CONSPIRACY THEORIES AND COCK UPS

I write this piece completely unprompted, in response to much of the nonsense which has appeared on twitter.

I know for a fact that Mark Fenhalls QC did not fail to attend the recent meeting with Mr Gove out of choice, after all he was instrumental in organising the meeting in the first place. It was an admitted cock-up by those in attendance on behalf of solicitors. Please see their press release HERE.

The timing of their partial cession of the action was more than unfortunate. However, it was I suspect necessary to keep the action going on their part.

What we need now are sound minds and strong hearts. The CBA leadership may have campaigned for a NO in the ballot but Mark Fenhalls QC more than anyone has respected the result and sought to honour it.

The worst thing we can do now is split ourselves apart and split once more from our sister profession.

Let us pause for breath, allow meetings to take place and peace pipes to be smoked. Making hasty decisions on the back of rumour and speculation will help no one.

Michael Turner QC
Do Right, Fear No One.

However you vote, just vote

In 8 hours time voting on the CBA ballot and the vice chair election will close. It takes a matter of seconds to vote.

You can vote in the ballot here: http://t.co/ffpqNkd42Z

You can vote in Vice Chair Election here: http://t.co/oX8TrS2ow4

By the time you have reached this point in this message, enough time has elapsed that you could have voted. It really is that simple.

Of course, if you are reading this message on the CBA blog, there is a fair chance you are engaged and are intending to vote. This message is not directed at you. It is directed at your opposition in court today, the people in your chambers, your colleague who you share a sandwich with at lunch. It is directed at those who for whatever reason have not yet voted and will not get around to it.

The issues in this election are stark. The outcome will determine the future of the criminal bar. The way in which we work, the amount we may be paid. It is not putting it too high to suggest that the decision will affect each and every criminal practitioner. I would suggest that voting is not simply a right you can exercise, but an obligation you must fulfil.

There are those who may say that the Question is not perfect. It matters not, you must vote. There are those who may say that the correct answer is not clear. It matters not, you must vote. There are those who may argue that the result will not change things. It matters not, you must vote.

I do not intend to rehearse the arguments in favour of, or against action. You will find them elsewhere in the CBA blog. Every point which could be made, has been made. I care less as to the way in which you exercise your vote and more that you do exercise it. It is in everyone’s interest that whichever way the vote goes, the highest possible turnout is achieved to give those that lead the greatest possible mandate to move forward.

So when you are in the robing room today, getting ready for court, ask if the person next to you has voted. Direct them to the link. When you head back to chambers and see your colleagues, ask if they have voted and if not, direct them to the link. Take 20 minutes out of your day to speak to friends at the bar and ask if they have voted and if not, direct them to the link.

We are used to being advocates, of persuading juries to vote one way or another. The tables have now turned. We are no longer the advocate but the jury. We are not persuading others as to the correct approach to take, but are seizing that mantle of responsibility ourselves.

Exercise that responsibility. Fulfil your obligation. Cast your vote.

Richard Bentwood

Voting Yes, by Sam Parham, Jo Cecil & Catherine Oborne

If not now, when?

This is for all of those who are undecided.

For all those who are wavering about whether or not there might be a better time, or a better issue.

There will never be the perfect time to take direct action.

But we have the momentum now.

Solicitors are already taking direct action. Two major cities, Liverpool and Manchester, are already out on no returns. Dual contracts have not yet come in. We have the prospect of unified withdrawals of tenders.

We have the potential for real unity of action across the profession: solicitors and barristers.

For those who say we should continue only to negotiate with Gove: What power will we have at the negotiating table if we are unable to unify now?

Our demands will be easily brushed aside because the government will know that it will be impossible for us to unify with solicitors to take meaningful action in future. Divide and rule will have won.

Try to imagine the better time, the better issue, the better question, and then imagine whether there’ll be a Criminal Bar that survives to see that day.

We must act now. Please vote yes.

Jaw-Jaw or War-War by Mark Fenhalls QC

There are people I respect and admire who have either voted, or intend to vote, “yes” to the ballot question. But I will not be joining them. I will vote “no”. Sadly I will lose friends but I think it is the right thing to do. Before I explain why, I must make three things plain.

(i) The 8.75% cut is punitive, unfair and plain wrong. I have repeatedly argued against it publicly and privately with the MoJ on behalf of solicitors. The last Government claimed that it was justified because the increased volumes created by the new “two tier” system. But this new system is now only due to start next January. So even on the MoJ’s own argument/ numbers, it is wrong to make the cut now and not before January 2016.

(ii) The “two tier” contracting scheme is significantly worse for the Justice System and access to justice. The direct effects will include stifling innovation, reduction of opportunities for young solicitors to set up firms and the elimination the personal value of solicitors who hold duty slots. Litigation will become increasingly commoditised. But the only way this will stop is if all those who have tendered for these contracts withdraw their bids. There is simply nothing the Bar alone can do about this.

(iii) I have no problem at all with advocates declining to work on cases where the representation order has been granted post 1st July. This is a principled decision which I entirely respect. Of course it becomes something else entirely when economic and social pressures are brought to bear on individuals and chambers and threats are made.

To return to the ballot question – should we contemplate no returns in support of the campaign to reverse the fee cut? No. There are a number of reasons why, but at the heart of it is my concern for the future of our profession. I say this being fully aware of all the arguments about the damage it may do to some firms and how the cut will accelerate the march of solicitor advocates into the Crown Court. Imagine for one moment that such a campaign succeeds and the cut is reversed or postponed until January. Does anyone who is honest with themselves about these matters really think that the movement of solicitor advocates into the Crown Court will reduce? Of course not; this movement is well established and is going to keep happening irrespective of whether the cut is reversed or not. It is going to keep happening even if “two tiers” were suddenly scrapped because all the bidders withdrew.

I do not care whether an advocate is a solicitor or a barrister so long as they meet the highest possible standards. I care only that s/he is able to compete fairly for work. I care only that s/he receives the work on merit – because s/he is the best available advocate and not because s/he is paying for it directly, or indirectly, through some artificial construct. Any other reason for briefing an advocate damages the integrity of our Justice System and is not in in the interests of the lay client or the public at large. It may be some people think these are pious sentiments. I happen to think they are a rather important expression of principle which we should not abandon. I am frankly delighted that both the MoJ and the Lord Chancellor appear to have agreed. If you have not seen reports of what the Lord Chancellor said to the Judges on Wednesday evening, you should read this SPEECH. I believe the Lord Chancellor intends to make good on this public declaration.

In work done over the last year the Bar Council has conclusively proved to the MoJ that fully engaged junior barristers who do nothing but criminal legal aid work have had significantly declining incomes in each of the last three years. The MoJ now accepts these figures. This is new. It is, I believe, the key reason why the Government has accepted that AGFS should be cut no further. This is a key success of engagement. The same work has identified how the AGFS flattens income and removes the sort of career progression and increasing incomes that is a feature of almost all professions where increasing skill and experience are valued. The only way to sort this out is to design a new system. That work has begun – criminal barristers from all over the country have been quietly and conscientiously engaged in the design process for some time. We are creating a new system that will reward hard work. But such work is not possible if you shriek demands, thump the table and do not engage.

In a decade of being a pupil supervisor, I have been proud to watch the talented young men and women I have tried to help teach develop and flourish. To watch them flee criminal work because they have seen little future in it has been truly depressing. Quality and independence are the two touchstones without with the Bar has no justification for existence. Independence is secured when advocates all compete on the same basis and with the same set of rules. No advocate is automatically good or bad because they are from one profession or another. Advocates (prosecution and defence) are of the quality that the public and clients deserve because of training, experience and dedication that is maintained over the entire course of a career.

I have only been involved in this process since writing large parts of the CBA response on fees in the two consultations in 2013. I have no direct experience of bar politics and meetings before then. I have of course been one of thousands of barristers who have become increasingly cross about the devaluation of our skills and our profession over the two decades or so I have been an advocate. I have no personal knowledge of the inside track of what was talked about at various turning points in our history before being elected Vice Chairman last year. But I sat in meetings with civil servants at the start of last year and saw our arguments being summarily dismissed. We engaged in “no returns” last year with great determination and courage and succeeded. The cost to the most junior Bar was very high. Since May of last year a great deal has been achieved by engagement. The numbers now show that we were right about what has happened to the junior Bar in recent years. What is more, the concerns we have so often expressed about flight from the Bar by the young (and women in particular) are now accepted by the MoJ. In recent months we have been pressing the MoJ to indicate how it intends to respond to the issues identified in the Jeffrey Report. Work is now well underway that I think will mean concrete proposals to be publicly consulted upon in September this year.

I believe this Lord Chancellor and the MoJ have at last come to see a thriving independent Bar as a crucial component of the Criminal Justice System and we are about to see significant changes that will enable us to survive. This is what you can achieve if you engage.

I urge you all to vote one way or the other.

Mark Fenhalls

Voting Yes for Tom, by Lucie Wibberley

I was one of the juniors who deputised at the South Eastern Circuit Heads of Chambers meeting. I follow the example of our leader, Max Hill QC, by not naming names or making observations about who said what. I simply offer my own point of view.
Two fault lines are emerging. They are growing by the day.
The first lies between those who favour unity with solicitors as a long term strategy and those for whom the principle of unity is a consideration secondary to the merit of the particular battle.
The second lies between the juniors and the leadership within our own profession.
What does it mean for the future? Put simply, this.
If the outcome of the CBA ballot is a no vote, it means that unity with our sister profession as a long term strategy has been abandoned. It also means that a large number of juniors will form the impression that those at the top are either unwilling, or unable, to represent their interests.
Whether or not the current battle is or is not the right battle to fight (I believe that it is) and whether or not the juniors are right will not, come the 15th of July, be the point.
The point will be that a very large number of solicitors and barristers, including myself, will be engaged in direct action that does not have the support of the CBA.
This battle will not be determined by the outcome of the CBA ballot. This battle is already underway. It began organically, the parameters are not fixed and the ground is shifting. We are entering overtly political territory.
It was right to have tried to reduce the issue to a yes or no question, I think we would all now concede that no ballot question could quite do justice to the predicament that we face.
No one supports an 8.75% cut, but that cut is as nothing to the spectre of dual contracts.
The ballot question does not specify dual contracts. But that is what this is all about. The question at the very heart of this vote is our direction of travel in the days to come. It is the only question that matters.
We have a very short window of opportunity to mount an effective campaign against dual contracts. No one has yet advanced an argument in favour. The most that can be said is that some firms believe they can remain financially viable within the dual contract system. That is a very different proposition to the crucial questions. Will dual contracts secure access to justice? Will dual contracts place the professions on a viable financial footing in the long term? The answers are no and no.
The ‘trust Gove’ thesis does not have a strategy for opposing dual contracts. If negotiating them away was possible, it would have happened by now.
That some solicitors have already bid, so we must all now bow to the inevitable, is a very poor argument in favour of not taking action against them.
But the action proposed in the ballot question is only in relation to the 8.75% cut; you are confused about the issue, I hear you say.
No I’m not. And this is why.
If we don’t oppose the cut, the message we convey to the small and medium sized firms, with no prospect of bidding for contracts and facing a diet of own client work on a reduced income, is that we will not stand with them. The message we send to our juniors is that we do not care about your practice. It is not a message of unity.
Without unity, dual contacts cannot be defeated. To defeat dual contracts, we all have to stand together; those who are bidding, those who are not bidding, and the Bar. We don’t need complete unanimity. We do need sufficient consensus to organise and advance. That consensus will not be achieved within the available timeframe if the starting point is that we won’t stand up and be counted when a very large number of solicitors ask that of us.
To which the rather maudlin response of the trust Gove thesis seems to be, well dual contracts won’t be defeated anyway, unless solicitors unite and withdraw their bids.
That, respectfully, is nonsense.
The contracts have not been introduced. There is no inevitability about it. We are starting from a strong position. We have consensus within and between the professions in principle. So why are both sides of the profession sleep walking into acceptance? Because no one is willing to stand up and lead. Do we want unity, or the tried and tested strategy of ever decreasing circles of divide and rule?
Enough already say we juniors. We can’t let you, the leadership, continue on like this. We carry the burden of the repeated breaks in unity that have brought both professions to their knees. Our whole careers have been the experience of fee cuts. You tell us that successfully opposing further fee cuts in recent times was a success. What a peculiar definition of success, to consider not being paid less for something I am already doing for too little, as an achievement. What a peculiar success that it has become a standing joke amongst juniors in London that anyone not seen in recent times is on secondment to the SFO. Except of course it isn’t a joke. I’ve lost count of the number who actually are. Talented, able, jury advocates, a whole generation of them, sitting behind desks because the best we could offer them was jam tomorrow. Why are we so strident about this? Why are we so passionate? Because those people are our friends. They are the ones we entered the profession with. We thought, that like you and your friends, they would still be with us as we rose through the ranks. If silks were fleeing in equal numbers, would you be so measured in your response?
And to the spectre that will remove the next tranche of talented juniors, is it really the case that the best we can all say is, well yes, it’s a bad thing, and we are very sorry for you, but, you see, it’s all the solicitors fault. If only they had been unified in their opposition to these contracts, if only they had withdrawn their bids, if only they had led, we would have followed.
When did the leadership of the criminal bar, the criminal defence bar, become so timid? Why exactly do we need the solicitors to lead us into battle? What on earth are we doing allowing the next generation of juniors to seep away?
The ballot question may be directed at the 8.75% cut. But it is about so much more than that. It is a state of the nation question about where we are going and how we are going to get there.
I’m going against the cut. I’m going against dual contracts. I’m committed to the action whether the CBA walks with me or not. I’m doing it because I think it is in the best interests of my clients, my solicitors and the junior bar. I’m doing it because I want to look Tom Copeland (call 2013) in the eye. I read your message on the CBA blog Tom. There is a place for you in this profession. We are going to make sure of it.
This ballot question is about the future. What future do you want? The junior bar is committing itself to a strategy of unity, and a strategy of negotiation supported by action. We want those at the top of the profession to continue to lead us. We want the CBA to continue to represent us. But if you won’t, so be it. We are not for turning. The trust Gove thesis and what is on offer is too little, too late, for this generation.
So hang in there Tom. The juniors are closing ranks. We are not leaving the criminal bar, and nor will you. We will stand and fight together. I have voted yes to direct action. I have voted yes for unity between the professions. I have voted yes for a future that is better than our recent past. I’m not afraid of the fight to come. I know that I am not alone.
Lucie Wibberley
11th July 2015

Now is the time to negotiate, by Jerry Hayes

The the independent criminal bar has reached a turning point. We have to make critical choices. We can wave it goodbye with a teary handkerchief and cry into our gins as much as genteel poverty will allow. We can strike, withdraw, our Labour, refuse returns and wreck the system. Or we can negotiate our future.

That was never an option with Grayling. He delighted in bringing a wrecking ball to what he regarded as vested interests, which were in reality committed and highly skills professionals doing their best against the odds of keeping the court system operational. The horror and misery inflicted by this truly dreadful man is a painful memory.

Understandably feelings are still running high. There are sets who are refusing to accept legal aid returns dated after 1 July. If there is a groundswell of support for this Crown Courts would cease to function, trials delayed, and those on remand left to rot. The CBA are balloting us on this now. I supported last year’s industrial action because it was not just the last resort, it was the only resort. The MOJ refused to consult, negotiate or take a blind bit of notice of the dire warnings of the judiciary, the bar, solicitors and even their own consultants. Worse, egged on by Grayling, they took a sick delight in hearing our cries of pain. But Grayling has gone, so has the last Permanent Secretary, and also the chief architect of all this dangerous lunacy, Dr. Gribby. We are in a new place. There is a constructive atmosphere. Negotiations are genuine. Reforms and efficiencies can be made. For the first time in many, many years the mood music has changed because of the conductor.

This is not to say that all those in the MOJ who want to destroy us have disappeared. They are still there. But they are more muted simply because Gove has a reputation for summary executions of officials who do not follow the line. His line. It is of significance that in pride of place in his office are two pictures. One Thatcher, the other Lenin. Both were lawyers.

For colleagues who have only read extracts of Gove’s speeches I entreat you to read them in full. You will be shocked. He has taken a genuine interest in supporting a flourishing independent bar. He does not sneer at us like Grayling, nor treat us cockroaches to be crunched under foot. We are dealing with a committed intellectual who not only understands the rule of law but cares about it.

Of course, words are cheap. But now is the time to negotiate our destiny. To have the rational argument which which have been denied us for so long. It will be rigourous. But it has to be worth it.

That is why I will not be withdrawing my labour; yet. To try and persuade a government of any colour to reverse a pay cut is suicidal. It lumps us in with UNITE. No government could afford to let us succeed as the floodgates would be open. And don’t expect any support from the press. But I would have withdrawn my labour if we could speak in unity against the two tier system which will destroy so many decent firms of solicitors and undermine the independent bar. The Law Society should have balloted their members on this. They can’t because the profession is deeply divided. The fat cats want to devour the mice. The simple solution would be for firms who have put in tenders to withdraw them. That would have made the system unworkable. But they won’t. It is a thoroughly dishonest and disgraceful state of affairs.
So this is where we are and not where we would like to be. We must look reality firmly in the eye and not blink. Now is the time for negotiation not industrial action. But if this fails then let loose the dogs of war.

James Vine on Voting Yes

Why the very foundation of the CBA management argument for a No Vote, is based on a false premise

I have sat and read the various contributions on both sides for the last few days, and not added anything of my own. I have done this mainly because those who have blogged for a Yes Vote, (and I have already voted Yes) expressed the issues far better than I could.

There is one thing that I have to comment upon though, because it is something I know a little bit about, (See Bungblogs passim, ad nauseam) and because the secretary of the CBA Richard Bentwood, has used it as the cornerstone of the argument for a No Vote.

It is just plain wrong. Here’s a link to Richard’s blogpost, followed by the first two paragraphs.
https://criminalbarassociation.wordpress.com/2015/07/09/voting-no-and-the-uneven-playing-field-by-richard-bentwood/
Richard begins his blog thus:

“The real threat to the survival of the Bar comes not from two tier contracts, nor from the current fee cuts to solicitors but the risk that for whatever reason, solicitors feel compelled to keep more work in house and stop instructing the Bar. For reasons that I set out below, I consider that most of these instructions would not go to employed in house counsel/HCAs but to consultants who pay a referral fee to receive such work. The Bar, which cannot pay referral fees, will forever be the loser in such a competition. We risk moving towards a situation where clients are appointed advocates not by reason of merit, but by reason of financial interest. This position can only be changed through engaging with Government to put in force a set of regulations prohibiting this, or possibly a common code of conduct for those exercising higher rights of audience outlawing it. This would level the playing field and allow competition for work to be on merit alone.

Government is currently engaging on these issues. Issues which if addressed, could ensure the long term survival of the Bar. The proposed action would put an end to such engagement. That, in short, is why I do not believe now is the right time to move to action.”

There is absolutely no need to “engage with government,” on this, and it is quite wrong to say that “this position can only be changed by doing so.”

I am assuming we would all accept that if the instructing solicitor chose the best available advocate to brief in any case, Bar, HCA or in-house, there could be no complaint. The lay client’s interests will always be paramount.
If the criterion of choice for the instructing solicitor remains “quality” rather than “cheapest” then there can be no complaint. This is crucial to what follows.

The last Labour government, shortly before leaving office in May 2010, passed The Bribery Act.
That Act, for the reasons I shall explain below, makes it a criminal offence for a solicitor to brief an advocate on the basis that he/she is the cheapest, rather then the best available, – or for an advocate to offer to take the brief for a lower price purely to get the work.
It has been the law for the last four years, since the act came into force, but has been paid scant if any attention by the investigating authorities.
According to Section 1 (paraphrased) a person is guilty of an offence if they offer promise or give, a financial or other advantage, intending to induce another person to perform improperly, a function or activity, or to reward a person for such improper performance.
Section 2 is effectively the same but in reverse, and catches the solicitor who invites the payment.
Section 3 defines the relevant function or activity. It has to conform with one or more of three conditions.
A. The person performing it is expected to do so in good faith. (i.e. the instructing solicitor)
B. The person performing it is expected to do so impartially
C. The person performing the function is in a position of trust by reason of performing it.
The subsection specifically provides that the function in question includes activity within a trade or profession.
Section 4 defines that which is an improper performance of a relevant function.
In particular, if it is performed “in breach of a relevant expectation.”
It continues i.e. “any expectation as to the manner in which, or the reasons for which, the function or activity will be performed that arises from the position of trust [mentioned in C above]
Section 5 defines “relevant expectation.” Very simple, “what a reasonable person in the United Kingdom would expect in relation to the performance of the type of function or activity concerned.”

Let’s just take that backwards.
The lay client would (reasonably) expect that the solicitor acting for him would choose the best available advocate to present his case in court. He would not expect the solicitor to choose his advocate on the basis of which advocate has offered the biggest Bung. (Hence Bungblog).
If the solicitor solicits a kickback, or the advocate offers one, either or both commits an offence.
You don’t need to sit down with some nameless civil servant in Petty France to “engage” on this. It was done and dusted and passed into law four years ago.
But it doesn’t end there.
Section 7 creates the little known offence of “Failing to Prevent Bribery.” Accordingly, a senior or managing partner of a firm of solicitors will be liable for the activities of one of his minions, unless he can demonstrate that the firm had “Adequate procedures” in place to prevent it.
Section 9 provided for the issuing of guidance by the MoJ as to just what adequate procedures might be, but they are not tightly defined.
Effectively, if a connected person has secured business by means of an offence under section 1 or 2, the onus is on the company to show that it had sufficient monitoring or compliance procedures in place to prevent it, and that the bribery in question could not have been prevented.
This has been the law for the last four years.
Richard Bentwood suggests that “Action” would defeat attempts by the CBA to negotiate a regulatory regime that would prevent abuses.

I have news for him.

It’s already there and there is nothing more the MoJ can or could do. Any attempt at enforcement should be directed towards the relevant prosecuting authorities, who are notoriously unwilling to act, but it is THEIR province, NOT that of the MoJ.

Commercial businesses have spent fortunes on compliance programmes for the last four years, because they understand this. Solicitors have not, probably because it never occurred to them.
What they should be doing is keeping accurate records of all work briefed out, the amount of “commission” retained, others who were available, and the reason for retaining the advocate eventually instructed. It sounds ludicrous, but that is the law.
Those who have lost out on the award of work may know where the bodies are buried, and given the right impetus, might actually get around to making complaints.
Its up to them.
We do not need to engage with the MoJ to achieve this, so let’s stop running the entire No campaign on a false premise.
James Vine