Tag Archives: legal aid

Those Pesky Silks

Have you ever been sitting in the robing room and witnessed one of those exchanges between opponents where Prosecution counsel tells Defence counsel something that the police have done and Defence counsel flies off the handle? So you get lots of “outrageous!” exclamations interspersed with “abuse of process” laced with “prosecutorial misconduct” as Prosecution counsel tries to finish her sentence. Off flounces the Defence barrister in high dudgeon. Fast forward four days and you are still in the same chair in the robing room (probably waiting for the same floater to get on) and you realise the trial in which they were involved has reached the stage when the jury went out. Whatever the first, intemperate, reaction there was no foul play; the process cured any prejudice, should there have been any. 

We learn valuable lessons in life. I learn them from exchanges like that. I also learned one from the time of the infamous “Deal”. The lesson I learned there was that the mistake made by the CBA was not in striking the “Deal” but in doing so without a chance for the membership to have their say. Ultimately I was on the wrong side of that argument, but I was allowed my place in the process, albeit belatedly. 

So we now have the proposed consultation on a new payment scheme for advocacy in the Crown Court. And there have been a lot of instant reactions to it. I am yet to get to grips with the detail of the scheme, certainly in terms of the numbers in the boxes. The important thing is that this is a consultation document, not a final scheme. 

When I have mentioned this on Twitter some have responded by saying “History shows us how the MoJ do not listen to consultation responses…” I would respectfully disagree. History shows us that they may well be prepared to listen to responses on the detail of things. Back in the days of the Transforming Legal Aid consultations the “Next Steps” sequel was the consultation in which the proposals had been refined to take into account some of the concerns raised. I appreciate that we were not listened to across the board, but remember this consultation is not about a headline grabbing policy like BVT. This is all about the detail of a scheme. And this is your opportunity to have your say about the detail.

What you say about the detail is entirely a matter for you. I imagine, however, that a response which just says “This is a pay increase for the Silks, arranged by the Silks, at the expense of the Juniors and we are getting sold down the river like we did in the Deal” will not achieve much in the way of change. And it lacks a certain degree of rational thought. 

I was dead against the Deal. But it is history now. Quite ancient history. And has about as much to do with this proposed scheme as…let’s say, the solicitors revised protocols on dealing with new cases at the new Legal Aid rates. 

The reason why I say it lacks a degree of rational thought is because the Working Group that has been (as the name suggests) working on this scheme has not been some Bond like committee of super villains exclusively made up of Silks meeting in the CBA’s secret volcano bunker. It has comprised a cross section of the Bar, including Juniors of a wide range of call and this scheme is, in part, a product of their work. Their honest and freely given endeavour. Please do not fall into the trap of lamenting the avaricious Silks who have the ear of the Government. In doing that you are insulting many a fellow Junior that was worked on this scheme. And you are falling into the very worst of the Daily Mail style traps. 

Disagree about the detail. Do not rely upon a lazy “s’not fair” attack.

And that is very much the point. We all need to not rely upon the fact that the Circuit Leaders back it, that the CBA back it, that the YBC back it or that we take as read the good intentions of the Working Group. We all need to look at the detail. To inform ourselves of what is being proposed with, perhaps, less concern about how it has been proposed. 

So we need information. I note that, once again, Martin Chalkley has been crunching the numbers on behalf of the Bar Council. Such numbers will show why it is that this scheme is cost neutral. I anticipate that it may provide great detail about the impact it will have upon “baskets” of typical grad fees. We need that sort of information and I encourage the Bar Council and the CBA to release such detail as they have and as soon as they can. We cannot have too much information when it comes to our livelihoods and the future of remuneration. 

The detail is required because it takes more that just working out how much one case would pay under the old scheme versus the new scheme. It requires people knowing the impact it will have on them,  not on their best paying case but on every case. 

And the CBA, The Circuit Leaders and the Bar Council cannot rely upon “And so we pronounce it good, therefore it is good” to convince the masses in the style of religious leaders of yore. Where there is detailed concern, we need them to respond, to help us understand. I see that someone tweeted me last night with the figures that a Silk may now receive £37K for a 3 week murder where previously they received £17K. If that is right, I would like to know the thinking behind it. What the leadership must not do is retreat to the secret volcano bunker and adopt a siege mentality. If the rank and file are concerned it is no surprise. Allay their fears, do not dismiss them. 

I can see flaws in the scheme, as I perceive them. I will take time to think them through. For example I can see a problem with the definition of a cracked trial being reliant on the defence CoR. I anticipate that I will blog further on the detail (not that I suggest anyone should care, it just helps me stay sane). 

In looking at the detail though I will do so with one thought in my mind. There is no new money. My ire is not going to be directed at those who are trying to make this pot more equitably divided, even if I believe they have failed in that task. My ire will always be directed at those who choose to underfund the system. 


To the Manor Born

I have not written this blog. This comes from Ian West from the frozen North. I have known Ian for many years due to our shared “interest” in remuneration issues. He has always been committed to achieving fair and appropriate remuneration. 

The views expressed in this piece are Ian’s views. His Twitter name is at the end of this blog so feel free to direct any comments his way! As they are not my views I should point out that I do not share the same view as Ian over some of the issues he raises. He has, however, asked me to host this blog and I am only too happy to do so. Remuneration and the mechanisms of remuneration are important issues. As ever there is a need for wide debate. 


The new Advocates’ Graduated Fee Scheme: To the Manor Born?
This week, the Ministry of Justice (MoJ) published its consultation paper ‘Reforming the Advocates Graduated Fee Scheme’. The scheme has been being worked on by representatives of the Bar Council, the CBA, and (until they walked out in protest) the Law Society with officials from the MoJ for many months. Here is the link to the consultation paper: https://consult.justice.gov.uk/digital-communications/reforming-the-advocates-graduated-fee-scheme/ If you are a criminal barrister or solicitor advocate you need to read it and respond. What follows are my personal, and, of necessity, preliminary views.

The structure of the scheme, in summary, is to largely do away with the proxies of pages of prosecution evidence (PPE) and prosecution witnesses (PW) as components of the graduated fee, and instead to attempt to reflect the work needed to be done on a case by replacing the current 11 offence codes, A – K, with 16 new categories, 1 (homicide) to 15 (regulatory offences) plus a ‘residual’ category 16 (‘standard cases’). Categories 1 – 15 would have within them, sub-categories to reflect different levels of complexity/seriousness within the offence type. Thus, there would be 42 separate levels of ‘basic fee’. In addition, there would be separate fees for up to six ancilliary hearings – PTPH, sentence, etc – and the second day of trial would be paid, unlike at present. So far so good. The architecture will, I am sure, get high marks from all advocates. The scheme is said to be ‘cost neutral’ from a baseline of 2014-15 spend, so the objective is said to be to make advocates’ pay ‘fairer’. There is no mechanism for review and upgrading of fees, but that flaw is not the main object of this piece.
The devil is in the detail – the ‘numbers in the boxes’. Here, I regret to say, the scheme fails the vast majority of criminal advocates – in fact, all but that 10% of them who are QCs. The silks will get a pay rise – a substantial one – whilst juniors at all levels will struggle to maintain parity, and most will suffer (yet another) pay cut. The MoJ has done some worked examples in Annex 3 which show this, but you will probably have done some from your own practice. Two questions, therefore. How, and Why?
The ‘How’ is simple – see the ‘indicative fee table’ in Annex 2. Every fee for a QC – basic and refresher – is twice that of a junior doing the same case, whether that junior is doing the case him or herself, or is being led by the QC – so a 100% ‘silk uplift’. This is, for QCs, a marked improvement on the tables in the current AGFS, where the silk uplift is either 75% or 80%, depending on the disposal – trial/plea/crack. And, of course, the higher basic and refresher fees are paid in the ‘top’ categories, such as 1 (homicide) and 2 (terrorism) i.e. the cases that QCs generally do. So, for silks, ‘double-bubble’!
Why? Juniors may well ask. The cynical ones, including the 90% of juniors who will never be QCs, may answer: because the scheme was, by and large, negotiated on behalf of the bar by… wait for it, QCs. So what have the bar’s leaders said about the scheme? Andrew Langdon, Bar Chair (and criminal silk) said: “These proposals… go a considerable way towards restoring career progression…” The Circuit Leaders, and former leaders, issued a statement saying that the scheme “..promotes quality in advocacy and encourages talented young people to practice in criminal law.” 
This sounds to some juniors (and the Law Society, which has attacked the proposals) like special pleading – “We QCs need to be paid more, and you less, in order to encourage you to become QCs yourselves.” But are young barristers going to be attracted into criminal work which for most will be a diet of ‘standard cases’ by the prospect of ‘jam tomorrow’ – the chance that they might one day reach the Elysian fields of silk? One suspects not. So is it all bad news for juniors? No, some cases will pay better, and the separate fee for the second day of trials, and ancillary hearings is a welcome step. 
But the question remains why should the scheme, which presents the opportunity to redistribute the legal aid ‘pot’ fairly to all criminal advocates, be skewed towards silks? Simple economics would say that it does not. Is there a shortage of silks? No – the relative scarcity of silk certificates means that there are more silks than there is work for some of them. Is there a shortage of applicants for silk? No – the competition is fierce. The fact is, that on a supply and demand analysis – which a conservative government might find compelling – there is absolutely no justification for a silk uplift of anywhere near the 100% proposed. If it were reduced to 25%, or even nil, and the higher pay would simply attach to the seriousness of the case, and not the category of advocate, there would still be more criminal silks than we need, and good and busy juniors would still apply for silk to do the better work, and for the lifestyle change. And, of course, it would allow the money to be spread more equitably for everyone.
So my verdict on the scheme is that the scheme is, like the curate’s egg, good in parts. But it is, as the fees tables presently stand, seriously unfair to juniors, i.e. the vast majority of the bar, and unduly, and unnecessarily, favourable to QCs. I have no doubt that my views, thus expressed, will attract the accusation that I am being divisive. But who is doing the division – the ones who designed the scheme and feathered their own nests, or the ones who complain about it? 
Ian West, Fountain Chambers, Middlesbrough.

Follow me on Twitter: @ianswest.

One Wheel on My Waggon

“Tell me why, I don’t like Mondays?” implored Bob Geldof and his rats.

The unlikely answer is because he and the rats were barristers from Boomtown Chambers. They had come to hate Mondays because they knew that Mondays were the embodiment of the problems that beset the criminal justice system.

I know how they feel. Recent Mondays have not been kind to me. Not that how my Mondays pan out really matters in the grand scheme of things. The problem is that recent Mondays have been rather unkind to victims, witnesses and defendants. I would go so far as to say they have been cruel to (and I am now going to use a phrase so beloved by our politicians) ordinary, decent people. 

Let us make like Marty McFly and do a little time travel. Hop aboard the Delorean that is my diary for the last month. The first Monday of the month had me scheduled to prosecute a drug trial. This is a little humblebrag, this was not a couple of street deals, this was a delivery of wholesale amounts of drugs. There was a hiccup in the week before the trial when it turned out my opponent was over running in his current trial and we all agreed that the trial could go back a day to the Tuesday. The Court demanded that the case be listed before a Judge for this application so along we all trooped for the Judge and the Listing Officer to confer and announce that the Court could accommodate the case if it was pushed back by a day. 

So the calendar ticked round to Monday. 5pm on Monday to be precise. That was when the call came – case pulled from the list for lack of court time. 

The call was so late that the CPS were not able to react to it. All the officers were at court the following day, including one officer that had travelled from London. So I had quite an audience to watch me mention the case and refix the trial for March 2017. 

“Hush your moaning,” I hear you say, “this is one of life’s little blows. Roll with the punches.”

The following Monday found me boarding a train at an hour which usually finds me in bed. I rattled through some spectacular English scenery. I rolled into a different city, grateful for the fact that my bag contained only iPads and laptops rather than all the files usually needed for a three week fraud. Later in the day I reversed my journey having popped into court for a grand total of about five minutes. Our Judge was part heard with his trial from the previous week for the whole of the Monday. And, so it turned out, quite a bit of the Tuesday too. 

This one is, I admit, a personal moan. This does not impact on ordinary, decent people just odd, indecent people like me. As every barrister will know no jury sworn on the Monday meant no significant fee paid for the day. In fact my fee did not cover my train fare. 

As it happened that trial went short for other reasons. Fear not, dear reader, I had a trial in my diary for the next Monday so the mortgage was still going to be paid. Can you see what is coming? My trial on the Monday did not happen. Listing pulled it on the Friday evening. Which was a bit of a sickener for me, but probably even worse for the witness who was due to travel to court in the North West from the South East coast. 

It would, would it not, be incredible bad luck for a fourth Monday on the trot to go wrong? So this Monday was to see me once again in a far flung court to conduct a trial. I was going to be accompanied by two other members of my chambers on a bit of a chambers outing to co-defend. And I suppose that, at least, made the job of the Listing Officer a tad easier on the Friday evening, as he only had one set of chambers to call and say that the trial had been put back by a day. 

So yesterday saw three members of my chambers, all self-employed people, sitting idle. Being idle allowed the three of us plenty of time to share our thoughts via text and email when our clerk was told that the case was not going to be heard on Tuesday either and we had now been pushed back to the Wednesday. So the three of us are at a loose end today too, like a barristerial version of Last of the Summer Wine. 

This is not just a case of lunaediesophobia. Cases get pulled every day of the week. And it isn’t just me. The third Monday in this little trot of bad luck saw four trials pulled in the same court centre. So what is causing this?

On one of the rare recent days when I actually went to court and did a case I found myself in a room in the court building. In that room was one of those trolley things that people use to transport great piles of files and boxes into the building. The trolley had a sign attached to it that read “Do Not Use. Flat Tyre.” Underneath the prohibition on use was the fact that the fault had been reported to the necessary authorities……in October 2015. And there it was, tyre still flat and not fit for its intended use. 

But perfect as a metaphor for the criminal justice system. We are running on a flat tyre. 

Due to my recent experiences of cases being delayed, pulled or evaporating I have been keeping a keener eye on the lists of recent times. And I have noticed a plethora of lists that look like this….

….or this……


This is replicated across the nation. I went through the lists for court centres that I know. On Monday mornings you will see Court Centres that have eight courtrooms are only using three of them. Buildings that could accommodate ten Judges have five sitting. Large cities will have five courtrooms occupied and nine sitting vacant, whilst having three floating trials. 

This is not a case for closing these buildings. The fact is that we have more than enough work to fill them and perhaps reduce the delay from offence to trial that can often be two years. The answer lies not in allowing defendants to plead to speeding cases online, that is not going to allow the sex case to be heard any earlier. It is not the answer to allow vulnerable victims to be cross-examined early in the proceedings, that is just going to clog up more courtrooms. 

The answer is more Judges. The problem lies in the fact that Courts suffer a lack of full time Judges and are not allowed to fill the gaps by utilising Recorders (part time Judges) with sufficient advanced planning. Judges have told me in open court that the reason why cases are not being reached is because, as is shown in the list for “Court 1” above, a Recorder has not been allocated. What is happening is that an email will wing its way around potential Recorders with only a few days of notice. So often the email will be seeking Recorders to sit a whole week, or two weeks or even three weeks, with less than a week’s notice. It is no surprise when there are no takers. One would expect Recorders to be amongst the busier members of the professions. And their diaries only collapse at the last minute, when their trial is pulled because no one else has answered the call to sit at such short notice. 

I would hazard a guess that every senior criminal judge knows that the delays in the CJS are nothing short of a scandal. I would like to think that they know they have the accommodation capacity to deal with more cases. I am confident that they know with the deployment of more part time Judges more trials could start every single Monday of every single month. Instead of banging the drum for pleading guilty when we do not know the nature of the evidence, the senior judiciary should be looking at the evidence of the lists and banging the drum for more resources that would allow better forward planning. When one cannot get a case into the courtroom, it is nothing short of embarrassing to see the championing of a mobile video link van. 

Like the trolley with the flat tyre that was reported nearly a year ago, nothing will happen unless someone takes responsibility for change. That is not something I can do, it is not something the CBA can do. It is something only achievable by those who can use their independence from humdrum politics to make the case that the system is failing society. It takes the people at the very top to be honest about the problems we face and to be realistic about the solutions. It takes advocacy on behalf of a system that is central to our society, advocacy which is conducted without fear or favour. Advocacy that is conducted by those who are entrusted with the privilege of ensuring that justice is done within our courtrooms.  

A Game With No Rules

Twenty-three years ago I commenced pupillage. It is a good job that this is being written on an iPad so the solitary tear that has just dropped from my eye has not smudged the ink. Twenty-three years ago! Where has that time gone?

I have less hair on my head and more hair on my face (more of that later). I have moved from being pupil to pupil master to three pupils, all of whom it has been a privilege and a pleasure to supervise. And yet I can recall the fear and trepidation of pupillage like it was yesterday. 

Pupillage is the strangest experience. It is part interview, part trial by endurance and part learning experience. You want to appear like you know everything so you impress and yet you do not want to come across as a know-it-all. And, of course, the reality is that you are at the bottom of an incredibly steep learning curve. You feel like Eddie the Eagle when he first stood at the bottom of the 70 metre ski jump. You are entering some weird game where everybody else knows the rules except you and, just to make things more complicated, virtually every barrister you will encounter will have their own variations on those rules. 

My beard is the embodiment of that miasma of unwritten conventions that you may transgress. I was struggling to obtain pupillage. A barrister I spoke to suggested I shaved my beard off. The very next, clean shaven, pupillage interview secured my first six. Coincidence? Well I grew my beard back when I started pupillage and was asked in the first week “Did you have that beard when the PTC interviewed you?” by a senior Silk in chambers. Off came the beard again for my pupil master to say “Glad to see the facial hair has gone, Gavin” (whilst clearly forming a view on the goatee, my pupil master always struggled with my name). 

Was this pognophobia limited to my first chambers? I went four years into tenancy (in the chambers where I did my second six with a pupil master who remembered my name and knows more about advocacy than I ever will) sporting a freshly shaved chin every single day. Then I had to have some time off to have an operation and back came the beard (I reassure you that it was no longer a goatee). The reaction of a Silk in chambers on my first day back at work was to point to my chin and utter the words “Hopefully that is just temporary…”

Enough of my beard, the point is that there are many such views on what is wrong and what is right for the putative barrister, beyond the rules of ethics they teach you on the course. And because pupillage has that element of the year long interview you are walking through a minefield wearing over sized boots. With your feet tied together. Blindfolded. 

So what advice to give the new pupil? You cannot go wrong by having a good look around you at those members of chambers who have been through this process before. I am not suggesting that you have to suppress yourself, to pretend to be someone else but you will notice that there is a certain way the majority of barristers dress, for example. No matter how free, fearless and independent you are going to be once you are a member of chambers, those electric blue flares with an embroidered flower down one of the thighs is not appropriate wear for your first day in chambers. You are not expected to be a Stepford barrister but the fact of the matter is that courtrooms are serious, somber places where the attention should be on the eloquence of your advocacy, not the flamboyance of your pocket square. 

Smart, dark suits and neatly ironed shirts and blouses are the order of the day. Clothes may not maketh the woman, but they can certainly show you have made the transition from student to professional. 

I was advised by someone the year ahead of me to say every third thing that came into my head, that pupils were like Victorian children; to be seen and not heard. That advice was along the right lines. As the pupil you have to remember that the members of chambers you go to court with are involved in cases that may well be stressful and may have nuances to them of which you are unaware. The golden rule is do not “contribute” your view unless asked to, particularly in conference, in the presence of the opponent or solicitor. By all means have a discussion with your pupil master or the person you are with that day about your approach to the case and its issues, but do it at an appropriate time. You may well feel that you have something to contribute but remember that you are there to observe and learn. There may be a very good reason why something is not being mentioned to the opponent so do not be the one to blurt it out. 

That even includes if you are dead certain the member of chambers you are with has got something absolutely wrong. Firstly, they may not have done, for reasons that you are not aware. Secondly, they are not going to thank you if they are wrong and you expose this error to all and sundry. If you think they are getting something wrong, then find a subtle way or moment to tell them. You may be able to slip them a note or begin a conversation when you are not being overheard with “I am probably being stupid, but I have had a look in Archbold and I would have said that statute isn’t in force yet. Where am I going wrong?”

Diligence and hard work will always be noted. And that includes the appearance of diligence and hard work. If your pupil master tells you they expect you in chambers at 9am there is no harm in being at your desk at 830. And the same can be said at home time. Do not be the pupil who is never seen in chambers after 430pm. This is not just a question of being chained to your desk to show you can cope with the sort of hours that City Lawyers wear as a badge of pride. These are the times, outside of court hours, when you are likely to encounter members of chambers. This is, therefore, your chance to get to know them and them to get to know you. Add to that is the fact that a career at the Bar is going to involve plenty of preparation outside of “normal” office hours. Now is a good time to get used to it. 

Pupillage is, more than anything else, your apprenticeship. There is so much to learn, so much to absorb. Take every opportunity to gain experience. And do not be afraid to ask if you do not know how something is done. Or why someone did something in a particular way. 

Try to avoid, if you can, simply asking for the answer. It is so easy to approach members of chambers to ask “how do I….” or “what is the law on….” Show people you are thinking about things and not just expecting to be spoon fed. Try saying “I think the answer is…..what is your view?” Or “I have looked it up, can I just run through what I have found? Is there anything else?” People should be generous with their time as long as they do not think this is a substitute to you doing your own work and thinking. 

Always meet deadlines set to you for work. If there is a specific problem, if you are struggling to find the answer or found yourself hospitalised when you dropped Archbold on your toe, then ask for an extension. That is what you will do when you are on your feet. Do not hand in work late, and then come up with your excuses. 

Check your written work. Then check it again. Then go away and read something else. Then come back to your piece of work and check it again. Then print it out. And check again. 

There will come the point in time when something goes wrong. Do not think that because someone gives you a piece of work back with red ink all over and corrections galore then this is the end of the world. Your work is not going to be perfect. It is going to need correcting. You are going to make plenty of errors. The important thing is to learn from them, to not make the same mistake time and time again. 

Things can go more spectacularly wrong, of course. There are a rare number of pupillages so that do encounter real problems. Make sure you work with Chambers so, should a problem be identified during a review of your pupillage, you know what is expected of you and what you need to be doing. Set a plan and work out the problem. The Bar Council run a dedicated and confidential advice service for pupils. If you encounter difficulties then use this service. 

One final word of advice. Enjoy your pupillage and enjoy getting to know people that you will hopefully spend the rest of your career working with. Do remember that you want to be remembered as the pupil who excelled at everything they did, not the pupil who photocopied their nether regions in the clerks’ room after the Christmas drinks party….

I hope someone out there will find this advice useful. Pupillage is full of highs and lows. At the start you will be desperate to get out there and begin your career. As your first six draws near to a close you will wish you could go back to the start as you will feel like you know nothing. Trust me, you know enough and you have the ability that has got you this far. More senior members of the profession will always be prepared to help. 

Twenty-three years have passed in the blink of an eye. I may moan about the job, about the MoJ, about fees and about just about everything else. But it is still great to see the enthusiasm of those new to the job. Good luck!

Wassssup?!?

This is an intercepted (but entirely imagined) Whatsapp conversation. 

CeeGee: Bro!

The GoveMeister: sup

CeeGee: You seen my main man Davey C? Been tryin to bell him up but he ain’t taking my call, bro.

The GoveMeister: chill man. he been busy with that Euro crew. brexit be a wicked ting yano?

CeeGee: Is dat wicked bad or like wicked good man?

The GoveMeister: 😜

CeeGee: But it like he proper dissin’ me. It be like my time as his Lord Chancellor ain’t mean nuthin!

The GoveMeister: dunno watcha chattin about

CeeGee: All this prison reform BS. Proper showin me up, bro. Like I didn’t no shit when I was there doin the tough guy pose and dat “no nonsense” face. 

The GoveMeister: LMAO

The user CeeGee invited the user DC_PM to join the conversation

The user DC_PM declined the invitation to join the conversation. 

CeeGee: It ain’t funny, bro. U ain’t been any better.

The GoveMeister: man, it just business. i am just taking care of business. it’s all cool.

CeeGee: It wouldn’t be so cool if it was you he was sellin’ out bro.

The GoveMeister: i feel you. yano dat education ting don’t end so well for me. yo just gotta roll with it man. take the hits. be on the down low when it all come on top. you know what I be sayin?

CeeGee: Not really….couldn’t you just have kept one of my things real. Like the book ting. Or dat big house for the yute offenders? Or maybe that tings that totally fkd the solicitors. They were all cool.

The GoveMeister: sorry dude. they were not cool.

CeeGee: I aint gettin no respeck innit?

TheGoveMeister: word

CeeGee: Bro, I be like all losin face in the Westminster hood. Everyone is sayin I ain’t know nothin. Everyone is be like “CeeGee, he ain’t got a clue”

The GoveMeister: you aint. lol 😂

CeeGee: Bro, I am the Leader and don’t you go forgetting dat. Don’t make me come round there and smack you up.

The GoveMeister: you ain’t got the moves to worry me. i am the LC now. u know that bill of rights ting you started?

CeeGee: Bro, you know I love my bill of rights. It was pure CeeGee, dat. 

The GoveMeister: well it’s goin the same way as the saudi prison deal and the court charge. consider yourself well and truly out of the crew

CeeGee: Waaaaaaaaaaaaaaaaaaah 😢😥😪😭😰😿

The GoveMeister: talk to the hand ✋

CeeGee: I got a wicked idea to stop the press knowin when the Feds wanna talk to one of us.

The GoveMeister: 💩

CeeGee: U ain’t got no right to be like dat

The GoveMeister: now be a good boi and stop ur bitchin

CeeGee: Can you talk to DC? Put in a word.

…………

CeeGee: U there?

………….

CeeGee: Bro??

You are blocked by the user The GoveMeister. 

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. 

Relate

I am at risk of stealing a joke from Patrick Kielty. Actually, I may as well confess, I am about to just steal the joke. It is from Kielty’s famously (and some may say “only”) funny routine where he imagines a world where nations communicate on Facebook

So here goes, if barristers and solicitors were to describe the nature of the relationship in Facebook terms it would be “complicated”. And the MoJ would definitely “like” that. 

In fact there are many ways that the relationship would be better described as “open”. Barristers and Solicitors are allowed to see brief other people. When it comes to the Bar, we are even allowed to go into bat for both sides. Blimey, it is complicated. 

No matter what the nature of the relationship it would be fair to say that when news of “the deal” broke a while ago we were very much “on a break”. And during the break the Bar “did a Ross” and started to see the MoJ. And ever since then the relationship has been tempestuous. To say the least. 

I have been an interested observer in Bar politics, and therefore the politics of the wider legal landscape, since before Carter came along. In that time I have often pondered the unusual relationship that exists between barrister and solicitor. There is such an interesting dynamic at work. In my view it divides into three areas. Understanding the balance of power in those three areas may help in establishing a more unified approach. 

The most common way that the relationship is expressed is the commercial relationship between instructing solicitor and the instructed advocate. Without doubt the nature of this relationship is one where the solicitor holds most of the power. The solicitor is, in such cases, the holder of the Representation Order. They have the security provided by the Regulations which will bind the client to them in the majority of circumstances. The Bar have none of that security. The instructed barrister can be sacked the day before the trial and have no recourse whatsoever and little prospect of receiving a fee that equates to the work undertaken. 

And with that insecurity comes the power that the solicitors holds. Even in a “one-off” instruction the barrister is at risk of a withdrawal of instructions. And of course the barrister should be hoping for a long term relationship with that the solicitor with lots of work flowing their way. It is one of the factors, along with professionalism and pride, that spurs you on to impress and to continue to impress. And it is the ability to terminate that relationship that the solicitor should use to make sure their clients get absolutely top notch service from the barrister, the clerks and the chambers. 

In recent times there has been a regulatory relationship. The parent LSB has the SRA and BSB as the siblings with the slightly awkward relationship. This is a relationship where it is more difficult to gauge the balance of power. It is impossible to fathom what motivates regulators, other than the desire to regulate and regulate regularly. I suspect that the SRA often have the upper hand because of the cost of regulation. The costs of the LSB are divided between the BSB and the SRA in fractions that relate to the comparable numbers of professionals regulated ie the SRA pay more because they regulate more individuals and entities. And it is preserving this division of costs where the BSB will often tread on eggshells – they never want their big brother to push for more money from them. 

Now we have the nature of the relationship in the visceral world of politicians and civil servants. This is where I suggest the Bar currently edge it. I suspect that we have, in fact, wielded more “power” in this arena than our colleagues than we even realised. It is not just the influence that was garnered as a result of “the deal” and subsequent engagement. It is not influence gained by the Bar being more “establishment”. 

It is slightly perverse that solicitors undertake the lion’s share of criminal work within the system and yet the Bar wields the greatest power to cause embarrassment in the Crown Court. It is the focus of interest in cases that appear in the Crown Court which means the Bar are “feared” more than solicitors. It also stems from the fact that the Bar prosecute a significant proportion of the cases in the Crown Court and are, to that extent, of greater perceived value to the Government. 

As I say, it is all incredibly complicated. 

Understanding the nature of the relationship is important in improving the relationship. Politically the relationship is at quite a low ebb at the moment. I have said this before in a previous blog but that relationship is not going to be improved if solicitors continue to find offence in everything the Bar do. It is not going to improve if every time the Bar try to promote their strengths they are accused of denigrating solicitors. 

The flip side to that is that the leadership of the Bar need to carefully consider the nature of their public pronouncements. As advocates we should be able to make sure our words do not cause offence or leave room for offence to be taken. That is particularly important when being “pro-Bar” to make sure it is not either the product of, or an unintended manifestation of, an anti-solicitor rhetoric. 

It is important to remember that the various representative bodies represent their members. It would be ridiculous for the Criminal Bar Association to ignore the concerns of its members. Everything such associations do should be consistent and not contrary to the public interest. But it should be done on behalf of their members. To recognise that would be a huge step forward to effectively working together. 

We are not yet a unified profession. For a number of reasons there are still some competing interests. These are capable of being recognised and coped with in a mature and mutually beneficial relationship. A complicated, but not impossible, relationship. 

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. 

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. 

Love Me Tender

Dear Contestant,

We have some exciting news about your tender!

You will recall we promised you your choice of an alarm clock, a voucher for a leading high street store or an “Own Client Contract” just for applying. Unfortunately we have used all our stocks of alarm clocks and vouchers to compensate the Saudi Government for pulling out of our joint venture, “Flog It”, so we are pleased to enclose our promise to you that you can carry on representing your own customers (given to you for nothing, real value is nothing minus 8%).

However, the excitement does not end there. You and your firm have been selected by a rigorous process of quality assurance to win one of our shiny new contracts. Your contract has been selected in Cambridge/Cheshire/Cumbria (please delete as is appropriate to your location, the temp dealing with the “details” is not very good at geography).*

Welcome to the exclusive “Two Tier” club. Your membership of this exclusive group means that you are eligible for huge discounts off the current rates.** In addition to these discounts we are delighted to offer you a holiday.*** We are also pleased to exclusively provide you with the assurance of instability in the coming months as we play “In House Roulette”. Will you or won’t you be able to double your money?

What a fantastic prize. And yet there is more!

We are offering you the chance to enter our fun new game, The Pro Bono Bonus. The concept is simple. You Represent 1 Punter, Do One For Free. Everyone loves a R1PDOFF offer!

Never mind the quality, feel the value. 

But the excitement goes on. Accept this once in a five year contract cycle offer and we guarantee to put some of your competitors out of business. These are things that usually only the Mafia can promise. And like the Mafia, this is one offer you can’t refuse. 

How can we top this? Well, if you reply today then we are instructed to exclusively offer you an additional contract in either Devon or the Isle of Wight for free.**** You’d be mad not to!

So reply now and start consulting your staff on redundancies, you lucky, lucky bastards. 

Regards,

Mikey “Lord Lotto” Gove

PS Look out for our latest game – Essex CJS.  Every entry is a guaranteed winner.

*This is entirely a game of chance, no skill required. 

**These discounts are only available off the rates you currently charge. 

***The reference to a holiday is a holiday period before further reductions kick in. 

****Successful applicants will be expected to pay their own additional expenses such as travel and accommodation.