GRAYLING WRECKS JUSTICE SYSTEM. A DAMNING INDICTMENT FROM PETER COOPER

Peter is a strong and active voice in St Ives Chambers in Birmingham.

This is a comprehensive analysis of PCT, its shortcomings, the potential disaster it poses for our Criminal Justice System, and what YOU, yes, YOU can do to prevent it.

What is happening?

Devastating changes to our criminal justice system are being planned by the so called “Justice Secretary” and Lord Chancellor, Chris Grayling. A thousand years in the making, and yet fundamental freedoms will be destroyed at a stroke, without even a vote in Parliament, if he gets his way. Mr Grayling is the first holder of his office in modern times not to have a legal qualification, and it shows. His proposals will have profound effects upon any citizens who find themselves wrongly accused of an offence. The criminal justice system will never be the same again if these proposals become law, and they must be stopped. An executive summary follows. For those with more time there is additional information, with real life examples, on succeeding pages. Please do not leave this page without following the two attached links. The first enables you to sign a government e-petition: 100,000 signatures will ensure a debate in parliament. The second will take you to a campaign page hosted by campaigning consumer group 38 Degrees. Signatures to both will take you only a few minutes and will show the government that a fair legal system is widely supported and valued.

https://submissions.epetitions.direct.gov.uk/petitions/48628/signature/new

http://you.38degrees.org.uk/petitions/save-legal-aid-say-no-to-cut-price-justice

The Executive Summary

No choice of lawyer for persons accused of crime (or, as Grayling has publicly described them, “criminals”). Criminal defence franchises to be allocated to the lowest bidder in a ‘race to the bottom’. All bids must be at least 17.5% less than existing solicitors’ rates (already slashed in recent years) but the lowest bid will win. Individual accused to be allocated to one of these “lowest bidder” franchises according to name, or date of birth, or perhaps postcode. No change of representative allowed save in exceptional circumstances. No incentive to do a good job: the contracts will guarantee the successful “lowest bidder” franchise a specified share of the work for 3 to 5 years. No opportunity for an accused to use a trusted family solicitor with a good track record. No access to legal aid for anyone with a combined household income of more than about £37,000 a year. Note that anyone who pays for proper representation and is acquitted after trial cannot recover their actual legal expenses, but only the derisory equivalent of legal aid rates. Advocates fees (already slashed for those doing the most serious work by about 40% from their 1997 levels: yes, 1997, a full 16 years ago!) to be slashed again, by about 30% in many cases. Any advocate acting for a defendant in a long trial to be, in effect, ‘punished’ by reducing their daily fee to a figure which can be as low as £14 a day.

No-one of ability or experience could do a proper job and make a living on these terms. Shysters will flood in and deliver a “go through the motions” service: minimal ability, minimal effort, minimal cost. A sham of a justice system. Grayling’s own staff, at an embarrassing “road show” in Reading on 7th May 2013, were quite unable to point to any provisions in these proposals which were capable of ensuring quality of representation. See the excellent Guardian article by veteran legal commentator Joshua Rozenberg at:

http://www.guardian.co.uk/law/2013/may/08/legal-aid-tendering-moj?mobile-redirect=false

So please follow the above links and sign both the above petitions. If you want to know more, please feel free to read on.

Basic British freedoms

Our legal system has long been the envy of the world. It has, in fact, been the model for many of the best modern legal systems across the globe. It is easy to forget that the freedoms which we take for granted rest principally upon five things: our right to vote; free universal education; the NHS; freedom of speech; and our legal system. Take any one of those away and the country would never be the same again. Only a man with no knowledge or understanding of our legal system could dream of wrecking it in this way. Chris Grayling is just such a man. If he is not stopped, he will do untold damage, which will potentially affect each one of us.

Dodgy courts abroad

We regularly read of troubling miscarriages of justice in foreign courts. Some involve British citizens. Many countries have few or none of the safeguards we take for granted. People are locked up without trial (even in the United States: Guantanamo Bay). Confessions made under torture or duress are admitted in evidence. Judges bend to political influence or bribery. Unreliable witnesses are not properly challenged. Lying or corrupt police officers are routinely believed. Robust and independent lawyers are rare, and are themselves at risk of intimidation, imprisonment or violence. Legal aid is non-existent. Where there is a form of legal aid, officials can decide which lawyer will represent an accused. Those lawyers can be at best complacent, and at worst, corrupt and complicit. Unsafe convictions are met with barbaric sentences.

It is the constant vigilance of criminal lawyers over many years which has slowly eradicated most of these abuses from our own criminal justice system. Our system is not perfect, and can get things wrong, but those cases are a tiny minority. Recent savage cuts in criminal legal aid fees have been damaging, and have driven many talented lawyers away from criminal work, but in the midst of our financial crisis most legal aid lawyers accepted that some cuts were inevitable. We have now borne more than our share. Quality of representation has already been put at risk, but even now an innocent person wrongly accused in a British court can choose their own lawyer and will usually receive proper representation. Corrupt or tainted evidence will usually be challenged, exposed and discredited. Governments cannot foist a particular lawyer on an accused, and have no say in the outcome of criminal trials. All this is put at risk by Grayling.

Shyster & Co: the lowest bidder

Mr Grayling, without any legal background, training or understanding, now proposes to remove an individual’s right to choose who represents him or her in criminal proceedings. A representative of sorts will be provided: but the government will decide who that is. Accused persons will not be able to choose their own solicitor. Instead, they will be forced to use ‘Eddie Stobart Law’, or ‘Tesco Law’, or ‘Co-op Law’ or ‘Shyster & Co’: in short, whichever concern has successfully bid a lower sum than all their competitors to run the local legal aid franchise. This is nothing less than a “race to the bottom” in terms of quality. There will be no incentive to provide a quality service: quite the opposite. Only by operating in a superficial and impersonal way, using cheap, poorly qualified or unqualified staff, with the briefest of client consultations, could these concerns make a profit. There will be no incentive to do a good job, to win repeat business: repeat business will be guaranteed, because all competition will have been removed. “Do it on the cheap” will be the only motto, and any other approach would be financial suicide.

It is not just in law that this would be a disaster. Imagine the principle being applied to other areas of vital public service. What would happen if your own GP’s surgery was to be run by the company which bid the lowest sum for the local contract, and if you could not then choose to go elsewhere? What if the local police force was to be franchised out in the same way? Or your local primary or secondary school? There would be public outrage. Yet why, if the government succeed in bringing the principle into effect in one area of public service, would they not eventually look to apply it elsewhere? The principle is exactly the same.

Fat cat lawyers

Some of the proposed changes in fees are laughable. Some long criminal trials heard in this country came about because the prosecution chose to group together more defendants or more charges than was sensible. Defendants cannot choose to be tried separately, and large numbers of defendants in a given case will inevitably result in a long, unwieldy trial. It is now proposed that those defending in such cases should be ‘punished’ by being paid less with each passing day of the trial. In some cases, that would result in a daily fee of just £14 a day (before tax and expenses!) when a trial has lasted 8 weeks. This, for qualified lawyers, would be a fraction of the minimum wage for an unqualified teenage employee. It is nothing less than a government-led attempt to “starve out” criminal advocates. “Oh, you want to do a proper job? Fine. We will stop paying you.” Many weeks into a criminal trial in which I defended in 2011, a young complainant finally admitted having manufactured a false allegation against Mr X, the man whom I represented. She lied, she told the jury, to protect the true culprit. The true culprit is now serving many years in prison. On the latest proposals, someone caught up in a long trial like Mr X would only be represented if a barrister was willing to act for next to nothing.

Grayling is already bending the truth to get his way. Anticipating attacks on his proposals, he has begun recycling the usual tired old headlines about fat cat lawyers. Those headlines are living in the past. Grayling lists a handful of barristers who have made huge sums from legal aid in the past. They are few, and becoming fewer. Often they have appeared in one wholly exceptional case, which they worked on for years, and then waited years more to be paid for it. Grayling’s own figures show that the majority of criminal advocates (65%) earn less than £50,000 in a year from legal aid, before expenses and tax. After expenses, such figures represent a pre-tax income of perhaps £30,000 to £35,000. No holiday pay, no pension. No tax avoidance (cf Starbucks, N-Power or Google). It is time to forget the stereotypes. Are there rich barristers? Yes. They do other sorts of work. Planning work. Corporate work. Or perhaps being privately paid to represent a John Terry or a Chris Huhne. The average criminal barrister works all hours to make ends meet, drives a Skoda not a Jaguar, and takes two or three weeks holiday a year. Grayling might argue, correctly, that the recent exposure of a few MP’s as corrupt criminals does not mean that every MP is a corrupt criminal. High earnings in the past by a tiny minority of criminal barristers cannot alter the fact that most now make modest incomes by working punishingly long hours.

The real Fat Cats

Of course, it goes without saying that if Mr Grayling ever finds himself accused of a criminal offence, he will be able to pay privately for the very best lawyers, just as Chris Huhne did. The right to choose an independent, properly qualified lawyer, will exist only for the rich and privileged few, like Grayling. Small wonder that he is untroubled. “Let them use Eddie Stobart”.

Will it affect you?

It might. It is tempting, as law abiding citizens, to think that we and those close to us won’t find ourselves before a court. Yet there are many ways in which it can happen. Anyone who drives a car is just one serious accident away from the possibility of being charged with causing death by dangerous driving. People convicted of the latter almost invariably go to prison for years, however blameless their past. Professional criminals use false number plates, carefully matched to the make, model and colour of a car which they have seen in their own area: that car could be yours or mine. In offences of street violence, naïve youngsters can find themselves on the fringe of offending by others, and mistakenly identified as being involved, when they were innocent bystanders. Heavy handed police officers can drag the wrong man out of a football crowd. Identity theft can leave any of us falsely accused of fraud or financial crimes, when someone else gave our details. Jilted lovers cry rape. Individuals find themselves in the dock through taking desperate measures to defend themselves and their family against intruders. The list goes on.

Grayling will not be troubled by these examples, nor by the true cases set out below. He has publicly referred to accused individuals as “Criminals”. It is not that he forgot the central, sacrosanct principle of British Justice (“innocent until proved guilty”): he never learned it in the first place. That crass slip of the tongue was more than just a schoolboy howler by a minister promoted beyond his abilities. Rather, it revealed his true attitude to criminal proceedings, and shows why the proposals of such a dangerous, prejudiced man, must be rejected.

Real life examples

A year or two ago I represented D, a man who had suffered terrible injuries in a car accident on a rural road. The man in the other vehicle died in the accident. D was knocked unconscious in the accident and had no memory of the final seconds before impact. An apparently “independent” witness in a third vehicle blamed D, who was charged with causing death by dangerous driving. D was a man of good character, who had never been convicted of even a speeding offence before. He was now facing a prison sentence of perhaps three or four years. A previous lawyer had told D that he had no chance of being acquitted and should plead guilty. Under Grayling’s proposals, he would have no choice of representation. It was clear, however, to his chosen legal representative that something was not right. That representative instructed me to represent D at trial. The case was properly investigated, expert evidence was obtained, and the “independent” witness and her son were cross-examined. D was acquitted, and, in the words of the trial judge, was proved not to have been at fault. All the indications were that the person really responsible was the “independent” witness, who had performed a dangerous overtaking manoeuvre.

Another example was K, aged 17. This young man was out with friends on a Saturday night when some of his companions were drawn into an argument with a second group of lads. Tempers flared. A lad from the second group spat at a girl. Two of K’s friends struck that lad, knocking him to the ground. They both kicked him to the head and he suffered a fractured skull and brain damage. K was on the fringe of the group and had never swung a blow or kicked anybody. Friends of the injured man however remembered his distinctive clothing. He was pointed out to a policeman and arrested. He ended up charged with causing grievous bodily harm with intent. He had never been in trouble, was a high achiever at school, and was expected to go to university the following year. His caring parents, not wealthy people, were appalled to learn that he faced 7 or 8 years in prison if convicted. He was properly represented, and independent witnesses were traced. The flawed identification was exposed and he was acquitted.

Of course, as a criminal barrister, I represent many individuals who are neither pleasant nor very deserving. Even they need proper representation. They are, for example, at risk of being accused of things which they have not done. People with criminal records sometimes fall under suspicion precisely because of their past, and not because there is proper evidence against them. In this country we spend far more on housing prisoners than we do on paying lawyers to represent them. It is worthwhile, in all our interests, to ensure that we imprison guilty people, but only guilty people.

What can you do?

Sign the two e-petitions

https://submissions.epetitions.direct.gov.uk/petitions/48628/signature/new

and

http://you.38degrees.org.uk/petitions/save-legal-aid-say-no-to-cut-price-justice

Make an appointment to see your MP. If you are unsure what to say, use the points in this article. If MP’s get visits from even a few different constituents, they get cold feet and look into things properly. If you can’t see your MP, write to him/her. Don’t sit back and do nothing. If the government get away with the ‘Eddie Stobart’ model of providing legal services, one of our most priceless national assets will be lost forever. Eddie Stobart Healthcare or the Eddie Stobart High School may be next, coming to a neighbourhood near you. If they apply for a franchise, would Eddie Stobart be a fit and proper company to do this kind of work? By all means read the following link, http://www.guardian.co.uk/business/2013/apr/11/stobart-lorry-chief-contempt-trial , but please bear in mind what Chris Grayling would not: everyone is innocent until proved guilty.

Peter Cooper

May 2013

Marilyn Vitte and Dan Bunting. A Pupil and a Barrister. THEY, Mr. Grayling, are the backbone of a Public Service profession that you would destroy for a cheap political fix.

On Friday night, in Middle Temple Hall, I was lucky enough to listen to two speeches from those who are the present and the future of our profession.

Marilyn Vitte, (a second six pupil at 25 Bedford Row) and @DanBunting, (renowned blogger, barrister and cat herder) first stunned their audience into silence, and then finished, each of them, to standing ovations.

They are not fat cats, nor do they ever wish to be. They are dedicated young professionals who want, in Michael Turner’s words to “Do Right And Fear No-One.”

If The Secretary of State, and his Civil Servants at the MoJ could actually take the time to read these two speeches, we can only surmise that rather than picking up the phone to the CBA, their more likely reaction would be to throw yet more taxpayers money at their spin doctors to plant still further misinformation in the public domain, via their sycophantic admirers in Grub Street.

Marilyn and Dan, you have done us proud. Thank you both.

Marilyn first.

“My Lords, Ladies and Gentleman,

My journey to pupillage was a well trodden path.

After the 3 years it took me to complete my law degree – a further year was spent completing the Bar course. I spent 10 weeks completing unpaid mini pupillages. I and probably all of the candidates considered for pupillage, will have also undertaken unpaid or low paid roles interning, paralegalling or doing some other socially worthy and relevant work to gain pupillage. All this study, all this work experience came in for me at the bargain cost of £33,000.
So you can just imagine, when I received that call from my joint Head of Chambers at a leading criminal set of chambers – I was delighted. The 7 years and hard work had all paid off.

I immediately phoned every barrister who had helped me on my path – Not one thought I had an ounce of sanity. Most were distraught that my life had taken such a downward turn in pursuing a career at the Criminal Bar.
I didn’t actually know what they meant. But then, Six months later, the consultation paper was published.
On that day I was at Bromley Magistrates Court, now in my second six months of pupillage. One may have expected the atmosphere to be subdued and for the talk amongst pupils to consist of ‘plan B’s’ and so on. On the contrary, while the pupils I spoke to were concerned about the proposed changes to the profession – they were infinitely more concerned about their client’s bail applications.

I wasn’t sure if it was just those pupils whose determination to see justice done outweighed their personal concerns until later in chambers.

There, I came across some junior tenants engaged in their own heated debate about the proposals. Each had clearly read the consultation paper from cover to cover and each was proffering their own view on where they saw the Bar in five years time. I remember thinking at that point, that the concern expressed wasn’t for a career denied – but for a society where justice may not be done.

But I know, from speaking to junior barristers both at 25 Bedford Row and those I meet in court, that many who have invested so heavily both emotionally and financially in their chosen careers, are determined to fight for their profession and for their futures in this profession.

In the face of these imminent changes, I was forced to ask myself what I believed my future should and could hold.
What has caused me personally to be resolute and to stand firm is pretty close to home; in fact it is actually something on my doorstep.

Some years ago, I became involved in a number of projects with young people – some of whom were involved in gangs. Some of these young people had found themselves before the magistrates’ and the crown courts. All of you here this evening will be familiar with such young people. Their literacy is often limited. Their backgrounds make for tragic reading and their only support in life is the peer group which led them towards the criminal justice system in the first place.

When these young people told me about their experience of the courts and their representatives, their stories make me proud of the criminal justice system of which I am a part. Whilst some of these young people may deserve to spend time in prison – some may have done terrible things, but many are hard working individuals and these young people are deserving of representation, in my opinion, by the best we can offer – as is every and any individual charged with a criminal offence. They spoke of being heard, of being defended fairly and without being prejudged.

I aspire to become the highly competent and skilled member of the Bar that our profession may rightly be so proud of. I, and many others in my position will continue will work hard to achieve that goal.There is no way I would walk out of my profession, leaving a criminal justice system that risks not being fit for purpose on my understanding of the proposals.

Ultimately, I do not intend to walk away from my vocation unless I am dragged from it. So after asking myself the question ‘what could the future hold’, for me the answer is still ‘a career at the Criminal Bar’.
I would like to say that as summer approaches, my diary is becoming filled with glamorous fixtures, but as it is, this Monday I will at Camberwell Green Magistrates’ Court. No doubt I will be covering five first appearances, two committals, a breach of bail…. and a youth court trial. My clerks tell me that the last person to secure tenancy regularly undertook such a case load. My supervisor tells me that I won’t be able to afford my travel without such a case load, and my parents say they have found me an opening at a fantastic supermarket legal service.

My optimism, determination and passion for my chosen career path are not waning even now. I speak for many pupils of my generation when I say that we intend to remain steadfast in our future aspirations and we look to our respective chambers and professional organisations for guidance and support.

What is obvious is that without fresh blood, the Bar will wither on the branch and die. Those choosing to enter this profession choose to be here because we believe in it. As pupils we are committed, we are passionate and we hope – along with our colleagues to whom we look for guidance….to achieve long and successful careers at the Criminal Bar.”

And then came Dan. A hard act to follow, but follow it he did

My Lords, Ladies and Gentlemen,

“I didn’t join the criminal bar to make money, which is just as well. I didn’t however come to work for free, and I’m sure that I’m not alone in that.

We all know the problems, but the problem is that this job has stopped being fun. Last Wednesday I was sitting in the robing room, waiting for a trial to start, when I got an email from the Bank saying my £4,000 overdraft limit had been hit and, if I wanted to pay my Chambers rent, I would have to transfer some money in. I was then in the slightly awkward position of having to ask my other half, a trainee social worker, to lend me some money for a few days.

I’m not generally in the habit of reading EU Directives, but I did find myself wishing that the Government would hurry up and make sure that the LAA (as it’s now known) complies “Directive 2011/7/EU on Combating Late Payment in Commercial Transactions”. Starting with the three grand I’m still owed for a trial three years ago, to the fact that the LAA seems to be constitutionally mandated to refuse to pay a bill in full, or in time.

The conversations around me last week were all in the same vein. The woman who, after 15 years, is leaving the Bar to look after her two children because the money she can earn as a barrister cannot cover her childcare costs. The senior clerk who had to leave his desk to go to the train station and pay the fare of a junior tenant because her credit card was declined and her bank account was empty. [And the barrister of five years call who is having an effectively indefinite career break to look after the children as his wife, a nurse, earns more than he does.] The junior tenant who is working part-time in the evenings and weekends, just to make ends meet.

Why does it sometimes seem that the job has lost its lustre? We “must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests”. That is something we all do, something we all do well, and something that we all take pride in doing well. No-one is asking for a Bentley, but it is harder to stand up to the CPS, to the state, even to a difficult judge, when you are worried how you can pay the bills and whether you will even have a job in a years time.

I don’t want to be the eeyore voice of doom, but it is important that we all understand what is happening to the bar, to the rank and file. The cuts that have been imposed in the last few years are not a question of trimming the fat, but cutting too close to the bone to comfort. We cannot take a further 20% reduction. The Bar has done excellent work in the last thirty years in throwing open the doors of the Inns to those who have the talent, regardless of
their background. The message from the Government is that the legal profession is open to all, provided your trust fund is big enough.

Listening in the robing room, you could be forgiven for thinking that at times this job sounds less like a noble profession, and more like the conversation you would hear from a group of call centre employees with zero hour contracts and a precarious working existence. We often joke that a hearing, or sometimes a whole case, pays less than the minimum wage, but that is sadly the truth. And as a joke, it’s not funny. Most Judges, but sadly not all, understand that when that is the case motivation may be a problem.

I’m just over 10 years call. Many people at my level thought that by now we would be ‘sorted’. We had made our way into a profession and had hoped that after, 5, 10 or 15 years, we would have been settled in it. Some have bought houses or started a family. I am sure that I am not the only person in this hall who has yet to pay off their student’s loan and still carrying debts from university. The only consolation being because I graduated at the turn of the millennium I left university with far less debt that those who are currently studying.

But whatever our personal circumstances, we are all finding our position very dicey indeed. And a worried lawyer is not a good lawyer. Reading the consultation paper makes for bleak reading indeed. Whilst Mr Grayling is fighting for a headline, we are fighting for our professional existence.

No-one owes me a living, I understand that. We all understand that, but we’re not asking for that, all we’re asking for is the chance to make a living doing the job that we love.

There are no more words…

KENT SOLICITOR, OLIVER KIRK’S LETTER TO KEITH VAZ ON THE DISASTROUS CONSEQUENCES OF PCT

This is a follow-up to Oliver Kirk’s recent blogpost on this site. (See below) The outburst of unity between our two professions that it gave rise to was unprecedented.

Oliver, also known as @kirkabout is a High Street solicitor and HCA in Kent. He has practised in Legal Aid crime, serving his local community for the last 15 years. He is a diligent, hard working, and conscientious solicitor, with a large client base and deservedly excellent reputation, like so many of his fellows who do the same work.

On 2nd May, Keith Vaz MP, chair of the Home Affairs Select Committee, issued an open invitation on Twitter for anyone to send him examples of what will happen if the Government’s proposals on PCT are allowed to go ahead. So far it has had 240 retweets. This is Oliver Kirk’s response.

It is, to say the least, chilling.

We are grateful to him, and to Keith Vaz for taking up the fight on behalf of the UK Justice system.

Dear Mr Vaz

You recently asked on twitter for concrete examples of the effects that the Governments’ proposed introduction of competitive tendering will have on the Justice System.

I hope that I can help you understand the devastating consequences that those proposed reforms will wreak.

I have appended a link here to a letter that I wrote some time ago to my constituency MP Laura Sandys. I hope this sets out some of the concerns in a helpful manner.

However, over and above those, as time goes on, I have had further time to consider the effects of the proposed reforms.

It seems clear to me that those reforms will inevitably lead to the extinction of the publicy funded criminal justice system.

Here is why:

Should Price Competitive Tendering be introduced, then as the time for announcing the successful bidders nears, the various solicitors firms currently providing Criminal Defence work will be in an increasingly perilous financial position. It will, sooner or later become clear to their banks that overdraft facilities will have to be called in, which will cause those firms either to struggle significantly or to fail entirely.

The new model that the Government envisages is of large “superfirms”. It is envisaged that these may be formed by mergers and the like, but this conveniently ignores a vital question.

Why would any such “superfirm” want to take on the existing liabilities of smaller firms? The answer is that they will not.

Why should these large corporates take on the debts, liabilities, let alone employees of say the 10 firms of solicitors that they replace, when they will also immediately have to take on the burden of making the staff redundant, of buying its way out of contracts and leases of the buildings they occupy? They will not. They will wait for those firms to collapse in a mountain of debt, and then scavenge what is left, because the only thing that will matter to them is profit. As they will undoubtedly say, their first duty is to their shareholders.

If I am right, and this is so, the consequence is likely to be that as firms fail, and staff are made redundant, solicitors will go bankrupt – and consequently be restricted in their ability to practice.

What, while all this meltdown is happening, will become of the unfortunate “legally assisted person”, who might be on remand awaiting trial? What of the trials that may be aborted due to firms going out of business? Who is going to be in a position to take on these cases?

The Governments’ impact assessment into the proposed reforms makes passing reference to the fact that a number of firms of solicitors will close. The plan is that that number will be over 1000.

The impact of that has simply been glossed over. The impact upon the solicitors and their staff is obvious. The impact upon those they represent is potentially disastrous.

Imagine receiving this letter whist on remand:

“Dear Mr X

I regret to inform you that the solicitor that was previously assigned to represent you has now gone into liquidation. As a consequence, the fee earner and advocate who were dealing with your case will no longer be able to do so.

In view of the short time left before your trial and the amount of work that your new team have to do before trial, we are left with no alternative but to apply to the Court for an adjournment.

Yours etc”

What are the other consequences of the closure of a firm of solicitors? It is not merely a question of shutting down shutters and walking away. Records must of course be kept. Files must be kept for 6 years.

Professional indemnity insurance must continue to be paid for 7 years.

All of this is quite apart from other costs mentioned above, that are associated with the closure of any business.

It is important to bear in mind, when considering what are on any view, fundamental changes to the Criminal Justice System, that the amount that the Government seeks to save in these reforms is in fact very modest indeed.

The consequences both for Justice and for individuals will be massive.

Please bear in mind that once the system is broken, as it will be by these proposals, it will not be possible to put the genie back into the bottle. For the first time in my 15 plus years in the profession, people are talking of leaving. Leaving the country. Leaving the profession.

Both solicitors and barristers alike are frankly dismayed at the contempt with which the Government appears to view us, and the cynical way that it attempts to portray us in the media.

What are the consequences of a poorly funded and resourced Legal System? A decline in confidence in the Rule of Law. Citizens will feel that cases are both poorly prosecuted and defended. Guilty people will walk free, and the innocent convicted. If there is no confidence in the Rule of Law, Law and Order breaks down. People take the law into their own hands. They stop reporting crimes to the Police. They resort to vigilantism.

Law is the glue that holds society together. A Conservative Councillor recently said to me that he “objects to paying for others to use the legal system”.

Well, if tax payers do not pay for it, no one else will. If there is only Justice for the rich, that is no Justice at all.

That is why I object so strongly to these proposals, and why this is not (or should not be) a matter of party politics. This is a matter that strikes at the heart of our Country and which should concern each and every one of its’ citizens.

Thank you for your interest.

Oliver Kirk

Perspectives of a Law Student – QASA & BVT and the Students’ future at the Legal Aid Bar

Our thanks to Adam T Smith for this blog. Students are the future of our profession, and we are fighting to ensure that you have one. Your support is invaluable and your voice needs to be heard.

This quote from what follows, admirably sums up the message that should go out to Bar Standards, the MoJ and the General Public.

“But if I did work in legal aid, I wouldn’t want to be merely somebody’s idea of ‘competent’. I would want to have the opportunity to develop a reputation which speaks for itself on the basis of which people would choose to engage with me.”

I have been keenly following the progress of the ongoing debate (or should that be battle?) over the Quality Assurance Scheme for Advocates and Best Value Tendering, first with fascination, and then with a degree of alarm. I hope to express my view as fully as possible on what the proposals of QASA and BVT mean to a law student at university.

I’ll start with a metaphor. A man is about to walk into a building. He is a few metres away from the entrance. Just as he is making his way up the path, the building catches fire. A blazing inferno which our man can only stand outside and watch. I cannot (and must not) speak for all law students, but that accurately sums up how I feel about my ambitions of practicing in criminal law (and more broadly, publically funded work). I’m standing outside watching the justice system combust, and thinking that, if I’d have been there much earlier, I would have been inside during the blaze.

I am coming to the end of my first year. First year has its advantages. I can enjoy the study of law with less pressure; I can develop responsibility, both living independently and working in a disciplined way, at an appropriate pace. Finally, I am best-placed to keep a keen eye on what is going on in the legal professions, and the justice system, so I can consider my future with full knowledge. Publically funded work is all I’ve ever wanted to do, right back from when I went to my Local Magistrates’ Court (now closed due to cuts) and watched defendants self-represent. As I have spent more time on shadowing placements, at the civil and family courts, I have seen litigants-in-person there too – it never seems to go well. Lawyers are important. Representation and advocacy are important. And this means having lawyers (both sorts) who strive to excel. That’s what sparked off my enthusiasm in the first place.

If I understand it correctly, QASA is going to make sure that lawyers will not strive to excel. It claims to assess competency. Do we really want advocates who are merely competent? Do we really want judges taking their eyes off the issues of the case to fill in forms and formally assess whether the advocates are competent or not? Constantly being assessed comes at a price for the practitioners too – time and money will be wasted on this. Baroness Deech has been quoted as saying that ‘most advocates will sail through it’ – if that is such a given, what is the point? Market forces surely already deselect the worst amongst the professions. A shoddy high street practice will not get any repeat business or word-of-mouth recommendation; an incompetent barrister will receive no instructions. So what need for QASA? Any article I’ve ever read on the subject comes up with only one – a badge of respectability.

A badge of respectability for whom? I have taken plenty of time to understand the basic principles of the Best Value Tendering proposals and what it might mean for the profession and I think I have a pretty good idea. The current proposals seek to severely cut down the numbers of law firms who can provide legal aid services. The contracts will be awarded to those who pledge to do the most (not best) work for the least money. Who is going to be able to put forward a competitive tender? Not the local firm on the high street, but the large corporations whose names have recently become mud amongst legal aid practitioners. And regardless of who gets these contracts, are they likely to want to eat into their scant profits by instructing counsel if they have a QASA-graded advocate in-house who can do a competent job in court for them? It seems unlikely. It seems unlikely that this QASA-graded advocate will get paid much, and will not be inclined to work 70 hours a week like some criminal barristers reportedly have to on a regular basis.

Ultimately, what will that mean for the quality of representation afforded to the defendant? Will there even be any quality? And if the defendant doesn’t trust their lawyer and wants a new one, he cannot change representatives except in ‘exceptional circumstances’ (whatever those are), because the lawyer he has is ‘competent’. “QASA says that he’s competent, so he is, and that means we’ve fulfilled our obligation to represent you” – says the Ministry of Justice. I am at a loss to understand how not having any choice about who represents you is just.

As a first year module I studied administrative law. I know one 30 credit module’s worth about Judicial Review, and even I could find grounds for reviewing QASA. Improper purpose (Grayling threatening to impose OCOF on crown court advocacy if the bar does not co-operate is one), failing to take into account relevant considerations, and the Article 6 right to a fair trial. I have it on good authority that Wednesbury unreasonableness never succeeds as a ground for review, but I’d throw that in there too! Abolishing justice for financial reasons sounds Wednesbury unreasonable to me.

So, what does this all mean for a first year law student? Legally aided work has been all I’ve ever wanted to do. But if I did work in legal aid, I wouldn’t want to be merely somebody’s idea of ‘competent’. I would want to have the opportunity to develop a reputation which speaks for itself on the basis of which people would choose to engage with me. I certainly don’t want to train with and work for an anonymous conglomerate which doesn’t know the value of justice. I want to learn from solicitors or barristers who do the work and take great pride its vocational element. Finally, I wouldn’t want to earn next to no money in return for £27,000 of university tuition debt (mine was the unlucky year), plus maintenance, plus a postgraduate vocational course. I think a graduate degree merits a graduate salary. I don’t expect to earn hundreds of thousands on legal aid. But I do expect to earn more than I could have got if I’d have walked into work, as a school leaver, without being saddled with the outrageous debt I know I’m accumulating.

So, to return to our man standing outside the burning building, he can but wait for the fire to be extinguished – or else for the entire building to burn to the ground. Then he will be faced by some very difficult weighing up exercises as to where he wants to take law next. I wish the CBA and all the solicitors affected the very best of luck in putting out that fire (and reasoning with the arsonists!). I had the good fortune to attend the CBA spring conference and I was deeply impressed by the depth of feeling and the strategies being employed by the CBA – I hope you all continue to do right and fear no-one.

PRICE COMPETITIVE TENDERING. A SOLICITOR’S VIEW FROM THE HIGH STREET

THIS IS THE TEXT OF A LETTER FROM A KENT SOLICITOR IN HIGH STREET PRACTICE IN THANET, TO HIS LOCAL CONSERVATIVE MP, AFTER A MEETING IN HER SURGERY.

IT MUST BE TYPICAL OF THE STARK ISSUES FACED BY THE SOLICITORS’ PROFESSION NATIONWIDE.

IT IS NOT JUST THE “FAT CATS” AT THE BAR WHO ARE TRYING TO DEMONSTRATE TO THIS GOVERNMENT THE NATURE AND EXTENT OF THE DISASTER THEY ARE ABOUT TO FOIST ON THE PUBLIC.

THE LETTER WAS WRITTEN BEFORE TODAY’S UNCHALLENGED ARTICLE WHICH THE TIMES HAVE PUBLISHED, SETTING OUT THE LORD CHANCELLOR’S CURRENT “ARGUMENTS.” NONETHELESS IT COVERS MANY OF THEM.

THE CRIMINAL BAR ASSOCIATION AGREES ENTIRELY WITH WHAT OLIVER KIRK HAS TO SAY. WE BELIEVE AND HOPE THAT THE VAST MAJORITY OF SOLICITORS SHARE HIS VIEWS AND FEARS. WE WELCOME SUPPORT FROM SOLICITORS WHICH WE IN TURN WILL DO OUR BEST TO RECIPROCATE.

WE ARE ONLY TOO WELL AWARE OF DIVISIONS IN THE PAST. BUT NOW, WE ARE WHERE WE ARE, AND WILL FIGHT TOGETHER WITH THEM.

PLEASE DO FEEL FREE TO RESPOND TO THIS HERE, AS WELL AS CIRCULATING IT AS WIDELY AS POSSIBLE

“Dear Laura, (Laura Sandys MP)

Thank you for taking the time to see me and discuss Legal Aid last week, following the release of the Government Consultation.

I have quite a lot to tell you, in the hope that you will understand and share my concern at the proposals, and that you will be able effectively to intercede with the Minister, in the hope that these proposals will be fundamentally reviewed before implementation, and a better, more efficient and just solution may be found.

BACKGROUND

At present, Criminal Defence Legal Aid is provided by 1400 firms across England and Wales. In Kent there are (I think) approximately 50 firms. These firms range from sole practitioners, to small to medium sized businesses. In Kent, there are no firms that cover the whole County effectively. In Thanet, there are 2 firms with offices, my own (BKRW) in Ramsgate, and Kent Defence who have an office in Cliftonville. There are another 10 or so firms who are on the local duty solicitor rotas, they have offices in East Kent also.

The Government makes much of the increase in Legal Aid spending over the last 10 years, and points to a need to be efficient. I do not disagree that efficiencies may be required, but it is worth noting that, although spending on Legal Aid has gone up, the amounts paid to lawyers to deal with criminal cases have not been increased since 1997. This indicates that the problem is not the costs of the lawyers, but the volume of work being done by those lawyers.

It is true that Prison Law advice has been a growth area, but also consider that over the last period, there have been significant new offences introduced, and new areas of evidence which can now be admitted at trial, which could not be previously (bad character and hearsay for example). These factors increase costs.

Out of a budget of £2 billion, the Government wants to save £220 million. Whist this is a significant sum, the method by which it is proposed to save this sum strikes at the heart of our Criminal Justice System, and will shake public confidence in that System. Please, bear in mind that the Rule of Law, and public confidence in the justice system is the cornerstone of a democratic society.

THE PROPOSALS

By necessity, I paraphrase, (the consultation document is over 160 pages long!).

The Government will invite tenders for Criminal Defence services for each area of the UK.

One such area is Kent. It is proposed that there should be 5 contracts awarded in this County.

The Government proposes to guarantee volume of work to these 5 “super firms” by removing the right of a legally assisted person to nominate a particular solicitor. Each detainee or person charged will have a solicitor assigned to them.

Of course none of this prevents a person choosing to pay his own lawyer privately, but if they do (assuming they can find lawyer happy to be instructed by a person in custody) their legal costs will not be refunded if they are never prosecuted, and will only be refunded in (small) part, should they be found not guilty .

RESPONSE/CONCERNS

1) In our meeting you asked how other countries manage to spend less on Legal Aid than we do.

I am not an international jurist, but it seems to me that the reason is that our European Partners have a fundamentally different legal system. Most have inquisitorial systems, most have very few cases decided by juries. Those that do have juries, have juries that retire with Judges to assist in their deliberations. Most do not recognise, as we do, the differing roles of solicitors and barristers/advocates. The short point is that comparing our Legal Aid spend with other countries is not meaningful. It fails to take account of the differences between our legal systems.

2) The proposal to award only 5 contracts for Kent and to guarantee work by removing consumer choice.

These proposals are bad for Clients and bad for lawyers.

The effect will be that all of the 50 or so firms currently supplying legal services in Kent will need either to expand or merge with others to bid for contracts covering a wide geographical area. The proposal is that bids must be made by October 2013 and contracts start October 2014. This is an astonishing pace of change, and it seems very likely that chaos will be the result.

Winning bidders will have to centralise, and keep overheads to a minimum. This is likely to mean that there will be large areas where there are no lawyers for clients to go and see. It seems most unlikely that any winning bidder would have an office in Thanet, In fact it is more likely that there would be one centrally based office for Kent in, say, Maidstone.

It is very important that a defendant or suspect in a criminal case has confidence in his lawyers. A lack of such trust leads to delays. It takes a long time to gain a reputation. We as lawyers work hard to gain the trust both of our clients and the Courts. The Proposals to remove client choice of lawyer will remove that essential relationship between lawyer and client.

The Proposals will create inefficiency. Suppose that I represent a man arrested for his 10th offence. I have represented him for years. I represented his father too. When I go and see him in custody, he knows and trusts me. He will accept my advice more readily than that of a stranger. Given that I know him and his background fully, I can interview him far more quickly than I could if he was a new Client whom I had never met before.

Many of those passing through the system are repeat offenders. Their “own solicitors” know if they have drink/drug problems. We retain and can re-use Mental Health assessments. We know when our Clients might be a risk to themselves or others.

All of this will be lost if consumers are required to have a lawyer appointed to them. There will be significant duplication of work, and inefficiency.

The Proposals will be bad for quality. It seems inevitable that whoever gets the contracts, they will do so with a view to making money. How will they do that? Well, by removing customer choice, the Government is also removing any capacity for the firm to expand, to attract new or even repeat business.

There will, under these proposals be no choice (compare schools, health care?) and no competition between providers. The lawyers get paid the same, whether they are good, bad whether they work hard or not. They cannot lose clients, they cannot gain clients.

Furthermore, given that the winning bidder will receive a fixed and finite amount of money to provide their services, there will be a pressure to maximise profit by employing cheap, and inexperienced lawyers. This is in itself counter-productive, after all, an experienced lawyer is more likely to give a client realistic advice about his prospects, and less likely to detain the Court with poorly thought out submissions.

There must be a danger that a great number of sensible, experienced solicitors will find themselves unable to gain employment doing publicly funded work. They will either leave the profession, have to retrain, or do privately funded criminal defence, (which is a rare thing indeed in Thanet). The consequences therefore would be a loss of skill and experience resulting in inefficiency and the creation of what is likely to be perceived as a two tier service. Those who can afford to pay their lawyers (and lose their money, even if they are falsely accused) will get the best. Those most vulnerable and without the means to pay will be appointed a cheap alternative.

A fixed fee system rewards efficiency by the provider, while sacrificing quality for the consumer. Lawyer fees are currently predicated either by time spent or by a combination of page counts and matter type. If people are paid the same amount, no matter how much work they do, there is a danger that they will seek to do as little as possible. Corners will be cut, papers will not be properly considered, witnesses may not be interviewed. This is a further way in which long term costs will in fact be driven up. Poorly prepared defence cases result in delays and in convictions. Convictions result (very often) in prison sentences and Appeals.

A further insidious proposal is that Advocates should be paid more if our Clients plead guilty early. Imagine being arrested, you cannot have the lawyer of your choice, and then you are told that the one appointed will only make a reasonable living if you plead guilty! Confidence inspiring? NO.

THE WIDER IMPLICATIONS

It seems to me that if these proposals go through, there will be carnage. In the run up to the award of contracts, banks may decide to remove firms’ overdraft facilities, and businesses will fail. There are likely to be considerable numbers of redundancies of solicitors, clerks, secretaries, support staff and their suppliers. Consider that the scale of chance required is huge. Firms currently operating have leases on or even own premises. They simply cannot up sticks and leave in 18 months.

OUR JUSTICE SYSTEM IS CURRENTLY RIGHTLY REGARDED AS ONE OF THE BEST IN THE WORLD. IT WILL NO LONGER BE IF THESE PROPOSALS GO THROUGH UNALTERED.

Thank you for taking the time to read this, I have (believe it or not) tried to be succinct and not indulge in hyperbole, but instead to concentrate on real and tangible effects. I would of course be interested both to hear your views and of any progress you are able to make in your dealings with Mr Grayling.

Yours faithfully,

Oliver Kirk

Solicitor

Gemma’s Blog. A guest post on what the BVT consultation REALLY means to the public and the Criminal Justice System

Sometimes we are asked to repost other people’s blogs on this site. We are delighted to repost this one. Please read it and tell all your friends, (and enemies!)

The response belongs to a learned colleague of mine. His name is Will Nelson and is a criminal lawyer. He is a much better writer than me, and has kindly given his permission for me to publish this on his behalf.

For reference, please see the MoJ’s consultation paper here:www.justice.gov.uk/downloads/consultations/transforming-legal-aid.pdf 

And the petition here – please take a minute to sign it – and you’ll find out why it is so important to fight against the government’s decision below: http://epetitions.direct.gov.uk/petitions/48628

“I start by saying that I have a vested interest in all of you signing this petition. If the proposals that this petition is seeking to highlight happen I along with about 5000 other people will lose their jobs. Now I know that those of you who are my friends will probably say something like “that’s a shame” and will genuinely, for a few minutes feel a bit down for me. However what I suspect is that none of you will realise the greater significance  that lays behind this.

Since this government came into power via the back door, they have systematically been eroding the justice system in the name of saving money, improving efficiency and giving the tax payer value for money. All of those are entirely laudable aims and I certainly would not seek to criticise them for so doing. That is I would not seek to do so if these aims were in fact the truth of the matter. What this really is about as usual is politics. The Coalition started on this economic course and despite repeated calls to slow down or try something new, they have chosen to stand fast and plough on, regardless of the damage this will cause. You can see it around you in every public service. They have decimated the police force leaving officers under paid, overwhelmed and demoralised. Huge chunks have been sliced from the NHS, crippling front line services. The benefits system is in chaos, and the public have been turned against what is a fundamental part of our society and a need for social well being. I know brilliant teachers that have had enough and despite their love of the profession feel that their position has simply been made untenable. The list goes on and on.

So to Justice. The concept is not just about capturing criminals and punishing them in the way that The Daily Mail would have you believe but is the cotton that binds the fabric of our society together. We all rely upon justice every day in everything we do. The rule of law is fundamental to the safe guarding of all those  rights and privileges that living in a democracy you would expect. Justice, in essence protects you from wrong doing. The erosion of this concept is to expose you to the possibility that a wrong done to you by state, corporation or private person will go unresolved. It is therefore vitally important that all of us have access to justice.

Since the coalition have come into power they have sought to erode access to justice at an unprecedented rate. Furthermore, this has been happening at a time when it has never been more important to have such access. As more cuts take effect, the economy lurches (both here and abroad) from crisis to crisis and people lose livelihoods, public services, savings and with increasing bills not to mention higher taxes, it becomes more important that people can seek redress.

Let me give you some examples; let’s say that you have been working all your life and you suddenly lose your job in ways you feel may be unfair. First of all even though you have lost your salary and probably cannot pay your bills, you are not entitled to any free legal advice to help you consider whether the termination of your employment was lawful. You are immediately on an unequal footing with the organisation that you believe may be in the wrong. Then you decide the time has come to cash in on some of the national insurance you have been paying all those years. The benefit system is so complicated that even those administering it get it wrong. You are now no longer entitled to any legal help in securing those payments, or challenging a decision you think is incorrect. Remember also, if you fill those forms in incorrectly, you may be committing an offence for which you can be sent to prison. There are many more scenarios that may effect you. These are not changes that will only effect “work shy scroungers” as the right wing press have been so careful to have you believe. These changes stop you getting the access to justice you may really need one day. Those that will still get access are those that can afford to pay thousands. Are those who can afford to pay really the people who need access the most?

Now to crime. It is perfectly acceptable for you to think this really never will effect me. In fact I suspect you will be thinking that those that require legal help in defending criminal cases probably do not deserve it in any case. I have to say that there are a great many people that I come across who frankly attract very little sympathy even from me. I’m not going to try and lecture you on why everyone deserves the right to be represented, however I think it needs to be said. If you are accused of a crime by the state, it is your right to have someone qualified to do so, to speak on your behalf. Not to have this protection would very quickly lead you into a situation like those we see today in North Korea and other less democratic nations. Let me tell you, no one,  absolutely no one is too far removed to be arrested for a criminal offence, charged, taken through the courts. In fact it is pretty easy to find yourself in very serious trouble very quickly. Consider these examples; you are driving home from work, you look down for a second to change a song on your iPod or the station on your radio and when you look up you realise the car in front has stopped and you haven’t reacted in time. The person in the car in front that you hit is killed. You are arrested, taken to a police station and following an interview you are charged with causing death by careless driving. You go to court where you are found guilty and you are sent to prison for 12 months. Prior to changing that track on your iPod you hadn’t even had a parking ticket. Would you not want access to a lawyer to guide and advise you and speak on your behalf? How about adding insult to injury. Lets say that you have the money to pay that lawyer. You are found not guilty. You are not entitled to all or possible any of the money you paid out defending yourself against the state. In effect you have been taxed for the right to defend yourself and protect your liberty. Now that should really piss you off. If it doesn’t re-read this paragraph as you have not understood it.

I know that is an extreme example but it doesn’t have to even be that. I know that there are plenty of you who still smoke weed or indulge in other extracurricular activities that are illegal. I know that there are plenty of you that have got into scuffles on a night out. All of these things that you do as ordinary, hard working, normally law abiding citizens can bring you into contact with the criminal justice system. Your life and career as you know it can be wrecked in an instant.

Under these proposals, you will lose the right to choose who represents you. You may have to travel miles to see your appointed solicitor on the other side of the county. If you are lucky enough to qualify for legal aid, (I suspect only a handful of you will even be close) the service you will get will frankly be below par. There will be no incentive for lawyers to be the best. There will be no competition so no reason to up your game as there is now. Criminal lawyers now trade on the strength of their reputations. Next year you won’t need a reputation. Let me tell you this too. Criminal lawyers, in fact most lawyers that are paid by the state, do not live in mansions. We do not drive brand new BMWs. Most like me are screwed by the debt that they had to incur to become a lawyer. I live in a two up two down house in a small village. i drive a nine year old car. Most of us work very long hours 7 days a week. I was on call last night. I had 13 calls, I did not go to bed and I did not get paid anything for the privilege. I do this job because I believe in it, because most of the time its rewarding, challenging and I can make a difference.  Do not be fooled by the press into thinking we are complaining because we are losing our cushy lifestyles. We are complaining because we are losing our jobs and because the thing that we fight to preserve everyday as lawyers is being taken away from you. The access you should have to justice.

This government do not understand you. They do not come from where you do and none of them have had to strive in the way you have. They know they will be gone in two years. Do not let them lay waste to this country on their way out the door.

Thanks for reading.”

Thank you from me too, and thank you to Will. A great peice of writing, I am sure you will agree.

Simon Myerson QC responds to David (I’ll never take silk) Wolfe QC on why his “defence”of #QASA is a little lacking in substance!

Is This The Best That Can Be Said?

APRIL 10, 2013

 

I was alerted by a retweet from Baroness Deech that David Wolfe QC had blogged in favour of QASA. David Wolfe QC achieved considerable publicity when he was 11 years call by announcing he would not take silk and then, in 2012 when he was 20 years call, did so on the basis that he could not otherwise service his clients fully and was loosing work. His entry on his Chambers’ web site states that he believes passionately that public bodies should act in a fair and open way. He was until recently a Commissioner of the Legal Services Commission and a member of the Legal Services Board (the body which wants to abolish the cab rank rule). According to his page on the Chambers’ website, he does not do criminal work. I wondered whether this would be the beginning of a fair and transparent debate. I am afraid I don’t think it is – but you must judge for yourselves. This is what David Wolfe QC has written; my responses are below.

 

We will never get close to having an “independent, strong, diverse and effective legal profession” (which section 1 of the Legal Services Act 2007 sets as a regulatory objective for the regulators) if advocates providing a high-quality service to their clients remain undermined by others who are not even competent.

In my view we have one already. The government agrees. This is what Chris Grayling said in March 2013:

As a government 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 billion to the UK economy in 2011

The argument David Wolfe QC is advancing seems to be that incompetent advocates prevent the profession as a whole meeting statutory requirements. That is an implicit assumption made without any evidence. It does not rest on proportions of incompetent versus competent advocates. It does not manage to provide a definition for ‘competent’ or incompetent’. On its face the argument is bad.

Let’s not fool ourselves: we all know lawyers – including barristers, and including criminal advocates – who are just not up to it (perhaps they never were, perhaps they have lost their touch) at all levels, from magistrates’ court practitioners to QCs. The most senior judges complain about it; the Attorney-General notes the cost (not to mention harm to the public interest) of appeals necessitated by poor trial advocacy.

It is of course true that some people – perhaps because of family circumstances, illness or personal pressures (I’m not sure I can sign up to just ‘lost their touch’, which seems to me to be overly crude and rather unfeeling) are not performing as they would wish. It is equally true that some people go over their competence level regularly. That is why a proper quality assurance scheme would assist (QASA as first proposed was a system for warning advocates that they needed to up their game). But, as support for the argument that the profession as a whole is not meeting statutory requirements, the point is a huge stretch.

Neither the professional obligation falling on us all only to take on what we can do competently, nor market forces, has dealt with the problem.

Hasn’t it? As I say we have no evidence that this is so and David Wolfe QC provides none. He has an anecdotal claim that senior judges complain (not to him, it appears), but whether that is a generalised complaint or a specific instance I don’t know. Nor do I know the result of any such complaint, whether it has been investigated and whether the person criticised was able to respond. All of this falls within my definition of fairness and openness. There is a shed-load of difference between the odd disaster, which can and should be dealt with by the profession, and a far more generalised complaint that the profession is failing. David Wolfe’s anecdotal accounts are of the latter: they morph – unacknowledged – into the former. I have to say that this is not a type of argument which commends itself to me.

Nor will they, alone: advocates still regularly get instructed to appear in (and take on) cases beyond their competence. We simply cannot credibly claim that we are all competent to do the cases we all currently take on (though of course, as trade unions, the Criminal Bar Association and Bar Council will do their best to protect all their members and still make that claim).

The same trick has been played again. It is correct that we cannot all claim to be competent to do all the cases we currently take on. The shift comes in the allegation that this is a regular thing. Is it? The BSB has just released the latest conduct committee report showing 133 new cases in the last quarter of 2012. That equates to 520 cases a year. 82 of those cases – 328 a year – were external complaints (i.e. could possibly be of people acting beyond their competence). Even if all external complaints supported David Wolfe QC, which they obviously could not because such complaints include dishonesty and misleading the court, 80% are dismissed. Accordingly, there can be no more than 65 cases per year which support this thesis. There are 12,000 barristers doing goodness only knows how many cases each per year. Let’s say it’s 20 cases each, which is likely to be a massive underestimate. That makes 240,000 cases each year. Now let’s say that only 1 in 10 people actually complain, so there could be as may as 650 cases of acting outside competence per year. That’s one complaint for every 369 cases. Is the enormously troubling and expensive machinery of QASA (not to mention what a bad scheme it is) justified by that? Not in my view. And such facts as exist to actually make the case are – to coin a phrase – fairly and openly available. Why haven’t they been examined?

So no surprise, particularly in an oversupplied market, that the funders of most advocacy in the criminal courts – the new Legal Aid Agency, the Crown Prosecution Service etc – only want to spend taxpayer’s money on advocates who have been assessed as able to do the job properly. This is not about marking out excellence; it is about ensuring a minimum competence.

That strikes me as wrong. The CPS don’t want solely spend money on a competence basis. They are paid for keeping work in-house and they pay a salary premium to employees for being Higher Courts Advocates. The CPS’ own Inspectorate’s comments about the use of such advocates based on value alonearen’t exactly a secret. So the evidence is that quality is not the priority it ought to be, even now. The priority is money. The new legal aid consultation, doesn’t even pretend otherwise. The Ministerial Forward does not use the word ‘quality’ once. This is not about minimum competence – a phrase which creeps into David Wolfe QC’s article at this juncture without any argument that minimum competence is lacking at present. It is about minimum money. The new proposals are going to break the system, which will result in more wrongful convictions and acquittals and a lessening confidence in justice, which will corrupt society. The divide between the fees paid for representing people accused of really serious crime and prosecuting those same people, and those paid for representing people, for example, opposed to a badger cull or those opposing a Roman Catholic School because it isn’t humanist (to pick 2 of David Wolfe QC’s recent cases) cannot survive public scrutiny without undermining confidence. It may well be that David Wolfe QC’s own fees for those cases were on a par with the fees paid to criminal practitioners for defending a case of less than 2 days (currently an absolute maximum of £2,856 plus £1.63 per page of prosecution evidence, plus £6.53 for each witness over the first 10 witnesses, to include all preparation – however lengthy and however many defence documents there are), but – unlike in a criminal case – his opponent’s fees will not be so limited. The new proposals will also break people. Real individuals with real lives and families. This is all a subject for another time. But it is offensive that QASA is argued for on the basis of  quality, when that is plainly neither its genuine purpose nor its likely result. And the offence is nor lessened by the fact that the argument comes from a barrister who does not work in the field of criminal law, is not subject to the same financial constraints and whose work is not going to be touched by QASA for the foreseeable future.

Is that so wicked? The public would rightly insist on it. So too surely would the competent barrister, fed up of losing work to others not up to the job, or of sitting in court watching justice not be done because another barrister is out of their depth. We’ve all been there. Quality assurance would be happening even if competitive tendering was not being contemplated.

But it isn’t. Let’s take the field of public law, in which David Wolfe QC practices. Adopting his argument for the moment, the temptation to take work for which you are not competent must, surely, be greater in public law than in crime, simply on the basis that there is more money to be made in the latter field. Yet the very market forces and professional obligations which David Wolfe QC says do not work for criminal law seem to work just fine in public law. If QASA were justified on this ground, it would be required for every area of practice. And public law – being a relatively small field with highly trained Judges and a public interest element almost as great as crime – would be an ideal area to pick for a pilot project to see if QASA delivered. I’m not hearing much of that… In reality, the Bar delivers an extremely high level of quality at present and the public is happy with that quality. There is no public pressure for QASA.

If the regulators don’t do it (protecting privately paying clients as well as public purchasers) the Legal Aid Agency (and other big purchasers) would likely set up their own systems (and refuse to contract with any barrister who does not meet their quality standards, as would any other public purchaser of services). They would likely outsource that work. Would we prefer Capita or G4S to set up and run crime QASA? I doubt it.

This is the BSB argument. If we don’t accept QASA a worse scheme will be imposed. Of all the arguments I have heard, this is the worst. Why? Because it pre-supposes that the purpose of a quality scheme is to threaten the professions and drive down costs. Otherwise there could not be a ‘worse’ scheme. The answer to David Wolfe QC’s question is that it does not matter who runs the scheme. What matters is whether the scheme delivers quality assessment. QASA does not. And QASA doesn’t improve because an alternative scheme could be administered by a commercial organisation (although the contempt for commercial organisations inherent in that position sheds an interesting light on the thinking). QASA is a bad scheme. It doesn’t deliver. Although David Wolfe QC’s contribution – astonishingly to my way of thinking – doesn’t focus on this issue at all, that is still the reality.

So maybe the fact that the regulators are doing it is not so bad? Barristers might have wanted the Bar Standards Board (BSB) to go it alone. But, in reality, it would have been chaos for the chartered legal executives, solicitors and barristers who appear through the criminal courts to be assessed by separate but overlapping schemes. A combined scheme will put to bed the solicitor-advocate-bad, barrister-advocate-good debate. We also need to remember that there are about twice as many solicitor criminal advocates as there are barrister criminal advocates: the main regulator of criminal advocates is the Solicitors Regulation Authority. So the BSB had to work with the other regulators in the Joint Advocacy Group (JAG).

Work with – of course. Accept nonsense – of course not. Moreover, this argument also rests on the unstated position that this is a bad scheme but that’s what we have to have, because that’s all anyone else could agree on. Isn’t it our job to be fair and open about this? If the professions can’t design a workable scheme together then why not have competing schemes? Let’s see what the users go for.

Incidentally, of course, if oversupply is reduced, then those who are left (i.e. the truly competent ones) will be busier, and will be better able to resist downward pressure on pay rates. But let’s not be self-interested about this!

It’s obviously tempting to look at an argument which is right and self-interested and only point to the self-interested bit, thereby diminishing the fact that the answer is still right. It’s tempting, but in my view it’s wrong. It avoids real assessment of argument and replaces it by sneer and smear. I went to the Bar because I believe in fairness and openness – and that is only achieved by opening competing arguments to neutral, unbiased assessment. Arguments which seek to prevent such assessment are shabby. If the aim is to help the truly competent, then why not run a proper scheme, let it compete with other schemes and let the best scheme win out? This isn’t about oversupply as a bad thing. It is about using the number of barristers to reduce earnings. That’s unashamedly political and it may be government policy. If so, we will have to put up with it. But don’t, for pity’s sake, dress it up as an argument about quality.

We might not like every detail of what the JAG has proposed for crime QASA, and we might be sceptical about how aspects of it will all work in practice, but it has the potential to weed out incompetent performers, whoever they are.

I don’t run my cases because they might potentially win. And I don’t tell my clients that it’s worth running with a case (whether they pay or the state pays) because it has potential. And I don’t think a different standard should apply to how my profession is governed. This isn’t an argument worthy of the name.

So why do vocal opponents argue for a boycott (#notoQASA etc)?

Because QASA as currently designed is rubbish.

(1) Plea-only advocates (POAs) If POAs were currently banned, it might make sense to argue against a proposal newly to permit them. But they already exist. Boycotting a scheme which will subject them to quality assurance is going to look pretty daft (after all, the cry for a boycott is not a cry for a more onerous crime QASA scheme). And given the ratio of advocates to full trials, many (possibly most?) current POAs are actually likely to be barristers.

This argument misses the point. I think it does so because David Wolfe QC doesn’t practice criminal law. POA’s don’t exist. What exists is a culture of (some) solicitors taking cases until it is clear the client won’t plead guilty and then handing them over, because they will not represent a client at a hard-fought trial. That regularly means that avenues of enquiry helpful to an innocent accused aren’t explored until very late in a case – perhaps too late. It undermines confidence between client and representative and thus in the system. It sets up a conflict between a client who wants to take advice and wants continuity of representation, but who cannot be sure that the advice is being given dispassionately in his or her own interests. That conflict – which is not based on any stupid assumption that a solicitor cannot be independent, but rather on the existence of a divide between what a solicitor is allowed to do and what the client should be advised to do – is multiplied when the client may actually want his solicitor to represent him. That is not something that we should encourage – quite the contrary. Yet QASA will turn this culture into the approved way of doing things.

(2) QCs It is argued that crime QASA should not apply to QCs because they should all be presumed competent to undertake criminal trials at all levels. Even people who became QCs ‘crime’ recently cannot be assumed competent to do criminal trials. After all, the QC system is driven by references arising from ‘cases of substance’, which could be all cases in the Court of Appeal and need not include any trials. So even a recently appointed QC ‘crime’ need not have demonstrated their ability in criminal trials.

Yes. And the moon could be made of cheese. But it isn’t. There are, as far as I know, no silks in this category. If there were, one doubts whether they would be as stupid, as venial and as incompetent as David Wolfe QC implies. Instead, I would expect – and be confident that – a silk offered a case beyond their competence would turn it down. I don’t know why David Wolfe QC thinks otherwise. These are people of probity and integrity and it does no one any credit to treat them as if they were shysters, desperate for a fast buck at the expense of the public.

But even if new appointees could be assumed competent for all trials, what matters for QASA is whether the same can be said of all practising QCs (i.e. regardless of when they became QCs and on what basis). Of course it cannot. The loose linkage of the QC award to work type is relatively recent, and there is no reaccreditation. Can someone who, 20 years ago, was a brilliant family lawyer and became a QC on the back of that, be assumed to be competent to do the criminal trials which they take on at all levels now? Of course not. They may (still) be brilliant, but they might not be, or not in crime. Even someone who did all crime at the time they became a QC may have lost their touch. We all know of examples. No rational QASA scheme could simply assume all QCs to be competent at the highest level.

No – you could replace the expense and risk to the QC ‘brand’ by a presumption which could be rebutted. Then we could see how many silks are really superannuated. Yet again, an apparent lack of sophistication insofar as criminal practice is concerned has led to the point being missed. What QASA does is line up silks with senior juniors. It is – again – about reducing cost. Either silks drop their fees (and plenty of them will then leave crime alone, depriving the system of top-end performers) or they will accept lower fees. If we grant the implied assumption that lots of silks are not really up to it, which ones will stay doing crime at lower rates and which ones will do other work? QASA will defeat its own purpose by forcing out the good.

But, in the end, a reality check: if a QC currently working doing big criminal trials is competent do those trials, is it such a burden for them to complete the forms and pay the fee to prove their competence in a system which will apply to everyone (and which will thus be weeding out the incompetent at all levels, in the public interest and in the interest of the competent)? Surely not.

It’s not the burden that is objected to. No one has said this and it is not right to argue in this way.

(3) Case levels to be agreed between the advocate and the solicitor I agree: that cannot be right. It’s what the last JAG consultation proposed but will the regulators stick with it, and – if they did – would the Legal Services Board really sign it off? I doubt it. But even if they did, is it so fundamental that it justifies a total boycott? Clearly not – that would be baby out with the bathwater, for sure.

Oh to be in the position where I did not have to trust 2 lots of regulators and the Legal Aid Board to ignore their own recommendation. It would be nice to work in an area where I was not reliant on that – say public law. For hundreds of people who see what is proposed by their own regulator in black and white it is, frankly, insulting to say ‘don’t worry – it will never happen.’ And apparently, the fact that your income will then depend on your willingness to agree that a case is less serious than you really believe is not a deal-breaker. If we all just stand back from that a minute it means this: David Wolfe QC says that QASA should be agreed to, even though there is potential for the quality assurance element to disappear in the blink of an eye, when the solicitor decides that the quality demanded from a level 3 advocate can be replaced by a level 2 advocate. How can QASA be credibly said to be about quality when that can happen? I simply don’t understand.

(4) Judges as assessors Moses LJ argued powerfully that judges should not be assessing and reporting on the competence of the advocates who appear in front of them: apart from anything else advocates may play to the judge at the expense of their client. I share his concern. But isn’t that exactly how the QC system works? References from 12 judges (from cases ‘of substance’ in the last two years) are required. Perhaps that needs to change too?

No – you don’t tell the Judge you are applying for silk until after the case. You can ignore the case where you fell out with the Judge. Moreover, becoming a QC is a rank within the profession – it does not dictate what work you can do. Nor are Judges referring you for silk having to deal with 168 separate indictors. Nor are they trying to assess quality by reference to QASA’s miserable parameters. Instead they are saying what they actually think about your ability. Nor is it compulsory. No one has to apply for silk. But perhaps those differences are only apparent to me.

But anyway, the documents relating to the JAG rather suggests it was the barristers involved who insisted on ‘judicial assessment’ in crime QASA and the solicitors who argued against (maybe it will favour barrister advocates over solicitor advocates?). The judges leading the process have also seemingly insisted on it. So a boycott on this basis would look particularly ridiculous.

I remember being led in the Divisional Court by Michael Harrison QC. We altered our submission because we thought we hadn’t done it terribly well the first time and Laws LJ picked him up on it and asked him if there wasn’t a contradiction. Michael used the words attributed to John Maynard Keynes, “When my information changes, I alter my conclusions. What do you do, sir?”  The information that has changed, of course, is the firstly the fact that QASA has become a process by which a barrister’s ability to earn a living is to be fixed. It was not always so. Initially it was a way of ensuring quality. Secondly, as the scheme has emerged, it is clear that Judges are not to be allowed to determine what quality might mean. Instead, they are to be trained in what the BSB thinks quality means.

Some people have suggested that a boycott (or strike, or lock out, call it what you will) could be defensible in the media. Dream on. John Humphries will eat alive anyone brave enough to try and defend it to a critical public audience. All of us will end up looking foolish.

If John Humphries is putting a case, then why can it not be answered honestly? Boycotting QASA isn’t a strike. It is not signing up for a scheme because the scheme is lousy. If the he BSB were then to say that no one who did not sign up could work, that would not be a strike. It would be the BSB ensuring that the system ground to a halt because it could not find it within itself to admit that it had made a mistake. This argument elides the opposition to QASA with opposition to a proper scheme. That is a mistake.

Dressing up objections as being on the basis of the public interest will simply not wash when you have the most senior judges, the regulators and the politicians all saying that the public interest requires crime QASA.

Why? Are all politicians and regulators to be taken as acting in the public interest? That should make for an interesting discussion in the context of David Wolfe QC’s practice. And, if he doesn’t find it true at work, then why does he feel able to tell me that it is true for me? As to Senior Judges. As Moses LJ has made clear, they don’t all. And there is a massive difference between support for a scheme and support for this scheme.

So let’s be realistic. Crime QASA is going to happen.

I think this is right. But it isn’t the issue. The issue is whether it is supported by the Bar. It isn’t and all the current indications are that this will remain the position.

Of course it could be improved. But my biggest concern is that it might not be operated robustly enough to get rid of the incompetent advocates who undermine the rest of us (including financially) thus turning into a waste of time.

There isn’t an ‘us’. That word ought to be ‘you’. And if that is the biggest concern then a moment’s reflection might suggest that the way forward is to listen to those of us who practice criminal law. Because our biggest concerns are that QASA will not work at all as regards quality but will work to ensure that we have less control over cases, work for less and are left without a practice because we can’t compete when it comes to BVT.

QASA will also provide for ‘career progression’ for advocates, something currently largely lacking; and help promote equality of opportunity for people from groups which are under-represented in the profession, particularly at higher levels.

No, it won’t. Career progression will continue to depend on reputation, as it always has. We have had CPS grading for years and no one ever thought more highly of you because of your CPS grade. As for diversity: I know it’s a sexy term but really? Fewer pupillages and less money to fund them are not optimal conditions for diversity.

In times to come, barristers starting out will be able to aspire to move up the levels as they publicly demonstrate their quality regardless of who they are. QASA is vital when it comes to the “an independent, strong, diverse and effective legal profession” to which we are surely all committed.

The implication that people are currently held back because of “who they are” is nasty. If you are going to say that about your own profession it would be good practice to offer some evidence for an unpleasant allegation. The proposition that QASA – as opposed to the efforts put into recruitment and scholarship funds – will make the difference is either unintended or ineffably self-important.

The contemplated boycott of crime QASA will undermine all of those things (and certainly the interests of competent advocates, particularly barristers, everywhere). So let’s embrace the principle of QASA and then work to extend and improve the current proposals over time.

Let’s hear it for the guinea pigs, in other words. My own view of what is expected from a profession of which I am hugely proud, because the vast majority of us aspire to the highest possible standards of behaviour even when our own interests are at stake, is that we will get the system right first, and ask our colleagues to test it second. 

With any luck, other areas of work will also be covered in due course (albeit, presumably, modified to reflect the fact that other areas of practice are less focussed on trial work, or the trials are very different to a jury trial). That way those of us working in other areas can publicly prove our competence too.

I know it’s an easy shot but honestly, if you stick your chin out you must be expecting it to be punched – you first. If David Wolfe QC would like to respond, I make the customary offer of an unmediated slot on this site.