Tag Archives: gove

The Return of the Dead Eyed

Our new Prime Minister sits behind her desk. She surveys her new surroundings. All is good. She picks up the phone, pressing a single button.

“I am ready, Norma, send him in.”

The door opens and in walks a familiar figure; tall, slightly soft belly, domed head and the eyes of a fish that has not been in the water for 72 hours. 

“Chris, Chris, come in, take a seat.”

“Thank you Prime Minister,” he responds, pulling out a chair, “and may I say, what a thrill it is to see you here.”

“I couldn’t have done it without you. You were my campaign manager, not that we needed a campaign, all it took was one interview….but I am a woman of my word and I said you could name your price….so, what can I do for you?”

He clears his throat.

“Well, I really liked being Lord Chancellor….”

The Prime Minister shifts in her seat.

“…..and I would like my old job back. At the MOJ.”

“It’s a new dawn, Chris, time for a fresh start. Why would you want to go back?” the Prime Minister responds as she attempts a smile that chills everyone in the room.

“Gove…” at the mention of his name both of them make the sign of the cross and mime the throwing of salt over their right shoulder, “Gove cancelled all my big ideas, he undid my legacy.”

“Come on Chris, I know I said anything, but this, this is difficult. How about Gibraltar?” the Prime Minister smiled again (and somewhere a fairy died).

“The Governor of Gibraltar! Why would I want that job?”

“Not a job, the place. I will give you the whole place. That has to be better than a job at the MOJ….”

Chris straightens himself up to signify a stiffened resolve.

“No. I want my job back….”

“And a million pounds….” a note of real panic enters the PM’s voice, “…..no, £350 million….a week…I believe it is going spare. I’ll give you Gibraltar and £350 million a week, just don’t make me give you back Justice…”

“No you said ‘anything’ and that’s what I want. Lord Chancellor and the MOJ. Again.”

“Really?”

“Yes.”

“Oh very well,” the PM pause whilst she thinks, “if I am going to do that I will have to bury that news, make the headlines about something else……”

The PM reaches for the phone. She hits a single button again. 

“Norma? Get a message to Amber. Tell her it is Home, not Foreign after all. And then get me Boris…..yes that Boris…”

She replaces the receiver and looks at her new Lord Chancellor.

Just Say No…

Ben Johnson, Olympic sprinter, had to give his gold medal back. He had won by the narrowest of margins but had cheated. He had gained an unfair advantage and the result could not stand. 

Boris Johnson has recently celebrated the narrowest of victories. You can see where this is going already….

It is not just Boris. Gove, Hannan, Grayling, Duncan-Smith and the rest of the Leave campaign misled the public. From the moment the Leave campaign crested the tape at the finishing line they have let slip their vision of Brexit. Hannan has made it clear that immigration will not significantly be reduced. Duncan-Smith turned promises into visions of possibilities. 

Johnson made the position clear in his Telegraph column. It is worth quoting substantially from it:

“I cannot stress too much that Britain is part of Europe, and always will be. There will still be intense and intensifying European cooperation and partnership in a huge number of fields: the arts, the sciences, the universities, and on improving the environment. EU citizens living in this country will have their rights fully protected, and the same goes for British citizens living in the EU. 

British people will still be able to go and work in the EU; to live; to travel; to study; to buy homes and to settle down. As the German equivalent of the CBI – the BDI – has very sensibly reminded us, there will continue to be free trade, and access to the single market. Britain is and always will be a great European power, offering top-table opinions and giving leadership on everything from foreign policy to defence to counter-terrorism and intelligence-sharing – all the things we need to do together to make our world safer. 
The only change – and it will not come in any great rush – is that the UK will extricate itself from the EU’s extraordinary and opaque system of legislation: the vast and growing corpus of law enacted by a European Court of Justice from which there can be no appeal. This will bring not threats, but golden opportunities for this country – to pass laws and set taxes according to the needs of the UK. 
Yes, the Government will be able to take back democratic control of immigration policy, with a balanced and humane points-based system to suit the needs of business and industry. Yes, there will be a substantial sum of money which we will no longer send to Brussels, but which could be used on priorities such as the NHS. Yes, we will be able to do free trade deals with the growth economies of the world in a way that is currently forbidden. “

Putting together everything the Leave Campaign have said after the result shows that the campaign was based on lies. Their pledges/promises/possibilities could not represent their vision of the future for the UK after a withdrawal from the EU. 

Instead of “taking back the £350 million we send to the EU every week and spending it on the NHS” the pledge should have been “still sending money to the EU as the price for membership of the single market and probably getting little change out of £350 million pounds per week but if we do we might spend the bit we get back partially on the NHS. Maybe.”

The pledge “taking back control of our sovereignty, our laws being made by our sovereign parliament” just needed the caveat “apart form the EU regulations necessary for free trade, which are quite a lot.”

And the big one, the taking back control of our borders. The end to freedom of movement. But look at what Boris says above. He is talking about freedom of labour movement and pledges we will still be able to live, work and settle down in the EU. So we are taking back control of our borders, save for what we have to agree to to allow you to have freedoms which will probably mean agreeing the same rights for our trading partners. So they can come here to live, work and settle down….

Far from being free of the EU, Boris, Dan, Michael, Iain and Chris intend to pay money to the EU, be subject to EU regulations that relate us to trade and allow significant freedom of movement. 

What they have done is taken back control of reality. Their campaign was turbo-charged by the steroid of deceit. The reality has all the honour and pride of a failed urine test. 

Am I just a whinging Remainer wanting another Referendum? No. 

The Remain campaign were guilty of equally galling hyperbole. This was a two horse race where everyone was cheating to one extent or another. The sort of race where you just nullify the result, award no medals and ban the participants. 

I do not ask for a second Referendum. Had the Leave campaign been more honest about their vision, my choice at the ballot box would have been more difficult. I can perhaps live with their vision of the future, if it is allied with the protection of fundamental rights currently only protected by EU regulation. 

I may have decided that the economic impact was not worth the tinkering that that grand Brexit plan actually represents. I may have taken the view that incredibly complex process of extricating ourselves from the EU and then grafting ourselves back on to it is a waste of time and resources. Look at Boris’s words; “the only change”. Independence Day became As You Were Day. 

I am pretty certain that there were more Leavers disappointed by Boris’s vision of post Brexit life. I would not be surprised if one or two of them exclaimed “is he on drugs?”. Only the drug of PR and the lure of easy, populist policies. 

I bet I don’t feel half as cheated as the Leavers do….

One Small Step

A little like Pammy and Bobby Ewing, Michael Gove has woken up, found common sense was having a shower and it is as if the last two years have just been a dream. 

Except it was not a dream. Grayling was, and remains, a grim reality for the legal profession. 

I thought that when….. no, if the day came when TT was abandoned and there was some positive news regarding the cuts I would punch the air and organise a street party outside chambers with trestle tables, egg and spoon races and a New Orleans Jazz Band. 

When the news came I found I had very little appetite for celebration. Why?

There are many factors. It is difficult to celebrate when I know many have already been lost to the professions due to the uncertainty and the financial peril caused by the cuts. A small proportion of the damage foretold has already been caused. And that has affected people adversely. If Grayling was capable of shame it should burn in his heart like the sun in the sky.

I also cannot help but feel this was a self inflicted defeat rather than a victory. I have no doubt that the various fronts of opposition have had their toll on the MoJ. I do not doubt that those with the ear of the new Lord Chancellor have been making a forceful and effective case. I do not doubt that Gove has an understanding of things better than Grayling was ever capable of. Yet I am left with the feeling that, had the MoJ been capable of organising a wine tasting in the Vintners’ Society, TT would have been introduced. And the damage has been escaped by happenstance rather than endeavour and . 

That is not to say that the efforts of all those involved should not be applauded. The various Chairmen, Chairwomen, Presidents and Officers are all owed a debt of gratitude that cannot be properly expressed in words. As are the activists, those that marched, those that funded, those that took action, those that returned briefs, those that did not accept the returns, those that organised and even those that did no more than sign one petition. Win, lose or draw you are all a legion of heroes

The most significant factor is the state of the CJS. Gove’s statement was a giant leap for solicitor-kind but a small step for the delivery of a just justice system. It was a positive but one that did not stop the papers being served late/incomplete/not at all in countless cases today. It did not suddenly cause the videolink equipment to work in the vulnerable witness’s case in the Crown Court at Breaking-Point-on-Sea. It did not inject the funds required to properly investigate, prosecute and defend cases. 

And that is why I cannot celebrate. We have so many more battles to fight. So many more victories to win. And we cannot always rely upon those in the wrong shooting themselves in the foot. 

Writing’s on the Wall

Lord Chancellors of recent vintage spent a lot of money on wallpaper. I imagine if Chris Grayling had decorated his office, Michael Gove would have stripped the paper off the walls by now. He would have probably burnt the curtains too  He has certainly changed most other things his predecessor has done. 

One significant change was made today. The Criminal Courts Charge survived a grand total of nine months. From the moment it was introduced it was condemned by anyone with an ounce of sense, an ounce of decency or an ounce of experience of the criminal justice system. 

At last sense has prevailed. Hey-ho the charge is dead…..or is it?

The Ministerial Statement announcing the change speaks of a review of all financial penalties in the Criminal Justice System. It praises the intention behind the Criminal Courts Charge but accepts it had problems in practice. The statement goes on to say:

“I am today laying in Parliament an amending statutory instrument which will mean that, as of 24 December, the criminal courts charge will no longer be imposed. Our review will consider alternative ways of ensuring that criminals pay their fair share.”

This would seem fairly unequivocal. The Charge “will no longer be imposed”. But then we look at the Statutory Instrument which has been drafted. It simply deletes the part of the Regulations which provides for the amounts to be imposed as the Criminal Courts Charge. It does not repeal the charge itself. In fact the sentencing court will, on strict interpretation, still have to impose the charge. There is just no value ascribed to the charge ordered. 

It is a fairly curious way of achieving the cancellation of the charge. It leaves the door well and truly open for the charge to be resurrected with a new and different scheme for calculating the amount involved. 

Now what of defendants being sentenced in the next three weeks? Judges have no discretion regarding the charge. The requirement to impose the charge survives even the 24th December date when the amendment comes into force. Between now and then the amounts are still there to be paid. So Judges will have to still order defendants to pay it. Even in its final days, this version of the charge is managing to bring the system into disrepute. Expect some farcical scenes and legal contortions as judges, lawyers and magistrates try to do justice despite the law. 

What is going to happen to the charges imposed and not paid? There has never been a scheme announced by which the remission of the charges would be regulated. Are they still lawful debts owed by the offender?

And what of those that have paid the charge in the last nine months? I do not know the figures but I would wager that the money raised from the charge will mainly have been paid by people convicted of motoring offences. A significant majority of whom would have paid their fair share towards the criminal justice system through the tax they have paid. Do they get the money back?

Or do they just have to take it on the chin? Like most other taxpayers who have been put to great expense by each of the follies constructed by Grayling. Taxpayers who paid for the secure college that never was. Taxpayers who paid to defend the judicial review of the prison book ban. Taxpayers who paid his ministerial wages so he could waste taxpayers’ money. 

Best Mates

In a demonstration of unity with the Bar I call upon all solicitors to immediately cease undertaking Crown Court advocacy and to reject or repudiate any and all Two Tier contracts. 

I do not expect I will have many takers. Nor do I feel that a failure to act in this way actually demonstrates a lack of unity with me in my aim for appropriate remuneration for those working in Legal Aid cases and my desire to have a fair and equal justice system. 

The two acts I call for, albeit with my tongue firmly in my cheek, would improve the lot of the criminal barrister considerably. It probably would not leave much of a dent in the administration of justice either. And in the case of defeating TT, would be a positive all round. 

And yet I do not view this as treachery by solicitors. I do not feel this displays a lack of unity. I understand that we are distinct branches of the legal profession. I recognise that certain economic imperatives operate. 

So it really is time to understand what unity is and what unity isn’t. 

Unity is not expecting total, unswerving and unstinting dedication by everyone else to what you want. That is unity in the way that a dictatorship unifies the people in total and unquestioning supplication. Everyone is pulling in the same direction, whether they like it or not. And whether the direction benefits them or harms them. Unity is defined by what the dictator wants, nothing else. 

The Bar have been accused of a lack of unity in recent times. It is often accused of acts of great insult to our colleagues in the solicitor profession. Even in the pursuit of unity I cannot sit back and ignore this nonsense any longer. 

The language is sometimes offensive. There exists a number of Counsel who view all solicitor advocates as inferior. They are wrong. In house advocacy is not necessarily poor quality advocacy. The consultation on advocacy is, however, not an insult to solicitors. Nor is it born out of contempt for solicitors.

Firstly no advocate should be afraid of establishing their credentials when it comes to excellence. And I do not mean just demonstrating that you are “competent”. The aim should be for excellence. A proper panel scheme, and I do not mean the lip service of QASA, would improve quality assurance. In a post TT world that may be quite important. 

And, if I have not already been controversial enough, here comes the the really contentious bit. The reason why it is important is because of the economic temptation to instruct an advocate based upon an economic reason rather than reasons of quality and suitability. 

Please do not all shout at once. 

I am not saying that this is the basis upon which all employed advocates are currently instructed. I am not impugning the integrity of every solicitor out there. I am simply stating something that every player in the criminal justice system knows to be a risk. And it is a risk identified by the solicitor profession, in a slightly different context. 

Remember the Legal Aid Team video? That warned of under qualified or inexperienced personnel being deployed if legal aid was cut or contracted to big entities? The whole point is that cheaper labour for profit runs the risk of diminishing standards. Was that a suggestion which was a slur on the integrity of all solicitors? There would, surely, be some solicitors involved in these terrible organisations. The point was a good one. And is equally applicable to advocacy. 

Trying to find something that maintains standards in a post TT landscape is laudable. That the Bar should concentrate on maintaining standards in Crown Court advocacy is understandable. It is both where we see our strengths lie (championing your strength is not to denigrate others) and what we know about. It would be ridiculous if the Bar were to be at the vanguard of a consultation to promote quality assurance in police station representation. Very few of us do it. Clearly we would support such proposals as being of value to the system but we are not going to begin to design what would constitute proper quality assurance in that field. 

The Bar seems to being criticised for taking steps to protect itself in the post TT world. Which would be exactly the same motivation that lay behind any solicitor that bid for a contract. We do not want TT. We are not responsible for TT. We fear TT. We have nothing to gain from TT. Should we just go gently into the dark night that follows? No. Barristers work to earn money to pay their mortgages, provide for themselves and their families and to continue employing our staff. 

Those that bid for contracts on the rationale “we cannot afford to lose out if they come in” must totally understand that those that represent the Bar must work to try to minimise the impact upon their members. The way that is achieved must not be to the detriment of the administration of justice. If it is felt that the steps the Bar takes does diminish justice then argue against it. Don’t just cry “foul” and not be our friends any more. 

So the consultation about advocacy is not a slap in the face of all solicitors. It is not a declaration of war. It is a measure that should have been in place before market consolidation. There should have been such quality controls in place across the full range of services – police station representation, litigation, magistrates’ advocacy and crown court advocacy. 

Sometimes the best way to stay friends is not to take offence very easily. 

The U-Turn

I blame Thatcher. 

In fairness I blame Thatcher for most things. I am of that generation – she snatched our milk and we will not forget such deeds. I am also that way inclined, I possess a left leaning streak that some times manifests itself in outbreaks of Labour voting and always ensures an antipathy to M H Thatcher. 

But this bit of Thatcher blaming is quite specific. I blame our former premier for a political mindset that traces its direct lineage back to Maggie. From the moment she uttered the words “the lady is not for turning”, politicians have recoiled in horror at the thought of the dreaded U-Turn like pre Christopher Eccleston Daleks reacted to stairs. 

The “U-Turn” has become politician shorthand for weakness and lack of leadership. The odd thing about it is that the deathly accusation of a U-Turn is reserved for things that have previously been put in train. It seems you can promise to do something and then not do it. That is, after all, just a broken promise and why should we hold that against our political classes? You can break promises with impunity but woe betide the politician who performs a U-Turn once they have embarked upon a course of action. 

Which is a crying shame because we desperately need the Lord Chancellor to perform a U-Turn. He has demonstrated a willingness to think again. He has demonstrated a willingness to think differently from his predecessor. Suadi prison contract? Ripped-up. Huge Youth Prison? Scrapped. Book ban? Reversed. Criminal Courts Charge? Days are numbered?

A prudent Lord Chancellor would pause the Duty Contract process whilst claims from a whistleblower are investigated. This is absolutely crucial. He cannot look back at this a year from now and realise they have got it wrong. 

Yet he seems wedded to TT. Today the contracts have been awarded. We step closer to the precipice. There are so many good reasons why there should be a whopping great big, tyre-smoking, handbrake turn on this one. The consequences of getting this wrong are not capable of retrospective repair. Which is why an intelligent Lord Chancellor should be for turning. 

There are so many reasons why this process has to be paused:

  1. The MoJ have a poor history of procurement (interpreters??);
  2. This procurement process has already been amended by reason of the JR;
  3. Questions are now raised as per the whistleblower above;
  4. This is the same MoJ that were simultaneously entering into disastrous contractual agreements with Saudi Arabia;
  5. Just about every informed observer raises concerns over the procurement model; and
  6. The recent consultation on advocacy recognises that quality assurances provisions need to be put in place, sense dictates you do this before altering the market place and in more than just Crown Court advocacy.

There is no prospect of action being taken by those who have been awarded the contracts to derail the process for the greater good. We are left only with the hope that good sense will prevail. It is the only way we have left to turn. 

Horses with Parachutes

To misquote Hot Chocolate: “It started with a consultation, never thought it would come to this….”

It seems like a long time ago that we all responded to the first consultation entitled “Decimating Justice” or some such. Then we had “Decimating Justice: The Next Slaps in the Face”. Or something like that. And now we have a consultation about how we go about papering over the cracks that the Government have caused. 

I am all consulted out. I will, of course, respond to it in due course. Not now, however I do have a few immediate thoughts to share with you. 

We seem to be on the eve of the age of Two Tier. This is a dark day indeed. I would just take the opportunity to remind one and all that TT is not the Bar’s fault. It is important that we all remember that. I cannot think of one barrister or representative body that has said “Yeah, TT, that’s grrrrreat.” This was the product of the Government failing to place proper value on the work of criminal solicitors and then the Law Society trying to ameliorate the impact of “consolidation”, that being a euphemism for putting people out of business. 

What is more the Bar have tried to oppose Two Tier. Both in words and action. That opposition has not always been as direct as many of us would have wanted. That was quite hard to achieve without solicitors mounting a concerted effort to defeat TT. That is not to say that there were not concerted efforts by some. The JR was a tremendous effort in terms of energy, money and personal endeavour by many. Clearly many solicitors have forcefully argued against TT from the outset. 

When the Bar voted in significant numbers to return to direct action in order to support the action of solicitors, the underlying motive for many was to try to defeat TT. Sadly the collective will has never been there to directly oppose TT by means of direct deed, the most obvious direct deeds being not bidding, withdrawing bids or not signing. I understand the reasons why that has never happened. That does mean I think it should not have happened. It should. Time and time again the Government point to the fact that we work at those rates or we sign those contracts or we do the work. TT could have been avoided. But who knows what would have risen in its place!

So we are where we are. And the response to the consultation has to be with a view to protecting the administration of justice in a post TT landscape. And if you are at the Bar, it has to be about how to survive in a situation that is not of our making. 

The other most striking thought this evening is that this is all the wrong way round. It strikes me that the Government are now consulting on whether to introduce legislation to make the closing of stable doors mandatory when the horse is already in the next County. 

Lord Carter made it quite clear in his review that, before any consolidation in the market was attempted, a proper tested system of quality control needed to be put in place. It seems the Government are now thinking about how to ensure quality in a market that has been consolidated. That is folly in the extreme. What if the necessary quality assurance measures prove impossible to put in place? What if they are not put in place in time?

It is like jumping out of plane hoping someone will throw a parachute out after you. 

It also strikes me that this is all very unfair to those that did bid and those that did not bid. It is a distinct possibility that firms which have been relying upon an income stream from advocacy will have that curtailed or cut off. Which is why it makes more sense to do it the other way round. Establish the framework then get people to bid with the requisite knowledge. 

The current consultation keeps referring to the fact that the threat to quality is not the fault of the Government’s actions. It must just be a coincidence. It saddens me that the Government cannot see that the threat exists to the entire Criminal Justice System. Remuneration is a driver of quality in the police station, in the Magistrates’ and in the preparation of Crown Court litigation. Where is the consultation on how to maintain quality in those areas?

The Con of Cons

I imagine that most people expect that the detection and prosecution of crime goes something like this – offence reported to the police, police come out and carry out all such enquiries necessary to identify the culprit or establish an offence has happened. If successful in detecting the crime then all the evidence is collated and submitted to the Crown Prosecution Service who decide whether the case should be prosecuted. If the case is to be prosecuted, any further evidence required by the lawyers is obtained. A jury or magistrate will then determine guilt or innocence on all the available evidence. 

When I first formulated that paragraph it had something in it along the lines of “in a perfect world”. I deleted that phrase. In a perfect world, there would be no crime. In a perfect world where the only scar on global perfection was crime, there would be confessions from all those who transgress. 

We are not aiming for some form of Utopia. We are aiming for a functioning society where the average citizen is protected from crime by effective detection and punishment. Actually that is not even just our aim, it is the duty of our Government. One of its very essential duties. 

We are so far removed from the basic response set out in the first paragraph of this blog that it is safe to say that the Politicians are failing the People. 

Why do I say that?

It is fairly common knowledge that the police do not investigate every crime reported to them. This is not the fault of the police service, they are not provided with sufficient resource to be of service. A few years ago someone smashed my living room window in the early evening. My call to the police never got beyond the civilian call taker. A while ago I prosecuted a case where one of the defendants made a bail application on a demonstrably false premise. He was arrested. He was interviewed. A decision was taken by the police that the further investigation required for charge was going to use too many resources. The case never got as far as a charging decision. Been a victim of fraud? Most likely to be chalked up by the police as a “civil matter”.

This is not, I repeat, criticism of the police per se. They have to make daily decisions about what to prioritise because they are not provided with the resources by the politicians to protect each of us from every crime. That is the inescapable truth. And the future looks even worse

If you are lucky enough to be the victim of a crime that is investigated, resources will also dictate whether the crime and offender are detected. The use of scientific evidence to determine the identity of the offender has been one of the giant steps forward in crime and policing. Fingerprints, DNA, cellsiting, the list is endless of methods used to detect crime. In the modern world, however, the overriding consideration is not the detection of crime but the deployment of over-stretched resources. The full scientific armoury will not be deployed in the hope of finding out whodunnit. It is a constant battle about where to spend the money and devote the time. 

When I was a junior barrister you would regularly find evidence of fibre transfer in cases of aggravated vehicle taking. Where lifts would be taken from the driving seat of the car and the small fibres left on the seat would be compared to the fibre in the clothing of the alleged driver. I cannot imagine that happening today, which probably explains the demise of Contract Traces. A forensic science provider which is now lost to the detection and litigation of crime. 

The same considerations apply to the use of resources when the case is within the court system. Countless times the lawyers, either the CPS or the barrister instructed to prosecute the case, will advise that some further evidence is required only to be told that funding has been refused. Some times you will prevail and get the evidence, other times you reach a dead end. I cannot tell you how frustrating that can be, frustration shared by the investigating officers. It feels like you are fighting with one arm tied behind your back. Trials conclude with juries and the judiciary hearing only the evidence we can afford to present. 

I am afraid that resources, or a lack of them, bring an end to perfectly viable prosecutions. I have experienced three serious cases that have not reached a verdict of the jury because of problems with disclosure in the last six months. Over stretched police officers have not been able to devote the time and resources required to properly collate and record unused material. Often, even in relatively complicated investigations, one police officer is doing countless jobs including that of disclosure officer. Reviewing lawyers do not have the time to review the material and rely upon imperfect descriptions on the shcedule. So things get missed. Trials are adjourned or ended because of problems. And those represent the good outcomes. Even more worryingly are those trials that reach a conclusion without the errors being discovered. 

These are straitened times. I wonder if the politicians realise what impact their decisions really have. Tough on crime and the causes of crime? Well these days, only if you can do it cheaply. When it comes to crime and punishment, doing it cheaply often means not doing it all. 

What’s the Point?

You cannot deter people from committing crime. This is, I know, a BIG statement. It is also entirely unscientific, has no basis in research whatsoever and is probably wrong.  

Yet this is what a look around life tells me. Everyone knows that motoring offences carry points on your licence, a fine, increased insurance premiums and the possibility of a driving ban. Yet most drivers offend, whether it is gambling on the drive home after two pints or the almost ubiquitous speeding, the prospect of punishment does little to deter people who would otherwise describe themselves as law abiding. 

Burglars know that prison is the likely consequence of offending. Sentences for burglary seem to steadily rise. Yet people still burgle. They are prepared to gamble on the prospects of getting caught rather than on the consequence of getting caught. Which may be a gamble that is as simple as odds and evens, if stories about Scence of Crime Officers being deployed dependent on house number are right. If you want to deter burglars, do not boost sentences, boost clear up rates. 

And then you have those who are desperate. Drug users, who knew that drugs were bad for them (and before you tut and get all “they knew the risks and are the author of their own misfortune” you should put out your cigarette, put down your pint and leave that diabetes inducing doughnut alone) and knew that they were illegal offend because they see no other way. It is an offence committed entirely in the moment, thinking little of the consequences and thinking only of the need they have. Replace drugs with poverty and the drivers for crime are often the same. 

This is not to say that punishment is wrong and has no place in the Criminal Justice System. Clearly actions have consequences and a democratic society requires proportionate punishment for those that transgress our laws. The key word there being proportionate. And that brings me to the Criminal Courts Charge. 

From time to time in my life at the Bar I have witnessed some pretty daft pieces of legislation. I have experienced sentencing changes that were a nonsense. I have seen the folly of improbably harsh punishments such as IPP. It is difficult, however, to recall anything quite as arbitrarily unfair and impractical as the Charge. 

It is not as if the politicians had no clue as to how daft this was. I have lost count of the number of times Judges explained the Victime Surcharge with a degree of bemused exasperation to men and women who had little prospect of paying the hundred and odd pounds that now fell due. And, on occasion, have seen a Judge fall somewhere in between embarrassment and mirth in declaring that the Surcharge bites on someone they had just sentenced to 24 years in custody. 

But the Charge takes the biscuit. It wins the prize for political stupidity. 

Let me give you an example. I saw a man being sentenced last week. He was a recidivist, without doubt one of those men who has existed throughout time. A man for whom mental health difficulties, personality disorders, circumstance and sheer unpleasantness meld together to fix him firmly as one of society’s wrong-uns. 

He was being sentenced for a miscellany of relatively minor offences. One of them included a Bail Act offence. He had, during the currency of the proceedings, been bailed “within the precincts of the court”. Being the man that he is he failed to heed the terms of that prohibition. He wandered out of the building, he failed to return on time and proceedings were delayed until he graced the court with his presence (albeit that he did come back the same day, just late).

This falls somewhere at the lower end of Bail Act offences. It undermines the system and needs punishment. So the Judge imposed some relatively short custodial sentences and marked the Bail Act offence with two weeks imprisonment to run consecutively.

Then came the kicker. The hearing that he had wandered off from had taken place on 14th April. Which meant he qualified for the Criminal Court Charge. A whopping £900. 

I have no words that can accurately describe the look on the Judicial face when this was brought to the Judge’s attention. The one thing I can say is that the look was not in the least bit judicial. You could read in the Judge’s dark demeanour that he did not like having his hands tied by the imposition of a swingeing financial penalty outwith his discretion. You could see that the Judge understood that there was no prospect of this man ever paying this sum, unless he committed more crime in order to pay it. 

The taxpayer is well served by the work of the courts. A democratic society will never rid itself of crime and needs crime to be punished. But society is badly served by something as pointless and arbitrary as the Charge.

Would the defendant in my example have obeyed the Judge’s order to remain because he knew he faced a £900 Charge? Nope. Prison did not deter him. He just is not built that way. Is the taxpayer ever going to get £900 from him to pay for the part of the proceedings related to the Bail Act Offence? Not a chance of it. Has the imposition of this Charge led to a layer of administrative cost in recording the Charge, monitoring its non-payment and compiling statistical tables related to its income generating performance? Absolutely. The taxpayer will end up paying more in relation to this offender because of the Charge. Admittedly only a few pounds more, but what a waste of resources. 

As an aside, had this man leapt onto the bench and murdered the Judge on the 14th April and subsequently pleaded guilty his Charge then would have been……exactly the same. £900. Nothing brings the court system into greater disrepute than something which causes it to descend into farce. 

That the punishment should fit the crime is an expression of an innate truth. The Charge is an expression of a policitian’s inane folly. If the Charge has to remain a feature of the legal landscape make it discretionary. Better still, scrap it all together. 

Back to the Future

“There is no profession more noble, no calling more vital, no role more important than being a barrister. Far and away the best part of my job is spending time with barristers – watching and admiring, listening and learning, being uplifted and inspired…… each of these encounters with great advocacy left me feeling more optimistic about the future. I believe we have the best generation of barristers ever in our courts….. “

Fine words from a minister new to their job. Words that show the man in charge at the Ministry has the interests of the people on the front line at the forefront of his mind and at the heart of his policy. Barristers can hear these words and rest assured that this is the dawn of a new era in relations between the Bar and the minister. We can have confidence that our future is safe. 

The only problem being that Mr Gove did not utter these words, well not about barristers anyway. He said them about teachers in the early months of his tenure during a speech he gave at Westminster Academy;

There is no profession more noble, no calling more vital, no role more important than teaching. Far and away the best part of my job is spending time with teachers – watching and admiring, listening and learning, being uplifted and inspired…… each of these encounters with great teaching left me feeling more optimistic about the future. I believe we have the best generation of teachers ever in our schools….. “

We all know how that relationship ended. Mr Gove, a close ally of the Prime Minister, was moved to Chief Whip in July 2014 when his relationship with the teaching profession was described as “toxic“. His reform proposals had left teachers feeling that the man in charge was a man who was not listening to their needs and concerns. The negative nature of this relationship was such that the Prime Minister feared that it would damage his party’s re-election prospects. I bet the teachers did not envisage this when being so warmly described by the brand new minister. 

The equally concerning aspect of the speech to the Academy, and many other speeches from the same period, is the fact that it bears many similarities to the speech delivered in his latest role to the Legatum Institute and the speeches that have followed. Warm words about the actors on the stage followed by concern at the two tier nature of the system. Of how the delivery of a quality service is currently dependent upon the ability to pay. And then solutions to problems by study of what they have done abroad. 

It goes without saying that we have to judge the Lord Chancellor on what he does. The important thing is not to just base that on what he says. Warm words can soon turn to dust.  His meeting with the CBA, CLSA, LCCSA and BFG gives him an early opportunity to match his words with deeds, deeds that benefit all the actors on the stage.