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Towering Inferno

The current Lord Chancellor likes to see the criminal justice system as a business. Pieces to be sold off to the highest bidder, success being measured in cost saving rather than quality. The boss wants to achieve efficiency and cares nothing for justice.

If it was a business then the reality is that we would torch it and claim the insurance money. It is difficult to think of a single element of the CJS that is currently working at all, let alone working well.

It is a system that is hugely inefficient. It seems the Crown Prosecution Service are incapable of getting a single set of papers out on time. The result? Wasted hearings, poorly prepared hearings and wasted money.

Preliminary hearings in every Crown Court case clog the lists. “Provisional” trial dates are set with no idea as to witness availability. Actually that’s not true. The dates are set with no idea as to who the witnesses are, what they say or even if there are any witnesses. You may as well book me in for an appendectomy in six months time, just in case my appendix ruptures.

The result? Wasted hearings, poorly prepared hearings and wasted money. Oh, and huge delay. Every day a Circuit Judge deals with orders that the Magistrates could have dealt with in a dozen or so cases. Meanwhile that Judge cannot hear a trial. Elsewhere in the list another a Judge fixes a whole series of trial dates that probably are not needed. Meanwhile in August 2014 a two day, non-custody burglary trial is listed for April 2015. Utter lunacy.

If the boss is bothered by “results” and “efficiency” he needs to reach for the petrol can and the matches. If the boss cares about quality and justice, he needs to reach for the chequebook.

Another Step

Time for a little reaction to the VHCC deal. This time it is a little less violent than my reaction to the original “deal”.

It is clear that the Bar had to reach some form of agreement when it comes to VHCCs to limit or halt the expansion of the PDS. If Op Cotton and other cases remained without advocates the Government would have been forced to employ advocates to do them. Those involved are therefore to be congratulated for having reached an accord.

Whether or not it is a “good” deal is more difficult to judge. We have no figures to judge it by. We have the MoJ proclaiming it is within the budget of the 30% cuts. Therefore I am certain it is not. That would not really be much of a negotiation, would it? If one side came out with exactly what they went in with. Also I doubt very much that counsel would now be prepared to do the cases if the reality is that they are being done at the reduced rates. I am also pretty certain that the figures would not be “secret” unless they were greater than the proposed reduced fees. My guess is it will be somewhere in between the old rates and the new rates. Counsel have the advantage of not having to wade through bureaucracy to read a page of evidence and the Government get consequential administrative savings (the sort of thing the Bar have been urging on the MoJ for ages.)

It also allays some of my fears about the return of the AGFS cuts that have been sent to the “long grass”. I am now more confident that they nestle in the nettles beyond the long grass. It is clear that the collective action taken by the Bar has caused serious concern at the MoJ. We were told that the MoJ would not budge on VHCCs. Well they have budged. We had a little luck along the way with the brief stay in Op Cotton but they have now had to come up with this deal.

Another positive is that it is a deal which completes the circle by including the “41” potentially left behind by the original deal. The Circuit Leaders, the Bar Council and the CBA should be congratulated for what they have achieved up to this point.

However, now is not a time to rest on our laurels. With our own fee position secured for the moment we need to turn our attention to the other matters of importance. Now we have secured our “bottom line” it is vital we return to matters of wider concern, matters of conscience, matters of principle.

We need to, urgently and with urgency, come to the aid of the solicitors. I have said before and I say again – we cannot fight for them as effectively as we fought for ourselves unless they unite. However the problems faced by the majority of solicitors are problems that threaten our continued existence. We have to use our current influence to get those solicitor “activists” such as Nicola Hill and Bill Waddington into the the room with the MoJ.

We also have to turn our thoughts, arguments and actions to repairing the Criminal Justice System. Not initiatives designed to tinker with it. We need to get the MoJ to see that the basic functions of the CJS are unravelling on a daily basis. The CJS does not need root and branch reform. At the moment it just needs intensive watering to make sure it does not shrivel and die.

Looking to the future let us not lose sight of the fact that we are working at rates which have been slashed from rates that were set many years ago. On Thursday thousands of public sector workers strike over the fact that the are not getting a “real term” pay rise. At the moment we are celebrating the fact that we have managed to preserve our nearly decade old pay real pay cut. For the criminal Bar to survive and flourish we need to fight for proper remuneration.

So, having achieved much, I say “let’s go back and achieve more.” How about starting with the cracked trial fee for either way offences in the Crown Court when the defendant has elected? This is something the MoJ recognised as unjust in the consultation process. This is something which is so palpably wrong. This is something that has a disproportionate impact on the most junior of juniors.

This is not a time for cigars and back patting. Now the real work begins.

A Fairy Story

Picture, if you will, two island states. One of them is called the Great Barrister Isles, the other is the Isle of Solicitors. The Great Barrister Isles are made up of lots of little independent countries, the Isle of Solicitors is more tribal but a proud and venerable civilisation none the less.

Dividing these two great island nations is a patch of water called the Referral Straits. This area of sea is of critical strategic importance to both civilisations. It is also the trade route between the two. Each of the nations had very different traditions and strengths. The Great Barrister Isles fished in the seas around them. The Isle of Solicitors had enormous mineral reserves. Trade between the two nations was vital.

One day the people of these two islands awoke to find that they had been besieged. At every port and along every shipping lane a hostile naval force threatened them. Each of these ships bore the flag of a people known as the Moj-rathki. The Moj-rathki were an infamous breed of bloodthirsty warriors and attack dogs.

The Moj-rathki sent messages to leaders of both islands and made it known that they wanted to annex parts of each of the islands to take as their own and they wanted control of the Referral Straits as part of their national waters, the Sea of Dual Contracts.

Now the Great Barrister Islands had always been a fighting, seafaring nation. Every seaworthy vessel was commandeered and made ready for battle. Every able bodied man and woman (for they had taken great steps in warrior diversity) boarded the ships and set out to confront the Moj-rathki. They amassed a fleet of 41 Dreadnoughts and behind them came the armada of smaller boats. They vowed not to surrender and called themselves the Fleet of No Return.

Things were more complicated on the Isle of Solicitors. They were indeed a large and powerful fighting force. However tribal loyalties made massing together a more complicated task. They also had no naval heritage to speak of and insufficient boats to take the fight to the Moj-rathki. You see the Great Barrister Isles had a always transported whatever was needed to and from them. So they had to stand on their shores and watch the Fleet of No Return sail into battle.

When the Moj-rathki saw the Fleet of No Return it could see that they had under estimated their task. Their leader called upon the Admiral of the Fleet to join him on his ship, The Petty France.

And so it was that onboard The Petty France the leader of the Moj-rathki, a giant known as the Grey King, and the Admiral struck a deal. The Moj-rathki would still lay claim to the disputed Straits but would allow the Great Barrister Isles to retain fishing rights. The Fleet of No Return would disband and resume their normal peacetime sea-faring activity. The Moj-rathki wanted an undertaking that the 41 Dreadnoughts would also return to port but the Admiral thought it best to allow them to patrol the Straits still. The Moj-rathki agreed not to annex any part of the Great Barrister Isles until at least four more seasons had passed.

The Peace Accord was not universally well received. Some were concerned that the Dreadnoughts had been left exposed, others worried what would happen to their neighbours and allies.

The Grey King called the Admiral back to this ship. He assured the Admiral that he had no plans to sink the Dreadnoughts. He understood that there were concerns. He assured the Admiral that he wanted to see the Great Barrister Isles flourish as before.

So the Peace Accord was reached. Of course the Isle of Solicitors were still besieged. No ships could come in or out of their shores. The Great Barrister Isles complained to the Moj-rathki on their behalf. They petitioned that their neighbours were being treated badly. The Grey King dismissed their complaints.

“It is out of my hands,” he said, “the Great God Gideon and the Goddess Cost have decreed it.”

As the siege carried on the Isle of Solicitors grew weaker. Although rich in mineral reserves they had little food to keep them going. They had always relied upon trading with others to survive. And they had always relied upon that trade coming to them. One by one, whole tribes began to be wiped out.

Of course the Great Barrister Isles still had their fish. Yes they suffered by not being able to trade with their neighbours like they had before but fish could keep them going. The Dreadnoughts proved hugely successful in protecting their fishing rights.

Until one night. One night the Grey King ordered a portion of his navy into the Straits. These were ageing old hulks of once great warships. However he now deployed them in a new way. He set fire to their timbers and set them on course for the Dreadnoughts. Oh the Grey King was very pleased with the sight of his Pyrotechnic Dreadnought Scupperers sinking the 41.

The Admiral was very cross and said to the Grey King, “you told me that you had no plans to attack the 41.”

“I didn’t have any plans to do so. When I said it,” answered the Grey King.

With the burning hulks of ships littering the Straits it became more difficult for the smaller fishing boats to venture out and feed the Great Barrister Isles.

Over on the Isle of Solicitors the few tribes that remained formulated a survival plan. All the time that this had been going on a few of them had been sewing. That had not seemed like a great plan to fight a war. However it was cunning. Their sewing produced vast nets that they were able to throw into the Straits at their narrowest point. They were able to capture just enough fish to keep the tribes that remained in food.

Unfortunately the industrial sized nets used by the Isle of Solicitors meant that there were less and less fish for the fishermen from the Great Barrister Isles to catch. And less and less fishermen were even able to set to sea as more and more Pyrotechnic Dreadnought Scupperers drifted around the Straits.

Slowly but surely the siege had worked in different ways. The Great Barrister Isles preserved the integrity of their borders but few citizens remained to defend it. A few tribes managed to eek out an existence on the Isle of Solicitors. The once beautiful Straits of Referral were now littered with the pollution caused by the burnt out relics that floated on its surface.

Neither Isle had lost. Neither Isle had won. The Grey King chuckled to himself every night.

Erratum

Tim Thomas also had this to add to commentary on Operation Cotton

“The Wall Street Journal and LAA statistics

Gratifying as it was that the Wall Street Journal chose to publish an article about the Operation Cotton ruling there are a number of statements in it that were incorrect. Firstly to describe VHCCs as consuming a ‘large chunk of the MOJ’s’ annual £2bn Legal Aid Budget’ is nonsense. If one examines the Legal Aid Agency statistics for 2012/2013 (the most up to date there are) at p9 figures show that VHCCs cost £67.6m in 2012-13, having fallen 26% from the year before. Even at the height of 2007/8 they were only costing £124m and that was largely down to the fact that many more cases were contracted (until 2011/12 cases had to have a minimum of a 40 day trial estimate, after that it was 60 days -thus less cases are now being contracted- which explains the fall in cost). Thus the MoJ’s suggestion that the 30% cut will save tens of millions of £s is rubbish. The 30% cut on £67.6m saves them £19m. The Government found £200m for pot hole repair in the March 2014 budget but is prepared to undermine the prosecution of Serious Fraud cases; letting down alleged victims and defendants, as well damaging the limited credibility of the FCA ; for a saving of £19m….”

You Do The Maths

I have been provided this by Tim Thomas. In fact I am considering renaming this blog View From the Tim…..

The cost of the Public Defender Service

The Cost of Employing a Junior at PDS per year

Salary = £90,000 per year for a 37 hour week 40.5 days leave and privilege days

Pension contribution = £21,600

NI contribution = £11,629

Practising Certificate etc= £831.68

Clothing (bands etc) = £200

Personal expenses = £650

Archbold = £450

Total = £125,360.68

Cost of Employing a Self-Employed junior to work on a VHCC full time for a year on a Category 2 case with the same number of hours preparation as Operation Cotton

Say the trial preparation takes 8 months (ie 1080 hours) to prepare and 4 months in court. To pay a self-employed Junior to do the same work done by a PDS Junior would cost1:

New Rates (cut by 1/3)

£51.10 x 1080 (prep) = £55,188 £176 x 80 (trial of 4 months) = £14,080 = £69,268

( Old Rates £73 x 1080 = £78,840 , £252 x 80(trial of 4 months) = £20,160 = £99,000)

Conclusions

On New Rates (cut by 1/3) It costs taxpayers £56,092.83 more to employ a PDS Junior to do a Category 2 VHCC than to get a self-employed Junior to do it. Whilst the PDS Junior has a salary of £90,000, the self-employed advocate has to pay his own expenses (Chambers rent, pension, travel, clerks fees, admin support, clothing, insurance etc, computer) out of his fee, making the equivalent salary at least 35% less – about £45,000, to do the most demanding and complicated fraud and terrorism cases.

On Old Rates it costs taxpayers £26,360.68 more to employ a PDS Junior to do a Category 2 VHCC

Since most VHCCs are Category 3 where the new hourly rate is £42 per hour for a self-employed junior the employment of a PDS junior to do VHCCs is even worse value for money – £42 x 1080(prep)= £45,360, £176 x 80 (trial of 4 months) = £14,080 = £59,440 . Thus the PDS Junior costs the Taypayer £65,920.68 than to get self-employed Junior to do it.

Operation Cotton

I post here a guest blog from Tim Thomas, someone who knows first hand about Operation Cotton

Timothy Thomas is a direct access barrier specialising in Commercial Criminal Fraud at 1 Pump Court. Here he gives his views on how the government should respond to the dramatic disintegration of the Operation Cotton trial last week.
If the Government, in the form of MoJ officials, continue to blame the Criminal Bar for exercising its right in an (albeit rigged) market to reject unfavorable contract terms, it needs to wise up pretty quickly.
The prosecuting authority in Operation Cotton, the Financial Conduct Authority (FCA), bears responsibility (along with the Prudential Regulation Authority) for ensuring that companies, their directors and their employees behave appropriately towards investors when they raise capital. When they do not, the FCA have the power to impose civil sanctions or launch criminal prosecutions.
Such regulation must be at the heart of ensuring that London retains credibility as an international financial centre that, along with New York, is pre-eminent in the 21st century. Before the financial crisis of 2007/8 there remained a high degree of skepticism in US Financial Law Enforcement circles about the ability of the Financial Services Authority (FSA) and Serious Fraud Office (SFO) to ‘enforce the law on their side of the pond’.
The replacement of the FSA with FCA and Prudential Conduct Authority twelve months ago and the recent power given to the SFO to use Deferred Prosecution Agreements were welcome attempts to bridge that credibility deficit. However, rather than just fund the FCA handsomely, rewarding their prosecuting barristers appropriately, the Government has completely forgotten that for any western democracy to function properly, the rule of law is sacrosanct and that means ensuring that those accused of financial crime have representation.
The lack of trial counsel in Operation Cotton places defendants in positions more familiar to third-world criminal justice systems. I cannot believe that this is how the Government wishes the world to see its regulation of the City.
The total saving that arises from the 30% cut to ‘very high cost cases’ (VHCCs) is £19m (a fraction of the £220m overall savings the government says it wants). Any credibility that the Government had in maintaining that this was necessary because of austerity was demolished by the Oxford Economics report, which demonstrated that legal aid spending was falling and would continue to fall, the March 2014 budget which found £200m to repair pot holes, the Government’s refusal to formally oppose a future 11% pay rise for MPs and the continued cost of MPs expenses at around £90m, despite the scandals of the last 3 years.
No one at the Criminal Bar, me included, has rejected the notion of the need to look for savings, but all our ideas have been rejected out of hand. Arbitrarily slashing fees, which are not linked to inflation and were already cut by 11% in 2007, by a further 30% is dumb.
It’s dumb because the £19m it saves endangers a host of forthcoming trials including: The Operation Tabernula Trial (the largest insider dealing case ever brought by the FSA/FCA) in September 2014, the Operation Hornet Trial (£35m HBOS kickbacks) in January 2015, the Operation Bulkhead Trial (Film Tax Credit Fraud) in September 2014 and forthcoming trials for various defendants employed by iCapp, Barclays and RP Martin accused of manipulating LIBOR, which are due to commence in 2015.
The public is entitled to expect that alleged victims have their complaints heard and defendants are given the chance to clear their names, not to mention the legitimate expectation that a government, which has talked tough on ensuring the appalling behaviour of the financial sector is not repeated, delivers on its promises.
Not only does the Government need to abandon the 30% cut, but it also needs to repair relations with the Criminal Bar and that means a new Lord Chancellor. Much has been made of Chris Grayling’s lack of legal qualifications, but the Attorney General’s behaviour at a Bar Council meeting, in threatening Price Competitive Tendering if the Bar did not pipe down, suggests lawyers do not have much wisdom either.
What should be a recognised is that new blood is needed. Step forward the current Northern Ireland Secretary, Theresa Villiers. A barrister and legal academic she would be a terrific choice as the first Lady Chancellor. Her ability to understand the Criminal Bar’s concerns coupled with a reversal of the cuts by the MoJ might just prevent the Criminal Justice System from falling any deeper into the abyss this Government has so recklessly and thoughtlessly allowed it to.
Tim Thomas tweets as @TimothyThomas79