Thursday, 24 March 2016

A modern day Purim Miracle


 
As court duty solicitor, I am required to represent any defendant appearing at court without his/her own legal representation. On one occasion, I arrived at court, to be greeted by the court usher, who directed me towards a rather agitated orthodox Jewish man, who required my assistance.
 
“Good Morning” I said to him, introducing myself. 
“I have been charged with drink driving!" he shouted, his voice full of panic. "But you have to understand. It wasn't my fault. It was a religious festival. I HAD to drink!!"
I paused for a moment. Most of my clients claim that it wasn't their fault. Very few blame God.
"This religious festival." I asked. "Was it Purim, by any chance?"
The man, who until this moment had been pacing back and forth, stopped still. He looked straight at me. 
“Boruch Hashem! The Almighty has sent me a Jew to save me!" 
“Not quite." I said. "I've been sent by the Legal Aid Board".
 
At this point, I began to wonder whether volunteering the information that I was Jewish, and aware of the traditions of Purim, might have been premature. The client, let's call him Mr Mordechai, was insistent that the  police had not given him his own sample of blood to test, which he was entitled to, as he was only just over the limit. So I advised him to plead 'not guilty', and Mr Mordechai began to visit me at my office to prepare for his trial.
 
And so began a lawyer-client relationship, and a court case, that I have never forgotten, although it happened over 20 years ago now.  During his client consultations, it became clear that Mr Mordechai was much more interested in the particulars of my personal life than on the specifics of his own case.
 
On many occasions, while I was trying to investigate the details of his arrest, he would launch into investigative enquiries of his own. 
"So Mr Harris. You have children, yes?"
"No" I said. 
"But you live with your wife, yes?”
“No” I said
“Aah” he responded, “You live with your parents.”
“No” I said. "I live on my own."
“Alone!" he said, with tangible concern, “Alone is not good. Listen. When this is over, I will find you a wife!"
 
On a separate occasion, he asked me for my Hebrew name and he seemed genuinely delighted to discover that I am a Cohen. This did lead to some confusion, however, when he rang the office; I once arrived to hear the receptionist, a stalwart of London's East End, telling a caller "No. You must have the wrong number. There is nobody called Shmuel HaCohen working here". 
 
Occasionally, he would attempt to steer the conversation into Hebrew, even though mine was quite limited. I attended a six-month Ulpan in Israel after I finished University, so I am able to order a falafel or buy a bus ticket.  Unfortunately, there had not been a lesson on saying "There are in excess of 80 milligrammes of alcohol in 100 millilitres of your blood." 
 
As a result of these distractions, as the trial approached, I became concerned that Mr Mordechai was not taking the process as seriously as he should. He seemed to be mistakenly of the view that being represented by a Cohen with patchy Hebrew would be sufficient.
 
At our final meeting before the trial I gave him a series of very strict instructions. 
"Mr Mordechai” I said. “It’s very important that you listen to these instructions. Do not call me Shmuel in the trial process. Do not speak in Hebrew when giving your evidence. And, most importantly. Do not drive to court. If you are convicted, you will be banned from driving immediately. So please, do not drive to the court.”
 
The trial was listed at Thames Magistrates Court at 2pm. I had advised him to be there at 1pm.
At 1, he was not there.
1:05 - no sign.
1:15 – still no sign
Finally, at 1:25 he arrived.
“Where have you been??” I asked
“It was hard to park” he responded
 
There seemed little point focussing on his ignoring my advice about driving and indeed his complete lack of acknowledgement that he might be convicted. I needed to concentrate on the matter at hand, and began to run through his evidence again with him before the trial started.
 
As I was talking, Mr Mordechai interrupted and said, “I think it would help if you gave me the Cohen blessing before the trial.”
“Don’t be ridiculous” I replied.
“I want you to do it. You’re my lawyer. I’m the client. That’s what I want.”
“I don’t even know it” I stated.
In shul, the priestly blessing always makes me feel rather awkward. I wondered what the court clerk would say if I took off my shoes in the court lobby and started chanting ancient incantations. But Mr Mordechai had no such concerns.
“No problem” he said, grabbing my hand, “I will tell you what to say and you can just repeat it”.
And so there I was, outside Courtroom 2 at Thames Magistrates Court. Whilst colleagues and friends were taking last minute instructions, giving advice and checking that witnesses had arrived, I was asking God to ensure that his heavenly face shone with light over my client’s face.
 
The trial began. The two officers who had stopped him in his car and escorted him to the police station both gave evidence. Although present when the custody officer had processed the drink drive test in the custody suite, these officers (rather conveniently for Mr Mordechai) could not remember whether or not the suspect had been offered his own sample of blood to test.
 
This meant that the custody officer, who also gave evidence, became a key witness. If we could establish that he also could not remember whether the client had been offered blood, we might have a chance. I was fairly confident. It was a busy police station. There were suspects being brought in and out all the time. It was usually a scene of chaos. How could he possibly remember a single arrest for drink driving?
 
“But Mr Harris” he said, when being cross examined, “I had been off work for 6 months. This was my first day back. It was my first job. I remember it clearly. I offered him his own sample and he declined. Also, he was dressed as a pirate.”
 
Things were not going well. But then, the custody officer, seemingly in an effort to promote his efficiency, produced the exhibit label which would have been attached to the blood sent to the laboratory. But the label did not have Mr Mordechai’s name on it. Just a number.
 
It was incredible. Some might call it a miracle. Suddenly, the prosecutor was in a panic. Unless he could demonstrate that the number on the label related to my client, he could not prove it was his blood and, therefore, could not prove the case. The prosecutor, in a desperate attempt to save his case, asked to recall the two officers who had already given evidence, in the hope that they could confirm that the number on the label did indeed relate to Mr Mordechai. I, of course, objected, on the grounds that their evidence would be tainted by the discussion they had just heard in the court. There was a rustling of papers and whispered panicky conversations between the prosecutors and his team as they frantically sought to save the case. And all the while, Mr Mordechai sat in the dock, oblivious to what was going on, gesticulating to me and asking when he could have his say.
 
Finally, the judge turned to me and said, “Do you agree that the prosecution have not put forward any evidence that the number on the label relates to your client.”
“I do” I said.
 
The judge continued, “And do you submit, Mr Harris, that I have not heard evidence that the blood exhibited was definitely your client’s”
I needed no encouragement to agree.
“Do you therefore submit, Mr Harris, that there is no case against your client?”
I agreed and the judge dismissed all charges.
 
Stunned, I turned to Mr Mordechai, who was still sitting in the dock, without any clue as to what had gone on. I went up to him and said “It’s over. Case is dismissed. Let’s leave”
“I have not had my say” he responded with indignation. “I want to have my say!”
“Forget that. Believe me. It’s not going to get any better.” 
 
As we left the building, Mr Mordechai gave me his advice and I gave him mine.
He said, “In view of what just happened, I presume you will now become more religious”.
I replied, “In view of what just happened, I presume that next Purim you won’t drink and drive”.
 
He thanked me for my hard work and then, as he turned to leave the court, smiled and said “On Simchas!”
 
We have not met at any simchas since.
 
HAPPY PURIM. DON’T DRINK AND DRIVE.
 

Tuesday, 1 March 2016


THE TUESDAY TRUTH – 1st March 2016

 By Greg Powell

Après La Débacle


La Débacle, a novel by Emile Zola published in 1892 deals with the humiliation of the French Army by Prussia 20 years earlier.  Fast-forward almost 150 years to another process that merits that description, the LAA/MOJ Débacle known as Two Tier Contracting which always appeared a project too far and too complex for the administrative resources of the LAA and so it proved. 

The costs of course, in cash expended, time and emotional and financial uncertainty are inevitably again borne by and within Solicitors firms.  In the highly lopsided world of contracting the LAA has imposed a series of disasters upon our profession, staggering from one PCT to the next BVT to the next tendering apparently without any “lessons learned” period of quiet reflection. 

All of which obscures the much greater and compelling truth which is the pauperisation of rates of pay which coupled with aggressive managerialism and the delays of means tested applications leads to defendants and their lawyer’s everyday facing pernicious choices.  Plead or not, lose credit or not, act and advise without certainty of a Representation Order or the evidence – “your client knows what he did”, Judges turn blind eyes to the practical realities of Solicitors and Counsel litigating cases. 

So, in January 2017 we are to have a new version of the contract. The fiasco of 2 Tier provides the context therefore for a number of questions:

How are 24 hour police station duty slots to be allocated?

Is there substance to the endless anecdotes that scheme lists are littered with “ghosts” (the retired, the dead, the abroad, the conveyancer, the “he never actually goes to the court” etc.)


Is London different, (as the LCCSA have contended for the last 20 years) and is there an issue concerning the number of schemes for which any solicitor is eligible? 


Should allocation in London be based on boroughs or criminal justice areas?


How are change, closures of courts and police stations, to be accommodated within the arrangements?


What of the contractual position of freelancers?


What should be the criteria that qualifies a person to be a Duty, maintain that membership and which is verifiable by a newly proactive LAA?


What of “touting”, payment for cases and other malpractices?


My own view is that simplicity has huge advantages to sides, solicitors and the LAA.  That a period of calm and certainty would be welcome.  That the real debate should be about rates of pay. 


Two basic models feature in proposals, the events based and hours based.  It is possible to invent hybrid versions but immediately complexity and that incurable tendency of bureaucrats to tweak and twiddle comes to the fore.

Events Based
The present system is events based.  A minimum number of magistrates’ courts and police stations attendances per year.  It seems it is the intention of the LAA to actually “police” a future contract with the beneficial side effect of dealing with the ghost problem.  Being a Duty Solicitor means possessing a skill set.  People in court and police stations benefit from experienced and skilful people representing them and it would be a hope that the arrangements would encourage Duty Solicitors of experience to actually do police stations and court duties. 
On that basis, and having a very watchful eye on the necessity for a simple and verifiable scheme that has the least administrative and cost burden, I favour a basic minimum requirement that has come to be known as 4x4. 
4x4
A basic requirement that a Duty Solicitor actually does four court duties per year and four 24 hour slots (evidenced by records of attendance, cases dealt with, all objectively verifiable by reference to the court and custody records).
This might be a part of a larger set of police station and court attendances e.g. 12x12 but the merit is in the DOING directly related to rota membership.
Hours
Hours based schemes are more complex.  So many hours per week doing criminal litigation with alternative of per month and a minimum per year (e.g. 17.5 hours per week or 350 per year) are not usually related directly to duty work. 
There are also issues for freelancers which revolve around the hours to be completed for the firm to which they are primarily attached (who receive the duty slots).
These schemes are advanced in conjunction with the other very contentious issue called “Breaking the link”.

Allocation
Pursuing the theme of simplicity (avoiding litigation) and minimal administrative burden I favour a continuation of allocation of duty slots in the names of Duty Solicitors.  It is simple, appropriate and transparent.  Coupled to the event based 4x4/ plus (as above) it is a well understood workable system. 


Others – Break the Link
Another view currently advanced is a new form of allocation based on a firm’s historical volume with some tweaking or adjunct to try and ensure that a firm with ghosts is not over rewarded. 
This is, for those who are especially keen on 2 tier, another method of achieving allocation without any link to named Duty Solicitors.  However we have been here before in an MOJ consultation some years ago.    I am certain any attempt to use history as a basis has all the potential for complaint, litigation, delay and then abandonment that 2 tier had.   “My allocation is based on the wrong statistics, that police station closed, this is unfair to new entrants and so on”.
So let’s keep to the non-litigated familiar allocation that works, keep the link, be events based, be transparent and create workable minimum compliance criteria which lead to transparent easy verification.


Let’s not forget the much more compelling issues, low rates, nothing for travel and waiting, nothing for Sendings and S.51, and nothing for the factors that make litigation so difficult, clients who are vulnerable, have mental health issues and are in custody. And whatever happened to London Weighting?
I would need another Tuesday Truth for London as a uniquely complex challenging space. 
Above all let’s try to avoid another Débacle. 


There is a LCCSA meeting on 7th March 2015 at 5.30pm at the Law Society to discuss these issues.  All LCCSA members welcome. Please notify the administrator in advance so as to reserve a place.                                       .



 

Monday, 5 October 2015

The Tuesday Truth

(the author of this week's Tuesday Truth wished to remain annonymous)


Dear Leaders of The Bar

I write this letter out of complete and utter despair.  I write this in the hope of stopping the absurd two pronged attack that criminal solicitors (and to some extent the Junior Bar) are faced with from the MoJ and the stance that you have adopted in recent times.

I am a Solicitor and have been for over thirteen years. I am proud of what I do.  I have an All Courts Higher Rights qualification which I obtained through the examination route. I am a Duty Solicitor and I am police station accredited.  I am no less qualified than any member of the Bar.  I am not second best to anyone and neither are any of my Solicitor colleagues. I should never have to say this or set it out in an open letter. I have complete respect for my Barrister colleagues whether Junior or Queens Counsel. I would like to think that they have the same respect for me. Why is it then that Solicitors are continually made out to be a 'poor relation', either by the government or through the recent consultation paper that you helped to draft.

Personally I choose not to use my Rights of Audience at the Crown Court but that is very much a personal choice.  I have specialised in criminal law for my entire career and I have had many clients ask me to conduct their case in the Crown Court.  I have always refused.  I instruct Counsel on 100% of my cases. I choose the appropriate Barrister for the case.  I have never, ever been instructed by a client who has asked for a particular barrister. The simple fact is that the client instructs me because of my reputation and in turn they trust me to pick the barrister.  To try and suggest that I might pick someone who isn't suitably qualified to deal with my client's case is absurd. I want that client to come back to me or if not to recommend me to everyone that they know. I want to ensure that, together with my chosen Counsel, we get the best result for that client.  This is how our business operates; we get results, we get a good reputation and so we get more work. It is a simple concept but it is one that you choose to ignore. 

For the last two years the Solicitors profession have been through the most torrid time and it doesn't get much worse than the last week. At the moment there isn't a criminal legal aid solicitor who isn't beside themselves with worry about the future.  Whether they are a firm owner or an employee, whether they are part of a firm who have bid or not they are all united by an uncertain future.  The very last thing that the profession needed was announcements at the eleventh hour about a consultation designed purely to rid the Courts of Solicitor Advocates. A completely unnecessary diversion at this point in time but one that you have persuaded The Lord Chancellor is of paramount importance.

The irony of your failure to focus on what is really important is that you have completely ignored the consequences that two tier will have upon the Bar.  You see if two tier is introduced larger firms who don't need an own client following will be given a guaranteed volume of work.  Once those firms get the guaranteed volume then results matter less. In fact they don't need the client to return to them because they have a guaranteed replenishment of clients. This means it will matter less who they instruct at the Crown Court and due to the further cuts the solicitors profession are about to incur, in some cases they will be forced by financial constraints to keep more and more work in-house.  

Your failure to deal with two tier means that you are complicit in the downfall of the Junior Bar via two tier. Please don't get me wrong I understand that you think that by commissioning self-serving reports about Crown Court advocacy and assisting with consultations you will somehow preserve the Bar but the reality is you won't. Your best chance of supporting and preserving the Bar is through working with the Solicitors profession instead of consistently doing them a disservice.

The fact is we are two halves of the same profession. One should not have to exist without the other. One should not want to exist without the other.  I read an interview with a QC recently who boasted of his close friendship with The Lord Chancellor and was suggestive of the fact that one of the main problems within the system is Solicitors with Higher Rights.  With the greatest of respect this is nonsense. The Bar might well find Solicitor Advocates undesirable because of the additional competition but equally Solicitors find Direct Access Barristers undesirable. The blurring of our roles is what causes fragmentation amongst the profession, however it is sadly a case of cause and effect and rather than addressing the cause you seem to ignore that in favour of focussing upon the effect. The cause that you should be focussed upon is cuts and latterly two tier.  The fact is that criminal legal aid solicitors have sustained nothing but cuts for the last twenty years and they just cannot take any more. The employment of Solicitor Advocates might well pose a threat to the Junior Bar but the greater threat is what forces the employment of them.  It is for this very reason that the timing of the consultation is interesting. You see the scheme that you propose quite simply cannot work with Two Tier. Some of the firms who have bid for two tier have done so knowing the scandalously low rates they will receive for police station and Magistrates Court work, never mind the LGFS post January 2016. They have calculated that they can undertake the work because in order to survive they will keep Crown Court advocacy in-house. This might well be something that neither you nor the MoJ are approve of but this is the consequence of two tier and cuts.

This leaves us with an interesting dichotomy; two tier and cuts or quality advocacy in the Crown Court.  This is by no means an acceptance of your underlying assertion that Solicitor Advocates are a poor quality substitute but simply repetition of the fact that two tier will be the demise of the Junior Bar. 

The consultation raises a number of interesting issues, not just for Solicitor Advocates;


1.    Referral Fees.  How big is the problem actually? In thirteen years I have never come across anyone paying or receiving referral fees. I don't doubt it happens but where is the evidence that the practice is increasing? If, as you say, the practice has increased because of legal aid cuts then surely you should tackle the issue of the cuts.

What actually constitutes a referral fee? Do we now put an end to Chambers parties or to Chambers sponsorships of Solicitors events?


2.    Client choice. When advising the client about their choice of advocate should Solicitors now make all clients aware that their Barrister may not always be available to cover each and every hearing whereas an employed advocate will? It has been a common and frustrating point for years.  Solicitors having to manage their client being annoyed at the last minute change of Counsel.  The availability of in-house Counsel for every hearing is undoubtedly a positive benefit for a client.  Should we now insist that every hearing is covered only by the Barrister instructed to create a level playing field? If we were to adopt this approach then it would have exactly the same effect as no returns and think of the damage that would cause to the Junior Bar.

 
The problem is that the consultation is largely self-serving and because the Solicitors profession have been deliberately excluded from it the consequences have not been properly considered. It is QASA through the back door but without the much maligned plea only advocates which lets face it was always a great bug bear from it. Parts of the consultation are an affront to those of us who do the job properly. It is beyond offensive to try and suggest that briefing work in-house may constitute a conflict of interest. It is also unhelpful to the Junior bar, some of whom seek to put the uncertainty of self-employment behind them by seeking the security of in-house employment.

You should not misunderstand the purpose of this letter.  It is not, as you might think, a piece written in defence of Solicitor Advocates or the increased use of them. I am also not ignoring the fact that there are firms in existence who do use HCAs purely for financial gain and with little regard for whether that person is the most appropriate advocate for the clients case. I do not condone that. I am not so naïve to think that there arent inexperienced HCAs put in the most awful predicament by their employers by being instructed in cases that are way beyond their capabilities.  This is something that shouldnt be allowed to happen. The bottom line is that I accept all that but trying to restrict the use of HCAs after cuts and two tier is a bit like closing the stable door after the horse has bolted. 

It is about time that the Leadership of the Bar actually looked at the issues that affect their Junior Members and worked out the best way of dealing with them. Two tier will increase use of In-house Counsel whether you like it or not.  One wonders what will happen to the Chambers who have submitted tenders as a consequence of your suggestions of a conflict by briefing in-house? Your consultation and two tier are like trying put a square peg in a round hole.  They just don't fit together. Many of us only want to see quality HCAs appearing at the Crown Court as the poor ones or the less capable do nothing for our reputation, in the same way that Barristers paying referral fees do nothing for yours. We are, however, best placed to address these problems together.  What Solicitors and Junior Barristers do not need is a transparent attempt at restoring an ancient closed shop for Crown Court advocacy by the Senior Bar.

The fundamental point is that we all want a quality profession. We all want to be properly remunerated. We shouldn't be at each other's throats.  Solicitors are tired of fighting off attempts to see them out of business from every angle.  The Leadership of the Bar should respect this and offer support, after all we are both here to provide the same service. We don't want you to fight our battles for us, what we want is for you to understand that our battles are your battles.

Yours sincerely

A Solicitor

Tuesday, 15 September 2015

The Tuesday Truth


By Jon Black President of the LCCSA

Jeremy Corbyn wasn't everyone's choice of leader, but the sheer size of his victory clearly demonstrates the level of support he enjoys. Whether you voted or not, whether you welcome his election or not, one thing is for sure, he is a non-lawyer who is and always has been fully engaged in Justice Issues.

On 22nd May 2013 he spoke at the rally before the famous Friends meeting house event, he spoke at the first ever Justice Alliance rally and he was a fastidious critic of government policy as part of the all-party group on legal aid. He maintained that The Government were wrong to demonise hard working and dedicated lawyers as part of its attempt to dismantle and discredit this vital pillar of the welfare state that was created with the intention  to enable equal access to justice regardless of means.

Whatever it is you may not like about the new leader of Her Majesty's opposition, (and although politics should never be about single issues), he gives a damn about justice.

I didn't vote for him but I recognise that he has brought a renewed political energy. Hours after his election as leader he emailed the party membership inviting those he represents to provide instructions for PMQs . I have drafted a series of questions which I would invite him to pose to Mr Cameron given that we have a leader who is well briefed with justice close to his heart.

Here is what I would instruct him to ask the Right Hon David Cameron MP:

1. With scores of magistrates resigning and the judiciary ignoring the punitive court charge , which financially  penalises those who seek to clear their name , can the government afford to continue to place the courts in this legislative straight jacket ?

2 Why do the government continue to attack our legal aid system in the name of austerity without any proper review of the effects of those cuts in particular the knock on costs in other areas of the Public Sector?
3.In whose interests is it to pursue  a mechanism whereby over 1100 of the current providers of criminal legal aid will be forced to close down , causing not only financial ruin for those firms but substantially removing client choice and therefore access to justice?

4. The Lord Chancellor's publicly stated position is to move away from a two tier justice system, yet his actions exacerbate such a gulf, how do the government intend to bridge such a gap?

5. Why has the government failed to learn the lessons of the disastrous cuts to civil legal aid?

6. Why have the government chosen to ignore the warnings of its own economic experts as to the viability of a scheme that carries so much social and economic cost?
7.The government welcome the Leveson reforms, and intend to implement the same, how can they work if there are no quality firms and experienced lawyers available to implement them?

8. What provision have the government in place in the event of the market collapsing?

9. Why don't the government prioritise quality over market forces in situations whereupon an individual's Liberty and character, and therefore future prospects are at stake? Is justice that cheap?

10. How can the government justify an expensive and anti-competitive recruitment process for its own PDS when private practices will close as a result of these reforms?

11.What is the cost of firm closure and if the market is being artificially controlled, what financial and practical assistance are the government going to give those firms forced to close as a result of the reforms?

 

Monday, 7 September 2015

The Tuesday Truth


The Court charge is now becoming somewhat of a comedy as Her Majestys judges do not seem to be taking seriously the laws passed by Her Majestys government.  One Judge having apologised to the defendant for having to impose it then ordered him to pay the mandatory £900 court charge at £1 per month. We will have to wait until 2090 for full settlement of that debt. One District Judge imposed the court charge and then deemed it paid by virtue of time served something which he did not have power to do. Another Magistrates Court forced to impose the mandatory court charge refused every Prosecution Application for costs.

All of these Judges/District Judges/Magistrates have to swear an oath when taking their judicial position to enforce the laws of the land so it is particularly embarrassing for the Ministry of Justice as their Judiciary appear to be violating the very spirit of the oath they have sworn to adhere by.

It will be interesting to learn which company has the contract for enforcing these debts, and whether the cost of enforcement far exceeds the amounts recovered. Call me a frustrated conspiracy theorist but I just wonder whether there are any links between the company and the government. Surely not?

Is there more comedy ahead with the future reforms planned by the government to criminal legal aid?

As many will be aware the action commenced by the Solicitors bodies and the bar has been suspended as a good will gesture following constructive dialogue with the MOJ. Of course the profession now wait and wait for a response by the Lord Chancellor to this gesture. With the award of contracts due by the end of the month and further cuts in January this is a very uncertain period for Solicitors and the bar and by the time the Lord Chancellor conducts his review next July of these changes (you know shoot first and ask questions after) there may not be many of us left. Not so much a survey than a body count.

This is also a period of huge change in the delivery of Criminal Justice. The new Plea and Trial Preparation Hearing is launched in October which will replace all preliminary hearings and many PCMHS. Transforming Summary Justice is being rolled out all over the country and Criminal Justice is going digital.

Solicitors are key to the success of these proposals, I have said it before but it needs to be repeated. This Lord Chancellor has yet to publicly acknowledge our contribution. We have engaged in good faith with the Ministry over the coming months. That good faith has yet to be reciprocated. The time has come for the Lord Chancellor to make the gesture. It is simple! We are best qualified to advise on greater efficiencies and savings, we can deliver, we can stop the car crash that is coming, but with every week that we hear nothing that good faith is evaporating and our suspicion of the Lord Chancellor and his motives increase.

We want to hear from him today, not tomorrow, not next week or month, but now before it becomes too late.

We have delivered potential savings, we can provide more; Savings not cuts to protect Access to Justice.

We are also considering alternatives to the two tier model.  A  model that protects many more firms with far less risk of market collapse. I am not ideologically in favour of consolidation but recognise that any attempt to persuade the Ministry from pursuing the two tier scheme is based on a viable alternative.

There is much debate amongst Solicitors about the way forward. Some shout “Abolish the Legal Aid Agency, remove the bureaucracy and you will automatically deliver the savings you need”. I am not unsympathetic to that idea but it will not be attractive to the Ministry and not surprisingly the Legal Aid Agency may object to such a course. After all where else could you work in senior management and earn more than the Prime Minister and most of the senior judiciary.

I am not in favour of a model that sees the end of small firms, good quality practices serving communities and providing specialist individual advice, care and attention. However what is the definition of a small firm? Are the individual sole practitioners where the Criminal department is simply one fee earner with no other support necessarily the way forward? Not because consolidation should wipe them out but because in a criminal justice system which is becoming more and more codified the obligations on the defence are far greater. Its a poor analogy but banks and building societies are far less willing to deal with one man conveyancing firms because of the greater risk to abuse of funds through fewer checks. In many cases we are dealing with an individuals reputation and liberty, can someone with no other support in the long term comply with their obligations to their clients, the courts and much more in a growing bureaucratic maze?

Those reading the last couple of paragraphs will immediately be shouting “hes in favour of the BFG agenda” (if that even exists), but that is not true. I would happily go on as we are but if the alternative to two tier is a model which allows firms to be allocated slots through meeting various criteria over a period of time, this must be better than the random subjective tendering process we have. I am raising quality and security issues where there is limited capacity to perform the work comprehensively to a high standard.

It is truly self-defeating for the Lord Chancellor to empty bucket loads of flattery upon the Bar by praising  quality only to ignore the many firms of solicitors who set a bench mark of quality in 90% of cases which they conduct without the assistance of the Bar, at all levels as Lord Levesons ‘early engagers.  Quality should be the basis for change and adaption based upon those quality firms and they are the firms who are good enough to convert duty work into own clients not just surviving on holding down duty slots.  

Why cant we have a system where duty solicitor slots are allocated on a range of criteria over a period of time which allow firms to adapt to meet the criteria? So I might be saying in 6 months, you need to have a department with at least 3 duty solicitors, that could be the owner and 2 others, and such an entity has to turnover over a minimum amount per year or a certain number of new legal aid matters. At least that way if you are on your own with no one else you would have 6 months to do something to meet this criteria.

We need to get rid of ghost duty solicitors, review the duty solicitor arrangements; we need to address the unscrupulous activities of some of our profession and indeed the bar in attracting work.

A development of the above model will undoubtedly meet much criticism but it could allow all quality firms to survive with some measure of independence in an adjusted format.

The current plan may leave us decimated in 12 months and the bar similarly so with far less providers being forced to bypass the independent bar.

We have had a number of very promising meetings with the CBA executive and believe we can finally work together to protect access to justice and quality representation.

The question though that is paramount is whether we have a Lord Chancellor who wants to spend the next 5 years working with Solicitors or destroying the majority and fighting against the remainder..
Over the last 2 months we have demonstrated that effective action can be organised, but at the same time we have engaged, we have made the gestures, we have demonstrated what we can achieve; now it is over to you Lord Chancellor

Monday, 24 August 2015

The Tuesday Truth


The Story so Far
by Zoe Gascoyne
 

In April 2013 the then Lord Chancellor, Chris Grayling, announced plans to cut criminal legal aid by 17.5%. He recognised that the profession could not sustain such a cut and so he sought to enforce market consolidation. His first plan was to introduce PCT and remove client choice.  The profession reacted angrily and 16,000 consultation responses were submitted. 

 A second consultation was commenced and notwithstanding the opposition the government announced Two Tier, forced consolidation which would see most firms put out of business.  The CLSA and LCCSA embarked upon not one but two Judicial Reviews in opposition to Two Tier.

On the 10th June 2015 the Lord Chancellor announced that he was to proceed with a further 8.75% cut to fees before any consolidation.  The same statutory instrument introducing the cut contains further cuts to be implemented in January 2016. The CLSA and LCCSA made immediate requests to meet with the Lord Chancellor to discuss their concerns. These requests were not responded to and so solicitors across the country took an unprecedented stand by refusing to work under the new rates. Merseyside were the first to take action publicly declaring that they wanted engagement with the Lord Chancellor and the MoJ. Many areas followed suit.

On the 23rd July, after just over three weeks of action and seven letters from the CLSA and LCCSA, the Lord Chancellor met with the committees. Discussions were held in relation to the cuts and two tier and the associations made their position and opposition to both very clear.

A paper was submitted to the MoJ for consideration and a second meeting to discuss various matters was held on the 3rd August 2015. After a ninety minute meeting it was agreed that the associations would provide the MoJ with examples of savings that could be made which might in turn negate the need to cut to legal aid rates for a three month period.

The Lord Chancellor has made it perfectly clear what he is and isn't willing to consider in the initial stages of negotiations. The Lord Chancellor and the MoJ state that they are committed to two tier unless an alternative could be produced to be implemented within the time scale. They maintain that any suspension of the cut would be for a period of three months if the savings could be made elsewhere.  The associations have made their ongoing position very clear to the MoJ during every meeting. On behalf of the profession we continue to seek a permanent suspension of the cut and we continue to challenge Two Tier.  We must however acknowledge what the Lord Chancellor has set out and we view this as being the start of longer term engagement.

On the 11th August 2015 a third meeting took place.  The meeting was to discuss the four proposals for savings with the MoJ and LAA.  An assurance had already been given that any proposals made would not simply be banked. The proposals were well received and it was acknowledged that they were practical and could potentially amount to savings within the system to make up the short fall for suspending the cut. Since that meeting there has been telephone communication this week on two separate occasions between the associations and the MoJ. It is clear that the MoJ are taking the suggestions seriously and have embarked upon some number crunching before any final decisions can be made.

The associations have made considered decisions at every stage. There have been assurances made by the MoJ that since the last meeting there has been no unnecessary delay. The proposals made were serious and worthy of consideration. The calculations will take a little time given the information required across the board.  In the meantime a decision has been taken that the action should be suspended. This decision has been made as a consequence of a number of factors including information made available to those negotiating. We take the views of the profession seriously and we acknowledge the difficult financial constraints that the action was imposing upon an already fragile profession. We also recognise that there are members of the profession who have sought to gain whilst action is being taken.

At this stage we make it perfectly clear that this is far from over. The negotiations are on going and we expect a response within the next two weeks. Once that response has been received we will be in a position to move forwards in one way or another. We take the view that this is a process that needs to be dealt with in stages.

In the meantime we have embarked upon a fresh start with the new leadership of the CBA and we continue with our fight to ensure a sustainable criminal justice system for those who need it and for the profession themselves.

The CLSA and LCCSA consist entirely of criminal legal aid practitioners.  There will be no deals and no capitulation.  We understand and acknowledge the frustrations of many but we ask for an understanding that we cannot broadcast every detail across social media. There has been a solid fight by the associations against two tier and the cuts for two years, our opposition remains just as strong.  There is currently a bid withdrawal survey organised by the LCCSA which remains open until the 28th August. We understand that there are some who call for a continuation of the action however the suspension allows for a period of reflection.  To allow a response to the negotiations this far and to consider what steps may be required in the future.  There are times when action is necessary and there are times when negotiation should be allowed to take place with clean hands.

Over the last two years the CLSA and LCCSA have organised numerous rallies and demonstrations. We have consulted MP's and spoken to the press. We have written open letters. We have raised funds for legal proceedings. We have attended meetings and organised meetings. We have taken legal advice and we have united a previously fragmented profession.  We have provided alternatives and we are negotiating. We have fought long and hard for two years and we remain staunch in our opposition. We have not given up. The were many who said that the action would never happen and they were wrong. There are many saying that we have waved the white flag and they too are wrong.

 

 

 

     

Monday, 17 August 2015

The Tuesday Truth


Magistrates are in revolt over what I will refer to in this blog as “Grayling’s Parting Gift” the Criminal Courts Charge. Over 20 have resigned in protest. The charges vary from the Magistrates’ Court and Crown Court, they are mandatory and not means tested.

It is, of course, likely to provide a perverse incentive to some innocent defendants to plead guilty because of the risk of the hugely disproportionate court charge if they are wrongly convicted.   These increases are consistent with a pattern of massive court fee increases in the civil courts including employment tribunals.

If you plead guilty to say a burglary in the Crown Court the court charge is £900.  Interestingly enough the legal aid fee payable to the litigator and advocate in such a case is likely to be less, probably in the region of approximately £700 + VAT, the litigator’s element less than £200.

If the defendant is in custody it is likely that for the litigator’s £200 they will have represented the defendant in the Magistrates Court, possibly prepared a Crown Court bail application, visited the defendant in custody on at least two occasions, and liaised with counsel and the Crown, all for substantially less than the defendant will have to pay in relation to an unmeritorious mandatory non-means tested charge.  As defence lawyers we, of course, welcome the outcry from Magistrates over the court charge, but quite frankly wish that they could also extend their protest to the equally appalling legal aid cuts and reforms.   After all they as much as anyone else witness the deterioration in the administration of justice every day before them and it is perhaps time that all stakeholders in this creaking justice system had the courage to stand up and say “no more”.

This isn’t about politics, it isn’t about the judiciary becoming involved in a political debate, it is about the delivery of a fair and robust justice system.  Every Judge and Magistrate up and down the country is charged with this duty and indeed has sworn on oath that they will protect the rule of law in their courtroom, yet as the system unravels their voice remains silent.

Criminal legal aid lawyers, solicitors and barristers have taken protest action since 1 July 2015. There has been engagement by the LCCSA and CLSA with the leadership of the criminal Bar and the Big Firm group.   The two-tier contract system due to be launched in January represents a huge threat to both solicitors and barristers.   Fees across the board for all the work solicitors do,  in the police stations, Magistrates’ Court and Crown Court, have been substantially slashed following the introduction of these new contracts.  Not by 8.75%, not by 17 ½ %, but by much more. Further swingeing cuts follow in January to the LGF scheme and before that in October fixed fees for VHCC cases will be introduced.

When will people wake up and start realising what is coming?   For a guilty plea in the Crown Court to an offence of burglary, the overall fee reduction will be 52%.   Many of the reductions to these fees are over 20 and 30%, with greater percentage reductions on not guilty trials.    If you plead not guilty to a serious sexual offence and the page count is in the region of 200 pages, the fee for preparing the trial which will inevitably be defence led and will involve taking very detailed instructions on a complainant’s allegations, finding witnesses and pursuing unused material relating to events that took place many years ago will be £917.17, a reduction of 38.22%. 

Examples such as the above have been rehearsed time and time again, but still many people do not get it.  The Government’s attitude is that duty contracts will deliver economies of scale, so that firms can afford to prepare cases for the fees that will be on  offer from January 2016. Can this be right? Can firms survive on mythical swings and roundabouts? What about quality legal advice?  What about dealing with the vulnerable?  What about a profession where liberty and reputation are the key words being treated appropriately with respect?  What about a Lord Chancellor who acknowledges the contribution of solicitors?

Again, all of the above has been rehearsed time and time again.  The Independent Bar stand to lose a great deal by two-tier.  Advocates’ fees remain the same.   To try to rebalance the books firms of solicitors will need to cover more Higher Court work in-house either by using Higher Court advocates or recruiting barristers from the Independent Bar.

The leadership of the Bar say if you really want to kill off two-tier then all firms should withdraw their bids.  However, although the LCCSA has launched such a bid withdrawal survey and the CLSA are considering their position this is not the only answer in town.  

It is an appalling analogy so forgive me, but if you are dying you will do everything you possibly can to put off the end, to buy yourself some more time for a little while longer, and many firms have bid for duty contracts because it buys them more time, notwithstanding the economics, notwithstanding the absurdity of the scheme, notwithstanding the potential fallout, they know that two or three firms in their area, or just outside their area have bid so they bid.   They have staff to pay and many, many other expenses.

The CLSA and the LCCSA hope that the last few weeks engagement with the MOJ  have demonstrated to the MOJ that if we work together in an  environment of trust then we can assist the MOJ in finding greater savings and efficiencies which do not require cuts. 

We believe that many of the ideas we have put forward will lead to savings and we are fully supportive of implementing both the recommendations in the Leveson review and the Jeffrey’s report.  There needs to be quality representation from the police station through to the Crown Court.  There needs to be far greater strategising between the leadership of the Bar and the solicitors in terms of the way forward. The survey on bid withdrawal may not be enough, we need to work with the bar in persuading the MOJ that Two Tier is a disaster for everyone. We need to consider what else that solicitors and the bar can do to oppose this model.  Arguments must be put forward concerning access to justice and the diversity of both sides of the profession so that criminal law does not become the preserve of bean counters or those whose families can subsidise their career choice

The bid survey is an excellent initiative which responds to the concerns of many members of the London Criminal Courts Solicitors Association, that there is no way that this system can work particularly given the shocking level of cuts which may all be operating by the time of the new contract.  Those members who have called for such a survey need to respond to it, and promote it.

  Recent meetings between us and the CBA leadership have been positive and we look forward to working with the new leadership team of Mark Fenhalls QC and Francis FitzGibbon QC and the junior bar of course in taking these matters forward together.

The exchanges with the Ministry of Justice and indeed the Lord Chancellor have been constructive.  This week we will find out how constructive.   Regardless of what, if anything, we are offered there needs to be greater acknowledgement on all sides (particularly the MOJ)   that sitting round a table is a far better way forward.

However, assuming that the Lord Chancellor does not want the non relationship with solicitors his predecessor had, these are a crucial few days for the MOJ.  Suggestions by solicitors have been made in good faith.   Now it is time to see whether there is any real give and take.  

It may be that the action can be temporarily suspended to acknowledge whatever offer is made provided there is ongoing engagement

It is definite that we can find the savings that the Ministry of Justice need as opposed to cuts, but it is time for them to simply decide whether they want to work with us or work against us, and ultimately if it’s with us Two Tier  must go.