Tag Archives: MOJ

Pots, Pages and Pay

I have now read the entire consultation on fees. I have cogitated and calculated. I have some views to express (which is a good job or else the starting of a blog would have been a pretty pointless exercise). My thoughts have been concerning the figures in the boxes and the execution of parts of the scheme. In this blog I am going to deal with problem under which those shaping the scheme have had to labour – there is no new money. Fees that were set for cases many moons ago, fees that have been subsequently reduced, are still being paid at the same, reduced rate.  

It is also undoubtedly the case that the current AGFS remunerates some cases in an inadequate manner. There are times when you do a case and then see the bill. You do a double take. Surely there has been some mistake in the calculation of the fee? Surely all that work and worry must be worth more than this? 

There are those at the Bar who are canny and dodge the under-paying cases. There are those of us who think “never again”, right up to the next time you take on a similar case. The long and the short of it is that there are winners and losers when it comes to a fee scheme that pays by the piece rather than by the work put into the piece. 

When it comes to designing a scheme that is based on the same size pot, there are always going to be cases where payment goes down if money is shifted to other parts of the scheme. It is impossible to do it otherwise. 

In my opinion it is the inescapable truth that Silks are not paid enough for murders under the AGFS. I find it impossible to argue otherwise. It is right that these fees should be increased. The increase in these fees should come from extra money being paid into the scheme. The scheme under current consideration requires that the money comes from elsewhere within the scheme. And that means fees for other cases are going to be decreased. 

And here you have the point of tension. No one likes the idea of a pay cut. Those that see themselves as being the losers in this equation are going to cry foul. That is entirely understandable. 

I am not a Silk. I have never applied for Silk. I have no intention to apply for Silk in the next application round. I am a junior that does the occasional drugs conspiracy with a decent page count. I do some fraud type work. So I am going to be in a position where future fees may be reduced. I also do a fair amount of sex cases so I could see some fees increase. And no matter what it means for me, I can see that Silks are not properly remunerated for some murders at the present time. 

The information that accompanies the consultation indicates that the Silks’ slice of the pie is going to increase by 10%. This does not mean every Silk in the land is going to get a 10% pay increase. This does not mean that every Silk’s fee in every case is going to go up. It does not mean that there are no situations where a Silk is going to end up being paid less. It also means that, in some cases, a Silk is going to end up getting paid more than 10% extra on the current fee. But this 10% thing strikes me as a bit of public relations disaster for the new scheme. It makes it very difficult to sell to the rank and file. That 10% is coming from somewhere and it is coming from the fees paid to the junior bar. So I know that a fee increase for Silks is the right thing to happen. It is just that there is not a spoonful of sugar to help the medicine go down. 

It may have been easier if just a little bit of the extra money for Silks (produced by a formula explained within the consultation) had just been moderated slightly and the extra money put back into the fees that are being most significantly reduced (paper heavy fraud and drugs). It would have sugared the pill if it was the case that the consultation told us that the formula had worked out that the Silks should have been put up by more but that this figure had been adjusted due to the fact that the fees were being cut elsewhere and that the reduction would therefore be less. 

Of course this is a consultation. I am entitled to make that point. I am not arguing that Silks should not have some of their fees increased. I am arguing that, when the money in the pot is too little to begin with, such adjustments as are necessary should be dealt with not only by way of formula but also by way of sensitivities. 

I am not convinced that one can argue against the removal of page counts per se. It is a clumsy tool by which the seriousness of a case or the work involved is calculated. It worked better when it was first introduced, when it was used to differentiate between cases within a relatively small compass. But as page counts got bigger and the page count payments got extended to thousands rather than hundreds of pages it became less of an accurate measure of a case and more of a lottery in which you hoped for lots of pages on the PPE and a case summary that spoke of only one witness naming your client.

If you are to argue about the numbers in the boxes, it cannot just be by the slogan “save our PPE”. It cannot simply be by the cry that this time round your practice profile is going to mean you are in the column of fees being reduced. If any one wants to make the case why the figures in the boxes are wrong then I am more than happy to host any blogs on the subject. But I also repeat this request – those are argue that the figures in the boxes are right need to release more information to us. The Bar Council, the Circuits and the CBA need to provide us with information. Quickly. 

I will post another blog soon about one or two areas of detail in the proposed scheme. 

Tins Of Fish

It has always bewildered me that there is such an array of rules across the Prison Estate. I get that there has to be rules. I get that different establishments might have differing rules to suit the type of prison they are or to deal with any particular issues that they have locally.

And yet prison rules have still long baffled me. From the sign on a door that prohibited visitors bringing in, inter alia, “door stops and ladders” (how could a prison be defeated by wedging doors open and who could ever smuggle a ladder in?) to the prison that made me drop my trousers (a very long and not particularly edifying story) to the prison that turned over every page of my brief because “we had someone trying to smuggle a doughnut in…”, prison rules are, well, a law unto themselves. 

In Manchester we briefly had “the letter of introduction”. This was a letter which basically had to say “Hello, this is Jaime, he’s a barrister, and today he would like to visit one of your guests, Burglar Bill.”  A part of me always wanted them to have to finish with the phrase “and you shall let him pass without let or hindrance.” But they didn’t. 

My first introduction to letters of introduction was when I arrived at a prison and they told me I had to have one. This was news to me. I had not previously been introduced to the letter of introduction. The conversation went a little like this;

Officer: Where’s your letter of introduction?

Me: I haven’t got one. What is it?

Officer: It is a letter explaining who you are and why you’re here.

Me: Oh right. Never been asked for one of those before. Give me a moment and I’ll jot those details down on a piece of paper for you. 

Officer: No, that won’t do. It’s got to be from your boss. 

Me: I am self employed. I haven’t got a boss. I guess I am my own boss. So do you want it from me? Introducing myself?

Officer: Yes. 

Me: I’ll just jot it down then, like I just said…..

Officer: No! It’s got to be on headed notepaper. 

Me: Right, have you got a fax? Cos I’ll get some note paper faxed over and then I will write a letter on it formally introducing myself to you and sign it from myself to say it is deffo me. 

Officer: There’s no need to be arsey….

And so it went on. I didn’t get in the prison that day. But from that day forward I did carry a letter of introduction, like some emissary being sent on a diplomatic mission, and presented it at every prison I visited. Often I may as well have dropped my trousers (again) and shown my backside judging by the reception it got at most places. 

The letter of introduction now seems a thing of the past. Prisons feel no more or less safe. And in one of Machester’s prisons I can wear my watch as I visit a man on remand for murder and in the other prison I cannot wear my watch as I visit a man on remand for murder. I am sure this makes sense somewhere. Just not in the real world. 

My watch wearing is just an inconvenience. The real issue is which prison you can take your laptop or tablet into. Or, more importantly, what you have to do to be allowed to bring it in. One prison requires 48 hour written notice, another prison just needs you to mention it when you book in whilst another wants a letter from the computer’s mother and an oath taken in blood and bytes that the computer is who you say it is. 

Today I represented a man who was moved from a prison in London to a prison in Manchester and then back to London for his hearing today. I have mentioned in a blog previously that prison food is so bad that prisoners are concerned that protein is missing from their diet. I have plenty of clients that order protein shakes from the prison canteen to make up the deficit. These people are not bodybuilders, they just lack protein. My client today had overcome this by ordering 150 tins of mackerel and tuna as part of his “canteen”. 

A prisoner’s canteen is the extra stuff they can buy with their wages. Often it is tobacco or sweets. This prisoner wanted protein and decent food so he stockpiled tinned fish in his prison in London. And he was eating it three meals a day, had to buy when it was available and he amassed 150 tins of fish. He then got transferred to a prison in Manchester. A prison that did not allow prisoners to have tinned fish….

Now I appreciate that this sounds like I am making it up, but I promise you I am not. So at the Manchester prison his tinned fish hoard had to be stored. And today, when transferred from Manchester to court in London, his canned fish had to be bagged up in several bags and brought with him to London, just in case he ended up in a prison that let him have a sardine or two.

I know both prisons involved. They are very similar. Both privately run. Both house the same category of prisoner. They even look the same:



And yet in one prison you can buy tinned fish and in the other tinned fish is as prohibited as Class A Drugs and ladders….

The Criminal Justice System has become a disparate loose collection of different departments and entities, attempting to work together with little by way of overarching aims and guidance. I have no idea, from day to today, what I need to do to see a client, what I can take with me or whether they will be brought to court. And they have no idea whether Governor Antoinette is going to let them eat tinned fish or not. 

This disparate uncooperative co-op leads to delay and waste. And a man in the back of a prison van hurtling along the M6 with see-through bags full of contraband tinned fish. 

It has been a long day…..

Epic Fail

Being permanently connected to some form of electronic device I monitor social media more keenly than GCHQ. Over the last 48 hours I began to notice people complaining that CJSM, the criminal justice secure email service, was not working. 

Last night we received an email which explained the problem. It opened with this statement:

The Ministry of Justice would like to apologise to CJSM users accessing the service through the CJSM website for the current poor performance of the service, There has been a growth in usage of the service over the pas few months beyond what was expected and over the last couple of months demand has outstripped the capacity of the service.

I am going to let the typo “pas” pass without comment (he says in a passive aggressive way). I am even going to totally ignore the comma followed by a new sentence. 

Let us instead concentrate on the phrase “[t]here has been a growth in usage of the service over the pas[t] few months beyond what was expected and over the last couple of months demand has outstripped the capacity of the service.”

This would seem a reasonable explanation. Save for the fact it is not. The MoJ have been involved intimately in the introduction of Better Case Management and digital working. This requires every participant in the criminal justice system to have a secure email. That means CJSM. So we have been exhorted by….errrr…the MoJ and their partners that we all need a CJSM account as a pre-requisite to use of PCU wifi and access to the case papers online. 

The growth in usage of the service was entirely and utterly predictable. It has been prompted by the actions of the MoJ. 

I am reminded of a teenager who throws a party when their parents go on holiday. They post the invitation to Facebook, Twitter and Instagram and are then surprised when it is not just their close friends that turn up but the entire school, seven drug dealers, 567 teenagers from neighbouring towns and a gang of Hells Angels from Holland. 

Actually my friend Brian will chastise me for that analogy because, in this instance, the MoJ have in fact invited the whole school, 567 teenagers and the Dutch biker gang. And then expressed surprise when they all turned up and trashed the house. 

As the Facebook teenager would observe – “epic fail”. 

And this is what worries me about digital working. Not the poor grammar. Not the poor excuse. But the lack of forward thinking that introduces a system of working that the system cannot cope with. 

As fans of Monty Python know, no one expects the Spanish Inquisition. Yet when you tell everyone to get a CJSM account as pre-requisite to participating in the criminal justice system, you really do have to expect every participant will get a CJSM account. 

The MoJ must do better. Again. 

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. 

FOC 

The Criminal Courts Charge is a bad and pointless thing. Everyone knows it, with possibly one exception in the form of C. Grayling MP, TB (Total Buffoon). The problem, it would seem, is that the MOJ budget has been worked out on the basis of the revenue that the Charge is supposed to raise. Until they can replace the income stream, the Charge has to stay. 

Now this is, of course, a total fiction. The Charge will not raise the amount the budget says it will. It is being imposed upon people who will never be able to afford to pay it. It is being imposed on people who are being imprisoned for decades. It is, in one case of mine recently, being imposed upon a man who will be deported before the Charge can even be remitted. The predicted “profit” does not seem to take into account how much administering the collection/remission/ignoring of the Charge will cost. This is budgetary hopeful thinking on a major scale. You may as well include the largesse of the Tooth Fairy in your next mortgage application.

Poor old Michael Gove still has to find away of defending the Charge to the public. Every time he passes Grayling in the corridors of power he must feel like sticking out a foot and sending him flying whilst shouting “Why do I have to look a total berk every week defending the claptrap you left me with?” Although he may be tempted to include a few more words of more base Anglo-Saxon heritage, and would be well justified in so doing. 

But for now, defend it he must. So, through gritted teeth, Gove recently said: “The criminal courts charge is generating revenue, which helps ensure that the taxpayer is not the first port of call for supporting the way in which our courts operate, but it is important that we balance all the criteria in making a judgment on the review of the charge.”

Now there may be some that think that the taxpayer should be the first port of call for supporting the way which our courts operate. The courts are a key part of our democratic process. It is part of what makes us all safe. Safe in so many ways. Safe from the criminals, safe from the abuse of power. It is exactly the sort of thing that the raising of tax revenue should pay for. At the very least tax revenue should pay for the courts before it pays for a big plane for the PM to use see his mates in Saudi Arabia. But that may just be me. 

Gove’s statement did, at least, get me thinking. What if he is right? What if the public should not foot the bill for certain parts of the democratic process? What if we could find other ways of raising money on the back of keeping civilisation civilised?

Perhaps Mr Gove should look a little closer to home. How about a House of Commons Waffle Charge? A £100 per minute charge levied on MPs who want to filibuster in order to frustrate the work of the House of Commons. So those great and dedicated public servants like Philip Davies, who spoke for 93 minutes to defeat a Bill that would have given carers free parking at hospitals, can put his hand in his pocket.  By all means he should be able to exercise his democratic right to defeat legislation having a long argument rather than a reasoned, winning one, but why should the public pay? Implement my scheme and the public could have pocketed £7800 profit. And we could have made £3700 when he did it again to thwart compulsory first aid training for schoolkids.

Why stop there? At a tenner each time that the Prime Minister fails to answer a question we could all have a private jet by next Easter. Peers getting expenses for tipping up to the House of Lords? Why should the taxpayer be the first port of call for supporting the way our unelected second house operates? 

And may be the cost of every harebrained Government scheme that ends up scrapped should come out of the pension pots of those involved. The £6 million wasted on the ridiculous secure college for young offenders would make a heck of a dent in the pensions of Grayling and a few senior civil servants. Why should the public be the first port of call to support their incompetence? 

So Mr Gove, do the right thing when it comes to the injustice of the Criminal Courts Charge. Do not allow this ridiculous state of affairs to be governed by a fiction of a budget. And if you need to make up the shortfall, pop ten pence in a swearbox every time you think of a bad word in connection with Mr Grayling. “F.O. Chris!” You’ll soon be quids in. 

Best Mates

In a demonstration of unity with the Bar I call upon all solicitors to immediately cease undertaking Crown Court advocacy and to reject or repudiate any and all Two Tier contracts. 

I do not expect I will have many takers. Nor do I feel that a failure to act in this way actually demonstrates a lack of unity with me in my aim for appropriate remuneration for those working in Legal Aid cases and my desire to have a fair and equal justice system. 

The two acts I call for, albeit with my tongue firmly in my cheek, would improve the lot of the criminal barrister considerably. It probably would not leave much of a dent in the administration of justice either. And in the case of defeating TT, would be a positive all round. 

And yet I do not view this as treachery by solicitors. I do not feel this displays a lack of unity. I understand that we are distinct branches of the legal profession. I recognise that certain economic imperatives operate. 

So it really is time to understand what unity is and what unity isn’t. 

Unity is not expecting total, unswerving and unstinting dedication by everyone else to what you want. That is unity in the way that a dictatorship unifies the people in total and unquestioning supplication. Everyone is pulling in the same direction, whether they like it or not. And whether the direction benefits them or harms them. Unity is defined by what the dictator wants, nothing else. 

The Bar have been accused of a lack of unity in recent times. It is often accused of acts of great insult to our colleagues in the solicitor profession. Even in the pursuit of unity I cannot sit back and ignore this nonsense any longer. 

The language is sometimes offensive. There exists a number of Counsel who view all solicitor advocates as inferior. They are wrong. In house advocacy is not necessarily poor quality advocacy. The consultation on advocacy is, however, not an insult to solicitors. Nor is it born out of contempt for solicitors.

Firstly no advocate should be afraid of establishing their credentials when it comes to excellence. And I do not mean just demonstrating that you are “competent”. The aim should be for excellence. A proper panel scheme, and I do not mean the lip service of QASA, would improve quality assurance. In a post TT world that may be quite important. 

And, if I have not already been controversial enough, here comes the the really contentious bit. The reason why it is important is because of the economic temptation to instruct an advocate based upon an economic reason rather than reasons of quality and suitability. 

Please do not all shout at once. 

I am not saying that this is the basis upon which all employed advocates are currently instructed. I am not impugning the integrity of every solicitor out there. I am simply stating something that every player in the criminal justice system knows to be a risk. And it is a risk identified by the solicitor profession, in a slightly different context. 

Remember the Legal Aid Team video? That warned of under qualified or inexperienced personnel being deployed if legal aid was cut or contracted to big entities? The whole point is that cheaper labour for profit runs the risk of diminishing standards. Was that a suggestion which was a slur on the integrity of all solicitors? There would, surely, be some solicitors involved in these terrible organisations. The point was a good one. And is equally applicable to advocacy. 

Trying to find something that maintains standards in a post TT landscape is laudable. That the Bar should concentrate on maintaining standards in Crown Court advocacy is understandable. It is both where we see our strengths lie (championing your strength is not to denigrate others) and what we know about. It would be ridiculous if the Bar were to be at the vanguard of a consultation to promote quality assurance in police station representation. Very few of us do it. Clearly we would support such proposals as being of value to the system but we are not going to begin to design what would constitute proper quality assurance in that field. 

The Bar seems to being criticised for taking steps to protect itself in the post TT world. Which would be exactly the same motivation that lay behind any solicitor that bid for a contract. We do not want TT. We are not responsible for TT. We fear TT. We have nothing to gain from TT. Should we just go gently into the dark night that follows? No. Barristers work to earn money to pay their mortgages, provide for themselves and their families and to continue employing our staff. 

Those that bid for contracts on the rationale “we cannot afford to lose out if they come in” must totally understand that those that represent the Bar must work to try to minimise the impact upon their members. The way that is achieved must not be to the detriment of the administration of justice. If it is felt that the steps the Bar takes does diminish justice then argue against it. Don’t just cry “foul” and not be our friends any more. 

So the consultation about advocacy is not a slap in the face of all solicitors. It is not a declaration of war. It is a measure that should have been in place before market consolidation. There should have been such quality controls in place across the full range of services – police station representation, litigation, magistrates’ advocacy and crown court advocacy. 

Sometimes the best way to stay friends is not to take offence very easily. 

Ten Green Bottles

Ten green bottles hanging on a wall, ten green bottles hanging on a wall…..

It was anticipated that the announcement as to who had “won” (I use the word somewhat loosely) the new duty contracts pursuant to the Two Tier system was coming last Friday. Then it was not. It was put back to 15th October.

The MoJ informed those anxiously waiting that “(w)e regret that we will not be able to notify bidders this week about the outcome of the crime duty tender, as previously indicated. We understand the anxiety this could cause bidding organisations and are working hard to finalise the quality assurance required to make sure these important decisions are right.”

Now if one green bottle should accidentally fall…..

So what happened to cause the announcement to be put back? We do not actually know because the MoJ, despite their concern and their regret, have not actually deigned to tell those anxiously waiting what the hold up is.

It could well be that the delay is related to developments with a firm of solicitors called Blavo. It may be that it is  not. It may well just be one hell of a coincidence. 

For those that missed it in the middle of last week Blavo, a firm with a national profile and with areas of work including crime and mental health, announced that they were consulting on redundancies. There was talk of the impact of legal aid cuts and the need to restructure. The firm, it was said, was still financially secure.

Then the story took another twist with the LAA announcing that they had terminated all Blavo’s contracts and had referred the matter to the police

Now I do not know if Blavo had applied for a Duty Contract. Given the nature of their profile I anticipate that they have. I do not know if they were to be awarded a contract. And we have no way of knowing if they are on the brink of collapse, are financially secure or have done anything to justify the action taken by the LAA. And, because the MoJ are not providing information, we do not know if this has caused the delay. 

But let’s just imagine the worst case scenario for a moment. Let us imagine that they are really struggling. Let us imagine that there are some “irregularities” concerning their current contracts. Let us imagine they were just days away from getting one or more than one of the contracts on offer. 

Now that throws up a whole load of questions. If all of the above imaginings are correct what does it say about the application and scrutiny process? If they were about to be awarded a contract and it transpires that they were in financial troubles and circumstances existed to justify termination of their contracts how did they pass “the quality assurance” tests?

And what if these circumstances came to light after the award of the contracts? Would other firms who missed out not be able to question how it is that an unviable firm got a contract and their viable firm did not? What if it took nine months of the contract irregularities to come out? So the firm already had a number of duty contracts and now the LAA realise that there were problems with their previous contracts. Nine months after consolidation their rival bidders may have been consolidated all the way to the dole queue….

That prospect is of particular concern when the firm undertakes other areas of “niche” work. Let us say Blavo do most of the mental health work in a town. They have one competitor that also provides that service. Both firms have been finding it tough since the Legal Aid cuts. Blavo get a crime contract, the other firm does not. The other firm goes out of business as a result. Then the irregularities come to light and the LAA terminates all the contracts. Suddenly you have no provision for mental health representation in that area. That is an advice desert. That is the game of Russian Roulette the MoJ are playing with our justice system. 

Remember that the Duty Contract is no guarantee of long term security. There are more adjustments to the fees coming along. When I say “adjustments”, I mean cuts. Court closures can threaten the viability of firms (imagine Firm A have a healthy amount of own client work that tends to be in the court building just down the road from their office, when that court closes and they have to travel for up to an hour each way to represent these same clients that can suddenly impact upon the meagre profits they previously made). 

On top of that there is uncertainty about how firms are going to be able to keep work in house. I do not for one moment imagine that there is going to be some sort of ban on in house advocacy but there is, now, uncertainty. If a firm was banking on being able to keep a percentage of work in house, they cannot bank on it any more.

This is the precarious market that the MoJ seem to make more precarious with every step they take. Hopefully Blavo’s current problems are all ironed out smoothly. Hopefully this is only a warning to the MoJ. It is, however, a warning they should heed. It does not take much for there to be…..

……no green bottles hanging on the wall.