Tag Archives: Grayling

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. 

Added Interest

I am told Michael Gove cannot abide self-interest. It may have been his perception of self-interest that caused him to rebuff the approaches of solicitor representatives to delay/abandon Two Tier this summer. This is something he needs to get over. Quickly. 

In Catherine Baksi’s interview with Sir Henry Brooke the retired Judge tells us about the early days of Legal Aid. He describes how lawyers would undertake Legal Aid work for 10% off the market rate, this being the lawyers’ contribution to the Legal Aid fund. 

A while ago I conducted a committal for sentence. The day after the hearing the client dropped an envelope into chambers. It contained a wad of banknotes. It contained in excess of 300% of the Legal Aid fee. The client had judged what he thought my work deserved as a gratuity. (The envelope and its contents were returned to the solicitor to be given back to the client, before anyone reports me to the BSB).  Legal Aid fees are a fraction of the going market rate. 

Let me begin to join up the dots. Mr Gove need not fear self-interest of Legal Aid lawyers. We are already investing more into the Legal Aid system than the Treasury. When he sits across the table from Legal Aid lawyers he is talking to people whose only interest is a sustainable and fair Legal Aid system. 

When he spoke to those Legal Aid lawyers in the late summer the message was we were too far down the road to abandon Two Tier. The savings from the second cut had to be banked. Two Tier had to go on. 

It turns out his biggest problem was not the self interested lawyers. It was not strikes or direct action. It was the usual inadequacy of the Government procurement “specialists” to organise a cocktail party in an off-licence. Inevitably there would be litigation but the information from two whistleblowers Freddie Hurlston and Paul Staples added considerable grist to the mill of the disappointed. 

So the implementation of Two Tier has been put back until at least April. A further cut to fixed fees has followed suit. And do you know what? The finances of the country have not been blown apart. 

In fact all that has happened is that the Government have wasted vast amounts of taxpayers money on a procurement process which has only procured a steaming pile of……procurement appeals. There is every chance that they may throw good money after bad in defending the assessment of untrained temps. 

The Lord Chancellor has been gifted a window of opportunity to find a better way forward. He should have done so in the summer. All that he has achieved is further cost. Now is the time to listen to those who have the most interest in the system working well. Time to talk to the lawyers. Lawyers who are not self-interested parasites but are expert participants best placed to advise how to deliver savings without cutting standards. 

Come on, Lord Chancellor, you know that everything Grayling did was a disaster. You know every decision he made was the wrong way forward. It is the lawyers across the table who can save you from the ultimate folly of Two Tier. That is in everyone’s interest. 

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. 

Be There Now

It is Monday afternoon. By now the week for many a criminal barrister will be crystallising. There will be some of you for whom this week promised fixtures, floaters and warned list cases that have already been shunted off into the ether, to come back at some time you cannot do and your week already yawns wide open, like Nigel Farage laughing at one of his own jokes in the Clubhouse. 

For others of you, this morning or this afternoon will have seen your trials adjourn because of the lack of defendant/witness/disclosure/Judge/jury (delete as appropriate) and you will wander back to chambers to stand by the desk of your clerk, bowl in hand to see what gruel there is left in the stockpot of chambers. 

Most Mondays that end up like this are the cause for gloom and despondency. These are the terrible £46.50/£100/£nil days that make us all rotund felines. But not this Monday. This Monday the listing officer is your friend, not your diary devastating foe. Because the gap that has opened up in your diary for Thursday has a ready made “must do” to plug the void. Ladies and Gentlemen, I give you The Vote for Justice Rally – organised by the CLSA and the LCCSA at Central Hall in London.

This is the moment to do something. This is no longer the time for you to leave it to others. This is the time to book the advance train ticket or bring out the Oyster Card and give a few hours of your time to show the next Government, whatever their composition, that the Bar stand with their colleagues in the other branch of the profession. This does not involve you having to give endlessly of your time. This involves every single one of you who is going to be out of court on Thursday, and there will be hundreds of unemployed barristers that day, booking a ticket to the Rally and getting yourself to London. There can be no excuses. 

Just a few reminders of why we need to make a stand. The cuts to Grad Fee still hang over the head of every advocate. Every day you will see the impact of lacking of funding to the CJS. Poor advocacy standards, poor case preparation, injustice, incompetence. These are the everyday hallmarks of our justice system. It is your duty to stand against further degeneration. Your source of work, your loyal solicitors, may find themselves consolidated out of existence within 12 months. 

Will attending the Rally stop the rot? I can’t promise that. But it stands a greater chance than not doing anything. 

Now, you solicitors out there. Don’t think this message is just for Mr Under-Employed of counsel. There are something in the region of 1,800 providers of criminal defence services out there. If each entity sent just ONE representative on Thursday, there should be barely standing room for the out of court, self-employed advocate. 

The Government is about to run a lottery, the prize of which is barely worth winning and the entry fee may cost your very livelihoods. Today is the day to make sure you are represented at the Rally. 

This is a policy, the Dual Contract decimation of our justice system, that has to be stopped. We have to make this an election issue and a news story. We have to make this our business. 

Unity is not about agreeing over everything. Unity is not about sharing exactly the same vision for the future of your business with people who may be your competitor. Unity is not about being happy about what has happened in the past. But unity is about coming together to defeat something you will all agree is wrong. And unity starts with a room full of people on Thursday. A stand out, sell out demonstration. 

Get it booked. Now. 

The share this with your friends, with your enemies and with strangers in the street. Fill the hall.