Tag Archives: solicitor

Apples and Oranges

And so this evening my eye fell upon a piece in The Spectator Online by Ross Clark, you can read it by clicking on this link. My attention was drawn to the article by the howls of wounded lawyers taking to Twitter to say “pah” or to invite Mr Clark to spend a day with them to see how the legal system really works. So I was forewarned lawyers would come out of the article badly. I had no idea how badly the authors of comment pieces in The Spectator would also fare.

The title is “Why MPs should not stop legal aid reform”. The catalyst for the piece is the recent pronouncement of Nigel Evans MP that legal aid reform had gone too far, something he discovered for himself when accused of a crime. The premise of the piece – well that may take a little more unraveling, but I will give it a go. Mr Clark seems to be suggesting that the law is an industry which is resistant to change and operates as a conspiracy to make it too complicated for the layman to represent themselves. He argues that reform is needed to simplify the law and procedure. So far so good (although the I confess to having a wry smile at the  use of the word “arcane” in a plea for simplification) but I cannot help but feel this is not foreshadowed by the title or by the catalyst in the iniquity of acquitted defendants who do not qualify for legal aid having to fund their defence.

The headline lays down the gauntlet as to why MPs should not stop legal aid reform, regurgitates some figures about the cost of legal aid (and more of that in a moment) and then goes on to propose reform to the legal system. It fails singularly to deal with the issues raised by the case of Nigel Evans. It does not deal with the issue of those denied access to justice whilst the legal system remains as it is but funding is denied to so many. It fails completely to deal with any issue about the provision of legal aid. It is the equivalent of me standing before a jury to do my closing speech and delivering a plea in mitigation.

The complaint is made that complex language and procedures keep the layman bewildered by the legal system and that the answer is reform to make it clearer so that people like Nigel Evans can represent themselves. This argument always ignores the fact that most lawyers bring more to the case than their knowledge of law and procedure. We bring skills in litigation and advocacy that go way beyond what is written in a statute or contained within the law reports. Thinking that if only we make the language less complex and the procedure less procedural we will open up law to non-lawyers equates to making us all pilots if only we stop calling it the altimeter and instead refer to the “how far we are off the ground” dial.

Time and time again both experience and academic study shows that lawyers can save an awful lot of time. One of the main things I do is act as a filter between what the client may think is relevant and what is actually relevant. I spend hour after hour agreeing issues and evidence with my opponent that someone without my experience and detachment would never agree.

That is not the only filter I provide. The law recognises that people charged with the sort of offences of which Nigel Evans was acquitted should NEVER be allowed to cross examine the complainant themselves. This is a law which is good. This is a law which benefits those who are the victims of such offending. It encourages reporting. It facilitates the complainant giving their evidence in the best way possible in the circumstances. So which reform would Mr Clark like to see where someone in Mr Evans’s position would be given the ability to cross examine their accuser? Not all in this position are innocent. You get very unpleasant individuals only too eager to exercise control over their partner through the witness box. I am a filter. I am a safeguard. A safeguard that legal aid reforms has now removed from many a family case. What a triumph.

And now the figures. This is depressingly familiar. Depressingly misleading. Depressingly inaccurate. The piece states

“A Council of Europe Report in 2014 – after the legal aid reforms began to take effect – calculated that UK taxpayers were spending £2 billion a year on legal aid, compared with just £290 million in France and £272 million in Germany.”

Now this is where I would suggest it starts to go badly wrong. The suggestion is that we spend £2 billion a year on legal aid after these reforms and, therefore, more reform (i.e. cuts) are required. In fact the spend on Legal Aid in 12/13 was £2.2 billion; 13/14 £1.9; 14/15 £1.7; 15/16 £1.5; 16/17 £1.6 and 17/18 £1.6. The MOJ budget has suffered the biggest cuts in Whitehall, down from £10.9bn to £6.4bn.

It is wrong and a little bit lazy to quote £2bn without the further context of what the Legal Aid spend is now when considering whether the legal aid system, or indeed the legal system, requires further reform. And yet the really misleading bit is not in the figures. Or the context. It is in the statement that the £2bn came from a report in 2014 after the complained of cuts had already done their work. Just a moment with Google would tell Mr Clark how misleading this is. LASPO gained Royal Assent in May 2012. Many of the changes in Legal Aid were introduced in April 2013. The system whereby acquitted offenders of certain means footed the cost of their defence was not introduced until January 2014. Inevitably the “savings” take a while to show in the figures. In 2014 the cuts had barely had time to have an impact. It took time. Hence the decline we see in the figures I quote above.

You may well think I have been a little unfair on Mr Clark. Google would tell him that LASPO was in force in May 2012 so the report he quotes could reasonably be said to be after the reforms had begun to take effect. Google may not have told him that the changes were staged over a long timetable. But Google would also have given him access to the report. Even five minutes with the report itself would have told him that the figures in the report were from 2012 at the latest. That is before the legal aid reforms were implemented. Looking it up on Google and reading the source material is not Pullitzer Prize winning journalism.

The bizarre thing is that the piece manages to argue against itself, I suspect unwittingly. The comparison is made with the Legal Aid spend in France and Germany. The piece further argues that reform to our legal system, to make us more like Germany and France, would see our legal aid budget further reduce. This tells us that the system may be a driver of cost.

Let us look more at the 2014 report. It tells us of the whole spend of countries on courts, legal aid and the public prosecution system. The figures show that England and Wales spent €5.4 bn (population 56.6 million), Germany €9.1bn (pop 80.5 million) and France €4bn (65.6 million). The costs for the court system excluding legal aid per inhabitant is €103.5 in Germany but only €42.2 per person in England and Wales. If Herr Klark in Das Spectator has used that figure to suggest reform is needed to the German Court system because we spend so much less than them, well they would be comparing Apfel und Orangen.

Time and time again it is pointed out that comparisons of legal aid spend in an adversarial system to the legal aid spend in an inquisitorial system is almost meaningless, and yet, like HG Wells’s Martians, still they come.

The legal profession is less resistant to change than many would believe. What we are resistant to is the poor and misleading use of evidence. We are resistant to misinformation and the misinformed. Mr Clark is more than welcome to advance his views on reform to the legal system but they need to be based in reality. They need to deal with the real injustices happening week in and week out because of the removal of legal aid and suggest something for the here and now. If he sees the long term answer to be a reform of the judicial system that has to be thought out with cost implications, both financial and societal. And whatever he argues for, he needs to rely upon more by the way of research and less by lazy trope.

Autumn Days

As the first days of autumn come tumbling down and the optimism of summer is shaded by the gloom of an oncoming winter we are, yet again, responding to another consultation about the graduated fee scheme.

My first reaction was that I had been consulted previously. And my response was a robust, two fingered retort. I was instantly jaded that this process had to be the subject of a further consultation when it seemed to make more sense that we were simply provided with a new scheme, worked out with those that represent us.

At least the consultation process has, belatedly, allowed some further number crunching. And the proposed £15 million injection would actually be a £8 to 9 million injection if last year’s billing data was used. This has caused outrage. This has prompted some to suggest that the Bar have been totally had over.

I have to confess I don’t share that outrage. Not over that. The reality is that the case mix and the pages contained within those cases is only broadly predictable. In a year’s time we may do a retrospective comparison and find that the new money was in fact £17 million. Or £5 million. That is just the nature of the beast.

That is why I had this to say at the time of the last ballot:

“I make it crystal clear that what matters is not the figure of £12 million or 6.6% or 1%. It is what we can see we are getting paid for the case. And whether that is enough we cannot say until we see the new figures in the boxes. And if they are not right, I will be the first to say we reject them.”

So I wanted to see a consultation that showed lots of worked examples. Tables that showed what we got paid under a scheme that included PPE, what we get paid on the current scheme and what we will get paid with new money in the scheme. That is the only way the practitioner with a mortgage to pay, a family to feed and a life to lead can assess this material.

This consultation is not packaged in this way. And that concerns me. How are we to decide about these things in the abstract? It is the figures in the boxes which really matters, what we are going to get paid for the case. Until I am provided with this information then I am not going to respond positively to this consultation.

But this is not the source of outrage. But that is not to say I am not outraged.

When we were presented with this proposal we were told that things had to move quickly. We were told that the current scheme could not be delayed but that part of the reason to take this offer was to enable an October implementation. That was absolutely fundamental. We would take work remunerated inadequately for a short period of time as a gesture of goodwill, goodwill which we believed was being reciprocated. I have no doubt that this is what the Bar Leadership were being told.

And now there is no prospect of that happening. We are told that it is going to be December, at the earliest, before the new money comes into the scheme. My goodwill was a brown leaf dangling from a horse chestnut tree. It is now already compost. This is not acceptable. This delay undermines the whole process.

The message is simple. We start the ball rolling towards a resumption of “no returns”. The MoJ should be told that this is a consequence of yet another broken promise. And that our goodwill is going to have to be bought again. With less online consultations and more money.

New Judge, Old Court

It is the first day in the full time judicial career of HHJ Darren Leben-Boot (known as Daz to his friends). Whilst the heart and the pension pot is full of joy, the day carries some sadness for the latest Circuit Judge appointment. He will miss the robing room and his colleagues in chambers. And then there is the move. His offer came for an appointment in a far flung Court, one which he had never visited. So life has been uprooted and new beginnings are taking place in new surroundings.

He checks himself in the mirror once again. The bands are brand new and shiny white. The red sash sits on his shoulder. The new wig sits where the old wig sagged. His usher comes to the door to escort him into court. The new Judge feels a little uncomfortable with John the usher punctuating every sentence with “Sir”.

They walk down the corridor which smells a bit like his grandmother’s retirement home. A knock on a door, then “All rise” and he emerges, blinking into the light of the courtroom, his courtroom.

The familiar now has a new focus, a different vantage point. It is only as he takes his seat that he begins to take in his surroundings. Counsel’s row is full of bewigged barristers. But then HHJ Leben-Boot does a double take. The wigs are there, but are perched atop white hard hats. The gowns are there, but each one cloaked in a hi-viz vest. Like Rumpole trying to recreate the Village People.

Counsel stage left gets to her feet, she balances her hard hat and wig combination in a Swiss finishing school lesson in deportment.

“May we welcome Your Honour to the Crown Court sitting at Shambles-upon-the-Wold, and indeed this Circuit,” Counsel begins, in the customary welcome to the newly appointed.

She pauses, and reaches down to the seat next to her.

“And as a gesture of welcome, may we present Your Honour with this, the Circuit Office provided safety wear,” and with that Counsel presents the usher with a neatly folded yellow fluorescent waistcoat and purple hard hat.

Counsel continues; “Your Honour is being provided with head gear colour coded to your office.”

A bemused Judge takes the folded gilet and hat from his usher, whom he now notes is wearing a black safety helmet.

“Thank you Miss Rouen for those kind words, and indeed for the gift. But may I ask one thing….why?” His Honour inquires.

With a sense of timing often lacking in the drama of a courtroom, the question mark at the end of the sentence has barely left the Judge’s mouth when there is a sudden cry of “INCOMING!!!” as a segment of lighting strip detaches from the ceiling and crashes on to Counsel’s row, scattering Juniors left and right.

The new Judge hurriedly dons his hard hat, wedging it on top of his wig.

“I see Your Honour adopts the Devon approach,” Miss Rouen announces, seemingly unperturbed by her colleagues who have now produced hand brushes and dustpans from their red bags and are busying themselves sweeping away the fragments of lighting tube.

“I’m sorry?” the Judge responds.

“We are all very much hat first, wig on top. The Cornwall method. Whereas Your Honour has gone wig then hat, like they do in Devon. It is quite a heated debate,” Miss Rouen explains.

The Judge breathes a deep sigh. A confused sigh. He looks beyond counsel and sees scaffolding at the back of his courtroom, climbing all the way up to the ceiling, a skeleton of scaffolding poles and planks.

“Is this what the scaffolding is for? For workmen to repair the lights?” the Judge addresses his question to anyone prepared to answer.

“No,” Miss Rouen replies, as she is on her feet. “That is simply there to hold the ceiling in place.”

By coincidence there is a new journalist in court. He realises he is sitting beneath the aforementioned scaffolding. Hurriedly, he moves to the seat next to his. The seat immediately gives way beneath him and he rolls towards the court door. Two of his colleagues from the Fourth Estate rush to his aid, two others use all their experience to stifle giggles.

The Judge can feel dignity ebbing away quicker than the life span of a Justice Secretary. He straightens his hard hat (he knows enough already not to chance removing it) and asks that the first case is called on.

“Call Colin Apse,” the Clerk announces.

The usher picks up a nose clip, the sort used by synchronised swimmers, and attaches it to his nose.

“John,” the Judge whispers urgently. “What are you doing?”

“It’sth for de drainsth, thir,” comes the nasal reply.

“Do they smell that bad?” asks the Judge.

The usher reaches beneath his table and slips on a pair of galoshes.

“De do once they thoaked into de carpet, thir. Espethially as we kept de heating on all thummer becuathe we were thcared it wouldn’t sthwitch on again, thir.”

Hard hat, nose clip and galoshes in place, John the usher makes his way to the courtroom door. He sidesteps a rolling member of the press and places his hand on the handle of the door. Which immediately comes off in his hand. He removes his nose clip.

“I am sorry Your Honour, amongst the collapse of the Court Estate, it would appear that it was too much to expect egress to work.”

“Come again?” asks the Judge.

“We are locked in Your Honour,” John the usher replies with a shrug.

The Judge slumps in his seat. He looks at the calendar before him. He takes a pen and crosses through that day’s date.

Only 4,399 days to go to, he thinks to himself, already counting down the days to retirement.

We Are Right

Here we are again. No new work being undertaken. The prospect of days of action. No returns to return. Headlines and news stories. Unity and strength. Division and failure.

I support the action proposed by the CBA. I support it to the hilt. I have now been at the Bar for 25 years. Not once in that time has a single fee for work done ever been increased due to inflation. We have had different ways of being paid, different versions of different ways of being paid and then brutal cuts to fees that the Government had previously decided were appropriate remuneration.

That is 25 years of being undervalued and being treated with contempt.

Enough.

The action should not be about maintaining the status quo. We should not be wedded to being paid per page. It is becoming increasingly difficult to assess how many pages some forms of digital evidence represent. It is taking up a disproportionate amount of time to argue over page counts. As smartphones become ubiquitous and a domestic iron seems to have the processing speed of Mr Babbage, the way evidence is gathered has outstripped the notion of payment per page of paper.

Part of not maintaining the status quo is recognising that fees which have not been increased for inflation and have been subject to cuts so that they are now worth 40% less (in real terms) than when they were first deemed to be appropriate remuneration are not the basis for the figures to go into the boxes of any newly designed scheme.

The MoJ have said it themselves. They described the current AGFS as archaic as they rushed to paint the Bar as being protectionist purveyors of self-interest. I, for once, wholeheartedly agree. The scheme is very old. The level of remuneration we receive for a case is massively out of date. It is not kept up with inflation. And did I mention it has been cut?

So it is the right time to design a new scheme, with new architecture. If we tear down a building to build something modern which is fit for purpose in a low carbon, high tech digital age we do not use the same bricks, the same floor boards, the same single glazed window units and asbestos tiles. And so it is with the scheme which came into force on 1st April. The Bar did their bit by trying to design something modern, the MoJ have built something belonging in the last century.

This is why we are right to take this action and the government response that we helped design this scheme is not a reason why we cannot reject it.

I entirely understand that the Judiciary have to maintain an independence from the actions of the Executive. I also hope that the Judiciary realise that we do a heck of a lot more for a heck of a lot less money than would have been the case when many of them were in our shoes. As I said, I have been doing this job 25 years. When I was trained, when many of the senior Judiciary would have been junior barristers, I had to be concerned about learning how to draft advices on evidence and appeal. And that was about it for written work.

During this week, as well as doing a trial, I have drafted two skeleton arguments, one basis of plea, an adverse verdict report, a bad character response and edited an ABE interview. None of that was work the Bar did twenty years ago. Certainly not with the frequency we now endure. Each year that passes, each year that diminishes our fees by dint of inflation, sees an increase in the workload required by statute, practice direction and order of the Court.

All of that in a working week which follows a period when I have spent two Saturdays in the last eight weeks attending training courses designed to improve our system in relation to sex cases and vulnerable witnesses. I am not seeking to invoke sympathy. I do a worthwhile job and accept that I have to do it properly. But those who think they know what we do, how we do it and what we get paid for it may be thinking of a life at the Bar which is long gone.

Even if a Judge was appointed last year they should remember the steady creep of increased workloads matched by the steady reduction in fees. And I am not going to begin to add in some of the working conditions we face. As Judges they have to maintain their independence. As women and men who are assisted by capable advocates producing skeleton arguments and agreed facts, their hearts and minds should be with us. Their independence does not mean that they should not be able to see through the MoJ spin.

Any Judge who wants to understand more about our position need only ask. I, and many others, would only be too glad to tell them the unvarnished reality. The same offer can be extended to any politician. Or Tax Barrister.

We do not take this action lightly. There will be members of the Bar who are immediately put in financial peril by taking this action. Clients are being disadvantaged. Solicitors are having to deal with fall out of the action, continuing to do their best for clients in incredibly difficult circumstances. But we must take this action. And it has to succeed. If we fail, we do not fail ourselves, but we fail the future. We fail the future of a diverse judiciary. We fail future victims who will be cross-examined by a lower quality advocate. We fail future defendants who will be represented by de-motivated advocates who are the face of an under-valued and under-funded system.

Call The Cops

My friend Delphine has never read my blog. I imagine many of my friends have never read my blog. They are sensible and interesting people so the reading of my blog should fall very low on their list of priorities. Some friends, however, have read my blog and during a recent lull in conversation Delphine heard her husband talking to me about my blog (not that I ask you to infer that Richard is neither sensible nor interesting but he has read my blog) and she asked what I wrote about.

“Music and the law,” I replied.

Momentarily Delphine was interested in the View from the North. She expressed the view that this was an interesting mélange (she did not say mélange but she is French so she should have). She went on to wonder how I managed to weave the two into the same blog. Did I write about the law as it relates to music or did I draw comparisons between music and the law? Or was it about the law featuring in music (as in 10cc’s “Well good morning Judge, how are you today/I’m in trouble, please put me away”)?

Interest soon faded when I explained I wrote about the law and music separately. And that the content was usually me moaning about some aspect of the criminal justice system or writing fanboy reviews of Paul Heaton and Jacqui Abbott. The View from the North, it would seem, is myopic and grumpy, mostly relayed to the soundtrack of broken northern hearts.

Writing a blog about the intersection of law and music would be nigh on impossible for me, I thought. I would not know where to start. The music and the law seldom cross paths unless you are an intellectual property lawyer. I am barely a lawyer, have never been associated with the word “intellectual” and only ever own property when playing Monopoly.

But…..wait a minute….. I have got my one reliable dinner party anecdote. And it is about music and the law. It may be the greatest day of my career. It is a memory that is stored in a box in my mind which has written on it, in big gold letters, “The Day I Represented Shaun Ryder”.

Now, for those of you who are either High Court Judges or oblivious to the splendour of Madchester, Shaun Ryder was the lead singer of the Happy Mondays and Black Grape. He produced such classics as Hallelujah, Step On and In The Name of the Father. If you have not heard of him then check out his bio here and listen to some of his music. Then come back and I will tell you of The Day I Represented Shaun Ryder.

Welcome back to all those who needed Wikipedia and Spotify. I shall continue.

It was 13th July 2000. This was 24 days after Kylie Minogue had released her single “Spinning Around” and was almost exactly 6 years to the day from when I had made my first appearance before a Crown Court (see how effortlessly I can in fact weave music and the law together). I was at Crown Square, the Crown Court in Manchester. And I was being both Big and Important.

I was Big and Important because I was appearing for the first time in a murder. Ok, it was only listed to mention. But I was doing it. And, to quote an obscure fictional legal character, I was doing it alone and without a Leader (the mention, that is, not the whole case).

So when a solicitor whom I knew approached me and asked if I could do him a favour I patiently explained that I was both Big and Important. Doing a bench warrant as a favour for a solicitor was now beneath me.

“Oh, it is just that I need someone to help Shaun Ryder out….”

“Shaun Ryder?” I repeated. “The Shaun Ryder?”

It turned out it was the Shaun Ryder. It turned out that he had been due to appear at court the day before as a witness but had not shown. When he had turned up the Judge demanded he had representation. The Judge thought his failure to attend fell into that category of legal application known as “Something About Which Something Has To Be Done”.

Even Big and Important barristers can find time for a celebrity client. So moments later I found myself in a conference room with Shaun Ryder. Shaun “Pills ‘n’ Thrills and Bellyaches” Ryder. And for those of you from a more modern generation, that is Shaun “Runner-Up in I’m a Celebrity 2010” Ryder.

So I had a conference with one of my musical heroes. The prosecution had produced a letter detailing the efforts they had made in order to inform him of the date of the trial. So I tried to establish where he was living.

“Ahhmkippinatrowettasmahn” was his reply.

I like to think I speak fluent Manc. I had been to the Hacienda. I had lived most of my life seven miles from the City Centre. I had a long sleeve t-shirt with James emblazoned on the front. I had owned a pair of Joe Bloggs jeans. But I could not understand a word he said.

Thankfully his concert promoter was there.

“He has been kipping at Rowetta’s house” he translated. This I understood. Rowetta was the other vocalist from the Happy Mondays.

And the conference continued with simultaneous translation facilities being provided.

So I was able to go into court and explain to HHJ Ensor that my client had not been in attendance the day before because of the most rock and roll of reasons – he had been on a monumental bender. Yep. That was my cunning defence. My client was too pissed to come to court.

Fortunately I was also able to point out that the Judge had no power to do anything at all. Even if my client was famous.

And so we exited court and Shaun Ryder put his hand in his pocket and said to me “let me sort you out with some cash” (at least that’s what the promoter told me he said).

I declined all payment. I had done this as a favour. Not to the solicitor, but to myself. I, a Manchester boy, had just secured myself a footnote in the story of Madchester.

There was just one thing he could do for me though. An autograph. So we scrabbled for a piece of paper and the first thing that came to hand was the letter the police had written about informing him of the court date. He gave it back to me, autograph complete. But not just an autograph. He had written “Call The Cops, Shaun William Ryder”.

If you do know the work of Shaun Ryder, you will know how brilliant that is. If you don’t then “call the cops” is a famous snippet of lyrics from Step On.

And that letter is framed on my study wall


That afternoon I heard my submissions being quoted on Radio 1’s Newsbeat. And the concert promoter very kindly sent me four tickets to the Oasis gig that weekend where the Happy Mondays were the support act.

Later in the evening my university mate Richard sent me a text (and yes, it is the Richard who is now married to Delphine, see above). Richard was in a bar in Belgium. He had just seen the Kylie Minogue video for Spinning Around for the first time. For men of my generation that is our JFK moment. You always remember where you were the first time you saw the hotpants/Kylie thing. So there was Richard, seeing the video for the first time 24 days after the single had been released. And I was able to text back “you’re never going to guess who I represented today….”

So that is the one time law, Shaun Ryder and Kylie Minogue intersected. And because Delphine thought that would be a good basis for a blog I have blown my one good dinner party anecdote.

Well, I do have the story about the MMA promoter and the goldfish. But that needs accents and dramatic pauses. So you will have to invite me round for that one.

Sitting in the Dock of Delay

Some of those who walk through the doors of a court building as defendants are criminals. I would suggest the vast majority of them have committed some offence at some time. Quite a few have contributed in some way to them being there that day, whether it is by committing the offence they are charged with or by committing some offence in the course of their conduct or their conduct otherwise contributing to them being there. 

A significant proportion of them, however, are innocent. A greater proportion of them are of previous good character and are there due to the one error they have made in their lives. It is an error that they will be punished for but not something that wiped the good they have done off the slate. They are young men, with anxious parents, who will never again in their lives raise a fist in anger. They are people who gave into temptation in a coincidence of circumstance that will never again collide to propel them through the doors of the Crown Court. They are drivers who face a judgement because their error, their error that has been committed by dozens of un-prosecuted drivers, has led to a serious consequence and police involvement.  And they are people who are guilty of no misdemeanour at all. 

Once convicted, these defendants will be punished. Once convicted they may be subject to piercing criticism of their conduct. And rightly so. But until such time as they are convicted, they remain just one component of the criminal justice system. 

Now I throw my hands in the air in frustration when I hear about “customer surveys” or “consumer feedback” when talking about court users. People do not choose to partake in the criminal justice system. So they are not consumers or customers yet they are fellow human beings. And as such they all deserve to be treated with respect and consideration. Witnesses, complainants, victims and defendants all deserve being treated as we would wish to be treated by others. 

Over time I have witnessed the criminal justice system trying to do much better when it comes to dealing with people. When I began my career I would go so far as to say that the system, and those professionals that operated within it, treated  every other actor with considerable disdain. Where we thought we acted with a degree of sang froid we were in fact being aloof and arrogant. We mistook disdain for detachment. Gradually things have improved with consideration being given to witnesses and their understandable needs. I am not suggesting that it is perfect but the system has worked to improve.

That improvement, however, has not been extended to defendants. So you have the situation where young men of previous good character stand in the dock in their suits on the day when their trial was due to be heard but has been cancelled at the last minute, and refixed nine months hence, to hear the Judge observe that at least no witnesses have attended because the case was pulled the night before. Some Judges will apologise to the defendants. Most do not. 

The fact is that the defendants’ attendance in those circumstances is otiose. They have probably already taken the week off work. They will already have waited a year with this case hanging over their heads. And the reason for the further delay to their case is not because they have exercised their right to deny the offence they are charged with. The further delay is because the courts are under resourced. 

For all the talk of Brandon Lewis announcing that the 28 day bail regime will bring about less delay and uncertainty for the arrested it is just talk. All it means is less people released on bail and more people just released pending further investigation. Like most Government initiatives it is all talk. Talk usually focused on making it sound like it is good for the victims of crime but it is just that. Talk. Talk that politicians hope appeals to voters but talk that is not backed by action to tackle the real problems that beset the justice system. 

Whilst the politicians fail to put our taxpayers money where their duplicitous mouth is, the system creaks on with inevitable delay. And as those delays impact upon all involved the very least we can do is treat everyone with consideration and dignity. Even those in the dock. 

The Unmentionable Fee

In my previous post about the AGFS consultation I promised I had more thoughts to share about it. And whether you want them or not, here are some more of those thoughts….

If you spend any time hanging around robing rooms (and thanks to floating trials and/or it being a cheaper way of keeping warm on a winter’s day I tend to spend a lot of time hanging around in robing rooms) then you will hear some common complaints from criminal practitioners. We complain a lot about not being paid for the second day. We moan about doing mentions for free. We really moan about paying people to do our mentions in other court centres whilst we do the second day of a trial for no additional payment. And never ask counsel how much they are being paid for a sentence hearing. 

I have no doubt that the working group who had input into the draft scheme had these sort of moans very much in mind. And they have tried to rectify them. Again it is important to remember that this is moving money around the pot. So the money for the second day’s refresher sees brief fees reduced. The current brief fee included an amount for the second day and fairly directly the money has now been split into two. Which is morale boosting to know that your second day does actually attract its own reward but is one of the reasons why we now look at the fee for the first day, the brief fee, and say “really?” That has a definite knock on effect when it comes to cracked trial fees but that is a whole separate blog (I bet you can’t wait).

It is proposed to pay for the first six standard hearings in a case under the new scheme. We are told that it is only a very small number of cases that have more ancillary hearings that this. I must confess it is not entirely clear how exactly the seventh mention should be remunerated, save for the fact that it is going to come out of the graduated fee, albeit at no specified rate. 

I would suggest that mentions for the purposes of onward remands which are required by statute should be remunerated as being outside the standard appearance regime (including hearings related to custody time limit applications). 

But at least we are getting paid for those first six standard appearances. That should silence the moaning mention miseries in the robing room. We are going to get £60 a pop. Which is nice. 

It is not, however, as nice as the £100 we got for such hearings in April 2007. Or the £96 we got in April 2010. Or the £91 we got in April 2011. Or the £87 that we have been paid for such hearings since April 2012. I know the pot is staying the same but that kind of feels like a pay cut. In fact it looks like a pay cut. It sounds like a pay cut. And it is a pay cut for the Junior Bar who are not swanning around picking up brief fees left right and centre but will, in the early days, often only do “standard appearances” for days on end. It is a pay cut based upon cut upon cut. 

I know that junior practitioners will do mentions and standard appearances for days on end because that is what I did when I was first on my feet. And I was getting £45 per mention back then so at least £60 is a bit of an improvement. Except it isn’t. Because I did my first £45 mention in 1993. And in today’s money that equates to £64.09. So I am getting paid less for those standard appearances than when I was a pupil. That is time travel that Doc and Marty McFly would be impressed by. 

I am not dependent on standard appearances for my income but for the very most junior it will be an important part of their income. And it is being slashed to the bone here. And serves as a perfect example for the general depletion of fees over the years. 

This is not the fault of those from the Bar Council, the CBA and the Circuits who have tried to come up with a better scheme. This is a result of the fact that those who control the overall level of fees have cut and cut again. This latest redistribution of the pot only serves to highlight that we are trying to stretch a sandwich sized piece of cling film over a football pitch. Every time we try to adequately cover one square inch we expose acres. 

The £60 mention fee, less than we were being paid 24 years ago, simply highlights that they stated intentions of the scheme – to provide payment that matches work and feeds the young barrister – is impossible to achieve if the size of the pot remains the same. 

Once upon a time, Andrew Langdon QC tweeted “And what we need to do is work together in resisting dual contracts and winning a rise in the summer of 2015”. He is now Chairman of the Bar. Dual contracts are in the long grass with most of Grayling’s output. But it is now heading towards the spring of 2017. Our voices of complaint should not be against those who have worked hard to design a modern scheme that reflects how evidence is served. Our voices of complaint should echo what the Chairman had to say in in that Tweet in March 2014. 

If the Government want a sustainable scheme, if they want the cost savings that removing PPE undoubtedly bring, then they should reward our contribution to the design of the scheme with more money. It is plain and simple. We should not work at these rates. 

So answer the consultation. Make your suggestions. But I respectfully suggest that your submissions should make the case for more money. And that you begin to press those in positions of inlfuence, power and organisational control to make the case with you. And to invite such people, those who lead our profession, to be in a position to lead us in a fight to obtain proper remuneration, with everything that entails.