Tag Archives: PDS

When Leaders Go Bad

Neither rats leaving a sinking ship or the Captain being first into the lifeboats quite encapsulates two former Circuit Leaders joining the Public Defender Service. The Criminal Bar is not exactly a sinking ship, not quite yet. And it is difficult, and in most cases wrong, to criticise people who decide their financial future lies in the fragile employ of the Government. They are not necessarily rats. They are not necessarily scabs.

Taking a job does not display treachery when you are Jo or Joe Bloggs. However the position of two former Circuit Leaders is different to a decision made by the rest of the rank and file. There is so much that is undermined by that action, so much that is betrayed.

I do not get access to the Lord Chancellor; not to be around the negotiating table to negotiate on my own behalf. I have to trust those who get to be “in the room”. There is always the suspicion that those who achieve the positions of leadership do so with one eye on their own advancement. That is why so many election pledges in Bar politics centre around a statement of a lack of personal ambition, “You can trust me, I don’t want to be a Judge….” etc.

Unfortunately, history colours the view of the rank and file. When wise and cool heads have persuaded us to be pragmatic or less rash in the past, one cannot help but raise a sceptical eyebrow when the same wise and cool heads find themselves on the Bench eighteen months later. And there we have the first reason why two Circuit Leaders joining the PDS is the cause for such disappointment. The job of the current Leaders of each Circuit has just become that tiny bit more difficult. We are expected to trust them, we are entitled to expect that they will not betray that trust.

So does the hitching of two more Silken wagons to the PDS train betray that trust? I am rather afraid that it does. When a Silk becomes the Leader of a Circuit they embark upon a difficult and wearisome task. It comes at a cost to many of them. However the important thing is that they do not have to do it. It is, ultimately, their choice. And when they choose to do so they are putting themselves in a position where they expect to lead and expect to be trusted. They know what they are undertaking. And I am afraid that means they are not in a position, as the rest of the PDS recruits are, to make a personal decision. They have forfeited that right when they accepted the honour and privilege, available to only a handful of practitioners, to lead this great profession.

In their time as Leaders they have represented us, rallied us, advised us and directed us. I am afraid that marks their joining of the PDS as a betrayal of each one of their constituents. Their role provided them with access to the higher echelons of politicians and judiciary. It provided them with a shiny entry on a polished CV. It should now preclude them from taking the one job that many of their former colleagues view as being the single most significant threat to their own livelihoods.

In nautical terms rats leaving a sinking ship or the Captain being the first in the queue at the lifeboat stations does not do it justice. They are the Admirals of the Fleet taking their skills and knowledge to the navy of the enemy. It diminishes the trust that the rank and file have in the current crop of Admirals. And it means those who have previously served under them feel like that portion of the journey was no more than a flag of convenience. Full of fight when it suited, quick to flight when it gets real.

Does my condemnation of them and my refusal to condemn others who have followed the same path reek of double standards? Not when it is based on the hypocrisy of decrying Grayling and all his changes and then becoming one of his army of Advocacy Green Goddesses, ever ready to defeat any direct action the Bar may take in the future.

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.

Here is the News

I bring you news of Denmark. Okay, not Denmark but I am not Shakespeare so this news comes from Nottingham. I am reliably informed that there is a two handed VHCC listed there in April. This is not the news. I am also reliably informed that both Silks and the junior for one defendant have returned the brief once the fees were unilaterally altered by the Government. Again, probably not news.

What is news is that the case has been recently listed to update the court as to representation. The court were told that, in the 72 hours preceding the mention, the LAA had been frequently contacting the solicitors to offer the services of the latest QC recruits to the PDS. One of the Silks being offered does not start his employment until February. The trial date has been vacated and refixed for September as everyone accepted that new counsel would not be ready in time. It would appear that there is the potential for real conflict in this case (I rely upon others for this information) which could cause difficulties in relation to Part 7 of the PDS Code of Conduct (which can be found here).

So what does this mean? As I have said elsewhere the PDS is being artificially bolstered as a sticking plaster for the ills of the new fee regime. It also amply demonstrates it is no sort of fix. The Bar should not throw their hands up in despair and say it has all been for nothing. This is a desperate last gasp attempt to avoid the flood. But it is only a Dutch finger in a very leaky dam.

Another lesson for the Bar to learn is that the fight has to continue on all fronts. Simply relying upon a refusal to work at VHCC rates is not enough on its own. There will be every tactic used to get the CJS to limp on. Reclassifying VHCCs as grad fee cases. Reclassifying Silks at Public Defenders. Reclassifying lies as truth. All of it will be used to allow the farce to go on.

So in order to save the independent Bar, preserve quality representation of individuals, to rescue the Criminal Justice System from the quagmire in to which it has been sinking for years and to do what we all know is right we have to take all forms of action open to us. It is a fight for all of us, by all of us.

It was always going to be this way. Always going to be a twisting road. If we travel it together we stand a much better chance of getting where we want to be.

Oh yes! I am the Public Defender

“If I were running a business and I had the choice between a group of people on my payroll, National Insurance, pension contribution, who I had to pay come rain or shine, who I had to pay whilst on holiday and all the rest…. Or I could use a team of experienced freelancers I’d go for the experienced freelancer every time”.

This quote goes to the very heart of why the self-employed Bar represents good value to the taxpayer when it comes to the procurement of advocacy services. The taxpayer does not pay me when I am ill, does not have to find work for me when I have none, does not have to provide back office staff, does not have to pay them when they are ill, does not have to have HR concerns about me, does not have to give me free eye tests because I read cases on my computer and does not have to provide me with a pension. Which is why if the average barrister did receive, on average, £84,000 including VAT for prosecuting and defending serious cases in the Crown Court they would still represent bloody good value for money and would mean that the barrister in question was probably receiving £40,000 to 45,000 in taxable income. A figure below the starting salary for a new advocate in the PDS.

So the wise person, the prudent person, if given the choice goes for the “experienced freelancer every time.” So who is this champion of the Bar? This wise connoisseur of legal services? It is none other than The Lord Chancellor himself. A direct quote from a meeting I attended in June 2013 (the full report of which is here). So, given the sense and the strength of his view just a few months ago imagine my surprise to see that the Public Defender Service are avariciously recruiting advocates, including three QCs. And that recruitment is being managed by the Ministry of Justice. So the Lord Chancellor is in overall charge of something which he has previously declared as bad business sense.

And we all know it is bad business sense. I confess I was appalled when the received fees of Greg Bull QC were published recently. However, given that they have been, I now cannot help but observe that his new job is ultimately going to cost the taxpayer even more than before. Pension. Training. Practicing Certificate. Sick pay. Even Archbold. The taxpayer now pay for all of those ON TOP of his salary. Even a cursory Internet search leads me to believe he will be able to claim travel expenses, hotel expenses and subsistence as a civil servant which he would never have received as a member of the self-employed Bar.

As I come to think of it I cannot help but wonder if those masters of spontaneity, the MoJ statisticians, are going to publish some ad hoc figures which will compare the new salaried income of the three Silks against their previous earnings? Such figures factoring in expenses, pensions, the cost of administrative staff etc. I am sure that such things can be calculated by the clever number crunchers. And I know how keen they are in giving the public really good information to inform the debate. So inform the public. The PDS is going to cost the taxpayer more than the current system. Now MoJ statisticians have you got any impromptu figures to prove me wrong?

Where is all this leading? I do not recall either the original consultation or the Next Steps document speaking of a rapid expansion of the PDS. The first thing that springs to mind is how much choice there will be for the clients of the PDS? You need a Silk. The PDS have three. If you don’t use one of their Silks then they are going to have three Silks back in the office doing the filing and making tea. So there may be no choice for the client at all. Secondly one of the beauties of our system is that most senior counsel have prosecuted and defended. That is going to evaporate slowly. Thirdly, should defence advocates be bound by the Civil Service Code? You can read the code for yourself and decide. It makes me uncomfortable.

At a time when the CPS are seemingly acknowledging that in house advocacy is not providing value for money the move to expand the PDS must be an expensive sticking plaster for the wound inflicted on the criminal justice system by the paucity of funding in VHCC cases. It is not a sticking plaster that will cover all the damage of those cuts or the further cuts coming down the line. It is not rearranging the deck chairs on the Titanic. It is hoping that replacing a couple of them with Chippendales will somehow cause the ship to swerve the iceberg. There already is a dedicated Public Defender Service. It is called the independent Bar.

The recruitment of three Silks and the advertisement provoked shock and anger yesterday. I can understand both the ideological and the personal anger. What it actually provides is very strong evidence for the strength of our argument that the Bar and private practice generally is the cheaper option. I would also suggest that it shows the MoJ are worried by our collective strength. This move should be a catalyst for further action.

As a PostScript to this blog would just like to add that in each of the last two years the CPS have spent £20 million in “exit” payments on redundancies and early retirements. Payments on members of the independent Bar who become surplus requirements? £0. Payments in pension contributions last year? £50 million. Payments to the pensions of the legion of barristers prosecuting the cases? £0.

A New Hope

Happy to host this guest blog from Manchester Barrister, Robert Smith.

I have a weakness for really bad film analogies and in our ongoing battle against the evil empire, led by Emperor Grayling and Darth Vara, the Star Wars trilogy has very much come to mind of late.

A New Hope had its premiere on the 6th January. We as a profession amassed like the Rebel Alliance and stuck a strong blow in our fight. We showed unity and we showed purpose. We showed that whilst the machinations of the MOJ (the Death Star) the Treasury (the dark side of the force) and the Legal Aid Agency ( the latter otherwise known as Jabba the Hutt and his bounty hunters ) can threaten and gesture and try and scare us into doing nothing, we stood firm and made it clear that they weren’t going to get away with it so easily. Those scores of barristers bands fluttering in the wind outside every court centre in the country ( which were not by the way Darth, “fully operational”) reminded me of the X wing foils being locked into attack position prior to the exciting conclusion of that great film.

Of course the Empire was always going to Strike Back. And thus Emperor Grayling and his storm troopers launched their usual attacks in the press by conjuring up false figures to make us all sound as though we can afford to hire our own wives as private secretaries. The Empire tells us that rather than having a system of fair access to justice, where people can access good quality representation whatever their circumstances the Death Star says £200 million pounds of cuts or die.

Then the Empire plays really dirty. They try to destroy that strength in unity that was so clearly shown in Episode IV by getting to our friends. In the Empire Strikes Back it was Lando Calrissian who was the weak link in the goodies armour. Imagine the scene, Nigel Lithman QC as Luke Skywalker, Tony Cross QC as Hans Solo and Ian West as Chewbacca. They walk into the conference room to meet their old pal Greg Bull QC hoping to plan the next stage in the fight. Only Darth Vara and the officers of the newly founded Public Defender Service are stood at the end of the table with Greg Bull QC ( Lando – if you hadn’t already worked it out) stood with them, looking rather sheepish. Greg Bull QC confiscates Nigel Lithman’s light sabre and says “sorry, these guys got here right before you did”.

And that is the Governments next plan of attack. They can now see we have the strength to take them on, so their best option is to divide and rule. Let them try. If some people want to leave the Rebel Alliance, don’t panic. We all know what happens in Return of the Jedi….the Empire lose….with the help of some Ewoks.