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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

This is why the Bar, and it’s leadership is so much stronger this week than it has ever been.

You can disagree on matters of principle with friends without becoming enemies.

Do Right, Fear No One

 Last week the roof almost came down. There was anger, vitriol and division within the Bar itself, and between the two halves of the profession.

That was SO last week.

The MoJ must have been rubbing its hands with glee. A smile on the Lord Chancellor’s face for the first time in a long time.

But not THIS week.

The CBA Officers, and by association, the Circuit Leaders are to be congratulated, as they already have been, for recognising the need to consult the rank and file membership by way of this blog, thus allowing a proper debate, and most importantly, to hold an open vote.

Let’s not forget how this all started. Although we are not privy to the precise details, they were called in to the MoJ at 24 hour’s notice, and presented not with a deal, but an ultimatum. Many have observed, me included, that it offered…

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BE STRONG – VOTE YES by Jamie Hamilton

I wrote this to be submitted to the CBA blog. Pay them a visit and consider all the contributions.

criminalbarassociation

Why should you? 9 reasons.

Firstly because we are facing another year when fees that are already too low will further reduce in real terms due to the effect of inflation. Meanwhile the passage of the year will allow the MoJ to regroup and improve their resources. In that time we will have the opportunity to influence two reviews. Of course those two reviews had already been announced before the deal. And are not going to be withdrawn if we refuse the deal. Which allows us to influence those reviews regardless of whether we accept the deal or not. Oh and they are not reviews that will have a remit to influence our fees. Achieving this stay in relation to AGFS only achieves half of what we set out to do as represented by our very bottom line.

Secondly refusing the deal will show the MoJ we mean business. It…

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Transforming Legal Aid – Summary for Barristers

If you need some background info, this is excellent

Dan Bunting - A Life in the Bus Lane

This is the (edited) text of a seminar I did for Chambers on 4th March 2014 setting out a summary of what the ‘Transforming Legal Aid‘ proposals were (ie, what the latest plans for provision of criminal legal aid are from those nice folks at the MoJ).

I felt it might be helpful to share this a bit more widely as it is of concern how many barristers (and even some solicitors) have not given the matter proper consideration and don’t understand just what is coming. I’m amazed, frankly, that not everybody has read it. This is our future, and it is important that we all know just what is brewing in Petty France.

It is, I hope, accurate. Having said that, I’m sure that there are mistakes and, if so, please feel free to point them out to me. But certainly don’t rely on this for complete…

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I do not want to be on strike

A personal account of why a teacher feels she must strike. A lot of it will have resonance for lawyers. Apart from the bit about pay freezes and pay progression. However any lawyer will share the reluctance to act and will recognise the necessity to do so nonetheless.

Sceptical Mum

I do not want to be on strike.

I have a mortgage, childcare and ever increasing food bills to pay; childcare which I will still have to pay today even though I’m not at work. I could really do without losing a day’s pay.

But, if we don’t fight to protect our pay and pensions now, things could be much worse in the years to come. Over the few years I’ve been in teaching, there have been pay freezes and constant threats to get rid of pay progression. Like many, I left a much better paid job to go into teaching so I am not financially motivated, but we are ultimately employing professionally qualified graduates (at least at the moment – the government clearly have plans to get round this issue!) to do what many of us agree is a hugely important job. Surely we want the people educating our…

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