I have today written a piece for the i newspaper on the jury system, after the excellent series published this week on life as a juror, The Trial: Secrets of Jury Service. My thoughts can be found here.
I am delighted to host this guest post by Joanna Hardy of Red Lion Chambers, articulating better than I can the appalling legacy of the Ministry of Justice’s continued selling-off of our courts.
The idea of living in the converted entrance hall of Acton Magistrates’ Court would surprise most lawyers. It used to be a sad place. Chewing gum used to cling to the floor, tackily collecting a thousand stories. The waiting-area seats groaned whenever a defendant rose to tell the local Magistrates why he had stolen the bicycle, punched the man or skipped his railway fare. The graffiti in the toilet documented the rights and wrongs of many stories and sub-plots. Defendants, victims and their respective families filed in to see justice being dispensed, case by case, crime by crime.
It was the turnstile of local justice.
Living in a converted Magistrates’ Court is not cheap. In 2017, the going rate was around £1.4 million. “Be the judge of this three-bedroom home” quipped a property article, “sleep in what used to be the grand entrance hall of Acton Magistrates’ Court”. The chewing gum has, presumably, gone and been replaced by a “rooftop terrace and steam room”. It looks happier now.
Acton might be at the start of the alphabet, but she is not alone in her dramatic makeover. Brentford Magistrates’ Court is now a luxury building that retained the cell area for trendy bicycle storage. Old Street Magistrates’ Court is a fancy hotel where you can “have a tipple” in the spot the Kray brothers once stood.
Time and again the sites of local, gritty justice have been transformed into luxe properties with corresponding price tags.
Recent figures reveal half of all Magistrates’ Courts have closed since 2010. Those pursuing local justice are increasingly finding that it is not very local at all. Courts are being consolidated and warehoused into larger centres spread out across the country. Community justice now needs to hitch a ride to the next town.
The benefits of justice being dispensed within a local community are keenly felt by those involved. For better or for worse, defendants can sometimes lead difficult, chaotic lives. Someone who is addicted to alcohol or drugs is unlikely to make a cross-county trip by 09:30am. Someone dependent on state benefits might not prioritise a peak train ticket to their court hearing if they are budgeting to feed their children. Their delays will cost society money. It might cost complainants and witnesses their time and a considerable amount of anxiety. If a defendant does not turn up at all then stretched police resources may be diverted to locate them. The community suffers.
Victims and witnesses might also struggle to make an expensive, time-consuming trip to a far-flung court. Those with childcare or employment responsibilities might not be able to spare an entire day to give evidence for twenty minutes. In some areas, the additional distance may cause witnesses a real discomfort and unease. There have been suggestions that some courts are so poorly served by public transport that witnesses and defendants could end up inappropriately travelling together on the same bus.
The benefits of local justice are clear in the day-to-day running of our courts. In some local cases, police officers still attend bail hearings. Put simply, they know their beat. They know the shortcut alleyway behind the pub, the road that is notorious for teenage car racing, the park where trouble brews. Their local knowledge helps to improve the practical decisions of the courts and to keep society safe.
The neighbourhood officer joins a long list of local benefits. Youth defendants attending a courthouse in their community can go back to school or college after their hearing. That preserves a shred of stability during a chaotic time. Probation officers sometimes know repeat offenders from earlier court orders or programmes. That helps with continuity of services including mental health, drug and alcohol treatment – often being coordinated by a GP down the road. Magistrates themselves are regularly drawn from the immediate geographic area. A community problem emerging at a particular football stadium, pub, school or street then attracts a consistent approach and a local focus.
Our justice system will be immeasurably poorer by the aggressive, short-sighted contraction of our court estate. Local knowledge, neighbourhood agencies and community justice have been gambled for large court centres making rulings from afar. The inevitable delays will waste public money. Complainants and witnesses will be inconvenienced. Police officers will be stretched. Decisions will be made in far-removed buildings distanced (in more ways than one) from the real crime on our streets.
The next time an advertisement surfaces for a luxury converted “Courthouse” building we ought to remember the real value of community justice and how much losing local courts might cost us all.
Joanna Hardy is a criminal barrister at Red Lion Chambers.
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”.
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.
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.
Many if not most of you will have already seen this, but I decided to mark Festivus Eve (22nd December) by live-tweeting a festive favourite, Home Alone 2: Lost In New York, and doing my muddled best to analyse it through the lens of English and Welsh criminal law (a lens somewhat fuzzed by a few mulled wines). The first tweet is below; click to be taken to the full thread.
*** HOME ALONE 2 LIVE-TWEET: THE RULES***
This lecture explores the Christmas classic ‘Home Alone 2’ through the lens of English and Welsh law.
Contributions and observations are welcome, but I’m perfectly prepared to tweet the entire film to a wall of embarrassed silence.
— The Secret Barrister (@BarristerSecret) December 22, 2018
From there things got a bit mad, as reporters desperate for copy and merry on leftover Asti from the Christmas party stumbled across the thread and mistook it for something newsworthy. By Christmas Day, the “story” had caught the attention of MailOnline:
Well this wasn’t how I expected Christmas Eve to go. https://t.co/T4kRprLYGG
— The Secret Barrister (@BarristerSecret) December 24, 2018
And some of their greatest below-the-line comments:
Ha the comments. pic.twitter.com/tsAZCAAPuZ
— Tristan Beer (@TristanBeer) December 24, 2018
Then the the Evening Standard got wind.
Barrister's hilarious tweets reveal every law broken in Home Alone 2 https://t.co/yNT1YWJOOp
— Evening Standard (@standardnews) December 24, 2018
The Metro wasn’t far behind.
The Secret Barrister has basically changed the way we watch Home Alone https://t.co/gi6Jr77Ban
— Metro Entertainment (@Metro_Ents) December 24, 2018
Yahoo Celebrity News got in on the act.
— Yahoo Celebrity UK (@YahooCelebUK) December 24, 2018
The Sun managed to misunderstand the point entirely:
Home Alone 2 fans shocked by legal errors as Macaulay Culkin’s character could have faced 4 YEARS in jail https://t.co/rAUDQPJLQV
— The Sun (@TheSun) December 25, 2018
The story hit Ireland:
The Wet Bandits would be looking at 30 years to life after ‘Home Alone 2’ https://t.co/hzvzi9lxWl
— entertainment.ie (@entertainmentIE) December 24, 2018
We trended in New Zealand:
— TrendWiki New Zealand (@TrendWikiNZ) December 25, 2018
Somehow Bangladesh found it worth reporting:
The Secret Barrister live tweets every law broken in Home Alone 2 and reveals Macaulay Culkin’s character could face up to four years behind bars: A lawyer has revealed every law broken in iconic Christmas movie Home Alone 2 in a hilarious running… https://t.co/Vrnc0Qlj8e pic.twitter.com/bNaj48bRIi
— #BangladeshNews24 – BreakingNews24™ (@bdnews24) December 24, 2018
and even Putin’s propaganda sheet Sputnik News were running the “story”.
— Sputnik (@SputnikInt) December 26, 2018
Perhaps most barking of all, when Home Alone 2 was screened on Channel 4 on Christmas Day, the continuity announcer referenced the live tweet.
The Channel 4 continuity announcer just mentioned your live tweeting as well, in introducing Home Alone 2. Fame at last…
— Phil Corrigan (@PhilC2010) December 25, 2018
Overall, the thread has now apparently had over a million impressions on Twitter. I don’t know what this says, either about me or society. But nevertheless, Merry Christmas to you all, and thank you for your support. This has been a memorable one.
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.
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:
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:
Just a few thoughts about this story on the proposed “£23m increase” in legal aid criminal defence fees, which has been making some headlines. The Ministry of Justice has loudly publicised the agreement struck with the Criminal Bar Association over legal aid rates paid to criminal defence advocates – the story was even towards the top of the Radio 4 news bulletins – so some context may help anyone not fluent in the vacillating politics of the criminal Bar (i.e. normal people).
As an opening disclaimer, nothing that follows is intended as a dig at or slight towards those who have worked exceptionally hard on behalf of the criminal Bar to negotiate with an historically untrustworthy and dishonest Ministry of Justice. They have done their best, and have secured gains. However.
The MoJ’s press release headline is “The government will spend an additional £23 million on fees for criminal defence advocates”. This sounds like a big figure, and the MoJ want the public to think it’s a big figure, legal aid fat cats and all that. So let’s put it in context.
The Advocates Graduated Fee Scheme, which pays defence advocates in legal aid cases, has been cut relentlessly over recent years. As has the overall criminal legal aid budget. As has the overall legal aid budget. As has the overall MoJ budget. Approx 40% across the board.
Criminal legal aid has been cut in real terms by £340m since 2011/12. That has been achieved partially by cutting fees paid to advocates (AGFS), part by cutting fees paid to litigators (solicitors) (LGFS), part by restricting availability of legal aid to those accused of crimes.
To cut a long story of cuts very short, the latest wheeze by the MoJ was to introduce a new scheme of AGFS earlier this year. Its effect was to cut the fees in some complex cases by up to 80% (see this open letter). The Bar took action in April and refused to accept new defence cases under this scheme. This is because already poorly-paid work, particularly for the most junior practitioners, was simply unviable. We’re talking £3-an-hour unviable in some cases. The MoJ insisted the new scheme was “cost neutral”, just moving money around. This was untrue. It was a cut of £9m.
The MoJ persuaded the criminal Bar by a Brexit-like margin (51.5% to 48.5%) to vote to go back to work on the promise of £15m extra being injected into the scheme by October 2018. The MoJ did not keep its promise. Firstly, the agreement had been that this £15m would be added to the AGFS spend for 2016/17. When it published its proposals, the MoJ disingenuously added the £15m to the figures for 2017/18, which were significantly lower (due to falling caseloads), and this had the effect of only increasing the 2016/17 spend by £8.6m. Secondly, it was not done in time for October as promised. So in November we’re still working on the new (terrible) rates.
There have since been further negotiations between the Bar and the MoJ, in an effort to undo at least some of the damage. The upshot is this “additional £23m”, which in fact simply represents the £15m which we were originally promised. (£23m is the figure you get if you use the 2017/18 figures.) And it’s worth noting that all these figures include VAT at 20%, which we are required to charge and pay to the taxman. So a good sixth of that figure is going straight back to the Treasury.
But in any case, what do these abstract figures mean? Not much. For a start, it’s based on modelling. So the increase only amounts to this figure if the workload in the courts remains broadly the same. It won’t, because fewer cases are being charged and brought to court, to save money. Without seeing the figures in the boxes (the details have not yet been published), it is impossible to properly assess how far this extra money will go, but to give context, the total spend on AGFS in 2016/17 was around £227m. So an added £15m is very small beer. It will probably help smooth some of the roughest edges in the scheme, but doesn’t touch the sides of the cuts over the past decade. Legal aid rates remain artificially low.
Junior criminal barristers will still be covering all-day hearings for senior colleagues and taking home less than £40 for the privilege. We will still have trials that we’ve spent days preparing randomly refixed by the court for dates we can’t do, and will be paid £0. We will still be paid not a penny to read through thousands of pages of disclosure – the vital material that could hold the key to saving an innocent person from years in prison. Our median take-home pay will still be a modest £27k. The most junior will still take home under £8k.
HOWEVER, here’s the point. It’s not actually about us. We choose this career and go into it with our eyes open. There’s a far bigger picture, which we must not lose sight of.
Much as what we get paid matters to us (and to society – you ain’t gonna have much of a lawyer prosecuting your burglar or defending you against a false allegation if they’re billing £5 an hour), it’s a tiny piece of that picture. The whole justice system needs investment.
The justice budget has been cut by 31% – by £2.9 BILLION – since 2010, with a further 9% cut (£800million) to take effect by 2020. The effects are those I, any many others, highlight every day. They are why I wrote the book. The justice system is broken.
The police have no resources to catch criminals. The CPS don’t have resources to prosecute, or to comply with disclosure to protect the innocent. The courts that haven’t been closed are crumbling, leaking wrecks. Victims, witnesses and defendants face chronic delays and errors.
Some defendants are excluded entirely from legal aid, forced to self-represent or pay privately. If acquitted, the government will not pay back their legal fees in full, leaving them destitute.
Prisons are too horrific to put into words, although I try here:
Prisons are too horrific to put into words. pic.twitter.com/G61JzHWkXv
— The Secret Barrister (@BarristerSecret) November 24, 2018
So while the MoJ may congratulate itself, make no mistake – this is not a solution. Not even close. £15m for legal aid when you’ve sacrificed £4bn, demolished the court & prison estate and excluded the most vulnerable from accessing justice, is not the end. It’s barely the start.
Below is an open letter published by five junior criminal practitioners in relation to the new Advocates Graduated Fee Scheme (AGFS), which for non-lawyers is the scheme for payment of defence advocates in legally aided criminal cases.
We write in relation to a case which has just collapsed at the Crown Court sitting at Inner London. We write to express our dismay at the remuneration under the new AGFS scheme and the consequences which will now follow.
This was a five handed Conspiracy to Kidnap and Blackmail case and was listed with a four week estimate, due to commence today (19thNovember 2018). All counsel/advocates were instructed at the outset of this case.
The evidence was voluminous to say the least, with near enough 10,000 pages of used and served evidence and all counsel taking approximately 2 weeks out of court on various days to prepare the case for trial. Much of the evidence consisted of telephone transcripts and translated Spanish telephone evidence along with cell site mapping.
Only last week, the Crown disclosed information relating to the complainants character and that he was now refusing to come to court to give evidence. Indeed, he lost contact with the police officers in the case and switched his mobile phone off. This resulted in the crown applying to adduce his evidence under the hearsay provisions.
All defence counsel prepared skeleton arguments outlining their objections to the Crown’s application. These took several hours to research and prepare. There is no (and it should be highlighted, never has been), provision for payment for written work under the graduated fee regulations; a fact which in itself is utterly unacceptable.
But even more disgraceful are the rates of pay for such a serious case with thousands of pages of evidence and the fact that this trial has now ‘cracked’. With no provision for payment of Pages of Prosecution Evidence served (PPE), the brief fee is now only £1,105 (being a category 13.1 offence). Had the trial been contested, the brief fee would not have been much better (amounting to only £1,300). Both of these derisory figures amount to a reduction in advocates fees of approximately 80% as compared to the AGFS scheme which existed pre April 2018. Moreover, the above cracked trial fee is the total payment for all preparation in this case, is of course gross and so chambers rent, clerks fees and tax will need to be paid from this amount. To add insult to injury, the four week gap in our diaries now looms large.
It is, quite frankly, an absolute scandal that these new AGFS fees were ever agreed and that criminal barristers are now being expected to work for such derisory rates. Each and every one of us defending in this case is making it clear to you that we will no longer undertake cases which are PPE heavy.
Enough is enough!
Mustapha Hakme (9 Bedford Row)
Zarif Khan (Drystone Chambers)
Archangelo Power (2 Bedford Row)
I am delighted and honoured to publish this guest post by Mukul Chawla QC. Many readers will know that, after 35 years at the independent Bar blazing trails that leave us mortal practitioners feeling very humbled indeed, Mukul is stepping down as Head of Chambers at Foundry Chambers (formerly 9-12 Bell Yard) for a new beginning in employed practice. Here, he offers some reflections on his time at the independent Bar and on the fate of the criminal justice system.
What follows is a self-indulgent and personal reflection of my years at the independent Bar and my thoughts (which echo those more eloquently set out by others not least the owner of this blog page) of the present and future state of the Criminal Justice system. If that introduction is not enough to put you off, may I thank you in advance for taking the time to read this.
Three weeks ago, I concluded my final speech in a murder at the Central Criminal Court and was allowed to tell the jury at the end of it that, because of a longstanding previous engagement, I would not be able to return to the case.
The longstanding previous engagement was my leaving the independent Bar to join a firm of International lawyers in the City of London as a partner in its White Collar Crime team. I have now been working in that role for three weeks and it has given me an opportunity to reflect on what I have left behind. At a time when my good friend Max Hill QC is about to take up the reins as Director of Public Prosecutions, I thought it was an appropriate moment to put down some of my thoughts on what the past thirty five years have meant to me and my fears for the future of the Criminal Justice system.
I was called to the Bar by Grays Inn in July 1983, a moderately fresh faced 22 year old who had played too much rugby and done too little academic work to achieve anything approaching decent grades. Like many of my contemporaries my academic achievements would not even get me an interview at any moderate set of Chambers today. In those days my university and Bar School tuition fees were paid for in full by the local authority. I did not have to pay for the privilege of undertaking pupillage but neither was there any pupillage award. Its equivalent, so far as my pupil master was concerned, was his complete insistence that while I worked with him, I did not pay for lunch or the near daily outings to wine bars around Fleet Street. My pupillage consisted of following my pupil master around various Crown Courts in London with occasional trips to the High Court and working on a variety of criminal and civil papers for him when we were not in court.
As it turned out I was incredibly lucky. When I got to my feet, I was invariably in court every day and often conducting several hearings each day. Most of my first five months on my feet were spent in the Magistrates Court but there were also plenty of appearances in County Courts and in Employment Tribunals.
Three weeks before my tenancy application was due to be considered, my clerks managed to miss a fixture for a senior tenant at Inner London Crown Court – a multi-handed heroin supply case. When I returned to chambers at 11am from a quick hearing at Bow Street Magistrates Court, my senior clerk handed me the papers tied with pink tape, gave me my taxi fare (you can tell how guilty he felt!) and sent me on my way to Inner London. The Judge was, I understand, incandescent before I arrived but took pity on me when I stammered my apologies for my late arrival. However, he was not sufficiently sympathetic to agree to adjourn the case to the following day so that the counsel who had been instructed could undertake the trial. He did, however, grudgingly allow me twenty minutes so that I could speak to my client. My client’s first words to me in the corridor outside court and in the hearing of my prosecutor and a number of my co-defending counsel were “I don’t want no fucking Paki defending me.” I gulped and explained that I was all he was going to get.
My first Crown Court trial had not started in the auspicious way that I had dreamt of. Our relationship never really improved. The next two weeks were spent in a haze of panic, sleeplessness and endless writing and crossing out questions to ask and points to make. I had one point in my favour. The police officer who interviewed my client had neglected to write down that he had cautioned him in accordance with the Judges Rules (this was pre PACE). The more he insisted that he had cautioned my client the sillier he looked. Wise words from one of my co-defending counsel prevailed upon me in that, while I had wanted to make this cross examination last hours so that I would be seen as the new Rumpole of the Bailey (or, at least of Inner London), I only needed to ask half a dozen questions before resuming my seat. In the event, after two weeks my client was acquitted (I still suspect that the Jury felt sorry for him because of his representation) and because the Judge had heard of my difficulties with my client, he insisted on telling my client how fortunate he was in being represented by me. Two senior members of my chambers were in court waiting to be called on and heard the Judge’s comments. My client didn’t wait to say thank you.
A week later, the Chambers Tenancy meeting took place and thanks in large part to what was reported by those who had been in court, I was offered a tenancy. I was taken for a drink by a senior member who was to become a good friend, Ian Goldsworthy. His advice (only half in jest): “If I were you, my boy, I would give it up now while you still have a 100% success rate.” Two days later and following a trial for shoplifting, my success rate had plummeted to 50%.
The next few years were incredibly busy. I would often spend weeks in the same court with a jury being sent out in one case and immediately starting the next one. One or two judges, I suspect, became heartily fed up with me. My speediest full trial was at Croydon defending a man charged with handling stolen goods. The jury were sworn at 10.35am and returned their verdict at 11.10am (thankfully one of Not Guilty). I was always accompanied by a solicitor’s representative. In many ways, the solicitor’s rep was the glue that held trials together, who could smooth difficulties between counsel and the defendant, who would make notes, be a sounding board and support the advice being given. Those who undertook this task were often people with very substantial experience in attending court with counsel. The vast majority of counsel today have never had that assistance and the system has suffered immeasurably in consequence.
My luck continued. For a long time, from the late 1980’s, I acted for the Police Federation representing Police Officers in discipline hearings and in criminal cases. All of those cases were challenging and some immensely so. But in the process, I represented police officers charged with criminal misconduct, perverting the course of justice, corruption and manslaughter. Some of those represented the highest profile cases of their kind and included the defence of the Guildford 4 and Birmingham 6 police officers and the officers charged with the unlawful killing of Joy Gardner. I represented a retired senior officer in the Macpherson Enquiry following the brutal racist killing of Stephen Lawrence and the grossly inept police investigation that followed. I represented police officers from Regional Crime Squads and the Flying Squad charged with the most serious allegations of corruption.
I was on the Customs List which meant that I split my time prosecuting and defending. I would defend policemen and prosecute suspected drug smugglers and VAT evaders. It was exciting and exhilarating work. It was always rewarding both professionally and financially. Unlike criminal practitioners today, I do not remember worrying about fees or about paying my mortgage or payments to my pension or healthcare or critical illness cover. I was able to save and invest some money. Please do not misunderstand me. I was not wealthy but neither was I struggling to make a decent living.
In 1996, I was asked to become Standing Counsel to the Customs and Excise and having decided to accept that appointment, I resigned from the then nascent monitoring scheme for Treasury Counsel at the Central Criminal Court.
From 1996 to 2001, I was a busy and, I think, successful senior junior undertaking specialised criminal work both defending and prosecuting substantial cases. Those cases were not without moments of substantial humour and embarrassment. On one occasion, I was being led in a trial at Leeds in front of Mr Justice Ognall. My leader was making a submission about which he had not spoken to me and which took me completely by surprise. My usual poker face was clearly absent as Ognall J, (like me, clearly struggling to understand the submission) said at one stage: “Oh Mr X, if only you could see the expression on your junior’s face!”
By now a substantial part of my work was in fraud cases and I would be instructed in cases by and against the Serious Fraud Office.
I took Silk in 2001, two months shy of my 4oth birthday. Again I was lucky. I still defended and prosecuted in the same sort of cases as I had as a Junior but now I was right at the sharp end. And I loved it.
I was one of a number of counsel who were part of a new record for trial length. Between 2003 and 2005 I defended in the longest ever trial in front of a Jury (June 2003 to March 2005) – the Jubilee Line fraud and corruption case. The prosecution had estimated that the trial could take 6 months. Those of us defending thought it could take 12 months. The Judge warned the Jury it could take 18 months. We lost one juror who became pregnant, another who was charged with some allegation of fraud and the trial eventually collapsed when, after 21 months, a further juror simply (and understandably) said he had had enough when the end was nowhere in sight.
I have enjoyed prosecuting and defending in fraud and corruption cases, prosecuting export control cases and defending insider dealing and health and safety cases. More recently I have prosecuted a handful of murder cases. I have had a rich and plentiful diet of appearing in court and advising companies and individuals facing a variety of criminal and regulatory issues.
But my time at the Bar is not defined by the cases that I have undertaken. It is defined by the sense of camaraderie that exists in every case with your co-defending and opposing counsel, the jokes that you make and that are made at your expense and the fact that, however hard you fight in court, you will always enjoy the company of those with whom you have been in fierce dispute when sharing a drink in the pub.
More than anything, my time at the Bar is defined by the friendships I have made. There are simply too many to list here and so I will confine myself to mentioning three people who have been special and inspirational to me and whom I count myself as truly fortunate to be able to describe as close and lasting friends.
Edmund Lawson QC was my mentor and dearest friend at the Bar from my days of pupillage until he died, much too early, at the age of 60 in 2009. He was prodigiously clever and hard working. He had fantastic judgment – almost his first advice to me was: “If you are thinking of doing something but it would make you blush then or if you had to tell someone you respected about it, don’t do it.” But he was much more than those things. Among other things he was modest, fun, generous always great company and someone who made everyone with whom he came into contact feel special. The most difficult speech I have ever had to make was when I delivered the eulogy at his funeral.
I first met Julian Bevan QC when he prosecuted my clients in the Guildford 4 police officers case. He was one of those people who always took his cases seriously but regarded his own very considerable abilities with much disdain. He was the consummate jury advocate exuding calm and utter restraint. You would never guess that he had, moments before going into court, been a nervous wreck. One of my tasks as his junior was to be able to roll a cigarette for him when his hands were too shaky to put the tobacco in the paper. In one case, I remember vividly how he was able to completely turn a hostile jury by the sheer power of his advocacy, putting difficult propositions into simple words while generating complete trust in what he was saying. He was unbelievably generous to me, constantly recommending me to solicitors for difficult cases. He was and remains a constant source of delight. Now that he is enjoying retirement, I treasure the lunches and dinners when we meet and are able to gossip like adolescent schoolboys.
Ra Healy QC was one of my first pupils in 1992. In many ways, we have grown up at the Bar together albeit that she is rather younger than me. She became my pupil just at the time when my practice was blossoming. I knew I was going to like her when she told me early in her pupillage and with justified confidence that my analysis of some legal issue was completely wrong! In reality she is a proper lawyer and a great advocate. By rights, she should be arguing esoteric points of law in the Chancery Division or the Commercial Court. But she loves being a Jury advocate and she is terrifically good at it. Her sense of irreverence has not deserted her. A few years ago I was leading her in an insider dealing case. When cross-examining an expert on derivates trading, I mis-calculated a percentage difference. When the Judge looked quizzically at me and suggested that my maths was faulty, Ra piped up to say to Judge and Jury “Pah! Just as well he doesn’t style himself as a fancy fraud specialist!” Over the years she has become a real friend and a confidant. She was the only one at the Bar whom I told when I was thinking of leaving the Bar. With Ra, I know that my leaving Chambers will not change our relationship.
So, the question that I have constantly been asked is: Why leave the independent Bar? The short answer is that I was given the extraordinary opportunity to work in an area in which I am comfortable but with completely new challenges and opportunities. It was, in reality, an opportunity that I could not sensibly refuse.
But it is more than that. Life at the Criminal Bar has become a grind and for many, an intolerable one. The cases that we do are becoming more and more complex. They are uniquely challenging and important for defendants, victims and the public at large. The vast majority of barristers and solicitors doing this work see no future in terms of personal development and financial security to make this a profession that can be enjoyed and sufficiently remunerative to be sustainable.
In the last few years I have seen talented junior members leave the profession to work for the CPS, SFO and FCA as well as joining firms of solicitors. In the main, that is not something that they have wanted to do but something that has been forced upon them. Those who are doing well (and there are fewer of those than many would think) have seen such extraordinary structural changes in what we do that is done under the most difficult circumstances. Thus and by way of example only, even in high profile murder cases, it is extremely rare to see a solicitor’s representative in court supporting the advocate. It is not just that the fat has been cut from the bone, but huge chunks of flesh have been eviscerated in the drive to achieve economies.
It is positively debilitating as a Head of Chambers when you hear of stories of juniors who cannot afford a train fare to get to court because the CPS or the LAA has failed to make payments long overdue. These are not apocryphal or anecdotal stories. These are things I have seen first-hand.
You may argue that the profession has become too big and that it should be leaner. But I am not here speaking of the dearth of work but the simple fact that the work required to be done, the payments that are made for that work and the way that those payments are made, and often not made, cannot sustain this profession either in its present numbers or in reduced numbers.
However, this is only one part of the problem. The entirety of the Criminal Justice System is in crisis. Successive governments have cut funding to all parts of it, whether in terms of the Legal Aid budget, funds available to prosecutors, police, probation services and prisons. From detection, investigation, trial and all the way through to prison, community penalties and eventual rehabilitation efforts, no government in recent memory has shown any inclination of caring about any of it. And so, at every stage, despite the best efforts of all those involved in every stage of the process, mistakes will occur; short cuts will become common place if that has not already happened.
I have come to the view that unless there is a really substantial injection of funding in all areas of the system, the Criminal Justice system will simply collapse. It will be unrecognisable and will, in reality, be anything but Justice. And by that I do not mean for the direct participants in it but for Society at large. Members of the Bar, Solicitors and their professional organisations have tried to warn governments of the consequences of under-funding for almost as long as I can remember. Our words have consistently fallen on deaf ears. Even the occasional promises to improve aspects of it have proved illusory. I have no confidence that the position will change.
And so, I am sorry to be leaving the profession but only to an extent. While I am excited by the challenges that I will face in the years to come, I am leaving this profession which has given so much to me with real foreboding. I hope (perhaps in vain) that, in this respect at least, I will be proved wrong.
A piece for iNews today following Lord Hain’s decision to invoke Parliamentary privilege to name Philip Green in defiance of a court injunction.
You can read my musings here.