“We should stand now, as lawyers before us have done across so many other jurisdictions and through countless years to protect justice from the state. If we do not do so then we and the system clearly could not have been worth saving.”
Monthly Archives: February 2014
Eleventh Letter to the Lord Chancellor
Eleventh Letter to the Lord Chancellor, Secretary of State for Justice,
Mr Chris Grayling,
28th January 2014,
Dear Lord Chancellor,
Let me congratulate you on your Transforming Legal Aid response to the consultation, published yesterday. I think that my imps did a pretty good job cloaking its savage implications under a veneer of reasonableness. You have listened to your opponents and ignored them all: bravo!
It estimates that your cuts to the legal aid fee scheme (AGFS) will save £130 million per year and, combined with your other savings, reach your Treasury-set target. The small print shows that there has already been a reduction last year of £126 million in criminal legal aid spending in any event. Don’t let anyone find out, or people will know you can make the required savings and prevent the justice system from being destroyed. That clearly would not be in the public interest. You…
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A Tale of Two Cases
Two Little Things
It is often the little things in life that irritate – a man constantly coughing on the train, an unnecessary mention, Jimmy Krankie…. So today was a day when something big came along. Today was the day the MoJ announced their plans for the criminal justice system, or rather their plans for the carcass.
There is much to be irritated about in the big document that the Government have produced. The impenetrable and misleading “Chart B1” for example. Or the contention that we will all be able to make up the cuts in income by us all doing lots of other work that would otherwise have gone to our talented colleagues who have left. Solicitors may find the idea of an 8.5% cuts being introduced in three weeks time somewhat irritating as it wipes out the profit of most firms overnight.
However two “little things” have really got my goat…
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The Irreparable Damage that MoJ Cuts to The Criminal Justice System are Doing to Vulnerable Witnesses
We have posted below an account from one of our members of yet another example of the trauma suffered by so many young and vulnerable witnesses that is entirely attributable to the myopic cost cutting of the Lord Chancellor, and his civil servants. it is a pity that it is dedicated and hard working counsel who has to face these witnesses and explain it to them, rather than those who are really responsible, hiding away in Whitehall, behind their Spin Doctors, whilst claiming they do all they can to PROTECT the vulnerable.
As our member says at the end
” For this reason I remain committed to action. Whether it succeeds in making any difference remains to be seen. But together we have the power to try. Divided we can do nothing. Which is why I hope that we will be resolute and strong. And why I will not be in Court on 7th March, or accepting returns thereafter.”
I have just, for the second time, prepared a trial involving traumatised children alleging serious sexual abuse. For the second time, the trial has been removed from the list the night before the trial because there is no court/judge available to hear it. When I met these children, at court at the pre (first) trial visit, they came clutching their “Going to Crown Court” booklets. The youngest told me he had been having nightmares about court and barristers and the defendant coming to get him. The Defendant was arrested two years ago. The Complainants were desperate to get the trial over with and get on with their lives. I promised them that whatever happened, it would soon be over. The very next day it was removed from the fixture list. Today it was removed from the list for tomorrow.
I don’t know whether these allegations are true – that’s not my remit. What I do know is that true or false, one side or the other, arguably both, are very ill served by a system that makes 6 year olds wait two years for a trial only to be told it isn’t going to happen when everyone said it would. Twice. Despite the government’s protestations about its care for the victims of crime, this is a disgrace.
The Courts are not to blame. They can only do what they are funded to do. The MoJ keep cutting court staff and judges and sitting days. This trial gave way for trials equally serious and traumatic.
Quite apart from the fact that I have now lost days prepping the case, and 8 days of diary time when I was booked to do it, earning nothing as a result, I am ashamed of the state of our criminal justice system and the way it is racing to the bottom. I am frightened for the future, when I see hard pressed CPS lawyers and case workers have their case loads doubled and tripled overnight, as they see experienced colleagues being made redundant, and local CPS offices close. They are left with little hope of doing their job as well as they wish it to be done, or as well as they need it to be done. Despite this I see them battle on, desperately doing the best that they can.
I’m frightened when I see experienced barristers, with years of crown court experience leave the Bar, or move into alternative areas of practice. I wonder when I will do the same.
I find it hard to look alleged victims and witnesses and defendants in the face when they ask me when trials will take place.
For this reason I remain committed to action. Whether it succeeds in making any difference remains to be seen. But together we have the power to try. Divided we can do nothing. Which is why I hope that we will be resolute and strong. And why I will not be in Court on 7th March, or accepting returns thereafter.
If I can’t stand up and be counted for a legal system I was so proud to be part of, who will? When?
Silk. Get it while you can….
The History Boys (and Girls)
History teaches us many lessons. Do not invade Russia in the winter. Never invade Afghanistan. Do not marry Henry VIII. Turn the television off before an English side start the penalty shoot-out.
When it comes to “bar politics” we should not be slow to learn the lessons of recent history. And we have been here before. The Government poised to make cuts, the legal profession up in arms. We have had revisions to fee schemes, cuts to graduated fees and cuts to VHCCs. We have had defence cuts, prosecution cuts then defence cuts based on the prosecution cuts.
So what has happened before when we have been in a state of such revolt? We have failed to act with unity. We have either been talked down by wise heads who think there is a different way or we have been defeated by a failure to act with common purpose. I…
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What Next?
Some time over the next week or so, Chris Grayling is likely to publish his preferred course following the consultation to ‘transform legal aid’. In all likelihood his transforming will be similar to how a tsunami transforms a beach or the financial crisis transforms an economy. There can be few indeed who do not believe that his ‘transformation’ will do other than savagely restrict and cut legal aid whilst at the same time driving hundreds of firms of solicitors out of business. During the last year there has been a plethora of comments, articles, press pieces and blogs as to the effects of the cuts, if introduced. There have been meetings, rallies and a half day of action at which speakers have warned of the dangers of the reforms and it seems, all to no avail.
The question we may need to urgently face is “What next”. Is there a form of action which should be undertaken at this 11th hour to stop the reforms being implemented? Can simple engagement succeed now in the face of an obdurate careerist politician, where hitherto it has failed? Is there some form of protest which may yet head these reforms off at the pass?
The CBA is an organisation ran by criminal barristers on behalf of its membership, the criminal bar. It is not a dictatorship but a democracy where its elected representatives do their best to give effect to the wishes of its membership. At around 5000 members, all highly skilled in advocacy and persuasion, with bright minds and clear thinkers it has a wealth of talent at its disposal. Notwithstanding this, there is a danger that some of those viewpoints are not being heard.
The CBA has thus far adopted and implemented a step by step strategy to defeat these cuts. It is a proportionate strategy based on logic, grounded in principle. Notwithstanding this, every day in robing rooms, I hear that the action proposed thus far is either too timid and by others, too militant. That the action will not work, cannot work and some other alternative course should be pursued. In 12 months time it is likely that we will face a changed legal landscape. It would be a travesty if we reached that point without your viewpoint having been heard.
Should any member of the criminal bar wish to make their viewpoint known, not as to whether or not cuts should be introduced but as to the best strategic manner to defeat them, then they can email me at criminalbarassociation@gmail.com with the subject “What Next”. Each email will be read, considered and the viewpoints put forward to the executive. If you do not mind them being published, state within the email and they can be printed in this blog. The email can be long, or short, as you wish.
The question is “What next?” You have this opportunity to be heard. I implore you to use it.
Play the Ball
The position of Lord Chancellor is unique amongst members of the Cabinet. The Prime Minister wants to appoint someone as Chancellor of the Exchequer? Appoint someone from your old dining club at University. However when it comes to the Lord Chancellor it is not that straightforward. The appointment is governed by section 2 of the Constitutional Reform Act 2005. And that statute lists the qualifications required.
So before we all get a bit gung-ho in decrying the current incumbent’s lack of qualification for the job we should examine his credentials. Section 2 of the Act states that the Lord Chancellor is to be qualified by experience and that “a person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.” Now all of you can just stop right now with your “he isn’t a lawyer, he isn’t qualified at…
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Why the Criminal Bar must strike
Not everyone believes that direct action is the way forward in fighting the cuts the MoJ seem intent on imposing. Nigel Pascoe QC has consistently argued that direct action cannot be resorted to. You can read his observations at his blog http://nigelpascoeblog.wordpress.com/2014/02/12 . Ian West, barrister at Fountain Chambers, Middlesbrough who recently spoke at the One Bar One Voice event in London argues that direct action is what must happen. What follows was originally posted as a response to Nigel’s blog.
Nigel,
I am one of those ‘Young Turks’ (more a middle-aged Turk, actually) who espouses direct action. Why? Have I no consideration for my clients? Of course I do. On 6th January, I was defending a man charged with witness intimidation. I told the lay and professional client, and the court, that I wouldn’t be there until 2.00pm. In the event, the court, on the Friday, simply accepted the fait accompli, and listed the case at 2.00pm. Had it not done so, I was confident that the judge, when the case was called on at 10.30am, would have adjourned until 2.00pm to start when I got there. I was as confident as I could be that no sane judge (and at Teesside CC the judges are all sane) would have attempted to start the trial without me. (Had that happened, my plan was to join the trial at 2.00pm, do my best, and appeal if the client was convicted.)
You are probably appalled that I even ‘took the risk’. I am not proud of having done so, even though I knew the risk was zero. I did so, because, having been involved in criminal Barpolitics – as an elected member of Bar Council, and a member of RemCom, and the BC’s Carter Response Team, latterly as a member of the CBA Executive Committee – I have learned that there’s no negotiating with a bully. If you give a bully your dinner money on Monday, it doesn’t matter how little he asks or you give him, or what he says about that will be the end of it, you had better know that he will be back on Tuesday, and Wednesday, and every day until you punch him on the nose, and stop giving. (In fact, I learned that lesson at school, forty years ago.)
Mr Grayling is a bully. He is unlike any other Lord Chancellor there has been – certainly in my time, or ever. The position used to be reserved for eminent lawyers, and was regarded by them as a non-political appointment, and the pinnacle of a career in the law. Charlie Falconer broke that mould, but Grayling has stamped all over the pieces and swept them away. He regards the post as a stepping-stone to higher things. He cares not for the value (as opposed to the price) of the family silver of which he is the custodian. He is in charge of a small spending department, and one which has relatively little control over that spend – criminal legal aid being typical, in that it is entirely responsive to legislative, and prosecutorial,decisions. That said, Mr Grayling does not fight for his departmental spend in negotiations with the Treasury. He would rather gain political ‘brownie points’ with Gideon by giving him every budget cut he asks for, and more, in the hope of personal advancement. By way of example, the cut demanded of him by Gideon last year was £142m: http://www.lawgazette.co.uk/news/osborne-imposes-further-142m-of-cuts-on-moj/70016.article but Grayling unilaterally decided to make it £220m – a figure which has now acquired the status of holy writ, when it is nothing of the sort.
But back to the client. Of course, I am unhappy about even the possibility of leaving my client in the lurch. Every barrister is. But barristers are, though you may not like to think so, in reality no different from any other wage-labourer. I do the job I do not out of a love of my clients, or even an overwhelming sense of duty to them, but to earn a living. In that respect, I am no different to a tube train driver, a fireman, a doctor, or anyone else. Strikes hurt the service user. That’s what they are meant to do. The labourer has no other weapon but the withdrawal of his labour if he is unhappy at the price on offer. Strikes are always a matter of last resort; the ‘nuclear option’; especially for barristers. But there comes a time when that nuclear option becomes the only option. And that, I regret to say, is the position the criminal Bar faces now. Mr Grayling is not for negotiating. There is no reasoning with him. This goes against all of our instincts as lawyers. We are used to placing rational arguments before a decision-maker who has no agenda – a judge or jury – in the expectation that reason will prevail. Mr Grayling is not a judge, and it is a serious mistake to try and deal with him as if he were. He is a hard-nosed politician, who sees a desire to talk, and an unwillingness to withdraw labour, as simply weakness to be exploited.
So, much as I regret having to ‘gamble’ with my clients’ liberty, in reality I know that the judges know that it’s not their fault that I’m not there, and they are sensible enough to wait until I am there. The judges may privately fume at the inconvenience I cause them, and the client may be annoyed by the delay in dealing with his case, but there is a bigger picture here. We are embarked upon a struggle for the very survival of our profession, a profession that has endured for hundreds of years, and which serves the public interest well (and cheaply). Mr Grayling, who knows the price of everything, but the value of nothing, cannot be permitted to destroy the Crown Jewels of which he is but a temporary custodian.
If that means going on strike – and in my view, and for the reasons I have set out, it does -then that is what must happen. The clients will be inconvenienced, but no more, and in the long term, they, and the wider public, will thank us for what we are about to do.
Ian West
Fountain Chambers
Middlesbrough.
criminalbarassociation 