Tag Archives: Law

Ignorant, dishonest or both? Boris Johnson’s ramblings about prisoners and spa breaks are divorced from reality.

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As today’s resignation announcement by the Prime Minister prefigures, in bookmakers’ eyes at least, the dawn of a Boris Johnson premiership, I thought it worth typing up a thread I posted earlier this week in response to Mr Johnson’s latest column for the Daily Telegraph.

On Monday, the former Foreign Secretary proudly promoted his article on Twitter:

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Taking a swipe at “our cock-eyed crook-coddling criminal justice system”, Mr Johnson alighted upon a story, reported by outlets including the Telegraph, concerning a convicted drug dealer called Luke Jewitt. Mr Jewitt was sentenced to imprisonment in 2014 for his involvement in a multi-million-pound conspiracy to import or supply cocaine, only to be released to enjoy a “luxury spa break” with his mother before his sentence had been served. According to the Telegraph,

“He is believed to have spent the day at the Santai Spa in Birmingham for Mother’s Day, at the end of March.

The spa boasts an outdoor jacuzzi with lake views, salt cave and mosaic hot-stone loungers. Packages at the luxury venue cost up to £140 per day.”

There is no suggestion that this was paid for by anyone other than Mr Jewitt; rather outrage is invited at the notion of a prisoner being released early, which, the writer assures us, “is becoming more and more regular”. As the headline has it, “Letting drug dealers out of prison to go on spa breaks is criminally stupid”. Unfortunately, in making this argument Mr Johnson’s characteristic fidelity to facts and detail abandons him.

Let’s see if we can reacquaint them.

Luke Jewitt was sentenced in 2014. The precise sentence he received is unclear. If you believe The Telegraph (left), it was 10 years’ imprisonment. If you believe Boris Johnson writing in The Telegraph (right), it was nine years.

 

 

 

 

 

 

But either way, at something approaching the halfway point of his sentence, he was released on temporary licence (or “let out on day release”, in the tabloid argot), during which time he attended the aforementioned spa. Mr Johnson’s apoplexy is untrammelled:

Not merely a jacuzzi, dear readers, but a visit to the National Sea Life Centre. Is nothing sacred?

From this starting point, Mr Johnson lines up a medley of propositions. Some highlights are below.

In summary:

  • Drug dealing causes untold misery (undoubtedly true);
  • Prisons are at once too ghastly and too cushy (the record rates of violence, death, suicide and self-harm cast a degree of doubt on the latter);
  • We need to be “tough” on those who carry knives (standard political fare, with the standard blank space when it comes to offering a practical working definition of what being “tough” should entail).

We are then offered the writer’s considered views on the thorny issue of stop and search. Fortunately, contrary to research suggesting that stop and search is deployed in a racially discriminatory manner, Mr Johnson reassures us that it, in fact, isn’t. He is not able to offer any evidence for this claim, but his word is surely his bond.

As for his primary concern, the early release of offenders, Mr Johnson has identified the culprits: it is the “politically correct” Parole Board, responsible for endangering public safety by licensing rapists to reoffend and drug kingpins to purify and replenish with naturally detoxifying algae leaving the skin looking refined, toned and beautifully radiant. The release of Luke Jewitt, Johnson posits in a puddle of consciousness, is an example of the “need to root out the Leftist culture of so much of the criminal justice establishment.”

There are a few problems with this thesis. Firstly, the case “earlier this month” to which Mr Johnson refers involving “the convicted rapist out on early release”, who “allegedly commit several more rapes immediately”. Assuming that this is the case which has made headlines (and about which we must be cautious due to criminal proceedings now being live), the man involved was not a convicted rapist, but a burglar. And this was not a case in which the Parole Board had directed his release; rather it was reported that due to an administrative error, he was released by the prison having erroneously bypassed the Parole Board. To lay this at the Parole Board’s door is, to quote Mary Whitehouse (probably), pretty fucking dishonest.

But beyond this mangled non-example, the foundation of Johnson’s argument betrays a woeful ignorance of the entire subject matter. He seems to be under the impression that a prisoner’s release is always governed by the Parole Board. It’s not. For the vast majority of prisoners serving a standard determinate sentence, release on licence is automatic once you’ve served half of your prison sentence. I’ve blogged before on this, as it’s frequently misunderstood.

Parole Boards tend to focus their attentions on dangerous prisoners, including those sentenced to life imprisonment or to other types of sentence for which release is not automatic, such as now-abolished imprisonment for public protection (IPP), or “extended sentences” imposed on a dangerous offenders. In order to be released from such sentences, a prisoner has to persuade the Parole Board that his incarceration is longer necessary for the protection of the public. Now Parole Boards are far from perfect; the case last year of John Worboys gave a troubling insight into the errors that plagued the Parole Board’s decision to direct his release, and it would be naive to conclude that this is an isolated case. No doubt errors occur, and quite possibly more frequently than we perhaps wish to imagine. However, Johnson’s claim that “It is becoming more and more regular for prisoners to be let out early – even when they have been convicted of the most serious and violent crimes” is accompanied by absolutely no evidence whatsoever. Indeed, if we were trading in boring facts, we might observe that England & Wales has more prisoners serving indeterminate and life sentences than any other country in Europe, suggesting that neither courts nor Parole Boards are overly eager on the frivolous release of dangerous prisoners. But the assertion that there is a recent acceleration in the release of dangerous offenders is simply that. There is not even a whiff of evidence tendered in support.

But back to drug lords, and other prisoners whose release is not dependent on the approval of the Parole Board. They are all entitled to automatic release at the halfway point of their sentence, and as they approach that point can be entitled to release on temporary licence (ROTL), subject to a risk assessment. Full details are available here, but a summary of the types of ROTL is below.

It is this scheme which Johnson describes as “criminally stupid”. Letting prisoners out for the odd day here and there – what possible good can it do? Well, quite a lot, the evidence suggests. A recent government report – a government of which Mr Johnson was, until toys exeunted the pram, a member – concluded that the analysis was is “consistent with the conclusion that ROTL reduces reoffending”. So even if the notion of somebody serving a few days’ less on their sentence fills you with righteous indignation, the evidence that it makes us all a little safer is a fairly important fact to omit from an honest discussion.

That all said, 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). Now there are 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, they can be recalled to serve the remainder of their sentence.

But let’s park that debate to one side. Instead, let’s ask why we have automatic halfway release at all? Which MPs were in Parliament when such a thing was introduced?

Well, automatic release at the halfway stage of all determinate sentences has been a fixture since the enactment of section 244 of the Criminal Justice Act 2003. Present in Parliament as an MP when this legislation passed was one Boris Johnson. Can you guess how many impassioned speeches he gave in the Commons against the “criminally stupid” idea of automatically releasing prisoners early? In fact, how many times has he ever spoken in Parliament about early release, or the Parole Board, or release on temporary licence?

From wherever springs this yearning to draw public attention to the horrors of early release on licence, it has lain dormant for a good sixteen years. Heaven forfend that this newly-discovered zeal for making the lives of prisoners more miserable and antagonistic baiting of “politically correct” and “left wing” criminal justice is merely the latest exploit of a populist charlatan tossing bucketfulls of cheap fatty red meat to the Party Faithful just as a certain job opening emerges.

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

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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:

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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.

The assault on Jack Grealish – is 14 weeks’ imprisonment the right sentence?

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I fired off a quick thread last night offering my rough take on yesterday’s conviction and sentence of Paul Mitchell, the Birmingham City supporter who ran onto the pitch during Sunday’s match between Birmingham and Aston Villa and assaulted Villa footballer Jack Grealish. Below are my provisional thoughts.

What were the charges?

Paul Mitchell was charged with battery, contrary to s39 Criminal Justice Act 1988. He was also charged with an offence of encroaching onto a football pitch (presumably s4 Football Offences Act 1991). He pleaded guilty to both offences at his first appearance today before Birmingham Magistrates’ Court, the offences having been committed yesterday. A good live account of today’s court proceedings can be found here.

Why was the case dealt with so quickly?

Many people have remarked on how quickly this case was processed – barely 24 hours between offence and sentence. But this is not unusual where a defendant is arrested, charged with a summary offence (one that can only be tried at the magistrates’ court) and refused police bail. The police have the power to charge this type of battery without needing the Crown Prosecution Service to authorise the charge (see the Director’s Guidance on Charging), so the process is quicker. A defendant charged and kept in police custody will be produced at the magistrates’ court the next day. If a defendant pleads guilty, the court will usually require a Pre-Sentence Report to be prepared by the Probation Service, to make recommendations as to how best deal with the offender. It’s now common for this to be done the same day. Given that the offence was captured from multiple angles by high-definition television cameras, there was little choice but to plead guilty.

What about the sentence? How did the court arrive at 14 weeks? 

Mr Mitchell received 14 weeks’ imprisonment, as well as a 10-year football banning order. He was ordered to pay £100 in compensation to Mr Grealish, £135 in prosecution costs and a mandatory £150 Victim Surcharge.

When assessing sentence, the magistrates are required to follow the Sentencing Guideline for Assault. Here it is:

The maximum sentence for battery is 6 months’ imprisonment. (If injury had been caused, it would likely be charged as causing actual bodily harm, which carries a maximum sentence of 5 years). The maximum sentence for going onto the playing area is a fine.

A defendant who pleads guilty at the earliest opportunity – i.e. at his first appearance – is entitled to one third off his sentence. That applies to all defendants, even where, as in this case, the evidence is overwhelming.

This means that the maximum sentence the magistrates could have passed was 17 weeks.

14 weeks is therefore almost as high as they could go.

Looking at the Guidelines, in order to reach this sentence, the magistrates must have put this case in Category 1. This requires a finding of “Greater Harm” and “Higher Culpability”. On its face, it’s not easy to see how they did this (and without full sentencing remarks, we are somewhat in the dark).

There was no injury, and it was a single blow (rather than a sustained or repeated attack), so the only possible feature of Greater Harm was the particular vulnerability of the victim. It might be argued that as a man going about his job surrounded by tens of thousands of excitable spectators and relatively limited security, Mr Grealish qualifies as particularly vulnerable, although it’s a bit of a stretch.

Similarly, the features of “Higher Culpability” don’t immediately recommend themselves. Arguably there was an intention to cause greater harm than was in fact caused, but a single blow without a weapon makes this a tricky argument. Significant premeditation? Doesn’t look like it, unless Mitchell had told others in advance of his plans. Again, we may be left trying to characterise Mr Grealish as vulnerable to get this box ticked.

As for the other aggravating and mitigating features, there hasn’t been a lot of detail provided. The location and timing of the offence are aggravating features (the victim’s place of work in front of a national audience). We don’t know what the Pre-Sentence Report said about Mr Mitchell’s personal circumstances. We know that he had previous convictions for non-violent offences, but it’s not clear what they were and how relevant they were (whether, for example, they related to football). We know that his solicitor expressed remorse on his behalf, and that Mr Mitchell was a father of one with a second child on the way. How these were all balanced is unclear without knowing the magistrates’ full reasons.

I’m loath to draw any firm conclusions without knowing the magistrates’ reasoning, but on its face, it looks as if there would have had to be a fair bit of creative interpretation to get Mr Mitchell into Category 1 and towards the top end.

There is an alternative explanation. The magistrates made clear the need for deterrent sentencing for this kind of offence, and it may be that they held that, even though the offence would ordinarily fall within Category 2 or 3, the circumstances were such that it was in the interests of justice to move outside the category range on the Guideline and into Category 1. This, I’d guess, would be how they would justify the sentence.

The potential for widespread public disorder, as others have pointed out, may well have been a factor which the court treated as seriously aggravating. Context is everything. Those saying “he wouldn’t have got this for a punch in the street” miss the point. This wasn’t the street. It was a deliberate assault involving trespass onto a playing area, calculated to hurt and humiliate a man lawfully going about his job in front of a stadium of thousands and a television audience of millions. I have little doubt that Mr Mitchell has been treated particularly severely because this was a high profile assault; but he deliberately chose to make it high profile. He selected the location and the occasion. Those are aggravating features.

As ever, this whole exercise involves a fair bit of guesswork, because our justice system still struggles to do basic things such as providing a copy of the sentencing remarks in cases of enormous public interest. But that’s my rough take. A stiff sentence, but probably justifiable.

 

How does this compare to other cases of football spectator violence?

It is difficult and somewhat artificial to compare sentences, but one I’ll mention (because I’ve commented on it before) is the racially aggravated assault on Raheem Sterling. While  taking place outside the training ground rather than on the football pitch, this offence involved a much more serious assault, with repeated kicking (characterised by the Guidelines as using a weapon) which caused bruising, and the use of racist language. The offender was sentenced to 16 weeks’ imprisonment (the maximum sentence for racially aggravated battery is 2 years). I wrote at the time that I thought this sentence, based on the reported facts, was lenient, and this case arguably casts it into even starker relief.

Guest post by Joanna Hardy: Court closures and the cost of losing local justice

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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. 

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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.

Without legal aid, the rule of law collapses

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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.

Home Alone 2: Lost In The Live Tweet

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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.

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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:

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And some of their greatest below-the-line comments:

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Then the the Evening Standard got wind.

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The Metro wasn’t far behind.

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Yahoo Celebrity News got in on the act.

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The Sun managed to misunderstand the point entirely:

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The story hit Ireland:

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We trended in New Zealand:

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Somehow Bangladesh found it worth reporting:

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and even Putin’s propaganda sheet Sputnik News were running the “story”.

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Perhaps most barking of all, when Home Alone 2 was screened on Channel 4 on Christmas Day, the continuity announcer referenced the live tweet.

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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.

GUEST POST: An open letter to the Chair of the Criminal Bar Association

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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.

 

Dear Chris,

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:

1. The current AGFS scheme is not fit for purpose;
2. Dramatic changes need to be made to the structure of how AGFS is paid;
3. There needs to be a significant increase in funding across the board (both defence and CPS funding);
4. A delay of 18 months until renegotiation is unacceptable.

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:

1. Natalie Bird, 2 Bedford Row [2015]
2. Sam Shurey, 2 Bedford Row [2015]
3. Emilie Morrison, 2 Harcourt Buildings [2013]
4. Imogen Nelson, 2 Harcourt Buildings [2014]
5. Sam Barker, 2 Harcourt Buildings [2014]
6. Amy Oliver, 2 Harcourt Buildings [2016]
7. Will Martin, 2 Hare Court [2010]
8. Charlotte Watts, 2 Hare Court [2012]
9. Joshua Scouller, 2 King’s Bench Walk [2012]
10. Matilda Robinson-Murphy, 2 Kings Bench Walk[2015]
11. Patrick D.Harte, 3 Temple Gardens [2006]
12. Charles Durrant, 3 Temple Gardens [2006]
13. Jodie-Jane Hitchcock, 3 Temple Gardens [2006]
14. Kate Chidgey, 3 Temple Gardens [2006]
15. Nick Whitehorn, 3 Temple Gardens [2006]
16. Andrew Horsell, 3 Temple Gardens [2009]
17. Carina Clare, 3 Temple Gardens [2012]
18. Will Glover, 3 Temple Gardens [2012]
19. Cameron Scott, 3 Temple Gardens [2012]
20. Nargees Choudhury, 3 Temple Gardens [2013]
21. Ruth Reid, 3 Temple Gardens [2013]
22. Karlia Lykourgou, 3 Temple Gardens [2013]
23. Beverley Da Costa, 3 Temple Gardens [2015]
24. Brad Lawlor, 3 Temple Gardens [2016]
25. Emily Lauchlan, 4 Bream’s Buildings [2012]
26. Ryan Brennan, 4 Bream’s Buildings [2012]
27. Rebecca Bax, 4 Bream’s Buildings [2012]
28. Ylenia Rosso, 4 Bream’s Buildings [2014]
29. Kiran Pourawal, 4 Bream’s Buildings [2014]
30. Syam Soni, 4 Bream’s Buildings [2015]
31. Rebecca Moss, 4 Bream’s Buildings [2016]
32. Christina Josephides, 4 Bream’s Buildings [2016]
33. Michael Cameron-Mowat, 4 Bream’s Buildings[2017]
34. Phoebe Bragg, 5 King’s Bench Walk [2015]
35. Kate Parker, 5 Paper Buildings [2014]
36. John Oliver, 5 St Andrew’s Hill [2008]
37. Dave Williams, 5 St Andrew’s Hill [2009]
38. Karl Masi, 5 St Andrew’s Hill [2011]
39. Alexandra Davey, 5 St Andrew’s Hill [2013]
40. Nick Jones, 5 St Andrew’s Hill [2016]
41. Puneet Grewal, 9 Bedford Row [2010]
42. Charlotte Mitchell-Dunn, 9 Bedford Row [2012]
43. Alex Matthews, 9 Bedford Row [2012]
44. Dréa Becker, 9 Bedford Row [2012]
45. Katie Mustard, 9 Bedford Row [2014]
46. Richard Reynolds, 9 Bedford Row [2014]
47. Leena Lakhani, 9 Bedford Row [2015]
48. Stefan Hyman, 9 Bedford Row [2015]
49. Aqeel Noorali, 9 Gough Square [2017]
50. Helen Dawson, 15 New Bridge Street [2015]
51. Oliver Kavanagh, 15 New Bridge Street [2015]
52. Ellen Wright, 15 New Bridge Street [2017]
53. Tom Lord, 15 Winckley Square [2009]
54. Kimberley Obrusik, 15 Winckley Square [2010]
55. Lucy Wright, 15 Winckley Square [2011]
56. Colette Renton, 15 Winckley Square [2015]
57. Sarah Magill, 15 Winckley Square [2016]
58. Holly Nelson, 15 Winckley Square [2017]
59. Patrick Duffy, 23 Essex Street [2007]
60. Nathan Rasiah, 23 Essex Street [2007]
61. Daniel Lister, 23 Essex Street [2009]
62. Carolina Cabral, 23 Essex Street [2009]
63. Jeremy Rosenberg, 23 Essex Street [2009]
64. Elisabeth Acker, 23 Essex Street [2010]
65. Helena Duong, 23 Essex Street [2010]
66. Victoria Gainza, 23 Essex Street [2010]
67. Rupert Wheeler, 23 Essex Street [2010]
68. Sarah-Kate McIntyre, 23 Essex Street [2011]
69. Alex Mills, 23 Essex Street [2012]
70. Sam Trefgarne, 23 Essex Street [2012]
71. Daniel O’Donoghue, 23 Essex Street [2013]
72. David Dainty, 23 Essex Street [2013]
73. Sasha Queffurus, 23 Essex Street [2014]
74. Robert Smith, 23 Essex Street [2014]
75. Tom White, 23 Essex Street [2015]
76. Kelly Cyples, 23 Essex Street [2016]
77. Josephine Teale, 23 Essex Street [2016]
78. Amelia Clegg, 23 Essex Street [2017]
79. Sushil Kumar, 25 Bedford Row [2009]
80. Henry Dickson, 25 Bedford Row [2012]
81. Laura Collier, 25 Bedford Row [2013]
82. Natasha Lloyd-Owen, 25 Bedford Row [2013]
83. Tom Flavin, 25 Bedford Row [2013]
84. Joy Lewis, 25 Bedford Row [2014]
85. Vida Simpeh, 25 Bedford Row [2014]
86. Nick Murphy, 25 Bedford Row [2015]
87. Suzanne Payne, 30 Park Place [2014]
88. Andrew Kerr, 33 Bedford Row [2006]
89. Dudley Beal, 33 Bedford Row [2014]
90. Stephen Reynolds, 33 Bedford Row [2014]
91. Roxanne Aisthorpe, 36 Bedford Row [2011]
92. Catherine Rose, The 36 Group [2017]
93. Dharmendra Toor, The 36 Group [2010]
94. Nadeem Holland, The 36 Group [2006]
95. Gerwyn Wise, 187 Fleet Street [2010]
96. Edward Duncan Smith, 187 Fleet Street [2011]
97. Daisy Monahan, 187 Fleet Street [2012]
98. Liam Edwards, 187 Fleet Street [2014]
99. Vakas Hussain, 187 Fleet Street [2014]
100. Gavin Capper, 187 Fleet Street [2015]
101. Tom Worden, 187 Fleet Street [2017]
102. Robert Levack, 187 Fleet Street [2017]
103. Sebastian Cox, 187 Fleet Street [2017]
104. Ann Crighton, Ann Crighton Chambers [2015]
105. Becky Owen, Becky Owen Law [2007]
106. Libby Anderson, Charter Chambers [2016]
107. Simon Elliott, Church Court Chambers [2007]
108. Alison Pryor, Church Court Chambers [2008]
109. Richard Mohabir, Church Court Chambers [2009]
110. Colin Witcher, Church Court Chambers [2010]
111. Tomas McGarvey, Church Court Chambers [2010]
112. Chiara Maddocks, Church Court Chambers [2011]
113. Fiona McAddy, Church Court Chambers [2011]
114. Anthony Eskander, Church Court Chambers [2012]
115. Estelle Thornber, Church Court Chambers [2012]
116. Michael Polak, Church Court Chambers [2012]
117. Gregory Wedge, Church Court Chambers [2014]
118. Holly Kilbey, Cornwall Street Barristers [2010]
119. Jeanette Stevenson, Cornwall Street Barristers [2012]
120. Andrew Parker, Cornwall Street Barristers [2016]
121. Georgia Luscombe, Drystone Chambers [2017]
122. Peter Killen, Exchange Chambers [2015]
123. Maya Chopra, Farringdon Chambers [2014]
124. Tom Hoskins, Foundry Chambers [2007]
125. Jonathan Underhill, Foundry Chambers [2008]
126. Merry van Woodenberg, Foundry Chambers [2012]
127. Jessica Tate, Foundry Chambers [2012]
128. Christopher Harper, Foundry Chambers [2013]
129. Sophie Murray, Foundry Chambers [2013]
130. Sophie Stannard, Foundry Chambers [2015]
131. Bethany Condron, Foundry Chambers [2016]
132. Yusuf Solley, Furnival Chambers [2009]
133. Sophie O’Sullivan, Furnival Chambers [2011]
134. Selena Jones, Furnival Chamers [2011]
135. Sam Stockwell, Furnival Chambers [2012]
136. Mandisa Knights, Furnival Chambers [2013]
137. Tulay Hodge, Furnival Chambers [2014]
138. Sadaf Etemadi, Furnival Chambers [2014]
139. Shannon Revel, Furnival Chambers [2014]
140. Chris Waymont, Furnival Chambers [2014]
141. Hannah Burton, Furnival Chambers [2014]
142. Andrew Taylor, Furnival Chambers [2015]
143. Charlotte Bellamy, Furnival Chambers [2017]
144. Shahida Begum, Garden Court Chambers [2008]
145. Meredoc McMinn, Garden Court Chambers [2015]
146. Elizabeth Garcia, Garden Court Chambers [2016]
147. Charlotte Bull, Goldsmith Chambers [2016]
148. Hannah Whelan, KCH Garden Square [2010]
149. Priya Bakshi, KCH Garden Square [2012]
150. Elisabeth Evans, KCH Garden Square [2012]
151. Samuel Coe, KCH Garden Square [2012]
152. Daniel Harman, Kenworthy’s Chambers [2008]
153. Simon Blakebrough, Kenworthy’s Chambers [2011]
154. Robert Lassey, Kenworthy’s Chambers [2016]
155. Sarah Cook, Kenworthy’s Chambers [2016]
156. Michael Shilliday, Lamb Building [2012]
157. Hannah Hurley, Lamb Building [2012]
158. James Hay, Lamb Building [2012]
159. Simon Gurney, Lincoln House Chambers [2006]
160. Lee Hughes, Lincoln House Chambers [2012]
161. Isobel Thomas, Lincoln House Chambers [2012]
162. Marianne Alton, Lincoln House Chambers [2014]
163. Matthew Bolt, Maidstone Chambers [2012]
164. Kate Smith, Maidstone Chambers [2013]
165. Anita Davies, Matrix Chambers [2011]
166. Margaret Morrissey, Morrissey’s Chambers [2015]
167. Katrina Wilson, No.1 High Pavement Chambers[2007]
168. Lucky Thandi, No.1 High Pavement Chambers[2011]
169. Abigail Hill, No.1 High Pavement Chambers[2013]
170. Almas Ben-Aribia, No.1 High Pavement Chambers[2013]
171. Rebecca Coleman, No.1 High Pavement Chambers[2013]
172. Lucy Jones, No.1 High Pavement Chambers [2014]
173. Helen Marley, No.1 High Pavement Chambers[2016]
174. Ramya Nagesh, No.5 [2008]
175. Philip Vollans, No.5 [2015]
176. Thomas Coke-Smith, QEB Hollis Whiteman [2011]
177. Arabella MacDonald, QEB Hollis Whiteman [2012]
178. Eloise Emanuel, QEB Hollis Whiteman [2012]
179. Kathryn Hughes, QEB Hollis Whiteman [2013]
180. Ruth Broadbent, QEB Hollis Whiteman [2016]
181. Kyan Pucks, QEB Hollis Whiteman [2016]
182. Lauren Sales, Red Lion Chambers [2010]
183. Timothy Kiely, Red Lion Chambers [2014]
184. Marcus Harry, St Ives Chambers [2008]
185. Justin Jarmola, St Ives Chambers [2009]
186. Anthony Cartin, St Ives Chambers [2010]
187. William Douglas-Jones, St Ives Chambers [2011]
188. Lucinda Wilmott-Lascelles, St Ives Chambers[2014]
189. Aadhithya Anbahan, St Ives Chambers [2015]
190. Alexander Pritchard-Jones, St Ives Chambers [2015]
191. Gemma Maxwell, St John’s Buildings [2014]
192. Stephanie Wookey, Thomas More Chambers [2010]
193. Genevieve Moss, Thomas More Chambers [2015]

A few thoughts on the “£23m extra” for legal aid

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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:

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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.

Guest post by Mukul Chawla QC: Reflections from my years at the independent Bar

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I am delighted and honoured to publish this guest post by Mukul Chawla QC. Many readers will know that, after 35 years at the independent Bar blazing trails that leave us mortal practitioners feeling very humbled indeed, Mukul is stepping down as Head of Chambers at Foundry Chambers (formerly 9-12 Bell Yard) for a new beginning in employed practice. Here, he offers some reflections on his time at the independent Bar and on the fate of the criminal justice system.

 

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What follows is a self-indulgent and personal reflection of my years at the independent Bar and my thoughts (which echo those more eloquently set out by others not least the owner of this blog page) of the present and future state of the Criminal Justice system. If that introduction is not enough to put you off, may I thank you in advance for taking the time to read this.

Three weeks ago, I concluded my final speech in a murder at the Central Criminal Court and was allowed to tell the jury at the end of it that, because of a longstanding previous engagement, I would not be able to return to the case.

The longstanding previous engagement was my leaving the independent Bar to join a firm of International lawyers in the City of London as a partner in its White Collar Crime team.  I have now been working in that role for three weeks and it has given me an opportunity to reflect on what I have left behind. At a time when my good friend Max Hill QC is about to take up the reins as Director of Public Prosecutions, I thought it was an appropriate moment to put down some of my thoughts on what the past thirty five years have meant to me and my fears for the future of the Criminal Justice system.

I was called to the Bar by Grays Inn in July 1983, a moderately fresh faced 22 year old who had played too much rugby and done too little academic work to achieve anything approaching decent grades. Like many of my contemporaries my academic achievements would not even get me an interview at any moderate set of Chambers today. In those days my university and Bar School tuition fees were paid for in full by the local authority. I did not have to pay for the privilege of undertaking pupillage but neither was there any pupillage award. Its equivalent, so far as my pupil master was concerned, was his complete insistence that while I worked with him, I did not pay for lunch or the near daily outings to wine bars around Fleet Street. My pupillage consisted of following my pupil master around various Crown Courts in London with occasional trips to the High Court and working on a variety of criminal and civil papers for him when we were not in court.

As it turned out I was incredibly lucky. When I got to my feet, I was invariably in court every day and often conducting several hearings each day. Most of my first five months on my feet were spent in the Magistrates Court but there were also plenty of appearances in County Courts and in Employment Tribunals.

Three weeks before my tenancy application was due to be considered, my clerks managed to miss a fixture for a senior tenant at Inner London Crown Court – a multi-handed heroin supply case. When I returned to chambers at 11am from a quick hearing at Bow Street Magistrates Court, my senior clerk handed me the papers tied with pink tape, gave me my taxi fare (you can tell how guilty he felt!) and sent me on my way to Inner London. The Judge was, I understand, incandescent before I arrived but took pity on me when I stammered my apologies for my late arrival. However, he was not sufficiently sympathetic to agree to adjourn the case to the following day so that the counsel who had been instructed could undertake the trial. He did, however, grudgingly allow me twenty minutes so that I could speak to my client. My client’s first words to me in the corridor outside court and in the hearing of my prosecutor and a number of my co-defending counsel were “I don’t want no fucking Paki defending me.” I gulped and explained that I was all he was going to get.

My first Crown Court trial had not started in the auspicious way that I had dreamt of. Our relationship never really improved. The next two weeks were spent in a haze of panic, sleeplessness and endless writing and crossing out questions to ask and points to make. I had one point in my favour. The police officer who interviewed my client had neglected to write down that he had cautioned him in accordance with the Judges Rules (this was pre PACE). The more he insisted that he had cautioned my client the sillier he looked. Wise words from one of my co-defending counsel prevailed upon me in that, while I had wanted to make this cross examination last hours so that I would be seen as the new Rumpole of the Bailey (or, at least of Inner London), I only needed to ask half a dozen questions before resuming my seat. In the event, after two weeks my client was acquitted (I still suspect that the Jury felt sorry for him because of his representation) and because the Judge had heard of my difficulties with my client, he insisted on telling my client how fortunate he was in being represented by me.  Two senior members of my chambers were in court waiting to be called on and heard the Judge’s comments. My client didn’t wait to say thank you.

A week later, the Chambers Tenancy meeting took place and thanks in large part to what was reported by those who had been in court, I was offered a tenancy. I was taken for a drink by a senior member who was to become a good friend, Ian Goldsworthy. His advice (only half in jest): “If I were you, my boy, I would give it up now while you still have a 100% success rate.” Two days later and following a trial for shoplifting, my success rate had plummeted to 50%.

The next few years were incredibly busy. I would often spend weeks in the same court with a jury being sent out in one case and immediately starting the next one. One or two judges, I suspect, became heartily fed up with me. My speediest full trial was at Croydon defending a man charged with handling stolen goods. The jury were sworn at 10.35am and returned their verdict at 11.10am (thankfully one of Not Guilty). I was always accompanied by a solicitor’s representative. In many ways, the solicitor’s rep was the glue that held trials together, who could smooth difficulties between counsel and the defendant, who would make notes, be a sounding board and support the advice being given. Those who undertook this task were often people with very substantial experience in attending court with counsel. The vast majority of counsel today have never had that assistance and the system has suffered immeasurably in consequence.

My luck continued. For a long time, from the late 1980’s, I acted for the Police Federation representing Police Officers in discipline hearings and in criminal cases. All of those cases were challenging and some immensely so. But in the process, I represented police officers charged with criminal misconduct, perverting the course of justice, corruption and manslaughter. Some of those represented the highest profile cases of their kind and included the defence of the Guildford 4 and Birmingham 6 police officers and the officers charged with the unlawful killing of Joy Gardner. I represented a retired senior officer in the Macpherson Enquiry following the brutal racist killing of Stephen Lawrence and the grossly inept police investigation that followed. I represented police officers from Regional Crime Squads and the Flying Squad charged with the most serious allegations of corruption.

I was on the Customs List which meant that I split my time prosecuting and defending. I would defend policemen and prosecute suspected drug smugglers and VAT evaders. It was exciting and exhilarating work. It was always rewarding both professionally and financially. Unlike criminal practitioners today, I do not remember worrying about fees or about paying my mortgage or payments to my pension or healthcare or critical illness cover. I was able to save and invest some money. Please do not misunderstand me. I was not wealthy but neither was I struggling to make a decent living.

In 1996, I was asked to become Standing Counsel to the Customs and Excise and having decided to accept that appointment, I resigned from the then nascent monitoring scheme for Treasury Counsel at the Central Criminal Court.

From 1996 to 2001, I was a busy and, I think, successful senior junior undertaking specialised criminal work both defending and prosecuting substantial cases. Those cases were not without moments of substantial humour and embarrassment. On one occasion, I was being led in a trial at Leeds in front of Mr Justice Ognall. My leader was making a submission about which he had not spoken to me and which took me completely by surprise. My usual poker face was clearly absent as Ognall J, (like me, clearly struggling to understand the submission) said at one stage: “Oh Mr X, if only you could see the expression on your junior’s face!”

By now a substantial part of my work was in fraud cases and I would be instructed in cases by and against the Serious Fraud Office.

I took Silk in 2001, two months shy of my 4oth birthday. Again I was lucky. I still defended and prosecuted in the same sort of cases as I had as a Junior but now I was right at the sharp end. And I loved it.

I was one of a number of counsel who were part of a new record for trial length. Between 2003 and 2005 I defended in the longest ever trial in front of a Jury (June 2003 to March 2005) – the Jubilee Line fraud and corruption case. The prosecution had estimated that the trial could take 6 months. Those of us defending thought it could take 12 months. The Judge warned the Jury it could take 18 months. We lost one juror who became pregnant, another who was charged with some allegation of fraud and the trial eventually collapsed when, after 21 months, a further juror simply (and understandably) said he had had enough when the end was nowhere in sight.

I have enjoyed prosecuting and defending in fraud and corruption cases, prosecuting export control cases and defending insider dealing and health and safety cases. More recently I have prosecuted a handful of murder cases. I have had a rich and plentiful diet of appearing in court and advising companies and individuals facing a variety of criminal and regulatory issues.

But my time at the Bar is not defined by the cases that I have undertaken. It is defined by the sense of camaraderie that exists in every case with your co-defending and opposing counsel, the jokes that you make and that are made at your expense and the fact that, however hard you fight in court, you will always enjoy the company of those with whom you have been in fierce dispute when sharing a drink in the pub.

More than anything, my time at the Bar is defined by the friendships I have made. There are simply too many to list here and so I will confine myself to mentioning three people who have been special and inspirational to me and whom I count myself as truly fortunate to be able to describe as close and lasting friends.

Edmund Lawson QC was my mentor and dearest friend at the Bar from my days of pupillage until he died, much too early, at the age of 60 in 2009. He was prodigiously clever and hard working. He had fantastic judgment – almost his first advice to me was: “If you are thinking of doing something but it would make you blush then or if you had to tell someone you respected about it, don’t do it.” But he was much more than those things. Among other things he was modest, fun, generous always great company and someone who made everyone with whom he came into contact feel special. The most difficult speech I have ever had to make was when I delivered the eulogy at his funeral.

I first met Julian Bevan QC when he prosecuted my clients in the Guildford 4 police officers case. He was one of those people who always took his cases seriously but regarded his  own very considerable abilities with much disdain. He was the consummate jury advocate exuding calm and utter restraint. You would never guess that he had, moments before going into court, been a nervous wreck. One of my tasks as his junior was to be able to roll a cigarette for him when his hands were too shaky to put the tobacco in the paper. In one case, I remember vividly how he was able to completely turn a hostile jury by the sheer power of his advocacy, putting difficult propositions into simple words while generating complete trust in what he was saying. He was unbelievably generous to me, constantly recommending me to solicitors for difficult cases. He was and remains a constant source of delight. Now that he is enjoying retirement, I treasure the lunches and dinners when we meet and are able to gossip like adolescent schoolboys.

Ra Healy QC was one of my first pupils in 1992. In many ways, we have grown up at the Bar together albeit that she is rather younger than me. She became my pupil just at the time when my practice was blossoming. I knew I was going to like her when she told me early in her pupillage and with justified confidence that my analysis of some legal issue was completely wrong! In reality she is a proper lawyer and a great advocate. By rights, she should be arguing esoteric points of law in the Chancery Division or the Commercial Court. But she loves being a Jury advocate and she is terrifically good at it. Her sense of irreverence has not deserted her. A few years ago I was leading her in an insider dealing case. When cross-examining an expert on derivates trading, I mis-calculated a percentage difference. When the Judge looked quizzically at me and suggested that my maths was faulty, Ra piped up to say to Judge and Jury “Pah! Just as well he doesn’t style himself as a fancy fraud specialist!”  Over the years she has become a real friend and a confidant. She was the only one at the Bar whom I told when I was thinking of leaving the Bar. With Ra, I know that my leaving Chambers will not change our relationship.

So, the question that I have constantly been asked is: Why leave the independent Bar? The short answer is that I was given the extraordinary opportunity to work in an area in which I am comfortable but with completely new challenges and opportunities. It was, in reality, an opportunity that I could not sensibly refuse.

But it is more than that. Life at the Criminal Bar has become a grind and for many, an intolerable one. The cases that we do are becoming more and more complex. They are uniquely challenging and important for defendants, victims and the public at large. The vast majority of barristers and solicitors doing this work see no future in terms of personal development and financial security to make this a profession that can be enjoyed and sufficiently remunerative to be sustainable.

In the last few years I have seen talented junior members leave the profession to work for the CPS, SFO and FCA as well as joining firms of solicitors. In the main, that is not something that they have wanted to do but something that has been forced upon them.  Those who are doing well (and there are fewer of those than many would think) have seen such extraordinary structural changes in what we do that is done under the most difficult circumstances. Thus and by way of example only, even in high profile murder cases, it is extremely rare to see a solicitor’s representative in court supporting the advocate. It is not just that the fat has been cut from the bone, but huge chunks of flesh have been eviscerated in the drive to achieve economies.

It is positively debilitating as a Head of Chambers when you hear of stories of juniors who cannot afford a train fare to get to court because the CPS or the LAA has failed to make payments long overdue. These are not apocryphal or anecdotal stories. These are things I have seen first-hand.

You may argue that the profession has become too big and that it should be leaner. But I am not here speaking of the dearth of work but the simple fact that the work required to be done, the payments that are made for that work and the way that those payments are made, and often not made, cannot sustain this profession either in its present numbers or in reduced numbers.

However, this is only one part of the problem. The entirety of the Criminal Justice System is in crisis. Successive governments have cut funding to all parts of it, whether in terms of the Legal Aid budget, funds available to prosecutors, police, probation services and prisons. From detection, investigation, trial and all the way through to prison, community penalties and eventual rehabilitation efforts, no government in recent memory has shown any inclination of caring about any of it. And so, at every stage, despite the best efforts of all those involved in every stage of the process, mistakes will occur; short cuts will become common place if that has not already happened.

I have come to the view that unless there is a really substantial injection of funding in all areas of the system, the Criminal Justice system will simply collapse. It will be unrecognisable and will, in reality, be anything but Justice. And by that I do not mean for the direct participants in it but for Society at large. Members of the Bar, Solicitors  and their professional organisations have tried to warn governments of the consequences of under-funding for almost as long as I can remember. Our words have consistently fallen on deaf ears. Even the occasional promises to improve aspects of it have proved illusory. I have no confidence that the position will change.

And so, I am sorry to be leaving the profession but only to an extent. While I am excited by the challenges that I will face in the years to come, I am leaving this profession which has given so much to me with real foreboding. I hope (perhaps in vain) that, in this respect at least, I will be proved wrong.