An Existential Battle

If you work in probation you will be very familiar with the court process and almost certainly the legal profession in the shape of solicitors and barristers. Many of us with some service under our belts will be aware of significant changes in process over the years and in particular cuts in Legal Aid and court closures. 

Things have come to a head in recent weeks with barristers withdrawing their labour. Just as with probation, the press, public and politicians don't understand, or choose not to understand, what's going on and the truth of the situation.

This set of tweets from @edwardhenry1 yesterday sets things out in stark detail and we should all be concerned, not least because it will affect us all, and clients especially. (I have made adjustments to aid clarity).  

The Criminal Bar facing oblivion.

Max J L Hardy wrote perceptively that the public would get a distorted impression of our justice system because of the #WAGATHA trial. Criminal justice is in crisis. And @jimrobottom suggested the same for the mass of civil litigation.

The Tabloids don’t want to run this narrative. Clichés work. People, without wealth or financial resilience are far more likely to get dragged into a Criminal Court, a Family Court, or an Employment Tribunal.

Then, they’re not likely to encounter a ‘fat cat lawyer’ but a junior barrister and/or a high street solicitor, from a small to medium size practice. We’re not talking Baroness Shackleton or Lady Ward.

I’m not qualified to speak about family or employment but imagine that family law practitioners who do not deal with ‘Big Money’ cases are in the same position, or soon will be, as the criminal bar.

Advocates practising in crime are an odd bunch, but likeable. As a rule they like their clients, and care deeply about them. Strange as it may seem, some have been accused of caring for their clients more than their families.

It’s not hype, but reflects a brutally demanding job, which can prove to be obsessional. Like Captain Ahab pursuing Moby Dick, some advocates relentlessly chase after that tantalising fact, or issue that might turn a case. Holidays are sacrificed, as are children’s childhoods.

You are told, as I have been, that you aren’t present, even when you’re actually there, because your mind churns that case or question over & over.

You’d have to be mad to practise in crime. I tried, from 2004 onwards to discourage my pupils from continuing in it, and to transfer. Not one did. Well done btw @MaxJLHardy

My first pupil, the wonderful Jake Hallam QC, started in practice in 1998. I could see then that the GFS [Graduated Fee Scheme for legal aid] would impoverish criminal practitioners as so much was left unpaid. The rates then set never kept up with cost of living & if we aren’t 40% down from 1997 I’d be surprised.

I had more success dissuading my adult sons from following me into the Law. They saw, all too sadly, the toll it took on their childhood, their parents’ marriage & the precarious financial fortunes of a self employed individual or sole trader.

I adore my job, and have deep affection and genuine respect for my colleagues. Every pupil who disregarded my advice and went on to greatness at the Criminal Bar - and those few who sadly did not in spite of their courage, determination and flair, I deeply admire and love.

Because I know what it’s cost them. The price you have to pay whether you succeed or fail (& chance plays a part in that.) So when a Politician derides what we do, I don’t care. I know my value, & part of that is what I’m worth; & I know my colleagues’ treasured value too.

The destruction of a profession, of an Art that can be traced to the prophet Daniel, through the Graeco-Roman era to our own time is shameful. If politicians don’t want to preserve an Independent Bar, incompetence & corruption will follow. Who benefits?

Back to that odd bunch of advocates. They’ll include the brief, hot on detail with an eidetic neuro-diverse mastery of regulations, those who can recite the codes of practice, and those who can hyper focus to a microscopic degree. Then there are those who trust nothing

Not because they are conspiracy theorists, but because they’ve been told “nothing to disclose” too often when there is. Those who venerate Marx & those who espouse anarcho-libertarianism meet as one. It’s a broad church. The link? They believe in Justice & the Rule of Law.

That’s ultimately what compels them to defend, whatever the personal cost, to keep the stream pure, to hold the prosecution to account. A word here about prosecution counsel.

A very considerable proportion of Barristers prosecute & defend. That’s why the Independent Bar is of incalculable value. It’s not partisan. I no longer prosecute but I grew up in the preeminent prosecution set, renowned for its fairness.

Pros Counsel are atrociously paid, & not enough is said about it. You can prepare a case & not get paid if it’s tried at a time you can’t do. The Government’s long term strategy is a mystery. Public Defenders & Pros cost tons more than the Bar. They’re just happy exploiting us.

But it will eventually come to an end. Even altruists will be deterred. The Criminal Bar shall die. No mistake. Then what will those in the other branches of the Bar say? What a pity? Such a shame? It’s time for the Inns and the whole Bar to come to the aid of CBA [Criminal Bar Association].

The Bar Council, paradoxically, might have put on a better show, but there are always those dependable in a tight corner, & others who (despite the best of intentions) are not.
@Ed_LeveyQC has always supported the Criminal Bar & @seanjonesqc is a legend. But we need more.

This is an existential battle. If we are really one Bar, kind words about how much the Criminal Bar is admired, with wistful regrets intimated of envying what we do, will be pure guff unless the whole Bar bends its efforts & potent influence on our behalf.

The leaders of the SBAs [Specialist Bar Associations] and others of titanic reputation & standing in other fields might like to reflect on what we’re all about to lose.

Edward Henry QC

Things Could Be Better

Dare we hope for something better? Ok David Lammy indulged the usual political requirement for new offences and tougher sentences, but at least probation got several mentions and I particularly like the 'National Service of Second Chance' reference and suggestion of a 'National Pro-bono Service'.   

Crumbling Justice System

The new MoJ Permanent Secretary might feel there's much of a problem with her department, but a former Attorney General begs to differ. No doubt we all recall that one of the consequences of the Brexit shenanigans was a purging of decent 'one nation' Tories like Ken Clarke and Dominic Grieve. I notice the latter fired back at the weekend with a powerful piece in the Guardian:- 

I've seen how the UK justice system is crumbling. Why doesn't the government take action?

From decrepit court buildings to legal aid cuts, the service has been brought to its knees. And there’s little hope of change.

When I first started at the bar in the early 1980s, my practice was largely publicly funded by legal aid and much of it was crime and family work. I travelled across London and south-east England representing clients in crown, county and magistrates courts. Most of these buildings were Victorian and lacked the facilities to cope with the growing volume of criminal and civil cases.

But there were signs of change. At Maidstone, where I was a frequent visitor, the Queen came to open the new court centre. She spoke of how the provision of justice was the essential first “social service” provided by the state, and central to her coronation oath. The resident judge, John Streeter, had worked hard to get a building that could help deliver an effective justice system. There were many more courts; rooms for consultations with clients; and a bar mess, where, apart from being able to buy hot food, there was the privacy to get advice from colleagues and to resolve issues with one’s opponent. A couple of years after it opened, visiting officials of the Lord Chancellor’s Department were holding it up as an exemplar for the future, noting that it had a reputation for efficiency and high professional standards of delivery.

When I was attorney general from 2010 to 2014, I returned there on a visit to the Crown Prosecution Service and to see the judges. The contrast could not have been greater. The building looked tired and poorly maintained. There were water leaks. The facilities for advocates were largely gone, and with them much of the sense of purpose and camaraderie I remembered. The judges were no better off. Most had brought their lunch in plastic containers from home.

While it must be right that cuts in services have to start with things that will be seen as personal comforts, the state of that court and others I have seen since – and the general state of morale among judges, court staff, barristers and solicitors carrying out these areas of work – point to a major crisis in our justice system.

This can also be seen in the Prison Service, with its overcrowding and its inability to deliver effective rehabilitation regimes or control the spread of Covid. At its root are a series of decisions made by successive governments – going back over at least two decades – to either hold back on the increases enjoyed by other areas of public expenditure or, after the 2008 financial crisis, to cut the justice budget more deeply than anywhere else.

In real terms, the reduction in spending overall between 2010 and 2019 has been about 25%. Given that, in that time, the population of England and Wales has risen 7%, and the prison population has largely remained at over 80,000, any cuts to the criminal justice system were going to be hard to achieve. In the run-up to the 2010 election, the then justice secretary, Jack Straw, who I shadowed, could see the looming crisis and facilitated better pre-election briefings for me from civil servants than had been done before. They were sobering.

Yet at the time, much of the Conservative policy on prison reform, and trying to decrease prison numbers, was being diverted by the need to fight off a tabloid-inspired campaign to make us buy prison ships to cater for increasing prison numbers as a result of tougher sentencing. This policy was plainly incapable of delivering value for money. (I note that the new police, crime, sentencing and courts bill is about to pile more pressure on prison numbers.)

After 2010 the largest percentage of cuts fell on legal aid and the budget of the CPS, the latter of which came under my remit as attorney general. The CPS, under Keir Starmer’s leadership, responded very well in streamlining its operations and still maintaining conviction rates – helped by an unexpected downturn in the number of crown court trials.

But all efficiencies have their limits. When in 2013 we successfully persuaded the Treasury to impose a far smaller cut than what had been demanded, it was obvious that if this continued there would be problems, as became evident later with complaints about falling conviction rates and collapsing cases.

Yet the worst consequences come from the treatment of the legal aid paid to advocates and solicitors for their work. This was reduced from a total of almost £2.2bn in 2010 to £1.7bn by 2019. Despite trying to minimise the worst effects of these cuts, and a recent small budget increase, the blunt reality is that for most criminal and family related work, the earnings are now so low that any lawyer would think twice about choosing these fields as a career option.

I can think of no other professions where the remuneration rates have been almost static for 30 years. I was pleased as attorney general to champion pro bono (unpaid) work and schemes to deliver civil legal aid through law centres, but none of this can compensate for the cutbacks.

For the ordinary public who encounter the justice system, its growing inadequacies and delays – and the injustice that can flow from them – are real. Last month, the Secret Barrister spoke of a case of serious domestic violence first reported by his client, the alleged victim, in 2017. In large part because of cuts to the police, the CPS and the courts, and exacerbated by the pandemic, the case has still not been heard in court. In all this time the defendant – an allegedly violent, manipulative man – has remained free, and the complainant has been unable to move on with her life.

It is sometimes suggested that the cost of our common law justice system had become excessive by the standards of civil law western democracies. But this is not supported by the evidence: in 2016 the Netherlands was spending €689 (£585) per head on justice, and Denmark €338, compared with €150 here.

Most of the justice secretaries I have known have privately acknowledged that their department is systemically short of resources. But because of the way the Treasury and government operates, and the difficulty of showing financial effectiveness in an entirely demand-driven service with unpredictable fluctuations, those secretaries have resorted at best to damage limitation, and at worst to currying favour by volunteering cuts. There are seen to be few votes to gain for a successful justice system.

So I fear we are unlikely to see any significant change – though it is urgently needed to maintain the foundations of a civilised society. Far from being able to pride ourselves on the excellence of our system of justice, it is in danger of turning into a whited sepulchre: but as the external appearances are being maintained, few in government are noticing or appear bothered.

Meanwhile we should stop being surprised at the increasing stories about the failings of the system, because the reasons are obvious.

Dominic Grieve QC served as shadow home secretary from 2008 to 2009 and attorney general for England and Wales from 2010 to 2014

MoJ Press Office at Work

For everyone working in the National Probation Service and HMPPS, here's an alarming insight into the ethos and working environment of the MoJ Press Office as outlined by BuzzFeed:-

Ministry Of Justice Staff Called A BuzzFeed Journalist "Crazy" And A "Bitch" After She Published A Leaked Report

A senior lawyer said heavily redacted internal MoJ messages obtained by BuzzFeed News showed staff were "deliberately frustrating legitimate journalistic inquiry".

Internal emails and instant messages released under Freedom of Information laws reveal the fury inside the Ministry of Justice after BuzzFeed News was leaked a report that the department had insisted didn't exist. Using abusive language about this reporter, MoJ staff say in one online chat, “Yeah she’s a real bitch,” “And a but crazy reallt [sic]”.

The correspondence was released following a Subject Access Request. Much of the material was heavily redacted, including sections where the conversation was clearly relevant. One page has the phrase “what’s the crack with dugan?” followed by multiple lines of redaction.

The most aggressive language happens in instant messages amongst MoJ staff after BuzzFeed News published an article about a leaked internal report that contained explosive testimony from judges and prosecutors about the impact on the justice system of the rising number of unrepresented people in criminal court.

Penelope Gibbs, director of the charity Transform Justice, who was the first to push for the research to be made public, said: "No journalist should be subject to such abuse, particularly in pursuit of a legitimate and important story. It would be great if the Ministry of Justice would focus on the real problems faced by unrepresented defendants rather than on keeping information secret."

The research was commissioned by the government to review the impact of cuts to legal aid made in the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) and was based on in-depth interviews with 15 crown court judges and six prosecutors. The government is about to publish a review of the impact of the legislation, though criminal legal aid continues to be absent from much of the discussions about it, despite it introducing means testing to crown court cases for the first time, pricing some people out of a defence.

The report was leaked to BuzzFeed News after the MoJ released a brief, sanitised, six-page summary of the research and claimed it was the full study and that no previous longer version existed. The subsequent article included conversations and an email with an MoJ press officer who had insisted the previous week that this substantive report did not exist. In the online chat, one staff member says “it’s shitty of her to quote the emails.”

Following the publication of the article, the press office's response was to advise staff to “avoid talking to Emily Dugan on the phone in any more detail than is absolutely necessary” and to refuse to meet.

None of the internal messages express any concern at the very serious warnings made by the judges that were removed from the summary version that was released to BuzzFeed under FoI. Despite being asked directly in internal messages, nobody satisfactorily explains why the judges’ quotes were removed or why the more critical findings were excised.

The Secret Barrister, the anonymous criminal barrister and author who rose to prominence after writing a book of the same name which exposed the crumbling of the justice system, said: "It is deeply concerning that civil servants in the Ministry of Justice appear to have been politicised to the extent that they are deliberately frustrating legitimate journalistic inquiry.

“From a department with an ignoble recent history of cover-ups and failures to disclose important information (as highlighted in High Court judgments), this is perhaps unsurprising, but nevertheless shocking. The sexist "banter" and open contempt with which civil servants are discussing a respected journalist who is simply seeking information adds to fears of many in the legal profession that the culture in the Ministry of Justice has become toxic."

After receiving follow-up calls from other news outlets wanting to cover the leaked report, the press office boasted in a weekly media summary of successfully dissuading other reporters from covering it: “Through strong briefing we successfully knocked down the majority of the reports aiming to replicate BuzzFeed’s accusation of lying and covering-up. We issued a reactive line to those who were interested in reporting the judges’ comments, which were included in the draft report. We also briefed No10 ahead of lobby, thereby giving the PM’s spokesman lines to knock the story down for Lobby journalists, containing the story further.” The story was later followed up by The Mirror, The Times, and the i newspaper, amongst others.

In emails and messages amongst department staff, the unredacted sections show press officers repeatedly saying that the 36 page report leaked to BuzzFeed News was a draft and had not been “robust” enough for publication. They say the sanitised six page summary released under FOI was created for this reason.

A small section of the 36 page report dealt with a secondary piece of research into magistrates courts, using a relatively small data sample. It is arguable that this could have been taken out for academic reasons - though the department has relied on smaller sample sizes when the findings are more convenient. However, this does not explain why the judges’ quotes were removed or why their more critical findings were edited out. The MoJ did not answer specific questions on this point.

A Law Society spokesperson said: “Public interest journalism serves a vitally important function in a healthy democracy. Investigative journalism of this nature discloses information affecting the public and holds governments and other institutions to account.

“People will wonder why the Ministry of Justice chose at first not to disclose the full report. The research into unrepresented defendants contains important information that should not have been suppressed. Ultimately, the report underscored the fact that twenty years of cuts have pushed the criminal justice system to its limits. The number of solicitors now specialising in criminal law has plummeted, and people are being denied access to legal representation because they live on a low income. This undermines the rule of law and equal access to justice for all citizens.”

BuzzFeed News has applied to the Information Commissioner to review a decision to close a criminal investigation into the department over its handling of the report.

The material from the MoJ arrived in the same week as the deadline to submit a case, meaning it did not arrive in time to inform it. Despite asking for it in digital form, a pile of disorganised printed paper covered in redactions was posted at the expense of the taxpayer.

Amongst the redactions was a blank where this reporter's surname should be. An email on 12 July reads: “Hi Guys, we have another request from Emily [redacted] of BuzzFeed...” After they were asked if the word used in place of a surname was another term of abuse, the MoJ said it was a press officer's surname.

A Bar Council spokesperson said: “It is in the public interest that policy decisions about justice funding and legal aid should be made in the light of all relevant information. We are hopeful that in publishing the forthcoming review of LASPO, the Ministry of Justice will be transparent and open.”

The casual sexism of press officers was also noticeable in instant messages. In a conversation on 2 May, one press officer boasts “I’m starting to warm up Emily Dugan,” later adding “I was giving her my best lines, ‘This doesn’t have to be an adversarial relationship,’ ‘Do you call here often?’

An MoJ spokesperson said: "All relevant information has been disclosed under data protection rules in a sizeable release which confirms over multiple internal emails that there has been no deliberate attempt to withhold information – information that is not personal data is not in scope and has been redacted.

“We were extremely disappointed to see that some of the language used in a small number of internal conversations was unprofessional. We take this seriously –appropriate internal action is being taken and a personal apology was extended to Ms Dugan.

“Two senior members of the press team have met with Ms Dugan over the last few months and we continue to answer her queries as efficiently and fully as we are able, as we do all the journalists we work with.”

MoJ On Notice 2

We all know so-called 'transparent' government is about denying, obfuscating, lying and ultimately burying bad news, but it looks as if the MoJ has been caught out. This from BuzzFeed News:- 

A Criminal Investigation Has Been Launched Into The Ministry Of Justice After A Buried Report Was Leaked To BuzzFeed News

A criminal investigation has been launched into the Ministry of Justice after a report leaked to BuzzFeed News suggested the department buried damning research into people defending themselves in court. The decision was taken by the Information Commissioner’s Office following formal complaints from BuzzFeed News and others that the government had concealed the existence of a 36-page internal report that contained explosive testimony from senior judges about the impact on the justice system of unrepresented people in crown court.

The research was commissioned by the government to review the impact of cuts to legal aid made in the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) and was based on in-depth interviews with 15 crown court judges and six prosecutors. The Information Commissioner compelled the MoJ to release a report following Freedom of Information requests from BuzzFeed News and others. Yet what was released by the MoJ was clearly marked “summary” and was just six pages long. The following week BuzzFeed News was leaked the full 36-page report - something the press office previously said did not exist.

Under the Freedom of Information Act it is a criminal offence to alter, block, destroy or conceal information whose release has been compelled by the ICO. The penalty is typically a fine, though in theory senior officials could face jail for contempt of court after failing to comply with an ICO decision notice. BuzzFeed News understands the criminal case was opened earlier this week and work began on it yesterday. A criminal investigating officer within the ICO will now gather evidence and is expected to interview staff at the MoJ next week. The ICO has been contacted for further comment.

The MoJ had initially turned down FOI requests for the report in spring 2017, insisting the politically embarrassing research needed to be kept under wraps because it related “to the formulation or development of government policy”. The six-page summary it eventually released to the Information Commissioner was dated August 2016 and "unpublished summary as of 27 April 2018". The 36 page report leaked to BuzzFeed News is dated February 2016 and includes damning quotes from crown court judges about the challenges created by people defending themselves without a lawyer.

Shadow justice minister, Richard Burgon, said: "These are very serious allegations against the Ministry of Justice. I will be raising this in Parliament at the earliest opportunity. "Regardless of the embarrassment it causes, the government should now publish the report in full and should stop trying to cover up the true scale of the damage that its cuts are causing to access to justice."

The MoJ repeatedly insisted that the six pages were the report in its entirety, despite it being labelled a summary and containing no direct testimony or data. An MoJ press officer said that any edits from the original draft were minor corrections to spelling or grammar.

Penelope Gibbs, director of the charity Transform Justice, was one of several parties to FOI the report. Her discovery that the internal research had been commissioned prompted a question in the House of Lords in March 2017, leading to FOI requests from BuzzFeed News and others. Gibbs said: "The behaviour of the Ministry of Justice makes a mockery of FOI. If I had not known they were doing research on unrepresented defendants in the Crown Court, this important report would have been kept completely secret. How can a department espouse the importance of open justice, without being open about the information they hold?"

The Conservative chair of the Justice Select Committee told BuzzFeed News earlier this week the situation was: “very concerning” and that it was “imperative that there’s maximum transparency on the way government decisions are taken”.

The MoJ has not yet given a comment on the opening of the investigation, but responding to an earlier story on the subject, a spokesperson said:

 “As we have repeatedly made clear, the 36-page version of the report was an early draft and clearly marked as such. Research reports must be of the highest standard and parts of earlier drafts were deemed by researchers to be of insufficient quality. Any request for an earlier draft would have been considered in the normal way.”

They added: “Last year we spent £1.6bn on legal aid, just over a fifth of the Ministry of Justice’s budget – and we are conducting an evidence-based review of the changes made under LASPO which will report back later this year.” The spokesperson also said: “Both the draft and final versions of the report note that legal aid for Crown Court cases did not change substantially under our legal aid reforms and the number of unrepresented defendants remained broadly stable.”

However, last year more than 6,000 people faced criminal charges without a lawyer or had unknown representation at their first hearing in crown court – 7% of all defendants. In 2013 this proportion was 5%. The research itself said: “the majority of interviewees believed that the numbers of unrepresented defendants had risen since legal aid changes, although the rise was seen as small.”

Though the cuts introduced by LASPO largely affected civil law, the research suggests one “significant change” to criminal legal aid appears to have prompted a rise in people defending themselves without a lawyer.

Since January 2014, defendants whose disposable annual income was £37,500 or more were not eligible for criminal legal aid. Before LASPO there was no upper income threshold in crown court cases and the research says the change created a “risk of an increase in unrepresented defendants in the crown court.”

Lawyers Tighten the Screw

All who work in the Criminal Justice System are well aware that chaos reigns everywhere as a direct result of having to endure the continuing Grayling legacy of cuts and piss-poor back-of-fag-packet decisions. 

By way of a reminder, the following extract from a briefing paper prepared for the recent Parliamentary EDM spells out both the degree of cuts - more than any other government department - together with the looming crisis as lawyers effectively start withdrawing their labour. Maybe their combined clout may have more effect than other sections of the CJS:- 

TIME FOR JUSTICE: THE LAW IS BROKEN 

Briefing Note & Event on EDM 1111

17. As a result the Bar is unified across the country in refusing to take on any work at the new rates and are prepared to escalate action if the government won’t commit to rational and significant investment.

Context 

18. The MOJ budget has endured deeper cuts than any other Whitehall department over the last decade and is having to find a further £600m in savings by 2019/2020: approximately 10% of its annual budget. 

19. This week, the loss of a further 40% of jobs (6,500) within the Court estate have been announced. People are what keep the criminal justice system functioning.

20. In planning more cuts, Ministers are making an unequivocal commitment to underfunding the legal system, and to refusing to provide a quality of justice that the public are entitled to expect.

Advocates Graduated Fee Scheme – “AGFS” (subject of the SI) 

21. Spend on AGFS since 2010 (incl VAT). 

a. 2005/06 - £362m 

b. 2009/10 - £278m 

c. 2010/11 - £266m 

d. 2012/13 - £242m 

e. 2013/14 - £226m 

f.  2014/15 - £213m (lowest ever year spend. New “cost neutral” scheme baseline) 

g. 2015/16 - £226m 

h. 2016/17 - £224/226m

22. Spend on Advocates’ ‘Special/Wasted’ Preparation 

a. Fallen from £14m to £3m between 2009/10 & 2016/17. 

b. New AGFS scheme modelled by the MoJ to reduce this to £1.5m.

23. Spend on Very High Cost Cases “VHCC” outside of AGFS scheme (Advocates and litigators) 

a. 2009/10 - £95m 

b. 2010/11 - £93m 

c. 2011/12 - £92m 

d. 2012/13 - £65m (of which £12m on Advocacy) 

e. 2013/14 - £56m 

f.  2014/15 - £36m 

g. 2015/16 - £26m 

h. 2016/17 - £31m (£65m reduction since 2009/10) 

24. No other area of government spend has had budget reduced to the same extent as the MoJ. The budget for advocacy in the Crown court has been cut relentlessly for years. AGFS spend has fallen by 40% since 2010. 

Average income for Barristers 

25. The average GROSS income was £56k in 2014/2015. This equates to £28k pre tax:

a. Gross fees paid to advocates do not represent taxable income.  

b. The headline figures include VAT (20%) 

c. Criminal Barristers must meet the unavoidable overheads of practice (which range from between 25-35%), including expenses (travel etc), the costs of training and compliance with professional obligations. 

d. Criminal Barristers are self employed, with no entitlement to pensions, holiday pay, sick pay, maternity/paternity pay. 

26. Young Legal Aid Lawyers, in their recent survey of young legal aid lawyers up to ten years qualified found that 30% of respondents were earning less than £20,000, 53% less than £25,000 and 83% of respondents less than £35,000.

a. The fact is, there is “…little incentive for debt-saddled graduates to opt for a career in legal aid work…” – House of Commons Committee of Public Account.

27. Debt incurred in the course of education and professional qualification (increased student fees, lack of bursaries and grants) combined with low salaries is a barrier to the profession. For example, on top of university fees, the Graduate Diploma in Law (average £8,345), the LPC for solicitors (average £11,000) or the BPTC (average £16,000) are required. 

28. Unsurprisingly there is a recruitment and retention crisis at the criminal bar. The level of debt new entrants have to deal with, the collapse in fee levels, and the increasing demands of practice, which are increasingly incompatible with family life, has resulted in the haemorrhaging of young criminal barristers from the profession, particularly young women. 

a. More than 1/3 of criminal barristers are re-considering their career options in terms of criminal practice owing to poor income and work-life balance.

b. The situation is particularly acute for those with caring responsibilities. There is a high attrition of women from the criminal bar. This is unsurprising when considering the demands placed upon barristers outside of court hours and the fact that child care often costs more than hearings are paid in the criminal courts. Child care is not tax deductible. 

29. Solicitors are facing a similar crisis. The Law Society has predicted that criminal duty solicitors could be extinct in 5-10 years. The average age is 47 and, in many areas, the average age is now in the 50s. 

30. The new fee scheme entrenches low levels of remuneration. Heads of Chambers across the country fear for the viability of the Chambers structure. The number of pupillages (on the job mandatory training year) has been falling for a number of years, as Chambers have tried to reduce their cost base. 

31. This is having a deleterious impact on diversity and social mobility. This impacts on trust and confidence, and will have consequences for the future profile of the judiciary. This has profound consequences for public confidence in its ability to reflect British society and represent the communities it serves, as has been highlighted by the Grenfell tragedy.

The Bar, Practice and Goodwill 

32. A career at the Bar is insecure, and financially uncertain. Trials can be moved by a Judge without consultation, witnesses can be taken ill, defendants might accept advice to plead guilty, charges might be dropped, all of which can result in significant falls in expected income with little notice or the ability to plan. Reasonable fees when cases go ahead are essential to make practice viable. 

33. We work through lunch, overnight and at weekends preparing cases to keep the system going. 

34. The pool of advocates, provided by the chambers structure, means that whenever a case needs covering at any level of seniority anywhere in the country there will always be an excellent advocate available to take it on either for the prosecution or the defence. The unpaid hearings are covered by other members within chambers. 

35. The warned list system for trials is a good example of this. A case may be placed in a ‘warned list’ for trial. This is a period over typically 2-3 weeks during which the trial could be listed on any day. Notifications are sent out at approximately 4pm the day before. A barrister will have prepared the case but may for obvious reasons be unable to undertake the trial (it is not viable to keep a diary free for such a period on the off chance a 3 day trial will be listed at some point) and /or the trial may not be listed within the warned list period and be adjourned to a new warned list. There is no payment, save in exceptional circumstances for preparation (which may include e.g. extensive skeleton arguments or edits to a child witness’ pre-recorded evidence) to the original barrister. A new barrister then has to pick the case up and prepare it overnight. Barristers are therefore constantly preparing cases for no payment which they are unlikely to be available for and having to prepare for new cases overnight to start the trial the following day. 

36. It is our ‘goodwill’ that keeps the system going. 

37. The Criminal Bar have decided enough is enough. If we do not take a stand now, we become complicit in permitting our justice system to collapse. We are not prepared to allow it because it is our legacy. 

You don’t need to take our word for it. The senior judiciary and politicians of every party are speaking out. The Criminal Justice System is in Crisis.

Sir Henry Brooke: “Things are so bad now that few are opting to become criminal defence lawyers….This is not about money for lawyers. It is the liberties of England that are at risk” 

Former Lord Chief Justice, Sir John Thomas: "We have, over the last 20 or so years, seen less police officers and other investigating officers go to court, so they don't understand the importance of disclosure… It seems to me that the cuts have gone too far… The obvious thing to do is to make sure proper resources are put into this vital aspect of our criminal justice system." 

Sir Brian Leveson, President of the QBD: “We must recognise that the success of any system to achieve its aims is a product of the resources it is provided with. This is as true of the justice system as it is of premier league football teams. The question is: do we have the resources for the premier league, for the Championship or non-league football? Resources determine, or at least affect, quality… If we are to maintain quality standards now and in the future, it is critical that this work must both be seen to be, and must actually be, an attractive career option for practitioners entering the legal profession. More than that, if we are to maintain the high quality of our criminal judiciary in the future we need to ensure that high quality solicitors and junior criminal practitioners continue both to enter this area of practice and to stay within it. Any failure to act to reverse this situation today, will have long term and detrimental consequences for the pursuit of quality criminal justice in the future and will inevitably impact on the work of the CCRC as failures in the system are exposed, far too late.” 

Lady Justice Hallett, VP of Criminal Division, Court of Appeal: “With respect to all those [in the Treasury] who have really difficult jobs working out finances, we have to look at the job the Ministry of Justice has to do… Are we confident in ensuring that it’s properly financed? Because if it’s not we risk breaching our duties under the rule of law. There’s a danger of underplaying the importance of justice. It’s going to become increasingly important with Brexit. We are always [stressing the] importance of providing access to justice for all our citizens. 10 Commercial courts, such as the Rolls Building in London, and arbitration services “bring in billions, multibillions, into the country. Some people may think that as long as we protect the commercial courts everything will be all right – but that’s nonsense. “We have to make sure that the entire system is the best in the world but we are hanging on by our fingernails.” 

Secret Barrister: “Walk into any criminal court in the land, speak to any lawyer or ask any judge, and you will be treated to uniform complaints of court deadlines being repeatedly missed, cases arriving underprepared, evidence being lost, disclosure not being made, victims being made to feel marginalised and millions of pounds of public money being wasted. And, as a consequence, every single day, provably guilty people walking free.”

MoJ in the Dock

We all know the MoJ has an unenviable track record in wasting public money on vast computer projects that don't deliver and according to this in the Guardian, history is repeating itself:-   

Delays and spiralling costs hamper MoJ's digital courts project

Audit office says full ambition of programme will ‘prove to be undeliverable in time available’

A £1bn modernisation programme of the UK’s justice system is facing a “daunting challenge” after falling behind schedule and overrunning costs, according to Whitehall’s spending watchdog. The National Audit Office has found that the changes being rolled out by HM Courts & Tribunals Service (HMCTS), an agency of the Ministry of Justice, are behind schedule and facing funding gaps. Costs have already risen by £200m to £1.2bn, auditors found.

A report, released on Wednesday, comes as the MoJ needs to reduce its annual spending by £500m from 2015-16 levels by 2019-20 to meet the commitments in the 2015 spending review. The justice secretary, David Gauke, recently appointed Tim Parker, a former boss of Kwik-Fit and the AA, as chair of its board. Auditors believe the modernisation plans are “extremely challenging” and there is a significant risk that HMCTS will not be able to achieve all it wants within the time available.

Meg Hillier, the chair of the public accounts committee, said: “The Ministry of Justice is seeking to modernise our justice system but needs to be clear about which of the promised benefits it will actually be able to deliver.”

In 2016, HMCTS set up a portfolio of change programmes to introduce new technology and working practices to modernise and upgrade the justice system. The aim, by 2023, was to employ 5,000 fewer staff, reduce the number of cases held in physical courtrooms by 2.4m a year and reduce annual spending by £265m.

The NAO’s assessment of the progress of the project found the body faces a “daunting challenge” in delivering the scale of technological and cultural change necessary. The report said: “Given the extent of changes planned, there is a very significant risk that, despite the best efforts of HMCTS and other parties, the full ambition of the change portfolio will prove to be undeliverable in the time available.”

The modernisation programme will see an increase in the use of “virtual hearings” in criminal cases, with judges and magistrates dealing with defendants from a police station or prison using a video link. Accused individuals will be able to enter pleas online, removing the need for pre-trial hearings, while vulnerable witnesses will be allowed to give pre-recorded evidence rather than appear in court.

In lower-level cases, such as TV licence evasion, the reforms aim to allow the entire process to be completed on the internet. Technology will also be at the forefront of efforts to reduce the number of cases requiring a physical hearing in the civil and family courts and tribunals. The NAO said delivering the reforms successfully remains “extremely challenging”.

Officials estimate there will be a funding shortfall of £61m in future years, assuming that the Treasury agrees that all previous years’ under-spends can be carried forward. Without this agreement, the gap could be £177m. The MoJ completed the first stage of the reforms in September 2017, but has made less progress overall than it had expected to at this stage, according to auditors.

Penelope Gibbs, director of the organisation Transform Justice, said: “Its hard not to see the government’s digital court reform programme as designed more in hope than expectation. No one denies the courts need to be more efficient but this programme seems over-ambitious and based on flawed assumptions.”

Susan Acland-Hood, chief executive of HMCTS, welcomed the report as “helpful and constructive”.

“We are confident that the current six-year programme is on track to deliver the benefits promised on completion and, in doing so, help create a better, more straightforward, accessible and efficient justice system for all who use and need it,” she said.

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Of course the MoJ has a track record of being routinely less than open and honest, but they've been caught out according to this on the Buzzfeed website:- 

This Leaked Report Reveals The Stark Warnings From Judges About Defendants With No Lawyer

“Some of them just sit there like a rabbit in the headlights and haven’t got a clue what’s going on," one judge said in a report leaked to BuzzFeed News.

The Ministry of Justice concealed the existence of a 36-page internal report that contained explosive testimony from judges and prosecutors about the impact on the justice system of the rising number of people defending criminal charges without a lawyer, BuzzFeed News can reveal.

Last week BuzzFeed News reported on the release under Freedom of Information laws of a six page summary of research conducted in 2015 into the issue of people facing criminal charges in court with no lawyer.

The study was commissioned by the government to review the impact of cuts to legal aid made in the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) and was based on in-depth interviews with 15 crown court judges and six prosecutors.

The MoJ repeatedly insisted, including in two on-the-record statements, that the six pages were the report in its entirety, despite it being labelled a summary and containing no direct testimony or data. After BuzzFeed News expressed scepticism, an MoJ press officer said that any edits from the original draft were minor corrections to spelling or grammar. They also insisted that there was no transcript of the judges’ testimony.

But now the original report has been leaked in full to BuzzFeed News. Dated February 2016 and titled “Unrepresented Defendants: Perceived effects on the Crown Court in England and Wales and indicative volumes in magistrates’ courts" it is marked “Internal Ministry of Justice Report Do not quote publicly”.

It includes the first research of its kind into the number of people facing criminal charges without a lawyer in magistrates court, as well as a series direct quotes from the judges expressing their serious concerns about the impact on defendants, victims and the court process.

“Some of them just sit there like a rabbit in the headlights and haven’t got a clue what’s going on,” one judge is quoted as saying.

The revelations in the full report that the MoJ omitted from the summary it released include:

• The gulf between MoJ predictions on the minimal impact of legal aid changes on criminal cases and the reality experienced by judges.
• That more than half of the judges interviewed were concerned about unrepresented defendants understanding the concept of the difference an early guilty plea made in sentencing.
• Explicit warnings backed up by data that not having a lawyer may create more hearings, a situation that could end up costing the court system more.
• Judges said preparation for cases was “more extensive or difficult” where the defendant had no lawyer.
• Data from five magistrates courts across England and Wales in 2015 suggesting that 13% of people have no lawyer when facing criminal charges there.
• That some of those interviewed said no support at all was offered to unrepresented defendants.
• While the summary made just three vague policy recommendations on the back of what it described as a “small study”, the original report has seven specific recommendations, including looking at options for providing legal assistance in crown court.
• A judge saying the impact of witnesses being interrogated by a defendant is “almost like committing the offence all over again.”
• Correspondence between the Senior Presiding Judge (SPJ) and MoJ officials “where the SPJ requested the MoJ conduct further work on the issue, namely to provide more robust data on the number of unrepresented defendants in the Crown Court.”

The government is conducting a review on the impact of legal aid cuts but it is largely focused on civil law. This proves the MoJ has been sitting on research that showed there were already serious concerns in the judiciary three years ago about the availability of criminal legal aid and the rise of people defending criminal charges without a lawyer.

BuzzFeed News applied under Freedom of Information laws for the release of the research in April last year. It was turned down by the MoJ, but following an appeal, the Information Commissioner ruled that it should be released.

When the MoJ finally released the summary document last week, it vehemently denied any more substantial version of the report existed. In one email a press officer wrote: “Further to our conversation earlier where you accused me of lying to you about the report, I want to make it abundantly clear that the report given to you was the only report produced on the back of this research. We will be very disappointed if you allude to us being in any way dishonest in your article.”

In its on-the-record statement the MoJ insisted: “The report sent was the one requested and it is in its entirety. There are no summaries nor are there any transcripts in the review.”

A further email from the press office after publication said: “upon reading the article published after the conversation we had on Monday about the contents of the report, I would appreciate if you could add the below statement below the passage which strongly suggests that the full research was not published. An MoJ spokesperson said: 'We have released the full and final report as requested and will of course consider any further requests for information related to this work.'"

BuzzFeed News approached the MoJ at 2pm on Tuesday for its response to the full leaked document. We asked why it had failed to disclose its existence last week and why it had repeatedly insisted that the summary was the only report. By 6pm, the department still had not provided a response and a spokesperson said it would be unable to offer one until Wednesday.

Shadow Justice Secretary Richard Burgon told BuzzFeed News: “When people’s liberty is at stake, no one should be left without proper legal representation. This risks not only miscarriages of justice but, as the revelations uncovered by Buzzfeed shows, it can cause distress for victims and witnesses as well as costing the taxpayer more as cases drag on.

"The government’s failure to publish this research, delays in responding to FOI requests, and denials that the full research even exists suggests that it is trying to sweep these problems under the carpet rather than fix them. That approach must end."

Despite the MoJ insisting no quotes or transcripts from the judges existed, some of the most damning material in the 2016 report is quotes from judges clearly exasperated with the situation. Describing the impact of unrepresented defendants not understanding court processes, one judge said: “It’s like saying if you felt unwell would you want to go and ask someone with no medical qualification how to cure yourself”.

Another, explaining the defence’s level of participation in hearings where they have no lawyer, said: “Some of them just sit there looking like a rabbit in the headlights and they haven’t got a clue what’s going on and you really have to check that they are following and are in a position to make any relevant comments they need to. Others will be jumping up every five seconds, even when it’s not their turn to talk”.

Commenting on the impact on witnesses when a defendant is the person to cross-examine them, one judge said: “He decides he’s going to represent himself, and then he’s asking questions of these people, it’s almost like committing the offence all over again.”

The unpublished research explicitly says that not having a lawyer may create more hearings, a situation that could end up costing the court system more. Quoting 2014 data, it points out that while 17% of defendants with no lawyer had two or fewer hearings, compared to 30% of those represented in court. In analysis absent from the original summary released to BuzzFeed News, it says: “This suggests that legal representation may affect the number of hearings.”

It goes on to say: “Prior to this paper there was no qualitative evidence to give any narrative around these statistics. There was also no quantitative data about the number of unrepresented defendants in the magistrates’ courts.”

The report gives vivid detail on how unrepresented defendants can bring court delays, with one judge giving an example of a case “where an unrepresented defendant asked for 50,000 pages of documents to be provided and for Lord Chief Justice to give evidence. These problems appeared to stem in part from unrepresented defendants not being in a position to engage with CPS properly due to their lack of legal training and their distrust of the CPS stopped the unrepresented defendants releasing documents.”

The research also details case delays caused by pursuing a peculiar defence that a lawyer would be unlikely to try. “One interviewee mentioned a spate of cannabis cases with unrepresented defendants whereby the defendants did not accept the illegality of their actions,” the research notes. “A different interviewee discussed a three week trial in which the unrepresented defendant based their defence on the ‘law of the sea’ in a drug dealing case.”

While the summary said judges “mentioned problems in discussing the concept of pleas and discounts,” it omitted to say that more than half of the judges interviewed were concerned. The fact that some of the CPS interviewees also thought it was harder to get a guilty plea from someone unrepresented was also edited out. The original report says “they perceived unrepresented defendants to be unable to assess the weight of evidence against them and therefore know whether a case is strong”.

One judge said: “To me, saying that to a defendant in person is almost like saying, “you’ve got to plead guilty, mate”.

The impact of those with mental health issues going unrepresented was also detailed. “An example was given of one defendant was assessed by a psychiatrist as fit to stand trial but displayed paranoid behaviour and continually turned up at court with a suitcase full of nappies. The court therefore had an additional task to manage this behaviour as part of the hearing.”

Many of the sentences in the summary released by the MoJ are identical to ones that appear in this report. However, the majority of the report is missing from the summary that was released. The full report suggests that opportunities to adjust policies have been missed. While it contained seven policy recommendations, the summary that was released by the MoJ last week included just three, all of them vaguely worded.

The recommendations that were omitted from the summary were: that work should be done to create a central bank of data on representation in the magistrates’ courts; explore whether having a lawyer has an impact on outcomes in magistrates’ courts; Create guidance for judges and CPS staff on how to handle unrepresented cases; create practical guides for unrepresented defendants and a fully costed assessment of how legal advice could be provided in crown court, along the lines of the duty solicitor scheme in magistrates’ court.

On the opening page, it says: “The Ministry of Justice (MoJ) estimated that between 200-300 Crown Court defendants per year would be excluded from criminal legal aid funding due to this change. It was anticipated that this would lead to more people paying their own court costs and that this increase would represent a relatively small proportion of cases in the Crown Court. However, feedback from judicial stakeholders has suggested that since this legal aid change, they believe unrepresented defendant numbers have increased and this is disproportionately reducing the efficiency of the courts.”

It also details correspondence between the Senior Presiding Judge (SPJ) and MoJ officials “where the SPJ requested the MoJ conduct further work on the issue, namely to provide more robust data on the number of unrepresented defendants in the Crown Court.”

The unpublished paper says it has two objectives: to understand the perceived effects of unrepresented defendants in the Crown Court and to explore the scale of unrepresented defendants in a small selection of magistrates’ courts. Yet the summary released under FOI did not include anything on the second aspect of the research.

In the buried report, MoJ analysts collected data in five magistrates courts across England and Wales for a period of four weeks from November 2015, recording the numbers of unrepresented defendants. Of the cases they surveyed, 13% of defendants had no lawyer at all. Missing data from two courts meant that only three courts had baseline data so the percentages are based on a sample of 1,031 cases.

While data in the number of unrepresented people in Crown Court is gathered and published by the MoJ, almost no data exists on the issue in magistrates courts. It was for this reason that BuzzFeed News commissioned an exclusive survey of magistrates last year. It found that magistrates reported that 30% of all criminal defendants they saw at their last session had no lawyer, suggesting the problem has only worsened since this research was carried out.

Better Case Management, a scheme introduced in 2016 to make speedier justice, was not yet rolled out when the draft was written. But judges said that delays caused by unrepresented defendants would have a serious impact on this, with one saying “Having unrepresented defendants drives a coach and horses through Better Case Management.”

UPDATE May 8, 2018, at 9:21 pm.
After publication a spokesperson for the MoJ said: “The FOI requested the final report and this was provided. Over 99% of applications for Crown Court legal aid are granted, and this hasn’t changed following the reforms. We will this year review all the changes made to legal aid in 2012 under LASPO – including criminal legal aid.”

Trouble in Court

Here we have further news of the secret long-term plans by the MoJ to close all courts in England and Wales:- 

6,500 jobs to be lost in modernisation of UK courts

Number of staff to be cut to around 10,000 by 2022 as part of £1bn overhaul of system

About 6,500 courthouse and backroom jobs are being lost and more courts closed under the government’s drive to modernise the justice system through online pleas and remote video hearings. Details of the ambitious extent of the £1bn programme launched in 2016 emerged from a consultation process published by the senior judiciary on Wednesday.

The job loss figure underlines the radical nature of the transformation envisaged by HM Courts and Tribunals Service (HMCTS). The justice secretary, David Gauke, recently appointed Tim Parker, the cost-cutting former boss of Kwik-Fit and the AA, as chair of its board. Parker was once nicknamed the Prince of Darkness by trade unions for reportedly driving to a factory in a Porsche to announce mass job losses.

The Judicial Office has released four large documents explaining how the switch to digital working will affect the criminal, civil and family courts as well as tribunals. Feedback is being sought from judges. There will be more remote video hearings, online pleas for minor offences, video replay facilities for jurors in their retiring rooms and fewer physical courtrooms.

The 6,500 job losses will be spread over the period from 2016 to 2022. Disclosed at a time when criminal barristers are refusing to handle new legal aid cases because of cuts to fees and the Law Society has said criminal solicitors are becoming extinct because of reduced payments, the cuts are likely to cause further alarm in the public-funded branch of the legal profession.

“It is proposed that the number of staff will be reduced from 16,500 [at the start of the changes] to just over 10,000,” the judicial consultation documents state. “They will be divided between the courts and tribunals and [HMCTS] service centres.”

There is a commitment to provide sufficient ushers in court, and “digital support officers” will be on hand to support judges in the courts of the future. “The 460 buildings that made up the court estate has been reduced to 350 so far, with more reductions due to come,” the document says.

“These reforms will deliver savings – a necessary condition for securing the financial support of the government – but they will transform the way we operate the system of justice for the benefit of the public and enhance the administration of justice,” the lord chief justice, Lord Burnett of Maldon, says in the foreword.

“Our approach to this modernisation must be rooted in our shared commitment and dedication to improving the administration of justice and access to justice so that we continue to uphold the rule of law.”

HMCTS has begun piloting virtual hearings, including in tax tribunals where claimants can participate from their homes via webcams.

The new single justice procedure, introduced in 2016, will eventually apply to as many as 840,000 cases a year. Under this procedure, if defendants plead guilty either online or in writing, or do not engage with the court, the case will be judged on the papers by a single magistrate working with a legal adviser, and the decision and sentence will be recorded digitally. It will apply to summary, non-imprisonable offences where there is no identifiable victim. Some contested hearings may be conducted via videolinks.

A new computer system is being introduced for all criminal cases in magistrates and crown courts, although national security cases will not be stored on it. Non-judicial staff will be authorised to complete “routine box work” currently done by judges, such as applications to extend time for compliance with an order when there is no risk to the trial date or uncontested special measures applications.

There should be clear procedure rules for those accessing justice online “with limited legal advice”, the documents state. “Processes will be consistent, predictable and easier to understand, especially for litigants in person.”

There are comments from other senior judges in the documents, highlighting concerns over funding and disrepair in the courts. Sir Brian Leveson, the head of criminal justice in the courts, writes: “I appreciate that first thoughts will challenge the reduction of public funding in many different parts of the system but we have to persuade the government that, consistent with our fervent belief in access to justice and in the maintenance of excellence, we have done all that we can to be as efficient as possible.”

The criminal justice document notes: “Much of the court estate is badly maintained and dirty, the result of years of underspending.” The changes must be made with the participation of the judiciary, not imposed, the documents state.

An HMCTS spokesperson said: “We are investing over £1bn to modernise the justice system – making it more convenient, easier to use, and providing better value for the taxpayer. As we increase the use of digital services, it makes sense to consider the role for court buildings and assess whether some are still necessary to provide effective access to justice. Since April 2016 we have raised £115m from the sale of underused court buildings – over £34m more than forecast, and every penny of this will be reinvested as part of our modernisation plans.”

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This from the Law Society Gazette:-

Why sack the only people propping up our justice system?

Spend an afternoon in any magistrates’ court (take a drink, the water machines have long gone) and you’ll see for yourself the justice system is not working terribly well. The law, to borrow the hashtag, is broken. What is clear is that one thing stands between the system teetering and the system falling over: its people.

These are the security guards frantically running round to a vacant reception to help the same people they just frisked. These are the ushers juggling bulging caseloads and absent defendants, moving cases between courts like an elaborate game of chess. These are the court staff playing the role of counsellor to vulnerable people representing themselves in tragically sad family cases, all the while trying to get on with their actual jobs.

These are the chaplains effectively acting as quasi-legal helpers, guiding utterly clueless and bewildered people to the right courtrooms. Now we hear that court staff numbers are due to be reduced from 16,500 to 10,000. Mass redundancies appear inevitable and further court closures seem to be in the pipeline.

Let’s be clear: the system as it stands cannot cope with fewer people. It barely manages with the people it has. Cutting this number of staff means either making the system worse or fundamentally changing how we administer justice in this country. Anyone trying to argue differently is either blind to the consequences or is simply not telling the truth.

Consultants appear to be making these decisions without the faintest idea what is happening on the ground, with changes nodded through by unquestioning senior judiciary. We should be lauding the hard-working people of our court system and paying them properly (you’ll often hear of vacancies because salaries cannot match those paid for other local civil service roles). Instead we reward their efforts with the threat of job losses. It’s like watching your house burn down and handing a P45 to the firefighters trying to put out the flames.

John Hyde

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Finally, barristers have signalled their intention to step up their action. This again from the Law Society Gazette:-

'Nothing to lose': Bar ponders no returns policy to escalate protest

Criminal barristers are close to stepping up their action against legal aid cuts by implementing a ‘no returns’ policy in addition to refusing to taking on new work. The Gazette understands the Criminal Bar Association (CBA) is actively considering encouraging members to implement the policy.

Under no returns, barristers agree not to accept cases that are returned by colleagues who have a diary clash. The policy is intended to demonstrate to the government the impact on the wider criminal justice system when barristers withdraw their ‘goodwill’. However, it could create a further backlog in cases if defendants are left without representation.

The last time barristers undertook a ‘no returns policy’ was 2015. An informed source told the Gazette ‘no returns’, combined with a refusal to take on new cases, would be ’highly disruptive’.

‘Given new representative orders are only a month old, no returns would have an impact. It would make life tough for those not earning but that’s how strong the bar feels. There’s almost nothing to lose,’ the source said.

Around 100 chambers have been refusing to take on new work since 1 April in protest at changes to the Advocates’ Graduated Fee Scheme (AGFS), which determines how advocates are remunerated in publicly funded cases. There are 350 Chambers nationally but not all of those take on criminal cases.

Speaking to the Gazette at Manchester Crown Court, barristers confirmed they were considering escalating their action and that the mood was shifting in favour of no returns. One local solicitor said the start of a no returns policy could derail a murder trial she is currently acting in in which there is a diary clash. In Manchester an upcoming murder trial is scheduled for the coming weeks where no counsel is available for a defendant and the solicitor is being encouraged to use the Public Defender Service.

A Broken System 2

Back in March we covered news of a whistle-blowing book about to be published by the Secret Barrister and it's taken the legal profession by storm and featured in the Guardian's top 10 for several weeks. If only probation had spawned something similar. This from the Guardian:-   

The Secret Barrister review – a justice system that is utterly broken

Many people think barristers strut around courtrooms barking ‘objection’. It is as wrong as assuming the UK justice system can survive recent cuts

A war crimes trial is stopped because the government has privatised the supply of interpreters, and the company selected cannot present any who are qualified. Two women, in all likelihood repeatedly raped by their father as children, are humiliated, dehumanised and ultimately disbelieved in proceedings in which they did not stand a chance. Thousands of people every year are convicted of crimes by magistrates whose qualification for dispensing justice is filling out a form, passing an interview, doing some charity work and being willing to sit for 13 days a year, with 18 hours’ worth of training. A man whose innocence should have been easily established in court is convicted of sexual assault because relevant evidence was not disclosed by the police. And meanwhile hundreds of hardworking, dedicated professionals are toiling in near impossible conditions.

This is a portrait of the criminal justice system in England and Wales today, as seen by the Secret Barrister, a criminal advocate who keeps his identity a closely guarded secret so that, he argues, he can be unrestrained in his critique. And unrestrained it is. The book is in part a guide to the system – a reminder of how few of us understand it – and in part a first-hand account of the personal dilemmas facing someone whose professional life is spent in and out of crown courts, police cells and prisons. It is above all a plea to rescue a justice system that has become utterly broken.

“Hell” is the word used by one supreme court judge. “Despair” is the experience of another in the court of appeal. Over the last near decade of austerity, justice has endured the deepest cuts of any departmental spending in the UK. Whole areas of law, including family, housing, immigration, debt and employment, have been taken outside the realm of publicly funded legal representation, leaving some of the most vulnerable people at the mercy of a system that is designed to be incomprehensible to even the most highly educated lay person.

Since 2010, 258 courts have shut across England and Wales. Rape trials have collapsed because police and prosecutors – all victims of the same, sabotaging cuts – have failed to disclose key evidence on which a fair and robust defence depended.

Some of this will come as no surprise. As a former criminal barrister myself, I expected this book to communicate how little we value the people and institutions so vital to our liberty. But what’s so powerful about The Secret Barrister is its ability to connect the dots – from changes to something as seemingly mundane as criminal procedure rules, to the state of prisons – revealing a picture that is more a commentary on society as a whole than it is on robing rooms full of horsehair wigs. In one of its most effective passages, the author points to platitudes about putting victims first, now such a staple of government rhetoric, contrasting them with the actual preference of political leaders, which is to offer taxpayers one penny off the price of beer rather than invest the equivalent amount into a system without which rights can never be properly upheld.

How did we let this happen? The author argues that the lack of legal education in the UK has led a distressing number of people to believe that the work of a barrister involves “strutting around a courtroom barking ‘Objection’ while spinning deliberate lies to a jury as a judge in a full-bottomed wig twirls his gavel”. (None of these things happen in the courts of England and Wales.)

But political bad faith is also part of the answer. For instance, the claim in 2010 of justice minister Jonathan Djanogly that our legal aid system is “the most generous in the world” – I remember his words well, as I was the Guardian legal affairs correspondent at the time. It sounded wrong to me then, but is now, as this book makes clear, “demonstrably, palpably false”.

The Secret Barrister writes compellingly about issues as varied as the treatment of vulnerable victims in rape trials and the state of sentencing law – no mean feat. His style is a blend of pomposity and self-deprecation that is remarkably evocative of many characters at the bar. In seeking new allies, he tends unashamedly to appeal to the middle-class, school run mother or the junior doctor – the subtext being “it’s not only those poor black people who can get caught up in this stuff”. On the question of ethnicity – the hugely disproportionate appearance made by people of colour in the system, and the historical failure of the bar itself to recruit and nurture ethnic minority talent – the book is largely silent.

But at its deepest level, it is not about the criminal justice system at all. The Secret Barrister writes about our idea of ourselves as a nation, an England still so confident in its principles and workings of democracy and justice. When in practice it is now less of a model for others to aspire to than a dire warning as to what can go wrong.

The Secret Barrister: Stories of the Law and How It’s Broken is published by Macmillan. 

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There are problems in every part of our criminal justice system. This, again from the Guardian, concerns the plight of solicitors in criminal practice:- 

Criminal defence solicitors may be extinct in five years, says Law Society

Cuts to fees mean legal system faces cliff-edge in England and Wales, profession warns

Criminal defence solicitors may become extinct in parts of England and Wales within five years, due to cuts to legal fees that have rendered the profession unprofitable, according to the Law Society. The strongly worded warning comes as barristers have begun refusing to take on legal aid cases and are planning mass walk-outs in protest at what they say is sustained under-funding of criminal trials.

The suggestion that defendants could soon be left unrepresented highlights the crisis of confidence in the criminal courts as even the lord chief justice, Lord Burnett of Maldon, complained in a speech on Monday about under-investment. More than 80 barristers’ chambers have now publicly backed the boycott of new legal aid cases and a Vigil for Justice demonstration, organised by the Justice Alliance, is to be held outside the Ministry of Justice on Wednesday 18 April.

Data unveiled by the the Law Society, which represents solicitors across England and Wales, shows those specialising in criminal work are an increasingly ageing cohort, with few lawyers joining the relatively poorly paid branch of the profession.

“The justice system is facing a cliff-edge scenario; criminal duty solicitors are part of an increasingly ageing profession, and government cuts mean there are not enough young lawyers entering the field of criminal defence work,” said the Law Society president, Joe Egan. “If this trend continues, in five to 10 years’ time there could be insufficient criminal defence solicitors in many regions, leaving people in need of legal advice unable to access their rights.”

In Dorset, Somerset, Wiltshire, Worcestershire, West Wales and Mid Wales, more than 60% of criminal law solicitors are aged over 50, the survey found. “The data shows that criminal duty solicitors are becoming extinct,” the Law Society said. In Norfolk, Suffolk, Cornwall and Worcestershire there are no criminal law solicitors aged under 35 who are practising. A map shows the ageing profile of criminal solicitors across England and Wales. The Law Society is concerned these trends may have a “catastrophic effect” on the criminal justice system, as criminal defence solicitors retire and leave a shortage of experienced practitioners.

Everyone has the right to free legal advice if they’re questioned at a police station. Advice given in a police station is not means-tested but the number of duty solicitors available to give advice is declining. In Southport, for example, there are only two duty solicitors, in Kendal and Windermere only one and in Hinckley, Leicestershire, just three. From May 2014 to January 2018 the overall number of practising solicitors rose by 7.8%, but the proportion specialising in criminal work fell by 9.4%.

“Twenty years without any increases in fees, and a series of drastic cuts, have pushed the criminal justice system to the point where lawyers can no longer see a viable career doing this work,” Egan said. “If a suspect cannot access free advice and representation, a fair trial would be jeopardised, and cases would collapse.” The government, he said, should “conduct an economic review of the long-term viability of the criminal legal aid system and ... guarantee that criminal legal aid fees will rise with inflation”.

In separate comments about the need to modernise the justice system, Lord Burnett said: “We know that many of our buildings are in a poor state. There has been over a decade of under-investment in maintenance, amounting to neglect. I have seen for myself the leaking roofs, broken lifts, faltering or broken heating systems, overflowing lavatories and much more. At the heart of many of the things that have led to an attrition of judicial morale are questions of resources. For many things – pay and pensions, investment in the estate – we depend on government, and on those I shall continue to press our cause.”

The Ministry of Justice said: “We are clear that we have enough solicitors to fulfil criminal cases and will make sure we continue to do so. Last year, we spent £1.6bn on legal aid, just over a fifth of the Ministry of Justice’s budget. This ensured legal support was available to those who most needed it - and this will remain the case. We are already working closely with partners in the legal system to review the changes we made to legal aid in 2012, to make sure they are delivering the efficiency and fairness we need.”

Barristers Take Action

Yet again the legal profession demonstrates the power of solidarity and unity. This from the Law Society Gazette:- 

'Direct action' over cuts starts on Sunday, barristers announce

Criminal barristers will refuse to take new work from Sunday in protest at government cuts to the legal aid budget after 90% of survey respondents backed direct action, the Gazette can reveal. The Criminal Bar Association (CBA) said today that the decision was taken with ‘heavy hearts’ but that the situation was ‘desperate’.

Over the past week the CBA surveyed members on whether there should be ‘action for justice’. According to today’s announcement, of 2,317 respondents, 2,081 voted in favour of action over a new formula for calculating legal aid fees for advocates. It marks the first time direct action has been taken since the ‘no new work and no returns’ action of 2014 and 2015.

Angela Rafferty QC, CBA chair, said: ‘The system is desperate as are we. We are informing our members today that they should consider not taking any work from April 1, the implementation date of the reforms. We will hold days of actions. We will fight to improve the justice system for us and everyone else. We announce this action today with heavy hearts.’

Barristers sets Garden Court Chambers, 25 Bedford Row and Doughty Street Chambers have all already indicated that they will support action.

The CBA’s move comes after it emerged the House of Lords’ secondary legislation scrutiny committee had written to the Ministry of Justice seeking clarification on the revised Advocates Graduated Fee Scheme (AGFS), which determines how advocates are paid in legal aid cases. A government impact assessment claimed the changes would increase legal aid spending by an additional £9m per year but the Bar Council and the CBA say the reforms actually amount to a £2m cut.

Rafferty added that, according to the Treasury’s own figures, the MoJ resource budget will fall by 9% over two years to £6bn by 2019/20. ‘The budget for justice is now forecast to fall an initial £400m next year from £6.6bn in 2017/18 to £6.2bn in 2018/19, then to £6bn for 2019/20. Meanwhile the poor and vulnerable in society are being denied access to justice,’ she said. 'The system is desperate; it cannot endure any more cuts.’

The government has also cut the Litigators’ Graduated Fee Scheme, which remunerates solicitors. Earlier this week legal aid solicitors indicated that they would stand shoulder to shoulder with barristers, and today the Young Legal Aid Lawyers issued a statement of support. Law Society president Joe Egan said: ‘The action announced today by the Bar shines a light on wider concerns shared by lawyers that criminal legal aid services across England and Wales, and justice itself, are under threat. The same concern has led us to issue judicial review proceedings against cuts to fees for Crown Court work.’

He added: ‘The rates paid to legal aid solicitors have not been increased since 1998 and the Law Society has consistently warned that the fragile criminal legal aid market cannot stand any further cuts. Despite this, the MoJ implemented further fee cuts in December 2017.’

Shadow justice secretary Richard Burgon, said: 'That lawyers feel they now must resort to taking action underlines the depths of this crisis. Labour has submitted a motion opposing the government’s planned changes to the criminal legal aid remuneration scheme and calling for any changes to be debated fully in parliament. More widely, the government must urgently step forward with investment to fix our broken justice system.'

A Ministry of Justice spokesperson said: 'We are extremely disappointed with the position the CBA has taken today, especially given that they and other members of the bar participated fully in the design of the scheme. Our reforms will reflect the actual work done in court, representing better value for the tax payer, and will replace an archaic scheme under which barristers were able to bill by pages of evidence. They added: 'We greatly value the work of criminal advocates and will continue to engage with the bar moving forwards.'

--oo00oo--

The full statement can be found here:-

Statement by Chair and Vice-Chair of the Bar 

Having sought the views of its members, the Criminal Bar Association has today issued its statement on the state of the criminal justice system and on the funding of criminal legal aid. This sets out the stance of both the leadership of the association and of the Criminal Bar at a grass roots level.

As Chair and Vice-Chair of the Bar Council, we stand by the Criminal Bar Association and the Criminal Bar in striving for the proper funding of the criminal justice system, as we stand by all others who strive for the proper funding of other parts of our system of justice. 

We stand by them, too, in seeking to secure a future for the Criminal Bar, whose dedication and commitment are essential to ensure that we can deliver justice fairly and efficiently. Legal aid across the board - including criminal legal aid - requires sufficient funding from the Government. There is just no alternative if we want to achieve effective, fair and efficient justice. The current level of funding is just not sufficient. 

Slashed funding for justice 

The Ministry of Justice (MoJ) budget has been slashed across the board in the last decade. The effects, in every area, are becoming ever clearer: courts and prisons in a deplorable state of repair, leading to unacceptable conditions; litigants struggling to deal with their own cases without legal help in the most trying of circumstances; overloaded courts and judges; increasing delays; and judicial morale at rock bottom, to name but a few. Previous programmes of reform have failed to produce the intended benefits through a lack of funding and political will. While the current investment in the court reform programme is substantial, it cannot hope to reverse all of the harm that has already been done, and continues to be done, and its focus is really elsewhere. When the required annual savings of nearly £260 million are taken out of the system, then these latest reforms may also falter; and if the intended efficiencies are not achieved, then it may even add to the current problems. 

Those who suffer from all this are the public; the most vulnerable; the victims of crime; witnesses called to give evidence; and those who are innocent of the offences with which they are charged. This can only lead to miscarriages of justice - the conviction of the innocent and the acquittal of the guilty - which harm both the public and the rule of law of which we are, and wish to remain, so proud. 

Much of the brunt of this underfunding has been borne by the publicly funded Bar, through an ever growing workload, worsening working conditions and a deterioration in the quality of our working lives. That has not been met - as anyone else might expect - by increases in pay to compensate for the changes which have been imposed: quite the contrary. 

Criminal legal aid 

The main fixed fee scheme which pays for most criminal defence advocacy was first introduced in 1997. Between 1997 and 2007 there were no increases, only cuts. Inflation over that time was 26%. In 2007, following Lord Carter’s review, the Government was finally persuaded to increase those fees, but the increase was only 18% overall: still 8% short of inflation. The repeated cuts to criminal legal aid since then add up to an overall fall in fees of more than 40% in real terms since 2007. The result is that the Bar has suffered two decades of falling fees in real terms for criminal defence work. We are not aware of cuts of this magnitude in any other area of public service in the UK. 

The system staggers on only through the dedication, commitment, resilience and goodwill of the Criminal Bar. If the Criminal Bar feels that this situation cannot continue, that is hardly surprising. 

The low level of morale was revealed in a recent Bar Council survey. More than a third of those criminal barristers who responded were dissatisfied with their careers and either considering alternatives or planning to leave the Criminal Bar soon. That was more than double the rate reported in other areas of practice, with the main reasons given (both in private practice and in the CPS) being poor income and work-life balance. If criminal barristers choose individually to take action to make their feelings clear to those in Government who hold the purse-strings, while remaining true to the ethos of our profession, then we believe that they will have the support of their colleagues across the Bar. 

The revised AGFS 

The process that led eventually to the revised Advocates’ Graduated Fee Scheme that is to be brought in as from 1 April 2018 began life in response to a threat of a yet further cut of 8.5%. That would have resulted in a halving of fees since 2007. While that final cut may now have been averted, the Bar has always made it clear that even before that cut, the fee levels on offer vastly undervalued what is required of the Criminal Bar, and were causing real harm to its long-term future. As so many Heads of Chambers have told us, this remains the case today, and we have sought their support for gathering further evidence of this. 

At no time has the Bar accepted that current levels of funding were adequate - quite the contrary. 

At no time has the Bar accepted that fees should stay the same, year on year, becoming steadily eroded by inflation - quite the contrary. 

We recognise, however, that levels of funding are different from the structure of any fixed fee scheme. The final structure of the revised AGFS is not the same as that proposed by the Bar in 2015, but the MoJ’s recent announcement about the new scheme confirms that a key aim remain; that the Bar should be paid for the work that we actually do, with the iniquities of ‘bundling’ removed. 

Some of the ways in which we asked that this be recognised have also survived, such as separate payments for PTPHs, sentencing hearings and the second day of a trial. The new scheme also includes some graduation - although not to the extent for which the Bar argued - reflecting the greater skills and experience required to conduct more difficult cases. 

While we should never have been subject to a scheme which lacked these features, it is right that we should recognise that the MoJ accepted the Bar’s arguments, and included these features in the new scheme. These features are a significant step forward from where we found ourselves. 

Many, on all sides, worked hard to devise a new structure to replace one that was, in so many respects, unfit for purpose. We believe that all those involved, both the officials at the MoJ as well as the many barristers from all quarters and of all levels of seniority, sought to do the best they could to design a better structure, and we thank them for their efforts. 

But the process was hamstrung by the requirement that was then insisted upon, at a political level, of ‘cost-neutrality’; nor does the final scheme reflect all of the elements for which the Bar fought hard. 

Against that background, it is right that we should look fairly and objectively at the structure of the new scheme, but in doing so we need to consider all of its aspects, and we need to do so with care. We also cannot ignore the effects of ‘cost-neutrality’ on either the structure or on what barristers will actually be paid; nor can we ignore the fundamental question of whether it will have the result that barristers are paid fairly for the work that they have to do in each case. 

We are in the process of obtaining the most recent full year’s figures from the MoJ (those for 2016-17), and have commissioned detailed analysis. We will carry that out as rigorously as we can. 

What ‘unbundling’ the fees payable for criminal defence work has already achieved, however, is to show the true level of payment, and it can clearly be seen that the fees are just inadequate. This leaves many of the most talented unwilling or unable to remain in practice at the Criminal Bar. Quite simply they can, and may need to, earn more for their skills and talents in other fields of practice or in other walks of life altogether. 

With that in mind will be looking particularly carefully at those areas in which many at the Criminal Bar tell us that there will be real unfairness under the revised scheme. In particular:

• Many have explained to us how the revised scheme fails to achieve the aim of paying for the work that we do in some important respects. Figures that have been shown to me by several sets of chambers seem to bear this out, particularly in those cases in which not just skill and experience are needed, but also very many hours to review and consider large volumes of relevant material that just cannot be ignored or readily condensed. 
• In many cases, the recent and developing explosion in relevant electronic data, particularly social media data, has exacerbated this. 
• There is real concern that this will now be the situation in even more cases than before, as a result of the widespread failures to deal properly with evidential and undisclosed material. 
• Those cases comprise many to which more junior practitioners aspire. If those cases pay inadequately, then that will be another blow to the future of the junior Criminal Bar, which it is just not able to sustain. 
• For many senior juniors, particularly women, a small number of these cases make their practices viable. Without them, yet another blow may be struck against improving diversity among the most senior practitioners at the Criminal Bar. 

Such concerns cannot be ignored. In particular: 

• All cases must be fairly remunerated within the scheme. Where fair remuneration is now absent, increases to reflect the work required cannot be delayed. 
• To ensure that this remains the case over time, fees must be index-linked, so that they are not eroded by inflation. 
• The likely impacts of the new scheme on the future of the Criminal Bar must be assessed sooner, and more broadly, than the MoJ currently intend. 

We would also urge the MoJ to reconsider other missed opportunities to support a healthy future for criminal defence advocacy, such as the package of proposals put forward under the Lord Chancellorship of Michael Gove. 

A common purpose 

We understand the concerns across the Criminal Bar. We will continue to work closely with the Criminal Bar Association, under the strong and determined leadership of Angela Rafferty QC supported by Chris Henley QC, the Circuits and Heads of Chambers to support the Criminal Bar as they strive to secure a viable future. 

On our side, channels of communication remain open with the MoJ. We believe that many at the MoJ and in related agencies, at both a political and civil service level, understand and share the Bar’s concerns about the state of our justice system. We understand that funding decisions are not theirs alone, and that they are not responsible personally for where we now find ourselves. The MoJ will have our support in any arguments they may seek to make in other places to secure greater funding for justice. We urge them to make those arguments. 

We remain committed to playing our part in representing and supporting the Bar, and in promoting justice. The Bar and its leaders must stand together to defend the delivery of proper justice, and to secure the funding from Government that is so urgently required. 

It is time to frame a fresh campaign for justice across the board around which the whole Bar can unite, and to give new impetus to our lobbying of all those with influence, to secure the rightful place and priority for justice in Government. 

Andrew Walker QC, Chair of the Bar 
Richard Atkins QC, Vice Chair of the Bar