Chris Grayling, our current Lord Chancellor is either a liar or an incompetent. I do not make such a statement lightly. Let me illustrate my reasoning with a true story.
In the Autumn of 2011, Mr Antoine, a person of good character was working as a general support officer for a north London Housing Association. His job involved moving items from one place to another, general maintenance work as well as other assorted tasks which he may be given to perform. Problems arose when 4 laptop computers went missing from their server room. An investigation commenced, he was suspended, the police brought in and charges and a dismissal followed in quick succession. In the greater scheme of things, this was to be no trial of the century. It wasn’t even to be a trial of the year. Just the standard knock-about criminal trial which most jobbing barristers have to deal with. That is, with the exception of Mr Antoine who saw things somewhat differently. No trial was more important, no outcome more serious. It was the biggest thing he had ever had to face and depending on the result, his life could be dramatically altered. Even a person of good character can face imprisonment for theft from an employer and the impact on his future employment prospects with a dishonesty conviction couldn’t be overstated.
He appeared before the magistrate’s court, elected trial by jury and the case was duly committed to the Crown court where I attended all the hearings. The first hearing was to be his Plea and Case Management hearing, the papers were not ready so the case was adjourned. At the second hearing, he was arraigned, entered his not guilty plea and the matter was set down for trial. On his instructions, I drafted a detailed defence statement. Essentially, he admitted taking the computers from the server room, but said that he had dropped them off at another location within the company. Further, he did this on the direct instructions left for him by another within the company. The prosecution case was somewhat different. They contended that the Housing Association had a strict policy regarding the movements of technical equipment, with requests for transfers being in a particular form, documented and being issued by a certain department alone. They said that as the relevant department had not made a proper and documented request, Mr Antoine could not have received any such request and he must therefore be lying. Mr Antoine was adamant that he had received instructions, albeit on a handwritten note and that he had received dozens of similar requests previously, many of which were confirmed by email. Hearing 3 was a disclosure hearing, designed to compel the Crown to hand over all of his previous emails, stored on the company server, something they were loathe to do until ordered to do so by the court. 10 days before his trial, the prosecution handed over 34000 emails on a hard drive, served as unused material. Hearing 4 was to break the (first) trial fixture, given that 34000 emails took some time to digest and the defence was not going to be ready in time. Subsequently and with Mr Antoine’s assistance, approximately 250 emails were identified which made similar requests to that made in his case, requests which the prosecution were contending ‘couldn’t happen’. I prepared jury bundles with copies of all of the relevant emails and prepared for trial. This (second) trial fixture, hearing 5, also did not take place. Various prosecution witnesses hadn’t attended and the prosecution were not in a position to proceed. Directions were made to ensure that the next trial date would be an effective one. Hearing 6 was a fiasco. It was meant to be a pre-trial review but fast descended into hours of delays while the Crown HCA desperately tried to find a reason why none of the previous orders made, had been complied with by the Crown. What made matters worse was I was double booked that day. Knowing the history of the case as I did, I felt I had to be present during that PTR which meant I had to pay someone else to do a different PCMH of mine, a fee which I would never recover as it comes out of the total brief fee. Hearing 7 was to be the third trial listing. At the trial date counsel who had now been instructed to attend on behalf of the Crown considered the defence bundle of emails, took instructions and offered no evidence against Mr Antoine. The date was August 12th 2013. His ordeal had lasted just shy of 2 years but at least it was over. He left court an innocent man.
During the course of this matter I had attended court on 7 occasions, drafted a defence statement, drafted submissions re disclosure, prepared jury bundles, considered Mr Antoine’s instructions and perused literally thousands of emails as well as preparing for trial twice. Conservatively, I imagine the case took about 60 hours of preparation spread amongst evenings and weekends, together with the actual 7 days of court work. My fee paid for all of the above. £194.
Paragraph 9, Schedule 1 of the remuneration regulations provides that where a defendant elects for the case to be tried in the Crown Court and subsequently the case does not proceed to trial, either by reason of guilty pleas or otherwise, a fixed fee of £194 will be payable. It doesn’t matter how much work is required, how much work is done, how many hearings there are. If the case folds without a trial, £194 is the total fee paid.
The rationale for this rule is obvious. Crown Court trials can be expensive. Penalising advocates whose clients elect Crown Court trials is designed to incentivise advocates to persuade clients to plead guilty, or stay within the Magistrates Court. If they don’t, the advocate knows he will lose money. To my mind, a system which builds in a conflict of interest between the advocates pay and his professional duty to his client is wrong. What’s worse, are the current proposals to transform legal aid which embrace such incentives and seek to impose them throughout the system, introducing measures which reward a quick result over the right result. It seems that justice must no longer be seen to be done, but seen to be cheap.
It costs me £10.60 a day to get to Southwark Crown Court by tube. I had to pay £100 to a fellow member of chambers who covered my double booked PCMH. Out of the £194, I have to pay my chambers and clerks a total of 14%, that is £27.16. For the purposes of these calculations I am ignoring the costs of any sandwiches I may have eaten, or coffee bought whilst at work. So what do I in fact receive? My fee for the preparation is nothing. We do not get paid for preparation or for out of court work. We do not get paid for considering unused material, however voluminous. Looking on the bright side however, although I was paid nothing for the preparation, that beats what I was paid for my court work where I had to pay for the privilege of working. My fee for the court work was a kingly -£7.36. That’s right I pay for the privilege of working.
The truth is, often it is a privilege to do this job. In securing a not guilty verdict for an innocent man, one has the rare opportunity to impact on lives in a positive way. Is it so wrong though, to expect to be paid something for doing such work? In doing this work, do I deserve to be called a fat cat? Is it really fair, or in any way justifiable to cut our fees a further 17.5%-30% if the latest legal aid ‘reforms’ go through?
So that is my true story. It may be, however, that some of you wonder why such a story leads me to the conclusion that Chris Grayling is a liar or an incompetent. The reason is simple. In answer to a recent question in parliament as to how the reduction in fees might effect those at the criminal bar he said under his new proposals, “the least that a junior barrister can be paid for a day in a Crown court trial is £225 plus VAT.” See http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm130905/debtext/130905-0002.htm at column 497. Either he knows he is wrong in which case he is a liar, or he is just badly briefed, doesn’t understand his department and is an incompetent. Personally, I have never thought him stupid but perhaps that is just me.