I have today written a piece for the i newspaper on the jury system, after the excellent series published this week on life as a juror, The Trial: Secrets of Jury Service. My thoughts can be found here.
I am delighted to host this guest post by Joanna Hardy of Red Lion Chambers, articulating better than I can the appalling legacy of the Ministry of Justice’s continued selling-off of our courts.
The idea of living in the converted entrance hall of Acton Magistrates’ Court would surprise most lawyers. It used to be a sad place. Chewing gum used to cling to the floor, tackily collecting a thousand stories. The waiting-area seats groaned whenever a defendant rose to tell the local Magistrates why he had stolen the bicycle, punched the man or skipped his railway fare. The graffiti in the toilet documented the rights and wrongs of many stories and sub-plots. Defendants, victims and their respective families filed in to see justice being dispensed, case by case, crime by crime.
It was the turnstile of local justice.
Living in a converted Magistrates’ Court is not cheap. In 2017, the going rate was around £1.4 million. “Be the judge of this three-bedroom home” quipped a property article, “sleep in what used to be the grand entrance hall of Acton Magistrates’ Court”. The chewing gum has, presumably, gone and been replaced by a “rooftop terrace and steam room”. It looks happier now.
Acton might be at the start of the alphabet, but she is not alone in her dramatic makeover. Brentford Magistrates’ Court is now a luxury building that retained the cell area for trendy bicycle storage. Old Street Magistrates’ Court is a fancy hotel where you can “have a tipple” in the spot the Kray brothers once stood.
Time and again the sites of local, gritty justice have been transformed into luxe properties with corresponding price tags.
Recent figures reveal half of all Magistrates’ Courts have closed since 2010. Those pursuing local justice are increasingly finding that it is not very local at all. Courts are being consolidated and warehoused into larger centres spread out across the country. Community justice now needs to hitch a ride to the next town.
The benefits of justice being dispensed within a local community are keenly felt by those involved. For better or for worse, defendants can sometimes lead difficult, chaotic lives. Someone who is addicted to alcohol or drugs is unlikely to make a cross-county trip by 09:30am. Someone dependent on state benefits might not prioritise a peak train ticket to their court hearing if they are budgeting to feed their children. Their delays will cost society money. It might cost complainants and witnesses their time and a considerable amount of anxiety. If a defendant does not turn up at all then stretched police resources may be diverted to locate them. The community suffers.
Victims and witnesses might also struggle to make an expensive, time-consuming trip to a far-flung court. Those with childcare or employment responsibilities might not be able to spare an entire day to give evidence for twenty minutes. In some areas, the additional distance may cause witnesses a real discomfort and unease. There have been suggestions that some courts are so poorly served by public transport that witnesses and defendants could end up inappropriately travelling together on the same bus.
The benefits of local justice are clear in the day-to-day running of our courts. In some local cases, police officers still attend bail hearings. Put simply, they know their beat. They know the shortcut alleyway behind the pub, the road that is notorious for teenage car racing, the park where trouble brews. Their local knowledge helps to improve the practical decisions of the courts and to keep society safe.
The neighbourhood officer joins a long list of local benefits. Youth defendants attending a courthouse in their community can go back to school or college after their hearing. That preserves a shred of stability during a chaotic time. Probation officers sometimes know repeat offenders from earlier court orders or programmes. That helps with continuity of services including mental health, drug and alcohol treatment – often being coordinated by a GP down the road. Magistrates themselves are regularly drawn from the immediate geographic area. A community problem emerging at a particular football stadium, pub, school or street then attracts a consistent approach and a local focus.
Our justice system will be immeasurably poorer by the aggressive, short-sighted contraction of our court estate. Local knowledge, neighbourhood agencies and community justice have been gambled for large court centres making rulings from afar. The inevitable delays will waste public money. Complainants and witnesses will be inconvenienced. Police officers will be stretched. Decisions will be made in far-removed buildings distanced (in more ways than one) from the real crime on our streets.
The next time an advertisement surfaces for a luxury converted “Courthouse” building we ought to remember the real value of community justice and how much losing local courts might cost us all.
Joanna Hardy is a criminal barrister at Red Lion Chambers.
The Guardian is currently running a brilliant series on the effect of the legal aid cuts turbo-charged by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Owen Bowcott and Amelia Hill have put together an in-depth investigation drawing on case studies and interviews to demonstrate the dire impact upon access to justice.
One such interview, should you be interested, was with me, and can be found here.
Many if not most of you will have already seen this, but I decided to mark Festivus Eve (22nd December) by live-tweeting a festive favourite, Home Alone 2: Lost In New York, and doing my muddled best to analyse it through the lens of English and Welsh criminal law (a lens somewhat fuzzed by a few mulled wines). The first tweet is below; click to be taken to the full thread.
*** HOME ALONE 2 LIVE-TWEET: THE RULES***
This lecture explores the Christmas classic ‘Home Alone 2’ through the lens of English and Welsh law.
Contributions and observations are welcome, but I’m perfectly prepared to tweet the entire film to a wall of embarrassed silence.
— The Secret Barrister (@BarristerSecret) December 22, 2018
From there things got a bit mad, as reporters desperate for copy and merry on leftover Asti from the Christmas party stumbled across the thread and mistook it for something newsworthy. By Christmas Day, the “story” had caught the attention of MailOnline:
Well this wasn’t how I expected Christmas Eve to go. https://t.co/T4kRprLYGG
— The Secret Barrister (@BarristerSecret) December 24, 2018
And some of their greatest below-the-line comments:
Ha the comments. pic.twitter.com/tsAZCAAPuZ
— Tristan Beer (@TristanBeer) December 24, 2018
Then the the Evening Standard got wind.
Barrister's hilarious tweets reveal every law broken in Home Alone 2 https://t.co/yNT1YWJOOp
— Evening Standard (@standardnews) December 24, 2018
The Metro wasn’t far behind.
The Secret Barrister has basically changed the way we watch Home Alone https://t.co/gi6Jr77Ban
— Metro Entertainment (@Metro_Ents) December 24, 2018
Yahoo Celebrity News got in on the act.
— Yahoo Celebrity UK (@YahooCelebUK) December 24, 2018
The Sun managed to misunderstand the point entirely:
Home Alone 2 fans shocked by legal errors as Macaulay Culkin’s character could have faced 4 YEARS in jail https://t.co/rAUDQPJLQV
— The Sun (@TheSun) December 25, 2018
The story hit Ireland:
The Wet Bandits would be looking at 30 years to life after ‘Home Alone 2’ https://t.co/hzvzi9lxWl
— entertainment.ie (@entertainmentIE) December 24, 2018
We trended in New Zealand:
— TrendWiki New Zealand (@TrendWikiNZ) December 25, 2018
Somehow Bangladesh found it worth reporting:
The Secret Barrister live tweets every law broken in Home Alone 2 and reveals Macaulay Culkin’s character could face up to four years behind bars: A lawyer has revealed every law broken in iconic Christmas movie Home Alone 2 in a hilarious running… https://t.co/Vrnc0Qlj8e pic.twitter.com/bNaj48bRIi
— #BangladeshNews24 – BreakingNews24™ (@bdnews24) December 24, 2018
and even Putin’s propaganda sheet Sputnik News were running the “story”.
— Sputnik (@SputnikInt) December 26, 2018
Perhaps most barking of all, when Home Alone 2 was screened on Channel 4 on Christmas Day, the continuity announcer referenced the live tweet.
The Channel 4 continuity announcer just mentioned your live tweeting as well, in introducing Home Alone 2. Fame at last…
— Phil Corrigan (@PhilC2010) December 25, 2018
Overall, the thread has now apparently had over a million impressions on Twitter. I don’t know what this says, either about me or society. But nevertheless, Merry Christmas to you all, and thank you for your support. This has been a memorable one.
An open letter to the Chair of the Criminal Bar Association in relation to legal aid rates under the Advocates’ Graduated Fee Scheme (AGFS), signed by 193 criminal barristers.
We write to you and the CBA executive as junior Criminal barristers of 0-12 years’ call, in the wake of the government’s consultation response to Amending the Advocates’ Graduated Fee Scheme (AGFS 11), published on 10 December 2018.
We recognise the unenviable task the CBA executive faces in negotiating with the MoJ, and do not write in an effort to sow discord. However, what follows is an earnest and unapologetic attempt to convey to you and the CBA leadership the strength and depth of our feeling against AGFS 11, even as amended.
The Monday Message sent on 10 December 2018 described the proposed amendments as “tangible progress”, and sounded a note of optimism that “[w]e are beginning to turn things around”.
Regrettably, we do not share this optimism. We are alsounderwhelmed by the degree of progress. The fact that it is unprecedented does not of itself render it acceptable or worthy of celebration; following, as it does, over two decades of savage and dangerous cuts to the justice and Legal Aid budgets.
The 1% uplift and implementation of the newest statutory instrument with investment of the “additional” £8 million was simply the fulfilment of a promise; a promise on which the government had sought to renege. On any view, the government’s reliance on out-of-date figures on which to base its offer of a £15 million “increase” was at best a mistake and at worst a conscious and cynicalmisrepresentation.
We are angry. We believe that:
It would be wrong to think that we at the (junior) junior Bar are not equally concerned with the destruction of PPE as those more senior. Its loss in paper-heavy cases represents the dismantling of our future. Moreover, when senior members inevitably begin to choose their cases more shrewdly, those of us lower down will face the unenviable choice of taking on cases we fear are too complex for our call or having gaps in our diaries. We are seeing many examples of this happening already.
The current structure of payment, whereby guilty plea fees and cracked trial fees do not reflect the work involved in preparing for guilty pleas and ineffective trials (especially in cases that run to several thousandpages and beyond), is also creating a real risk to the quality of representation. The lack of adequate remuneration for work done out of court is greatly exacerbated (especially in the case of junior juniors) by the ubiquitous use of warned lists, with their in-built likelihood that counsel who prepares the case will not in fact do the trial (notwithstanding advices on evidence, conferences, legal arguments, defence statements, etc.). This has already begun to erode that quality of representation, with individuals understandably finding it impossible to justify the preparation time previously allocated to such cases, and to “go the extra mile”, as was previously routine.
The fees report due in 2020 will be redundant by the time it is published. There will either have been the dramatic change in funding that is needed by then or many of us will already have left the profession. We are haemorrhaging talent. The idea that we don’t yet have a clear enough picture of the effect that AGFS 11 is having, and will continue to have, is laughable. Whether the government likes it or not, the experiences of individual barristers are telling, and taken together they start to add up to irrefutable evidence.
Junior juniors are voting with their feet. They are either ceasing to conduct Legal Aid work (whether by moving into other areas of practice or going on long-term secondment) or they are leaving the self-employed Bar altogether.
We expect the MoJ to continue to listen and engage with the profession now, not in 2020. What we want is a coherent and sustainable system of remuneration for work done. This can and must be achieved without delay, through further negotiation. Plainly, we can only speak on behalf of those who have signed this letter, but for our part, we are in favour of direct action in the New Year, if needed to bring the MoJ back to the table. We acknowledge this will require careful planning and some creativity, with every effort made to protect those who would be financially unable to participate in, for example, a return to ‘no returns’. We envisage discussions to that end early in the New Year and are cognisant of the need to prompt a meaningful response from government before March (n.b. Brexit).
At the juniors’ meeting on 24th November 2018 the mood was plainly, and strongly, in favour of further industrial action. It may be that the “additional” funding for AGFS11 has placated all of those individuals, and those whose views they conveyed to the meeting. All we ask is that the CBA does not simply assume that this is the case. Certainly, in respect of those who have signed this letter, it is not.
21 December 2018
Sent on behalf of:
Just a few thoughts about this story on the proposed “£23m increase” in legal aid criminal defence fees, which has been making some headlines. The Ministry of Justice has loudly publicised the agreement struck with the Criminal Bar Association over legal aid rates paid to criminal defence advocates – the story was even towards the top of the Radio 4 news bulletins – so some context may help anyone not fluent in the vacillating politics of the criminal Bar (i.e. normal people).
As an opening disclaimer, nothing that follows is intended as a dig at or slight towards those who have worked exceptionally hard on behalf of the criminal Bar to negotiate with an historically untrustworthy and dishonest Ministry of Justice. They have done their best, and have secured gains. However.
The MoJ’s press release headline is “The government will spend an additional £23 million on fees for criminal defence advocates”. This sounds like a big figure, and the MoJ want the public to think it’s a big figure, legal aid fat cats and all that. So let’s put it in context.
The Advocates Graduated Fee Scheme, which pays defence advocates in legal aid cases, has been cut relentlessly over recent years. As has the overall criminal legal aid budget. As has the overall legal aid budget. As has the overall MoJ budget. Approx 40% across the board.
Criminal legal aid has been cut in real terms by £340m since 2011/12. That has been achieved partially by cutting fees paid to advocates (AGFS), part by cutting fees paid to litigators (solicitors) (LGFS), part by restricting availability of legal aid to those accused of crimes.
To cut a long story of cuts very short, the latest wheeze by the MoJ was to introduce a new scheme of AGFS earlier this year. Its effect was to cut the fees in some complex cases by up to 80% (see this open letter). The Bar took action in April and refused to accept new defence cases under this scheme. This is because already poorly-paid work, particularly for the most junior practitioners, was simply unviable. We’re talking £3-an-hour unviable in some cases. The MoJ insisted the new scheme was “cost neutral”, just moving money around. This was untrue. It was a cut of £9m.
The MoJ persuaded the criminal Bar by a Brexit-like margin (51.5% to 48.5%) to vote to go back to work on the promise of £15m extra being injected into the scheme by October 2018. The MoJ did not keep its promise. Firstly, the agreement had been that this £15m would be added to the AGFS spend for 2016/17. When it published its proposals, the MoJ disingenuously added the £15m to the figures for 2017/18, which were significantly lower (due to falling caseloads), and this had the effect of only increasing the 2016/17 spend by £8.6m. Secondly, it was not done in time for October as promised. So in November we’re still working on the new (terrible) rates.
There have since been further negotiations between the Bar and the MoJ, in an effort to undo at least some of the damage. The upshot is this “additional £23m”, which in fact simply represents the £15m which we were originally promised. (£23m is the figure you get if you use the 2017/18 figures.) And it’s worth noting that all these figures include VAT at 20%, which we are required to charge and pay to the taxman. So a good sixth of that figure is going straight back to the Treasury.
But in any case, what do these abstract figures mean? Not much. For a start, it’s based on modelling. So the increase only amounts to this figure if the workload in the courts remains broadly the same. It won’t, because fewer cases are being charged and brought to court, to save money. Without seeing the figures in the boxes (the details have not yet been published), it is impossible to properly assess how far this extra money will go, but to give context, the total spend on AGFS in 2016/17 was around £227m. So an added £15m is very small beer. It will probably help smooth some of the roughest edges in the scheme, but doesn’t touch the sides of the cuts over the past decade. Legal aid rates remain artificially low.
Junior criminal barristers will still be covering all-day hearings for senior colleagues and taking home less than £40 for the privilege. We will still have trials that we’ve spent days preparing randomly refixed by the court for dates we can’t do, and will be paid £0. We will still be paid not a penny to read through thousands of pages of disclosure – the vital material that could hold the key to saving an innocent person from years in prison. Our median take-home pay will still be a modest £27k. The most junior will still take home under £8k.
HOWEVER, here’s the point. It’s not actually about us. We choose this career and go into it with our eyes open. There’s a far bigger picture, which we must not lose sight of.
Much as what we get paid matters to us (and to society – you ain’t gonna have much of a lawyer prosecuting your burglar or defending you against a false allegation if they’re billing £5 an hour), it’s a tiny piece of that picture. The whole justice system needs investment.
The justice budget has been cut by 31% – by £2.9 BILLION – since 2010, with a further 9% cut (£800million) to take effect by 2020. The effects are those I, any many others, highlight every day. They are why I wrote the book. The justice system is broken.
The police have no resources to catch criminals. The CPS don’t have resources to prosecute, or to comply with disclosure to protect the innocent. The courts that haven’t been closed are crumbling, leaking wrecks. Victims, witnesses and defendants face chronic delays and errors.
Some defendants are excluded entirely from legal aid, forced to self-represent or pay privately. If acquitted, the government will not pay back their legal fees in full, leaving them destitute.
Prisons are too horrific to put into words, although I try here:
Prisons are too horrific to put into words. pic.twitter.com/G61JzHWkXv
— The Secret Barrister (@BarristerSecret) November 24, 2018
So while the MoJ may congratulate itself, make no mistake – this is not a solution. Not even close. £15m for legal aid when you’ve sacrificed £4bn, demolished the court & prison estate and excluded the most vulnerable from accessing justice, is not the end. It’s barely the start.
Below is an open letter published by five junior criminal practitioners in relation to the new Advocates Graduated Fee Scheme (AGFS), which for non-lawyers is the scheme for payment of defence advocates in legally aided criminal cases.
We write in relation to a case which has just collapsed at the Crown Court sitting at Inner London. We write to express our dismay at the remuneration under the new AGFS scheme and the consequences which will now follow.
This was a five handed Conspiracy to Kidnap and Blackmail case and was listed with a four week estimate, due to commence today (19thNovember 2018). All counsel/advocates were instructed at the outset of this case.
The evidence was voluminous to say the least, with near enough 10,000 pages of used and served evidence and all counsel taking approximately 2 weeks out of court on various days to prepare the case for trial. Much of the evidence consisted of telephone transcripts and translated Spanish telephone evidence along with cell site mapping.
Only last week, the Crown disclosed information relating to the complainants character and that he was now refusing to come to court to give evidence. Indeed, he lost contact with the police officers in the case and switched his mobile phone off. This resulted in the crown applying to adduce his evidence under the hearsay provisions.
All defence counsel prepared skeleton arguments outlining their objections to the Crown’s application. These took several hours to research and prepare. There is no (and it should be highlighted, never has been), provision for payment for written work under the graduated fee regulations; a fact which in itself is utterly unacceptable.
But even more disgraceful are the rates of pay for such a serious case with thousands of pages of evidence and the fact that this trial has now ‘cracked’. With no provision for payment of Pages of Prosecution Evidence served (PPE), the brief fee is now only £1,105 (being a category 13.1 offence). Had the trial been contested, the brief fee would not have been much better (amounting to only £1,300). Both of these derisory figures amount to a reduction in advocates fees of approximately 80% as compared to the AGFS scheme which existed pre April 2018. Moreover, the above cracked trial fee is the total payment for all preparation in this case, is of course gross and so chambers rent, clerks fees and tax will need to be paid from this amount. To add insult to injury, the four week gap in our diaries now looms large.
It is, quite frankly, an absolute scandal that these new AGFS fees were ever agreed and that criminal barristers are now being expected to work for such derisory rates. Each and every one of us defending in this case is making it clear to you that we will no longer undertake cases which are PPE heavy.
Enough is enough!
Mustapha Hakme (9 Bedford Row)
Zarif Khan (Drystone Chambers)
Archangelo Power (2 Bedford Row)