Why I will be voting to keep the deal

I will be voting No in the CBA ballot, that is, voting for an acceptance of the deal to suspend direct action.

For those who know me, that may come as somewhat of a surprise. Why? Because I am one who has always believed that action works. There were those who said that our approach should be one of engagement alone. I was not amongst them. When I wrote my first call to arms piece back in early October “Do you hear the people sing” I received a text from my brother reminding me just how well it worked out for those who climbed onto the barricades in Les Miserables. I ignored it. I walked out on one part heard trial during the first half day of action and failed to turn up to the first day of trial on the second. I helped draft the No Returns protocols, spoke about it in front of solicitors, analysed the results monitoring its impact and answered the many queries that came to the CBA hotline during the 3 weeks that it was effective. I was elected as an officer of the CBA under a manifesto outlining my intentions to fight. Let me reiterate, I believe action works. I believe that pressure can be brought to bear on politicians to change their mind.

I also am one who recognises that the fight is important not just because of fees. This has never been just about money but rather to protect access to justice. The fees we are paid though are inextricably linked to that. Justice is not protected when those who practice within the system are a small, non diverse grouping of wealthy individuals who can treat it as a ‘hobby’ profession and not be reliant on it for its income. Justice is not protected when huge swathes of solicitor firms go under leading to advice deserts, when client choice becomes an illusion due to the fact that there are only a few firms against which such choice can be exercised. Justice is not protected when fees are so low, that monsters like G4S and Stobbarts Law enter the marketplace and inevitably cut corners to make profits.

The mantra ‘the solicitors fight is my fight’ is true to the extent that each side of the profession is helping protect access to justice through their efforts in fighting to overcome or reverse the Lord Chancellor’s reforms. The methods they are adopting may be different, but cuts which drive people out of the profession will damage everyone. The end-goal, to protect justice, is the same.

Having set out that I believe the solicitors fight is my fight, it may shock many to hear that I wish to accept the Lord Chancellor’s deal. I do so for 4 reasons. I believe it is a good deal. I believe whilst it may not be the best deal we could have got, it’s so close to being so as not to be worth the risks of continuing action. I believe that to refuse it would irrevocably damage the CBA’s credibility and neuter us in any future negotiations and finally and perhaps most importantly, I believe that accepting this deal does not equate to abandoning our solicitors. Let me expand upon each of those reasons.

Is it a good deal?

On any objective analysis the answer is yes.

On AGFS, the work which affects most of the bar and a good proportion of HCAs, cuts are deferred to the Summer of next year. The date is significant for two reasons. Firstly, because it falls after the next election. Secondly, it falls after a number of independent reviews will have reported their findings. The arguments as to ways alternative savings within the CJS can be found are powerful. The reviews will highlight them. I believe those arguments can be won.

There are those who argue that no government can be trusted and deferred cuts will simply be introduced later. This will not have been a successful appeal but rather a stay of execution. For myself, I consider that whatever government we have following the next election, we are certain to have a different Lord Chancellor. Would whichever incumbent we face wish to kick off his new political career by starting where Mr Grayling finished? With bewigged barristers marching in the streets and the courts brought to a standstill with actions like No Returns? Is it not more likely that the cuts will vanish, never to be seen again, that the new Lord Chancellor can use the fig-leaf of the independent reviews to save face and reconsider matters afresh in light of such new evidence. If I am wrong, what of it? We go back to the streets and re-erect the barricades. We have shown not just the government but more importantly ourselves, that action can work and it’s a tool in our armoury we can utilise again should the need arise. I also draw strength from the fact that I cannot think of many cuts that once introduced, the government later rescind. That was why it was so important for me to win before cuts were introduced, rather than fight to have them overturned later.

For VHCC’s it is not such a good deal, but it is far from bad. The CBA have not been directed to tell people to go back to work, nor could they if they had. VHCCs remain subject to anyone’s own individual desire to do them. In 1989 a junior would have been paid £100/hr for a complex VHCC. 19 years later, a QC would be paid £94.50/hr and a junior just £61/hr. Following the cuts in December a QC will be paid just £63.70/hr and a junior £42.70. The battle for VHCCs is not lost, it is just not yet over. It is ironic that it will be market forces which will determine whether VHCCs get done and it will be market forces which prove the undoing for a market economy led Tory Lord Chancellor. I am confident that no one will work at these rates and as such, when the Operation Cotton timebomb blows up in just over 2 weeks time, when no counsel can be found to do the case, that is when the VHCC battle will start to be won.

Is it the best deal?

Here, I would have to say no. The circumstances in which the deal were offered were shabby. The timescale for acceptance outrageous. The requirement that it be accepted in secret, without permitting for consultation or debate as to the merits of it, a scandal. That is good evidence that Mr Grayling was on the ropes, that the deal might have been rejected and something better put forward.

One must apply caution, however, in distinguishing between process and end result. That the circumstances in which the deal came to be offered were shabby does not mean the deal itself is. We have now been given the opportunity to focus only on the end result and we must do so. That something more might have been achieved does not mean one ought not to look long and hard as to the merits of what was offered. When I revisit previous Monday Messages the demands have been constant: No to cuts and to consider the independent reviews before acting. To all intents and purposes, this has been achieved.

It may be that something else could have been offered but if so, I have trouble articulating what that might have been.

Future CBA Negotiations

The battle is far from over. 2 weeks ago I had 9 court hearings and 2 conferences in one week. Because of no returns the courts were accommodating in moving the hearings for my convenience. Typically I was traveling from one court centre to another, each and every day. There were 6 sentences, 2 PCMHs and a mention. My income for the week was £0. Had the no returns not been in effect and I unable to attend my own hearings, they would have been returned and I be £900 out of pocket on the week, due to payments made by me to other counsel. The travesty that are freebie hearings continues. The outrage that we pay to work goes unnoticed. There is much left to argue for and the battle continues.

For these reasons I consider it essential that the CBA remains a strong and unified organisation capable of negotiating on our behalf. How much credibility can it have if, when having been given almost everything it asked for in negotiations, it turns round and shifts the goalposts by making new demands?

People complain about dual contracts and the need to fight to oppose them. I accept such a need. If we are to negotiate to overturn them, the negotiating body needs to be seen as credible. By refusing the deal offered, we will not be.

It is a sad fact that hitherto, the CBA had never been negotiating to remove the introduction of dual contracts. Perhaps it should have been but it was not. Their imposition will affect the bar, but it was not part of and has never been part of the negotiations with the MoJ. That must change, but I do not believe one can start laying new demands in a negotiation once the other side has given you what you asked for.

Does this deal abandon solicitors?

This is the most vexing of all questions. I understand the argument regarding dual contracts. It runs thus: If dual contracts are imposed, solicitor firms go bust. It then would matter not if cuts are deferred as those solicitors which remain will be compelled to keep advocacy in-house to bolster failing profits. If they keep advocacy in-house then work to the bar dries up. In such circumstances cuts are irrelevant as work won’t be being received by the bar upon which any cuts could bite.

There are those who argue that such an argument doesn’t necessarily hold. I am not one of them. I agree with this chain of logic and am fearful that it may come to pass. Where I disagree is that by taking this deal the bar abandons solicitors to such a fate.

What the recent action and No Returns has shown is that governments can be made to change their mind in the face of pressure. The solicitors can learn from this. Make no mistake about it, should solicitors choose not to attend Magistrates courts or police stations for 1 week, the system would grind to a halt and further negotiations on previously ‘set in stone’ two tier contracts  would no doubt be back on the table. I have heard that this cannot be done due to fears of losing contracts. Similar fears arose when prosecuting counsel walked out of court in days of action, wondering if they would ever be instructed by the CPS again. Defence counsel wondered if they would be forced to pay wasted costs, or be struck off for walking out on clients. How is the position any different? If the bar had to fight for the solicitors because they could not, it would be one thing. Where the bar is being asked to fight for solicitors because they will not, it is entirely a different thing. One must also ask, for which solicitors are the bar being asked to fight? Not for the BFG who welcome the reduction in contracts and not for those who have voted to accept the new cuts. How are the bar realistically meant to demand of a government that they rescind cuts to solicitors when those self same solicitors have chosen to work at such new rates?

This is not a counsel of despair. In recent days, it seems that the solicitors recognise that they must fight themselves to stop the imposition of two-tier contracts. By the recent protocol introduced by the CLSA and LCCSA it seems they are starting this fight in earnest. They are upping their game and I shall be assisting in any way I can. Nothing in this deal prevents any of us from choosing to reject a brief from any solicitor. I am not abandoning the solicitors by voting to take this deal. I support them and will continue to support them.

Conclusion

The junior bar is in a fragile state. People were forced into bankruptcy or leaving the bar before this round of cuts was even proposed. I have no doubt that had the cuts been introduced in June that process would have accelerated. Accepting this deal protects their position in the short term. It strengthens the CBA and allows it to continue fighting for them in the long term. I have no wish to see firms of solicitors go to the wall. I also do not wish to sacrifice the junior bar because of the misconceived notion that solicitors cannot fight this action without the bar. They can. I hope they will and when they do so, I shall be supporting them in their efforts.

The sad fact is that if this deal is rejected, then one would be trading an uncertain future for solicitors against the certain death of the junior bar. By accepting it one accepts the immediate survival of the junior bar alongside an uncertain future for solicitors.

The deal is a good deal. I shall be voting NO as I wish to keep the deal.

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Setting the Tone

I am hugely surprised by some of the events of this last week.

To make clear, I am not surprised that Grayling has attempted to defend his stance on banning books being sent into prison. It is entirely consistent with what I have always believed about the man.

I am not surprised that on Tuesday he approached the Circuit Leaders and Head of the CBA to put forward a deal on ending the ongoing dispute with the bar. I do not believe that he was suddenly won over by the logic or force of our arguments, such would be fanciful. Rather, I believe that he was brought to the table by the strength of our opposition. In days of action and with ‘No Returns’, all instigated by the CBA who now seem to be vilified, the bar has proved once and for all that by acting in unity, behind leadership, it has a strength to be reckoned with.

I am not surprised that direct action works. I always believed it would. Those who said that Grayling could never be brought to the table by such action have been proved to be wrong.

I am not even surprised that ‘the deal’ has been treated with such contempt in some quarters or even as a sell out by others. There is no deal which everyone is going to be happy with.

The merits or otherwise of the deal, and my view of the deal is something I shall deal with in another post. I do not propose to go into that here. What I do wish to go into and what I have been surprised about is the tone and actions of some people, which have engendered a toxic environment within which, almost any type of rational debate seems impossible.

Make no mistake about it, the acceptance or rejection of this deal will shape the landscape of our criminal bar for years to come. There is no issue more important, no question more demanding of informed debate. As barristers we should be fuelling this debate. Raising questions, listening to answers, persuading others and still willing to be persuaded ourselves. We should be engaging with the views of our leaders who can bring their wisdom and experience to bear, whilst listening to the pupils or other juniors for their unique perspective. We should also be listening to solicitors for they share our CJS.

What we should not be doing is insulting others, vilifying them. I am ashamed that in social media an atmosphere has pervaded such that anyone who might otherwise wish to speak in favour of the deal must be having second thoughts. Solicitors have publicly stated that in disgust with ‘the bar’ they wont ever instruct counsel again. Solicitors groups speak of withdrawing instructions from counsel. In an entirely predictable response to its customer base, chambers after chambers have placed up notices on their websites which on one reading condemns the deal and in another says ‘This isn’t me, please continue sending me work!’. How can a proper debate take place in such an atmosphere?

I beg you all, please take a step back and pause. The tone of the debate is as important as the debate itself. Let us allow the future of our profession to be determined in an atmosphere of calm, absent from insult, free from abuse. Respect your opposition whilst disagreeing with his viewpoint and above all, help create the atmosphere in which all viewpoints can be heard. Only then will reason triumph. Only then will our future be safe.

Why I won’t be in Court on Monday

On Monday and Tuesday next week I shall not be in court. Not because I’m going on holiday, holidays being a thing of the past at the legally aided criminal bar. Not because the CBA has called for a strike, they haven’t for reasons which I will explore below. Rather, because on the 31st March and 1st April the solicitors are stepping up their fight in opposition to the proposed cuts to legal aid which will not only decimate the solicitors profession, but in a very real sense lead to a denial of access to justice for all but the wealthy.

On 31st March and 1st April solicitors along with probation officers will be giving voice to their opposition to the governments plans to change our criminal justice landscape. I feel it is not merely important but essential that my voice joins theirs.

Some may wonder why I would not attend court and risk professional conduct censure, given I am neither a solicitor nor a probation officer. The answer is simple. On many different levels, their fight is my fight. I am a barrister. I care about access to justice, I care that it not simply be the preserve of the wealthy. I believe that the job I do is an important one and that if these cuts get implemented, all of that stands at peril.

For those who may be unaware the government has produced a document entitled “Transforming Legal Aid, the Next Steps”. In it, it proposes a number of reforms which deal with how legal aid is to be provided in the criminal justice system. Previously, I have blogged about the cuts to barristers fees. Those cuts are callous, swingeing and unnecessary. The CBA and others have attempted to show the Ministry of Justice why they are not needed and where else savings can be met. The Ministry is not interested.

The cuts also impact on the solicitors profession. Too many barristers, I fear, have not yet appreciated the extent or the gravity of the cuts affecting solicitors. If they did, they might understand exactly why the solicitors fight is our fight.

Alongside the ‘Next Steps’ proposals, the Otterburn and KPMG reports were published. Theses papers surveyed the solicitors profession and purport to provide the evidential basis upon which the ‘Next Steps’ document is predicated. They show that the average profitability for solicitors firms doing criminal legal aid work is 5.5%. The governments response? To introduce 8.5% cuts to all criminal legally aided solicitors fees from last Thursday and another 8.5% next year. What business can hope to survive these cuts, introduced with just 3 weeks notice. In this week alone, the multi office criminal aid practice of Meldrums has gone into liquidation, the Bath firm of Stone King have announced they are to stop doing criminal legal aid work and I know of 2 other firms who have sent redundancy emails out to all their criminal solicitors. Who can blame them? How can firms be expected to limp on bearing cuts which will make daily practice unprofitable.

It is not simply cuts which is proposed. Two tier contracts are to be introduced. This will mean solicitors can bid for contracts to deal with ‘own-client’ work, and separately for duty contract work. Currently, there are 1800 contracts for the provision of legal services. This is to drop to 525 for duty work. For those firms that manage to limp on despite the 8.5% cuts introduced this year, they face the very real prospect of being denied duty contracts next year. It is expected that the number of high street solicitors firms will be reduced by over a 1000. The unlimited number of duty contracts was provided as a sop to those who complained that removing client choice was wrong. Yes, all firms can now do own-client work but what is client choice if firms have gone under, and there is nowhere for clients to exercise that choice.

In light of these cuts, it is perhaps unsurprising that at a meeting in Manchester last week, solicitors voted to withdraw from providing legal services on the 31st and 1st and instead attend ‘training days’. The stance the CBA is taking is understandable. It supports the solicitors. It recognises that their fight is the CBA’s fight. It though, is mid consultation as to what steps it should next take, to defeat the government proposals. It is hard for them to call for an all out strike whilst it is still mid its own consultation period.

I, however, do not need a consultation period to know my own mind. I recognise that even if the CBA is successful in defeating the cuts which will affect barristers, if the solicitor profession is decimated, it wont matter what my fee levels are. I wont be getting any work as there will be no solicitors to brief me. The legal environment will be made up of Tescolaw, Stobbarts and the like, with inhouse paralegals, in house advocates, sausage factory provision of legal services and with only the most complex cases, upon which they can not make a profit, being briefed out to the bar. In that brave new world, I do not want to be sat at the desk in my new job, for I doubt I could afford to remain a barrister, wondering why I did not do more, fight harder, for a fair system of justice I believe passionately in. I applaud the CBA stance as articulated in this week’s Monday Message where it was said,

As a very minimum, I have no doubt that the Criminal Bar will not be prepared to take up any work on the 31st March/1st April in place of our solicitor colleagues.

For me though, that is not enough. The solicitors fight is my fight and that is why I wont be in court on Monday and Tuesday next week.

Potholes and Principles

In these times of austerity, it of course makes sense for governments to prioritise what to spend the limited public purse upon. Difficult decisions need to be made. Resources are not infinite and however worthy a cause is, if the money isn’t there, the money isn’t there.

One might be able to learn something about the character of those who pick what to spend the money on, by the priorities they determine. Should a mother spend her last £20 on special brew and a packet of Marlboro Red, rather than say, feeding her children, one would rightfully pour scorn upon her and one can only imagine the sort of headlines that might attract in, for example, the Daily Fail.

How then are we to judge the current governments priorities as announced in yesterday’s  budget. What does it tell us about their character?

The ministry of Justice are set about introducing the most savage cuts to the legal aid system in decades. It is no exaggeration to say that these cuts wont simply result in firms of solicitors vanishing from high streets, barristers leaving publicly funded work but there will also  be a real denial of access to justice.

The cuts will mean

  • 1800 firms of solicitors are to be reduce to 525.
  • Solicitors will get a 17.5% reduction in all criminal legal aid rates.
  • There will be a fixed fee for attending at police stations, however long one is there for, however many times one needs to attend.
  • Advocacy fees in the most complex of cases are to be cut by 30%.
  • Advocacy fees in other cases will be subject to swingeing cuts, from between 5% to over 30% depending on the case type.
  • Client choice will be an illusion if there is no firm of solicitors upon which they can exercise a choice.
  • Justice will be available for those with access to funds, and denied for those without.

These cuts are going to be imposed to save a massive £215m. Yes, for £215m our criminal justice system is to be decimated. Forget for the moment that many believe the cuts and the attendant miscarriages of justice will cost money not save money. Forget for the moment that many believe access to justice is a fundamental right in a civilised society and to trample on it is contemptuous. Forget for a moment that the CBA, the CLSA, LCCSA and others have attempted to show the Ministry of Justice where else savings can be made. If £215m is to be slashed in this way, it must be for a pretty important reason, mustn’t it?

That depends on your point of view. The government announced in its budget that £200m is to be used to help fill in pot-holes.That was not a typo – potholes. This government prioritises potholes over our criminal justice system. Of course the cynics amongst you might suggest that there are few votes in protecting our CJS but everyone uses roads.

What does this say about the character of our government? You may think they are self-serving bureaucrats, more concerned as to grabbing votes than doing what’s right. Me, I couldn’t possibly comment.

The Grayling Hearing

ImageI have a love of words. The technical term for this is ‘logophile’.

logophile
ˈlɒgə(ʊ)fʌɪl/
noun
1. a lover of words.

My love of words may spring from my profession as a barrister. I enjoy the way they can be used as well as the way language evolves. My highest plaudits to date come not from Judges or solicitors but from a client who when hearing that his ‘confession’ was to be ruled inadmissible following complex argument came up to me and said, “You’se sick innit”. As I said I have a love of language and context is all.

It is, therefore, with particular pleasure that I have noticed a new term slowly creep into the English lexicon. That term, the ‘Grayling Hearing’

Grayling Hearing
‘greɪlɪŋ hɪərɪŋ’
noun
1. A term used to describe a non-effective hearing which is adjourned by reason of the non-attendance of defence counsel. eg. Can’t believe I had to go to Maidstone for a Grayling hearing. [circa 2014 after legally inept Lord Chancellor, Christopher Grayling (con) forced bar to remove its goodwill from the CJS]

Following the inception of the No Returns policy Grayling Hearings are becoming a more common feature of our criminal justice system. In a 6 handed case at Blackfriars today when only 2 defendants were represented, prosecuting counsel apologised to the court stating that today was a Grayling Hearing. During the first week of the no returns policy alone, it is estimated that there have been around 200 Grayling Hearings. This number is only going to increase as the days unfold.

In reviewing our current Lord Chancellor’s period of office so far, one perhaps might lay 3 achievements at his doorstep.

1. The first Lord Chancellor to be appointed without having any legal qualifications.
2. To foster a sense of unity between solicitors and barristers, previously unheard of.
3. To usher in a phrase entered into the English Language; the Grayling Hearing.

No Returns

What follows is the text of the speech I gave at a meeting of the LCCSA today, on ‘No Returns’.

Anyone who works within the criminal justice system knows of one fundamental truth. That the system, as it stands, is not fit for purpose. Every day, trials go off when interpreters dont turn up, or turn up speaking the wrong language. Every day, trials fail to start on time because in an effort to save costs the bare minimum number of prison vans are arranged, so if you happen to be at the end of  the drop off schedule, then theres no chance of the defendant being there on time. In an effort to save money, less recorders are sitting, less courtrooms are open and as for the CPS, to describe them as in meltdown would be a kindness.  Dozens of hearings aren’t effective due to lack of service of documents, letters written to them go unanswered and it seems that court orders are ignored by them with an almost casual insolence.

That the system functions at all, is down to one principal factor – That is, the goodwill put in by solicitors, by barristers each and every day.

It is goodwill which allows a preliminary hearing to go ahead, even when the legal aid agency hasn’t got around to approving legal aid. Routinely counsel attend in such cases and progress the case when they need not.

It is goodwill which keeps one working into the night, to draft a skeleton argument because a Judge asks you to.

It is goodwill which keep us going to court, for nothing, on interlocutory even though fees for these hearings were abolished some years ago.

It is goodwill which when hearings clash, because the court wont move one, mean that we get someone else to cover a hearing, even though to do so will cost us money, as we pay that counsel a fee for that day, a fee we will never recover under the graduated fee scheme.

And it was with goodwill, that members of the CBA, the LCCSA and  other groups met with officials from the MoJ, to try and show them ways that savings could be made, or point them to the inefficiencies that anyone who works in the courts knows to be endemic.

Some of those meetings took place, whilst this travesty of a document – ‘Next Steps’ was being printed. We try to engage with goodwill and are met with the opposite.

Engagement, dialogue, reason only works when you are dealing with reasonable people. Mr Grayling is not a reasonable person. He takes our goodwill for granted and uses it as a weapon to beat us with.

Let me give you an example. In the response to the consultation last year, the CBA suggested getting rid of unnecessary hearings, mentions and the like, so as to save costs. The government replied to this suggestion at page 149 of their response, and I quote

“As graduated fees include the first 5 mentions, any reduction in the number of mentions would not make a difference to the fee”

They ignore that multiple hearings costs extra in court time. Can there be any doubt that it isn’t saving costs they are after, but rather this is an ideological attack on those who provide criminal legal aid. As I said, he takes our goodwill for granted and uses it as a weapon to beat us with.

That goodwill has been taken for granted for far too long. The ‘No returns’ policy is a policy designed to show what happens when we remove our goodwill from the system. 

So what is a return?

Under the AGFS every case has a nominated advocate. Usually this will be the person who attends on the PCMH, but it needn’t be. Importantly, it will be this nominated advocate who is responsible for submitting the bill, he who will be paid by the LAA and he who ‘owns’ the brief. A return is any hearing, be it a mention, a sentence or the trial, covered by someone other than the nominated advocate.

What is the no return policy?

The policy is simplicity itself. Those who adhere to the policy will refuse to accept work which has been returned by the nominated advocate.

Make no mistake about it, the reason we do returns is not so as to bolster our practices, rather it is a manifestation of our goodwill which allows the court system to function. Let me tell you of a real life example I had a short while back. I had a PCMH listed at the same time as another matter was listed by the court, of its own motion, for a pre trial review. The pre-trial review was likely to be complicated, there were disclosure issues outstanding and out of the two hearings, it was the one which most needed my presence. The court would not move the PTR or the PCMH and so I returned the PCMH to another counsel. I do not get paid for attending on a PTR, it is covered by the brief fee. I do not get paid for attending on a PCMH, as it too is covered by the brief fee. But the person who is covering the PCMH for me will get paid, by me, for covering it. I believe how much varies from chambers to chambers but in ours it is £100. Consider then. I do a court appearance on the PTR, for nothing while I am paying £100 out to the person who is covering the PCMH. My income for the day? Minus £100. Which other profession would allow themselves to be -£100 down for the day, allow themselves the privilege of paying to go to work. And why does it end up like that. It ends up like that because listing a case for counsels convenience is for the most part, as rare as hens teeth. Other matters are more important. Like court timetables, target dates set by civil servants and so counsels convenience goes to the bottom of the list. It ends up like that because, until now, they have known they can rely on our goodwill to make sure the system functions. That goodwill is now spent.

What will the practical effect of the no return policy be?

In short, if a case is not listed on a date when the instructed advocate can attend and the no return policy is taken up by sufficient barristers,  then that case when called on, will have no defence counsel attending on it. The case will not be able to proceed.

Today, Grayling Day, is causing disruption to the courts. Last Friday there were 3085 crown court cases being heard. Today there are just 1171 listed. Whatever the government spin machine churns out, disruption is being caused. However, it is managed disruption. For the last month listing officers have known about it, cases have already been moved, many courts aren’t even sitting. From Monday, it will all be different. A Judge wont know until he walks into court whether anyone is instructed in a matter. If a case has had to be returned and no replacement advocate can be found a Judge will be faced with an unrepresented defendant. It wont be long before they begin to realize, how important our goodwill is, how much it has been taken for granted and how vital it is, if the courts are to function properly.

The Professional Conduct Position

The no return policy also has one huge advantage over days of action such as today. Issues of wasted costs wont arise, issues of contempt or being reported to the BSB will not happen. Professionally, it makes us bulletproof.

The professional conduct implications arise on 2 different levels. On the person returning the work on the one hand, and on the person refusing to accept the return on the other.

Firstly, the person returning the work. The circumstances in which instructions can be returned are covered by the BSB handbook. Rule C25 deals with when instructions must be returned. Rule c26 deals with when they may be returned. It says

“You may cease to act on a matter on which you are instructed and return your instructions if:

.1 your professional conduct is called into question

.2 the client consents; or

.3 you are a self employed barrister and:

a          despite all reasonable efforts to prevent it, a hearing becomes fixed for a date on which you have already entered in your professional diary that you will not be available

In other words, if 2 dates clash, and despite your best efforts, the court wont move one of them, then it is perfectly proper to return your instructions.

To make sure that one complies with the handbook, one must also have regard to the guidance at gC83

gC83 states

            “In deciding whether to cease to act in accordance with rule C26, you should, where possible and subject to your overriding duty to the court, ensure that the client is not adversely affected because there is not enough time to engage other adequate legal assistance.”

In other words, if you leave it to the night before the hearing, before deciding to return due to a diary clash, you could face problems. Once you are aware of a clash, and you have used your best efforts to try and move one, or other hearing, to no avail, then that is the point at which you should return your instructions

The final compliance hurdle is rule C27 which states

Notwithstanding the provisions of rule C26, you must not

.1         cease to act or return instructions without either

a          obtaining your clients consent; or

b          clearly explaining to your client or professional client the reasons for doing so

In short, this requires you to write to your instructing solicitor informing them why you will need to return the instructions

Summarising the position for the person who needs to return instructions:

  1. Identify a diary clash
  2. Try to get one case, or the other moved, so as to avoid the clash
  3. If that fails, return the instructions to your solicitor
  4. Write to your solicitor informing him why you had to return the instructions.

What of the professional position of the new barrister though? Is he entitled to refuse instructions? What of the cab-rank rule?

The cab rank rule does require counsel to accept new instructions, subject to an important exception.

rC30.8 provides that the cab rank rule does not apply if

            “you have not been offered a proper fee for your services”

Considering that most returns will be for interlocutory hearings, where the fee offered is nothing, the questions is less have we got grounds to refuse and more why on earth have we bothered accepting instructions in such circumstances previously.

In so far as trials are concerned, if you deem the fee not to be proper, then you are entitled to refuse the instructions and that is the end of it. However much the government may wish to believe the contrary were true, they cannot make you work, they cannot force you to take instructions and this is where we differ from ambulance drivers, firemen or other groups who have gone out on strike before. They cannot draft in the army to fill empty counsels benches. You are needed to do the job you do if the courts are to function. Lawfully withhold your labor and the system will crumble around you.

I want to finish by talking about 2 further matters. I want to deal with some of the criticisms levied against the no returns policy and I want to deal with the question as to whether this policy can work.

Criticisms of the Policy

So first the criticism. It has been said that this policy disproportionately affects the junior bar, who are most reliant on returns.

Yes, it is true that juniors are those who most frequently rely on returns so as to build a practice but what that ignores is that it is envisaged under the government proposals that there will need to be an exodus from the bar if the reforms are implemented – In fact not only is it envisaged but it is expressly stated within the ‘Next Steps’ document. Paragraph 116 reads

“Some advocates may decide to leave criminal legal aid work”

that exodus is likely to affect the junior bar, those who have not yet built practices up, the most. This battle is being fought on behalf of all those who need access to justice and on all those who practice in criminal legal aid, junior bar included. The policy is being designed to protect people from professional misconduct issues, from wasted costs orders and whilst there may be some hardship in the weeks ahead, no one can be in any doubt that the hardship will be of the order of magnitudes greater if the reforms come into force.

Can the policy work?

So finally let me come to the most important question of all. Can the policy work. It can subject to 2 important factors.

One, it is reliant on a sufficient number of barristers holding the line, agreeing with the policy and determined not to accept returns. I shall not be accepting returns from Monday. No one at my chambers will be accepting returns from Monday. The briefest perusal of chambers websites show that this view is held across the criminal bar, up and down the country.

Two, it is reliant on solicitors, you who sit here in front of me, understanding that the policy is being ran to protect your firms from going to the wall, which is what will happen if Graylings reforms come in. I recognize that this policy will add an extra burden on many of you. When instructions are returned you will be obliged to try and find new counsel. Should you phone up our clerks and threaten to pull all future work, there is a risk the policy could unfold quickly. Should you seek to plug the gaps left by instructing your HCAs to attend, there is a risk the policy could quickly unfold. But should you remain united with the bar, one legal profession united in a common cause, then there is no reason why the policy should not work. We at the bar are reliant on you understanding that we do this to protect you, to protect justice.

Consider the Operation Cotton VHCC trial at Southwark. Those instructions were returned last year and contrary to the government’s expectations, no one else picked them up. Grayling made a massive miscalculation there. He believed we would be forced to work, to take the lower rates. That mortgages and living expenses would force us to fold. We did not. Instead he is faced with huge embarrassment. Now imagine that multiplied a hundredfold as cases up and down the country start to have unrepresented defendants appearing in them. Already the policy is beginning to bite. In Liverpool 2 serious cases, due to start on Monday have been stood out till October, as no counsel can be found to take the ‘returns’. In Nottingham it is expected that in the first week alone, score of cases will be affected by the policy. The disruption could be huge. The impact, massive.

We can show the Ministry of Justice just how valuable our goodwill is and if we do, just maybe they will start showing a little goodwill in return.

Manifesto

My name is Richard Bentwood. I am a criminal legal aid barrister and proud of it. I am proud of our criminal justice system. I am proud that I am able to do a worthwhile job which can positively impact on peoples lives.

During the last 12 months what I have been feeling is not pride, however, but anger. Anger at the proposed ‘reforms’ which seem set to devastate our CJS. Anger that we have in Chris Grayling a politician who has forgotten that he is Lord Chancellor and instead seems intent on an ideological attack on the independent criminal bar.

Rather than remain angry, I decided to do something about it. Following the notoriety of my downfall videos, Michael Turner QC co-opted me onto the CBA executive where I have worked trying to promote the interests of the criminal bar and defeat the introduction of these reforms.

I have written pieces for the Times, the Huffington Post as well as many blogs, all to try and make sure that the message gets out there, the message that our criminal justice system is one to be cherished, to be valued and not to be destroyed.

As a member of the CBA social media committee I manage the CBA blog, as well as being one of the hidden ‘voices’ behind the CBA twitter feed. As a member of the CBA executive I work to promote the interests of the junior bar, work I wish to continue as an officer of the CBA.

I work in legal aid. I have attended at unpaid mentions, the £194 travesty that is payment for elected trials which end up being dropped. I know what it is like at the coal face and I know just how difficult life can be at the junior bar. I also know that if these cuts are implemented, solicitors firms will go under, work will dry up and for those who are able to remain in practice, their incomes will diminish to the point of untenability.

It is for these reasons that my manifesto promise is as short as it is simple. It is to fight these cuts with every fibre of my being, with every ounce of my energy. It is for these reasons I ask you to vote for me. Instructions as to how to do this can be found here. If elected as an officer of the CBA, I shall continue with the work I have been doing this last year. I shall be a voice on the executive of one who practices at the coal face, who knows how important winning this fight is and who will do everything within my power to see that the fight is won.

The Day of Action

January 6th 2014 might just go down in history as the day the Criminal Bar decided that enough was enough, metaphorically downed wigs and gowns and took to the streets in their first ever day of action. Much has been written as to the merits of striking, the righteousness of the cause, the risks in professional conduct terms of walking out of court together with the very real concern as to what might happen to unrepresented clients. Time will tell whether the BSB decide to prosecute anyone for misconduct matters or whether individual counsel face the prospect of defending  wasted costs applications in the weeks to come. Given the near universal support to the day of action, this would seem to me to be unlikely. Perhaps more pertinent questions are “How did the (half) day of action go down? How was it perceived by the media? Did the Bar make its point? Will more days of action follow?”
 
To my mind, the day went particularly well. In gale force winds and buckets of rain, barristers congregated outside various court centres, made their protest and let their voices be heard.Image For too long, members of the criminal bar have had to read or listen to the constant MoJ mantra of ‘we have one of the most expensive legal aid systems in the world’. Today was the day the criminal bar let the MoJ know that such lies will not go unchallenged, that fighting for justice is worth pursuing both inside and out of courts and that solicitors and barristers working together can bring the system to a halt. 
 
I have been asked as to what a half day of action was intended to achieve. The answer to me is clear. It is a foretaste of things to come. A brief example of what might be should the cuts go ahead and the Criminal Justice System become a barren desert of empty courtrooms and insufficient advocates.
 
That the point was heard is indisputable. The Guardian live reported matters as it happened and the day was reported in all the major media. You can read reports about it in the Independent, the Times, the Standard, the Telegraph,the Guardian and miracle amongst miracles, even the Daily Fail.
 
It wasn’t simply the print media who covered matters but also on radio and TV. Tony Cross QC started the day with a magnificent debunking of MoJ lies on BBC radio 5 live, John Cooper QC demolished Bob Neil in a radio debate which proved that MoJ figures and lies cannot stand up to any detailed scrutiny. Nigel Lithman QC appeared on Sky as well as the BBC and below you can watch Sarah Forshaw QC demonstrate how reasoned advocacy will trump MoJ spin every time.
 
 
Did the Bar make its point? I believe so. Will a half day of action be enough. I doubt it. We are faced with an intransigent opponent who thinks nothing of smearing those who deign to argue against it, or lie in pursuance of promoting their own agenda. One thing is clear though. That barristers and solicitors, unified in a common cause can achieve wonders and maybe, just maybe, should more days of action follow, wonders in the form of a reversal of these cuts can become a reality.

 

 
 

The Winds of Change

Regular readers of this blog may appreciate that I am not exactly a fan of our current Lord Chancellor, Failing Grayling, or indeed his lapdog, Hysterical McNally. True, they have been easy targets to satirise and have provided a rich source of material to poke fun at. From dodgy expense claims, failed policies, constant switching of parties or just plain incompetence, the pair of them present themselves as the gifts which just keep giving – and as Christmas approaches, that’s no bad thing, save for one matter. That ‘one matter’ is a biggie. The two of them seem intent on dismantling the independent criminal bar and with it, our Criminal Justice System.

During the past 8 months or so I have watched whilst consultation responses have been ignored, swingeing cuts have been introduced and matters have got so bad that the criminal bar is set to hold its first strike in over 500 years of existence.

Why they are set about this course is unclear. Some argue that Failing wishes to prove he can deliver to the Treasury to further his political career and is intent on doing so at any cost. Others argue that the absence of any legal training undertaken by our current Lord Chancellor or his senior ministers render them not only incapable of fulfilling their oaths of office, but more put them in the position of children in an adults job – unknowing what to do or and unwitting of the damage they may be  causing.

Today’s  news, that McNally is being shuffled out with Simon Hughes MP and Lord Faulks QC coming into the MoJ  is therefore a matter of celebration for anyone concerned about the state of our Justice system. Why do I say this? Lets look a little at the ‘form’ of these two new appointees.

Simon Hughes MP, deputy leader of the liberal party has always been a staunch proponent of the right to receive legal aid. Back in 2007 in response to the Constitutional Affairs Select Committee’s report into the Government’s legal aid proposals, he said:

“Today’s report is the bluntest of warnings about the folly of the Government’s legal aid plans. When a cross-party committee says that access to advice and justice could be irreversibly damaged and calls for a fundamental rethink of the proposed legal aid changes then ministers would be foolish or careless not to stop for a rethink”.

Easy to say in opposition one might justifiably think but his opposition to cuts have continued into coalition. During the passing of LASPO he tabled amendments seeking to prevent legal aid being withdrawn from complex refugee cases.

In 2011 he was part of the Lib Dem rebellion arguing that cuts to legal aid would restrict access to justice http://www.theguardian.com/law/2011/oct/28/lib-dem-legal-aid-rebellion and more recently in June he was vocal in arguing against PCT and in favour of client choice http://www.theguardian.com/law/2013/jun/26/simon-hughes-legal-aid. In October this year, during House of Commons questions he asked

“Is [Grayling] willing to look open-endedly at that fee regime to ensure that we have good lawyers who are able to represent people on legal aid in the future?”

http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm131008/debtext/131008-0001.htm#13100813000017

Finally and most recently, Simon Hughes MP is part of the Joint Committee on Human Rights which recently challenged Grayling as to his proposals suggesting that he should delay implementing them until the committee had reported its concerns. http://www.lawgazette.co.uk/practice/grayling-feels-the-heat-from-committee/5038960.article

So far so good then, but what of the other appointee, Lord Faulks QC, the Tory peer. Lord Faulks brings a lifetime of experience of legal practice to his new responsibility, including having sat as a recorder of the Crown Court. He can properly be described as knowing how matters unfold inside a Crown Court. It would be easy for me to cite previous articles, debates and questions where Lord Faulks has shown himself to be a man of principle and not necessarily one to toe the party line where Legal Aid is concerned. However, were I to do that, it may be that I would have insufficient space to print in full, his contribution to the House of Lords debate last week where he spoke against the government introduction of the retrospective  30% fee cuts to VHCC cases. It is well worth a read in full, especially where he dispels the fat-cat myth and notes that if the cuts go ahead, it wont only be the lawyers who feel the pain but those who will unavoidably be denied access to justice.

My Lords, my noble friend Lord Carlile has summarised the arguments against the statutory instruments with his usual clarity and vigour, and I do not wish to weary the House with repetition. I would, however, like to add a few words and in doing so should declare an interest as a practising barrister. I am not a barrister who does criminal cases and I very rarely do cases where legal aid is involved. However, I have sat until recently as a recorder in the Crown Court and am thus familiar with our criminal justice system.

I entirely understand the desire on the part of the Government to reduce spending on legal aid. The LASPO Act was the Government’s first move in reducing costs. There is no reason why lawyers should be in any way immune from austerity, nor should justice be recognised as some sort of special case, up to a point. Nevertheless, what troubled many noble Lords in scrutinising that Bill as it went through the House was the risk of real injustice not to lawyers but to those who encountered the system and would be at risk of being denied access to justice. The Minister reassured those of us who were anxious, particularly in relation to Part 1 of the LASPO Bill, as it then was, and made some important concessions. However, the impact of the Act is going to need careful watching to ensure that real injustices do not result.

The Secretary of State has now proposed further cuts in the legal aid budget, focusing principally, but not exclusively, on criminal legal aid. Perhaps I may say how much I am looking forward to the response of the party opposite to these proposals. During the passage of the LASPO Bill, it was often said by the party opposite that, had it won the last election, it would have made significant cuts in the legal aid budget, but it was not apparent from the stance that it took to the proposals in the Bill where those cuts would in fact have occurred. On a number of occasions, the noble Lord, Lord Bach, whom I see in his place, indicated that the cuts would have come in criminal legal aid. I think that the House would regard it as important for the party opposite to be clear—if not on the detail then certainly in general terms—as to how those cuts, necessary as they were, would have fallen on criminal legal aid.

The previous Government were in the habit of publishing figures for the top earners, in both criminal and civil work, in receipt of funds from legal aid. This was no doubt seen to help in the softening-up process in relation to public opinion before any changes were made to legal aid funding. The figures were usually misleading. Unfortunately, this Government have followed suit in that respect.

In a sense, barristers are an easy target; the average member of the public has better things to do than drill down for the truth about their earnings and is happy, for the most part, to accept some of the stereotypical pictures of an overpaid man or woman in a wig quietly milking the legal aid system. However, I acquit the Secretary of State of describing barristers as “fat cats”. He has been at pains to emphasise that he is not set upon destroying the criminal Bar, and I entirely accept that that is not his intention.

Over the years, successive Governments have attempted to cut the fat off the criminal justice system and, as we have heard this evening, it is beyond argument that criminal barristers are, for the most part, very moderately paid. They are self-employed and have little muscle or obvious appeal in any negotiating process. There is no doubt that the criminal Bar is a profession in crisis. However indifferent the public may be to the individual circumstances of barristers, there will, I apprehend, be far more concern if the system as a whole is degraded.

Very high cost cases are now likely to be ignored by the most competent barristers. There will thus be a position where the most complex cases will be conducted, if the defendants are represented at all, by barristers with considerably less experience and competence than is appropriate. When cases are subject to the control of an experienced judge assisted by experienced barristers, as we have heard from noble and learned Lords, the outcome is very often a significant saving in costs through the sensible use of admissions and a clarifying of issues. This results in a saving on the legal aid bill and, just as important, a streamlined and well conducted trial process. That is unlikely to remain the case.

It is not only barristers who are alarmed at the effect of these changes but, as we have heard, judges, who will have to preside over trials in the future. Our criminal justice system, for all the criticisms that it attracts from time to time, is still held in very high regard not only by the occupants of this country but by those in other countries. Its reputation, hard won as it is, is now at serious risk.

I have referred to the Secretary of State. He of course will also have close regard to his obligations as Lord Chancellor, requiring him to ensure access to justice. I fear that the fat has been so far removed from the carcass of criminal legal aid that these further cuts really threaten our justice system. There are changes and improvements that can no doubt be made in the disposal of very high cost cases, but I venture to doubt that a simple, crude reduction in fees is the way to go about making the necessary changes. Here, I entirely agree with what the noble Baroness, Lady Deech, said. The changes in welfare are based, as she rightly said, on a principle. It is difficult to discern what principle lies behind these changes.

I ask the Minister to consult the Secretary of State for Justice and Lord Chancellor and to think very carefully about whether the effect of these changes—short, medium and long-term—are really worth the apparent saving.

I do not claim to possess great political acumen, but it seems to me that the introduction of two persons of legal background who have set out their position as being opposed to swingeing cuts recognising that their imposition can lead to a removal of access to justice represents a fundamental change of approach to the Ministry of Justice. It may be too early to call this a sea change and one must wait and see as to how their introduction to the Ministry will manifest itself, but I for one, read this as the most promising and cheery news on the legal aid front for some time.

If I were to be truly optimistic, I would opine that the unity between bar and solicitors, the prospect of the (first) day of action in the New Year and the constant criticisms of the proposed cuts have contributed to these appointments. Do I feel the wind of change blowing? Maybe. And who knows, just maybe these appointments are indicative of a realisation by the government that access to justice, like access to health and education are fundamental rights to be cherished, to be protected and to be enjoyed in a democracy.

The Price of Honesty

If your only source of news were to be some populist rag (did someone mention the Daily Fail?) dressed up as a newspaper, one could be forgiven for thinking the world is going to hell in a handcart and that all criminals should be hung and then deported, or perhaps the other way around, opinions differ on this. One might even be forgiven for believing that any alleged criminal would knife you for tea money and that ordinary English values of honesty and decency were no more to be found.

It is with some surprise therefore that when I commenced my current trial some weeks previously, I noticed a ten pence piece in a very public and prominent position. Given the amount of alleged criminals walking past this every day, to say nothing of jurors, court staff, solicitors and counsel, one might have thought it wouldn’t be long before this errant 10p vanished. How wrong you would Imagebe. I am now entering the 5th week of that same trial and still the 10p sits there alone and unwanted. It brightens my day. As I start the climb to the robing room, mind clouded due to insufficient caffeine, the sight of the 10 pence brings a smile to my face and a spring to my step.

Yes, our current Lord Chancellor may be set upon destroying our Criminal Justice System. Yes, I find myself working twice as hard for a third of the money that I used to earn and yes, I face another gruelling week of trying to stay awake in an oh so tedious fraud trial. All is not lost though. For upon a small table in a public space, in full sight of scores of alleged criminals and the great British public, sits a lonely 10 pence piece – and its lonely vigil stands testament to the fact that all is not so bad, people are not so dishonest and that some values such as honesty endure.