Food for Thought

Two items I've noticed that are worthy of note, first this from the Lawyer:-

Criminal barristers are threatening to go on strike again, in protest against the goverment’s cuts to legal aid.

Members of the Criminal Bar Association voted overwhelmingly in favour of direct action with 1,328 out of 1,385 - or 96 per cent - in favour of action and only 57 voting against in a CBA survey. The CBA, which has a membership of about 4,000, says this is “a very high turnout” for such a survey.

One of the key issues that barristers are concerned about is the proposed implementation of the Duty Provider Scheme (DPS), also known as the ‘two-tier contract’ scheme. They believe that proposed cuts and changes could result in work that has traditionally been done by barristers being done by solicitors instead.

The CBA’s leadership believe the changes “will destroy the quality of legal representation within the Criminal Justice System. The most able and committed young lawyers will have no future, and the independent bar will collapse.”

CBA chairman Tony Cross QC, said: “The response for such a survey was unprecedented and 96 per cent of those who responded have urged the CBA to take action to press the Government to think again.

“The proposed changes have no sensible economic foundation and will lead to irreversible damage to the Criminal Justice System. The proposed scheme will reduce competition, stifle innovation and paralyse the market as it becomes closed to new entrants.Spending on legal aid has already dropped by one third since 2009/10, meeting government targets several years ahead of schedule. No other sector of Government spending has borne such brutal cuts. There is simply no room or need for more.”

“We remain committed to constructive dialogue with the Government to ensure that our country has a Criminal Justice System that is fit for the 21st Century. No barrister wishes to withhold his or her labour. It is a measure of the extreme nature of our concern that so many of our members are contemplating such action.”

And Rob Allen sounds a word of caution in his latest blog about the Magistrates Association cosying up to private companies in the form of CRC's:-

Private Troubles and Public Issues

It is concern about how things might appear rather than risks of corruption that have alarmed a number of current and former JP’s about the burgeoning financial relationship between the Magistrates Association (MA) and a number of private sector Community Rehabilitation Companies (CRC's).

The MA is a charity operating under Royal Charter which represents the vast majority of the 22,000 JP’s in England and Wales. As part of its income generation strategy, the MA has set up an Education and Research Network to be made up of organisations “working within and around the justice system”. According to the latest issue of The Magistrate Magazine, “we already have five founding affiliate organisations on board”. According to one of the members of the Board who oversees the network, these are all CRC’s who have contributed £10,000 to join. In return they will enjoy the fruits of the research which is commissioned, with any money left over helping to fill a £50,000 gap in the MA’s budget.

What’s the problem some might ask? Surely this is simply an entrepreneurial effort to add to the body of knowledge about the workings of the criminal justice system while strengthening one of its key stakeholders. What happens in court and the decision-making of magistrates are relatively under researched areas where new information could be of considerable public benefit.

The problem is not about the work that the Network might produce, although there must be doubt about whether it can both research high quality studies and return much of a profit to the MA. It is rather that the investment by private companies gives an appearance that improper influence might be being sought. CRC's are controversial bodies, the outcome of a highly contested process of privatisation. Labour's election manifesto referred to the reckless privatisation of probation, meaning dangerous offenders are more likely to be monitored by companies with no track record of success, putting public safety at risk.

The most recent inspection report about the Transforming Rehabilitation changes that created the CRC's found signs of developing tensions with the National Probation Service "as managers considered what they were actually contracted to do and entitled to receive, rather than what they had traditionally done". In this unsettled context, the CRC's will be looking for all the friends they can find.

The Guide to Judicial Conduct advises judges to take care in considering whether, and if so to what extent, their name and title should be associated with an appeal for funds, even for a charitable organisation. “It could amount to an inappropriate use of judicial prestige in support of the organisation and may also be seen as creating a sense of obligation to donors”. This is something that Lady Justice Hallett who sits on the Network Board will no doubt have considered. The Guidance does make clear that “there will be occasions, for example in the case of charities supporting the work of the Courts, where the objection would not apply”. But the vexed nature of the CRC’s, and the concern which their owners will understandably have to enhance their reputation should argue for caution on the part of the judiciary.

From the Magistrates side, the MA’s activities include the provision of information and advice to magistrates, developing guidance to improve the delivery of justice in the courts and responding to proposals which affect the delivery of justice. They cannot be put in a position where the content of that guidance, information and advice could be seen to be influenced by commercial considerations.

It is interesting that the Senior Presiding Judge has issued guidance about liaison between providers of probation services and sentencers, emphasising that it is the National Probation Service (NPS) who have that responsibility and not the CRC’s. It is not clear whether channelling communication through the remaining public sector part of the probation service is a matter of administrative convenience or of ethical propriety. It is perhaps worth the Magistrates Association considering both dimensions as they move forward with their new initiative.