Tag Archives: Austerity

Call the Lawyer

Lawyers and midwives make unusual bedfellows. Midwives conjure up images of fresh faced, kind and brave young women on bicycles bringing new life and hope to the East End of London. Lawyers conjure up images of snakes, fatcats, rats and lizards.

For the first time in their 133 year history, the Royal College of Midwives have voted overwhelming to go on strike. This is in response to the Government’s refusal to implement an independent pay review’s recommended 1% pay increase.

That is a remarkable achievement by this Government. There is now an unlikely link between the bringers of babies and the bringers of burglars. They have managed to provoke midwives to go on strike. They also managed to provoke the lawyers to take direct action.

Whatever your view of barristers, they are, by and large, a conservative (with a deliberately small “c”) bunch. It might be said that they are as unlikely to strike as a midwife. Until now.

I would a hazard guess that the midwives will garner more sympathy than the lawyers. That is despite the fact that the midwives are complaining about a pay freeze rather than repeated pay cuts.

The only reason why the public would be so uneven in their sympathy for the cause is because of the stereotypes in the opening paragraph of this blog. Midwives are nice, lawyers are not. Medics are selfless, briefs are selfish. Nurses do good deeds, solicitors protect wrongdoers.

In a recent Twitter discussion it was suggested to me that the majority of the public would wish to see lawyers torn apart by tigers. I responded by asking why the public would want tigers attacking those who prosecute paedophiles? I was accused of responding with my normal nonsense. I rather thought I was responding with the truth.

This is the challenge that the legal profession have to grapple with immediately. Our value has to be known and recognised. We are not bystanders in the trial process. We define it. So a good advocate makes the process better for all involved.

There are many ways in which I wish we lived in a world without lawyers. If humans had no frailties we would not need lawyers. If humans did not have emotions we would not need lawyers. To (mis)quote Dr Who “good men don’t need rules, that’s why I have so many”. Society needs rules because we cannot be trusted not to transgress them. Society only needs doctors because there is disease, ill health and old age.

Whilst we still need lawyers, does it not make sense that the public have access to very good lawyers? If I need the services of a midwife I want the dedicated, brilliant, go-the-extra-mile, cycling variety. I do not want a vaguely competent, unmotivated, underpaid, forced-into-industrial-action type.

I have no idea how the 11% pay rise politicians think this is the good way to run a nation.

Another Day, Another Moan

It is always the defendant’s fault. If it’s not the defendant’s fault then it will be the fault of the defendant’s dastardly lawyer. If we come down hard on them the system will run more efficiently and will be fairer as well. They are the enemies of justice. They are the cause of thousands of pounds of public funds going to waste.

Which is exactly what happened with a trial I defended recently. The shameful defence lawyer (me) asked for an adjournment because the CPS had served the medical evidence at 2pm on the first day of trial. The statement had only been written in May. It had only been sitting there on the file as the timetable for the service of the evidence lapsed in June.

However this is not what I am going to moan about today. It is such a common occurrence that it is barely newsworthy. All those lawyers getting paid very little as justice is delayed by glitches in the system is just not worthy of comment. Or worth doing anything about.

What I am going to moan about is the preliminary hearing that happens in every case. And yes I know I have moaned about this before. A lot. However something happened to me recently that highlighted how crazy the system has become. How terribly ill-thought. How dreadfully wasteful.

I prosecuted a prelim a while ago. When the PCMH came around I had not received any papers. I attended at court and discovered why. The prosecution had decided to discontinue the proceedings as there was no realistic prospect of a conviction.

This decision can only really be taken when all the evidence has been properly reviewed. The service of all the evidence only takes place after the prelim. The prosecution can bring an end to the proceedings by issuing a notice pursuant to section 23A of the Prosecution of Offenders Act 1985 which would bring an end to the proceedings there and then without further cost.

The problem is that the system now insists that an indictment is prepared for the prelim. This is so the defendant can plead guilty before the prosecution have a finalised idea whether there has been an offence or not. The consequence of this is that the prosecution are precluded from using the section 23A mechanism for discontinuing the proceedings because they can only do it before the indictment is preferred.

Brilliant. One device designed to force defendants to plead guilty before anyone knows whether they are guilty just to save costs defeats the device designed to save costs where everyone accepts the defendant is not guilty.

Ladies and gentleman, I give you the criminal justice system. Injustice, ineptitude and inefficiency.

Rights and Wrongs

The night of the long knives has arrived. The Prime Minister sits alone in his office. Before the night is over the walls will be coated with the blood of many a politician. The BBC correspondent, Nick Robinson, has just Tweeted that the Lord Chancellor is on his way to see the PM. That meeting never actually happened. This is the imagined conversation if the meeting had taken place.

LC: Prime Minister, before you make any decisions that I come to regret can I just say that it’s not all my fault. I mean we never expected that the barristers could get organised but it’s all sorted now. There was a problem, now problem gone. And we still have the solicitors on the ropes. And the prisons, well we embarked upon a benchmarking process and we set the benchmark too low for the number of officers compared to our high benchmark of the number of celebrities, I mean, offenders we lock up…..

The PM raises his hand to silence the gabbling Minister

PM: I haven’t asked you here to sack you. I need some advice about legal stuff.

LC: The law?!? Me? Are you sure….

PM: Well not the law as such.

LC: Because if you want law, we should get Dominic in.

PM: That might prove a little……awkward. What I need to know from you is what law stuff we need to make it look like we are dealing with in order to win the election outright. I can’t face another five years of Nick Clegg and all that “ooooh I’ve got a conscience” nonsense.

LC: I have always said that public confidence in the Legal Aid system has been undermined.

PM: Do we still have a Legal Aid system?

LC: Sort of. Not much of a one, but it is still there.

PM: So how do we know that the public are bothered about the Legal Aid system?

LC: Because I just said so.

PM: I know you did. But how do you know?

LC: I don’t. Not really. But it always sounded good. So I say it a lot. It works for everything. You should try it; ‘the public’s confidence has been undermined in prison sentences so I am going to triple them’ or ‘public confidence has been undermined in the probation service so I am going to sell it’. It works in any situation.

PM: But I need something that the public are really bothered about.

LC: You could try human rights and the supremacy of the European court?

PM: Why do the public worry about the supremacy of the European court?

LC: Because we keep telling them there is a problem. Every time we get caught out…. I mean every time those foreign Judges try to tell us how to run our country by applying a bunch of alien standards that we drafted in the first place, we just explain that they are wrong and pop a Minister on TV to whine about us being steamrollered by Brussels.

PM: Do we know that is something the public actually worry about?

LC: Oh yes.

PM: Can I just check how we know this?

LC: Because UKIP tell us the public are worried about it. And if UKIP raise it, we have to address it. It is all about capturing the heartland of grassroots in the public imagination.

PM: And is there a problem?

LC: Not really no, but it gives us a good excuse when we lose. Which we don’t do very often. In fact the European courts interfere with the actions of our Government only a fraction of the time that they do with the rest of the signatories to the Convention. We are one of the good guys. But I am not going to sit idly by and have some Eurocrat tell me how bent my banana can be!

PM: So we have told the public there is a real problem about sovereignty when there isn’t really and UKIP now tell us that the public are really concerned about this when they really probably aren’t and the upshot of all this is your banana is too straight, have I got that right?

LC: Yes. Kind of. The bit about the banana is made up but the rest is spot on.

PM: Right, well we need to do something about this wretched court then. Something tough. We need to tell them we won’t stand for this any more. Like I told them about that Juncker fellow. That made ’em listen.

LC: Just one problem. Dominic has advised us in the past that not only is it very difficult for us to pull out of the European court, he also advises us it would be a bad idea.

PM: Just who does he think he is?

LC: Strictly speaking he is the senior adviser to the Government on all things legal.

PM: No, you mean he was the senior adviser to the Government on all things legal. As of about ten minutes before you walked in the door I got all “Lord Sugar” on him and fired “me learned friend”.

LC: I have a cunning plan.

PM: Ho ho, I loved that show….

LC: Show? What show?

PM: You were just doing a bit of Baldrick there weren’t you?

LC: No. I have no idea what you are on about. What I was saying was I have a plan more cunning than a box of frogs with a combined IQ of over 200 and a set of Encyclopaedia Britannica.

PM: Are you sure you are not quoting Baldrick?

LC: NO! This is a chance to really show we are all in it together. I have been saying all along that we will provide an adequate lawyer of basic competence when the public pays.

PM: And….

LC: We can show that you are no different. At £161,000 we have one of the most expensive Attorney-Generals in the world. And after this reshuffle we will show we are still the most generous with whom we hand it out to. So as long as the new Attorney-General is an adequate lawyer there may be some benefits to you.

PM: Such as?

LC: Well when it comes to those tricky bits of legal advice your adequate Attorney-General may be a bit more inclined to give you the right sort of advice rather than the advice to do the right thing.

PM: I get it. So when we hand out the Lord Chancellor’s gig to you I was giving it to an attack dog….

LC: …..Thank you Prime Minister….

PM: …..and in order to get tough over Europe I now need a lapdog…..

LC: Yes, Prime Minister.

Bridget Jones’s Diary

Chris Grayling is a terrible lover. No, stick with me for a moment whilst I rephrase that, Chris Grayling is like a really terrible boyfriend. I feel like Bridget Jones in the throes of a romance with the Hugh Grant character. His communications regarding Legal Aid are like being dumped by letter by a University sweetheart who tells you she has met someone called Barry and although she thinks you are really sweet “can you just go back to being friends next term because that would be really nice” and “she just hates the thought of upsetting me”, like that’s going to happen after you have spent the whole of last term following her around and forging tickets to get her into the sold out Law Soc Social… Anyway, back to Grayling.

Reading his letter, his foreword to the response and his parliamentary statement it was as if he knew he was being a cad (I am choosing my words carefully now) and wanted to try and appear, well, all nice. When he wrote “please also be assured that I am not singling out legal aid – the savings from this area are consistent with those for the Department’s budget as a whole” he may well have just said “look its not you, it’s me.” And when he stated “when the Chancellor of the Exchequer asked for further savings from my Department in the Autumn Statement in December last year, I was very clear that we should not seek any further savings from criminal legal aid” he was effectively saying, “come on Jones, I’ve changed, I really have, I’m a one woman man from now on.”

And it doesn’t stop there. Ever been told whilst being dumped that you’ll look back one day and thank him/her for breaking up with you? Well Chris gives you “the review led by Sir Brian Leveson will increase the speed, efficiency and effectiveness of the criminal justice system which will bring benefits to everyone within the system, including the Bar.”

It was not just the letter that had overtones of the insincere, self justification of the break-up letter. The Foreword to the response brought you “the Government will review both a year after implementation of the respective new arrangements”. I cannot be the only one who thought about Ross from friends hysterically repeating “we were on a break“.

The terrible thing is that I also have a vision of a chat-up line amongst the platitudes and excuses. “I have genuine respect for the traditions of the independent Bar, and the high quality advocacy that you provide” had all the hallmarks of the I-will-still-respect-you-in-the-morning precursor to a one night stand *shudders*.

So there we are. I guess I should now confess that I have had two glasses of wine, have lost three pounds and smoked no cigarettes this week (I do not smoke and have embarked upon the 5:2 diet, were today not a fast day, the wine consumption would have rocketed). When it comes to the dating game, Chris and I were just not meant to be. I can see now that the break-up is going to be acrimonious. In the future I can see myself in the street, outside the pub, high heels in hand and mascara staining my face as Chris shouts “Get over it, I am with the PDS now and I really think we have a future together.” The big question is whether Nigel Lithman is about to do a Darcy and punch his lights out in a Greek restaurant?

Two Little Things

It is often the little things in life that irritate – a man constantly coughing on the train, an unnecessary mention, Jimmy Krankie…. So today was a day when something big came along. Today was the day the MoJ announced their plans for the criminal justice system, or rather their plans for the carcass.

There is much to be irritated about in the big document that the Government have produced. The impenetrable and misleading “Chart B1” for example. Or the contention that we will all be able to make up the cuts in income by us all doing lots of other work that would otherwise have gone to our talented colleagues who have left. Solicitors may find the idea of an 8.5% cuts being introduced in three weeks time somewhat irritating as it wipes out the profit of most firms overnight.

However two “little things” have really got my goat. The first is the letter from the Lord Chancellor. He-who-should-be-forever-ashamed has finally got the idea of what his job entails as he has told the Chancellor of the Exchequer that in the next spending review no more money can be cut from Legal Aid. I imagine the Lord Chancellor has similar conversations with his barber. You cannot cut what is no longer there. Sadly this is all too little, too late. Apparently he could not protect Legal Aid from the first onslaught.

Another thing in his letter (although this is still part of my first “little thing”) is when he says “I want to make clear today that under this Government, there will be no further reduction to advocacy fees, and in my view there are clear limits to how far fees can be cut.” That is exactly the point we have been making all along Mr Grayling. There is a limit. And it has been reached before this round of cuts. Have you listened at all over the level of cuts? No. Just the mechanism. Which, incidentally, started out as PCT and tapering daily fees so that shows what an expert you are. At least we have the promise that there will be no further reduction under this Government. In other news, turkeys surviving Easter are told that they have nothing to fear until the next major festival based around Christian beliefs.

The second “little thing” truly made my blood boil. I hope I have the technological knowhow to add a picture to my blog

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If I have failed miserably I will tell you what it is. It is a screenshot of a Tweet from the MoJ. It says that they have increased the fee paid to lawyers if the CPS drop the case. Oh joy unconfined! O frabjous day! Callooh! Callay! Well not quite. All the MoJ have done is partially reverse a bad decision. They have allowed the advocate to be paid properly when the CPS drop an either way offence where the client has elected trial “because that is not our fault”. Well it is not “our fault” when the same client pleads guilty because they change their instructions. Or when they plead to something because the prosecution change their stance. That is not our fault either. However it is is not this policy, utter bollocks though it is, that gets me angry. It is the presentation of this as good news. That confirms for me everything I always suspected of the MoJ. They are not to be trusted. They lie. They twist. They cheat. To pick this one piece of news out of the savagery of the proposals and present it as good news is like telling an amputee they will save money on shoe leather.

Without a shadow of a doubt the news today about Legal Aid, if implemented, will lead to people losing their jobs. Not just lawyers but support staff. To attempt to blind anyone with a Tweet about “improvements” is dishonest and distasteful. It also galvanises me for the fight ahead.

Responsible Government?

I am not an expert in politics or economics. Between you and I, I am barely an expert when it comes to the criminal justice system but I ask you to keep that to yourself. However I am a citizen living in the society governed by the current administration and existing in the world at large.

It would be impossible for a citizen of this country not to realise that this is a time of “austerity”. The fact is that the world is in one of those cycles when economies have and continue to struggle. That may be the fault of the bankers. It may be the fault of the politicians. It could just be a combination of many factors coinciding together to create that perfect storm of economic recession. However we are where we are.

All of that means that budgets are tight. Money is an object when it comes to what the Government can do. As a citizen of this country I expect, I want the Government to concentrate on three areas – Health, Defence and Justice. I believe these to be the central responsibilities of Government in respect of the society it governs. Of course other areas cannot be neglected such as the economy, infrastructure and welfare. However one thing that the credit crunch showed us is that factors outside of politics can bring the whole thing crashing down all over the world but these core responsibilities are entirely within the control of the Government.

When the politicians in power look to reduce their budgets I would suggest that the three core responsibilities are those that are accorded the greatest protection. And that within those core responsibilities the greatest protection is given to the provision of frontline services. Let us make a comparison with household budgets. When times are tight domestically the important things are warmth, food and clothing. So the Sky TV subscription would be sacrificed before the weekly food shop. And although you try to get the best value for money from the weekly food shop you make sure that you have enough money for that by making your sacrifices elsewhere.

To continue with the domestic comparison it is at times of economic woe that you try to maintain the status quo so when things pick up you have the best chance of making progression. You protect, as much as you can, what you have achieved. If you own your home via a mortgage you meet those mortgage payments before you book a holiday. And you certainly do not pick that as a time to put in a new kitchen and upgrade the television.

Translating that across to the running of the country the Government should look very carefully at itself and stop eroding those vital frontline services. They should look very carefully at itself and stop tinkering with things. At the present moment in time a successful and responsible Government would seek to protect what we have. It should not be constantly seeking to make alterations which are minor at best. Each of those policy announcements costs the nation money it is supposed not to have. Every data sharing NHS proposal or putting magistrates in police stations lunacy costs this nation a fortune the moment that the proposals tumble from the mind of someone in the corridors of power.

The current Minister of Justice should not gauge success by the garnering of headlines about “getting tough on terrorists” (does anyone believe we are soft on terrorism!?!). The current Minister of Justice should regard the preservation of a system whereby terrorists are prosecuted by highly skilled advocates as his duty at this time. It is ironic that Shailesh Vara responded to the inaccuracies of MoJ figures on payments to advocates by saying “it is not up to me how they choose to spend their money.” His Ministry is currently planning a brand new conservatory to stick onto a house which is crumbling. Preservation of the system should take priority over the next big idea to be shelved in twelve months from now.

And We All Stand Together

In 1986 I was asked by the Careers teacher at school what I wanted to be. “Barrister,” said I.

“Boys from this school do not become barristers,” came the response.

Well that was wrong. The careers advice was a little outdated. The Bar was changing. Boys and girls from comprehensive schools could now enter this profession. Not exactly an easy route but the barriers had come down and the Bar had begun a journey to an increasingly diverse future.

So with my D in Latin (another example of the outdated careers advice) I ultimately joined my chambers for Pupillage and then tenancy. I was one of three pupils at the time and all of us were taken on. This was not due to my brilliance. This was due to the fact that I was good enough and there were no impediments in my way. It took a couple of bank loans and a bit of luck but I joined a chambers of about 30 practitioners. A grand total of 4 of them were women. Now there are 86 members of chambers, 36 of whom are female. That means back in the day 13% of chambers were female and now it is 41%. The Bar has changed. For the better.

However I fear it is changing again. If I was now doling out careers advice to a modern day me I would not suggest that being a comprehensive school boy should stop me being a criminal barrister. I would just suggest that I should do something else. Something with better prospects. Something that was better respected. Something which had a future. A GP maybe. A chief executive (I am not sure these had been invented in 1986). The modern day me would also probably discover that I could not obtain the loans required, that the student debt would cripple me and that I simply could not afford to do it. Comprehensive school boys would still be welcome to come to the Bar but only if they could afford to do it.

The 1986 version of me would never have dreamt that one day I would be part of a “strike”. The closest I would get to a Flying Picket was the a capella band. The 1996 version of me would not have imagined it. By 2006 I probably had justification to want to. In 2014 I have no qualms about it being the right thing to do. When fees were frozen I could have gone on strike but I did not. When I did not get an increase to even keep me in line with inflation I could have gone on strike but I did not. When the cuts started to come I could have gone on strike but I did not. Tomorrow I will do. Not because I am demanding more. Because the Bar cannot take any less.

Nothing makes me prouder of the Bar than the fact that it no longer matters what university you went to. Nothing makes me prouder than the fact that the daughter of a caretaker or a deaf comprehensive school boy or a more mature entrant changing careers can come to the criminal Bar. All of that, all that has been achieved in terms of social mobility will cease overnight if these cuts come in.

So the Criminal Bar have to stand together. This great, diverse collection of individuals have to speak with one voice. We owe it to ourselves. We owe it to our clients. We owe it to victims. We owe it to boys and girls in comprehensive schools who dream of advocacy. We are not used to this type of fight. But fighters we are. And we are bloody good at it.