Tag Archives: Crime

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

Posted on by

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

Posted on by

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

Posted on by

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

Posted on by

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.

Peter Hitchens’ comments about Jo Cox’s killer betray a fundamental ignorance of the basic facts

Posted on by

A familiar sound for readers of the Mail on Sunday is the deafening cymbal-clash of Peter Hitchens colliding with reality. This last Sunday offered a particular highlight, which, although there is undoubted wisdom in leaving him alone to figuratively wander the 21stcentury in his dressing gown shouting at clouds, cannot pass without comment.

Summarised by this tweet:

https://platform.twitter.com/widgets.js

he shared his considered view that Thomas Mair, who was convicted by a jury of the murder of Jo Cox MP and sentenced to imprisonment for life, has wrongly been tarred a terrorist.

Undeterred by the fact that there was a wealth of evidence before the court which he, as somebody who was not in court for the duration of the trial, has neither seen nor heard, Mr Hitchens, armed with a fistful of second-hand newspaper reports of snippets of the case, assured readers that he, the clear-sighted rationalist, can see the case for what it is: “a tragedy twisted into a bogus ‘terror plot’”.

The premise of his thesis, as he expanded in a further blogpost on Monday, appears to be twofold. Firstly, it is “absurd” for anyone to claim that Mair was a “rational, coherent political actor”, as his actions “predictably achieved more or less the exact opposite of what he supposedly intended – and he would have grasped this in a second had he been in a normal state of mind”.

Allied to this is the second proposition: in Mair’s trial, there was evidence of mental ill health, which was suspiciously omitted from the legal proceedings. “Mair’s lawyer said he would not bring his medical history into the case. But why not?” “Why does the authority ignore such vital facts?” he demands, fingers twitching towards the tin foil with millinery intent. “Does the government want to believe, and to spread the idea, that there is some organised Right-wing terror plot?”

We can deal with the first argument swiftly: irrationality and mental ill health are two discrete concepts. The former may be a symptom of a latter, but they are not necessarily linked. Most of the people who cross the threshold of the criminal courts are irrational.  I’ve prosecuted more burglars than I can count who, despite their extensive experience, have still failed to process that climbing through a broken window is likely to result in your blood being left at the scene. The number of young men who, disqualified from driving and flagged down by the police, decide not to cut their losses and take their dues but instead to lead the police on a merry 90mph pursuit through residential areas and red lights before, inevitably, being caught, adding dangerous driving to the charge sheet – irrational? Tick. Incoherent? Tick. Achieving the exact opposite of what they supposedly intended? Tick. Colloquially they might be said to, in Hitchens’ words, be “roaming along the outer frontiers of sanity”, but mentally ill? That’s something different.

But amateur diagnostics aside, let’s consider Hitchens’ overarching theory: the suspicious omission of medical evidence of mental ill health from Mair’s trial. Referring to comments in news reports, he finds various examples of people claiming to know Mair – none apparently medically qualified – and offering anecdotes and opinions on Mair’s mental health. There is also a suggestion that Mair was in receipt of psychotropic medication. From this, Hitchens decries the “puzzling decision to ignore the plentiful evidence of Mair’s mental abnormality, reported at so many different times by so many independent people, but not discussed before the jury.”

Well this is only suspicious and puzzling if you don’t understand the first thing about how a defendant’s mental health is relevant in criminal proceedings. And it is regrettable that, given how frequently Mr Hitchens finds novel ways to be wrong about the criminal law, he did not think to ask anybody involved in criminal justice for their insight. Had he done so, he may have been told something along the following lines.

Evidence is carefully filtered in every criminal case. The court is only allowed to receive evidence that is relevant. Many defendants in criminal proceedings have lengthy histories of mental health problems. But it is only in a handful of trials that their condition is relevant to the issues that the jury have to determine.

How might mental ill health be relevant?

If a defence solicitor or barrister believes that a client may be suffering from mental ill health, they will as a matter of course obtain the client’s medical records and commission a psychiatric report. That report may be asked to comment on one or more of a variety of matters.

A psychiatrist may be asked to assess whether a defendant is “fit to plead” – legalese for being fit to participate in the trial process. This involves an assessment of whether a defendant can: understand the charges; decide whether to plead guilty or not guilty; exercise his right to challenge jurors (if, say, he knows one of them); instruct his legal representatives; follow the course of proceedings; and give evidence in his defence. If he can’t do one or more of those things, and if a judge hearing the evidence of two psychiatrists finds that the defendant can’t, he will be unfit to plead. This means that instead of a criminal trial there is a modified process (known as a “trial of the facts”), where a jury decides not on guilt but whether the defendant “did the act”. If so found, the court’s powers are limited to strictly rehabilitative options.

A psychiatrist may alternatively or as well be asked to opine on whether a defendant has a defence of insanity, defined as:

at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong

In murder trials, there is also a partial defence of diminished responsibility:

Furthermore, if a defendant were not capable of forming the specific intent to kill or cause grievous bodily harm (the mens rea for murder), whether because of a psychiatric condition or because of intoxication, that would also provide a defence to murder.

Finally, a psychiatric report may help with sentence. It may afford mitigation, if the offence was committed against the background of a mental health condition that reduced his culpability. It may make recommendations for particular disposals, such as hospital orders. And it may comment on issues that the court have to consider such as future risk.

Now the headline with all of these is that any such reported obtained by the defence attracts legal privilege. This means that the defence do not have to show anybody else – the court or the prosecution – the contents of the report if they do not wish to. So if a psychiatric report does not help the defence case, there will usually be no point in serving it. Many, many psychiatric reports are prepared for court cases every day and ultimately not relied upon. Often, the conclusion will be, “The Defendant suffers from psychiatric or psychological disorders, namely X, Y and Z, but not to the extent that any of the legal defences apply”. Sometimes, worse still, the report will be positively harmful to the defence. “The Defendant expressed no remorse and in my view presents a significant risk of serious harm to the public” is the last thing you want the court to read if you are trying to do the best for your client in mitigation. But, and I will repeat this, the fact that mental health issues were not “discussed before the jury” does not mean that all relevant mental health issues were not considered and dealt with appropriately.

Now we do not know why Mair’s lawyer did not rely on medical evidence. But we do know, because the defence barrister told the court at a pre-trial hearing, that Mair had been subject to an assessment.

So that leaves us with two possibilities:

  1. The defence lawyers considered that the contents of the psychiatric evidence, although perhaps showing that the defendant had mental health problems, did not assist the defence case;
  2. The defence lawyers ignored the psychiatric evidence, or negligently failed to appreciate that it was legally relevant and of assistance, and Peter Hitchens, who has never seen the evidence and is not legally trained, has correctly guessed this by piecing together things reportedly said by friends and neighbours.

Mistakes happen, of course. Negligence happens. Lawyers and judges are far from infallible. We see awful cases on appeal where the courts and/or defence representatives failed to appreciate the significance of a defendant’s mental health. But there is absolutely nothing to suggest that this is what happened in Mair’s case; to the contrary, his highly experienced lawyers indicated to the court that mental health had been considered and was not, for reasons that they do not have to state openly, going to be relevant to the issues the jury had to decide. Nor, from the sentencing remarks, was there any mental health issue relevant to mitigation. You’ll note that Hitchens does not suggest in respect of which legal issue – fitness to plead, a defence (and which one) or mitigation – the evidence of mental ill health ought to have been adduced. He just vaguely asserts that it should have been “discussed before the jury”, without deigning to tell us to what end.

Hitchens’ hang-up appears to stem from the false presumption that because an issue wasn’t raised before the jury, it wasn’t considered. That is wrong. No such deduction can safely be made. If Hitchens has spoken to those involved in the case, or has somehow seen Mair’s medical records or psychiatric reports, he may be onto something. Without any of those, it is nothing more than a conspiracy theory, and, given the imputation that Mair’s lawyers have been professionally negligent in service of a government agenda, a potentially libellous one at that.

Despite this all being pointed out to him, by numerous people, Hitchens remains characteristically recalcitrant. He insists that he is not seeking to excuse or defend Mair’s conduct, but he remains strangely keen to leverage minimal evidence of mental ill health to distance Mair from the “terrorist” label. The evidence of political motivation behind Mair’s actions was abundant, as the sentencing remarks made plain, but Hitchens goes to tortuous lengths to try to rebut this, climaxing with: “To me, his very insistence to police that “I am a political activist” shows that he was nothing of the sort.” Or as Brian’s followers would have it, “Only the true Messiah denies his divinity.”

Quite why Hitchens is so wedded to a thick black line that does not exist – attempting to separate mental ill health and terrorism into mutually exclusive camps – is also a mystery. Why he cannot accept the proposition that a person can be mentally unwell whilst still capable of committing deliberate and knowing acts of political carnage is as baffling as his determination to cast Mair as a victim of a state fit-up. The whole argument, as with so much of what Hitchens writes, is achingly bizarre. By the time you’ve finished deconstructing it, you almost forget why you started. Like the time he mistook the origins of the term “county lines” and got himself in a week-long tantrum, his thinking on this issue betrays a millefeuille of irrationality, incoherence and counterproductive reasoning. Hitchens has a term for that, but I expect he would not take kindly to it being applied to him.