Tag Archives: legal aid

Every Dog has its Day

The white heat of anger feeds the desire to fight the Government at every turn. And we have plenty to be angry about. Years of cuts. Years of politicians badmouthing us. Year after year of our working conditions being eroded. It is the unprecedented sense of fury that now means the Bar stand on the brink of unprecedented action. The sort of action about which I have always dreamt. So why would I say that we should pause now? Why would I say, again, let’s take what is on offer and come back another day?

Some will say I lack back bone, that I am a coward. Some will say that I have self interest at heart. Some will say that I was wrong to say we should back down last time and I am wrong to do so again.

And that is okay. I do not hold a right to be right. I am not someone with all the answers. I am just doing what we all must do, I am listening to the views of others; I am weighing up what I think to be important; I am considering what can be achieved; I am learning the lessons of experience; and I am making my decision.

I have voted to accept the offer.

In 2012 I wrote a very angry letter. It decried the imposition of Fee Scheme C by the CPS. It railed against how wrong it was. It foretold the end of adequate representation of cases on behalf of the CPS. It was signed by 90% of Counsel on the newly formed advocate panels from Manchester. It was sent to the Chair of the CBA, ironically Max Hill. I had meetings with Maura McGowan about it. I had all the anger knotted up inside me. And yet nothing changed. Importantly we carried on doing the work, myself included.

Many will think that this would be an argument in favour of taking action. Again, we have been ignored for years. But I now appreciate that the rhetoric of being abused dogs means nothing in the cold reality of our fight to improve remuneration. What matters is actually improving our remuneration, not Shakespearean speeches or fantasy fee levels. It is about making sure that someone called in 2012, called in the year I was writing angry letters, is paid for things like the second day of the trial, is paid something which is worthwhile to conduct an appeal from the mags and is paid something approaching a reasonable fee when a trial is adjourned.

Once we have achieved that, we can continue to fight to get even better remuneration. We can fight to restore some sense of value to cases with higher volumes of evidence. We can fight to get paid for unused material. We can fight to get paid for the work we do. These are battles to be won, these are battles that can be won. They will not be won all at once.

By mid-July, a point at which we would be mid “no returns”, we will have a new Prime Minister and a new cabinet. That shiny new Boris or Jeremy will have made a lot of promises to get that new job. Those promises will have been to the public about headline grabbing initiatives and tax cuts and to their fellow politicians about jobs in that new cabinet. Those promises will not included more money for the Bar. We have the certainty of an improved offer on CPS fees that we can lock down right now, and a timeframe when we know that we will have to go in battle once again should AGFS not be improved. We need to secure those improvements now, before the political chaos of modern Britain means that cases going unprosecuted is just a footnote to what may lie ahead in Brexit Britain.

The bravery which many talk about being lacking in the leadership of the CBA is in fact the bravery that the Bar show time and time again in being prepared to take action. It is not the route of a someone that lacks courage to stand down from the fight, knowing that they will have to step forward again on another day. And that is what we are doing.

I didn’t back down in 2012, I just didn’t achieve what I wanted. I won’t have backed down in 2022, even if I achieve what I want in 2019. This is a war to be won battle by battle, and on Tuesday the 3rd of September, every counsel who is on day 2 of a trial, every junior counsel who has their non-custody, non-sex case stood out through lack of court time and every junior member of your chambers doing an appeal will be reaping the benefit of having won this battle and the battles that went on before.

That’s why I voted yes to the offer. I do so knowing we will probably be called upon again to act. I do so knowing that there are still cases which are not properly remunerated. But I believe this to be the best way. If I am wrong, if more people believe that we can do better by fighting on in this battle, I will be alongside you, refusing returns and taking part in whatever it takes. But I take the view that we can fight alongside each other now, or after we have secured this win. And I would much rather do what we didn’t do in 2012. I would much rather we improved things now.

WHY I THINK WE SHOULD REJECT THIS DEAL by Simon Csoka QC

Whilst Simon and I disagree on the way forward I am more than happy to host this blog written by him. It is very important that everyone who is voting equips themselves with as much information and viewpoints as possible. The act of disagreeing is a healthy way to make a decision.

I am struggling to understand how anyone can see this deal as anything other than shameless divide and rule. I do not underestimate the immediate impact that the conditional increases from September will have on junior juniors who prosecute.

Any pragmatic strategy against us by the MOJ and Treasury is to determine what is the least costly way of defeating any disruption by the Bar. The CPS advocacy budget should inevitably always be less than the defence advocacy budget. Multihanded cases mean that there are more defence advocates per case. An extra refresher on short cases, appeals and interlocutory hearings make huge differences to junior juniors but are not particularly costly from a Treasury point of view. Paying properly for the prosecution of large cases would require massive investment. There have been no increases for over 20 years. In fact, there have been cuts. Inflation amounts to 73% since 1998: https://www.bankofengland.co.uk/monetary-policy/inflation/inflation-calculator . The reality is that to even to get back to the position in 1998, there would have to be a doubling, at least, of the CPS advocacy budget. I fail to see how taking this offer provides any prospect of that occurring. It will be a cold day in hell first.

Likewise, in relation to AGFS we are 73% down by inflation and actual fees are at best no more than half the remuneration in 1998. It would require an increase in the budget of at least 300% to restore current incomes to the level in 1998. Does anyone believe that there will be a 50% increase let alone a threefold one?

I say this in order to put into perspective how easily pleased we can be. It’s rather like a badly treated dog that is overjoyed when its abusive owner occasionally pats it on the head. At least a dog does not congratulate itself when its abusive owner pays it some attention.

There is no commitment in the joint CBA and MOJ press releases for there to be any extra investment. I fail to see why remuneration for unused material or PPE would amount to extra money as opposed to simply a redesign within the current budget. This applies largely to AGFS but there is no reason why the redesign of the CPS scheme would not follow the same premise with some illusory increases.

The justification provided for suspending action is that the offer to increase prosecution fees will be withdrawn. This is taken seriously by the CBA. If it is a genuine threat, then the same would apply in a few months time. The blackmail then would be along similar lines irrespective of whether it’s a modest increase to the defence or the prosecution. We would be played off against each other on each occasion. A credible threat by the Bar to stop working is being averted by a very modest spend. This is a superb model for the MOJ “going forward” to deal with any dispute. For us, it provides no realistic prospect of ever achieving any significant improvements.

I have not attended any of the meetings with the LAA or MOJ. Perhaps the CBA are right. I doubt it but I cannot be sure. But it is better to test our opponent now than get into an intractable position in 6 months time. The threat of “push it to the members or lose it” has been used for many years. Each time we have ended up with appalling fees. Each iteration of the new AGFS was presented by the MOJ to the Bar Council and Circuit Leaders on the basis that we will only make this offer if you push it for us. Each time the leaders said it was impossible to get more. Each time we got more by not doing what the leaders were being told to tell us to do. Scheme 11 is dreadful. If we had done what we were told originally, we would have got a scheme that was worse that scheme 10. That too, was pushed by the Bar Council and Circuit Leaders as an achievement. Ultimately, we believed scheme 11 was bad, we were told it was good, the CBA now accept it was bad having told us last year to vote for it.

It seems to me that the whole process now starts with an expression of bad faith. One the one hand an acceptance that prosecution fees are wholly inadequate and unfair but a refusal to increase them unless we do hereafter exactly what the MOJ propose. It demonstrates that the MOJ is motivated by pragmatism and by the Treasury. It is not governed by doing what is fair. Who would rationally believe otherwise? We only get near to what we want when it becomes cost effective. The reality of the collapse of the criminal justice would be very costly. We are not obliged to prop it up. We told them we would no longer do so with these derisory fees. Now we are saying we will continue to accept cases even though we have only been offered a fraction of what we asked for. The proposed amendments to the AGFS scheme were supposed to be a stop-gap. We are now told to give up without any commitment to the stop-gap, let alone a proper solution. The collapse of the criminal justice system is now no more than a remote prospect thanks to our acquiescence.

I fear that the real problem is that this shambles of an AGFS scheme was largely designed and then pushed by CBA and the Bar Council. We were told on multiple occasions to vote for it last year and the year before. We were told that the fee projections were scaremongering. This self-inflicted fee cut (which is still presented as a fee increase by the Bar Council) is preventing any effective representation in negotiations. It’s all too easy for the MOJ to claim (as they did last week) that they made further investment last year. I cannot believe that the advocacy spend is actually greater. We can only base it on our own experience. We can’t see the data. There needs to be some acceptance of the huge failure last year so that we can move forward.

I cannot have any faith in the MOJ when they have dictated that the CBA cannot disseminate contrary views to its members. Any deal that has to be pushed by the CBA on MOJ terms is not worth having.

The CBA now argue that the Government will be persuaded by November to make significant increases to AGFS. A year ago they claimed that Scheme 11 was the best we were going to get. Nothing has changed except a belief that this time it will be different. They now believe that we will do much better but do not explain why.

The only thing that changed was the threat of massive disruption. If we call the action off, then the threat will never again be taken seriously. It will have taken nothing more than loose change in Treasury terms to defeat a Bar that was united. Who is to say that the Bar could even be led out to battle again? We instinctively feel that we are being led into another capitulation just as we are winning. I think most of us are getting too cynical to be led out by any fighting talk after this. It’s action now or never.

SIMON CSOKA QC

The Mistake They Made

There are many that believe that making of a single offer in respect of CPS fees and AGFS is a tactical masterstroke by the MoJ or the Government, that this is a tactic of divide and conquer which we are fools to fall for.

I believe it may be the single biggest mistake “the Government” side of these negotiations have ever made.

Each time we have been involved in days of action and no returns up and down the country prosecution counsel have received very similar letters (an example of which is here) telling us that those briefed on behalf of the prosecution should not be involved in the proposed action as the complaint about AGFS is nothing to do with the CPS.

Can you see where I am going yet?

Joining the two issues together is the biggest mistake they could have made. The CBA have made it perfectly clear that the action will be suspended as a whole. That is the term stipulated by the Government. The CBA have also made it perfectly plain that, should the reviews not happen in a timely fashion or should the outcome of the reviews fail to produce new money to cure some of the ills of AGFS, then the action will return. And that, logically, should be all of the action. Defence and Prosecution briefs.

No matter what the outcome of the vote, the CPS have allowed their own argument to be torpedoed. What they have always sought to set apart, this offer has joined together. Rather then dividing us, this offer produces the unanswerable case that action in support of changes to the AGFS is action taken by the whole of the criminal Bar, no matter which side of the courtroom they are due to sit on.

I would also venture to suggest that it would be incumbent on those that prosecute to support those that defend should the decision be to accept the offer. That support is at its most crucial if it should come to us taking action again. I imagine it would be very difficult for the CPS to take back that which they have given by that point but the offer is a global one, if the Government renege on their promises of a speedier review or fail to set right that which is wrong they should face the chaos of both Prosecution and Defence action.

This need not divide us. It provided us with a stronger lever with which to apply pressure. It turbocharges the impact of no returns and days of action. And it was all the Government’s idea….

Apples and Oranges

And so this evening my eye fell upon a piece in The Spectator Online by Ross Clark, you can read it by clicking on this link. My attention was drawn to the article by the howls of wounded lawyers taking to Twitter to say “pah” or to invite Mr Clark to spend a day with them to see how the legal system really works. So I was forewarned lawyers would come out of the article badly. I had no idea how badly the authors of comment pieces in The Spectator would also fare.

The title is “Why MPs should not stop legal aid reform”. The catalyst for the piece is the recent pronouncement of Nigel Evans MP that legal aid reform had gone too far, something he discovered for himself when accused of a crime. The premise of the piece – well that may take a little more unraveling, but I will give it a go. Mr Clark seems to be suggesting that the law is an industry which is resistant to change and operates as a conspiracy to make it too complicated for the layman to represent themselves. He argues that reform is needed to simplify the law and procedure. So far so good (although the I confess to having a wry smile at the  use of the word “arcane” in a plea for simplification) but I cannot help but feel this is not foreshadowed by the title or by the catalyst in the iniquity of acquitted defendants who do not qualify for legal aid having to fund their defence.

The headline lays down the gauntlet as to why MPs should not stop legal aid reform, regurgitates some figures about the cost of legal aid (and more of that in a moment) and then goes on to propose reform to the legal system. It fails singularly to deal with the issues raised by the case of Nigel Evans. It does not deal with the issue of those denied access to justice whilst the legal system remains as it is but funding is denied to so many. It fails completely to deal with any issue about the provision of legal aid. It is the equivalent of me standing before a jury to do my closing speech and delivering a plea in mitigation.

The complaint is made that complex language and procedures keep the layman bewildered by the legal system and that the answer is reform to make it clearer so that people like Nigel Evans can represent themselves. This argument always ignores the fact that most lawyers bring more to the case than their knowledge of law and procedure. We bring skills in litigation and advocacy that go way beyond what is written in a statute or contained within the law reports. Thinking that if only we make the language less complex and the procedure less procedural we will open up law to non-lawyers equates to making us all pilots if only we stop calling it the altimeter and instead refer to the “how far we are off the ground” dial.

Time and time again both experience and academic study shows that lawyers can save an awful lot of time. One of the main things I do is act as a filter between what the client may think is relevant and what is actually relevant. I spend hour after hour agreeing issues and evidence with my opponent that someone without my experience and detachment would never agree.

That is not the only filter I provide. The law recognises that people charged with the sort of offences of which Nigel Evans was acquitted should NEVER be allowed to cross examine the complainant themselves. This is a law which is good. This is a law which benefits those who are the victims of such offending. It encourages reporting. It facilitates the complainant giving their evidence in the best way possible in the circumstances. So which reform would Mr Clark like to see where someone in Mr Evans’s position would be given the ability to cross examine their accuser? Not all in this position are innocent. You get very unpleasant individuals only too eager to exercise control over their partner through the witness box. I am a filter. I am a safeguard. A safeguard that legal aid reforms has now removed from many a family case. What a triumph.

And now the figures. This is depressingly familiar. Depressingly misleading. Depressingly inaccurate. The piece states

“A Council of Europe Report in 2014 – after the legal aid reforms began to take effect – calculated that UK taxpayers were spending £2 billion a year on legal aid, compared with just £290 million in France and £272 million in Germany.”

Now this is where I would suggest it starts to go badly wrong. The suggestion is that we spend £2 billion a year on legal aid after these reforms and, therefore, more reform (i.e. cuts) are required. In fact the spend on Legal Aid in 12/13 was £2.2 billion; 13/14 £1.9; 14/15 £1.7; 15/16 £1.5; 16/17 £1.6 and 17/18 £1.6. The MOJ budget has suffered the biggest cuts in Whitehall, down from £10.9bn to £6.4bn.

It is wrong and a little bit lazy to quote £2bn without the further context of what the Legal Aid spend is now when considering whether the legal aid system, or indeed the legal system, requires further reform. And yet the really misleading bit is not in the figures. Or the context. It is in the statement that the £2bn came from a report in 2014 after the complained of cuts had already done their work. Just a moment with Google would tell Mr Clark how misleading this is. LASPO gained Royal Assent in May 2012. Many of the changes in Legal Aid were introduced in April 2013. The system whereby acquitted offenders of certain means footed the cost of their defence was not introduced until January 2014. Inevitably the “savings” take a while to show in the figures. In 2014 the cuts had barely had time to have an impact. It took time. Hence the decline we see in the figures I quote above.

You may well think I have been a little unfair on Mr Clark. Google would tell him that LASPO was in force in May 2012 so the report he quotes could reasonably be said to be after the reforms had begun to take effect. Google may not have told him that the changes were staged over a long timetable. But Google would also have given him access to the report. Even five minutes with the report itself would have told him that the figures in the report were from 2012 at the latest. That is before the legal aid reforms were implemented. Looking it up on Google and reading the source material is not Pullitzer Prize winning journalism.

The bizarre thing is that the piece manages to argue against itself, I suspect unwittingly. The comparison is made with the Legal Aid spend in France and Germany. The piece further argues that reform to our legal system, to make us more like Germany and France, would see our legal aid budget further reduce. This tells us that the system may be a driver of cost.

Let us look more at the 2014 report. It tells us of the whole spend of countries on courts, legal aid and the public prosecution system. The figures show that England and Wales spent €5.4 bn (population 56.6 million), Germany €9.1bn (pop 80.5 million) and France €4bn (65.6 million). The costs for the court system excluding legal aid per inhabitant is €103.5 in Germany but only €42.2 per person in England and Wales. If Herr Klark in Das Spectator has used that figure to suggest reform is needed to the German Court system because we spend so much less than them, well they would be comparing Apfel und Orangen.

Time and time again it is pointed out that comparisons of legal aid spend in an adversarial system to the legal aid spend in an inquisitorial system is almost meaningless, and yet, like HG Wells’s Martians, still they come.

The legal profession is less resistant to change than many would believe. What we are resistant to is the poor and misleading use of evidence. We are resistant to misinformation and the misinformed. Mr Clark is more than welcome to advance his views on reform to the legal system but they need to be based in reality. They need to deal with the real injustices happening week in and week out because of the removal of legal aid and suggest something for the here and now. If he sees the long term answer to be a reform of the judicial system that has to be thought out with cost implications, both financial and societal. And whatever he argues for, he needs to rely upon more by the way of research and less by lazy trope.

The Sorcerer’s Apprentice

Her mother bent forward and placed a kiss on Hood’s cheek.

“You are grown up now, Hood. Time to make your way in the world. And we are so lucky that the Great Wizard, Lord Chan-see-Lore has agreed to take you as his apprentice” her mother said as she straightened up and wiped a solitary tear from her face.

Hood didn’t feel lucky. And at 12, didn’t feel particularly grown up.

“Now, Hood, be brave,” her mother said and steered her towards the heavy wooden door.

If she didn’t feel lucky, or grown up, she definitely did not feel brave. Every child in Gallia Pusillium was scared of Lord Chan-see-Lore. Every child had been frightened into good behaviour by the mere mention of his name. Every child knew the stories of his terrifying magical powers. And how he would use them if he found himself displeased with you. You were lucky if he turned you into a frog. There were rumours, dark rumours, that he had a spell which would instantly transport the target to the untamed badlands. And no one wanted to find themselves in the untamed territory known only as Defra.

As Hood tremulously approached the door it wheezed open as if pushed by an unseen hand. The young girl slowed in her pace and looked back at her mother who bore an unconvincing smile.

“I will see you tonight Hood, good luck and try, please try, not to make him angry….”

This last warning caused Hood to stop. She should turn back. She always made grown ups angry. She couldn’t help but make grown ups angry.

And then her feet were moving. Not by her bidding. Her mind was screaming at her feet to stop. Yet, as surely as if someone held her ankles and yanked each foot forward, she began to move towards the door, her feet slowly rising and falling like an astronaut walking across a moon of treacle.

Now she was across the threshold and the wooden door whooshed shut behind her. The air was still. The only sound was her heartbeat which reverberated around the stone walls of the short corridor which lay ahead of her.

A voice boomed from nowhere. The sound filling every bone in Hood’s quivering body.

“Ah, my new apprentice,” the voice deeply announced, “it is so good to have you here. Such a shame the previous one lasted such a short time. Such a pity he had to go. In a flash.

The last words echoed, bouncing off the walls and repeating just that phrase. “In a flash“. Like a spell. A violent spell.

“Come, come. No need to tarry. We have much to do. Come, come. Pedestrianarius compellebulum

It didn’t matter whether Hood wanted to do as instructed. Her feet responded to the incantation, moving of their own accord, propelling her to the end of the corridor. As she reached an oak and iron door it vanished into thin air and then reappeared behind her as her feet took two enchanted steps forward.

From the narrow confines of the passageway Hood suddenly found herself on a wide ledge in a vast chamber which spiralled above her head and out of sight, and plunged beneath her feet to dark dank depths. The ledge on which she stood was, in fact, a wide step in a staircase which climbed up the wall to her right and descended to her left. As she took in more of her surroundings she could see that the staircase led to the occasional square platform which jutted out from the wall.

Now, moving her own feet, she edged closer to the lip of her stair and surveyed the square platforms as they fanned out below her. On the one nearest to her she could see that it was set up like a sitting room, with a sofa, a chair, a coffee table and a rather chintzy rug. On another were all the accoutrements of a laboratory, tall flasks of bubbling liquid being heated by a dancing flame. On a third platform were a vast array of plants, being fed by a complex watering system and each bathed in light from an invisible source.

And on each Hood could see an intense cacophony of movement. Little figures darting this way and that. Here one turned down the flame as a flask was about to boil over, there one turned off the water as a plant pot filled to the brim.

Hood shook her head. These little figures were not human. Nor animal. They were no creature she had ever seen before. Their bodies were thin and gnarled. Their arms were twig like. They propelled themselves on what looked like grass skirted legs. If she was not very much mistaken, each figure was a walking, working little broom.

“Welcome to my little abode.”

Hood’s attention was dragged back to immediately in front of her as the Wizard appeared, as if by magic (and let’s face it, he was a Wizard, so it was going to be by magic). But it wasn’t just the appearance which was magic. He was suspended in mid air, floating, bobbing like a buoy at sea.

“I am the Great Wizard, Lord Chan-see-Lore,” the floating figure introduced himself, in a manner which was not in the least bit friendly. Not that an introduction was necessary. Every child knew the stories. And every child knew that the Great Wizard also possessed a great jaw line. Like a cliff face over a beach.

“I am Hood, Sir” she managed to say, whilst also bowing.

“Always refer to me as My Lord or Your Great Wizardness,” the floating Wizard commanded, “as you are my servant and I am your master. And I always demand a civil servant. As for you, you are my apprentice, my pupil. So I will call you Acolyte Hood.”

“Yes, Great Wizard,” Acolyte Hood bowed once again.

“And now, follow me,” commanded the Lord Chan-see-Lore as he floated upwards and out of sight.

Hood looked into the void. She wasn’t sure she wanted to follow. She wasn’t sure she wanted to be here, but she certainly did not feel like she wanted to step off the edge of her ledge and plummet below.

The Great Wizard reappeared.

“And, of course, I suggest you take the stairs,” the sorcerer added, before floating aloft again.

Hood took the staircase upwards. One flight. Two flights. Three flights. And on the fourth flight she found herself on one of the square rooms without walls like she had seen earlier. This time it was all bookcases and a desk. With the little broom like creatures dashing hither and thither, dusting books, putting books back on the shelf, getting books from a shelf.

Her new boss was standing behind the desk. Hood double checked. His feet were on the ground this time. His jaw was still jutting.

“Over time, Acolyte Hood, I will teach you magic. You are not here to do the menial tasks, that is why we have the enchanted brooms. They are here to do the fetching and carrying,” as he was saying this, three brooms scuttled towards him, carrying an ornate cloak.

The Wizard took the cloak from the three animated brushes, who instantly became stiff and lifeless, falling to the floor with the percussive sound of wood hitting stone.

Lord Chan-see-Lore swirled the cloak above his head and let it settle around his shoulders.

“Now this morning I have to go out and be out all day. So you have one job to do, Acolyte Hood. One job and one job alone. You see, my little enchanted broomsticks keep everything running smoothly. But the enchantment which turns wood to willing servant is time limited. So they need an occasional reboot.”

With that the Wizard produced a wand from inside the cloak and circled it above his head.

Revival totalis”

All three brooms once more sprouted arms and their bristles parted down the middle to form legs. They immediately went about their previous task cleaning and sorting the library.

“Now, Acolyte Hood, the magic involved in the vivification of my little workers is amongst some of the most complicated magic imaginable, it is magic that you were learn over many years. But today you have to be in charge of making sure that my little helpers keep going….so….”

And with this the Great Wizard moved the wand in a tight figure of eight before his eyes and said the words “automatis enchanter”. The tip of the wand began to emit a low glow.

“What you must do, whilst I am gone is patrol each of my rooms and look for sleeping brooms. When you see one, touch the glowing tip of this wand on any part of them and it will revive the spell.”

Hood began to reach out her hand to take hold of the glowing wand.

“Not so fast,” said the Wizard as he drew the wand back towards himself, “for I have more to tell you. It is vitally important that you carry out this task solemnly. The brooms perform many tasks that not only keep this place working, but keeps it safe. You have to keep them working. But the magic in that wand is so powerful that you must treat it with great care. Touch only the brooms. Do not wave it around. Do you understand?”

Hood nodded.

The Wizard let go of the wand and it floated through the air until it hovered just in front of Hood.

“Take it,” instructed the Wizard.

Hood reached out with her left hand towards the glowing tip.

“NO CHILD!” boomed Lord Chan-see-Lore, “you must hold the other end, do not touch the active end.”

She switched hands and her fingers wrapped around the thin, magical reed. As soon as she touched it she could feel a slight warmth and a barely perceptible tremor passing through the wand.

“Do your task and do it conscientiously. The last apprentice was not conscientious,” as the Wizard was speaking he placed his hand inside his cloak and arced it above his head, sprinkling himself in some glittering dust, “and he turned into a….”

Before the last word was formed the Wizard vanished leaving a wide eyed Hood holding the wand like it was an unexploded bomb.

Suddenly the air crackled and the face of the Wizard appeared inside a spinning orb.

“….great disappointment. And I forgot to say. There are 131 rooms and 393 staircases. Get to work.”

The spinning orb began to fade, the features of the Wizard disappearing. Then it flickered once more into sharp focus.

“One final, final thing. Hold on tight.”

Hood instinctively gripped the wand hard as the orb vanished. And it was a good job she did as her arm was almost yanked clean off when she felt the Wand suddenly pull her to the edge of the room. Her feet scraped along the stone floor, trying to stop her progress to what seemed to be an inevitable death if she were to go over the edge. Just at the moment she was going to let go the shining tip of the wand pointed upwards and it were as if she was being raised by an invisible crane. Her feet left the floor and she soared upwards and out into the middle of the building with no floor or roof in sight.

The wand pulled her upwards and upwards, the air rushing past her face until whatever magical wings the wand had been given pulled her to the right and deposited her on the floor of the uppermost platform.

Hood sank to her knees, the terrifying ride over, the wand still rigidly clutched in her hand. She breathed deeply. Gasping for air. Slowly her heart returned to a mere thunderous beat.

When then prospect of death had rescinded to a recent and terrifying memory, Hood took a look at where she was. It appeared to be a bedroom with an unmade bed, complete with Harry Potter duvet set.

Next to her, on the floor, was a smallish broom. Remembering her task she touched the glowing end of the wand on the broom handle. It would be marvellous if a broom that came alive and lifted itself from a stone floor would then dust itself down. But it doesn’t. It just gets on with its work of making a bed.

Hood found two more inanimate brooms and set them on their way to tidying and cleaning. She then descended three sets of stairs, taking her three quarters of the way around the outer wall of the tall chamber when she came across another platform with a bathroom.

She spent a little time finding four brooms which went to work running the bath and cleaning the shower. She spent a bit more time trying to get a toothbrush and a toilet brush to grow arms before she realised that the wand spell only worked on those brushes that were already enchanted.

And so she went on. And on. Staircase after staircase. Room after room. Broom after broom. A room that housed owls and bats in cages. A room that was lined with scrolls and locked boxes. A room that was almost exactly like her mum’s kitchen.

She spent over an hour and, despite it being an hour of stairs, rooms and brooms, she realised she had only checked twelve rooms. She wasn’t very good at maths. But she was very much behind her target of 131 rooms.

Then she came across a room which had only a tall desk and matching stool. No brooms. No other furniture.

She had been working for over an hour. She probably deserved a little sit down. So she pulled herself up on to the seat of tall stool and found a thin book on the desk. It had a dark brown leather cover with golden letters across the front. The gold was so iridescent, it seemed to glow. In fact, as she looked more closely, it did glow. Five capital letters. “HMCTS“.

The glowing letters were so inviting. They called to her curiosity. She placed the wand on to the table and opened the cover.

Inside, handwritten in ornate writing was the expanded title

Hexes, Magic, Charms, Teleports and Spells”

and the author “Gauke Chan-see-Lore G.W.”

She turned the page. And then the next. Each one contained the title of a spell, a description of what it achieved, an instruction as to how the wand should be waved and the words to be uttered. Spells to make chairs walk, clocks talk. Spells to turn people into frogs and frogs into flowers. Spells to freeze the air and spells to make the rain fall.

One caught her eye. And her imagination. It was called “One Conversation”. And it was a spell to amalgamate things into one. So if you wanted a giant bee, you could cast the spell on the beehive and you would have a thousand bees transformed into one. If you wanted the tallest set of ladders, you just needed some smaller ladders.

This was good. The movement of the wand was described simply as a flick of the wrist. The instruction was to imagine, as you flicked the wand in the direction of the desired object, a bigger version of the object. And then the nearby objects would join together to form a bigger version. Perfect.

Why waste your time with four or five brooms in a room? Having to touch each one. When one big broom only needs one touch. And would be much easier to find. Surely one large broom per room could do the work of more, smaller brooms more efficiently? It would be able to reach further with longer arms. It would not have to do all that running around.

Repeating the words of the incantation, Hood closed the book and grabbed the wand. The Great Wizard would be pleased at this increased efficiency, Hood thought to herself as she made for the staircase.

The next room below was one of the rooms which were covered with shelves and trestle tables with weird and wonderful plants on it. She noticed that some of the plants were bathed in light from some unseen source. Others were being fed water through tubes and pipes that ran here and there.

This room had a lot of brooms. She could see four or five working, with one or two prone where they had fallen.

Hood picked up one of the inanimate brooms and put it on the table before her. She closed her eyes. She imagined the broom, but much bigger. She flicked her wrist and opened her eyes.

Nothing.

The incantation. She had forgotten to say the incantation.

She closed her eyes again. She pictured a single, big broom. She flicked her wrist. And as she did the words “digitalis reformum” left her mouth.

She opened her eyes. Still nothing. She sighed. It hadn’t worked. A good idea. But she wasn’t a magician, just the apprentice.

Remembering her task, she touched the tip of the wand to the broom which returned to the little worker like the others. It stood up on the table.

Before it could move though, one of the working brooms stopped tending to an exotically coloured cactus and ran across the same table and launched itself towards the recently revived broom. It was almost as if it was going to jump into its twig arms. But it didn’t. As they came into contact with each other, each seemed to absorb in the other and there was one broom in their place, twice the size of the original.

The next broom rushed on its brushes and suddenly it was three times the size. Then the next. And the next. The broom was now taller than Hood. It began to work. It barely had to take a step to move between tasks.

Oh, how Hood glowed with pride. On her first day, her first day, she had done magic. Which she had taught herself. She was no disappointment.

She moved towards the staircase, ready to move and improve the next room. This chamber would be a hub of continuous improvement. As her foot hovered on the top step one of the little brooms came running up the stairs, passed her and threw itself at its larger colleague.

Hood shrugged. What was that sound? That scrabbling, scratching sound. The sound that her mother’s handbrush made when she scrubbed the doorstep.

Another broom appeared coming up the stairs. Then another. And another. And then the staircase was alive with little brooms, all running as fast those bristled legs would carry them.

Hood turned back to the single broom. It was growing and growing. It was now too big for the gap between the tables. A whole trestle table was upturned. Pots smashed on the floor. Soil went everywhere. The tubes and the pipes split, water turning the soil to mud.

Hood flicked the wand. “Enough,” she said. “ENOUGH!” she repeated. “ENOUGH!!” she shouted. Nothing happened.

The broom must have been a hundred times the size now. She needed the book of spells. That must have the answer.

She moved to go back up the staircase, only to find that it was a sea of scurrying brooms. She turned back to the room to see that it was a total mess. Everything was destroyed. And the broom was so massive that it was having to stretch its legs across the span of the chamber to find somewhere to stand. And still brooms came to add to its size.

Hood looked over the edge. She could see other platforms. Other of the square rooms which moments earlier had been tended to by a squad of dedicated brooms. She could see one of the laboratory style rooms. Where there had previously been simmering liquids there now appeared to be miniature fireworks going off. And not such miniature fires breaking out.

She could see a bathroom. The brooms must have abandoned their work when midst bath cleaning. Now the water they had been running from the tap had already overflown from the bath and was cascading from the edge of the platform like a waterfall.

The worker broom now filled the void at the heart of the chamber. Hood could no longer see its arms or its brush. Just a section of what would have been the handle, thicker than any tree trunk which had grown naturally.

At least the staircase was now empty and Hood could return to the spell book. She took the steps two or three at a time to find that the desk and stool had been overturned in the commotion. The desk top resting over the edge of the precipice. And the spell book gone.

Tears started to come.

“What have I don? What have I done?” wailed the distraught apprentice.

Hood could hear little explosions reverberating around chamber. Flashes of curious light lit the gloom. There were noises, smells and colours that spoke of chaos.

“What is going on?” boomed a recently familiar voice.

Without warning the Wizard was with her. Not floating. Not a face in a spinning orb. The Wizard, in front of her.

“I…I….,” stammered Hood.

The Wizard seized the wand. He waved it in a complicated pattern whilst hopping on one leg. Words tumbled from is mouth. Incantations too fast for Hood to follow. Sparks flew from the tip of the wand and then tumbled throughout the chamber.

The noises stopped. The light returned to a constant. There was still a mixture of smells. But they no longer told of chaos.

And no massive broom any more. Just the right number of brooms, in the right number of roles.

Hood cowered. She waited to hear a crack of thunder that would take her to Defra.

But nothing. Nothing happened.

The Wizard helped her to her feet.

“You are here to learn. And there was your first lesson. Never meddle in something that you don’t understand. Never will you achieve efficiency by mistaking ease or speed for efficiency. This system has taken years for me to develop. It improves itself, but not by such blunt instruments. It is for you to learn and to work better with what we have, not destroy what we have to make it better.”

The Wizard sort of smiled.

“Now, go home. Come back tomorrow. If you think today was difficult, tomorrow we will embark upon your training in the most difficult of tasks. The spells of security. It is all about tasting hot potions and the search for the three sacred objects – umbrellas, phone chargers and paper clips. These three things are known as the Holy Grayling. And the tricky thing is the three items may be entirely different tomorrow…..”

THE END

With apologies to Goethe, Walt Disney and a little bit to JK Rowling

Autumn Days

As the first days of autumn come tumbling down and the optimism of summer is shaded by the gloom of an oncoming winter we are, yet again, responding to another consultation about the graduated fee scheme.

My first reaction was that I had been consulted previously. And my response was a robust, two fingered retort. I was instantly jaded that this process had to be the subject of a further consultation when it seemed to make more sense that we were simply provided with a new scheme, worked out with those that represent us.

At least the consultation process has, belatedly, allowed some further number crunching. And the proposed £15 million injection would actually be a £8 to 9 million injection if last year’s billing data was used. This has caused outrage. This has prompted some to suggest that the Bar have been totally had over.

I have to confess I don’t share that outrage. Not over that. The reality is that the case mix and the pages contained within those cases is only broadly predictable. In a year’s time we may do a retrospective comparison and find that the new money was in fact £17 million. Or £5 million. That is just the nature of the beast.

That is why I had this to say at the time of the last ballot:

“I make it crystal clear that what matters is not the figure of £12 million or 6.6% or 1%. It is what we can see we are getting paid for the case. And whether that is enough we cannot say until we see the new figures in the boxes. And if they are not right, I will be the first to say we reject them.”

So I wanted to see a consultation that showed lots of worked examples. Tables that showed what we got paid under a scheme that included PPE, what we get paid on the current scheme and what we will get paid with new money in the scheme. That is the only way the practitioner with a mortgage to pay, a family to feed and a life to lead can assess this material.

This consultation is not packaged in this way. And that concerns me. How are we to decide about these things in the abstract? It is the figures in the boxes which really matters, what we are going to get paid for the case. Until I am provided with this information then I am not going to respond positively to this consultation.

But this is not the source of outrage. But that is not to say I am not outraged.

When we were presented with this proposal we were told that things had to move quickly. We were told that the current scheme could not be delayed but that part of the reason to take this offer was to enable an October implementation. That was absolutely fundamental. We would take work remunerated inadequately for a short period of time as a gesture of goodwill, goodwill which we believed was being reciprocated. I have no doubt that this is what the Bar Leadership were being told.

And now there is no prospect of that happening. We are told that it is going to be December, at the earliest, before the new money comes into the scheme. My goodwill was a brown leaf dangling from a horse chestnut tree. It is now already compost. This is not acceptable. This delay undermines the whole process.

The message is simple. We start the ball rolling towards a resumption of “no returns”. The MoJ should be told that this is a consequence of yet another broken promise. And that our goodwill is going to have to be bought again. With less online consultations and more money.

We Are Right

Here we are again. No new work being undertaken. The prospect of days of action. No returns to return. Headlines and news stories. Unity and strength. Division and failure.

I support the action proposed by the CBA. I support it to the hilt. I have now been at the Bar for 25 years. Not once in that time has a single fee for work done ever been increased due to inflation. We have had different ways of being paid, different versions of different ways of being paid and then brutal cuts to fees that the Government had previously decided were appropriate remuneration.

That is 25 years of being undervalued and being treated with contempt.

Enough.

The action should not be about maintaining the status quo. We should not be wedded to being paid per page. It is becoming increasingly difficult to assess how many pages some forms of digital evidence represent. It is taking up a disproportionate amount of time to argue over page counts. As smartphones become ubiquitous and a domestic iron seems to have the processing speed of Mr Babbage, the way evidence is gathered has outstripped the notion of payment per page of paper.

Part of not maintaining the status quo is recognising that fees which have not been increased for inflation and have been subject to cuts so that they are now worth 40% less (in real terms) than when they were first deemed to be appropriate remuneration are not the basis for the figures to go into the boxes of any newly designed scheme.

The MoJ have said it themselves. They described the current AGFS as archaic as they rushed to paint the Bar as being protectionist purveyors of self-interest. I, for once, wholeheartedly agree. The scheme is very old. The level of remuneration we receive for a case is massively out of date. It is not kept up with inflation. And did I mention it has been cut?

So it is the right time to design a new scheme, with new architecture. If we tear down a building to build something modern which is fit for purpose in a low carbon, high tech digital age we do not use the same bricks, the same floor boards, the same single glazed window units and asbestos tiles. And so it is with the scheme which came into force on 1st April. The Bar did their bit by trying to design something modern, the MoJ have built something belonging in the last century.

This is why we are right to take this action and the government response that we helped design this scheme is not a reason why we cannot reject it.

I entirely understand that the Judiciary have to maintain an independence from the actions of the Executive. I also hope that the Judiciary realise that we do a heck of a lot more for a heck of a lot less money than would have been the case when many of them were in our shoes. As I said, I have been doing this job 25 years. When I was trained, when many of the senior Judiciary would have been junior barristers, I had to be concerned about learning how to draft advices on evidence and appeal. And that was about it for written work.

During this week, as well as doing a trial, I have drafted two skeleton arguments, one basis of plea, an adverse verdict report, a bad character response and edited an ABE interview. None of that was work the Bar did twenty years ago. Certainly not with the frequency we now endure. Each year that passes, each year that diminishes our fees by dint of inflation, sees an increase in the workload required by statute, practice direction and order of the Court.

All of that in a working week which follows a period when I have spent two Saturdays in the last eight weeks attending training courses designed to improve our system in relation to sex cases and vulnerable witnesses. I am not seeking to invoke sympathy. I do a worthwhile job and accept that I have to do it properly. But those who think they know what we do, how we do it and what we get paid for it may be thinking of a life at the Bar which is long gone.

Even if a Judge was appointed last year they should remember the steady creep of increased workloads matched by the steady reduction in fees. And I am not going to begin to add in some of the working conditions we face. As Judges they have to maintain their independence. As women and men who are assisted by capable advocates producing skeleton arguments and agreed facts, their hearts and minds should be with us. Their independence does not mean that they should not be able to see through the MoJ spin.

Any Judge who wants to understand more about our position need only ask. I, and many others, would only be too glad to tell them the unvarnished reality. The same offer can be extended to any politician. Or Tax Barrister.

We do not take this action lightly. There will be members of the Bar who are immediately put in financial peril by taking this action. Clients are being disadvantaged. Solicitors are having to deal with fall out of the action, continuing to do their best for clients in incredibly difficult circumstances. But we must take this action. And it has to succeed. If we fail, we do not fail ourselves, but we fail the future. We fail the future of a diverse judiciary. We fail future victims who will be cross-examined by a lower quality advocate. We fail future defendants who will be represented by de-motivated advocates who are the face of an under-valued and under-funded system.