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

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

 

Dishonesty

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

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

 

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

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

 

Drugs

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

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

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

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

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

 

Junior advocates

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

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

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

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

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

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

 

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

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

 

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

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

 

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

 Good news for new starters.

 

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

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

 

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

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

 

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

Dear Mike

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

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

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

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

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

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

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

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

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

Yours ever

Francis

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

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

 

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

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

 

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

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

Refresher: £400

 

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

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

Refresher: £500

 

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

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

Refresher £500

 

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

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

Refresher £500

 

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

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

Refresher: £325

 

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

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

Refresher £300

 

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

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

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

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

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

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

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

 

Michael Turner QC

Guest post by Ryan Dowding: A Little Help From My Friends – Why Sajid Javid’s letter may have broken the law

I’m delighted to host this guest blogpost by Ryan Dowding. Ryan holds a postgraduate degree in International Human Rights Law and kicks off his pupillage this October. He also teaches human rights in schools and colleges through the Your Rights Matter initiative and runs the law and politics blog Arguably. He tweets at @DowdingRyan.

The United Kingdom has for decades set its face firmly against capital punishment. However, this historic opposition was cast into doubt last month when a secret letter, from our Home Secretary to the Attorney General of the United States, was leaked to The Telegraph. Its effect would have been to render the UK complicit in the trial and possible execution of Alexanda Kotey and El Shafee Elsheikh – two members of ISIS captured, in February 2018, by US-backed Kurdish fighters in Syria. In what follows I set out some background information, before turning my attention to the legality of Sajid Javid’s controversial correspondence.

Background

Kotey and Elsheikh were part of an ISIS cell called ‘the Beatles’ by their captives because of their distinctive British accents. Despite growing up in London, they were stripped of their citizenship after their alleged involvement in the execution of a number of individuals, including journalist James Foley. These crimes were barbaric and warrant no sympathy. It is therefore clearly right that the two stand trial and, if found guilty, face harsh punishment. It is also right that those with probative information about their role cooperate with the US authorities in bringing them to justice. It was to that end that Sajid Javid dispatched his notorious letter on 22 July 2018.

The Home Secretary acceded to a request for Mutual Legal Assistance (‘MLA’) – i.e., the provision of material and assistance for use in the prosecution of the two men by the US. His letter referenced the need to deliver justice for the victims’ relatives who had voiced “demands that both detainees face the rest of their lives in prison”. This was a clear allusion to a poignant Op-Ed in the New York Times by Diane and John Foley, Marsha and Carl Mueller, Shirley and Arthur Sotloff and Paula and Ed Kassig – the parents of four victims of the so-called Beatles:

[W]e agree with the longstanding British government position that it would be a mistake to send killers like these to the military prison at Guantánamo Bay, or to seek the death penalty in court […]

Instead, they should be tried in our fair and open legal system, or in a court of international justice, and then spend the rest of their lives in prison. That is what our children would have wanted.

It appears from the final paragraphs of his letter, however, that the Home Secretary was merely paying lip service to their wishes as he concluded that there were “strong reasons” not to seek assurances from the US that the two would not be executed if convicted. When the letter was leaked, the Home Office faced immediate backlash from human rights organisations, followed by threats of legal action. As a result, it temporarily suspended cooperation with the US. However, a spokesperson said that the government “had acted in full accordance of the law and … the government’s longstanding MLA policy”.

But what policy was the Home Office referring to? And was it in fact acting within the law?

 

The UK and Capital Punishment – A Potted History

Since at least the early 19th century, Parliament had incrementally hacked away at the death penalty, precluding its use in relation to an increasing number of specific offences. During the 20th and 21st centuries, however, a number of crucial steps were taken which eventually resulted in total abolition. The introduction of the Murder (Abolition of Death Penalty) Act 1965 did away with the punishment in respect of those found guilty of murder. Further piecemeal reforms followed, including the outlawing of the penalty, in 1971, for the obscure offence of arson at a naval dockyard and in respect of treason with the Crime and Disorder Act 1998. The final nails in the coffin came when the UK introduced the Human Rights Act 1998 and signed and ratified Protocols 6 and 13 to the European Convention on Human Rights (‘ECHR’) in 1999 and 2004. Cumulatively, they required the UK to abolish the death penalty in all circumstances. Our government has since produced a strategy document codifying the “longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle”.

It is perhaps unsurprising against this backdrop that leading human rights barrister, Ben Emmerson QC, wrote in The Guardian that the UK’s “opposition to the death penalty has … hardened into a constitutional principle”.

Home Office Guidance

I now return to the policy purportedly relied on by the Home Secretary. There are two which warrant consideration:

  1. Requests for MLA in Criminal Matters: Guidelines for Authorities Outside of the United Kingdom (12th edition) (‘MLA Guidelines’); and
  2. Overseas Security and Justice Assistance: Human Rights Guidance (‘OSJA Guidance’).

The MLA Guidelines can be dealt with briefly. The document simply, at page 15, informs the rest of the world that the UK may refuse to provide assistance where there is a “risk that the death penalty will be imposed for the crime under investigation”. The more crucial document for our purposes is the OSJA Guidance which offers guidance to UK officials providing security and justice assistance overseas. Pursuant to that aim, a number of human rights risks are identified, including the possible use of the death penalty. The Guidance then sets out how to mitigate those risks. When the Home Secretary suggested there were ‘strong reasons’ not to seek assurances for Kotey and Elsheikh, his language mirrored the wording set out at page 22 of the OSJA Guidance. That section explains that although assurances should be sought where there is a risk of the death penalty being imposed, where they are not forthcoming, or there are ‘strong reasons’ not to seek them, the Foreign and Commonwealth Office (‘FCO’) may be consulted to determine whether assistance should nonetheless be provided.

There is no suggestion made in the letter that assurances would not be forthcoming. Indeed, it is clear that the US has offered assurances capable of satisfying the European Court of Human Rights (‘ECtHR’) in respect of high-profile terror suspects in the past. However, it was made clear by Sajid Javid that no such undertakings were sought:

[T]here are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.

The letter unfortunately omits any elaboration as to what reasons were relied upon. This may be because it is difficult – particularly in light of the UK’s human rights obligations – to imagine what lawful reasons could possibly justify the decision. Indeed, any reasons would have to be exceptionally strong in a case such as this, involving a positive decision not to seek any undertaking from the US.

Assuming, nevertheless, that the Home Office does have legitimately ‘strong reasons’, would its actions then be rendered legal?

In short – probably not.

Falling at the First Hurdle

To begin with, the Home Secretary may have fallen foul of the OSJA Guidance. While purporting to provide an exception to the need to seek assurances, the document adds a caveat where the method of the death penalty could amount to torture or inhuman or degrading treatment, for example, an excessive period on death row.

The intersection between the death penalty and torture will be returned to below. For present purposes, I draw attention to the 1989 case of Soering v United Kingdom in which the ECtHR made clear that the extradition of an individual to the US to face the death penalty violated his right not to be subject to inhuman or degrading treatment. This conclusion was not based on the administration of the penalty itself, but on the ‘death row phenomenon’ – in other words the harsh prison conditions on death row alongside the “mental anguish” and psychological damage which accompanies sitting around for years and waiting to be led to the electric chair. While other factors – including the age and health of the appellant – were at play in that case, a decade later the UK’s own Judicial Committee of the Privy Council ruled, in Pratt and Morgan v The Attorney General for Jamaica, that there would be “strong grounds” for believing that any delay before execution of over 5 years would constitute inhuman or degrading treatment.

As Lord Griffiths explained:

There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity.

These cases are important because as of 2010 death row inmates in the US wait an average of 15 years before their execution. It is not unreasonable to expect that Kotey and Elsheikh will be forced to wait for a significant amount of time given the complex legal issues which are likely to arise as they exhaust their various rights of appeal. The Home Secretary should therefore have considered the section of the OSJA Guidance relating to torture, which provides no exceptions to the need to seek assurances akin to those present in relation to the death penalty.

Why the Guidance Itself may also be Unlawful Under the ECHR

The OSJA Guidance is just that – guidance. It is neither primary nor secondary legislation and its drafters were required by the Human Rights Act to ensure its compliance with the ECHR. However, it appears they have not kept pace with developments at the European Court.

The ECtHR has, over time, broadened the scope of what it considers to be a violation of the right to life (article 2) and the prohibition on torture and inhuman or degrading treatment (article 3). These moves came to a head in the landmark case of Al-Saadoon v United Kingdom. In that case, UK soldiers operating in Iraq transferred the applicant, a captive in their custody, to the Iraqi authorities. He argued in turn that this was a violation of his rights under articles 2, 3 and Protocol 13 (right not to be subjected to the death penalty). In a powerful judgment which cited the almost complete abolition of the death penalty across Europe, the ECtHR agreed, finding for the first time that the death penalty as such is a violation of the rights listed above.

The Court noted in particular that:

[I]t is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention.

The ECtHR has also imposed a positive obligation on states to seek assurances that the death penalty will not be carried out. In 2014, having found Poland liable for ‘rendering’ – a euphemism for forcible deportation – the applicant to Guantanamo Bay, the Court took the unusual step of spelling out that Poland was required “as soon as possible” to rectify its violation by seeking assurances from the US that he would not be subject to the death penalty.

These cases suggest that the UK not only entered an unlawful agreement with the US, but may now be obliged to seek assurances that Kotey and Elsheikh will not be executed if convicted.

The developments also bear significance because of the UK’s stance on torture and inhuman and degrading treatment. To quote from a ruling by the late Lord Bingham, the common law set its face against the practice because of a “belief that it degrade[s] all those who len[d] themselves to it”. I would argue that there could hardly be a clearer case of a state lending itself to an unlawful practice than the UK’s offer to do the US’s dirty work and assist the prosecution of those likely to be condemned to death.  The move also, shamefully, ignores the pleas of the victims’ relatives that these people be tried and imprisoned; pleas by US citizens which might indeed have provided strong reasons for the US to accede to any request for assurance in this case.

While I have been unable – despite the ample space provided to me by The Secret Barrister – to leave no stones unturned, as the Howard League for Penal Reform gears up to take the Home Secretary to task, I hope I have provided a taste of the arguments likely to surface in due course.

Post-Script – A Brief Note on Jurisdiction

A potentially tricky point in terms of the UK’s responsibilities under the ECHR is whether or not it can be said to have exercised jurisdiction – i.e., authority or control – over the two men. Much smarter people than I have dedicated chapters of books to this byzantine principle (exhibit A; exhibit B etc…). I am unable to do the matter any real justice here. However, I would say that the suggestion that the UK bears no responsibility for the rights of those who it offers to help convict and potentially put to death, is arguably untenable given the ever-expanding notion of jurisdiction. This is particularly so in the face of judgments such as Stephens v Malta and, more recently, Vasilicius v Moldova. In those cases, the ECtHR held Malta and Moldova liable for the unlawful detention of the applicants in Spain and Greece respectively. Notably, in the former, the applicant was a UK national who had never set foot in Malta. The Court came to its decision on the basis that by issuing the arrest warrants Malta and Moldova exercised jurisdiction over the applicants and were therefore responsible for the end-result – namely, their unlawful detention.

It is difficult to see why the provision by a country of legal assistance which is likely to increase the prospect that an individual will be subjected to capital punishment should be treated differently. This is especially so given the “absolute and fundamental nature of the right not to be subjected to the death penalty” (Al Saadoon, above).

Ryan Dowding

Guest post by Fern Champion: The government thinks it is doing enough to fund Rape Crisis centres. My story shows they are wrong.

I am honoured to host this guest post by Fern Champion. Fern is next week giving evidence to the All Party Parliamentary Group on Sexual Violence, speaking from her own experience about the widespread problems in accessing Rape Crisis centres. This is Fern’s story.

I can’t count the number of times I’ve tried to do this. To tell my story and have it listened to. To engage with police, insurance companies, support services, employers, and friends across the globe.

I need to talk to the police” I said to the girl working on the reception of the hostel I was staying at in Kuala Lumpur, as I walked in clutching my bra in my hands.

“I’ve been raped” I said on the phone to the British Embassy Consulate the next day, after spending the last 24 hours either with the police or in hospital.

“I’ve missed my flight because when I should have been boarding, I was being examined by a surgeon” I said to my airline and travel insurance company.

I think I had my drink spiked and had to have a pregnancy test” I said to my friend who I sent various incomprehensible messages to the night before.

So here it is, one more time. My story, which really isn’t just my story.

On the 18th/early hours of the 19th July 2016, I was raped by a man whilst I was heavily intoxicated.  He first assaulted me whilst I was unconscious on his couch, and then he carried me to his bed where he forced his penis into my mouth, vagina and anus throughout the night, all while I was passing in and out of consciousness. Everytime I protested, he told me that he could “really fucking hurt me”. It wasn’t difficult to pin me down.

My assault occurred in Kuala Lumpur. I was 3 months in to my cliche ‘gap year’ and I had a series of flights booked the day after to get me to New Zealand, where I would be living for a year.

In August 2016, I arrived in Wellington, New Zealand, and met with the Wellington Rape Crisis. I was put in contact with them through the British Consulate Office in Kuala Lumpur, and they immediately put me on their waiting list for support and treatment.

I spent the next year trying to rebuild my life on the other side of the world, having arrived in New Zealand with 26p left of my overdraft. I spent a lot of that time working, though I got to travel too. I fought against my insurance company for six solid months, though eventually I won. I can’t make out that whole year was terrible, because it wasn’t. I got to live and work in one of the most beautiful countries on earth. I furthered my career, built lasting friendships and even got to work with the WRC on publishing a ‘Survival Guide’ for travellers who are assaulted overseas, but I had to do all that whilst processing what happened to me with no support. I spent the entirety of my year in New Zealand on Wellington Rape Crisis’ waiting list.

In August 2017, I arrived back in the UK and contacted both East and South London Rape Crisis centres but was told that I could not get onto the waiting list at either. In September I moved to Tooting and was told by SLRC to try again in January 2018. That month, I also contacted my local MP, Dr Rosena Allin-Khan to discuss the lack of access to support I have been facing since my attack over a year earlier and the impact that must be having on survivors all over the country. She wrote to the Secretary of State for Health, Jeremy Hunt, and asked what steps his Department is taking to provide support to survivors of sexual assault when services are over-subscribed. He replied that “allocations for Sexual Assault Referral Centres have increased this year”. She also asked the Secretary of State for Justice, David Gauke, what he is doing to reduce general access times to rape crisis centres. He responded with “In 2017/18 the MoJ directly allocated around £7.2m as a contribution to 97 Rape Support Centres across England and Wales”

 And yet in March 2018, I was told once again that South London Rape Crisis waiting list remains closed.

This really isn’t just my story. In March 2017, the Crime Survey for England and Wales estimated that 646,000 of adults aged 16 to 59 experienced sexual assault in the previous 12 months. 2017/18 data published by Rape Crisis England and Wales shows that 78,461 individuals accessed Rape Crisis specialist services. The CSEW have not yet published their data for the same period but I think it can be safely assumed that the numbers will remain proportionately similar, meaning that nearly 88% of those sexually assaulted will not have accessed Rape Crisis specialist services. It’s going to take a lot to convince me that that 88% have been able to access support elsewhere, seeing as more and more services are having to shut down their waiting lists.

As such, 17 July 2018 is going to be a big day for me. Not only will it nearly be the two year anniversary since my attack, but I will also be addressing the All Party Parliamentary Group for Sexual Violence, who will be discussing the funding landscape for specialist sexual violence services.  Because I, and everybody else in that 88%, deserve answers.

Why should we be forced to wait months, if not years, on end for sustained support to help us process a trauma which was not our fault in the first place? Why should we endure ongoing nightmares or total emotional oblivion as we continue to sleepwalk through a world that continuously tells us it was our fault, with the knowledge that only 7% of our attackers will be convicted relentlessly pounding our skulls? I reported my attack as soon as I was safe. The police were provided with my medical report, clothes, access to CCTV footage of two different bars, witness statements which corroborated mine, GPS data of where my phone tracked me during the hours of my attack, and still my attacker was not caught. Why?

Why did they ask me what was I wearing? How much I’d had to drink? How many men I’ve previously slept with? Why I didn’t fight? Why I couldn’t remember the details of what happened when I was unconscious?

Why will they never get to ask my attacker why did you rape her?

This government, namely Jeremy Hunt and David Gauke, seem to think they have done enough to help women like me. I am here to tell them they are wrong because somehow, despite all of this, I am one of the lucky ones. In March this year, I was finally able to access support through my employer when I very rapidly crashed through rock bottom and found myself unable to go to work, or even leave the house. How many others in that 88% who have been unable to access Rape Crisis do you think can say the same? As a university educated, white female with a shiney corporate job in the city, I have been protected by a certain amount of privilege which has allowed me to get me to where I am today. What about everybody else? This government, like so many before them, is failing them all.

It has long been known that 1 in 5 women will be raped, or nearly raped in her lifetime. It is now abundantly clear that the vast majority of those women will not be able to access support services crucial to their recovery. Enough is enough. We all have a duty to fight this so I am asking you now, write/tweet/send an owl to your local MP and ask them if they will be attending the APPG on Sexual Violence on the 17 July. Ask them if they will hear my story and help me to create something positive from what has been an almighty shitshow of the last two years. Your MP will represent so many women with stories like mine, maybe even you yourself have a story like mine, so let those stories be heard.

Please don’t let me continue talking to an empty room.

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.

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