Tag Archives: lord chancellor

Pass the Placard

I am currently on a train on the way to London. Today I am joining a demo in the Old Palace Yard Westminster. I imagine that many people who will be there have not been on a demo since their student days. I cannot even claim that. Poll tax, apartheid, student loans – all were demonstrated against but the student VFTN did not go along and wave a placard. Today I am going to.

So what has motivated my middle aged bones to rattle off to London and spend too much time stood in the cold than is good for a man of my age? Well, something that is older than me. Something that turns 800 this year – the Magna Carta.

In fact it is not the Magna Carta itself that is causing me to join the massed throngs. If it was the Magna Carta itself then it would be a bit of a sham as the anniversary is not until June (which at least might stand a chance of being a little warmer). It is because this Government has the gall to use the ideals promoted by the Magna Carta to drum up business from abroad and cloak it all in a celebration of the venerable document.

For those who deal with football analogies, this is a bit like a Manchester United fan singing “You’ll Never Walk Alone” in an effort to impress someone they fancy. It is just wrong. It cheapens everyone.

This is rank hypocrisy from the Government. They are promoting a justice system by values and achievements that they are set to destroy. Do not take my word for it when I suggest this. Read these words:

“In short, we see the Government’s proposals for competitive tendering for services or a 17.5% reduction as likely to result in (a) a marked deterioration in the provision of services in criminal cases leading inevitably to injustice in a significant number of cases, and as a result (b) harm to the reputation of this country’s justice system, which is likely to do consequential harm to other areas in which legal services are supplied, to the benefit of lawyers in this country and the Treasury.”

That comes from the Chancery Barr Association’s response to the Legal Aid consultation. The 17.5% cuts are still there. The damage is obvious to all those who can see. It is not Justice that is blind, but the Ministry of Justice.

And that was not a one off statement by the ChBA. Tim Fancourt QC addressed the One Bar, One Voice event in these terms:

“The legal services industry makes a huge contribution to the Exchequer. When it comes to invisible exports to international consumers, the Government is very approving: I quote:

“We recognise the importance of the UK’s legal services sector and the excellent reputation its legal services providers have at home and abroad. The sector contributed £20.9 bn to the UK economy in 2011, £4 bn of this derived from exports. It is important that we consolidate the UK’s international standing in what is becoming an increasingly competitive international field” (Chris Grayling, in a foreword to a MoJ /UKTI paper on UK Legal Services on the International Stage.)

And of course the Lord Chancellor is about to trumpet all these virtues to the visiting world at the Global Law Summit in 2015.

But is the Government not missing something here?

Surely it must recognise that it is taking an unacceptable risk with the reputation of the system in which it finds such virtue?”

So there we have the lawyers who benefit from the reputation for justice carved out from the Magna Carta onwards warning the Lord Chancellor of the damage he is doing. A sector that contributes £20.9 bn to the UK economy on the back of a reputation forged on the back of the work of Legal Aid lawyers at a cost of £2 bn per year. As the Americans would say – you do the maths.

Tim Fancourt QC addresses a plenary session at the Global Law Summit this afternoon, let’s hope he takes the opportunity to remind the Lord Chancellor of the views expressed above. In fact it is neither a hope nor an opportunity. It is an expectation and a duty.

An expectation and a duty that has been missed by some already. The Lord Chief Justice opened the Summit in the morning session. He addressed the assembled lawyers, politicians and business people thus:

“Access to justice

We are also all familiar now with the second principle ‐ that all should have fair and effective access to justice. That was not always the case. In parts of the world it is still not the case. And in other parts of the world it remains an aspiration that many are working to realise. One thing that I am sure we can all take from Magna Carta is that our commitment to this ideal is something, that no matter how familiar we are with it, is one that we must constantly reassert, just as Magna Carta was reissued and its demands for access to justice were reasserted over the centuries.

We will therefore examine how access to justice is best achieved – the way government can best provide for a court system that is open, transparent and effective in vindicating and, as importantly, enforcing rights and responsibilities, how a state guarantees a judiciary that will act independently of governmental or commercial pressure, how citizens can be provided with better access to courts through the proper use of modern technology, and the way in which a vibrant, diverse and independent legal profession can best make a cost effective contribution to the delivery of justice.”

Now I ask you this – how can anyone deal with this area, with “access to justice”, and not mention Legal Aid? That is not apolitical. It is appalling. If the judiciary are to remain away from politics, why address a nakedly political event? If the Lord Chief Justice will not challenge the restrictions to justice brought about by this Lord Chancellor what are the rest of us to do?

The answer is – haul ourselves down to London and protest. Now can someone hand me a placard please?

Easy Read Guide to Being Lord Chancellor

This is an easy read guide for those who do not know very much about the law and how the law works. Such people are some times called “Graylings”.

What is the High Court?

The High Court is somewhere a bunch of people who no one voted for make decisions based on what Foreigners (or Europeans) think is best.

Someone who is accused of making a bad decision and goes to court is often called a Lord Chancellor.

An example of a bad decision is when the Lord Chancellor hides a load of info that he uses to make his bad decision.

This process is sometimes called Judicial Review but people in power often call it a right pain in the arse.

Before you go to court.

Make sure you spend a lot of time getting on the telly or the radio to tell everyone it is not your fault.

It is a very good idea to blame Foreigners.

If you cannot blame Foreigners, blame Immigrants.

Immigrants are also Foreigners but people are more scared of Immigrants and are more likely to vote UKIP unless you blame them for everything.

If it is really hard to blame Foreigners or Immigrants you can try to blame Left Wing Liberals.

At the same time as blaming someone else, make sure a friend from your College at Oxbridge writes something about a prisoner getting Legal Aid because his mattress is too hard.

Don’t worry if that’s not true.

When you get to the court

Make sure you pay lawyers a lot of money to do exactly what you say.

Pay them a lot of money to make sure you get a really good lawyer. Pay them a lot more than you pay Legal Aid lawyers.

At the same time make sure the other side cannot pay a lawyer at all.

This is called equality of arms.

You have two arms. They are allowed two arms.

Just make sure you have more lawyers.

Sometimes they will have lawyers who are doing the case pro bono. Pro bono means they are doing it for free.

If a lawyer does a case pro bono make sure someone who works for you sends your friend from Oxbridge the amount the lawyer received from Legal Aid last year.

Make sure this number is big by adding in the VAT.

If there is a hearing, who is who?

The person sitting at the front facing you is the Judge.

If the Judge finds you made a bad decision he is out of touch.

If the Judge finds you did not make a bad decision then give them the next Judge led inquiry.

The person who says you made a bad decision is a pressure group. Their lawyer is called a fat cat.

What happens at the hearing?

Keep repeating that the decision you made is policy and it is all about politics. Judges are allergic to politics.

Get some civil servants to give some made up facts and numbers. Call this evidence.

When the other side say what is really happening because of your decision, call this anecdotal.

If anecdotal does not work, also say the words self serving.

What happens if you lose?

A Judge may think what you did was as unreasonable as a small town just outside of Birmingham.

If you hear the word “Wednesbury” make sure it was someone else’s decision.

Then deny that the decision had ever been made.

Then make some minor changes.

Do what you always planned to do in any event.

What happens if you keep losing?

Complain about it a lot.

Change the rules to make it much more difficult for people to complain about your decisions.

Keep on repeating how what you are doing makes the rule of law stronger.

Ignore all the lawyers who say that stopping the weak complaining about the powerful is wrong.

Use the words fat cat, liberals and self interest again. And again.

Then throw a big expensive party, or Global Law Summit, to celebrate how strong you have made the rule of law.

Then laugh all they way on to the Board of various global businesses.

Fight Club

In March 2013 George Osborne’s introduction to his Budget speech included these words: “This is a Budget for those who aspire to own their own home; who aspire to get their first job; or start their own business; a Budget for those who want to save for their retirement and provide for their children. It is a Budget for our Aspiration Nation.”

He went on to refer to the positive steps the Government would take in order to support and encourage small to medium sized businesses through their own procurement procedures: “To help small firms, we’ll increase by fivefold the value of government procurement budgets spent through the Small Business Research Initiative.”

Yesterday the Lord Chancellor announced Government policy that will put hundreds of small to medium businesses out of business by the way the Government have chosen to procure legal services. Yesterday he signed the warrant of execution for scores of businesses that provide a service to the community at the very heart of the High Street.

There will be 527 duty contracts. There are currently something in the region of 1,600 criminal legal aid providers. There are some who will survive. There are those who hope they can prosper from this scheme. And there are those who will be “consolidated” out of existence.

So why should you care?

Well that depends who you are.

Senior Solicitors: Clearly there are going to be losers in all this. People put out of work. Your colleagues and friends.

Yes some of you will survive. Yes some of you will still eek out an existence by coming up with a business model that works.

But ask yourself this – did you go to university, law school and spend hours working your way through the profession to undertake criminal law as purely a business? If you did then you must be pretty stupid. Sorry if that seems offensive but there are much better businesses for you to profit from.

You are an equity partner in your firm because you care about the delivery of justice to both the accused and the victim. Reignite that ideal now.

The cuts and consolidation impact upon the access to justice in a way unprecedented since the creation of the Legal Aid scheme.

I appreciate it is difficult in that there are your staff to consider but you are the leaders of your profession. Explain to your staff why action has to be taken. Then take it.

Junior Solicitors: This is your future. Your career. Seek out your senior partner. Tell them of your ambitions. Tell them of your ideals. Ask them to fight on.

The Criminal Bar: I really hope that it does not need explaining to barristers that a section of your supplier base ceasing to exist is bad news for you as a business. And I am afraid it is no answer to say there will still be the same number of cases.

If you are unlucky, and there will be some who are this unlucky, either the majority of your solicitors or the majority of your chambers’ solicitors will go out of business or stop/reduce their criminal work.

If they go out of business and the individuals are fortunate enough to find work elsewhere or if the firm is subsumed by some greater entity there is no guarantee that they will continue to instruct you. In fact the larger firms with greater volumes of work and greater control of blocks of cases coming up from the magistrates is the perfect scenario for the employment of in-house advocates.

Individuals and possibly whole chambers are going to struggle. So polish your CV. You may soon need to find alternative employment too.

Even if you retain a sufficient client base to carry on you need to appreciate the political reality. The solicitors are also facing the implementation of the second round of cuts. We have seen the reports that suggest minimal profit margins for firms in the new Legal Aid landscape.

So the next time a civil servant has to suggest to a minister where a few savings can be made what do you think the answer will be? Advocacy fees.

Other Barristers: The financial struggles of your colleagues leads to higher chambers’ expenses. The disappearance of some firms could impact upon your access to work.

And then there is the fact that this is plain wrong.

Campaigners for Justice: Nearly every concern that PCT brought now resurfaces. Choice is reduced in a shrinking market place. Quality is reduced as bulk work and cheap prices take the place of specialisation and excellence.

The General Public: I would like to think that the people of this nation care about the quality of justice. This is not just about guilty men complaining they do not have access to a Playstation as is their Human Right. This is about a justice system in decline, miscarriages of justice, a lowering of standards across the board. It is setting up massive costs for the future, both financial and social.

And it does have an impact upon you. The firm in the High Street? The firm that helped when your neighbour caused a nuisance? The firm that did your Grannies’ will? The firm that did your conveyancing? By this time next year they could have gone out of business. You might have another charity shop.

So what can we do? The simple answer is to fight it. The how we fight is for discussion. The two observations I will make is that it does not have to be every criminal practitioner who fights. Just a significant number. And I know it is difficult to see a rival still work whilst you take direct action. I know it is because I have witnessed it. But the alternative is worse. So unity is not the same as unanimity. Organisation and information is the key.

The other observation is that whatever has happened in the past must be consigned to the past. It matters not who let who down last time round. This is now. Action is needed. The last thing a Government seeking re-election in May needs is things going seriously wrong at the moment.

I will say that it is unrealistic to expect the Bar to take the only direct action. Solicitors will have to organise and take steps themselves. I, for one, would join with them like a shot because this is important. Really important.

The Westhoughton Question

Deep in the bowels of the Ministry of Justice this conversation has not happened, it is completely imagined….

A young civil servant bursts into The Lord Chancellor’s office. He clearly has news….

Civil Servant Minister, I have news. (see I told you he had news) The Northern Circuit has just voted in favour of independence.

Lord Chancellor What are you talking about?

CS The lawyers. Up North. They have voted to go independent. They want to break away from the MoJ, the LAA, the lot.

LC I’m sorry?

CS They reckon they have had enough of decisions being taken in Westminster and the Temple that impact upon them. They began the “Bugger Off” Campaign.

LC What makes them so special? Anyone would have thought that the Trade Union movement and Socialism had its roots up there.

CS Err, it kind of does. They have always been a bit, well, awkward. And the lawyers are no different. What with their “No To QASA” meetings and badges.

LC We’ll judicially review it….

CS I’m not sure we can.

LC Why not? I always have my decisions overturned by it.

CS I think you need grounds. Like lack of consultation. And it looks like they consulted a lot before they made their mind up. They consulted, they revealed all the evidence and they voted. Fairly.

LC That sounds a bit….. amateurish. Much safer to make your mind up first.

CS Well they have consulted and they have decided they want to go it alone.

LC How do they think they can survive without us? What have they contributed to the legal scene?

CS Leveson.

LC What’s that?

CS Lord Justice Leveson

LC What about him?

CS He came from up that way. The North.

LC Well okay, other than Leveson, President of the Queen’s Bench Division and famed for the press thingy, other than him, what have the North ever contributed to the legal scene?

CS Mr Justice Edis. He prosecuted the phone hacking case. You’ve just appointed him to the High Court Bench.

LC Okay, other than Lord Leveson and this Edis fella who prosecuted one big-ish case, what has the North contributed to the legal wealth of this country?

CSMr Justice Henriques, retired now. He prosecuted Shipman and was the Judge in some pretty big trials.

LC Okay. Stop. I get it. I’ll just say they seem like a pretty sexist lot up there with all there Mr Justice this and their Lord Justice that…

CS Well they also produced Dame Janet Smith who did the Shipman Enquiry and then, if you think about it, there was Rose Heilbron who was one of the first two women to be appointed King’s Counsel in England, the first woman to lead in a murder case, the first woman Recorder, the first woman judge to sit at the Old Bailey and was also the second woman ever to be appointed a High Court judge….

LC Other than a few Judges what have the Northerners ever done for us?

CS Viaducts.

LC Sorry?

CS Viaducts. They have good viaducts up there. I suppose you could say that was actually the Romans…..

LC You’re not helping now. I’ll have to send Jeremy to sort them out. He is from up that way.

CS Jeremy?

LC You know, the new A-G. He’s from the North.

CS He is from the Midlands, isn’t he? I am not sure that counts as the North to Northerners…

LC I’ll send Buckland then. He has an accent.

CS He’s Welsh….

LC Is he? But he’s in Parliament here. With me. In England.

CS And?

LC And he’s foreign.

CS I am not sure that is going to placate them.

LC Right, make them all Judges.

CS What?!?

LC (The Lord Chancellor enunciates his words slowly and deliberately) Offer… to… make… them… Judges. It usually works to quell trouble.

CS There is over a thousand of them. A thousand members of the “Bugger Off” Campaign. And you want to make them all Judges?

LC Well maybe Judges of the First Tribunal Tier or Parking Adjudicator. Anything. With a pension. They love a pension.

CS Well it turns out that it isn’t just the North….

LC What else is there?

CS Well this morning, outside Newcastle Crown Court, there was a horde of barristers, with woad on their faces and one was giving this speech, “dying in your bed many years from now,” he was shouting at the collected lawyers, “would you be willing to trade all the briefs from this day for one chance to stand here as middle aged hacks and tell our enemies that they may take our uncontested divorces but they will never take our red corners!”.

LC That bloody Ian West….

CS But what are we going to do?

LC Make them a lot of promises. Of stuff that we can’t do until after the election. Then either we will have lost the election and it will be someone else’s problem or I’ll be in the Home Office and it’ll be someone else’s problem.

CS Yes Lord Chancellor.

LC The last thing I want to see is an independent Bar….

Proud to Be

Dear Chris,

you probably do not recall meeting me. I am just one of a number of angry lawyers that you have met with over the last year or so. When we met in the Town Hall in Altrincham, I was very angry and you were very wrong. Not much has changed.

At that time you were still peddling PCT and restrictions on client choice. You were pressing ahead with swingeing cuts to advocacy fees. You were proud of your residency test. So I suppose one or two things have changed. You have been comprehensively and repeatedly proved wrong. You have abandoned or delayed some of your more disastrous proposals. The courts have given you a bloody nose on others.

Have you changed? Not one bit.

At that meeting you innocently told the room of criminal barristers and solicitors, “I have been accused of saying that barristers are fat cats, I have never said barristers are fat cats.” And yet your department still trotted out dodgy statistics designed to steer other people to call us fat cats.

More recently you introduced the second reading of the lamentable ‘SARAH’ Bill which you said would tackle “a culture of ambulance-chasing that all too often is about generating opportunities to earn fees, rather than doing the right thing”. Now I am not exactly sure what SARAH is trying to achieve but you cannot help yourself by introducing it with a pop at lawyers.

So Chris, why is it that you hate lawyers so much? Why is it that you are more than happy for all sorts to earn vast amounts out of the justice system, as long as it is not the lawyers? Capita? G4S? Serco? They can have millions and millions of pounds of public money. Lawyers? They deserve crushing.

If any judge, academic, lawyer or lawyers’ representative joins you in the celebrations of the Magna Carta then the rest of the legal community should turn their back on them. No representative of the Bar Council should join you in what is no more than a culture of oligarch chasing that all too often is about generating fees.

The Magna Carta itself may not be all that it is cracked up to be. However it has come to represent all that we should be proud of in our legal system. The nebulous rule of law. The right of the individual and the state to be equal in the eyes of the law. The right to fairness and proper processes. The sort of things that lawyers help preserve every single day.

I am neither fat cat or ambulance chasing dog. I am a lawyer who is proud of what I do. A job that involves helping society to do the right thing.

Despite your best efforts, that will not change.



Rights and Wrongs

The night of the long knives has arrived. The Prime Minister sits alone in his office. Before the night is over the walls will be coated with the blood of many a politician. The BBC correspondent, Nick Robinson, has just Tweeted that the Lord Chancellor is on his way to see the PM. That meeting never actually happened. This is the imagined conversation if the meeting had taken place.

LC: Prime Minister, before you make any decisions that I come to regret can I just say that it’s not all my fault. I mean we never expected that the barristers could get organised but it’s all sorted now. There was a problem, now problem gone. And we still have the solicitors on the ropes. And the prisons, well we embarked upon a benchmarking process and we set the benchmark too low for the number of officers compared to our high benchmark of the number of celebrities, I mean, offenders we lock up…..

The PM raises his hand to silence the gabbling Minister

PM: I haven’t asked you here to sack you. I need some advice about legal stuff.

LC: The law?!? Me? Are you sure….

PM: Well not the law as such.

LC: Because if you want law, we should get Dominic in.

PM: That might prove a little……awkward. What I need to know from you is what law stuff we need to make it look like we are dealing with in order to win the election outright. I can’t face another five years of Nick Clegg and all that “ooooh I’ve got a conscience” nonsense.

LC: I have always said that public confidence in the Legal Aid system has been undermined.

PM: Do we still have a Legal Aid system?

LC: Sort of. Not much of a one, but it is still there.

PM: So how do we know that the public are bothered about the Legal Aid system?

LC: Because I just said so.

PM: I know you did. But how do you know?

LC: I don’t. Not really. But it always sounded good. So I say it a lot. It works for everything. You should try it; ‘the public’s confidence has been undermined in prison sentences so I am going to triple them’ or ‘public confidence has been undermined in the probation service so I am going to sell it’. It works in any situation.

PM: But I need something that the public are really bothered about.

LC: You could try human rights and the supremacy of the European court?

PM: Why do the public worry about the supremacy of the European court?

LC: Because we keep telling them there is a problem. Every time we get caught out…. I mean every time those foreign Judges try to tell us how to run our country by applying a bunch of alien standards that we drafted in the first place, we just explain that they are wrong and pop a Minister on TV to whine about us being steamrollered by Brussels.

PM: Do we know that is something the public actually worry about?

LC: Oh yes.

PM: Can I just check how we know this?

LC: Because UKIP tell us the public are worried about it. And if UKIP raise it, we have to address it. It is all about capturing the heartland of grassroots in the public imagination.

PM: And is there a problem?

LC: Not really no, but it gives us a good excuse when we lose. Which we don’t do very often. In fact the European courts interfere with the actions of our Government only a fraction of the time that they do with the rest of the signatories to the Convention. We are one of the good guys. But I am not going to sit idly by and have some Eurocrat tell me how bent my banana can be!

PM: So we have told the public there is a real problem about sovereignty when there isn’t really and UKIP now tell us that the public are really concerned about this when they really probably aren’t and the upshot of all this is your banana is too straight, have I got that right?

LC: Yes. Kind of. The bit about the banana is made up but the rest is spot on.

PM: Right, well we need to do something about this wretched court then. Something tough. We need to tell them we won’t stand for this any more. Like I told them about that Juncker fellow. That made ’em listen.

LC: Just one problem. Dominic has advised us in the past that not only is it very difficult for us to pull out of the European court, he also advises us it would be a bad idea.

PM: Just who does he think he is?

LC: Strictly speaking he is the senior adviser to the Government on all things legal.

PM: No, you mean he was the senior adviser to the Government on all things legal. As of about ten minutes before you walked in the door I got all “Lord Sugar” on him and fired “me learned friend”.

LC: I have a cunning plan.

PM: Ho ho, I loved that show….

LC: Show? What show?

PM: You were just doing a bit of Baldrick there weren’t you?

LC: No. I have no idea what you are on about. What I was saying was I have a plan more cunning than a box of frogs with a combined IQ of over 200 and a set of Encyclopaedia Britannica.

PM: Are you sure you are not quoting Baldrick?

LC: NO! This is a chance to really show we are all in it together. I have been saying all along that we will provide an adequate lawyer of basic competence when the public pays.

PM: And….

LC: We can show that you are no different. At £161,000 we have one of the most expensive Attorney-Generals in the world. And after this reshuffle we will show we are still the most generous with whom we hand it out to. So as long as the new Attorney-General is an adequate lawyer there may be some benefits to you.

PM: Such as?

LC: Well when it comes to those tricky bits of legal advice your adequate Attorney-General may be a bit more inclined to give you the right sort of advice rather than the advice to do the right thing.

PM: I get it. So when we hand out the Lord Chancellor’s gig to you I was giving it to an attack dog….

LC: …..Thank you Prime Minister….

PM: …..and in order to get tough over Europe I now need a lapdog…..

LC: Yes, Prime Minister.

The Rise of the PDS

Rumours, confirmed and unconfirmed, abound that more Silks have joined the PDS. Twitter is redolent with tales of “approaches” being made to senior practitioners in recent weeks and calls for action to be taken.

No doubt a regular reader of my blogs would guess that I would be amongst the vanguard of those clamouring for a return to direct action. My opposition to the deal is well documented, as are my calls for it to be unpicked.

But I am not. For a whole host of reasons. Before I explain why, let me say again that I think the deal was bad for the Bar, I believe it has denuded us of our most valuable weapon and has not sufficiently secured the future for the whole of the criminal justice system. However I am not about to use the expansion of the PDS as a flag of convenience.

The deal was accepted by vote. It can, and should, only be undone by similar democratic process. No matter how fervent your belief that the decision is wrong, the membership of the CBA spoke. It would be for the membership to speak again before a change of direction.

Expansion of the PDS does not constitute the Government reneging on the deal that was struck. Whilst people involved may have understood that the background to the negotiations include maintaining the status quo as far as the PDS was concerned, the terms of the deal as published made no reference to that assurance. I am afraid, as lawyers, we must recognise that the deal is not predicated on understandings but on the clear terms recorded and published by both parties.

Furthermore the Government’s response is one that is utterly predictable, was foreshadowed in the business plan as published by the LAA and is consistent with the Lord Chancellor’s statutory duty. He has to provide resources to allow cases like Operation Cotton to proceed. It matters not (to him and his duty) whether those resources are top drawer. It matters not that he may have a cheaper option. An expansion of the PDS is amongst a range of responses to get these cases up and running. I do not think we can legitimately take direct action because we object to the establishment of some form of competition.

Yes we can point out it is illogical due to cost. Yes we can argue against it. But it is difficult to make out a case for legitimate protest. I would dearly love the Minister to solve the problem by introducing appropriate rates and was willing to fight to achieve that end but that is different to objecting to the choice he makes about who does the cases. I was satisfied that competition, training and ethics at the Bar meant my colleagues who have joined the PDS were good enough when at the independent Bar. I am not going to be hypocritical enough to cut up rough about their instruction now.

An expansion of the PDS is detrimental to the future of the independent Bar. It means that the prospects of succeeding in direct action is reduced in the future. There will exist a cadre of advocates able to step into those cases deemed as most embarrassing to the Government. One can see from the experience of the CPS that the only prospect of making in-house advocacy pay is by bulk instruction. It only takes a few tweaks to the system to see PDS advocates with piles of Early Guilty Plea cases dominating court rooms devoid of other counsel.

Can we fight that threat? The short answer is no. Not unless you are prepared to refuse to work to stop solicitor advocates having rights of audience or are prepared to fight the CPS using employed advocates. I am afraid such action would be anti-competitive and unlawful. As would taking direct action to strangle the PDS at birth. It would also be a public relations disaster.

The only answer is for the Bar to renege on the deal and restart direct action with wider aims than simply defeating the cuts to Grad Fees. It would have to place the whole criminal justice system at the heart of the fight. I am afraid that is simply not going to happen. I do not detect an appetite for it.

So we are left with making our arguments about quality and cost. And we know how successful those are with the public and the ministry. The only way to stop the PDS expanding is to start doing VHCCs again. I am not advocating that we should do them at current rates. Nor can we wait for a whole new system to be devised and implemented. What has to happen is some further improvement on the rates whilst still giving some savings. Enough to get those cases closer to adequate remuneration for the Bar to do them again. Only that will stop the rise of the PDS.

Mr Whippy

Amidst the frenzy of the “Deal or No Deal” dilemma for the Criminal Bar I confess I lost sight of just how much of a mess the criminal justice system is in. Issues concerning remuneration are undoubtedly having a massive impact. Standards are plummeting in the advocacy skills on display in the Crown Court. Virtually every advocate you speak to has a plan B, an escape route. The uncertain future, where the only certainty is insufficient remuneration, is decreasing the numbers applying for pupillage to undertake criminal work. I see many advocates undertaking cases beyond their experience (a vital ally to latent ability) due to commercial pressures. That should not be read as a criticism of solicitor advocates, I detect similar problems at the Bar as well.

However the mess I speak of is not to do with fees, advocacy skills or talent drain. The whole system is in meltdown. Let us first of all take the courts themselves. Take a walk around your local Crown Court. Look at the Xhibit screens. Count how many do not work. They hang on the walls like a blank portrait of poverty. In recent times I conducted a trial where we moved between four courtrooms in a building of ten trying to find videolink and playback equipment that would work. The court estate is like Pompeii after the volcano. Preserved intact but not a living, vibrant environment.

One of my local court centres is like a deserted city. It has fifteen courtrooms available to hear criminal cases. Often less than ten them are being utilised for this purpose. Sometimes they are occupied by a coroners case, more often than not they are big, empty hangars of nothing. The truly bizarre thing is that this court centre found money in its budget in recent years to expand the number of courtrooms it had and refurbish others. One of the refurbished courts has never, yes that is correct, NEVER hosted a case of any kind. The last time I stepped inside it the Royal Coat of Arms stared out over a pile of moribund computer monitors.

All of this has an impact on the administration of justice. Whilst courtrooms sit empty the list of unheard cases piles ever higher. Want to fix a sex case of more than four days? That will be next year. A custody time limit case? Squeezed in to a single potential date irrespective of availability. Happen to be charged with an offence not involving a vulnerable witness and you are on bail? Well just take a seat and we will get to you eventually.

In one of my regular haunts I have had the misfortune of having three consecutive trials pulled the day before due to lack of court time. Each time there has been an empty courtroom on the day my trial was fixed. I am told that the court are simply not allowed to deploy a Recorder to hear the case due to cuts in the number of sitting days. In other words, there is not the money to provide for the efficient and proper disposal of cases.

Now pulling those cases has a personal impact on me. No court, no fees. Sadly I do not even hold the record with my three consecutive trials. One of my colleagues has had four consecutive trials pulled at the last moment in the same court. As an aside, just imagine I was employed by the state to conduct the advocacy in those cases. I would have spent days being a very expensive, bewigged executive desk toy. As it was I spent the days at home, walking the dog or doing bits and pieces of work.

However, I complain not about the fact my colleague and I have been stranded on an island of mention and fixes. Each of those cases had a defendant awaiting their fate. Each of those cases had a victim seeking justice. Each had witnesses ready to perform their civic duty. Each of them approached the anniversary of the offence. Each of them has gone into the long grass being kept company by the cuts to the AGFS.

And then you have days when the ability to confer with your client in the cells is severely curtailed by staffing issues in the custody area. That is if they have brought the defendant. Or even the right defendant. The problems with interpreters are well known, well documented and routinely ignored.

It is not just the courts. The service of papers regularly takes place two weeks after the date ordered. That means you are lucky to get a conference prior to PCMH. Judges used to raise hell if there was not a defence statement by PCMH. Now they just shrug their shoulders, accepting of the fact that the papers have only just arrived. It seems most of the time these days that I do not have any time to fight for justice in the cases I conduct, I am too busy fighting fires.

I am afraid I have no answers. I am depressed that the decrepit state of the criminal justice system seems to be passing everyone by. Google design a car without a driver and it is all over the news yet the rule of law being driven over a cliff passes by with barely a mention. VHCCs, dual contracts, cuts, Jeffrey, Leveson, judicial review – all of them mean nothing when we sit back and allow the system to crumble.

This is a recipe that contains cream. We have two choices. Whip it or it will go sour. I know which I choose.

The Book of Moron

This weekend I watched a little bit of Sport Relief. Davina McCall was visiting a quarry where young children worked. She returned with one of the children to her corrugated tin home. The child produced from a bag her most treasured possessions – two tattered school books without covers that had been given to her by a friend. In these books she carefully copied any word vaguely medical as she wanted to be a doctor. In the midst of all that poverty, deprivation and struggle books were a true symbol of hope.

Thankfully we do not have children working in quarries. We do have people in custodial institutions. The vast majority of them are richly deserving of punishment. We have to hope that most of them are capable of redemption. Many of them will be poorly educated. Thanks to the Lord Chancellor all of them will now struggle to have books sent into them from their family of friends.

We know that the Lord Chancellor is not a man to let a sensible policy get in the way of a headline. We know he likes that photograph of him, arms folded, locked prison gate in the background, looking all tough. But books? Really?

I have delivered many a lame mitigation in my time but I have never ever uttered the phrase “what started out as a few social stanzas with friends soon grew to an out of control spiral of book abuse and so began my client’s descent into criminality”. Not once.

What ill is the book ban hoping to stamp out? Is Grayling worried that prisoners may be given ideas from “Escape from Colditz”? Has there been an outbreak of prisoners getting over the wall by climbing a tottering pile of Enid Blyton? Has tobacco and cannabis been replaced by “Pickwick Papers” as the currency of the landings? Has the front page of the Daily Mail been filled with stories of how prisons are becoming more like holiday camps because of the endless supply of autobiographies?

The answer it seems is that they want to encourage prisoners to earn money to buy books. Having looked at the prison incentive scheme it strikes me that it is probably easier for a prisoner to have a TV in his cell and a Playstation than it is for his family to send him a copy of “To Kill a Mockingbird”.

I appreciate that the system of reward and privilege is an essential part of prison discipline. It would be more reassuring if the Lord Chancellor would expend more energy explaining that to the public than he does on endless tinkering. However books are such a powerful, positive influence on people that their widespread availability is something to be cherished and promoted.

Rights and privileges are a hallmark of a decent society. Whilst I pause to observe that there is an irony in a Minister of Justice who wishes to lessen the rights of prisoners whilst making privileges out of rights I will say that the access to education through literature is to be cherished as a right, not dangled as a reward. I do not for one moment kid myself that every violent thug is going to have his life transformed by reading Proust but surely we have to see that if a starving child in Africa can be touched by the power of the written word then there is a man in Strangeways who may find a inspiration in life through reading.

I am tempted to send Mr Grayling one or two books. “The Rule of Law” and “The Morality of Law” might be good places to start. Or maybe just “Nutshell’s Guide to Being Lord Chancellor”. You see I believe even our errant Minister of Justice can find redemption in the written word. That is testament to how powerful it can be.

Never Mind the Bullocks

From time to time on Twitter I name my “Legal Hero of the Day”. Previous lucky recipients have been Hannah Evans for her barnstorming speech at OneBarOneVoice, Mukul Chawla QC for his robust letter to the CPS and Tim Thomas for his selfless decision to return a VHCC at great personal expense. For my next “Legal Hero of the Day” I need more than the 140 characters that Twitter allows. And here is why. I give you Greg Bull QC – Legal Aid hero.

Please stop throwing things at me and hear me through. I am not going to criticise the personal decision of one person who decides to take a job. We know little of each others personal circumstances and what each of us has to do. I, of course, applaud those such as Tim Thomas who put principle ahead of self. I rejoice in the likes of Nigel Lithman and Tony Cross who are able to show true leadership. I celebrate Andy O’Byrne who finds such consensus through information. However that does not mean I greet those who make certain decisions with a chorus of boos. No doubt behind each decision is a particular reason. Until you’ve walked one step in another man’s shoes etc etc. I have one exception to this rule, Chris Grayling. I am more than content to hiss and boo at him like a pantomime villain.

Still, no doubt you will say, that is one thing but it is quite another to make Greg Bull a Legal Aid hero. However he is this week’s hero because of news that comes from Liverpool. There is a trial listed there due to commence soon. For good reason the instructed defence counsel is unable to conduct the trial and it has become a return. The solicitors have searched high and low for a counsel to take the case on and the only person they have found is Greg Bull QC, employee of the Public Defender Service. And there we have our first reason to celebrate GB QC. He is the living embodiment of the unity at the Bar. Other than one advocate contractually obliged to the state the solicitor could not find an advocate to take on the case. The no returns policy has near universal support. We are as one.

And then there is this. A while ago, back in the crazy days of PCT being the Government’s doomed grand reform, the then Minister Lord McNally trumpeted the fact that they were ensuring that a defendant would always have the choice of advocate for their Crown Court case. Look what their policies have done just a few short months later. The defendant has absolutely no choice of advocate. He can have any barrister of his choosing, so long as it is Bull. The Ministry of Justice have managed to create a wasteland of the Criminal Justice System much sooner than they thought. The Bar are demonstrating what the future will be like whilst there is still time for the MoJ to think again.

Which leads me on to the next reason to slap Bull on the back. Yet again he demonstrates the value to the taxpayer of the independent Bar. He is available to undertake this case at very short notice. Were it not for the no returns policy of the Bar it would be reasonable to assume he would have been twiddling his thumbs for the duration of his new instruction. And the taxpayer would have been picking up the bill for his thumb twiddling. Employed advocates have to be paid, whether there is work for them to do or not. Freelancers like the Criminal Bar cost the taxpayer nothing as we wait on our imaginary cab rank with the yellow light on. Think of it like this – only the very rich can afford a chauffeur to drive hither and thither at the drop of a hat. Taxis are a much cheaper option in the long run.

Whilst we are on the subject of value for money this employee of the PDS also helps the opponents of these iniquitous reforms prove another valuable point. Let’s say that he is, for argument’s sake, getting paid £100,000 per year. Not an unreasonable assumption given the level of remuneration of jobs recently advertised with the PDS. Allowing for a holiday entitlement and statutory holidays this works out at something like £2,100 per week. Now even if we do not allow for all the ancillary costs that an employee brings with them (back office support staff, training, pension etc) there are not many juniors (Bull is taking a junior’s brief in this forthcoming case) who under the new fee regime will receive £2,100 for a week long trial. Not once the PCMH and the mentions have been deducted from the fee. Bullseye – the Bar is cheaper. Bull should be carried aloft for proving it.

Finally let us look at what this says about the attitude of the MoJ. If you are an ordinary citizen charged with serious criminal offences you can have an advocate of reasonable quality being paid less and less every time we want to seem tough on you sponging middle class wrongfully accused people of good character. Unless the stand being taken by the Bar is starting to look bad for us, in which case we will throw a Silk at your case whilst we try to tough it out.

Hero though he is, Bull cannot be everywhere. He cannot plug every gap left by the MoJ’s increasingly damaging attitude to criminal defence. He is but one man. He cannot do every VHCC, cannot do every return, cannot do every case that will come through under the new rates and people vote with their feet. Unless I was in the case, ordinarily I would have no idea who this case had been returned to and would not care a jot. The fact that I do know about it is because the tactics of the Criminal Bar Association are having a real degree of success. This is the desperate last stand for the MoJ and a beleaguered Lord Chancellor. If we hold the line the true leaders of the Bar will be able to put an arm around those who had the chance to show real leadership and selfless courage and utter those immortal words “lets have a look at what you could have won….”

In the meantime I say three cheers for Greg Bull QC. Legal Aid Hero. And exhibit number 1 in the case against Grayling and his thoroughly discredited reforms.