Tag Archives: 6th January

Bigmouth Strikes Again

I am about to quote from a document that was created on behalf of the CPS. I guarantee it is accurate. It was created for a case in Manchester and is currently pinned to the wall of the Crown Court robing room. The document reads:

The Crown asks the defence to indicate which of the exhibits they require reproducing. The Learned Court will be aware that there will be a costs implication to the public purse by the production of copies of the said exhibits and at the sentence hearing the Crown will raise the issue of this cost for each and every one of the exhibits required to be served in the light of the guilty pleas entered.

Now pause for a moment. I am not making any comment about the particular circumstances of that case as I know nothing about it. But pause and think what this is saying about the state of criminal justice in this country as we enter 2014.

The state brings a case against an individual. The prosecution disclose the material they base their case on. The prosecution also have a positive duty to disclose information that assists the defendant in the preparation of his defence. And that includes in relation to sentence. What this document seeks to do is to limit the opportunity of the defendant to see the evidence upon which the prosecution base their case. It throws a burden on to the defendant and the defendant’s lawyers to think very carefully before they ask for copies of the exhibits in the case against them. It is a burden backed up with the threat of sanction, of either the defendant or their lawyer having to pay costs.

Now I firmly believe that no court would impose such costs. I also believe that the CPS are not trying to withhold anything. However it is indicative of how low our criminal justice system has sunk, how beholden effective justice is now to cost, that the CPS would even contemplate such a suggestion.

So the CPS feel that to save costs the defence need to be able to justify in advance why they should see the evidence in the case where they have pleaded. It is not farfetched to say that in exhibit-heavy cases things can often emerge from unexpected places. Some thing which puts a different slant on the case or demonstrates the hierarchy of offenders. Some times it may provide support for a basis of plea. Other times it is not there. You only know when you look.

I can appreciate that simple cases, a shoplifter who admits it in interview, can be dealt with without the need for a full set of papers. I do not like it but I am probably too traditional in thinking people should only plead after knowing the full nature of the evidence. The risk of an injustice is slight. Paper heavy cases are different. They are usually more complicated than someone stuffing some razor blades down their trackie-botts. Injustices do not just occur when an innocent woman is convicted. They also happen when anyone serves a day in custody more than is necessary or justified on the basis of the evidence. Which is why there should be no question about it all the evidence being served on all parties. In a case to which the above direction would apply the prosecution advocate would have the exhibits, I guess the Judge would have the exhibits and the defence advocate? Well,I guess they will just have to guess what everybody else knows.

If the resources are so stretched that the prosecution wish to cut corners in the service of their own case then how far does the corner cutting stretch? If you are not freely allowed the exhibits in the case against you, how confident can you be that the unused material will be scrutinised for material that assists you? I would never think that unused material is not properly reviewed but then again, I would never have thought that I was not going to see the exhibits as a matter of course.

On the document posted to the wall of the robing room somebody has written “now you have to pay to see the evidence against you.” Which is a joke…..isn’t it? Every day now I see some reason why the criminal justice system is a joke. It just isn’t a very funny joke. To quote from another, somewhat different, Mancunian source: “But that joke isn’t funny anymore, It’s too close to home, And it’s too near the bone, It’s too close to home, And it’s too near the bone, More than you’ll ever know …” The problem is that the public think this happens in other people’s lives and it does not matter until it happens in their’s.

The criminal justice system is not about delivering savings. It is about delivering justice. It is not about winning votes. It is not even about winning cases. It is about putting justice above all else. Above the cost of photocopying.

That is why this Monday 6th January barristers and solicitors up and down this nation are taking part in an unprecedented protest. This is not just about fees. The Criminal Justice System cannot withstand any more cuts. We need a Lord Chancellor who protects the courts, not one who plays politics with them. Perhaps the next time the Government want to publish some ad hoc statistics they may like to tell the public how much money they have taken OUT of the effective prosecution of cases. Maybe compare it to the amount of money they spend on things like Police and Crime Commissioners. In times of austerity the priority should be frontline services, not pointless initiatives aimed at “public confidence”, otherwise known as “trying to win votes.” Like the DPP, the Lord Chancellor should a legal, not a political appointment.

An Act of Madness

As a very young barrister I did not own a car. So the first months of being on my feet in court involved a lot of travel by public transport. One day I was due to appear in Liverpool to conduct a mention. This coincided with a rail strike. A limited service was running which thankfully included a direct train from my local station to Liverpool. As I waited on the platform it was announced that this train had also been cancelled. So I did not think twice about jumping in a cab and spending £50 on the fare to Liverpool. Despite it being 20 years ago I still recall the cost of the fare because I only received £46.50 for doing the case. A loss of £3.50 before I had even stepped inside the courtroom.

So why am I telling you this? I am telling you this because on 6th January I am not going to go to court because I am joining a legion of lawyers who are protesting about the chronic underfunding of the criminal justice system. I am telling you this because it demonstrates that I do not fail to go to court lightly. I have gone the extra mile to attend court in the past at personal expense. I have prosecuted a case on a day that I had to lie on a conference room table in between appearances in court because I was in so much pain and was admitted to hospital the following day. I have gone to a relative’s funeral during the lunchtime adjournment of a trial and been back for 2.15. So why I am now prepared to make the ultimate act of defiance?

Well, let’s go back to my case in 1994 in Liverpool. Twenty years ago I would go to court for £46.50. And I still do to this day. Not every day and not every fee. But it still happens. In 2014 the taxi fare would be closer to £90. The taxi driver has probably had his income go up. Certainly the cost of everything has gone up. Things like petrol. Yet, in some instances, my fee remains the same. Thinking about that for a moment, these days every time I drive to Liverpool if you take in to account the cost of petrol, parking, my clerk fees and everything else that day at work costs then on those days that I am getting the £46.50 fee I am probably doing no better than breaking even.

I will admit that the £46.50 fee is relatively rare these days. This is because there was this thing called Carter and I am someone who believes that the Carter review of fees was broadly speaking okay for the Bar. Clearly it was a good deal for the administration. It saved the Government money overall. For the Bar it spread the money available more evenly though the range of cases. At the very least it was a workable system which considered what was appropriate remuneration for the case undertaken.

So yes, since Carter in 2007, the £46.50 days have reduced. However since 2007 a number of things have happened. Firstly inflation has happened. £46.50 in 1994 is now worth nigh on £80 in today’s money. And £100 (the replacement level of fee for many of the £46.50 days) in 2007 is worth nigh on £120 in today’s money. However since 2007 the level of fees have not increased. So in real terms I get £80 compared to the £100 I was getting seven years ago. No cost of living increase for me.

In fact no increase at all. Actually, now you ask, quite the opposite has happened. A number of arbitrary cuts have lowered the level of many of the fees. There have been arbitrary alterations to the scheme that mean I now go to court for free. Yes, you have read that right. Instead of getting £46.50 I now go to court for free some days. Oh and some further alterations have slashed up to 40% from some of the fees. And then the administration has been slicing a percentage from the fees each year for the last three years.

The Carter Graduated Fee Scheme was predicated on a system of swings and roundabouts; some £46.50 days were worth taking the hit because some days produced healthy fees and you took the rough with the smooth. In modern times the fee system is predicated on a system of guillotines and chopping boards. We go to court for free. We have been cut more often than a Mary Berry “cut and come again” cake. And yet we have ground on as we have been ground down.

The Government now reward the professionalism of a body of advocates who were prepared to spend more on travel than the fee for the case by designing a fee scheme based on their idea that we milk cases for all they are worth. They reward our professionalism by demeaning us in the press. They rely on our professionalism to ensure that we will go gentle in to the good night of further fee cuts. WE WILL NOT.

The refusal to work on 06/01/14 is an act of madness. We are mad not to have done it before. We are mad to only take half a day of action. There are those uneasy about what is happening. Yet we cannot carry on doing nothing any longer. Talking gets us nowhere. The Lord Chancellor closes his ears and says “I have to make cuts”. Until he will listen we have to say “I have to make a stand”.

Martin Luther King said “a genuine leader is not a searcher for consensus but a moulder of consensus”. Attend a meeting outside a Crown Court on 06/01 and you will see a consensus amongst the Bar which is unprecedented and has been moulded by the CBA. When I am at the meeting at Manchester I will have no doubt whatsoever that I am doing the right thing. In fact, in true Mancunian style, I am mad for it.