Don’t fall for Boris Johnson’s criminal justice con tricks

Yesterday morning, newly-appointed Justice Secretary Robert Buckland told Radio 4’s Today programme of his pleasure that the Prime Minister is taking an interest in the criminal justice system. And certainly, after three years of wilful abandonment under Theresa May, I would in principle gladly welcome some Downing Street-level political attention on the ruinous state of our criminal courts.

When this attention is coupled with more money for the criminal justice system, this sounds very much like the sort of thing those of us working within have been crying out for. So surely we should all join hands with Mr Buckland and celebrate that in Boris Johnson we finally have a leader taking criminal justice seriously?

Don’t believe a word of it. The entire project is a con.

Starting with the “new money”. Mr Johnson has announced that 20,000 new police officers will be recruited over the next three years. This is vital, certainly, but falls far short of what is required, given that that figure barely replaces the number of officers cut since 2010. Meanwhile, not only is crime increasing, but investigations are becoming ever-more complex, with digital evidence sucking resources and quadrupling the effort that would have been required a decade ago.

There’s £85m for the Crown Prosecution Service, which sounds like a healthy sum, until you realise that it’s a fixed payment over two years, and that the CPS budget for 2018/19 was a quarter of a billion pounds less in real terms than in 2009/10. The CPS has lost a quarter of its staff and a third of its lawyers since 2010. Two tranches of £42.5m will not begin to fix the problems that plague prosecutions up and down the country.

There’s a promise of 10,000 new prison places, when the previous promise of 10,000 places in 2015 fell short by 6,000, and another 9,000 places alone are required simply to address the present, longstanding overcrowding. There is £100m for technology to aid prison security, but no mention at all of the extra prison staff needed to safely manage the new offenders, given that even after a recruitment drive in 2017, numbers are 15 per cent down since 2010. There has been a huge drain of experience since 2010, as the most experienced officers were among the first to go when the government decided to slash prison staff by over a quarter, at a time when the prison population has climbed.

But the problem extends far beyond inadequate promises to redress chronic underfunding. The propaganda accompanying these announcements betrays not only the Prime Minister’s trademark opportunism and dearth of intellectual rigour but the sticky, putrid tar clogging the heart of the Johnson Crime Agenda.

Announcing his plans in a series of weekend puffs in tame newspapers, Boris Johnson declared, “Left wingers will howl. But it’s time to make criminals afraid – not the public.” Declaring his mission to ensure that criminals “get the sentence they deserve,” Johnson continued a theme begun in his Telegraph columns on the campaign trail, when he railed against “early release” from prison and inadequate prison sentences being passed. The solution to our criminal woes, the subtext screams, is to lock up more people for longer.

And let’s make no mistake, punishment is a legitimate and important part of criminal sentencing. It is one of the five purposes of sentencing listed in statute, alongside the reduction of crime (including by deterrence), reform and rehabilitation, protection of the public and making reparations to victims. Few if anybody involved in criminal justice would disagree with the notion that people who commit crime should be punished in a way that reflects their culpability and the harm they have caused, and that for some people, notably the most serious violent offenders, lengthy prison sentences are inevitable.

However, the notion that longer prison sentences by themselves make any of us any safer is a fantasy. The notion in particular that knife crime will be solved if we simply lock up young men for years on end is a hoax. The public may well be protected from that particular individual for the duration of their incarceration, but the idea underpinning this rotten philosophy – that longer sentences have a deterrent effect on crime – has been shown to be bogus. What does act as a deterrent is not severity of sentence, but certainty. The likelihood of being caught and dealt with swiftly, in other words.

But crime reduction and prevention is not achieved solely by deterrence. Rehabilitation is a vital part of protecting the public. This is why, when dealing with complex, multi-causal offending intractably rooted in social and cultural problems, the courts may take the view that more can be done to protect the public by keeping a young man on the cusp of custody out of the prison warehouse estate, and offering focussed intervention in the community. Sending someone to prison usually means ripping them away from all and any stabilising factors they may have. They lose their job, their social housing and their relationship, and exit prison with no support network other than the new friends they’ve made inside. This is why the evidence suggests that reoffending rates are lower when offenders are kept in the community.

But the evidence is of no concern to the Prime Minister. This is why he is forced into infantile ad hominems as a pre-emptive rebuttal against the people who have read and studied the evidence, and might be minded to offer some as a counter to his claims that our system is soft.

We already have the highest incarceration rate in Western Europe. Prison sentences have on average got longer year-on-year. We have more prisoners detained on indefinite and life sentences than all the other countries in the Council of Europe.

The notion that our courts routinely hand out “soft sentences” is simply not true. When we do see “soft justice” stories in the headlines, they will either be an aberration, usually corrected on appeal, or they will be the product of inaccurate or dishonest reporting, removing context or omitting facts.

Which brings us to Johnson’s public statements. Because at the centre of his musings on criminal justice is a rich stuffing of bullshit. He has lied and lied and lied. He lied when he claimed that “a convicted rapist out on early release” had raped again (the man in question was neither a convicted rapist nor out on early release). He lied when he suggested that the notion of allowing some prisoners to be released on temporary licence was “criminally stupid” (the government’s own evidence shows that reintegrating prisoners into the community in this way cuts reoffending). When he told the Mail this weekend that there are “thousands of “super prolifics” – criminals with more than 50 convictions to their name – who are being spared jail altogether”, he did not tell you that one of the reasons they were spared jail might be that they were being sentenced for non-imprisonable offences. He is lying to you when he tells you that the solution to crime is More Police, More Prisons.

He is lying so that he can turn the volume up to 11 on his remix of “Prison Works” to ensure the oldies at the back of the conference hall can hear in the run-up to the inevitable autumn general election.

And while Mr Johnson is lying to you, the rest of the criminal justice system rots.

Courts are being closed down and sold off all over the country. Half of all magistrates’ courts have been closed, meaning that defendants, victims and witnesses are forced to travel for hours on ineffective public transport to their “local” court.

Of those courts remaining standing, many are unfit for purpose. Decaying, crumbling buildings with no working lifts, holes in the roofs, sewage leaking into public areas, no air conditioning in summer and no heating in winter. In some, the public cannot even get a glass of water.

Of the courts that remain unsold, all are now run at artificially low capacity due to Ministry of Justice restrictions on “court sitting days”. We have, in many large city Crown Courts, the farce of full-time, salaried judges being forced to sit at home taking “reading days” – their perfectly serviceable courtrooms sitting locked and empty – while trials are fixed for Summer 2020 due to an alleged “lack of court time”.

We still have the abominable system of “floating trials” and “warned lists” – where defendants, witnesses and lawyers are expected to give up days or weeks of their lives just sitting around at court on the off-chance that a courtroom suddenly becomes free to take their trial. When, inevitably, no courtroom becomes free (because the MoJ won’t pay for the sitting day, ibid), their case is adjourned for months, and the cycle begins again.

The one thing that does act as a deterrent to criminals – certainty – is being eroded by ensuring that justice is doled out literally years after the event, because the government will not pay for the courts to process cases clogging the pipeline.

Meanwhile legal aid is being stripped away from citizens, forcing them to self-represent in cases in which their liberty is on the line.

This is why I am angry. Not because I’m a “lefty” inherently resistant to Boris Johnson’s white hot public service reforms. I’m angry because as a prosecutor I am still having to sit down with crying witnesses week after week and explain that their torment is being prolonged for another six months because the government refuses to pay to keep courtrooms open. I’m angry because the Innocence Tax – the policy that forces the wrongly accused to pay privately for their legal representation and then denies them their costs, bankrupting them, when they are acquitted – is not even in the political peripheral vision. I’m angry because our Prime Minister is a man who looks at the record rates of death, violence, suicide, overcrowding and self-harm in our prisons and whose first question is, “How do we get more people in there?”. I’m angry because the notion that you “crack down on crime” by chucking a few more police officers onto the streets and shoving more and more people into our death-riven prisons is a con. It is a con to victims of crime, and it is a con to you, the public. I’m angry because we have the indignity of a dishonest, cowardly and exploitative Prime Minister fiddling with his Party’s g-spot while the criminal justice system burns.

Don’t fall for his con trick.

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.

Shamima Begum may not deserve your sympathy, but she is entitled to legal aid

Another weekend, another flurry of anti-legal aid stories finding their way into the tabloids. On the criminal legal aid front, The Mirror splashed outrage at the notion of Andrew Hill, the pilot acquitted of manslaughter following the Shoreham Airshow tragedy, “getting” legal aid to mount his successful defence at his criminal trial last year.

It’s one thing when The Mirror – a market leader in legal aid trash news – whips its readers into uninformed apoplexy over criminal legal aid being granted to those who are, after a fair trial only possible because of legal aid, convicted. But it breaks bold new ground even for this organ to resent legal aid being granted to a man whom a jury has found to be not guilty.

Then this morning, the Daily Mail, in a headline which may stand out as the apotheosis of journalistic legal ignorance, announced:

“Shamima Begum is on legal aid despite being stripped of UK citizenship”.

In much the same way that the people I prosecute and defend are granted legal aid despite being accused of criminal offences. Or diabetes patients are treated on the NHS despite having diabetes.

Shamima Begum is, of course, the tabloid ghoul du jour. A 15-year-old Bethnal Green schoolgirl fleeing her home country to join a terror cult abroad, and, four years later, intending to swan back in as if nothing had happened, is the stuff of a red top news editor’s wettest dreams. In February, Home Secretary Sajid Javid, in apparent defiance of his own Home Office advice and with a Fleabag smirk to the cameras, took the decision to revoke Ms Begum’s British citizenship. She is now appealing the Home Secretary’s decision to the Special Immigration Appeals Commission  and is likely to be eligible for legal aid.

Today’s Mail “scoop” follows allegations in The Telegraph that Ms Begum, while an “ISIS bride” in Syria, served as an enforcer in the “morality police” and sewed suicide vests onto her fellow jihadis, playing a far more active role in the group’s activities than she had previously suggested. The veracity of these reports is unclear, but let’s take as face value that they are correct, and that she was not merely a stay-at-home ISIS bride, but an enthusiastic accessory to the most appalling crimes against humanity.

Would this make her despicable? Yes. Meritorious of opprobrium, disgust, contempt and fury? Yup. A criminal? Among the very worst. Deserving of legal aid? Without a shadow of a doubt.

We’ve trodden these boards a thousand times before, but as the basics are yet to be learned by those with the biggest megaphones, they need repeating.

Everybody – no matter what they have done or are alleged to have done – is entitled to equal treatment before the law. That is the building block not only of the rule of law, but of our entire democracy. You don’t earn equal treatment, or qualify for it through good behaviour. It applies universally. The day we start making exceptions for the people who offend us the most is the day our civilisation crumbles.

Everybody is also entitled to a fair hearing where a legal decision has been taken which affects them. The removal of a person’s citizenship – a government telling a British-born citizen You have no right to exist within our borders – is one of the most far-reaching decisions the state can make. We do not want to live in a country where politicians can act with unchecked power; the rule of law requires that those affected have a route to challenge a decision and have an independent court review the evidence and decide whether that decision was taken in accordance with the law.

In this case, while there will be a lot of material to which the public will never have access upon which the government will rely, there are obvious concerns on the face of what we do know. International law prohibits domestic governments from rendering citizens stateless. Ms Begum is a British national born and bred; the Home Secretary is relying on her supposed eligibility for Bangladeshi citizenship (through her parents) to comply with international law. Bangladesh is a country which Ms Begum has never visited and which, for what it is worth, has publicly rejected the notion that she would be granted Bangladeshi citizenship.

It is far from certain that the Home Secretary has acted lawfully. It is obviously vital to establish that he has. This can only properly be done at a fair independent hearing at which the legal and factual arguments for and against are fully and competently presented. The Home Office will not spare any expense in instructing counsel to fight its corner (Theresa May was a fan of instructing multiple QCs for single cases to try to give herself an advantage). Equality of arms, another basic principle of the rule of law, requires that the citizen, Shamima Begum, be competently represented. As she is currently unable to pay for her own lawyers, lying destitute in a Syrian refugee camp, she will need to rely upon legal aid. Without legal aid, the case will not be properly argued; indeed, as she is currently banned from entering the country, without representation it will not be argued at all.

The benefits of the case being argued and a judgment being given flow not only to Shamima Begum, but to all of us. This is not merely a private matter of concern to her; all of us live under the law, and all of us need to know that our government is acting lawfully. Moreover, there will be many more cases of this type over the coming years. This decision could ultimately set a precedent, making clear the circumstances in which the government can revoke British citizenship from British-born citizens. Such a precedent is of value to all of us. Because while today, it’s Sajid Javid making a decision affecting Shamima Begum, tomorrow it could be a different Home Secretary making a decision affecting you, or someone you love. And while you may not care what happens to Shamima Begum, you will sure as heck want the law to be fairly applied to you. And this is the point about the law: it doesn’t exist in a vacuum. A decision affecting one of us affects us all. We all have a shared interest in ensuring that the law works as it should. As Lord Reed said in a famous Supreme Court decision:

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.

Shamima Begum herself, of course, will not receive a penny of taxypayers’ money. Legal aid is claimed from the Legal Aid Agency directly by her lawyers. A grant of legal aid is also not a bottomless pit, despite what the tabloids falsely claim. It is paid at fixed rates set by government, far below market value – and usually far below what the state pays its own lawyers. And it is designed, like the NHS, to ensure that all of us have our basic rights and dignity respected, whatever we have done. We do not withhold publicly-funded medical treatment for criminals, terrorists or other social undesirables; we recognise that to do so would be barbaric, the mark of a country that has badly lost its way.

So when the Mail invites its readers to fulminate and howl and ask Why should the public pay for this awful woman’s legal aid?, the answer that should be given – by our Lord Chancellor, preferably, as the person with the statutory obligation to uphold the rule of law – is because that is the price of living under the rule of law. If you’d rather exist in a society where the rules are not applied equally, where your entitlement to a fair trial is dependent on the whims of government officials or the roar of the effigy-burning mob or the deepness of your pockets, there are plenty of countries out there willing to oblige.

 

*****************

UPDATE: A common response to this story today has been from people who, understandably, feel aggrieved that more attractive (or “deserving”) causes than Shamima Begum were denied legal aid. Inquests are a particular area where legal aid has been refused for bereaved families, but the non-availability of legal aid stretches across the justice system, from the family courts to employment law to housing to welfare to personal injury to crime to immigration and so on. Many, many people have been denied justice due to refusal of legal aid. But to attack the granting of legal aid to Shamima Begum is, with respect, to miss the point. The scandal is not that Shamima Begum is eligible for legal aid in complex legal proceedings carrying life-changing consequences, but that so many other people have had legal aid refused and removed as part of the appalling attacks on legal aid that successive governments have wrought. It is not party political – all three main parties in government have fed the lies about legal aid to the press and public that have purchased political cover for them to obliterate legal aid and prevent ordinary people from accessing justice. In the 1980s, 79 per cent of the population was eligible for legal aid. By 2015, this had plummeted to 25 per cent. Public anger should be directed at the politicians who have convinced us that cutting legal aid is a good thing, not the few people who are still able to access justice.

Don’t let the Jack Shepherd stories on legal aid distract you from the government’s cynical agenda

Jack Shepherd is a coward. A pathetic, mewling quisling of a man. He is also a convicted killer, having been found guilty of gross negligence manslaughter. He caused the death of 24 year-old Charlotte Brown by taking her out on the Thames in his defective speedboat – bought, he boasted, to “pull women” – and, fuelled by alcohol, allowing it to be driven at high speed until it fatefully struck a submerged object and capsized. The breathtaking self-regard displayed by Shepherd in the moments that followed – calling for help for himself alone, not the stricken Charlotte Brown – was matched only by his decision to abscond while on bail, meaning that the trial, conviction and imposition of a 6-year custodial sentence all took place in his absence. The police having not yet located him, Shepherd has not yet served a single day of the 6-year sentence. He is refusing to take a scintilla of responsibility for what he has done; the very least, one might have thought, he could do to begin to atone for the unbearable, irrevocable grief he has inflicted on Charlotte’s family.

In a final twist of the knife, as has been reported over the last two days, while on-the-run – presumably abroad – Shepherd has, through his lawyers, applied for permission to appeal against his conviction and sentence. And the Court of Appeal has granted permission, in relation to conviction at least. As Mr Shepherd qualifies for legal aid, which the Court has now granted for the appeal hearing, it means that, in the words of the Daily Mail, Shepherd can “milk taxpayers for cash while on the run”. MPs and tabloids have since lined up to condemn this state of affairs; a fugitive flipping the finger at justice while still benefitting from the largesse of the country whose laws he brazenly flouts. “If the legal aid rules permit a man on the run, who did not even attend his trial, to receive legal aid…then the rules need to be changed,” declared Lord Garnier QC, a former Solicitor General. Eager to soothe the Mail’s wrath, the Ministry of Justice has “ordered an urgent review” to see what can be done to close this “loophole”.

Jack Shepherd

I can perhaps help. To begin, I’d urge anyone with an interest in this case to read this response by Tuckers Solicitors,the firm instructed by Jack Shepherd, which was published in reply to the Mail’s article. It sets out a few essentials that you may not have gleaned from the breathless reporting. For one, the claim that Tuckers Solicitors received “nearly £100,000” in legal aid to represent Shepherd is untrue – it was less than £30,000, which for a complex 4-week trial involving a homicide and, no doubt, technical expert evidence (experts who are paid out of that gross, VAT-inclusive figure), is not an unusual gross fee. I emphasise “gross” because, as with all legal aid expenditure “gotchas”, the headline figures (where accurate) always represent gross payments, inclusive of VAT, and represent months of work in advance of the trial by numerous legal and medical professionals, as well as the trial itself.

But the Tuckers response also helpfully sets out the duties of defence lawyers in situations where defendants abscond. It is not as uncommon as you may think. The first thing to note is that a defendant failing to attend court on bail does not automatically forfeit his right to legal representation. Sometimes, where a defendant fails to engage entirely with his lawyers and disappears, the solicitors and barrister will have insufficient instructions to act, and so will have to withdraw before the trial. But where a defendant has given instructions as to what his case is, and then refuses to attend court, his solicitors and barrister are under a professional duty to represent his interests as effectively as they can. They can’t simply assume guilt and walk away in disgust at the cowardice of their client – to do so would fly in the face of the role of defence lawyers. We do not judge our clients; that is the court’s job.  In Shepherd’s case, Tuckers had prepared “95%” of the case for trial before Shepherd absconded, and so they, and the instructed barrister, were able to continue to act.

Where a defendant on bail doesn’t attend his trial, the court has two options. It can either adjourn so that he can be arrested and brought to court. Or it can proceed in his absence. All defendants are warned at their first hearing before the Crown Court that this can happen if they fail to attend. There is case law to guide judges on the situations where it will be appropriate to have a trial in absence, but in general terms, deliberately absconding will be viewed as you foregoing your right to attend your trial. The consequences of that are serious: you surrender your right to give evidence in your defence, or to hear any of the evidence against you. And, of course, because failing to surrender to bail is a criminal offence in its own right, you will be arrested and subsequently dealt with for that. This is a key point absent from most of the media commentary – whatever happens in this case, even if Shepherd wins his appeal, he still faces a custodial sentence for fleeing.

But underpinning all of this is the right to a fair trial. The Mail attributes this right, with typical misplaced hostility, to the European Convention on Human Rights, but while the right to a fair trial is indeed guaranteed by the Convention in Article 6, it has been ingrained in English and Welsh law for centuries. It is the foundation of our criminal justice system. It is not a privilege, but a right. And rights are not something that we only give to people we like. Justice is not earned, it is not dependent on a person being “deserving”; the core of our civilisation is the notion that we deal with everybody, however reprehensible, by the same fair standards. Even the most despicable criminals have the right not to be wrongly convicted.

So it is that, even if a defendant flees before his trial – even if he is a repeat offender who has previously committed the most odious crimes against us – the justice system ensures that his right to a fair trial is upheld. It doesn’t simply tell a jury to convict him on the basis that he has done a runner; the usual rules of procedure and evidence, carefully designed over centuries to ensure, as best we can, that the guilty are convicted and the innocent acquitted, still apply.

What then, of appeals? Surely, the question is posed by the reporting, if you flee the country, you shouldn’t be allowed to appeal? Certainly not with taxpayers’ money?

At face value, I agree – this looks like a shocking and baffling state of affairs. But stripping it down to its principles, it makes a little more sense. A key element of the right to a fair trial – to not be wrongly convicted – is a mechanism to appeal where the trial court gets things wrong. This, when you think about it, stands to reason. The right to a fair trial is meaningless if there is no way to enforce it. That is what an appeals system offers – a check on the safety of a conviction. Because even people who are convicted of appalling offences and abscond are still entitled not to be wrongly convicted. And the duties of defence lawyers to ensure that their clients – even horrid clients who have absconded – are not unfairly convicted, still apply.

The right to appeal can mean different things in different jurisdictions. Some countries give an automatic right to a full retrial; others, like England and Wales, impose strict criteria. You firstly have to successfully obtain permission (or “leave”) to appeal against a Crown Court conviction or sentence. This is done by a written application by the lawyers, which sets out the grounds of appeal and argues why the conviction is unsafe. On the legal aid point – the barrister and solicitors do not receive a penny extra for advising on appeal or drafting the application and grounds. It is all done for free. In practical terms, it provides a disincentive to the lawyers to positively advise on appeal unless they really believe it has merit.

For a conviction to be found “unsafe” is a very high threshold. If a High Court judge reading the application considers that you have a good argument that deserves a full hearing before the Court of Appeal, they will grant permission. To put this in context, 90% of all applications for permission to appeal are refused.

Jack Shepherd has been granted permission to appeal against his conviction (but not, contrary to the Mail’s claim on its front page today, his sentence). The reasons are not yet publicly known; Tuckers refer in their statement to “legal errors made during the trial”, but the full picture will become clear when the appeal is heard. However, the numbers alone tell you that, in order for permission to have been granted, there will be merit in these arguments. There is a genuine concern that something at his trial went seriously wrong. This is not some speculative attempt by lawyers to drum up funds by launching spurious appeals; if there was no merit, the application would be in the bin with the other 90% of applications and no legal aid would be authorised at all.

Where permission to appeal is granted – as in this case – the Court of Appeal will issue a representation order (legal aid), usually for a barrister only, to prepare and present the appeal at a full hearing. If the solicitor is required to do work for a criminal appeal, most of the time it is expected that they do it for free. So the implicit suggestion that Tuckers will receive some 5-figure windfall from the appeal is a fantasy. They will in all likelihood receive nothing. The cost to the legal aid budget of this appeal will be minimal – the gross fee for a junior barrister defending an appeal at the Court of Appeal will usually run to a few hundred pounds. For a QC, the rate will be higher.

So if this case isn’t actually about money, what is it about? I’d suggest it’s about two things. Firstly, there’s unarguably a jarring feeling caused by this case. I understand the rage. It is raw and primal and exacerbated by frustration. We can’t get Shepherd – the police have so far proved unable to track him down – but we can lash out at the fallible system which gives rights to people who don’t deserve them; who offend and re-offend and then offend again. But we have to temper these urges with a sober reminder of our first principles: justice is not dependent on good behaviour. Equality before the law does not mean equality for people we like. Absconding to avoid prison is dreadful, pusillanimous behaviour, but it is not the worst we see in the courts. What about those who perjure themselves? Or those who, after being convicted, take revenge against witnesses? Or commit contempt of court by shouting out? Or who breach prison rules by smuggling in contraband? All of these, and many more offences, demonstrate a complete disrespect for the legal system and an arrogant lack of remorse. Do we remove the right of appeal to these people too? Or do we just remove the few hundred quid in legal aid payable to the lawyers, meaning that only absconders with the means to pay privately are able to appeal?

Secondly, this case, and the way it has been presented, fits with a popular narrative about legal aid. It’s for people who don’t deserve it. It’s a gravy train, cash cow or whatever culinary or zoological metaphor the chief sub-editor prefers. And this, again, fails completely to understand why we have legal aid in the first place. Legal aid – modest sums far below market rate paid to lawyers acting for the public – is central to access to justice. If you don’t have legal advice and representation, you can’t meaningfully enforce your legal rights. If the state comes to take your child, or wrongly accuse you of a criminal offence, or if your landlord unlawfully evicts you, or your boss sexually harasses you, you want to be able to assert your rights. If you can afford to pay privately for lawyers, good for you. If you can’t, then, like the NHS, legal aid offers the safety net. Without it, we have a two-tier justice system. Those who can afford to pay represented by lawyers, and you, who can’t, left by yourself standing in court fighting the legal professionals instructed by the state or corporate behemoths. To revert to the health analogy, you’d be left to operate on yourself. This is why legal aid matters.

The problem is that, for successive governments, legal aid has provided a giant political football, to be kicked and slashed at in the name of sport, political distraction and saving a tiny amount of money. The cost of the criminal legal aid budget, following 40% cuts to the criminal justice system, is £850m per year – around 0.1% of total public spending. Yet we are encouraged at every turn to believe it is a extortionate burden, filling the pockets of greedy lawyers (many of whom in reality often work on legal aid cases for hourly rates below minimum wage). It’s a lie.

And the effects of the lie are devastating. In 2012, the Legal Aid, Sentencing and Punishment of Offenders Act removed legal aid entirely from swathes of the country’s most vulnerable. The results have been catastrophic. Victims of sexual and domestic violence have been cross-examined by their abusers in family proceedings; penniless victims of rogue landlords and employers have been denied legal representation; people wrongly refused benefits by DWP cock-up have been left destitute and unable to challenge the decisions; and innocent people have been forced to pay privately for criminal defence lawyers and, upon being acquitted, have been unable to claim their costs back, effectively bankrupting them. All of this was predicated on lies told by the Ministry of Justice about our spending on legal aid (“we have the most expensive legal aid system in the world” being the headline whopper), and dutifully trumpeted by the tabloids.

The MoJ promised to publish a full review into the devastating impact of LASPO by the end of 2018. They broke their promise. Six years after implementation, we are still waiting. Within 24 hours of the Mail calling for legal aid to be stripped from unpopular criminals like Jack Shepherd, the Ministry pledged to hold an “urgent review”.

This is the real agenda of this flurry of media reporting. Calculated, cynical and dishonest fearmongering of what legal aid is, how much it costs and what it is for, with a clanging silence when it comes to explaining to confused readers why legal aid exists. If I were equally cynical, I’d suggest that this antagonising of the public against legal aid is a precursor the publication of the overdue LASPO report which will be damning of the damage done to people’s lives, in the hope that public rage will be diverted onto the Jack Shepherds and their lawyers, instead of the real villains in the legal aid scandal – the government.

Without legal aid, the rule of law collapses

The Guardian is currently running a brilliant series on the effect of the legal aid cuts turbo-charged by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Owen Bowcott and Amelia Hill have put together an in-depth investigation drawing on case studies and interviews to demonstrate the dire impact upon access to justice.

One such interview, should you be interested, was with me, and can be found here.

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]