Tag Archives: Crime

Lives are being put at risk by the intransigence of the government and the courts. Jury trials must be suspended immediately.

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UPDATE: At 8am on Monday 23 March 2020, the Lord Chief Justice announced a suspension of new jury trials. The details are vague, and hint at a resumption “where specific safety arrangements have been put in place”, but for now, at least, it seems as if a level of sense has prevailed. Regrettably the announcement came far too late to reach many jurors, who will have already embarked upon needlessly risky travel by public transport, but joined up thinking has never been part of the justice system’s core values.

 

Today, thousands of citizens of England and Wales will attend their local Crown Court in answer to a summons compelling them, under threat of imprisonment, to do their civic duty and serve on a jury.

They will queue with dozens of other strangers to be herded into a packed jury waiting room. Once selected for a jury panel, they will pile into a dirty, windowless courtroom and sit next to each other for five hours a day. At lunch they will mingle with the hundred or so other jurors in the building. At the conclusion of the trial, they will shuffle into a tiny unventilated retiring room, where they will make a decision which could ultimately determine whether somebody spends years of their life in prison.

This is because, even though the government has closed schools, restaurants, pubs, cafes and leisure centres, one area of public life in which, to quote a government minister, we are “operating normally”, is in the criminal courts.

So while Scotland and Northern Ireland have temporarily suspended jury trials, in England and Wales the Lord Chancellor Robert Buckland and the Lord Chief Justice have decreed that jury trials lasting up to three days – estimated to be 75 per cent of trials – must take place.

They will do so in filthy conditions where lack of hot water, soap and paper towels is widespread; where broken hand dryers and leaking toilets and burst pipes and crumbling roofs and walls are par for the course; conditions which in the good times we in the courts accept as a permanent feature of a chronically underfunded justice system, but which in the current climate present a far more alarming proposition.

Criminal courts are, basic sanitation aside, a petri dish. Scores of defendants are piled into waiting areas. Most travel by public transport; some travel in “sweatbox” security vans from our infested, overcrowded, virus-rivenprisons. Defendants and their families mix with their barristers, who mix with court staff, who mix with witnesses, judges and jurors, who mix with other witnesses, judges and jurors. Courtrooms vary in size and style; in some of our more antique Victorian courts, jurors are squeezed onto hard wooden benches without an inch between them, let alone the government-recommended two metres. In a fairly typical court I was in last week, the defendants, barristers, clerk, usher, witness box and jury box were all within a two-metre radius of each other.

And by insisting that the shortest trials go ahead, the government is ensuring the highest possible churn of cases; the highest possible turnover of strangers coming into contact with each other.

Over the past few days I have been flooded with messages from terrified jurors, witnesses and court staff aghast that, at a time when the government is frantically urging social distancing on the ground that “infections spread easily in closed spaces where people gather together”, they are being required by law to expose themselves to such conditions. In a closing speech last week, one of my colleagues thanked the jury for their dedication at a time when they were no doubt worried about themselves and their families. One of the jurors burst into tears.

This situation is appallingly unfair to all concerned. How on earth can jurors be expected to concentrate on their task? How can any defendant or victim of crime have faith that the twelve people trying their case are paying full attention to the nuances of the evidence, when those twelve are burdened with the knowledge that, as a direct result of their jury service, they, or someone they love, could die?

And contrary to MoJ dicta, we are not operating normally. Judges are self-isolating; defendants, jurors and witnesses are staying at home as they break out with symptoms; and trials are collapsing all over the country. The Witness Service, the organisation responsible for looking after witnesses at court, has withdrawn its volunteers. Many Crown Court judges are making no secret of their disdain for what the MoJ would wish to term a “strategy”, but which more closely resembles a tribute act to Monty Python’s Black Knight chirpily dismissing each collapsed trial as a mere flesh wound.

The official government line is that “justice is not optional”. A sweet homily, betrayed only by the evidence of the past decade, in which victims, defendants and witnesses have found their cases mishandled or delayed for years due to enormous cuts to the budgets of the police, CPS, courts and legal aid. Justice has been optional whenever financially or politically convenient.

The three-day trial rule has no public health basis behind it, other than a chipper optimism that a trial of such a length might have an outside chance of completing before too many of its core participants drop down. The three-day trials will in general concern the less serious and more straightforward criminal allegations which could realistically wait another few months without too much harm being done.

The primary reason for the intransigence appears to be Mr Buckland’s fear of being the Lord Chancellor Who Closed The Courts, a disfiguring blemish on the CV of any aspiring careerist in this Tough On Crime government. There is also a secondary, practical concern: because of cuts, we have a backlog of over 30,000 Crown Court trials and are currently trying cases for offences said to have occurred two or more years ago. The government knows that a standard two-year delay could quickly become three.

The government should adjourn all jury trials listed in the next twelve weeks. In the Autumn, when it may be safer to do so, we can resume with the adjourned cases, only with the financial firehouse turned on. Instead of running at half-capacity, every Crown Court should run at maximum; the Treasury’s largesse must be extended to the justice system so that we don’t endure the farce of perfectly usable courtrooms sitting locked and empty due to “lack of sitting days” while judges get paid to sit at home. The backlog, both Covid-caused and historic, can be blasted away.

In the meantime, of course, justice and the courts cannot halt completely. Technology may – subject to the disastrous history of IT procurement in the courts – be capable of keeping shorter hearings on the road over the coming weeks and months. Video-links and telephone hearings have a poor record in practice, but offer a theoretical throughroad. Penal policy will have to change; early release of low-risk prisoners, hugely reduced sentences for guilty pleas and a statutory presumption against imprisonment may not be popular, but have to be given serious consideration. By minimising the number of participants required to attend hearings, reducing prison overcrowding and ensuring the court estate is fit for human habitation, urgent court business can tick along until we are through the worst.

Justice need not – indeed cannot – stop. Urgent court business must carry on. But jury trials as we know them cannot continue. It is telling that, when it first published its “priorities” in “managing our response to coronavirus”, the Ministry of Justice included no reference at all to the welfare of those actually using the courts. On the day that the “three-day rule” was announced, Robert Buckland tweeted that he was cancelling his constituency surgery because of “the government’s social distancing advice”.

The Lord Chancellor, and Lord Chief Justice, need to afford jurors, witnesses and court professionals the same consideration, and recognise the human cost of their stance before any more lives are unnecessarily put at risk.

Guest post: Open Letter to Leaders of the Criminal Justice System – Call for a National Protocol

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I am delighted to host this guest post by Beheshteh Engineer, a third-six pupil. The views expressed are personal and do not necessarily reflect the views of her chambers.

Why is a functional Criminal Justice System important during a national crisis?

During a short-term national crisis, the CJS must provide two key functions:

  • To deal with urgent matters e.g. bail apps, warrants, CTLs
  • To protect the vulnerable from immediate harm.

We call for a national protocol to address how courts must work during this crisis.

We suggest the following principles for the operation of courts:

  1. The protocol must minimise the risk to the health of court staff and users, following government guidance.
  2. The protocol must allow the CJS to continue to provide its two key functions.
  3. The protocol must default to adjourning cases where the above two principles cannot be met.

Globally, many courts have begun to impose restrictions on cases (CJEU, New Zealand, Canada, some American states, have all closed courts except for the most urgent cases)

What are the current problems?

The current system presents 3 distinct problems:

  • That we are all required to self-distance, but court attendance requires the opposite, and
  • That the government has only adjourned trials with a TE of 3 days or more, and
  • That we do not currently have a set up that allows us to do most hearings remotely, thus requiring people to continue to attend court in person.

Social distancing

We are all being told to practice social distancing and as of 20 March, the government ordered bars and other shops, to close. Doctors all over social and traditional media are imploring people to stay at home. The message is clear: people should not be going out unless they are essential.

In the past week, we have seen the following: people coming to court displaying the symptoms, prisons bringing sick defendants to court, jurors/advocates/witnesses going into self-isolation, and a total lack of cleanliness, or hand gel, or soap, or masks, or hand sanitizer, or protective screens available in courts. Juniors with health issues are still attending court; those who are second and third six pupils feel they have no choice.

Government’s response

The government has adopted a halfway house approach by only adjourning trials three days or longer. Those in charge of the CJS continue to advocate ‘business as normal’ while all other branches of government sound the alarm.

The Bar leadership has said that anyone in an at-risk category or anyone who feels that working conditions are unsafe, can return cases with no ethical problems. This is welcome leadership on this issue. More is needed; those not in the at-risk category can still carry the virus, potentially infecting their own families and anyone else they come into contact with at court. Court advocates, particularly those most junior, are frightened, both for their health and their incomes

Additionally, the government has not yet put in place the resources to protect the self-employed from finding themselves without work and thus, without income. Many have children and mortgages to pay for, others have rent and basic expenses. Many of us at the criminal Bar are struggling and right now, going to court may be the only option, even if that will put ourselves and those we live with, at risk of getting the virus

Lack of investment in technology for the criminal courts

Papers in Crown Court cases are now all on DCS and the courts occasionally use video links where a defendant is in custody. Video links often fail to work, and there are insufficient video links to run the court system at even close to full capacity. Consequently, we have continued to conduct most hearings in person. There are good reasons for this; often material is not uploaded until the day of the hearing, a client has to enter a plea and instructions need to be taken. Nevertheless, the reality remains that there has not been proper investment in technology use in the CJS. As a result, it will require leadership and investment to switch to a system where many hearings are virtual.

Leadership to date on this issue has been poor. The CEO of HMCTS’s letter to the Chair of the BC on 19 March 2020 says that the senior judiciary has given guidance on encouraging the wider judiciary to use telephone and video hearings. There is also a link to this site, guidance which reads, “The decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice.” This means that all courts can operate according to their own rules. We are already hearing of plenty of cases where a client’s attendance has not been excused despite a reasonable request, as well as hearings in the CC being refused to be conducted by video when there is no good reason for physical attendance.

At a time of national crisis, this is a woeful response from HMCTS and senior leaders. It is also a deeply inefficient way to run any kind of system, never mind one of such importance.

The civil Bar, family Bar as well as some Tribunals are already ahead of us on this; they either already regularly use digital technology or have implemented a new protocol. Cases have been conducted (and won!) from advocates’ living rooms. If other Bars and Courts can manage remote hearings, we can too.

How can we solve some or all of these issues?

We should be limiting the number of people going to court. We should be protecting those who have to attend court. There should be no room for courts to do things on a court-by-court basis.

We must not continue in a way that puts our health, the health of our families and the general public, at risk. Continuing as we are will only help spread the virus further.

This letter suggests that we create a national protocol – similar to a practice direction – to address how every single court should manage their work during this time of crisis. Decisions need to be centralised and as new problems emerge, decisions must be taken and publicised online. We need to use technology as much as we can.

We also have to communicate updates as clearly as possible. Recent example today: jurors being told they had to attend court tomorrow (Monday) while being in an at-risk group. The message came back that they are excused. The question has to be asked, why are we doing this on twitter? We need a clear method of communication that is accessible to all.

We know that all the various legal bodies are meeting with the Ministry of Justice to lobby them for a proper plan. We add our voices to that. These are complex problems that require a great deal of thought, creativity, and effort to resolve.

How might such a national protocol work?

Suggestions for the protocol must both address issues of law and detail the ways in which we are going to take action. It is no good having vague suggestions and leaving each court to figure out how to implement it, because that way nothing will get done. We need to address the practical issues. This letter has attempted to do so, and in doing so you may find that some ideas are simply not workable at this time. Irrespective, we have a duty to not only think hard about these matters but to publish and debate these ideas so that we can keep people safe.

We propose the following immediate rules:

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020.
  2. All other hearings to be by video link OR telephone.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily adjusted.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly.
  6. We need a new arrangement for magistrates’ court hearings.
  7. We need a new protocol for those in custody.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations

How might these things work in practice?

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020 Rationale:
    1. It is important to set a fixed date for when trials might resume, even if these are later abandoned. Dates to work to focus the mind.
    2. Stage dates to be put back so that work continues.
    3. Re-arranging listing on such a scale as we are seeing even if it remains just those with TE 3 days or more, is going to take time and proper thought. We should not do this on the fly otherwise there will be chaos.
    4. Such re-listing then needs to be properly communicated to all parties and should take into account advocates’ diaries, so that they do not lose out.
    5. If all hearings are virtual and all clients excused as standard this saves 100s of hours of manpower – all that then needs to be done is for clients to be told that they don’t need to attend court.
    6. If this is the default position, then hearings can continue in a way that avoids an advocate having to announce that they are in at at-risk group or are scared of attending court or who have some other legitimate reason.
    7. This also helps to preserve income, an important point. Many of us working in the CJS are self-employed; we need to attend hearings so we can get paid. We are not currently being afforded much support from the government.

    How might this work in practical terms?

    1. Listing are obviously the point people to arrange virtual hearings and will need to find a sensible way to schedule hearing times. This is done in the crown court and it can be done in the magistrates. Cases should also be re-fixed to accommodate advocates’ diaries so those booked to have trials do not lose out.
    2. Each court has to work out what technology they will use: skype, Teams, something else? Many barristers and HHJs are working together to try and figure out what works but we need a proper system. Also, I’m not PC users are having difficulty with skype for business. We are going to waste hours in court, at risk to our health, if we’re all trying to figure this out on the day.
    3. Once each court has figured out what tech they can use, this has to be communicated clearly on a single website acting as one point of reference.
    4. Chambers and Solicitors firms already have a list of emails and contact numbers for listing offices. These should be shared with advocates so that they can send individual email sand track hearings themselves [without the middle man] to ensure that matters are arranged sensibly and to take into consideration whether or not an advocate can do a telephone or video hearing or if other provisions need to be made.
    5. We should also share email addresses of those advocates at the CPS down to do a particular hearing so that CPS and defence can communicate in advance and so that the Crown can/attempt to upload relevant papers onto DCS in good time.
  2. All other hearings to be by video link OR telephone
    1. Hearings that can be done by delegated powers e.g. adjournment or CMH
    2. If parties email the listing office with the issues to address, this can be passed to the requisite court on the day of the hearing, and will save time.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily amended:
    1. If pleas need to be taken, the parties should work together to narrow down the issues ahead of time. This requires the Crown to upload material earlier than the day of the hearing. It requires effort and forward thinking to work.
    2. Where a G plea cannot reasonably be put in, everyone is to put in a NG plea and credit must be preserved until such time as 1) CPS serve all material and 2) counsel have been able to take instructions. We need detailed guidance on this. Defendants must not lose out. Same rule to be applied in the magistrates’ court.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly:
    1. Extending a CTL should not be routine
    2. Matters should be on a case-by-case basis: e.g. *some* defendants in an at-risk group should be strongly considered for release on stringent bail conditions.
    3. For other cases (maybe DVs) where there’s no bail conditions, Crown might want to apply for some? Ensure protection of potential victims?
    4. New cases should be bailed with conditions where appropriate.
  6. For magistrates’ courts:
    1. Papers for first appearances usually only arrive on the morning of the hearing. This will be difficult to change as it is the CPS that produces these papers. If the CPS can produce these bundles the night before the hearing, that would assist.
    2. Advocates can set up video conferences or telephone hearings with clients remotely to attend on the day of the hearing. As soon as they have the papers, the conferences can be held.
    3. The only remaining issue is how to list matters in a magistrates’ court: traditionally it is whomever is ready goes on first. If hearings are being done remotely, there will have to be a system or rule in place to decide who can call in.
    4. It may well be that the legal advisor or clerk in court will have access to a system whereby they can determine who is going to be heard next.
    5. First appearances and business in the magistrates’ courts, for it to continue working ‘as normal’ will require significant thought. It may be that some of these problems cannot be overcome anytime soon. They also require effort and someone to care enough to design a system so that these can be done remotely. There is a workable solution, but it requires all parties to work together and for those in authority to have the significant desire to make it work.
  7. For those in custody (predominately but not solely in the magistrates’):
    1. Conferences should take place by video-link wherever possible. However, we acknowledge that whether a defendant is on video from prison or in custody in the cells, a video-link may not always be possible. This is both a technical and legal hurdle that may take time to address.
    2. In the interim, no one should be required to hold a conference with someone in the cells where the court does not have a glass divider. In such cases, conferences should be held in a court room or other room available so that representatives are not put at risk.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations
    1. police station representatives are reporting disparity of process when it comes to being asked to rep someone suspected of having the virus. There should be a protocol in place.

Other points

Following feedback from practitioners, a few other points are worth noting:

  • Some hearings have been “saved” by use of FaceTime. Some others are suggesting Zoom. There is a range of technology available but not all of it will be secure, or available to everyone. This may well be a problem.
  • Special provisions need to be put in in place for vulnerable people: complainants, witnesses and defendants. For example, a defendant with a MH issue or lack of good internet may not have the ability to participate in a virtual hearing. The issue of what to do when an interpreter is needed, should also be considered.
  • Every step taken into a police station is fraught with areas where someone can come into contact with the virus. The custody sergeant is responsible for the safety of police station representatives yet often a representative is taken immediately to a consultation room so there’s no option to speak to the custody sergeant unless it is insisted upon. We’re also being told that areas in the police station (the consultation room, amongst others) are not being regularly cleaned.
  • Prisoners should be considered for release, where appropriate.
  • If the plan is to keep courts open for as long as possible, there needs to be a nation-wide rollout of soap, hand sanitizer, wipes and a proper cleaning regime in place.

Conclusion

It is the case that with many of these things, what will suffer is the principle of open justice. That is a dilemma that needs to be thoughtfully considered.

The ideas in this letter are just one way to address matters. There may be problems with the ideas suggested – they are not perfect. But they are a start and hopefully a platform to encourage discussion.

We must work together to limit the spread of this disease while maintaining the criminal justice system.

Author: Beheshteh Engineer, junior criminal barrister (3rd six)

Views are those of the author alone, and not representative of those of her chambers.

 

Televising sentencing remarks is a gimmick that has not been thought through

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As somebody who spends more time than is healthy banging the drum for better public understanding of the justice system, today’s announcement from the Ministry of Justice that sentence hearings in the Crown Court will be televised should be right up my wheelhouse.

The proposal sidesteps any worries about a rush to an Americanised celebrification of court participants by providing that only the sentencing remarks made by the judge will be filmed and broadcast; victims, witnesses, Probation, caseworkers, court staff, lawyers and the attending public will not appear in shot. This follows the broadcasting in recent years of proceedings in the Court of Appeal and Supreme Court, and is on its face a show of ministerial faith in the principle of transparency and open justice. Which is very much A Good Thing.

So why am I concerned?

There is the obvious observation that striking broadcasting deals is an odd priority for a Ministry overseeing a justice system in a state of collapse. The courtrooms that haven’t been flogged off (half of all magistrates’ courts have been sold since 2010) are in the main decrepit, crumbling hovels with broken heating, perennially out-of-order lifts, peeling walls, sporadic running water, holes in the ceilings and clogged toilets, wholly unfit to service the people who work there, let alone the public compelled to attend for what is already one of the most stressful days of their lives. Legal aid has been slashed so deep that there are hardly any new entrants into criminal law, with the Innocence Tax – the indignity inflicted on those people wrongly accused of a crime, refused legal aid and, when acquitted, forced to foot the bill for their legal costs – now a permanent fixture. Crown Court sitting days have been cut, leading to delays of years between an offence occurring and criminal proceedings concluding, prolonging the agony of all involved and increasing the likelihood of miscarriages of justice as memories fade and witnesses lose faith. The police and the Crown Prosecution Service still don’t have anywhere near the resources required to discharge their basic functions. In short, there is plenty that you might imagine a government which was serious about criminal justice would want to achieve as its first order of business.

But even if this initiative is simply something shiny to cynically wave at journalists in the hope of distracting from the real problems, it doesn’t follow that it’s necessarily a bad idea. If it has the effect of increasing public awareness of the sentencing process, that is an evident good.

The problem is that I don’t think it will do that.

The difficulty is in the compromise that has had to be reached to avoid deterring victims and witnesses from attending court and engaging with the criminal process. Victims often attend sentence hearings, and have the right to read their Victim Personal Statements aloud in court. It is plainly right that they not be dissuaded from doing so by a fear of having their most intimate trauma broadcast or retweeted to the nation. So it is that the decision has been taken not to broadcast the prosecution advocate opening the facts at the sentence hearing (during which the Victim Personal Statement will be read), nor the defence advocate advancing mitigation, but solely the judge’s sentencing remarks.

However sentencing remarks, while essential for anybody wishing to report or pass comment on a criminal case, are not by themselves sufficient to give a comprehensive understanding of what has happened in a case. A sentence hearing is a dynamic process. The advocates will advance often-conflicting submissions as to how particular case law or Sentencing Guidelines apply – whether a certain aggravating or mitigating feature is present, for instance, whether an offence is a “Category 1” or “Category 2” offence, whether a victim is “particularly vulnerable” or just plain “vulnerable”, whether a defendant is “dangerous” and so liable for a particular kind of sentence. The judge will usually interrogate these submissions, challenging the advocates to justify their position.

There will be mitigation advanced, which will usually include reference to detailed Pre-Sentence, psychiatric or psychological reports, as well as character references, letters from the family and so forth. Again, the relevance and significance of this will vary from case to case, but it all forms part of the picture.

And the thing about sentencing remarks is that they don’t – can’t – rehearse everything that has been said in a sentence hearing. They only set out the headlines. They should, plainly, explain why a particular sentence has been passed, but they don’t include all the evidence that was heard at trial, all the arguments that were advanced by the prosecution and defence during sentence, or a full examination of the law.

And sentencing remarks are set to become even less detailed thanks to a decision of the Court of Appeal last year, which appears to have completely bypassed our justice ministers. In the case of R v Chin-Charles [2019] EWCA Crim 1140, the Court of Appeal went out of its way to criticise judges who produce what in the eyes of the Court of Appeal are overly detailed sentencing remarks:

  • There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided. The Court of Appeal always has the Crown’s opening and any note for the sentencing hearing, and a record of mitigation advanced. In many cases both sides have produced notes for sentencing. The Court of Appeal will have the pre-sentence report. None should be exhaustively rehearsed in sentencing remarks and, if mentioned, only briefly. 
  • The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that. 
  • On occasion authority is cited by parties. Save in exceptional circumstances sentencing remarks need not refer to it. 
  • The sentence must be located in the guidelines. In general, the court need only identify the category in which a count sits by reference to harm and culpability, the consequent starting point and range, the fact that adjustments have been made to reflect aggravating and mitigating factors, where appropriate credit for plea (and amount of credit) and the conclusion. It may be necessary briefly to set out what prompts the court to settle on culpability and harm, but only where the conclusion is not obvious or was in issue, and also to explain why the court moved from the starting point.
  • Findings of fact should be announced without, in most cases, supporting narrative.
  • If in play, a finding of dangerousness contrary to statute must be recorded. Supporting facts should be set out only when essential to an understanding of the finding, not as a matter of course. 
  • Victim personal statements might merit brief reference (Criminal Practice Direction VII Sentencing F3d). Limited brief reference to the contents of reports will be apt only if essential to an understanding of the court’s decision.

For my part, sentencing remarks which cite the law, contain detailed discussion of the guidelines, recitation of the arguments and a comprehensive explanation as to how legal and factual issues in the case have been resolved are absolutely what are required to help the public understand why a judge has passed a particular sentence. This decision appears to have been made with an eye on reducing the workload of the Court of Appeal by trimming the number of pages they have to read on sentence appeals, and is in my view wholly at odds with the notion of sentencing as a public function. Sentencing remarks should be written like a judgment, for that is what they are: a judgment determining a person’s liberty.

Of course the Court of Appeal hearing an appeal has a transcript of the prosecution’s opening and the record of mitigation, as well as the reports, but the public watching a Crown Court judge pass sentence does not. And if – as is proposed – they are not to be shown any of that – no prosecution opening, no mitigation, no reports – and the judge is told that there should usually be no supporting narrative, that supporting facts should be set out “not as a matter of course” and that case law should only be referred to in “exceptional circumstances” – how on earth is the public going to be fully informed? How will the complexity of criminal sentencing – the delicate balancing exercise of competing aims and interests – be fully explained to a non-legal audience?

And so we have a perfect storm. Judges are now mandated by the Court of Appeal to include as little detail as possible in their sentencing remarks, while the government proposes to broadcast those remarks – and nothing more – in an alleged effort to enlighten the public.

We already see with regularity fully-explained sentencing remarks divorced from their context, misquoted or distorted by lazy reporters and special interest groups, and judges unfairly monstered as a consequence. The ability of anyone so inclined – from bad-faith editor to Twitter troll – to clip decontextualised video footage and circulate it virally to make a dishonest point about ‘soft sentencing’ or ‘loony judges’ is a modern reality. To increase the risk of misunderstanding by showing the public only a fraction of the process is a move at odds with full transparency.

A cynic might point to this government’s overt anti-judiciary agenda and suggest that, far from enhancing public faith in justice, this is a ploy designed to expose judges to the wrath of the partially-informed mob. But even if the Prime Minister’s judge-bashing is just unhappy coincidence, it is clear that at the very least there are obvious flaws in this plan which, in the true spirit of the Ministry of Justice, have not been thought through.

10 things you should know about the London Bridge attacker and “early release”

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No time can be afforded in 2019 to respect the dead. Not when there’s an election at stake, and the tantalising prospect of scoring cheap political points winks coyly at you from a special advisor’s email. So it is that, within 24 hours after the killings by Usman Khan at London Bridge, politicians have lined up in descending order of deplorability to exploit the tragedy for their own ends. The Prime Minister obviously went first, leaping in front of Sky cameras last night to claim:

” I have long argued that it is a mistake to let serious and violent criminals out of prison early and it is very important that we get out of that habit and that we enforce the appropriate sentences for dangerous criminals, especially for terrorists that the public want to see.”

This, one presumes, is a nod to his well-publicised manifesto pledges to “toughen up sentences”, although (as we shall see) it is well worth reminding Mr Johnson, as he seems to have forgotten, that absolutely nothing in his manifesto would have made the slightest difference to the sentence or release in a case like that of Usman Khan. There followed a dash to ascribe culpability for the fact that Mr Khan had been released from prison after serving 8 years of a 16 year custodial term for a terrorism offence; it was the Parole Board, then the judges who had passed sentence on Khan, then, somehow, the EU, then, in perhaps Twitter’s lowest moment today, Khan’s blameless lawyers. This afternoon, Labour and Conservative figures took turns to cast blame, each frantically trying to plunge the hands of the other into the victims’ blood before it dried, notwithstanding the pleas of victims’ families not to make political capital out of lost lives.

Amid all the shouting and, in the case of the government, outright lying, the truth about how and why Khan was sentenced as he was has barely had a look in. So it is worth taking a quick look at ten things we actually know.

 

1. What was Usman Khan convicted and sentenced for?

Usman Khan, then aged 20, pleaded guilty on 31st January 2012 to an offence of engaging in conduct in preparation for acts of terrorism, contrary to section 5(1) of the Terrorism Act 2006. This is an offence carrying a maximum sentence of life imprisonment. Although widely reported as relating to a plan to bomb the London Stock Exchange, the full facts (reported here) are worth reading, as the reality is more complicated. Khan, then aged 19, was part of a group based in Stoke who in November and December 2010 were engaged in a well-developed plan to raise funds to build a madrassa in Kashmir to train terrorists. While they had contemplated that some of those trained might return to the UK and involve themselves in terrorism, the basis on which they were convicted was that although they had discussed perpetrating a terror act in Stoke, they did not intend to participate in an act of terrorism in the UK in the immediate future. What they did do, however, was liaise with other groups in London and Cardiff, who were actively planning to leave an explosive device in the Stock Exchange. The groups, including Khan, had meetings and discussed common interests, such as how to make a pipe bomb, but by the time of conviction, the prosecution and defence had agreed that the Stoke group were not in fact involved in the Stock Exchange plot, and the guilty pleas that were entered by the various defendants reflected this, as they were pleas to different counts on the indictment.

Nervtheless, Khan was an obviously dangerous individual. He demonstrated “a serious long term attitude to establishing, funding and recruiting British Muslims to attend the madrassa and to then be available to commit terrorism abroad and at home.” And for that reason, on 9th February 2012, he was sentenced as a dangerous offender to detention for public protection (“DPP”) with a minimum custodial term of 8 years (minus time served on remand).

2. What is “detention for public protection”?

Detention for Public Protection (DPP) is a relative of the slightly more famous Imprisonment for Public Protection (IPP). Someone aged between 18 and 21 is sentenced to detention, rather than imprisonment, but the sentences are substantially the same. They were introduced in 2005, and where a defendant convicted of certain serious offences was assessed by a court as dangerous – meaning they posed a significant risk of serious harm to the public – but the seriousness of the offence they had committed did not justify a life sentence, IPP (or DPP) could be imposed instead. The effect was similar to a life sentence. The Crown Court would set a minimum term (tariff) which a defendant would have to spend in prison. After serving the minimum term, he would have to satisfy the Parole Board that his imprisonment was no longer necessary for the protection of the public. If he did so, he would be released on licence for at least 10 years. If he couldn’t, he would stay in prison until he could, potentially forever.

The minimum term was half of the equivalent sentence that a defendant would have received if he’d been sentenced to a standard determinate sentence. Why half? Because (as we’ll see below), since 2005 defendants serving determinate sentences have been automatically released at the halfway point. So in theory, if a dangerous offender fully rehabilitated himself in prison, he could be out at the same time as if he hadn’t been assessed dangerous in the first place.

So in Khan’s case, the sentencing judge found that, taking into account Khan’s young age and his guilty plea, the appropriate determinate sentence would have been 16 years, meaning the minimum term was 8 years.

3. So why was Khan’s sentence reduced by the Court of Appeal?

As ever, the best explanation is in the full judgment, which I’d urge you to read. Boiling the appeal down to its barest bones, the argument made on behalf of Khan was this. The London defendants – the ones who had planned to bomb the Stock Exchange – were deemed by the sentencing judge to be less dangerous than the Stoke defendants. This was because, although their criminality was, to quote the prosecution, “equally serious”, the Stoke defendants, including Khan, demonstrated a level of sophistication that made them more dangerous. The Court of Appeal, having heard arguments from the prosecution and the appellants, reached the conclusion that the judge was wrong to distinguish between the groups in this way. “If the plans of the two groups were “equally serious”, the risk posed to the public could not be greater from those who were very much further away from realising their apparent goal [the Stoke lot] than those who were far closer to doing so [the London Stock Exchange lot],” in the word of Lord Justice Leveson.

Accordingly, the Court of Appeal gave Khan and his Stoke associates the same type of sentence as the London group received – an extended sentence. They disagreed with Khan’s argument that the custodial term of 16 years should be reduced.

4. What is an “Extended Sentence”?

This is where things get messy. Because we have had a lot of versions of Extended Sentences over the past 15 years, as governments have battled to secure headlines by tweaking and amending the various regimes on numerous occasions. The best summary is in this document by the Prison Reform Trust. In simple terms, if a defendant was found to be dangerous (as defined above), and a determinate sentence could not manage his risk, the court had to consider whether an Extended Sentence would do; if not, it would be IPP or life imprisonment. An Extended Sentence involved a custodial term (the same as would have been imposed for the offence for a “normal” defendant), with an extended period of licence of up to 5 years (for a violent offence) or 8 years (for a sexual offence).

So when the Court of Appeal passed an Extended Sentence on Khan, his custodial term was 16 years (as the sentencing judge thought it should be) and his period of extended licence was 5 years (the maximum).

5. When is somebody released from an Extended Sentence?

This is why it’s complicated. Successive governments changed the law governing release on multiple occasions. The full history is in the Prison Reform Trust document above, but suffice to say that in 2012, when Khan was sentenced, prisoners serving Extended Sentences were released automatically at the halfway stage of their custodial term, just like determinate prisoners. It therefore looks as if Khan was automatically released having served 8 years of the 16 year custodial term, and would have been on licence for the remaining 8 years, plus the extension of 5 years.

6. A dangerous offender being released automatically? That doesn’t sound very safe

No. It wasn’t, really. “EPPs” as they were called (Extended Sentences for Public Protection) were introduced alongside IPPs in 2005. Up until 2008, an EPP prisoner would be referred to the Parole Board at the halfway point of their custodial term. If they satisfied the Parole Board that their imprisonment was no longer necessary, they would be released on licence. If not, they would serve the full custodial term. In 2008, the law changed so that at the halfway point offenders were automatically released – no Parole Board input. This was in large part because the way in which the existing legislation required courts to treat dangerous offenders meant that the prison population had spiralled to uncontrollable levels. People were being given IPPs for relatively minor offences and finding themselves stuck in prison years after their minimum terms had expired. The prisons were unable to provide the courses that dangerous offenders needed to satisfy the Parole Board that their risk had reduced, and so many EPP prisoners were serving their full terms. The Criminal Justice and Immigration Act 2008 tweaked the law to give judges greater discretion as to when to pass an IPP, and also sought to introduce a release valve by automatically releasing EPP prisoners.

As for why we have automatic release at all, it’s worth addressing this briefly, as there remains an understandable public bugbear when it comes to the concept of automatic release at the halfway stage of a prison sentence. I’ve written about this in my book. The public hear or read “10 years”, and feel justifiably deceived when they discover that 10 means 5 (minus any time already served on remand awaiting trial or sentence). There are various reasons as to why we grant automatic release halfway through a sentence. One reason is that this mechanism saves the government money, gifting them the tabloid headlines of long prison sentences without the Treasury having to actually pay for them. Less cynically, it is also argued that it helps reintegrate prisoners into society and aids rehabilitation. If they reoffend on licence, or breach the conditions of their licence, they can be recalled to serve the remainder of their sentence. Automatic early release has varied throughout the years. The Conservatives in 1991 introduced the framework for the modern system, but it was in 2005 that the Labour government introduced automatic halfway release for all determinate sentences (as well as the IPP and EPP sentences) – more detail here. Worth remembering whenever one party accuses the other of being to “blame” for automatic release that all parties have at one time or another thought it a jolly good idea.

7. So at the time Khan was sentenced to an EPP, he would have been eligible for automatic release with no Parole Board oversight?

This now becomes even messier, because Khan’s appeal was heard after EPPs had been replaced by EDS, albeit he was originally sentenced when EPPs were in force. The Parole Board has emphasised that it had no part to play, but there has been much confusion over this, due in part to the BBC’s decision in its 2013 news report of the appeal to quote a part of the judgment completely out of context. The BBC reported this:

“Lord Justice Leveson said: “There is no doubt that anyone convicted of this type of offence could legitimately be considered dangerous.

“There is an argument for concluding that anyone convicted of such an offence should be incentivised to demonstrate that he can safely be released; such a decision is then better left to the Parole Board for consideration proximate in time to the date when release becomes possible.””

This sounds very much as if Leveson LJ is imposing a sentence that involves the Parole Board, right? Well put in its proper context, my interpretation is that, to the contrary, he was simply weighing up the competing arguments before concluding that an EPP, even though it meant automatic release, was appropriate:

Dealing first with the question of dangerousness, at the time that these appellants were sentenced, in our judgment there is no doubt that anyone convicted of this type of offence could legitimately be considered dangerous within the meaning of the legislation: that includes Hussain and Latif to whom we refer below. Furthermore, given that it is difficult to identify the extent to which those who have been radicalised (perhaps as a result of immaturity or otherwise) will have modified their views having served a substantial term of imprisonment and there is an argument for concluding that anyone convicted of such an offence should be incentivised to demonstrate that he can safely be released; such a decision is then better left to the parole board for consideration proximate in time to the date when release becomes possible.

On the other hand, the extent to which the evidence demonstrated that the threat of a terrorist attack had progressed beyond talk (however apparently determined) is relevant to the risk posed by the offender and the need to protect the public. The judge certainly concluded that the London planning had not progressed so far as to demonstrate such a risk that imprisonment for public protection was necessary and although we recognise that training terrorists in the use of firearms could only lead to potential loss of life, whereas the intention of the London defendants did not encompass death or serious injury (while recognising the serious risk that such would result), on any showing, the fulfilment of that goal was further removed and there were other obstacles (not least as a consequence of the fact that their activities had come to the attention of the security services in Pakistan). Furthermore, there is no suggestion that any of the Stoke defendants had, in fact, been trained, let alone that they would be in a position to activate, operate or participate within a training facility not then built, however keen they might have been to do so and however much they might have talked up their prospects between themselves or to others whom they sought to influence.

Notwithstanding the considerable respect that the conclusion reached by Wilkie J merits, we have come to the conclusion that if, as he concluded, the plans of the two groups were “equally serious”, the risk posed to the public could not be greater from those who were very much further away from realising their apparent goal than those who were far closer to doing so.

So it appears as if the Court of Appeal understood that it was imposing an old-style EPP, which makes sense given that the Court of Appeal’s powers on allowing an appeal against sentence are to “pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence. This would have meant that the Court of Appeal imposed the same type of old-style Extended Sentence as was passed on the London co-defendants, and that therefore, as it has confirmed, the Parole Board had no role to play in Khan’s release.

8. Are dangerous offenders still automatically released at the halfway stage of their sentence?

A lot has changed since 2008. IPPs have now gone. The failure of the prison system to make available to prisoners the rehabilitative programmes they needed to take to secure their release, due to the horrendous overcrowding, was a genuine Kafkaesque nightmare, which the European Court of Human Rights in 2012 declared was unlawful.  The coalition government responded by abolishing IPPs in 2012 (although not for prisoners still serving those sentences), and introducing new Extended Determinate Sentences. It is worth emphasising, to rebut nonsense published by Breitbart contributors today, that the ECtHR ruling on IPPs had nothing whatsoever to do with the Court of Appeal decision in Khan’s case. The Court of Appeal could have lawfully upheld the IPP if it wanted. It was not forced, either by government or by the ECtHR, to change the sentence.

These new Extended Determinate Sentences (EDS) worked like old EPPs, except that you would be automatically released at the two thirds stage of your sentence if your custodial term was under 10 years, and would go before the Parole Board at the two thirds stage if your custodial term was 10 years or more or you were convicted of certain specified offences.

9. So the coalition government were still automatically releasing dangerous offenders?

Yes. They were being kept in for slightly longer, but there was still no Parole Board oversight, except for the most dangerous of dangerous offenders. This changed in 2015, when all EDS prisoners were required to secure Parole Board approval for release at the two thirds stage. That remains the position today.

10. What is the government proposing to do?

To listen to the Prime Minister’s rhetoric, plenty. To read his manifesto, nothing. The changes that are proposed to release provisions relate specifically to offenders who do not receive EDS – the government wants to make it so that a tiny handful of defendants who are possibly a bit-sort-of-dangerous-but-maybe-not will serve two thirds of their sentence before automatic release. So they are not proposing to introduce any further Parole Board oversight of these prisoners – simply to keep them in a bit longer so that Johnson can boast about increasing sentences.

Much of what has been said today by government ministers is completely false. Priti Patel claimed:

This is a lie. The courts had several options to deal with “dangerous terrorists” that would have avoided automatic release. The reason for Khan’s sentence was that the Court of Appeal ruled (to be proved tragically wrong) that Khan’s risk did not require the input of the Parole Board that an IPP would have guaranteed.

Brandon Lewis said, in response to Yvette Cooper getting bogged down in confusion over Leveson’s comment about the Parole Board:

This is a lie. Nowhere has the government proposed in its manifesto to “ensure that people serve their full term”. Likewise Ms Cooper spread misinformation when she suggested that the government’s 2012 reforms had a bearing on the sentence. This, as we’ve seen, is simply untrue.

And, of course, the Prime Minister:

Repeating Lewis’ claim, if this is something Johnson has “long said”, one might ask why ensuring defendants serve the full term of their sentence is not mentioned in the manifesto. If this is such an obvious failing, why not promise to remedy it? Heaven forfend this is ad-hoc, evidence-free electioneering.

11. So where does the blame lie?

Blame is rarely helpful, as with almost all of these cases, the tragedy is multi-causal. Labour introduced automatic release for EPP prisoners in response to its own prisons crisis (caused by its own “tough on crime” rhetoric), but the Coalition government was responsible for the statutory regime at the time of Khan’s case. It’s nonsense to suggest that Labour’s changes in 2005 prevented judges from passing adequate sentences on dangerous offenders; for one, the government had plenty of time until 2012 to amend the sentencing regime it inherited from Labour if it considered it to be so inadequate. The Court of Appeal finds itself in the unusual position of being criticised for being too lenient; almost every criminal law practitioner would tell you that the Court of Appeal is (in)famous for its reluctance to interfere with convictions and sentences, finding sometimes ingenious/disingenuous ways of upholding Crown Court decisions. The judgment appears well-reasoned given the known facts, but hindsight casts it in obvious doubt. For what it’s worth, the Sentencing Guidelines that now exist for terror offences would, on my interpretation of the facts, be likely to lead to a life sentence for Khan were he being sentenced today. And something that has been missed is that since 2015 nobody imprisoned for a terrorism offence is automatically released; in the unlikely event that he is not sentenced to EDS or life imprisonment, the court is required to order him “an offender of particular concern”, meaning that at the halfway point of his sentence he has to apply to the Parole Board for release.

Perhaps the focus, rather than on “tougher sentences”, ought be trained a little closer to the less tabloid-friendly dimension of criminal justice: Prisons and probation have been ravaged by huge cuts and disastrous reforms, meaning that Khan would have likely received little meaningful rehabilitation while in custody. If I were directing an inquest, I’d start there.

***

UPDATE: Overnight, the Prime Minister’s posturing has crystallised into hastily scrawled new policies, announced in op-eds in the Sunday tabloids repeating various untruths dealt with above, including falsely suggesting that we still have the same system as in 2008 and claiming that he has been talking about “abolishing automatic early release” for “four months”, despite not devoting a single word to this is his manifesto, nor making any effort to include this change in the recently enacted Counter Terrorism and Border Security Act 2019, a flagship piece of anti-terror legislation which focussed specifically on sentencing for terrorism offences. He also claimed, with characteristic fidelity to accuracy, that Khan was “sentenced 11 years ago”. Anyway, the overnight brainwave will apparently now herald a minimum 14 year sentence for defendants convicted of (unspecified) terrorism offences, with a suggestion that they will be required to “serve every day of their sentence, with no exceptions.”

As this is likely to run and run today, forgive me if I repeat this: In 2019, no terrorist sentenced to a term of imprisonment is subject to automatic early release. The Prime Minister’s attempts to suggest that we have the same system as applied at the time of Usman Khan’s sentence, and that he is the man to fix it, are dishonest, cynical and exploitative.

Guest post by Laura Hoyano: Terminology does matter: ‘believe the victim’, investigative mindsets and unlearned lessons from miscarriages of justice

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I am delighted to host this guest blogpost by Laura Hoyano, a barrister and Senior Research Fellow at Wadham College, Oxford.

 

On 18 December 2014, Detective Superintendent McDonald of the Metropolitan Police (MPS) declared to the media that ‘Nick’ had made “credible and true” allegations of child murder and horrific abuse against a deceased Prime Minister, current and former MPs, Peers, a Home Secretary, Heads of MI5 and MI6, and a D-Day hero and head of the armed forces. On 22 July 2019, ‘Nick’, now named as Carl Beech, was convicted of 12 counts of perverting the course of justice and one count of fraud, and sentenced to 18 years’ imprisonment. Irreparable damage was done to those wrongly accused and subjected to a deeply flawed investigation. As more of the unredacted review of Operation Midland of retired High Court Judge Sir Richard Henriques has been published, we know more about how this débacle came about. But have the lessons been learned?

This description of ‘Nick’s’ complaints was planned (Henriques [2.4.9]). DSU McDonald made his declaration without having read any of his interviews or blogs ([2.4.9 response to MPS]), which showed “gross inconsistency” ([2.4.14]).

 

The genesis of the “belief” directive

McDonald justified it on the basis of MPS Special Notice 11/02 “Principles of the Investigation of Rape and Serious Sexual Assault”: “It is the policy of the Metropolitan Police to accept any allegation made by any victim [sic] in the first instance as being truthful. An allegation will only be considered as falling short of a substantiated allegation after a full and thorough investigation.” [quoted by Henriques [1.21]).

The 2002 Notice was issued against a background of justified concern about the high number of sexual assault allegations being ‘no-crimed’ with little or no investigation. A 2014 Report by Her Majesty’s Inspectorate of Constabulary found that of the 1,077 reviewed decisions to ‘no-crime’ a reported rape, 220 were incorrect; in the worst forces, more than two-fifths of rape no-crime decisions were wrong ([7.70]-[7.71]). HMIC recommended that for recording all forms of reported crime – notwithstanding that only 6% of errors could be attributed to the ‘victim’ not being believed ([7.75)] —  the “presumption that the victim should always be believed should be institutionalised” ([1.31]).

 

Recording and investigating rules become conflated

Guidance for Operation Hydrant (Nov 2015), a hub which co-ordinates the investigations of non-recent sexual abuse allegations against other prominent persons and institutions in England & Wales, stated that “[t]he focus of the investigation is on proving or disproving the allegation against the suspect, and not on the credibility of the victim. Investigators will need to consider issues relative to the victim’s credibility but this should not be the primary focus of the investigation.” This injunction is contradictory, and even non-sensical when the only evidence is an accusation and a denial. The guidance was republished in this form in Nov 2016, after Henriques; it is under review, but only in Sept 2019.

 

Henriques’ demolition of the ‘belief’ directive

Henriques provided a devastating critique of the ingrained terminology of victimhood and belief which tainted the police’s approach to ‘Nick’ during Operation Midland [para 1.23]: “a starting point that eliminates doubt has the hallmark of bias”, striking at the very core of the criminal justice process, which “has and will generate miscarriages of justice on a considerable scale” ([1.30], [1.31]). He found “plain evidence” that “an instruction to believe complainants has over ridden [sic] a duty to investigate cases objectively and effectively” ([1.25]), and that “a major contributing factor” in the many police failures in Operation Midland was the “culture that ‘victims’ must be believed” ([2.3.8.58]).

 

Responses to the Henriques Review

The College of Policing commissioned from Assistant Commissioner Beckley (MPS) a comprehensive and thoughtful Review into the Terminology “Victim/Complainant” and Believing Victims at the Time of Reporting(Feb 2018).  AC Beckley observed that “[i]t is not at all surprising that, for officers and staff, “believe” and “belief” has leaked into the wider investigative environment” ([8.4]), and concluded that “maintaining a stance involving believing victim accounts, however limited, has potential to undermine the legitimacy of the process” ([8.6]).  The result was a clear recommendation from the College of Policing that whilst the term ‘victim’ should be retained, the  Home Office should amend the crime recording counting rules to remove the words “The intention is that victims are believed” to be replaced by “The intention is that victims can be confident they will be listened to and their crime taken seriously”. Training materials would then be reviewed to provide guidance on “how accounts (including initial accounts) can be clarified, tested and appropriately challenged in the most supportive and explanatory way possible” ([Beckley [8.10], [8.12]).

The Home Office rejected this considered view in September 2019, retaining the controversial wording in the Crime Recording General Rules whilst adding (in italics):

“The Standard directs victim focused approach to crime recording. The intention is that victims are believed and benefit from statutory entitlements…. This seeks to ensure that those reporting crimes will be treated with empathy and their allegations will be taken seriously. Any investigation which follows is then taken forward with open mind to establish the truth.”

The diktat to ‘believe the victim’ appears throughout the Standard as a “presumption”, eg paras 3.2, 3.5, 3.8.

The 2019 edition of the draft guidance for Operation Hydrant repeats this advice to Senior Investigating Officers, claiming, rather anxiously, that it is “entirely consistent with the approach that should be taken at the outset of an investigation into non-recent child sexual abuse and acknowledges the need to gather all evidence, both towards and away from the allegation” ([1.2.3]).

So the inherent logical contradiction criticised by Henriques is now entrenched in this ‘two phase’ approach: how can an officer be required to “believe” the complainant, and then suddenly become objective and impartial in interviewing the suspect ([1.25])?

“Any policy involving belief of one party necessarily involves disbelief of the other party. That cannot be a fair system… That is a simple reversal of the burden of proof.” ([1.26], [1.27]) “The instruction foisted upon investigators to believe a ‘victim’ perverts our system of justice and attempts to impose upon a thinking investigator an artificial and false state of mind. If a judge were to direct a Jury to believe a complainant during evidence in chief, and only to question credibility thereafter, it would constitute a most  serious misdirection.” ([1.32]).

 

Rhetoric snags on legal duties

Moreover, the ‘belief’ injunction snags on (at least) six more protruding procedural nails for the police, from start to finish of an investigation:

  • their duty under the Criminal Procedure and Investigations Act 1996 Code of Practice para 3.5 to investigate *away* from the suspect is triggered at the complainant’s initial interview, yet the interviewer is instructed to “believe” the complainant in this and (presumably) subsequent interviews and in taking a witness statement (‘Nick’ gave 17 hours of recorded interviews over 6 months);

 

  • ex parte applications for search warrants give rise to a duty of candour to the court under Criminal Procedure Rule26(3), requiring a mindset of balanced scepticism in evaluating the consistency of the totality of the evidence (this duty was unlawfully breached in Operation Midland according to Henriques ([2.4.9 response to MPS], [2.4.47], [2.4.49], [2.4.51], [2.3.8.56]) and the district judge who issued the warrants, but not according to the Independent Office of Police Conduct);

 

  • files sent to the Crown Prosecution Service must identify and evaluate weaknesses in the prosecution case;

 

  • their common law duty to disclose any information which might assist the defence immediately arises if it would assist with the early preparation of their case including at a bail hearing (CPIA Code of Practiceparas 6.6, 7.1);

 

  • their specific duty to disclose any material casting doubt on the reliability of a prosecution witness, such as the complainant (CPIA Code of Practice para 7.3) and

 

  • their continuing statutory duty under the CPIA throughout the proceedings to disclose material to the defence which might undermine the prosecution case or assist the defence (CPIA s. 7A).

Henriques’ observation that “a genuine and truthful complainant has nothing to fear from a directive that prioritises investigation ahead of ‘belief’” ([1.35]) is unanswerable; a complainant is entitled to be treated with dignity and seriousness, but not to go unchallenged at any stage through probing questions.

It is inexplicable that the Home Office has rejected Henrique’s irrefutable and unqualified condemnation of the terminology of ‘believe the victim’ as impeding open-minded and impartial investigations. What greater evidence of this is required than Operation Midland?

The Rules should record plausible allegations for the narrow purposes of initiating investigations and quantifying police activity in various offence and geographic sectors. The College of Policing’s recommendation was correct: ‘belief’ is unnecessary for the Standard to be rigorous and effective. Investigative training must stress a neutral starting point, not expect officers to hold two conflicting mindsets. Otherwise mistrials will continue when police witnesses cannot defend the impartiality of their investigation under cross-examination, or refer to complainants as ‘victims’ whom they were required to ‘believe’ from the outset.

 

Laura Hoyano is a barrister at Red Lion Chambers, a Senior Research Fellow at Wadham College, Oxford, and a member of the Faculty of Law, University of Oxford. She represents the Criminal Bar Association on the end-to-end review of obstacles to the prosecution of serious sex offences being conducted by the Ministry of Justice and Home Office.

Guest post by Joanna Hardy: We need to talk about lunchtime

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A few years ago, a poster was stuck up in the robing room at Snaresbrook Crown Court. There was to be a charity raffle.

The prize? “Win lunch with the Snaresbrook Judges!”.

This prompted much mirth. An unimpressed barrister scrawled beneath it “Second Prize: TWO Lunches”. Another quipped that they would rather eat their own wig. Counsel threatened to enter their opponents into the raffle for a laugh, hoping to inflict an hour of judicial caesar salad on those who had wronged them.

This was all light-hearted. Everyone knows the Snaresbrook judges are really rather nice and, importantly, they have a dining room. And actual cutlery. The dark days of 2012 are long behind us and we try not to mention them in polite company.

I thought about that raffle a lot yesterday. I was wrestling with a Crown Court vending machine to extract my own lunch. A Kinder Bueno and a carton of Ribena. This was my seventh day of Vending Machine Bingo at a court with no catering facilities save for a roaring trade in the rare and disgusting delicacy of refrigerated packets of crisps.

The slot swallowed my money, the machine rumbled into action, the metal coil jammed and my chocolate bar was stuck. I eyed the machine for size and wondered if shaking it might be considered professional misconduct. I recalled that more people are killed by vending machines falling on top of them than from shark attacks. I decided not to risk it and poured more money in. Two Kinder Bueno. Jackpot.

I glanced at the time. A quarter of lunchtime had passed. I needed to see my client in the cells, see my opponent to discuss some evidence, finalise a document for the jury, consider some recent disclosure, return a frantic call from my clerk and, time permitting, use the bathroom. Clock ticking, time tocking, I shoved the chocolate into my mouth. “A speed lunch! The finest tradition of the bar”, a senior barrister bellowed at me as he commenced his own futile battle with the evil vending machine.

It was then I realised – we need to talk about lunchtime.

If a speed lunch, or no lunch at all, are traditions of the bar then they are bad ones. Like all traditions, we ought to occasionally ask ourselves why we are still doing them.

If the Wellbeing initiative is to conquer anything then her first victim must be the macho work culture that led us here. The at-all-costs attitude that shames people for basic activities like having a cup of tea or gathering their thoughts. The creeping obsession with sitting statistics and an unquestioning devotion to the “effective use of court time” has a price. Are we, as counsel, willing to pay it?

Because one thing we do find time to swallow is the frustration of being asked to perform a lunchtime miracle at a court that has closed the canteen, hired no recorders, broken the boiler, locked all the conference rooms and sealed off half the toilets. It is our shoulders that bear the loss of lunch, rest, and wellbeing to keep the show on the road, to keep the statistics high and to not keep anyone waiting.

As part of our Wellbeing revolution, we ought to now consider how we realistically structure the court day in the scorched landscape of cuts, closures and reduced facilities. It should be widely acknowledged that there will be trials and times when a longer lunch break, or multiple short breaks, are appropriate. Not always and not often. But for those trials where time is short, pressure is high and facilities are lacking we must call it out. We should be bold enough to insist that heavy tasks are undertaken within court hours and brave enough to recognise there is no shame in needing a rest. Justice is not a race and it will not be achieved by a drained, exhausted profession. We ought to now insist that the “effective use of court time” includes provision for us to remain effective too.

Joanna Hardy is a criminal barrister at Red Lion Chambers. She tweets @joanna__hardy

Boris Johnson and misconduct in public office: 8 things you should probably know

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On 7 June 2019, the High Court brought to a halt the attempted private prosecution of Boris Johnson for misconduct in public office. Today, the full judgment has been published. There has been a lot of commentary surrounding this case, not all of it based on a firm (or even rudimentary) grasp of the facts. So breaking it down, what exactly has gone on here? Eight (likely-to-be) FAQs spring to mind.

  1. What the dickens is going on, legally speaking?

 On 29 May 2019, District Judge Coleman sitting at Westminster Magistrates’ Court granted an application by Marcus Ball and Brexit Justice Limited for a summons against Alexander Boris de Pfeffel Johnson, the proposed defendant, in respect of a contemplated private prosecution seeking to charge the aforementioned Mr Johnson with three counts of misconduct in public office, contrary to common law. On 7 June 2019, the Administrative Division of the High Court granted permission in respect of a claim by Mr Johnson for judicial review of the District Judge’s decision and quashed the granting of the summons, having found that the District Judge erred in law in her findings.

 

  1. And for the English speakers among us?

 In 2016, Marcus Ball set up a crowdfunding website inviting donations to fund a private prosecution of Boris Johnson for misconduct in public office, arising out of statements made by Mr Johnson during the 2016 referendum campaign, at a time when he was Mayor of London and a Member of Parliament. The offending statements relate to the well-known “We send the EU £350 million a week, let’s fund our NHS instead” claim. The first step in a criminal prosecution is to apply for a summons, which compels an individual to appear before a magistrates’ court. The District Judge (DJ) sitting at Westminster Magistrates, having heard legal argument from lawyers for Mr Ball and Mr Johnson, granted a summons. Mr Johnson “appealed” by seeking a judicial review of the decision to grant a summons, arguing that the decision was wrong in law. The High Court agreed, and quashed the decision to grant the summons.

 

  1. Why is a summons so important?

Quite simply, in this context no summons means no prosecution. Summonses are routinely issued against defendants in criminal prosecutions, usually with absolutely no challenge. But this being a private prosecution, opposing the granting of the summons was a way of trying to derail the prosecution at the very earliest stage (and very successfully, as it turned out).

An application for a summons will be granted by a magistrate (or a District Judge) if the magistrate is satisfied that the allegation is an offence known to law, and if the essential ingredients of the offence are prima facie (on its face) present. The court is not deciding whether a person is in fact guilty of an offence; simply whether there is, on the face of the case, evidence of its core ingredients. The court must also consider whether there are compelling reasons not to issue a summons, including – importantly for our purposes – whether the application is vexatious (which may involve the presence of an improper ulterior purpose).

In most public prosecutions, these things are not even an issue: the case will have been investigated by the police, referred to the Crown Prosecution Service and reviewed by a lawyer to check that it meets the evidential and public interest tests for charging, and the threshold for issuing a summons will obviously be met. But the issue is less clear cut in cases where the law is being used for a novel purpose. And using the law of misconduct in public office to prosecute a politician for false or misleading statements made during a political campaign is certainly novel. Hence things got a little sticky.

 

  1. What is “misconduct in public office”?

Misconduct in public office is a centuries-old common law offence (so developed by the courts rather than set out in legislation), which has been used to prosecute such varied allegations as MEPs claiming irregular expenses, police officers selling stories to journalists, healthcare professionals engaging in relationships with prisoners, the false statement given by a police officer in the “Plebgate” affair, and the Bishop of Gloucester entering into relationships with trainee priests.

If you think this sounds somewhat wide-ranging, you’d be right. And this – the vague and ill-defined scope of the offence – is one of the reasons that misconduct in public office is currently the subject of a consultation by the Law Commission, which is considering recommendations for how it might be reformed. Nevertheless, there has been a steady rise in the number of prosecutions for the offence, from 2 in 2005 up to 135 in 2014.

The test, as set out in a 2005 judgment of the Court of Appeal, has four key elements. Misconduct in public office arises where:

i. A public officer acting as such

ii. wilfully neglects to perform his duty and/or wilfully misconducts himself

iii. to such a degree as to amount to an abuse of the public’s trust in the office holder

i.v without reasonable excuse or justification

 

  1. How was it said that misconduct in public office applies in this case?

The argument of Mr Ball was quite simple: at the time of knowingly making plainly misleading statements, Boris Johnson was a holder of public office. There was little argument that the statements were misleading. Lying to or misleading the public amounts to an abuse of public trust in that office, hence there is, on its face, evidence to meet the ingredients of the offence. The District Judge broadly agreed.

 

  1. Why did the High Court disagree?

Firstly, a word about judicial review. An application to the High Court for judicial review is not simply a rerun of the case before a different court; it is a claim that there has been an error of law in the way the judge in the court below approached the case. If the High Court feels that it would have reached a different decision to the magistrates, but is not satisfied that the magistrates were wrong in law, it will not interfere.

In this case, Boris Johnson’s arguments were twofold: firstly, the District Judge made an error of law in finding that (i) and (ii) of the ingredients were prima facie made out. That error of law meant that the judge had no power to grant a summons. Secondly, the District Judge’s finding that Mr Ball’s application was not vexatious (which if found would afford a ground for not granting a summons) was “Wednesbury unreasonable”. “Wednesbury unreasonableness” is a legal concept wearily familiar to law undergrads, but for the lay person is perhaps best summarised as “batshit cray cray”. If the High Court finds that a decision of a court was “so unreasonable that no judge properly directing itself could reasonably have reached that decision”, it can quash it.

So, taking the contested elements in turn:

While Boris Johnson undoubtedly held public office (times two), the key three words are “acting as such”. It is not enough that someone be a public official; they must be acting as such in committing the alleged misconduct. As the High Court made clear:

“It was not sufficient to say that he made the statements when in office as a MP and/or Mayor of London, and that “the public office held by Mr Johnson provides status but with that status comes influence and authority”. That does no more than conclude that he occupied an office which carried influence. This ingredient requires a finding that as he discharged the duties of the office he made the claims impugned. If, as here, he simply held the office and whilst holding it expressed a view contentious and widely challenged, the ingredient of “acting as such” is not made out.”

 As for whether he had “wilfully neglected to perform his public duty or wilfully misconducted himself”, the High Court was scathing of the way in which the District Judge had approached this question. The notion of false political statements falling within the ambit of “wilful misconduct” has no precedent. The High Court observed that certain types of false statement made during election campaigns are offences, having been specified as “illegal practices” by Parliament (for instance publishing a false statement about a candidate). Parliament had not chosen to specify generally false claims about, say, statistics, as illegal practices; for the courts to extend the ambit of “misconduct in public office” to encompass such things would be a significant and far-reaching decision. The law requires that people know clearly what conduct is and isn’t criminal; common law offences like this therefore should not be enlarged by the courts “with one large leap”. None of this, the High Court found, had been given proper consideration by the District Judge.

Therefore, while the threshold for granting a summons is low compared to, say, the threshold for convicting a Defendant (where the evidence has to make the magistrates or jury sure of guilt), a magistrate is still required to conduct a rigorous analysis of the legal framework and whether there is on the face of the evidence enough to satisfy the ingredients of the offence. The District Judge had not conducted such an analysis, and her conclusions were, in the High Court’s view, wrong in law.

 

  1. What did the High Court say about the political motivations of the private prosecution?

 Boris Johnson’s lawyers argued that Mr Ball’s application was politically motivated and vexatious, and that this provided another reason as to why it was wrong in law for the District Judge to issue a summons. The District Judge’s findings on this argument left something to be desired:

“I accept the defence submission that when the applicant commenced his consideration of whether to bring a private prosecution against the proposed defendant three years ago, there may have been a political purpose to these proceedings. However the information for the summons was laid on the 28th February 2019 and that argument, in my view, is no longer pertinent.”

The apparent suggestion that a political motive conceived in 2016 arising out of the EU Referendum has dissipated now in 2019 is, with respect to the judge, a curious reading of the current political temperature. When one considers the catalogue of public statements made by Marcus Ball about the proposed prosecution between 2016 and 2019, it is troubling that the District Judge’s certainty in dismissing the presence of political motivation isn’t supported by any meaningful reasoning. The High Court described the DJ’s finding as “flawed” because of the absence of reasoning, and said that it would have quashed the decision to issue a summons on this ground alone. (Because of this, the High Court said it was unnecessary for them to go on to consider whether, as well as being flawed for lack of reasoning, the finding was also “Wednesbury unreasonable”).

 

  1. So this is a moral victory for the future Prime Minister, surely? He has been found to have acted entirely properly.

No, no, no, no and no. No. Just no. And no again. No. The judgment can absolutely not be interpreted as any sort of vindication of Boris Johnson’s character. Indeed, the High Court judgment reads very much as if the judges were proceeding on the assumption that he certainly had lied, or misled, and the challenges to the District Judge’s decision by Boris Johnson’s own lawyers were not concerned with a defence of his character or conduct. Rather his case succeeded on the basis that he may well be a liar or a rotter or a charlatan, but such conduct does not of itself meet the legal criteria for misconduct in public office. So a victory, certainly. But hardly the glowing character reference his supporters might suggest.

Guest Blogpost by Greg Powell: A brief history of legal aid

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I am delighted to publish this guest blogpost by Greg Powell of the London Criminal Courts Solicitors’ Association (LCCSA). There is presently a lot of discussion in the media about legal aid, and in particular the rates paid to lawyers under legal aid. This analysis is vital to understanding how we have arrived where we are, and is essential reading for anybody reporting or commenting on the dispute between criminal justice professionals and the government concerning legal aid.

 

  1. The Expansion of Legal Aid

1.1      In the 1970s and 80s there was a large expansion of Legal Aid which was at that time essentially an adjunct to the other work of solicitors firms, there being some 7000 suppliers, Legal Aid work sitting alongside normal commercial work like conveyancing, probate and contract.

1.2      Administered by the Law Society the hourly rates were not as high as those prevailing in the private client and commercial world but nevertheless were related to the cost of time.

1.3      The cost of time was calculated by assigning a target for chargeable hours for each fee earner, usually 1200 hours per annum, a notional salary for solicitors and partners and dividing overheads by the numbers of fee earners to find out applicable hourly rates.

1.4      Provision was made for lower hourly rates for travel and waiting, a problem that has always been apparent in legal aid work which is often not office based but court based, and in the case of crime, prison and police station based, with the consequence that large parts of chargeable hours were consumed in lower paid hourly rates. Fixed fee schemes containing ‘rolled up’ time spent travelling and waiting ‘hide’ the true costs of cases within their simplicity.

1.5      However, in terms of cost benefit it is also to be noted that the organisation of courts and the interaction of advocates and the tribunal and particularly the flow of work provided by ushers in Magistrates Courts is highly efficient; face to face interactions provide courts with good quality information upon which to base decisions.

 

  1. A Changing Supplier Base

2.1      As Legal Aid expanded the Law Society administration was unable to cope. Delay in payment became a well-known public fact and eventually the decision was made to move the administration of Legal Aid away from the Law Society into the hands of an independent Legal Aid Board. This was at inception essentially a cashier organisation but it also had within it a desire to promote and implement policy.

2.2      What had also happened is that a number of more specialist Legal Aid suppliers had come into being whose main purpose was to provide Legal Aid services in the community, usually both civil and crime covering the full range of civil, family law, welfare benefits, housing, mental health and immigration. In essence a numerous and independent “legally aided” sector was a by-product of the expansion of funding and scope.

2.3      It had been, and remains, a major component of this system that the supplier base provides its own capital in order to set up organisations, provide premises and employ people.  In this sense it is a free market where entrepreneurs have invested their own capital identifying gaps in the market and establishing businesses.

2.4      There were parallel changes in the private solicitor marketplace as conveyancing lost its fixed fee structures and in the more successful private client firms partners often became dissatisfied with low hourly rates of return in legal aid work and began shedding that work, a process accelerated from the 1990s as Legal Aid rates became frozen and eroded by inflation. Lord MacKay decided to abolish his Legal Aid Advisory Committee.  The current panel constituted to assist in the review of criminal Legal Aid is a distant echo of that forerunner.

 

  1. The Rise of Contracting

3.1      The Legal Aid Board brought forward the idea that suppliers would be contracted to supply Legal Aid services coupled to the idea of a quality mark. This had some basis in academic research (see the book, Standing Accused by McConville and Others which lamented poor standards in criminal work).

3.2      Other major structural developments were the establishing of the Crown Prosecution Service following major public scandals involving forced confessions by police officers and also the technological development of tape recording which allowed a new mode for conducting interviews.  The 1984 Police and Criminal Evidence Act also introduced the idea of the delivery of rights by independent Custody Officers whilst extending police powers.  One particularly significant development was the decision to allow the police 24 hours in which to detain a person before charge.  This was fiercely debated with 12 hours as a viable alternative but this was rejected and 24 hours underpins the subsequent development of a lackadaisical approach to the investigation whilst the person is in custody. Providing access to legal advice in the Police Station was a major costs driver.

3.3      Initially contracting was to be voluntary and was expressly said not to be a policy which would become compulsory.  Of course it did and very unfortunately contracting become a major dividing factor, there being separate crime and civil contracts.  This rupture of services had profound consequences on the market causing firms to choose between spheres and although many continue to operate both there was also a large bureaucratic burden.  That burden was another factor in private client firms continuing to abandon Legal Aid services.

 

  1. A Rich Ecology

4.1      What the entrepreneurial activity had created, in the context of the expansion of Legal Aid to meet need, was a rich fabric of firms and services. We have sometimes likened this to the ecology of a rainforest, diverse, valuable and especially establishing in local communities a variety of client choice and a feeling amongst clients, usually poorer and working class, that they had access to justice through “their” solicitor.

 

  1. Reform and the Market

5.1      The foundation of reform was a myth, that Legal Aid expenditure was “out of control” accompanied by a sinister subtext that the forces driving expenditure were the supplier base improperly exploiting Legal Aid. Academic research showed that the driving factor was in fact the rise in need and volume of cases and a tsunami of legislation, especially in crime.  Nevertheless this myth took hold.

5.2      The Paradox in the early 2000s was that the government was substantially investing in workers compensation schemes and rightly so, but whilst it spent billions on the one hand in those schemes it sought to cut Legal Aid expenditure by millions on the other.

5.3      Lord Carter proposed a crude simplistic trade off of volume for price a theme that has bedevilled so called “reform” ever since and dominated proposals for change.

5.4      The proposals that came forward were administratively complex and essentially foundered as they were unable to resolve contradictions between rewarding incumbent suppliers with market share and providing opportunities for new entrants, whilst also hopelessly confusing the nature of the market with other markets where there are multiple opportunities for suppliers to bid for work.

5.5      This is worth spelling out.  The Ministry of Justice is a single purchaser of Legal Aid services.  It sets prices.  The suppliers when they bid for work (however defined) face an existential crisis.  If their bid fails then they are out of business.  There is no alternative place for them to bid.

5.6      In other words this Legal Aid market for services is not like, for example, the NHS, which procures across a vast organisation for multiple services offering bidders the opportunities to bid for difference sizes of contract in different geographical areas in circumstances where, therefore, the failure of a bid is not terminal to their business.

5.7      It was an historic strength of the system that it was open. In other words there were no limits on the number of contractors and sufficient prices allowed a degree of entrepreneurial activity to fill in gaps in the market place. As prices have declined so has that activity.  However there are two other benefits from the way in which this market has operated.

5.8      A key element to successful entrepreneurial activity has been establishing reputation and this has been driven by the other key element of client choice.  The introduction of the Duty Solicitor Schemes enabled firms to source a more “captive” work stream and gain clients through duty solicitor activity in courts and police stations. Nevertheless it still remained and remains an important element for all firms that the quality of what they do is sufficient to draw that client back to them or achieve word of mouth referrals. In this way client choice drives quality.

5.9      Unfortunately restrictions on the ability to transfer Representation Orders have led to a decline in consumer/client choice.  There is a consumer paradox for people who are initially arrested, represented by a duty solicitor and bailed or released under investigation.  At that stage, pre-charge, there is no Legal Aid available and they are actually free to make enquiries in the marketplace to find out if the solicitor they have accessed accidentally as the duty solicitor is the person best placed to represent them or whether they could find an alternative with better reputation. In this way consumers are free to move around within the market.

5.10    However, if for example, a person is arrestedfor murder, has a duty solicitor and is remanded in custodythey then find it very difficult to change due to the rules which to this degree undermine an aspect of client choice.

5.11    Contracting has also restricted the market by restricting the opportunities for new entrants to the start of each contract cycle as well as being a system which has severed civil and criminal services. The most startling reform that could be contemplated would be ending contracting completely.  This would be a return to a pre-contracting era where all firms needed to do was to keep within the rules in respect of claims and payments.  In other words that the work was properly done and claimed.  Such a more open system would certainly allow new entrants and with other incentives and structural changes, allow firms to re-establish mixed practices of civil and crime and provide more local integrated services needed to meet the vast unmet need.

5.12    It is not difficult to be imaginative about what is possible in the Legal Aid market.  The Legal Services Commission as the successor to the Legal Aid Board had a worthwhile initiative through which firms took on trainees who were subsidised directly by the LSC in return for a contractual commitment to stay in Legal Aid work for a period of time.

5.13    Legal Aid as a bespoke subject ought to be an option within law school courses and participation can be leveraged through grant, the relief of debt and payments to suppliers to provide subsequent training contracts.

 

  1. AFundamental Problem

6.1      Underpinning access to justice are the rights to a fair trial and equality of arms between the parties.  Crucial is the adversarial system working properly to ensure that the court has before it all admissible evidence in order that the fundamental objective, which is the pursuit of truth, is achieved.

6.2      No one is facing up to the work, time and costs issues posed by the explosion of electronic material.   It simply means that in cases where it is relevant (and there is often a contest about what is and what is not properly served as evidence or unused material) the evidence has got be examined and deployed by prosecution and defence.  These are tasks which have made the process of litigation more time intensive and more costly.  This is for the police as investigators, the prosecution as an independent prosecutorial body assessing the evidence and for the defendants. All require extra resources in the long term in a degree of magnitude to properly cope with the technological development.  There is no shortcut and it simply requires more money and acceptance that this will be a demand led system that cannot be contained with fixed “envelopes” of cost.

 

  1. The Erosion of Value

7.1      The above argument in relation to the explosion of electronic material forms a context for the major other issue which has been the erosion of value.  It is not possible for solicitors and counsel to continue negotiating around the same envelope of money being deployed for cases in new ways.  Inventing other proxies for value or combining proxies with time or combining other structures of payment such as standard fees, non-standard fees, higher-standard fees still has to account for both the explosion in evidence and the fact that current values have been eroded to a degree where the work is unsustainable.

7.2      That unsustainability is evidenced by the recruitment and retention crisis within solicitors firms conducting criminal work.  It is also evidenced by the almost complete separation of private client work and Legal Aid work within the solicitor’s profession and by the advancing age of the cohort of duty solicitors.

7.3      Research might also reveal a very similar pattern in relation to the ages of partners or directors of firms within the supplier base which is also similarly advancing. Career opportunities have been truncated by the short horizon of business, the uncertainty of profits and the lack of career paths.

7.4      One way of exiting is to the Crown Prosecution Service which now offers substantially better terms than are available generally within the defence community.  Another way of exiting is to simply abandon the work and take up different careers. For students with vast debt Legal Aid is deeply unattractive.

 

  1. Access toJustice

8.1      It was a by-product of the expansion of Legal Aid and the availability of firms within communities providing a range of legally aided services that many millions of people could buy into the ideathat there was a degree of access to justice.

8.2      Much is written about alienation, voices not being heard, and the unrepresentative nature of politics, inequality and the socially excluded. Legal Aid cuts, in particular LASPO, have formed a backdrop which has accentuated exclusion.

8.3      Exclusion also has direct economic consequences.  A family with less income because they are unable to challenge welfare benefit decisions live in greater poverty.  Children in greater poverty   are more likely to fail in the education system, often being excluded, more vulnerable to drift into gangs, crime and county lines drug dealing. Similarly challenging are living in conditions of disrepair, losing housing and the gross disruption of family life where there are cycles of imprisonment, alcohol and drug abuse and devastating adverse immigration decisions and deportation.  Many live and are brought up in deeply hostile environments and too often the inability of fathers to access contact and maintain parenting has potentially disastrous consequences.

8.4      Add to these other factors such as loss of youth clubs, social workers, and the pressure of schools to exclude pupils.  It is no wonder that the world of gang affiliation with its sense of identity and drug dealing giving access to otherwise unattainable riches is such a lure to young people and indeed older people involved in organised crime.

8.5      The extent of organised crime has been highlighted by the National Crime Agency in its bid for between £2-3billion to combat what it describes as a major threat to security and wellbeing.  Will that funding and these initiatives drive more cases into the Criminal Justice System?  The idea that more cases will arise which demand more resources stands in stark contrast to falling volume as a result of the debacle of the RUI stance adopted by many police forces in relation to the many thousands of people arrested.

8.6      What all of this means, including the review itself, is an extremely unstable environment for Legal Aid practitioners. Low margins make firms highly vulnerable to changes in case volume and case mix.  A two year “review” is irrelevant to the immediate crisis.    What is required is at least a short term injection of funds, the making good of the last 8.75% cut which was predicated on the manipulation of the supplier base producing fewer suppliers with higher volumes, which never took place, and which was in itself arbitrary and unfair.  What is also needed however are not only higher levels of remuneration, but an imaginative reworking of incentives and structure to support an independent legal profession and a degree of stability which would allow businesses to flourish whilst meeting need.

 

  1. London and its Hinterland

9.1      At over 650 square miles with the largest concentration of population in the country London poses particular problems for Legal Aid lawyers.

9.1      It is an area of higher cost. Those costs relate to the costs of business premises, higher wages and higher costs for employees for accommodation and travel.  In a recent Reed Business Support Salary Guide for 2019 an Office Manager in London is said to command a wage of £40,100.  In the East Midlands the figure £23,700 and the North East £29,200 and the North West £23,900.  In the South West and Wales the figure falls to £22,300.

9.3      Traditionally the particular costs base of London were recognised by additional London Weighting supplements on hourly rates.  There is a powerful case for the reintroduction of London Weighting within any newly devised scheme.

9.4      Another myth is that there was an oversupply of firms in London. This is not true and the number of firms is proportionate to the population.  This was established in passing by the KPMG report in the failed debacle of tendering Duty Solicitor Schemes.

9.5      London is the centre of political protest and government and inevitably public protest type crime tends to arise more often and so does financial crime attached to London being the centre of financial services.

9.6      A fundamental problems for practitioners has been the complete absence of planning.  There is no court near a police station which is near a prison, they are spread haphazardly. The system has developed without the slightest regard for efficiencies that might arise from locating services together.  Indeed plans to relocate remand prisoners only in Wandsworth, Belmarsh and Highdown, which is actually outside London in Sutton, would only exacerbate the problems.

9.7      Very large distances must now be traversed across London for defendants, ‘victims’ and witnesses and indeed all the participants in the court process.

9.8      The idea has been advanced frequently by the LCCSA for over a decade that there ought to be reform of the Duty Solicitor Scheme.  At present solicitors join two courtschemes plus associated youth court schemes but are allocated to as many as eight or nine 24 hour police station schemes depending on the location of their office.  This thins volume in any particular court.  Bringing the schemes into line so that solicitors are allocated two or three police stations schemes most contiguous to their office and the court schemes ought to produce a greater volume of work for firms in their local courts.

9.9      Incidentally scheme inflation, by which many more people joined each individual scheme, was a product of a policy decision by the LSC to automatically allocate all qualifying solicitors, depending on the whereabouts of their office to every scheme that was available.

 

  1. Opportunity or Threat? The Criminal Legal Aid Fee Review

10.1    The immediate impulse for the review was the promise to the Bar to review the AGFS arrangements.  That promise was then conflated with the existing idea of a review of the LGFS (no doubt more urgent from the perspective of the MOJ after the successful JR of their plan to cut £30M or so from the LGFS Scheme) and then in turn extended to encompass all fee schemes, police stations, magistrates’ courts and the VHCC scheme.

10.2    Three elements dominate legal aid fees for the last twenty five years. The erosion of fee structures by inflation.  The endless cuts to EVERY fee scheme. The hugely bureaucratic, unmanageable and failed ‘reform’ proposals encompassing Best Value Tendering, Price Competitive Tendering and 2 tier contracting of duty solicitors schemes and other similar debacles including VHCC and family contracts. The 2 Tier debacle was accompanied by a completely arbitrary 17.5% cut in fees.  What is extraordinary is the sheer scale of that cut; 17.5%, not 1.5 or 2% but this huge figure.  Subsequently 8.75% was restored after the failure of the scheme, still leaving practitioners with a completely arbitrary 8.75% cut.

10.3    The common theme has been an approach to Legal Aid as a ‘market’ (fundamentally misunderstood, see para 5.) to be manipulated with the sole objective of driving down price (cuts) encouraged by overtures from a handful of ‘larger’ suppliers who sought greater volume and market share.  In civil the hatchet of LASPO simply removed access to justice for millions of people and further disrupted and eroded the supplier base. .

10.4    What has been absent is any coherent view of Legal Aid based on principles of fair trial, equality of arms or access to justice through increasing the resource that enables people to believe they have the means (legally aided lawyers) to pursue their rights, that their stake in society and belief in its fairness, in the application of the rule of law to them, has meaning because they can rebalance the unfair advantage of ‘others’ who have the power (landlords, Councils, the DWP, insurance companies, the Home Office, Police) by instructing ‘their’ lawyer. This is the real context of rearranging fee structures; it is not an end in itself but only one component of policy that ought to have this enabling outcome. This Review perpetuates the division of crime and civil being confined to criminal Legal Aid fees when the reality is that legal aid services are accessed across lifetimes in multiple ways as need overlaps the civil and criminal boundaries.

10.5    That vision is entirely absent from this Review which is framed as the ‘right time to think more widely about the future of criminal legal aid schemes’, without any commitment to any funding increase, only to the ‘right level’ of legal aid provision. It is most likely to be a missed opportunity and actually another ‘cut’.  The ravaging of value by inflation will not be addressed by a permanent compensatory mechanism, and any ‘ambitious’  attempt to manipulate the market will yet again misread its reality and lead to JR and debacle.  Is this to be a moment (actually a year or two with continuing ministerial reshuffles) for reinvigorating access to justice (restoring the £1 billion about 1/800thof government expenditure) or another episode in the erosion of Legal Aid and its supplier base?

10.6    In the period 2004/2005 to 2019 Government Expenditure rose from around £400 billion to over £800 billion.  In that period removing £1 billion from Legal Aid was a political choice.  The courageous and correct political choice would be to restore access to justice by expanding the Legal Aid spend by £1 billion.

10.7    The complete absence of a commitment to restore funding levels and the absence of vision are depressing.  There is little to indicate that the trajectory of the history of Legal Aid will change.  Rather that the reality that will emerge will remain one of cuts, loss of services and more people who believe that justice is not to be found within the society in which they live.