Tag Archives: lord chancellor

Trussed Up

“We do not have a written constitution, but that is not to say the Government are not subject to constitutional law. A written constitution provides a degree of certainty but can also produce unintended consequences, such as the right for many Americans to carry assault weapons. As we do not have a written constitution we need the very best legal minds to rule on whether a Government has acted lawfully. Those legal minds are appointed to the judiciary. 

“When the recent litigation in connection to the EU Referendum and the decision to leave the EU began, the Government did not suggest that the matter being brought before the Court was something that was outside the jurisdiction of the Court. Nor did the Government suggest that any of the Judges who heard the matter should have been excluded from hearing the case due to their personal connections to any organisation. 

“The litigation was about the mechanism being utilized by the Government in order to invoke Article 50. It expressly and clearly did not involve the question as to whether we should or should not leave the Union. It was about whether the method that the Government sought to use was constitutional or unconstitutional. Whilst the Government do not agree that the ruling of the Court is correct and intend to appeal it, the Government do not view the decision of the Court as something which has in anyway subverted, negated or reversed the result of the Referendum. No matter what the result in the Supreme Court, the Government still intend to carry out the result of the Referendum. Brexit will still take place. 

“Essential to democracy and a free nation is the freedom of the Press. Where the Press disagrees with the ruling of a Court it is vital that the Press have the freedom to do so. But they also have a responsibility to report these matters in a way which assists the public’s understanding of the matter. Headlines that describe Judges as being “Enemies of the People” could not be further from the truth and are irresponsible. The fine, independent Judiciary that serve this nation are part of the machinery which protect each and every one of us. They protect our rights. They are part of the process which means that democracy and liberty continues to flourish in our nation.”

These are my words. Four paragraphs that took me ten minutes to write on a Sunday morning. I have done so to make the job of our Lord Chancellor really easy. She is completely free to borrow some, all or any of the words and sentiments expressed above. It is a really easy thing for her to do, which is unusual, because duties are often onerous to carry out. And this is her duty. Her duty to protect the rule of law. Her duty to inform the public (and many of her ill informed colleagues at Westminster) about the reality of the “Brexit” litigation. 

Her actual statement is breathtaking in its lack of comment on the furore that followed the judgment. The Lord Chancellor has displayed more passion in her promotion of the cheese industry than she manages to invoke in her defence of a vital aspect of our democratic society. 

There is only one judicial officeholder who should lose their job over the “Brexit” litigation. And that is one Mary Elizabeth Truss. 

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.  

The Return of the Dead Eyed

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

“I am ready, Norma, send him in.”

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

“Chris, Chris, come in, take a seat.”

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

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

He clears his throat.

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

The Prime Minister shifts in her seat.

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

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

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

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

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

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

Chris straightens himself up to signify a stiffened resolve.

“No. I want my job back….”

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

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

“Really?”

“Yes.”

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

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

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

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

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. 

The Reluctant Witness

“What a day I had the other day, I tell you. Had to go to court, I was the prosecution’s star witness, me. Not that I should get ahead of myself, mind.

“It was about that bit of a do I witnessed that time, you remember? Didn’t know where to look, me, so ended up looking right at it and giving a statement to the police and that.

“So I got this letter through saying I had to go and give evidence. The nice police man had told me I would do. But the letter, the letter only goes and tells me I had to go to t’other court. You know, the one three buses away. 

“The local one, the one in town, well they’ve only gone and shut it down. Do you know Joan? You do, you do know Joan….. Joan, with the funny looking eyebrows? Got a son who walks like he doesn’t know which leg has the limp? You know Joan. Her husband has the glass eye and the toupee? You must know Joan. No? Well she is a bit nondescript….

“Anyway, Joan used to be an usher at the court in town……yesssss, that Joan….anyway she used to be an usher, as I say, and she tells me that the court was closed down by the Government. Part of the cuts you know. She was made redundant. Not that any of the Judges and that lost their jobs, not according to Joan.

“So Joan tells me that the building is still empty. Costs a fortune to just stand there empty. The other court, the county court, that’s gone too. Going to be a restaurant, according to Joan. Which is rich, because the court I ended up going to don’t have a restaurant no more, not that I needed one as I had tea and biscuit, me, not when I first got there…..but I don’t want to get ahead of myself. 

“Three buses I ended up getting. The nice police man said I could get a cab but I don’t like being a burden, me. So three buses later and I am there. Well, if it is going to be the only court around they could have tidied it up a bit. Looked like the multi-storey round the back of the precinct on a bad day. Anyway, soon I found myself in the Witness Supporters room. 

“Oooh they were nice people, as I said before, made me a cup of tea and a plate of biscuits. Very nice. I mean not the nicest biscuits, not the biscuits I am used to. None in foil. More of the blue-and-white-striped-everyday-type of biscuit if you know what I mean? Of course you know what I mean, they are the sort of thing you have in. Must be part of the cuts too. The court cuts I mean. Not you. You’ve always bought them back before the credit crunch…..

“And I certainly had plenty of time to sample them, me. The nice police man came to see me and told me ours was one of three trials in the same court that day and we were at the back of the queue!

“You know me, don’t like to make a fuss. But I did say to the nice police man that it seemed a bit daft to close a whole court when they haven’t got room in this one for all their different cases. 

“The nice police man just shrugged and said something about it not as being as daft as having only him and two PCSOs on duty on a Saturday night at chucking out time but he started to mumble a bit so I couldn’t follow it all.

“So I had to wait. All blinking morning. You know, me, I don’t like to make a fuss, but I did have to ask the people in the Supporters when I was going to get going and they couldn’t really tell me. So I waited and had another custard cream….there were no chocolate biscuits in sight. 

“Then I was told it were going to be after dinner. And as I said, there was no canteen. And the Supporter people just had their kettle and their austerity biscuits so I had to go into Town to get myself a sandwich. They said they used to be able to bring me food from the canteen but that was closed down last year so there weren’t much they could do. 

“Got the fright of my life, me. It was only him wasn’t it. Sorry, getting a head of myself. I went to get myself a sandwich and were queuing up in’t shop when the bloke three ahead of me in queue turned round and looked right at me. And guess who it was? Only the blinking bloke I was there to give evidence against. Bold as brass. Not a care in the world. 

“So I rushed back to the nice Supporter people and they got the nice police man in and I had a HobNob, well I say I HobNoB, it was a version of a HobNob, not an authentic HobNob. And definitely not a chocolate HobNob.

“After I had had a plain HobNob-ish biscuit and a cup of tea, you know, for my nerves, the nice police man explained to me that we were going to be getting started at two o’clock but that it was alright and I was going to be Specially Measured to give evidence over TV. 

“Well, I don’t like to make a fuss, but how about that? Me, on TV? I were like Oprah. 

“He said it were all sorted and that way I didn’t have to see him, the defendant, and he wouldn’t be able to see me, which were fine by me. 

“So I waited. And waited. And had what could be loosely described as a Jammy Dodger. And then the nice police man came back to me and said the delay was the TV equipment weren’t working and they couldn’t get it to work. 

“One of the Supporter ladies harrumphed. That’s the only way to describe it. She harrumphed and said something about that being no surprise and that it never blinkin’ well worked.

“But the nice police man explained that I was now going to be giving evidence from behind a curtain, like the Wizard of Oz. Me, the Wizard of Oz!

“After a bit more waiting and one of those pink wafer things the nice police man came back and said it were all off. Apparently the defendant didn’t speak English. So they had booked an interpreter. And the interpreter were there and everything but it turned out he did speak English but didn’t speak the same language as the defendant!

“So I have got to go back again. In nine months time! Couldn’t believe it, me. Nine months. Apparently that’s like their waiting list because they haven’t got enough courtrooms. I’ll have forgotten all about it by then, me. 

“They said it might be sooner thought. Apparently the Government are thinking about hiring some rooms in that hotel. They are going to have some courts in there. You know the hotel? Nice place. Restaurant’s all a bit dark? All reds and purples? Big fancy oak paneling? You do know the one. It used to be a courthouse……..”

Difficult Days

There’s many a slip twixt cup and lip, so the old saying goes. Is this just a drop in the saucer or are we sitting here with hot, scalding tea in our lap?

There are some things that have not changed. Have not changed one iota. As I see it dual contracts are still a poor outcome for the Bar. The second cut, imposed on 1st July, is still a bad outcome for the Bar (and solicitors). The fight against the second cut is strategically an important step in bringing dual contracts to an end before they begin. These two judgements remain unaltered. 

It also remains the case that I believe the alternative proposed by those against the taking of direct action at this time, and in this cause, is insufficient, of itself, to ensure the future of the Bar. I see no argument yet made that persuades me regulation about referral fees will be enough to secure our future. We have seen it before with Carter – the greatest threat to our source of work is inadequate remuneration to those that provide us with work. Thereafter our remuneration for that work is of paramount importance. Securing appropriate remuneration is therefore key to our survival. It is also vital to the provision of proper and skilled representation in the police stations, in the lower courts and in the most serious of cases. 

None of that has changed. 

It is folly, however, to pretend that the issuing of the second protocol is not a significant event. If any proponent of action tries to brush it off as anything other they are plainly, palpably wrong. 

It was obvious, and I apologise if this needed pointing out in advance, that the possibility existed for a change in tactics by those corralling the solicitor profession. Did I expect this change at this time? No. 

Am I disappointed by this change? The honest answer is yes. I accept and acknowledge that I am something of an extremist in this regard. I believe that we should all, barrister and solicitor alike, walk out of court until such time as Legal Aid is put on a sustainable footing. I believe Sir Anthony Hooper and I have in common the belief that the Government will only listen when we withdraw our labour. And nothing amounts to a greater withdrawal than courtrooms sitting largely vacant. 

So I am disappointed. Recently I addressed solicitors in Manchester and urged them to stay out of the police stations and out of the courtrooms. Maximum disruption provided the maximum opportunity for success. 

Direct action can and does work. We saw that, to our benefit, with the previous policy of no returns and we saw the first sign of that with yesterday’s meeting. 

(As an aside, the furore over who was there and who was invited was a storm in the said teacup. All it served to highlight was a need for communication between the “leaders” with each other and between the associations and their members.)

So my next question is whether the change to the second protocol diminishes the prospect of success? There are two ways to look at this. The first is to say maximum disruption equals maximum prospect of success and therefore the answer would have to be “yes, it diminishes the chances”. On the other hand if maximum disruption is unsustainable then sustainable and significant  disruption becomes the next best scenario.

Again I make it clear, I believe the step change has come too soon. The timing is poor, for reasons I will develop in a moment. I am confident that the leadership of the CLSA and LCCSA have taken this step in the best interests of what they hope to achieve and as a result of developing circumstances. My sense of disappointment and dismay is not the same as a sense of betrayal. 

Is the second protocol capable of success? The answer is yes, if it is widely adopted. And there is a prospect that this will be more widely adopted than the first action. I would suggest it would be folly for any solicitor committed to the first protocol to reject this one out of hand. It may encourage some of the doubters to come on board. We will see.

Now for the big question. Should the Bar sustain a commitment to support this action? Nobody is going to fall off their chair when I answer “yes”. I go back to my aims as stated at the outset. I look at what I can do and not at circumstances that are beyond my control. Does the Bar adopting no returns and refusing new work strengthen the effect of direct action? Overwhelmingly, yes it does. 

I return now to the question of timing. It is a crying shame that the first protocol was not persisted with to overlap with the introduction of no returns. Now that would have been almost the perfect storm for the MoJ to weather. My sense of regret in that regard is deep. 

The more important question of timing is one of perception. The perception created is that the Bar is now being expected to shoulder the greatest burden. We, generally speaking, earn the lion’s share of our income in the Crown Court. That work is created by new work and returned work. The current direct action turns off both taps. If solicitors feel the economic pain of bills to pay and staff to face we have mortgages and families. 

Perception does create a skewed picture in this regard. Not undertaking new work in the Crown Court still will have a significant financial impact on solicitors. Their HCAs will be underused. Their clients will still be being turned away. Poaching will still be a risk. The system is such now that the Crown Court workload subsidises less profitable police station and Magistrates’ work. So the second protocol is not all jam for the solicitors. Far from it.

The perception is still very important. We may all be lawyers but we are also, mainly, humans too. Cold, hard logic is not always where decisions are made. Anyone dismissing this perception as nonsense does the owner of the perception a grave injustice. 

That being said, the implementation of the second protocol does shift the comparative burden. I am afraid the suggestion that those following the protocol should brief out Magistrates’ trials to the junior Bar does not ease the burden signicantly. It is a well meant gesture. Gestures do not pay the rent. 

So it is both the reality of a shifted burden and a perception of hardship falling only one way. 

So, what am I saying? I do not ignore the fact that the second protocol changes the situation. It is a development which could cause people to change their mind. No doubt in the coming days there will be meetings of solicitors that will allow them to reflect and make decisions. The Bar should do the same. 

And I’m afraid that means another ballot……please do not throw things. It is the only sensible way forward. People should not claim to speak for others, everyone should be allowed to speak for themselves. And that requires a ballot. 

The ballot should be organised quickly and should conclude in a short space of time. In the meantime I would still invite my colleagues to respect the decision made recently. That is why I will still not accept new work and will not accept a returned brief. 

If a new ballot is organised then I would respectfully suggest the Bar should ease the burden on itself. I would suggest a new protocol that the returns policy only applies to trials. That, in some way, reflects the shift made by the solicitors. 

I have no doubt that some will say I do not have all the answers. You would be wary of me if I claimed I did. These are not easy times. We are all trying to find solutions. Time once more for the Bar to consider and to speak. 

The Big Stick

Over the coming weeks officers from the CBA will sit down with the new Lord Chancellor and will attempt to persuade him to halt a series of damaging changes to the Criminal Justice System. A process of negotiation. 

And that is why members of the CBA need to vote “Yes” to further direct action. 

It is only right that the CBA should seek to persuade the Lord Chancellor (and the LCCSA and CLSA as well, should they get the opportunity) that the system cannot withstand further cuts and that the Two-Tier system should not be introduced. 

Is it ridiculously optimistic to hope that such negotiations would succeed? Just remember that 18 months ago we faced Price Competitive Tendering, tapering to daily rate and cuts to the graduated fee scheme. All of them have been seen off in one way or another. We can achieve positive outcomes. 

However there is still much that has to be defeated. And it can be defeated. A new Lord Chancellor may provide fertile ground upon which to sow our compelling arguments. 

And the threat of direct action is rain, fertiliser and sunshine. 

If the Bar vote “No” then we are Bob Crowe without the ability to bring the Tube system to a halt. We are the SNP without 56 seats out of 59. We do not demand attention. 

If the Bar vote “No” then we undermine the good work the CLSA and LCCSA have done by raising thousands of pounds to find the Judicial Review and by spending hundreds of hours highlighting the iniquity of the process and the changes. 

If the Bar vote “No” then we ignore the progress made by organisations such as the Justice Alliance in making the public take note of the value of those undertaking public funded work. 

By voting “Yes” it does not mean we will be donning donkey jackets and forming picket lines tomorrow. But by voting “No” it will mean our negotiators enter the fray with no threat. And who would take them seriously in that situation? 

This is a new situation. These are new threats. The CBA Executive would not have put this question to the Bar at this time unless they appreciated the tactical necessity of it. And there is no advantage in a “No”. 

Please vote. So few people voted in relation to the Deal. Now is the time give muscle to our voice by voting here.

A Brief Note for Briefs

Joseph Markus from Garden Court North in Manchester, attended the CLSA and LCCSA Rally about Dual Contracts. He kindly agreed to produce this briefing note. Clearly he wrote it for publication before the General Election. However, as the time for decisions about action draws nearer, it is important that as many people as possible understand what is afoot. Joe’s note is a pretty succinct explanation of what is planned and when it is coming into effect. Maybe the new Lord Chancellor may need to read it so he is totally up to speed. 

Many thanks to Joseph for producing this. 

LCCSA rally – dual contracts

Criminal legal aid services are provided under contract to the Legal Aid Agency. The current position is that an individual firm can apply for a Standard Crime Contract, which gives that firm the opportunity to take instructions from new clients as well as join a “duty rota” under which solicitors are posted to police stations (and in some cases magistrates’ courts) in order to provide legal advice and representation to those who require it. 

The Lord Chancellor intends to split criminal legal aid work into two contracts, the first for Own Client Work (“OCW”) and the second for Duty Provider Work (“DPW”). As now, the individual firm will need to apply to the Legal Aid Agency for a contract. Under the new system firms will only be able to take on a “duty” role if they hold a DPW contract and these will only be issued to a limited number of firms throughout a particular region. The geographical regions represent considerably larger areas than firms were previously required to service. These reforms are to be made in conjunction with a net fee reduction of 17.5 per cent. The first fee cut of 8.75 per cent was implemented on 20 March 2014; the second 8.75 per cent fee cut is due in July 2015.

The Lord Chancellor believes that limiting the number of contracts in this manner, and requiring providers to commit to the provision of legal advice and representation across the whole geographical area, will produce a more efficient system where criminal legal aid providers will be able to benefit from economies of scale and the ability to offset loss-making cases with those charged at higher rates. 

The effect of this reform is acknowledged to be widespread and irreversible market consolidation. That is the only way that firms will be able to successfully demonstrate an ability to service an entire region (as required). The estimates suggest that up to 1,000 firms will be forced to close as a consequence of two-tier contracting.

We know from the argument before and the judgment of the Court of Appeal in R (The Law Society & Ors) v the Lord Chancellor [2015] EWCA Civ 230 that the number of DPW contracts will be capped at 527 and the Legal Aid Agency will award contracts based on a tendering process. The tender will consist of firms applying to the Legal Aid Agency demonstrating a capability to provide duty rotations of solicitors across the designated region.

The tender process for the 527 new DPW contracts re-commenced on 27 March 2015 and will close at midday on 5 May 2015. The tendering process would be implemented such that the contracts would start on 11 January 2016.

The Bar can expect that two-tier contracting, together with the proposed fee cuts, will have an effect on the number of cases briefed out, especially to the junior criminal Bar. The need to slash costs and run economies of scale is likely to lead to an increase in the number of Higher Court Advocates operating from within firms. 

The Labour Party has committed to scrap two-tier contracting in the event that it is returned as the UK Government in May 2015. It has pledged to review the fee cut scheduled for July 2015.

And now, the bio and marketing blurb. View From the North would like to make it clear that other barristers are available…. 

“Joe is a civil practitioner with a growing judicial review practice covering his core areas of practice (immigration and housing) as well as other fields of law. He has developed particular experience of challenges focusing on Articles 6 and 8 ECHR relating to the Legal Aid Agency’s exceptional case funding regime, having been instructed in one of the lead challenges to that regime – successful both in the High Court and Court of Appeal – as well as a number of follow-up cases”

http://www.p.co.uk/gcn./barristers/markus

 

Promises, Promises. 

A Prime Minister, facing re-election, sits in a room with a phalanx of advisors. Let’s call him “Dave” for the purposes of this story. The phalanx of advisors are of uniform appearance. The men all have slick hair that towers above their foreheads like cliffs rising from the sea. The women all have fringes that hover in the general vicinity of their eyebrows. Dark, heavy, thick rimmed glasses adorn every face. Were they not in the presence of the Prime Minister one would imagine it was a convention of presenters of TV shows about the restoration of old buildings or about ordinary people getting together to sing a choral piece or two. 

The scene speaks of serious business. You can tell that because “Dave” has his jacket off, his shirt open at the neck and his sleeves rolled up. 

“Right team,” the Prime Ministers addresses the thronged mass of spectacles, “I am serious and genuine when I say we need a plan, a tough plan, a plan that works. This nation needs a plan that gets us back on our feet. And by “us”, I mean me. And by “back on our feet” I mean my feet back under the table at Number 10. Whatever it takes. Get me ahead in the polls and another five years for me to carry out my vision of me having another five years and then retiring.”

One of the strategists adjusts his glasses and clears his throat. He glances at his colleagues and takes the plunge. 

“The issue is one of credibility. Of a public perception of a man prepared to do anything in order to find himself Prime Minister. A man willing to make any promise to buy a vote and then prepared to ditch that promise to cut a deal that gets him the top job….” the strategist is stopped mid-sentence as the PM raises his hand. 

“Don’t think I am not with you on this, that we are not both on the same page, because we are. I agree with you. The Leader of the Opposition spills out promises like Russell Brand tosses out big words. They are there for effect, not for value. But we’ve done this. And it’s not working. We need to attack in some other way. And not just by hoping the English are still scared of the Scots,” the Prime Minister takes in the whole room as he speaks. Business. He means business. You can tell by the fact he has his serious face on. Lips tight, slightly down turned and sad, puppy eyes. 

The strategist clears his throat again.

“Not the opposition, Prime Minister. It’s you. The public don’t believe your promises. They think you’ll promise anything now and renege on it later.”

“Why would they think that?” asks a slightly wounded Dave. 

“Because it’s what you did last time,” a severe fringed female from the end of the table answers, her eyes shielded by frames the Safestyle man would be proud of knocking over whilst repeating “I say, you buy one, you get one free….”

“Well what we have here is a problem and problems require solutions. We need some blue sky thinking. Putting clear water between me and the others. But not too much distance because I want their supporters to like me as much as them. And for the same reasons as them. And not too blue. Purple may work better at this election,” the Prime Minister glances at his discarded tie as he speaks, regretting the decision to wear a red, yellow, purple and green striped one. How could that appeal to anyone?

The Prime Minster produces a pen and jots the words “broken promises” on a notepad before him. 

He holds it up and shows the room. 

“So there we have the problem, and what do we do when we have a problem?” he asks the young and the bespectacled around the table. 

“Have a judge led inquiry?” says one. 

“Promise a judge led inquiry then kick it into the long grass?” suggests another. 

“No, too much danger of me having to answer difficult questions. We only have judge led inquiries into things other people have done. So I can apologise on behalf of them and appear all statesmanlike, whilst making it clear it was someone else’s fault and the previous administration had the chance to blame someone else too, but didn’t. No, this is not a time for a judge led inquiry,” the PM doing  his best football-coach-encouraging-the-kids face whilst urging the room, “so come on, what else do we do when faced with a problem like me?”

“Pass a law about it?” suggests a pair of glasses and some hair wax.

“Brilliant. Loving it. We’ll pass a law,” Dave exclaims as he writes the word “LEGISLATE” on his pad. Underlining it twice and adding an exclamation mark with smiley face at the end of it. 

“What’s the law?” asks one, all white teeth and varifocals. 

“I will promise a law that I will break the law, that I have promised, if I break any of the promises that I make about things like tax,” Dave beams as he speaks. Obviously very pleased with himself, which is an expression that comes naturally to him. 

“I’m no lawyer…..” begins one of the hair and glass combinations.

“Great, I may be in the market for a new Lord Chancellor,” interrupts Dave. 

“No, no, Prime Minister. That wasn’t a job application. I was going to say ‘I’m no lawyer, but…’ And the but is…. Isn’t it wrong to pass a law that makes things unlawful retrospectively? So you can’t pass a law to make things illegal that you are doing now? And we can’t pass the law now because Parliament isn’t sitting.”

“Already ahead of you there,” Dave answers, clearly now in a “Zone”. Not “the Zone”. But definitely a zone. 

“We don’t pass a law that makes breaking the promise unlawful,” the PM explains, “we put the promise, the promise not to raise tax, into law.”

“Why don’t you just keep the promise?” asked the newest advisor in the room. 

Eyes smile from behind the glazing in the less naive amongst the strategists. 

“Because I can’t trust myself to keep the promise,” the Prime Minister answers, “the public know that, so I have to legislate against it. To protect the public from the high likelihood that otherwise I would break the promise. It is a trust issue. And here I am, speaking to my people and resoundingly telling them ‘You are not right to trust me and that’s why you should elect me, so I can legislate to bring an end to my fickle ways’. Its logic is utterly unanswerable.”

“Shall we get some people to draft the law?” asks a lady whose fringe and glasses seem in some way conjoined. 

“Certainly not,” responds Dave. “We aren’t going to be needing that.”

“But you just promised to introduce it!” the lady cannot help but exclaim as her eyebrows rise in incredulity, but not that anyone notices. They are well disguised by her hairline, glasses rim combination. 

“No, I am promising a law. A promise that is necessary because I cannot be trusted not to break the promises I make now. But breaking the promise about the law, that’s not going to be unlawful. There is no law about that. So, once I have my slippers under the bed at Number 10, I just break the promise I made about the law preventing me from breaking promises. And do you know what the good thing is?”

A room of blank expressions and empty eyes look back at the PM.

“The public will feel good about themselves because they will have been dead right. You can’t trust me. Now I am glad we have that sorted. West Ham are playing Villa and I am praying for a draw. I call it ‘Total Coalition Football’…..”

Co-efficiency of Inefficiency 

I have now been a barrister for twenty-two years. That is a frightening thing to see committed to writing. It is probably in my Top Three Worst Things To See In Writing alongside “Jaime is bald” and “you will never fulfill your dream of playing cricket for England”. The only comfort I have is that one of those things is not true. 

Another comfort is that, in my twenty-two years as a bald, non-Test playing lawyer, I have never had to attend a Saturday court. For the uninitiated, the Magistrates’ Court sits on a Saturday morning to deal with those locked up in the previous 24 hours or so. The time limits that apply to the post arrest detention of suspects means the legal system cannot have a full weekend off. 

So the courts sit, local justice applies and Bench, lawyers and staff give up their Saturdays to run a little corner of the justice system whilst the rest of us watch James Martin chat to Ken Hom. 

I am told there has been a recent efficiency drive. That efficiency drive could be otherwise stylised as a “cutback”. Cutback is another word for “austerity mad bit of madness”.  When I first wrote that sentence I finished it with the word “bollocks” but, on reflection, “madness” is more becoming of a bald, middle-aged, jurisprudential, right hand batsman, like myself. 

This austerity mad bit of bollocks, sorry, madness, means that each of the local courts no longer sit on a Saturday. Only one does. So last Saturday only Manchester sat, as opposed to Manchester and Bolton. So Bolton cases went to Manchester. 

As luck would have it, I have been instructed in a Bolton case that appeared in Manchester Saturday court last weekend and was sent to Bolton Crown Court for this forthcoming Monday. And so that is what I am booked to do on Monday, go to Bolton and do his prelim. 

Anyone that has ever tried to move a prelim to coincide with the availability of counsel will know that, once the Magistrates have sent the case, the date is set in stone. Particularly with a defendant in custody. It is something to do with the remand order. So if Manchester Mags send a case to Bolton Crown Court for this Monday, it happens this Monday. 

Or not. 

Because, at the moment, it ain’t happening Monday. Because the papers have not travelled the ten and a half miles from Manchester to Bolton in the week since the case appeared in the Mags. Because that means the case isn’t listed. And because the case is not listed, as my clerk discovered this evening, I am not working on Monday. 

This never happened when cases appeared in the court local to the Crown Court. But let us not allow efficiencies get in the way of efficiency. This is, yet again, an illustration of how cuts, in fact, slash. Yes money has been saved by not opening one building for half a day. But the efficient working of the system has been slashed by the Freddie Kruger-esque hand of an austerity mad Lord Chancellor. 

And I am not in court on Monday because of it. Nor can I guarantee that I will be available to do the prelim when finally the papers arrive at the Crown Court. And will I be able to put the case back to when I can? Oh no, because that would be inefficient. 

Oh well, at least there is still the outside chance I can play cricket for England.