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
“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:
- Identify a diary clash
- Try to get one case, or the other moved, so as to avoid the clash
- If that fails, return the instructions to your solicitor
- 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.