Tag Archives: GE 2015

The Trial Tax

Parliament has dissolved and most lawyers are grateful to see the back of this administration. We all live in fear of what faces us come 8th May. But even to the last moment this Government produced a kick in the Crown Jewels of the Criminal Justice System. 

You can be forgiven if the Criminal Court Charge snuck up on you. The Lord Chancellor just squeezed it out in the dying days of this session of Parliament. For the legal geeks amongst you (collective noun is a “langhorn of lawyers”) the Criminal Court Charge was created by Section 54 of the Criminal Justice and Courts Act 2015 which was commenced by statutory instrument No 778 that was laid on 19th March and brings the section into force as of 13th April 2015. 

Hot on its heels came SI No. 796 which gave us the full, terrible detail of the Charge itself. Likewise that was laid on 19th March. And the upshot of that is the figures being charged are not the subject of debate before the House. 

It would be difficult to pick the lowest moment of this Lord Chancellor’s dreadful reign. This is a serious contender. Let us make no bones about this – the Charges that he has elected to introduce amount to a tax on the right to trial. Where Thatcher had the poll tax, Cameron and Grayling have the Trial Tax. 

This piece of political, and I have searched long and hard for the right words for this but can do no better than, this piece of political bollocks (sorry Mum) is anti-democratic, discriminatory, unfair and utter….err….bollocks. 

Why anti-democratic? Well it is patently designed to force people to plead guilty based upon their ability to pay. A guilty plea in the mags will set you back £150 or £180. A trial will set you back £520 or £1,000, if you lose. So the advice given will deal with sentence, prospects of success and then the price comparison. “But I haven’t got a grand,” the client might say, “so I can’t risk it, I’m innocent but I just can’t afford it if I lose. I am going to have to plead.” Your good character is priceless, but unless you have MasterCard, the price of defending it is prohibitively expensive. 

Is this just scaremongering by me, a bleeding heart lawyer bathed in self-interest? No. This is the view of Richard Monkhouse, Chair of the Magistrates’ Association. That is the Magistrates’ Association. MAGISTRATES. Not exactly a well known hot bed of bleeding heart liberals. 

So that is the State, imposing a financial burden that may cause innocent people to plead guilty based upon their wealth. Terrifying. 

How on earth can I suggest that it is discriminatory? Well this is going to hit hard working people who want to get on a damn site more than the old lag who knows all the court staff by first name. Most recidivist offenders do not think through the consequences, most are not put off offending by the prospect of going to prison and most will not pay a penny of their Criminal Court Charges that will mount and mount. That’s why the Government estimate that by 2020 there will be one billion pounds of unpaid charges. 

So who will pay it? It will be paid by hard working people who want to get on. Are you a plumber caught speeding? Going too fast for a fixed penalty? That will be £150 on top of your fine, your points and the Prosecution costs. Are you a fifty five year old accountant involved in a dispute with your neighbour where tempers get frayed and you find yourself charged with using threatening or abusive words? Fight a trial to clear your name and lose? That’ll be £520. On top of your legal fees, because there is no way this Government will provide you with legal aid. And because these people are otherwise hard working, decent people, they will obey the order of the court and pay the price. So it is a Trial Tax that will fall heaviest on previously well behaved members of society. 

Unfair, you hear me cry. What’s it got to do with fairness? Everything. Absolutely everything. The justice system has to represent the best that society can be in terms of representing fairness. It has to represent better values than the values of those it often seeks to punish. And automatic, mandatory impositions of financial burdens without any consideration of ability to pay just offends against fairness. 

But it is not just that. It is so arbitrary. It is so wrong that the same has to be imposed, no matter what the circumstances. So old lady who reverses her car and injures a cyclist gets prosecuted for due care. Her trial takes 45 minutes. She loses. £520. So old lag is drunk and disorderly, struggles with the police officers on arrest and then damages the cell he is put in. His trial runs into a second day. He loses. £520. 

And it goes on. ABH trial in the magistrates that last two hours? £1,000. Murder trial in the Crown Court that lasts two MONTHS….. £1,200. That is 39 and 1/2 days extra court days for the bargain price of £200. And the murderer is likely to qualify for the provisions that allow the charge to be remitted after two years because (1) his earning capacity is somewhat reduced and (2) he may not pick up any further convictions whilst in prison. 

How about the unfairness to the man who, after trial by jury, is acquitted of the indictable only offence and only convicted of the either way alternative? An alternative he may well have been prepared to plead to in the Magistates. Any discretion there? No. None. He pays £1,200 for the privilege of being largely vindicated. 

And what of the false accuser? Should they not pay for their use of the court system upon acquittal? Or even just the witness that does not turn up so the case gets dropped. The witness that calls the police out, gives a statement and then just can’t be bothered. Why on earth should they not pay?

If all of the above does not satisfy you that it is utter bollocks then also consider this. The court charge will be creating potentially preferential debts that will impact upon confiscation proceedings. There is no provision for how the hearings to determine whether to remit the charge will work. Who is going to pay for that? How much is it going to cost to record, monitor and pursue the charges that have been imposed?  What is the Lord Chancellor even trying to achieve?

That last bit is easy. Just before the election he is trying to look tough. He is trying to say “look at me, making criminals pay.” It is utter political bollocks. His own department states that by 2020 it could raise £135 million annually but they will be owed £1 billion by that time. Even he does not believe the first bit. If he did, he would not have to cut legal aid further would he?

This is an ambitious politician using the justice system as his political plaything. Lots has been made of having a non-lawyer as Lord Chancellor. Lots is made as to whether Labour or Conservatives are to blame for that. But this is what you get when you allow politicians to play with basic concepts of justice. This is the result of this abhorrent Lord Chancellor caring not one jot for the precious system he swore to protect. 

I don’t know how any lawyer, of any discipline, of any political persuasion, could step inside a polling booth and put an X against any politician who does not decry this false Lord Chancellor. I do not know how any lawyer could vote for someone from the same political stable as the nakedly ambitious and wickedly reckless political animal that is Chris Grayling. 

I do not care who you eventually vote for. Just make sure it is a vote that consigns this Government to Opposition and then do everything you can to lobby the new administration to undo the damage done by this spiteful regime. Starting with the Trial Tax. 

 

Fifteen Shades of Grayling

I have been sent this and, as usual, am happy to post this to my blog. As far as Fifty Shades of Grey is concerned I am not, surprise, surprise, much of an aficionado. However they have been times when I have felt like I have become a little obsessed with Grayling. Which is odd because, before he became Lord Chancellor, he had never hoved into my political viewpoint. But ever since he was foist upon the lawyers it has been like the worst of blind dates. As we near the solicitors’ moment of truth on Wednesday, anyone who has a heart would want to see Chris Grayling come a cropper. If the Court of Appeal does not do it then we have to hope the electorate do.

This piece is posted anonymously. Clearly the author does not wish you to know, given what it’s all about, that they are fans of this genre…..

Christian Grey and Chris Grayling have more in common than just the similarities of their name. Both are controlling risk takers with little regard for consequences. Fifty Shades of Grey is a twisted love story that leaves viewers slightly uncomfortable at the relationship between Christian and Anastasia. In much the same way the relationship that exists between The Lord Chancellor and criminal legal aid lawyers is one that has been uncomfortable to observe for the last two years.

Fifty Shades tells the story of Christian Grey a powerful and domineering business man who takes advantage of others. In the same way Chris Grayling, a man who should feel passionate about protecting the rule of law has a controlling and tortuous attitude towards legal aid lawyers.

Like Grey, Grayling is a man who finds it difficult to engage. Grayling will say he has “listened to lawyers”. What he doesn’t understand is that sitting in a room on the pretence of listening is not engaging. Grayling has no real relationship with criminal legal aid lawyers. He struggles to deal with them because he can’t control them.

Grayling is a man intent on inflicting unnecessary suffering, just like Grey. Grayling has had his savings and more. He’s been told his plans won’t work. He’s been told why they won’t work. Will he listen? No. Will he change his mind? No. He must now understand the suffering that will follow two tier, he’s been told often enough. He must understand that there are alternatives, he’s been told often enough.

Christian Grey is a man who thrives on taking risks without having regard to the consequences. Chris Grayling? You guessed it, he’s much the same. The two tier proposals can’t be tested and there is every indication that they will cause a collapse to the market but Grayling isn’t interested. He wants to make his mark, he wants his own way. He’s been given every opportunity to do things differently and to minimise the risk. He won’t. Once firms collapse they have gone for good. The desperate ones who bid might succeed in limping on for a year through two tier, they might have enough money in the bank to see them through. Their money won’t last forever. The volume of work isn’t guaranteed but their increase in overheads is. The big cases aren’t guaranteed but the second 8.75% cut is. It doesn’t take a genius to work out that it will be an unsustainable market. It doesn’t take a genius to work out that firms can’t operate with a 1% profit. It doesn’t take a genius to work out that firms can’t operate without a profit.

The twist to the plot of Fifty Shades is the role reversal, the fact that Christian Grey is actually a victim. In much the same way for as long as Grayling continues to bulldoze on with his ill-conceived plans he too will become the victim… Well maybe not him directly because by the time the damage is done Grayling will be long gone in a post elsewhere leaving someone else to pick up the pieces. The real victims of course are the justice system, the victims of crime and those too vulnerable to defend themselves. The real victims are the public.

Unfortunately for legal aid and the justice system Chris Grayling, just like Christian Grey is a savvy business man. Every time there is a story about the legal aid campaign about to hit the press Grayling calls up a favour from his old media contacts. He clicks his fingers and as if by magic stories appear about convicted criminals abusing the legal aid system and wasting thousands of pounds of tax payers money. No one gets to read about how legal aid prevented a victim from having to give evidence or helped get a mentally ill person the treatment that they needed. The public have been blindsided into thinking that they shouldn’t care, into thinking that legal aid doesn’t concern them. They think it’s a waste that should be stopped and all because they trust what Grayling says.

With a general election coming up Chris Grayling is one of the biggest reasons for wanting the Conservatives out of power because a bit like Christian Grey, he is a dangerous man to fall for.

There is a moral to this story and it’s this; unlike Anastasia legal aid lawyers refuse to be the submissive. Unlike Anastasia legal aid lawyers are not prepared to allow Grayling to be the dominant. Just like Anastasia legal aid lawyers have a “safe word”. Just like Anastasia that safe word is “red” but in our case the safe word means Labour and unlike Anastasia we are prepared to use it.

Justice Delayed is Justice Saved

Dear Lord Chancellor,

Tomorrow the Court of Appeal deliver their judgment on the appeal brought by solicitors in respect of the Judicial Review into the Dual Contract process. The Dual Contract process, as you know, is the mechanism by which the MoJ intend to “consolidate” the market of providers of Legal Services remunerated by Legal Aid. The MoJ recognise that the only way that solicitors can survive after your next round of cuts is to reduce the number of solicitors that can do the work and therefore increase the volume of work done by each firm that survives. In order to stop solicitors going out of business you are having to make sure that solicitors go out of business.

Now I am not writing this to harangue you about fee cuts or your idealogical restrictions on access to justice. I admit that I have, from time to time, mocked you, ridiculed you and probably been insulting towards you. I have criticised what you have done and your reasons for doing so.

However this is not the time or the place for such expressions of anger, derision or disagreement. This is the time to ask you, no, to implore you to take the next step appropriately, whatever the outcome of tomorrow’s hearing.

If the court rules in your favour then the tender process can re-start and we are set on a course that could see hundreds of firms disappear from the High Street. The legal landscape will be changed forever. It is exactly the sort of change that is very difficult to reverse. I urge caution upon you. DO NOT RESTART THE PROCESS.

We are 48 days away from a General Election. Any combination of things may happen. There has never been more uncertainty about the outcome of a General Election with minority governments, coalitions, a Labour administration or a Conservative administration all a real possibility. You may or not be in power. You may or may not be Lord Chancellor.

Forget purdah. Forget the niceties and conventions of the Civil Service. DO NOT TAKE THIS STEP THAT WILL IRREVOCABLY CHANGE THE JUSTICE SYSTEM. That is the only sensible, prudent, statesmanlike thing to do. Delaying now is not going to be a sign of weakness. It is not going to blow open the budget or the deficit.

And if the solicitors win? Just pause. Do not waste money on appeals. Do not rush through a false consultation. Pause. Think. Reflect.

Let me remind you of this

The Ministry does not know, and has shown little interest in, the knock-on costs of its reforms across the wider public sector as a result of increased physical and mental health problems caused by the inability to access advice to resolve legal problems.

It therefore has no idea whether the projected £300 million spending reduction in its own budget is outweighed by additional costs elsewhere. It does not understand the link between the price it pays for legal aid and the quality of advice being given. In short, there is not a lot the Ministry does know.

Therefore, while the Ministry is on track to make a significant and rapid reduction in the cost of legal aid, it is far from clear that these savings represent value for money.

It needs to get on and urgently review the impact of its reforms and, where necessary, act to address issues such as cost-shifting and people struggling to access justice.

Those are the words of Margaret Hodge from the Public Accounts Committee concerning the errors made in recent times by your department and the civil legal aid reforms. It serves as a timely reminder of the longstanding social costs of ill-thought out reform. It shows that savings do not always equal value. It tells you what many of us have said all along – do not diminish the quality of advice and representation as that causes damage.

You may not believe we are right. You may think you have no choice other than to do what you intend to do. But a pause now, a pause before devastation ensues, may just about be the best decision you ever take.

Yours,

JH