MARK GEORGE QC RESPONDS TO THE MOJ CONSULTATION. A STRONG VOICE FROM THE NORTHERN CIRCUIT. HE SPEAKS FOR MANY.

 

A Response to Chapter 4 of the Government’s “consultation document” entitled TRANSFORMING LEGAL AID: NEXT STEPS
By Mark George Q.C., Garden Court North Chambers, Manchester
Introduction

As a practitioner whose work has been mainly criminal legally aided defence work for more than 35 years this response is directed to Chapter 4 of the second consultation document. This is my personal response and not on behalf of chambers although I have no doubt there would be general agreement with these submissions.

I suspect there will be fewer responses to this second “consultation”. That should not be interpreted as a decline in interest on the part of the legal profession and certainly not as any indication that the anger in the profession has diminished. Rather it is likely to be attributable to the fact that as everyone can see this is not a “consultation” at all. We have a millionaire Secretary of State who shows not the slightest interest in the work that a large part of the legal profession undertakes on behalf of the public. He has failed to engage with the Bar at all and has taken little or no notice of submissions by the organisations that reflect the views of high street solicitors. It is clear to all that Mr Grayling just isn’t interested in a discussion or debate. He is simply going through the motions of a “consultation exercise” before going ahead with what he planned all along. He merely seeks to prove his credentials to his cabinet colleagues as a man who can deliver the cuts he promised, if necessary in the teeth of sustained opposition. Small wonder then that many in the profession will think they have better things to do with their time than waste it in trying to talk to someone who isn’t interested in listening.

I criticised the original process for being no more than a consultation in theory and the same can be said even more clearly of the “Next Steps”. Having decided not to proceed with PCT for the time being at least the MoJ has simply instituted Plan B which involves drastic cuts in defence fees. The only question posed in Chapter 4 asks respondents to choose between Option 1 designed to reduce fees by 20% and option 2 which is designed to reduce fees by 20%.

This is the Henry VIII option. The rotund 16th century monarch was known on occasions to agree to commute death by hanging drawing and quartering to mere beheading. Whilst the saving in pre-death pain and agony was not to be scoffed at and was no doubt welcomed by the victims the overall result remained the same. They still ended up dead. Since I am of the opinion that if the Criminal Bar chooses either of these options it too will end up dead you will permit me to answer “neither of the above” but thank you for asking.

You will have already received many responses both to the original consultation and to the “Next Steps” version pointing out the great financial peril of the junior

1

Bar. I have seen and would be happy to be associated with the views expressed by colleagues on the Western Circuit about the importance of the chambers system for training and sustaining barristers in practice. I agree that that system is in peril as a result of previous cuts and that those now proposed are likely to mean that more chambers become unsustainable and have to close. The loss not just to the profession but to those we serve is almost incalculable.

Despite having been in silk now for four years I do not think that in any way disqualifies me from commenting on the fees payable under the graduated fee scheme to junior members of the Bar and solicitor advocates. My criticisms have always been aimed at that part of the scheme since silks are obviously paid at a higher rate.

Many barristers who embarked on a career at the criminal Bar can simply no longer make a decent living from their chosen profession. Many it seems have already left. At a recent meeting Nigel Lithman Q.C., current chair of the Criminal Bar Association, said that he now regularly receives letters from members of the criminal Bar telling him they can no longer afford to continue in practice. Indeed in paragraph 4.2 of the introduction to the original consultation document the MoJ recognised that continued cuts to the present model of fees were “unsustainable”. It is interesting to note that that acknowledgment has now been quietly forgotten as we are expected to decide which of two options designed to reduce fees by a further 20% (to be added to the 131⁄2% cut we suffered in 2010-12).

There is no doubt that the MoJ is well aware of the modest level even current rates of pay produce for most juniors. At paragraph 5.34 the MoJ acknowledged that 65% of junior advocates earn under £50,000 p.a. and as the MoJ later admitted this includes VAT, this means that the figures immediately reduce to under £40,000p.a. even before major deductions such as chambers rent (often 20%) and travel costs are taken account of.

It is worth taking a few minutes to consider what a barrister does once a brief for a criminal trial has been delivered. Before the trial they are likely to have attended at least two and often three or more hearings in the Crown Court. Many of these are caused by for example the failings of the CPS in meeting court-set deadlines for the service of various papers. No fee is paid for such an appearance. At least one conference and quite possibly two will be required with the lay client. No fee is paid for a conference. Only if the client is in custody will the barrister will be paid a small amount towards travel expenses but not for the time spent at the prison. At the trial itself no fee is paid for the second day of the trial. If the defendant is convicted and the judge adjourns sentence, as usually happens particularly in less serious cases where the judge is considering a non-custodial sentence, no fee is paid for the sentencing hearing. It is clear therefore that the only part of the entire case for which the barrister will eventually be paid is the

2

trial itself (apart from Day 2). That is why junior barristers rely on reasonable fees for that work in order to subsidise all the days when they get no fee at all. So whilst daily fees may look reasonable when viewed on their own, once they are split to cover the other days they quickly reduce in their value. Small wonder then that many junior barristers are finding themselves in increasing precarious financial circumstances. None of this is of course news to the MoJ. As the passages from the original consultation document make quite clear, the MoJ is well aware that junior barristers are not paid huge sums in fees and will be equally aware that they cannot afford the further cuts in their already modest fees that are now envisaged.

Given this it is hard to understand why the Secretary of State continues to peddle in public statistics that are at the very least misleading. For a Secretary of State to keep making such blunders is very troubling. If he doesn’t now know what barristers are actually paid (and all the information is easily available online) then he is clearly incompetent. If he does know, then he should also know that the statistics he is using are misleading. In that case his motive for using false figures would appear to be to deliberately mislead the public into thinking fees are much higher than they actually are and that would be dishonest in anyone’s language.

At the outset of the consultation process the Secretary of State announced that QCs could earn as much as £1,300 to £2,000 per day doing criminal legal aid work. He gave no source for these figures and they were wrong. I do not believe that in the period since graduated fees were introduced in 1996 it has ever been possible for a Q.C. to earn as much as £2,000 per day from a graduated fee case and even the figure of £1,300 per day has not been achievable for a number of years. But the fact that the figures were wrong and liable to mislead the public of course didn’t really matter for Mr Grayling’s purposes.

Then in an article in the London Evening Standard on 4th June Mr Grayling claimed that “a single trial can cost more than £10 million in fees”. That claim may have alarmed many readers of the article and would have done much to confirm the suspicion that barristers are indeed a bunch of fat cats and that cuts to their fees were clearly long overdue and greatly to be welcomed by all right-thinking citizens and taxpayers. However Mr Grayling failed to specify whether this was a typical case or a real rarity. I made a request under the Freedom of Information Act to seek clarification of whether any non VHCC case could possibly have generated such high fees.

The MoJ of course will know the answer before I tell you because they replied to me dated 12th September 2013 under reference FOI/83299 but for the record let it be known that in fact in the four years 2008 to 2011 there were indeed five cases where the total in fees paid out exceeded £10 million. However none of these were graduated fee cases. As I had suspected each of the five cases was dealt

3

with under the VHCC scheme, so it can be seen immediately that such cases are indeed very rare and would never occur under the graduated fee scheme. The vast majority of barristers never do these cases. So again it can be seen that Mr Grayling was using figures relating to exceptional and rare cases to give a misleading impression that such cases are pretty much standard fare in criminal legal aid.

Finally only a couple of weeks ago Mr Grayling was at it again. This time he apparently told the Justice Select Committee that even after the proposed 30% cuts in VHCC cases, in what he described as a “typical” case that lasted just over 60 days and involving what he called “a shorter period of preparation” the “typical payment to a Q.C. would be around £135,000” adding for good measure and to ensure that supporters of his got the point “I still think that is fair reward for the job”. The clear inference of what Mr Grayling said was that a Q.C. would get paid £135,000 for about two months work. The Secretary of State has already been corrected on this matter by the Chairman of the Bar who pointed out that in order for a Q.C. to earn anything like £135,000 the QC would need to have done well over 1000 hours of preparation. In fact for a Category 2 VHCC (and there are no category 1 cases in preparation at the moment) the QC would need to do over 1,450 hours of preparation. Even if he or she managed to undertake 45 hours of work on that case alone each week that would take 32 weeks to prepare or about 7 1⁄2 months. Then you have to add 3 months for the trial. No one would suggest that £135,000 even for the best part of a year’s work amounted to poverty wages but these calculations show that the way Mr Garyling chose to make his point was yet again very misleading.

A reader is therefore left to ponder why the Secretary of State should prefer to indulge in false statistics about exceptionally rare cases rather than address the real problems facing the vast majority of junior members of the Bar who never do a VHCC case from one year’s end to the other, which is that rates for the junior Bar are ALREADY unsustainable even on the MoJ’s on figures and yet are apparently ripe for another slashing cut of 20%.

No one could seriously contend other than that this whole exercise is part of an ideological assault by this government on all aspects of the welfare state, of which legal aid is an important part. The government has taken the opportunity provided by the economic crisis caused by their chums in the banking industry to blame the poor and to wreak havoc on the welfare system on which many of our fellow citizens depend. To a cabinet stuffed full of millionaires the loss of high street solicitors and barristers who do mainly legal aid work will be a matter of no concern. When would any of them ever need a legal aid lawyer? But to millions in this country who cannot afford to pay for a lawyer any more than they can afford

4

to pay for expensive medical treatment the legal aid system is not a luxury, it is a necessity.

How else than by judicial review are people supposed to obtain redress from government at local or national level when officials seek unlawfully to close hospitals or imposed new benefit regimes that have not been properly thought through? How are those without means suppose to seek redress against slum landlords, overcharging on rent and housing them in appalling conditions? How are they supposed to defend themselves against an unlawful eviction? And what of those accused of crime? The wealthy can no doubt afford the best and when MPs, newspaper executives and celebrities find themselves in trouble with the law they go off to expensive lawyers who charge far above the legal aid rate for their services. But what of the poor? Does the government not care if the result is that more innocent people are found guilty not because of the strength of the evidence but because their lawyer was sub-standard because they could not afford a better one? Are they to have a second rate service provided by increasingly less well qualified lawyers paid at increasingly low rates of pay? That is already happening of course. Solicitors rarely attend court these days with their client, because the government stopped paying them to do so, leaving only the barrister, whose attention also has to be on what is happening in court, to provide any sort of support and reassurance for a bewildered and frightened lay client and no one to help find a document in the file or locate a witness who has failed to turn up to court.

And since barristers in criminal cases also prosecute, the damage being done to the legal profession and the exit of able barristers from the profession will affect the conduct of prosecutions as well. Many barristers could tell you stories of cases being handled by CPS in-house advocates who were clearly not up to the job and were out of their depth in trying to deal with particularly serious cases which ought to have been handled by a suitably experienced barrister. As a result decisions get taken to drop cases or accept a plea bargain that, from the viewpoint of the public interest, should not have been agreed, except that the in-house advocate was glad to get rid of the case and was prepared to do whatever it took to achieve that result. So the victims of crime and society as a whole lose out. And all this to save £15 million from the graduated fees bill, according to the briefing note SN/HA/6628 of 13th May 2013 in the House of Commons Library. The Bar and solicitors organisations have already made plenty of proposals for ways in which the MoJ could save far more than that and all such suggestions have been batted away.

At several points in this submission I have paused and wondered whether to continue or just delete the whole thing and get in with some other work. In the end I decided that despite the fact I am fully aware that this document will have

5

absolutely no impact on the Secretary of State’s plans to slash funding for legal aid, it was important that someone like me who has spent a whole career working in publicly funded law should record these views if only so that sometime in the future when people are surveying the wreckage of our criminal justice system someone may come upon this submission and find in it a key to understanding what has happened. It is said that for evil to triumph it merely requires that good men do nothing. That may seem over-dramatic for what is currently under consideration but let it not be said that when this government decided to impose cuts on legal services that ended up destroying the system there were no dissenting voices.

What the MoJ is planning now will lead to the destruction of the legal aid system and people generally should know that that is what this government is prepared to do. Many people in this country need access to justice and they need the assistance of legal aid lawyers to help them. The result of these cuts will be fewer lawyers available both on the high street and in chambers. Those who cannot afford to pay will lose their rights and have their very liberty put in serious jeopardy. That is a terrible indictment of the current proposals and I urge that they be dropped.

Mark George Q.C. 31st October 2013

6

LEGAL AID CONSULTATION RESPONSE OF THE NORTHERN CIRCUIT OF THE BAR

And now the response from the Northern Circuit. Please do feel free to send us your own.

A view from the North

TRANSFORMING LEGAL AID
NEXT STEPS CONSULTATION

RESPONSE OF THE NORTHERN CIRCUIT OF THE BAR

The Northern Circuit of the Bar is one of six similar groups which represent barristers, primarily in independent practice, from all disciplines of the law.

Each Circuit has a geographical area, which together cover the whole of England and Wales.

Barristers in independent practice are sole traders. They have not, historically been permitted to practice together in partnerships and are not permitted to be members of a trade union. Barristers normally practice from sets of chambers, in which they share accommodation and the services of clerks and other administrative staff to run their practices, sharing the costs to keep their overheads low. However, the earnings of each individual barrister remain exclusively those of that individual. Barristers chambers are not businesses, but a collection of self-employed traders.

This system of working has been in place for hundreds…

View original post 2,820 more words

“THE IMPACT UPON SOLICITORS.” ALBION CHAMBERS RESPOND TO THE MINISTRY OF JUSTICE

A remarkable feature of the reaction from the Legal Profession to the Ministry of Justice’s attempts to destroy the Criminal Justice system, has been the unity it had engendered throughout almost all parts of both sides of our profession.

Right from the start, when Oliver Kirk wrote a Guest Blog for us, describing in graphic detail, the future of High Street Solicitors, on which so many people embroiled in the court system, depend, the Bar and Solicitors at the grass roots have recognised that this attack is aimed at us all. We have one common enemy, those at Petty France who seek to destroy us.

Beyond this, there were those who suggested in the early stages, that the campaign was really concentrated on London and the South East, that we did not listen to, or take account of lawyers who practised on circuit, particularly the more rural ones. That again is a myth that has been dispelled, very largely as a result of the huge efforts made particularly by solicitors in those areas.

We do not forget either that the threat of QASA, although now rapidly diminishing, will be felt first in the Midlands and the West of England.

With all that in mind, we are delighted that Michael Fitton QC, of Albion Chambers in Bristol, has kindly agreed to our posting, as a guest blog, that part of his Chambers’ latest response to the MoJ’s “consultation” dealing specifically with the problems now faced by solicitors, and the great lengths that the Bar has gone to in his part of the world and beyond, to work with, and support them.

If the MoJ were under any illusions as to the strength of the opposition, and our united, single minded determination to oppose them, they should be deluded no longer.

So here it is:

ALBION CHAMBERS, BRISTOL
EXTRACT FROM OUR RESPONSE TO THE MoJ PAPER
THE NEXT STEPS
THE IMPACT UPON SOLICITORS
1. Members of Albion Chambers are instructed in cases at all levels of seriousness by firms of solicitors and CPS across the Western Circuit. We have had a close working relationship with them for many years. Their junior staff are often with us at court. We know the solicitors and partners well, and meet with them to discuss their cases, or issues that affect the profession, on a regular basis. We are well placed to foresee and understand the likely effect of the proposed changes on solicitors and on the way they work. Our understanding and insight has been enhanced by close liaison, meetings and discussions conducted with solicitors on our circuit in the course of 2013, regarding the MoJ’s proposals to reform Legal Aid.

2. It should be recognised that the majority of firms who do publicly-funded work in crime and family law, are small firms of five partners or fewer. This is not through choice, but economic reality. Many of them used to be part of larger firms, but in the 1980’s and 1990’s the partners in family and criminal work were abandoned or forced out of the larger firms by colleagues who wanted to obtain a better return than public funds would ever bring, on their investment of capital resources. So, the partners earning high fees in commercial work refused to subsidise their lower earning colleagues in family and crime. The profession became divided into two parts; the commercial firms, and the small cut-rate firms who relied on publicly funded work.

3. These latter are now the small High Street firms who have been, for two decades, still committed to serve the public, for ever diminishing returns. They have been squeezed harder and harder ever since, in a variety of ways. They are over-regulated; they are over-worked; they are expected to do more and more work unpaid, to keep the courts running their cases more quickly, more efficiently, at lower costs. They have been forced to depend on the promised flow of public funds to come through on time, in order to pay their bills and staff, and to survive. They have no spare cash-flow; no savings; no capital resources to fall back upon. When government chooses to cut their fees, or to delay their payments, they are forced ever nearer to closure. They have nothing left to give; no more profit to make; no incentive left to keep going, or to make do. They are at breaking point. The system depends upon their goodwill and commitment. Their loyalty to the Courts and to their clients has been assumed to be eternal; it has now all but expired. That is the background against which the latest proposals are being made.

4. There is widespread disgust in relation to the proposal that the payment for most ‘Not Guilty’ trials in the Magistrates’ Court will be fixed at the same rate as a guilty plea in the same case. The obvious incentive offered by the MoJ is for a lawyer to persuade his client to plead guilty, regardless of a potential defence. The pressure on firms and on individual advocates to compromise their professional obligations by allowing financial incentives to influence advice to clients is obvious. The proposal is a disingenuous disgrace.

5. The majority of the solicitors that we spoke to were of the view that their firms would be unlikely to be able to survive for very long if they had to rely on ‘Own Client’ work alone – i.e. without securing a contract for Duty Scheme work. Currently, the ratio of Own Client to Duty Scheme work varies between firms. Nonetheless, the dominant view is that if any firm fails to obtain Duty Scheme work, then the ‘Own client’ work would inevitably shrink, regardless of the current level.

6. One of the likely consequences is an increase in aggressive poaching of clients. Such a consequence should not be interpreted in any way as a healthy form of market based competition; rather, such activity would be a manifestation of a decline in standards of professional conduct occasioned by forcing firms into desperation. It has happened locally before, in the 1980’s, when a firm of solicitors in Cheltenham, Gloucester and Bristol operated such techniques. Their junior staff were pressured into illicit abuse of the Legal Aid scheme.

7. The ‘headline’ rate cuts, (described as being at the notional rate of 17.5%) will imperil, or extinguish many firms on our circuit. That notional rate is in fact recognised as a significant and misleading underestimate. For reasons which become apparent when the changes are properly scrutinised, the reality is that firms are likely to experience cuts of more than 20% in the short term. In the longer terms, the real effect of the cuts is likely to be in the region of 30%. When the real level of cuts is understood the number of firms affected will be higher and the effect felt sooner. Publicly funded solicitors have been working very hard on a modest income for many years, trying to keep their firms afloat and paying the staff wage bills whilst nonetheless losing money at current rates. The strong feeling is that these proposals, if implemented, will trigger the point of exit for many experienced and respected practitioners from amongst their number.

8. Solicitors are still unclear what the terms of the new Duty Provider contract will require of them. For most firms it seems that some form of merger would be a necessity before any bid for a contract might succeed. There is a fear that large cut-price national providers, such as G4S or Serco, will win contracts and force others out.

9. Despite Government assertions to the contrary, the view is that many small firms will not in reality have the option of merging. The business model of a large firm is likely to be such that maintaining a number of offices in local communities will be prohibitively expensive. Many practitioners consider that it is the relationship they have with their locality, which underpins what they have to offer.

10. There is a conviction amongst many that these proposals spell the end for all small firms. Firms that consist of only one, two or three solicitors will not win contracts. Many parts of our circuit (and not only the rural areas) are served by small firms. The MOJ fails to understand the geographical diversity of the country. There can be few places where this is more significant than the West Country. The reality is that beyond the very biggest urban conurbations in the west, plurality of supply depends on the existence of small firms. Plurality of supply is not only essential to guard against the diminution of quality associated with an oligopolistic market, it is a practical necessity in rural and sparsely populated areas in order to deal with multi-defendant cases, and situations where a particular supplier or suppliers are unable to act in a case due to a conflict of interest.

11. In Bristol, there are a few small firms whose clients come principally from the BME community. These firms offer a service to a relatively small geographical area. The partners and staff are from the same community. They understand the local social problems; the race issues; the religious and ethnic issues that affect the locality. They have developed and provided a service against considerable personal and financial odds.

12. They have grown and established themselves in a typically white and protestant profession, working in a City that has a complex historical relationship with their community. It is only 30 years since there were riots in St Pauls, arising out of social and racial tensions. The lawyers who have served the areas nearby since then, have been motivated not by profit, but have been driven by personal commitment. They are probably the smallest firms, in the cheapest offices, with less available capital than any others. They are the most vulnerable to additional pressure to merge. They are the least likely to be regarded as a good prospect for a merger. They are now the most likely to be forced to close their doors.

13. The BME communities are mostly located in the poorer districts of Bristol such as Easton, St. Pauls and St. George. These neighbourhoods are served by less than a handful of small, but highly dedicated firms of solicitors with offices located in “frontline” streets. Should these firms go out of business the effect not only on the BME community, but also on the rest of Bristol, would be disastrous. Earlier this year a senior, well-informed and experienced police officer wrote a letter warning of the civil unrest likely to ensue from the local BME community finding itself deprived of the solicitors they had come to know, respect, and rely upon. The loss to the BME community will never be made good.The loss of diversity in the legal profession in Bristol will be a shameful example of how little this Government understands or cares about equality of opportunity, or what makes a mixed society function successfully. The BME lawyers in the UK have provided a role model for young aspiring men and women to take on the challenge and debts associated with working their way out of poverty through University into the legal profession. The opportunities lost now will not come again.

14. The MoJ has proposed blandly that firms should ‘merge or form new associations with each other’. The reality of life is much harder. A firm that looks to merge has to look to economise by closing offices, paying off rental sums due; make and pay for staff redundancies. We have heard of a number of potential mergers collapsing because of the costs of closing a firm’s Professional Indemnity Insurance scheme. The insurers demand a premium for the period of six to seven years ‘run off’ of potential liability. These costs are crippling. They will wipe out any remaining capital. They are preventing mergers from occurring. Small firms that cannot meet those liabilities are going bankrupt. The Law Society is aware of the problem; the MoJ needs to be aware that its merger proposals are unrealistic.
15. So, the effect of the proposed cuts will not simply be the exit of practitioners from the profession. Rather, a trail of professional destruction and personal ruin characterised by insolvency and an inability to honour professional and financial obligations is likely. It is widely felt that the MOJ has no understanding of this fact.

MICHAEL FITTON QC
ALBION CHAMBERS
BRISTOL
30th OCTOBER 2013.

Three Little Anecdotes

A view from the North

One of the many allegations levelled at those who oppose the Government’s proposals on Legal Aid is that our evidence is purely anecdotal. The Government like statistics. Unless they do not like the statistics, in which case they become anomalies.

This is not anecdotal evidence. I simply want to tell you a story. My story begins with a caveat. This is not intended as a criticism of the Lay Magistracy, their court clerks or the CPS. It is not a criticism of those involved.

Once upon a time I had a pupil. Now that pupil is all grown up. Her practice accelerated, overtaking that of her pupil master. Her last two cases were far more serious than anything I had ever been entrusted to prosecute. One of them was more serious than any of us are ever asked to prosecute. I say her last two cases because sadly, and I…

View original post 1,268 more words

I am not Selfish

Humour has its place, and has done much to get our message across. It’s time for the stark reality @mojgovuk

A view from the North

For a long time now I have heralded my opposition to this Government’s policies concerning the criminal justice system under a banner which proclaimed how wonderful that system is. I have joined in the chorus of claims that we have a process of justice which is the envy of the world.

I now recant this boast. I was wrong and I readily admit it. I recently realised the error of my ways when addressing a group of medical practitioners who were partaking in some training concerning medical evidence in cases of sexual assault. We embarked upon a general discussion of the criminal justice system. I described to them, without exaggeration and with some restraint, some of my recent experiences of dealing with cases in recent times.

Those experiences included a crucial witness account being fished out of the bottom of a file by a bored caseworker and brought to counsel’s…

View original post 498 more words

Do Right, Fear No-One or why I say no to QASA

c0unse1

This is a true story and is just one, of many reasons why I oppose QASA and PCT.

The more fundamental and principled arguments have been argued elsewhere, they include lack of client choice, the closure of hundreds of solicitor firms, the disintegration of the independent bar and the derailment of our criminal justice system. This story, however, doesn’t touch upon those ideals but rather, as what I fear may become in the brave new world of a post PCT environment.

The story starts some years ago and on the day of the England v Slovenia game world cup match. It was a sunny day in June, but far from sitting in the pub drinking beer and awaiting the match, I was driving up to St Albans Crown Court, on a late return to cover a 2-3 day making off without payment / dangerous driving trial. The facts were fairly…

View original post 1,039 more words