Category Archives: Legal Aid

Announcement: Free Representation Unit

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Those who read these pages, follow on Twitter or have waded through the book will know that access to justice is a cause about which I’m prone to making a fair bit of noise. The rule of law only works if individuals have the means to enforce their rights in the courts, which is only possible if they have access to proper legal advice and representation. Not everybody, of course, can afford to pay privately for legal services, in the same way that most people cannot pay for private healthcare. This is why legal aid is often talked about in the same breath as the NHS and other pillars of the post-war welfare state. It should act as a safety net, ensuring that everybody has the ability to enforce their legal rights and that nobody is excluded from the justice system for lack of money.

Regrettably, as well we know, legal aid does not evoke the same degree of public sympathy or affection as healthcare or education. As a consequence, it has been politically possible for governments of all stripes to strip away legal aid from large swathes of the population, including many of the most vulnerable among us. The result is that often people are forced into a Sophie’s choice between representing themselves in complex legal proceedings, or simply not even trying. To lean on my favourite healthcare analogy, they are invited either to operate on themselves or just accept that they won’t get treatment.

This justice gap is why the work of pro bono legal charities is so vital. Like with food banks, we would rather live in a society where such charitable endeavours were not needed; however, for those with nowhere else to turn, pro bono units provide the safety net where the state would let people fall. And this is why I am delighted and honoured to announce that I have joined the Free Representation Unit (FRU) as a patron.

FRU was set up as a charity in 1972, and specialises in social security and employment law, providing free legal representation to clients unable to afford to pay for lawyers. Its representatives are volunteers – many of whom are trainee lawyers – and it is reliant on charitable grants and donations to fund a team of staff running the office and supervising the 500 cases it takes on each year.

At present, FRU is seeking funding to support disabled people, particularly those with mental health issues, through social security appeals tribunals, with a focus on Personal Independence Payment (PIP) appeals. A crowd-funding campaign is launched this week, with an initial target of £2,500.

If anybody reading is able to make a donation – however small – it would be hugely appreciated. I am kicking things off with a donation of my own, and we have 30 days to reach our target.

Thank you x

 

FRU says:

“Any legal case is a daunting prospect for anyone, but particularly for our clients if they suffer from mental health conditions. Our recent work has seen us act for a victim of criminal violence with a split personality disorder, a client who suffers from post-concussion syndrome following an attack during the Tottenham Riots, and a victim of a violent rape now suffering from severe PTSD.

 Supporting these claimants as they re-live such traumatic events makes a huge difference to their experience of litigation and their chances of success. This means they get money to cover the costs of their disability. For our clients, the lack of Legal Aid means that they can’t afford to be represented.

 The Chairman of the Work & Pensions Parliamentary Select Committee recently said that “Claiming a benefit to which you are legitimately entitled should never be a humiliating, distressing experience. Government must move now, faster, to make this right.”

 Research with people with legal problems recently found that “The process of trying to pursue justice without legal aid added extra physical and mental strain, which may exacerbate existing physical and mental health issues or cause new ones. This was particularly noticeable for disabled participants, who found the stress of trying to resolve a welfare issue with inadequate advice made their health condition worse”.

 The benefit of legal advice is clear: people who are represented are successful in 65% of cases whereas those who are unrepresented are successful in only 45% of cases. We help our clients to get their voices heard so that decision makers truly understand their situation.

 If a tribunal agrees with the client’s benefit appeal they could receive between £22 and £145 per week in social security payments. For disabled people on a low income this could mean the difference between not leaving the house and having a life or not having to choose between heating and eating.

 By supporting FRU you would contribute to a charity that makes a clear difference to the lives of some of the poorest and most vulnerable in society.

 We represent on average two clients in a tribunal haring every working day of the year. Over a year one legal casework supervisor can support hundreds of volunteers. £2500 will enable us to pay a legal supervisor for a whole month to support our volunteers to do a great job. Raising more would keep our service going for longer.”

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

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

 

Dishonesty

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

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

 

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

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

 

Drugs

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

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

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

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

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

 

Junior advocates

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

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

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

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

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

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

 

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

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

 

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

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

 

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

 Good news for new starters.

 

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

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

 

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

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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

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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

Did this kitten really conduct a criminal trial by itself… and WIN?

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I am informed that one of the liberties you can take as a writer with a (undeserved and long-suffering) loyal following is to indulge in a little creative sleight of hand. One might, for example, in an effort to gain wider attention for a mundane-sounding issue, attach a ludicrous and unrelated clickbait headline to draw in the unwary – possibly including a shareable photo – with quiet confidence that you’ll be forgiven once the Greater Good of your evil plan becomes apparent.

original

Let’s put that theory to the test.

Because, and this will surprise you, there is no kitten conducting criminal trials (or at least not winning them). The cat in the photo is not a registered practitioner. Instead, now that you’re three paragraphs in, we’re going to talk about the Ministry of Justice Single Department Plan.

Stay with me – we’ll be quick. Anger is conducive to brevity. This is the document published today setting out the MoJ’s “priorities” for the year ahead. The four key objectives are identified as:

  1. Provide a prison and probation service that reforms offenders
  2. Deliver a modern courts and justice system
  3. Promote a global Britain and the rule of law
  4. Transform the department

Of themselves, these objectives are inoffensive enough. Indeed, what the plan says about prisons has much to recommend it, particularly the emphasis on tackling reoffending through a focus on education and employment opportunities for prisoners. We’ll overlook for now whether bold solutions to improving prisons such as “preventing and disrupting serious and organised crime in prisons” are really solutions as much as vaguely-defined objectives. And whether any strategy to “ensure a sustainable prison population” can sensibly say nothing whatsoever about the steady increase in the average length of custodial sentences imposed by the courts. Those are quibbles for another day.

Because the silence that rings the loudest is that surrounding the dismal state of the criminal justice system. While, true to form, the MoJ trumpets its digital court modernisation programme at every turn (a counterpoint to which was provided the other week by the early progress report of the National Audit Office pointing out that said programme is already behind schedule, has “unresolved funding gaps” and will not deliver the benefits that the MoJ has claimed), much less is said about the problems that have forced criminal barristers to take urgent action and caused the entire system to grind to a halt. Below are just a selection, with the “Single Department Plan” response in bold.

  • The dilapidated state of our court estate is a matter of national shame. Ceilings are literally leaking human waste and falling in mid-trial. Courts all over the country now have no catering facilities – defendants, witnesses, jurors and lawyers are required (some under threat of imprisonment) to spend the day in a building where the public cannot even get a glass of water.  Nothing beyond a vague pledge to “continue the modernisation of our courts”.
  • The widespread scheme of court closures means that many people now have to travel several hours to reach their local court. Close even more courts: “Use fewer, better, more flexible court buildings more effectively for the benefit of citizens.”
  • The Crown Prosecution Service has lost a third of its staff since 2010 through budget cuts of over 25%. The problems this causes to the competent prosecution of cases is covered at length in the press (and in Chapter 4 of my book). No mention, save for a vaguely declared ambition to “improve the experience of victims of crime within the criminal justice system”.
  • Disclosure – the vital part of the criminal procedure where the police and prosecution provide the defence with material in their possession which could help establish someone’s innocence – remains a shambles. As a result, innocent people risk conviction. No mention.
  • The Innocence Tax continues to strip the homes and life savings away from innocent people wrongly accused of criminal offences. If you have a modest joint household disposable income, the state will refuse to give you legal aid, force you to pay privately for lawyers, and then when you are acquitted will refuse to fully reimburse you for your fees, potentially leaving you out of pocket to the tune of hundreds of thousands of pounds. No mention.
  • Legal aid rates, cut by around 40% in real terms, continue to force local solicitors’ firms out of business. Bright young people are either deterred from joining the criminal Bar, or forced out after a few years of earning below minimum wage. No mention.
  • Court listing practices continue to operate to please MoJ statisticians, to the detriment of victims, witnesses and defendants. People are dragged to court for their trial (thus allowing a court listing officer to say that the trial has been listed) only to find that their case cannot in fact be heard due to courtrooms sitting empty, as the MoJ won’t pay for judges to hear the trials. Trials are therefore adjourned repeatedly, sometimes until witnesses lose faith entirely and walk away from the process. No mention, save for a vaguely declared ambition to “improve the experience of victims of crime within the criminal justice system”.
  • Chris Grayling’s policy to deny victims of miscarriages of justice any compensation for years wrongly spent in prison continues to bite. Unless you can prove your innocence, you do not get a penny. No mention.
  • The number of unrepresented defendants in criminal proceedings is on the rise, and judges have expressed their concern in a report which the MoJ tried to hide (over which the MoJ has now been reported to the Information Commissioner). No mention.

All of these share a common diagnosis: they are the result of the unparalleled cuts that the Ministry of Justice budget has suffered since 2010 – 40% will have been slashed by the end of the decade.

What does the MoJ’s Grand Plan for 2018/19 say about this? Does it acknowledge the problem? Does it vow to fight the Treasury for the funds that the system desperately needs if it is not to collapse altogether?

Not quite. The MoJ promises instead to:

Maintain a continued tight grip on departmental finances

Which really says it all. This is not a department with an interest in improving the quality of justice. It is a cabal of ideologues playing financial chicken, tossing vulnerable people onto the motorways of fate with little care for the outcome, as long as they can boast to their betters about the tightness of their fiscal grip.

As of Friday, the criminal Bar will be withdrawing the goodwill on which the justice system runs. Documents such as this from the MoJ, making quite plain how utterly unimportant they consider our criminal justice system to be, make me seriously consider just walking away entirely.

 

No Returns: A non-lawyer’s guide

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Last night, following an intriguing debate in the House of Commons in which members displayed the full gamut of understanding of criminal justice, MPs voted to bring forth the “cost neutral” changes to the way barristers are paid on legal aid, which in some cases amount to cuts of 40%. (Technically the Commons voted against Labour’s motion to annul the statutory instrument heralding the new Advocates’ Graduated Fee Scheme, but that’s more of a wordy opening sentence).

This marked the latest step in the ongoing dispute between the Criminal Bar and the Ministry of Justice. More details are here, but in short we say that the criminal justice system is desperately underfunded and requires immediate and significant investment (there’s some book or other that goes into more detail). Part of this – but only a part – relates specifically to legal aid rates, on account of how we think it’s a bit unfair that junior criminal barristers are often working 80-hour weeks for rates sometimes working out as low as 50p per hour, and are concerned that bright young barristers are being forced out of the profession. The Ministry of Justice is firmly in This-Is-Fine-Dog-meme-mode, and is pressing ahead with its plans to (a) further “reform” criminal legal aid (by shuffling the deckchairs in such a way as to amount, in some complex cases, to a 40% cut); and (b) do absolutely nothing about the chronic underfunding of the courts, Crown Prosecution Service, police, Probation, prisons and many other decaying limbs of the criminal justice system.

this-is-fine-meme-625x350

Presently, criminal barristers are not accepting any legal aid cases under the new fees scheme (which has applied since 1 April 2018). Today, in the face of governmental refusal to take the issue seriously, matters have escalated. The Criminal Bar Association has recommended to its members that, as of Friday 25 May 2018, they implement a “No Returns” policy. If you are a non-lawyer who follows legal types on Twitter, you may well have seen criminal barristers enthusiastically discussing this topic, but without necessarily understanding what it entails.

In a nutshell, a barrister’s work falls into two camps: First, there are cases on which a barrister is instructed in their own name (a solicitor calls the barrister’s clerks and asks specifically for a particular barrister). Secondly, there are “returns”. The reality of the courts, in particular the criminal courts, is that things rarely go to plan. In crime, numerous unstable elements – disorganised defendants and witnesses, the understaffed CPS and police, unreliable private contractors failing to bring prisoners to court, broken video link technology, absent interpreters, sick jurors and so forth – compound with resultant ubiquitous chaos. Trials overrun, or cases are suddenly listed without warning by a judge wanting to raise an urgent issue with the parties, or the court decides for its own convenience to move a hearing to a different date, and frequently the instructed barrister is not able to attend. What presently happens is that a colleague who has a gap in their diary, usually from the same chambers, agrees to accept the case as a “return”, and steps into the breach to cover. This usually happens between 4.30 and 6pm the night before the hearing, when it becomes clear that the instructed barrister is stuck, and their clerks desperately shuffle everybody’s diaries to arrange cover and accommodate the work, often with a spiralling domino effect.

In practice, accepting returns is often an unrewarding task. You are basically required to master an entire case – which can take several hours – at very short notice, and (unless it is a trial) for very little to no pay. Covering a “mention” for a colleague – that’s an umbrella term for a hearing covering a multitude of sins, which can last anything from 5 minutes to 6 hours, depending on the particular issue that needs thrashing out and how long the court keeps you waiting – pays £46.50 plus VAT if you’re prosecuting. And if you’re defending, you get £87 (which is paid to you by the instructed barrister). Gross figures which, after deductions, amount to between £20 – £40. If you’re travelling to a far-flung court, as the most junior practitioners are often required to (it’s not pretty at the bottom of the barristerial food chain), your train fare will often exceed your fee for the day.

So why do we do it? The first reason is self-interest; particularly when you are very junior, and are trying to build a reputation so that solicitors and the CPS will send you work in your own name, returns make up the bulk of your practice. For more established practitioners, returns fill gaps in your diary that arise when a trial you had listed is suddenly taken out of the court list the night before and kicked 6 months down the line because the court discovers it does not have any judges to hear the trial (a depressingly regular occurrence, and an abominable way to treat witnesses, victims and defendants).

But the second reason we accept returns is tradition; as a professional courtesy. We recognise that, if we didn’t volunteer to help out when our colleagues found themselves required to be in two places at one time, the courts would come to a halt almost overnight. No progress would be made on any case at any mention hearing, unless and until the instructed barrister became available to attend. Trials would be called on with no advocate to prosecute or defend. Defendants due to be sentenced would have no prosecutor to open the case, or no defence advocate to advance mitigation. Chaos would be piled upon chaos.

So, in what judges refer to (rather fawningly, usually when trying to get you as an advocate to agree to do something for free) as “the best traditions of the Bar”, barristers just accept that part and parcel of the job involves picking up other people’s mess, at very short notice, in order to help an under-resourced and madcap system maintain some semblance of order. We do so out of goodwill; we are not required to. (So low have legal aid rates fallen that barristers, usually professionally bound by the “cab rank rule” to accept instructions on any case, are not required to accept legal aid cases on account of the Bar Code of Conduct deeming the rates since the mid-2000s to be not a “proper professional fee”). We accept returns out of a sense of duty.

It follows that deciding not to accept any returns is a serious step. The impact will be instant, and it will be significant. Trials will not be able to go ahead. Mention hearings, plea hearings and sentence hearings will be listed and no barrister will be available to attend. We take absolutely no pleasure in this. But, like junior doctors forced to the streets by the mendacity and vandalism of Jeremy Hunt, we feel that we have no choice. It will place a particular financial burden on the most junior in our ranks, deprived of their regular £46.50 gruel, and as a profession we will do what we can to support them. It will inevitably have an impact on those who rely upon the courts; for this we are sincerely sorry.

But the Ministry of Justice is not listening. It is burning your criminal justice system to the ground and cutting adrift those, usually the most vulnerable, who depend upon our courts. And it is incumbent upon us, in the best traditions of the Bar, to speak up for unpopular causes to our own financial detriment. Even a cause as unpopular, and politically unloved, as the fate of our justice system.

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

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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

CrowdJustice Campaign – Alert your MP to the state of criminal justice

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I am thrilled to be part of a brand new CrowdJustice campaign, launched today, aimed at shining a light on the crisis in the criminal justice system. The Criminal Bar Association and Young Legal Aid Lawyers are asking for pledges to raise funds so that every single Member of Parliament can be sent a copy of Stories of The Law and How It’s Broken and a copy of the Young Legal Aid Lawyers report on Social Mobility in a Time of Austerity. The frightening reality appears to be that too many of our elected representatives are oblivious to the parlous state of our under-funded, under-resourced criminal justice system. This campaign hopes to change that.

For my part, I shall be donating royalties raised by this campaign to the wonderful Bar Pro Bono Unit.

For more information, please see the CrowdJustice page here:

 

Bad law reporting and a public dangerously disconnected from criminal justice

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The criminal law has long had an image problem.

Partly, the fault is internal: the ridiculous costume; the alienating hybrid of legalese and obsequious formality that renders court hearings nonsensical to anyone in the public gallery; the impenetrability and inaccessibility of updated statute and case law; the historic failure of those of us in the system to lawsplain to those outside how justice works and why our founding principles are so important.

But part of the problem is broader: the refusal of successive governments to provide any meaningful legal education in schools; irresponsible and inaccurate news reporting; and legal illiteracy indulged and expounded by politicians using the law as a cheap crop to beat their hobby horse of choice.

The result has been inevitable. Centuries of compounded negligence have culminated in a disconnect between the criminal justice system and those it purports to serve. And most days it feels as if it’s getting worse. No longer are rabble-rousing mis-reports of legal stories confined to a day’s news cycle before being scrunched around tomorrow’s cod-and-chips; the rags are now frequently doused in the kerosene of social media and sizzle with white hot rage for days, weeks and even months on end.

While I don’t pretend that this is a problem confined to criminal law, it is often the tales of “soft sentences” and “putting criminals’ rights ahead of the victim” that burn the brightest. The formula is predictable: there will be a headline attack on an “out of touch” judge (pictured, for enhanced ludicrousness, in their ceremonial wig), with a decontextualised snippet of the judicial remarks and a gaping absence of informed fact or sober analysis.

Broken-Justice-System

And over the past twelve months, we’ve suffered 365 Groundhog Days of these. The case of Ched Evans kicked things off, with outlets eager to report the outright untruths of politicians suggesting that this case set a dangerous precedent allowing complainants in sex cases to be gratuitously humiliated in court over their sexual history. A campaign to not just reform section 41 of the Youth Justice and Criminal Evidence Act 1999, but to issue a blanket ban on any questions about sexual behaviour, is still being propelled by several MPs. It matters not that to do so would result, inevitably, in vital defence questions being prohibited and innocent people being convicted. A straw man effigy of section 41 has been hoisted onto the bonfire along with the presumption of innocence, with Harriet Harman proudly holding aloft the matchbox.

A run of sentencing “outrages” has followed.

The man who beat his wife with a cricket bat and was spared jail, because the judge deemed that the victim was “not vulnerable” (except the judge didn’t say those words, and it wasn’t the reason for the custodial sentence being (initially) suspended). The paedophile released only five years into a 22-year prison sentence (except it wasn’t a 22-year prison sentence, and he served longer than five years). Lavinia Woodward, the Oxford undergrad whose gratuitous bikini shots accompanied the squeals of horror that this rich white girl had been spared prison for stabbing her boyfriend, just because the rich white judge thought she was “too intelligent” to be locked up. Was that the reason she was spared jail? Did the judge ever say those words? Are any more rhetorical questions needed?

Rarely, if ever, is the reader informed of the Sentencing Guidelines and case law that constrain judges as to their approach in these cases, and which explain certain terms deployed in the sentencing remarks. Rarely are those remarks published in full — a flaw in the channels of official judicial communications for sure, but also the responsibility of those trained in shorthand in the press gallery. And rarely is there any voice of expertise explaining the apparently inexplicable, or offering a counterpoint to the incitement to fulminate.

Sometimes, of course, decisions will be made in court which do horrify, and for which there is no sensible justification. But most often, a straightforward, prosaic explanation exists. It’s just not reported. Neither editor nor politician will deal in full facts, whether through ignorance or malice.

The greatest tragedy is that if, instead of scything the low-hanging, rotten fruit the reporters reached a little higher, they would find that there is so much in criminal justice for their readership and Twitter followers to get angry about.

There’s the obliteration of legal aid, cutting the middle-classes out of publicly-funded legal assistance if they are wrongly accused of a criminal offence. There’s the ‘innocence tax’, which means that if, having been refused legal aid, you pay privately for your defence, you are not allowed to reclaim your full fees even if acquitted. Everyone in the system can speak for hours about the stack-em-high, sell-em-cheap model of warehouse justice in the magistrates’ courts, which is being rolled out in the crown courts under the euphemism of glorious efficiency. Disclosure — the means by which most innocent people secure the key to their escape — is found by report after report to be an abomination due to a hybrid of poor training and insufficient resources at the cut-to-the-bone police and Crown Prosecution Service.

But these problems evade meaningful public scrutiny, perhaps through ignorance, or perhaps because it’s simply far easier to report, and get angry about, a pervert getting help in the community rather than rotting in our violent, suicide-ridden prisons.

Public legal education is needed now more than ever. The Solicitor General, to his credit, appears to recognise this. His new Public Legal Education Panel is a start. Something needs to change if the public are going to have a hope of recognising where the real problems in justice lie; and who, in reality, poses the greatest threat to their rights. The thing about criminal justice is that, for all too many people, the realisation of how far basic protections have been eroded only dawns when it’s too late.

This article first appeared on Legal Cheek, and is available here.