best friend from uni was a successful banker (boo hiss!) but found it wanting and is now a “super head” for a free school for which he is paid in six figures, but he is enthused and driven to help. One of my best gigging mates is a partner at a city firm. He is kind, generous, fun and constantly raising funds for charity, BUT when it comes to the business – and it is a business – he will not do a single thing that is not financially rewarded. He is paid for expertise and expects to be paid. Of course he’ll do some things to keep the client sweet, but largely for money. Time is money for him and money is time.

They will give a first rate service to clients as they have strict work divisions based upon cost, because the client pays. He and our mate ( a lawyer in a bank ) look after me because they see me as a “social worker rather than a lawyer.” Ditto my friend “Sphinxy”, a senior and well-respected PI (personal injury) barrister and Twitter addict; an absolute sweetheart in real life, but all about the money.

I was married to a civil barrister who used to practise crime, who taught me that criminal barristers are too keen to be liked and too scared to play the elitist hand, because we are beholden to public money and thus the vagaries of public opinion and politics. We are in the middle of an identity crisis, not knowing whether we are professionals or social workers. Most of all, he would say, we have to accept we will never be liked, and to stop trying. We are a necessary evil. We have to stop hiding behind egocentric notions that we matter but that we serve the public.

 What is the point of all of the above?

Time.

The Criminal Justice System is ill-managed over its approach to time. There is simply not enough of it for any of the major “stakeholders” (vomits) in the CJS. Police officers do not have enough time to investigate properly or liaise with aggrieved parties, which is why they think they are marginalised and defendants think they are treated unfairly. The Crown Prosecution Service does not have enough time to review cases or prepare appropriately. Defence solicitors do not have enough time to go to police stations, go to court, speak to families and prepare cases. The Bar do not have enough time to draft documents and prepare cases to the level required. Judges don’t have time – never ending lists; administrative duties and increasing managerialism.

There is a constant pressure, like a blister on the heel whilst wearing vertiginous high heels. No one can stand, let alone walk properly.

And yet the powers that be load up with more targets and demands whilst they sit in their glass towers (as government towers tend to be), surrounded by resources and playing the political game with the press, whipping up them up in whatever direction suits. They appoint meaningless posts like the Victim Tsar to pay lip service to victims whilst actually failing to tackle the endemic problem of poor funding and a lack of transparency. How, for example, do most of HMCTS and CPS staff get their jobs? Especially at local level? And there is the poor training – it astonishes how many in HMCTS, the CPS and the police have never been inside a court. These are the things that fail victims, witnesses and defendants. As does the legal profession’s arrogance of “knowing best” when it comes to the business of running, well, an actual functioning organisation albeit an important and special one. We should stick to lawyering and justice but we need to have a sea change of how we achieve that – collective bargaining is a start (and post-Brexit, if EU laws are no longer to apply, why shouldn’t we have a union?), as are muscular professional bodies whose leaders cannot be bought off with professional reward by being properly paid to do it, and, as the Bach Report suggests, an independent pay body. Time to change. Time to behave like lawyers.

Guest Post by Simon Myerson Q.C.: An alternative proposal concerning sexual offences and consent

In March 2017, Harriet Harman proposed a legislative amendment to section 41 of the Youth Justice and Criminal Evidence Act 1999, which would have the effect of prohibiting at criminal trials any questioning or evidence concerning the previous sexual behaviour of a complainant alleging a sexual offence. This week, Ms Harman reportedly confirmed that she was pursuing this amendment, and I provided my thoughts on why this is a dangerous and ill-thought out idea here

Back in March, criminal silk Simon Myerson Q.C. took the time to correspond with his MP, Anna Turley, over the planned amendment. He has very kindly permitted me to republish his note, in which he addresses the flaws in Harman’s Law, and offers his own proposal on how perceived shortcomings in the prosecution of sexual offences involving the issue of consent might be addressed. I understand that Anna Turley MP has yet to respond.

Simon Myerson Q.C.

Rape and Section 41 YJCEA 1999

Current Position

S41 Youth Justice and Criminal Evidence Act 1999:

  • Re consent, no cross-examination about Complainant’s (C’s) sexual behaviour without court’s permission.
  • Permission only if:
    • A conviction would otherwise be unsafe; and
    • Relates to behaviour at same time or is so similar that it cannot be explained as a coincidence; and
    • Must relate to a specific incident or incidents.

 

Suggested Amendment

To ban such evidence in all circumstances.

 

The Result of the Amendment

Necessarily, to ban evidence which might prevent an unsafe conviction. There is no way around this conclusion.

To remove from the judiciary the freedom to determine what makes a trial safe and to replace that freedom with a direction from the legislature that unsafe convictions are acceptable in rape cases.

 

The Problem

This should be self-evident. But it would create the additional problem that, in cases in which cross-examination would currently be allowed, were this amendment passed, the Judge would still be entitled to stop the case on the basis that the accused cannot have a fair trial. The Court has an inherent jurisdiction to do so, but is also constrained by Art 6 ECHR, which provides the right to a fair trial. The refusal to admit evidence that may mean the prosecution cannot prove its case is patently unfair.

 

The Reality

There are essentially 4 types of rape for these purposes:

  • Genuine ‘stranger rape’ where a woman is violently assaulted. Very rare and almost always result in conviction because consent rarely the issue.
  • Semi-stranger/friend rape. Typical scenario – meet on night out. Woman gives good evidence of not consenting. Again, relatively few problems in obtaining conviction.
  • As above but everyone drunk. See below.
  • Marital/relationship rape. Has difficulties but not really the focus because lack of consent proved by other factors – fighting, separation, confiding in family etc.

The real issue is the drunken night out. Can we leave aside political considerations here please? I have 4 daughters and I most assuredly tell them that rapists cause rape. I also tell them that the best way to avoid rape entirely is to take personal responsibility for themselves by staying relatively sober, texting regularly (family or friends), not leaving without telling someone and saying who with and not having sex unless they know the person.

What typically happens is that a group go out together. They all get drunk – so drunk that the next day they cannot remember what happened with any clarity. Frequently, one girl gets detached from the group. They do not know where she is and often do not look. She goes off with a man, consensually. That can be seen on CCTV. They go somewhere together and he has sex with her. The next day she is appalled. She may very well not have consented. She says she didn’t. She also says he tricked her into coming with him/has no idea who he was/didn’t want to be anywhere near him. The CCTV shows that at least some of that is wrong. She is cross-examined on the basis that a) she wants to get him into trouble to excuse her own shame and) she can’t remember anything, including giving consent. He says that she consented.

Another scenario: the group leave together with a group of lads, or some new lads they’ve met that evening. They go back to someone’s flat. Some kissing happens. Then a lad takes a girl into a bedroom. Same thing as above. The friends all remember the kissing. No one knows the rest of it, or they are so wasted they can’t remember.

That is the depressing reality. Of course, drunken consent is not consent. But the prosecution must make the jury sure that the man did not reasonably believe in the consent. He says he asked and she was all for it. If he is disbelieved, he is convicted. But it is terribly difficult for a jury to disbelieve him when the woman herself does not remember what happened. Q: “Is it possible that after a good evening, you may have said to him that you wanted sex, even though in the morning you would not have said yes?” If the answer is yes, it’s an acquittal. If the answer is no but the jury don’t believe it, it’s an acquittal.

 

Notable Point

S41 is nothing to do with this at all. S41 arises in a very small number of cases and is granted in even fewer. There is what purports to be as study carried out by a group appointed by Vera Baird. I’ve read those cases. There are 15 – a tiny fraction of rape cases and far too small to be anything more than an anecdotal collection. Of those 15 only 3 involved S41 applications. I would only have granted 1. S41 is not the problem.

S41 is important because it guards an accused – who we remind ourselves is an innocent man until convicted (I always find it helps to think of him as my father) – who describes behaviour that is so exceptional that the evidence of C that she did not consent, should properly be assessed against the evidence that she indulged in the same behaviour on an occasion when she did consent. The argument is that if she consented on that occasion, isn’t that evidence that she consented on this occasion. It is an argument, no more. The jury can reject it. But the evidence is admitted if the Judge decides they could accept it and that, in those circumstances, if they did not know about it, they may not be making a fair decision.

In the Evans case, the evidence was admissible because a) it was an account from 2 people on separate occasions each other and the accused that C was capable of having sex when very drunk; and b) that she was an active participant using the v precise words and positions described by the accused. That went both to the issue of whether this was non-consensual at all (C had never said so – merely that she did not remember), and whether the accused might reasonably have believed in consent if so.

Without that evidence Evans was convicted. With it, he was acquitted. What Harriet Harman seeks to do is to preserve the position where someone is convicted, even though the evidence might lead to acquittal. She wishes to do that by preventing the jury even hearing that evidence, because she has decided it is wrong to let them do so. That is neither her job, nor remotely appropriate.

 

The Bad Arguments

Why should the current position be changed? There is no evidence that it results in unfairness on the current law as it stands. Research shows that juries do understand the evidence they hear and the directions the judge provides.

Thus the arguments should focus on the law. Is the offence of rape sufficient to include occasions where a lack of consent cannot be proved, but the way in which the man has behaved plainly takes advantage of the woman’s position at the time?

However, Harriet Harman’s argument does not focus on the law. It focuses on manipulating the current procedure so as to alter the result. Once we permit politicians to prevent the admission of evidence because the evidence produces the ‘wrong’ result, we will not be able to resist it happening again. Ask yourself, what would Farage do with such a provision and alleged Islamic terrorism? Should we refuse to permit juries to hear evidence that bankers had seen senior figures doing the same things as had led them to be charged with dishonesty, and had thus concluded it was not dishonest? Evidence such as this is not a defence unless the jury accepts it. If it is rejected the conviction is fair. But a conviction that does not allow a jury to hear that evidence is unfair.

Moreover, the basis of the argument rests on the belief that jury verdicts are regularly ‘wrong’ and the procedure should thus be tampered with, to achieve the ‘right’ result. That is neither healthy nor proved. We assume that once delivered, jury verdicts are correct, unless the summing up is wrong. The jury’s deliberations are sacrosanct. How on earth is it possible to assume they are wrong?

And, if they are wrong, then the logical answer is to have trial without jury. Fiddling with the procedure, if juries do not get it right, is hardly a courageous answer. Rather, it is a fudge, which imperils rape victims because it still leaves them open to injustice, and everyone else – either for the same reason or because it encourages executive action to restrict the evidence a jury can hear.

 

A Possible Solution

In reality, juries probably get these decisions right. The difficulty is that we have a crime in relation to which the prosecution must prove the negative – that the accused did not reasonably believe C consented.  

A further difficulty may be that sentences for rape are very high. Many lawyers believe (admittedly on no very good evidence) that this makes juries even more reluctant to convict. Or, perhaps, it means they take being ‘sure’ very seriously.

An answer is an offence that takes consent away.

Taking sexual advantage is a possible offence in this way:

A man (M) commits an offence if he penetrates another person (using the existing language of the Sexual Offences Act 2003) in circumstances in which, whether that other person has indicated consent or not, a reasonable observer would conclude that M could not be sure that consent was either voluntary or informed, and that M took no reasonable steps to ascertain the real position.  

I do not pretend this is necessarily flameproof as it stands, and it certainly needs further thought. But it represents a real attempt to transfer the risk of drunken stupidity to the penetrator not the penetratee. It would be mitigation that the man had believed the woman had appeared to consent but it would not be a defence unless M was sure that there was consent having taken reasonable steps to check. If the woman can’t say yes, or says yes because of drink, or isn’t sure what happened, that would all be sufficient to convict. The sentence would, necessarily, be less. The conviction rate would, I believe, soar.

 

Simon Myerson Q.C. practises from St Paul’s Chambers, Leeds and Byrom Street, Manchester, and specialises in Civil and Criminal Law. He is currently representing 40,000 Kenyans in their claim against the Foreign Office relating to events during the Mau Mau Emergency in the 1950s. Simon tweets at @SCynic1.

Guest Post by CrimeGirl: The fallacy of the fat cat legal aid lawyer

In the coming months, the tabloid “fat cat legal aid lawyer” staples are likely to re-emerge and recur with a vengeance, following the Ministry of Justice’s plans to slash legal aid fees paid to criminal law solicitors. In the din of misinformation that will be honked out by the MoJ to distract from the legal profession’s concerns, the truth may become estranged. This could have devastating consequences. If you are wrongly accused of a crime, your guiding light will most likely be a legal aid solicitor. Their importance to the functioning of our justice system is shamefully overlooked and underreported.

The Secret Barrister is delighted to publish this exclusive guest post by barrister, former duty solicitor and fellow anonymous legal commentator, CrimeGirl, who explains the reality of life for solicitors on legal aid.

 

@DefenceGirl

@CrimeGirl

One of the basic tenets of the Criminal Justice System in England and Wales is that every person being interviewed under caution by the police, no matter how rich or poor, is entitled to free and impartial legal advice.  As I used to tell my clients, even Richard Branson is entitled to free representation in the police station.

For each case the Legal Aid Agency pays the lawyer a fixed fee.  Those fees vary for some nonsensical reason depending on the location of the police station (or nearest police station).   When cases are not prosecuted, the case ends there, with that fixed fee.   On average it is circa £170.  That is all the firm receives for the totality of the work they put in.  For every police station lawyer working today, there will be numerous cases every week that are resolved by way of an ‘out of Court disposal’ such as a caution, or are dropped altogether.  Preventing charge in an appropriate way is an extremely positive result for the client and something that I took great delight in achieving.

Year on year, the number of arrests has dropped.  You will see this spun in the news as “crime falling”.  Be assured that crime is certainly not falling.  The number of individual criminal acts is not accurately reflected by the way those acts are recorded.  Custody stations across the country have seen greater than 30% reductions in footfall following a concerted effort by forces to achieve fixed targets.  The knock-on effect of this alone has been devastating for Solicitors and Barristers alike.

On top of that, a sizeable chunk of cases end at the police station.  Each case that resolves without charge culminates after its own hefty workload.  Children falsely accused of serious offences, removed from school, where Solicitors have intervened with the investigation on numerous occasions.  Countless vulnerable adults arrested for offences never capable of being made out on the available evidence, necessitating solicitors to attend the police station on multiple occasions, and who call their solicitors no less than thirty times over the months their cases go on.  Lengthy letters to custody sergeants and inspectors protesting length of bail and onerous bail conditions, threatening more formal legal action if they are not amended or relaxed.

Some of those files will comprise detailed reviews of statute and Court of Appeal or Supreme Court cases, lengthy letters to senior officers raising complaints, representations on points of law, or letters to other Solicitors requesting assistance in ancillary legal challenges.  Others will contain identity procedure attendance notes, multiple pages of written disclosure, defence witness statements and documents provided by the client to assist in preparing their defence.  They will include correspondence from employers, divorce paperwork and screenshots or emails from former partners, all of which need to be considered in detail so that the client can be advised whether or not the contents needed to be disclosed to the police in order to bring about a faster resolution to the investigation.

How much are Solicitors paid for all of this work?

Having worked for or on behalf of many differently sized firms with legal aid contracts, I can confidently say that all clients are defended robustly with a view to fending off a potential prosecution.  Every file attracts that paltry £170 I referred to above.  That £170* covers at best two hours of work, three letters and four or five phone calls.  It is the norm however for it to become a huge financial hole, representing a considerable overall loss in terms of spent fee earner’s working hours, calls and correspondence.

It bears repeating.  Every police station attendance is now considered a ‘loss leader’.  It is hoped  that remuneration may  occur in the future, either the client will be charged or if the best possible result happens and charge is avoided, one hopes, a word of mouth recommendation through excellent client care will materialise.

How can criminal defence solicitors survive in these circumstances?

The only way that firms or criminal departments have stayed solvent without taking on privately paid work is due to larger Crown Court litigator fees.  Each case that results in charge attracts funding under a representation order payable on a fixed fee basis, and when those cases are larger and more complex, (such as cases with lots of defendants at the Crown Court) that fixed fee rises.  When there is a huge amount of evidence for lawyers to read (more than 10,000 pages) the fee rises significantly.  That does not mean that those cases are ‘well paid’.  Let us not become distracted by the fallacy that any publicly funded criminal work is properly remunerated.  It is not an argument that is worth repeating here.  Larger litigator fee cases come closer to properly remunerating those who conduct them, than the smaller cases do, while remaining in stark and depressing contrast to remuneration available in any other area of law involving the same volume of work.

Those large cases are rare.  They come around infrequently and when they do arrive, Crown Court Judges have become accustomed to splitting large groups of defendants into smaller cases and putting pressure on defendants to plead guilty early, before evidence is served, with promises of sentence discounts. That cutting, pressure and re-organising reduces the financial value of the cases significantly.

The government is now proposing to reduce the amount of money it is willing to pay Solicitors and Barristers for those higher page count, more complicated cases.  No proper justification has been offered for doing this.  Lawyers still need to read every page of evidence in every case.  Failing to do so is negligent.  Relying on automatic computer processes to read evidence ignores the fact that documents are frequently hand-written and scanned, and omits the chance for human error in typing the evidence prior to service.  I say it again, failing to read every page is negligent.

The losses sustained by Solicitors at the police station and in the Magistrates’ Courts, and by Barristers  who fall into a loss by properly preparing poorly paid Crown Court cases are not properly balanced by the larger cases.  All cases should be remunerated fairly.  However, those larger cases go a way towards keeping firms and Barristers afloat financially.  The criminal justice system has already been slashed to the bone.  Police station fees have been reduced.  Magistrates’ Court fees have been cut.  Crown Court fees have been lowered.  Less people are being arrested.  All this after no rise in almost two decades, despite vastly increased living and business costs.  So many individual cases are routinely being driven into losses that criminal lawyers’ (particularly at the more junior end) are now very poorly remunerated.

Trainee Solicitors in crime can expect to earn between minimum wage and £18,000 a year.  When they qualify they can expect little over £24,000 nationwide.  Solicitors with up to seven years post qualification experience can expect to earn up to £32,000 a year, and all this comes bearing huge student debt and bank loans to fund their qualifications.  Paralegals are routinely paid between £13,000 and £20,000.  Even the most passionate believers in justice are deterred.

Great people are leaving the profession and almost no one is choosing to join it, which is a problem for the future.  It is our children and the most vulnerable people in our communities who will suffer.  With any further cuts whatsoever, we can be satisfied that the criminal justice system will collapse entirely.

As a law abiding tax payer you might think legal aid is an unnecessary expenditure, you never know when you might need it. No one plans to be falsely accused of a crime – just as no one plans to be a victim.

*Save for those that attract the “escape fee”.  Escape fees require many hours of attendance at the police station by the Solicitor in interview and equate to circa 4 x the standard fee.  These are rare, occurring only in complex and serious indictable only offences and almost always result in a positive charging decision. (I think it requires more than twelve hours and remember that you still aren’t remunerated for every hour you spend there).

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