More Courts!

We all understood where Nightingale Hospitals came from as an emergency response to the pandemic, but courts for heavens sake? What the hell is the logic there then? Are we going to have Nightingale prisons? I can't claim credit for this as it was Rob Allen on Twitter who suggested they be named after a distinguished former Lord Chancellor - Sir Thomas More 1478-1535 hence 'More Courts'.

10 ‘Nightingale Courts’ unveiled

The Lord Chancellor has today (19 July 2020) announced locations for 10 ‘Nightingale Courts’ which have been rapidly set up to tackle the impact of coronavirus on the justice system. Middlesbrough Town Hall, the Knights’ Chamber within the grounds of Peterborough Cathedral, and the Ministry of Justice’s headquarters in London are among the venues that will soon be in use.

The 10 sites will host the so-called Nightingale Courts with ongoing work to identify more potential locations. This will start to alleviate the pressure on courts and tribunals resulting from the pandemic – ensuring that the wheels of justice keep turning.

Spanning England and Wales, they will hear civil, family and tribunals work as well as non-custodial crime cases. The move will free up room in existing courts to hear other cases, including custodial jury trials, which require cells and secure dock facilities to keep the public, victims and witnesses safe.

A court set up in East Pallant House, Chichester, is expected to begin hearing an expanded list of cases next week, with all 10 locations up and running in August. The move forms part of government plans to ensure courts recover from the coronavirus pandemic as soon as possible and to avoid any delays getting criminals behind bars.

The confirmed sites are:

Former county court at Telford, Shropshire
Hertfordshire Development Centre, Stevenage
Swansea Council Chambers, Swansea
Cloth Hall Court, Leeds
Middlesbrough Town Hall, Teesside
East Pallant House, Chichester
102 Petty France, London
Prospero House, London
Former magistrates’ court at Fleetwood, Lancashire
Knights’ Chamber and Visitor Centre, Bishop’s Palace, Peterborough Cathedral

The Lord Chancellor, Robert Buckland QC MP said:

"Our action to keep the justice system running throughout the pandemic has been globally recognised, with these Nightingale Courts being the latest step in this effort. They will help boost capacity across our courts and tribunals - reducing delays and delivering speedier justice for victims. But we won’t stop there. Together with the judiciary, courts staff and legal sector, I am determined that we must pursue every available option to ensure our courts recover as quickly as possible."

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All Buckland's rhetoric is cobblers of course, with Covid proving useful cover for drastic cost-cutting and incompetence at the MoJ and confirmed by justice insiders on Twitter such as Catherine Baksi, Barrister 'now award-winning freelance hack, writing for The Brief TimesLaw, Guardian and Telegraph' :-

Since 2010 the Ministry of Justice has closed 295 courts - almost a third of all courts in England & Wales, including over half of all magistrates' courts and eight crown courts - most recently the large and modern facility at Blackfriars Crown Court. At the end of 2019, there was a backlog of 37,500 crown court cases, due to Ministry of Justice spending cuts, that meant courtrooms were left idle, while the number of cases waiting to be dealt with increased. Since lockdown the backlog has risen to over 41,000.

In 2019 only 12,000 crown court trials were completed. The backlog of crown court trials is now 26,500 -- more than twice the number of trials heard in the whole of last year. This means victims & defendants are left in legal limbo for up to three years before trials take place. In the magistrates courts, which hears 95% of criminal cases, the backlog of cases is over 500,000.

The lord chancellor, Robert Buckland, said: "Our action to keep the justice system running throughout the pandemic has been globally recognised, with these Nightingale Courts being the latest step in this effort." It is possible that he is living in an alternative reality. Last week a report from the Bar Council said the Ministry of Justice spends 39 per person per day on the justice system -- less than the price of a pint of milk.

Caroline Goodwin QC, chair of the The Criminal Bar says the 10 Nightingale court are "a start, but just that" and urges the MoJ to open more courts and fund the justice system properly. Caroline Goodwin QC, CBA chair: "Time is of the essence. Two months of delay getting these 10 [Nightingale courts] on stream just piles on the human suffering to get trials on that have been delayed for between 1 & 3 years, impacting tens of thousands of those left waiting."

Caroline Goodwin QC, The Criminal Bar chair, continues: "The government was quick to cut a court budget by 15% last year & just as quick to sell off a perfectly good & much-needed crown court at Blackfriars. Lets see the same government ... invest" and open up court buildings.

As well as Nightingale courts, the Ministry of Justice tells me other options to tackle the backlog, incl crown court trials heard by a judge & 2 lay magistrates, reduced jury numbers & extending court sitting times during the week & at weekends, are still on the table.

Catherine Baksi

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J Mellor court reporter on Twitter:-

London’s 10 Crown Courts have about 100 court rooms (approximate figures based on quick tally of lists) 18 trials are starting or ongoing on Monday 36 court rooms are probably overflow/public gallery/jury retirement rooms 46 court rooms are left ‘not sitting’ Breakdown:

Old Bailey: 4 trials (4 not sitting) 

Southwark: 2 trials (5 not sitting) 

Inner London: 1 trial (4 not sitting) 

Woolwich: 2 trials (3 not sitting) 

Croydon: 2 Trials (2 not sitting) 

Kingston: 0 Trials (7 not sitting) 

Isleworth: 2 Trials (3 not sitting)
Snaresbrook: 1 Trial (9 not sitting) 

Harrow: 1 Trial (6 not sitting) 

Wood Green: 1 Trial (3 not sitting)

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Judge Itis on Twitter:-

We are now struggling to cover lists with Deputy DJs as they to begin to pick up their own practices post lockdown. A number of lists cancelled this week. So these new civil and family Nightingale Courts are going to be populated by?

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Update 

From Twitter - John McNamara - Crime & Proceeds of Crime Barrister at 5SAHLaw Assistant Sec The Criminal Bar Association 

***43% of the criminal court rooms in purpose built courts are not being used today*** 

Empty court rooms/no declared purpose: 196 Total court rooms on list: 458 42.7% of court rooms are not sitting/not listed. But the MoJ say their handling of this crisis is world leading. This is important - the government have add 3 "dedicated" nightingale courts. They say we must work longer hours - but they are not even "sweating" the existing estate yet. There are NO recorders sitting. Part-time judges who would happily sit now to clear a backlog. We are 4 months into this, and there is still no apparent urgency to provide a solution. The longer the situation continues the more Government will state EOH [extended operating hours?] is a necessity to remove a purposefully created backlog & and now the delay in providing judges to speed up the courts.

Methodology: Court counted as empty/not sitting if stated so on listing, or if court room fails to appear on list. Where courtroom stated as being used for trial e.g. jury room/public gallery not counted empty. Where HHJ doing box work or reading court room not counted as empty. ? means unsure that the full number of courts rooms are listed. Help would be appreciated! The number of court rooms is based on the listings, if the numbers are incorrect it is because the courts do not appear on the lists.

It's been a very very long train ride this morning. Court's below as listed = no. empty/total no. court rooms: 

Aylesbury -2/3 

Basildon – 1/5 

Birmingham – 8/17 

Bolton- ? 

Bournemouth – 0/5  

Bradford – 5/8 

Bristol -5/8 

Burnley – closed 

Cambridge – 1/3 

Canterbury – 3/7
Cardiff – 3/9 

Carlise – 0/3 

CCC – 13/22 

Chelmsford – 0/6 

Chester – 1/4 

Croydon – 2/7 

Derby – 1/4 

Durham – 0/1 

Exeter – 0/2 

Gloucester – 2/3 

Great Grimsby – 5/8 

Guildford – 2/5 

Harrow – 4/8 

IL – 6/10 

Ipswich – 1/4 

Isleworth – 4/13 

Kingston (Hull) – 1/4
Kingston (London) – 7/11 

Leeds – 6/13 

Leicester - 8/12 

Lewes – 3/5 

(Hove – 1/3) 

Lincoln – 2/4 

Liverpool - ? 

Luton – 2/7 

Maidstone – 5/9 

Manchester – 9/15 

Manchester Minshull – 5/10 

Merthyr – 1/3 

Mold - ? 

Newcastle – 4/11 

IOW – 1/2 

Northampton – 1/5 

Norwich – 0/4
Nottingham – 4/10 

Oxford – 6/9 

Plymouth – 2/3 

Portsmouth – 4/7 

Preston – 5/11 

Reading 2/9 

Salisbury – 1/2 

Sheffield – 2/10 

Shrewsbury – 1/2 

Snaresbrook – 10/21 

Southampton – 2/4 

Southwark – 7/15 

St Albans – 4/8 

Stafford - 0/2 (?) 

Stoke on Trent – 0/2 (?)
Swansea – 2/4 

Swindon – 0/2 (?) 

Taunton – 1/2 

Teeside – 2/5 

Truro – 0/1 (? Mixed use court centre) 

Warwick – 1/4 

Winchester – 3/9 

Wolverhampton – 4/7 

Wood Green – 5/10 

Woolwich – 4/9 

Worcester – 0/3 

York – 0/2

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.

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.'

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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

A Broken System

Britain once had a legal system that was admired worldwide, but this article in the Guardian over the weekend paints a rather different picture and confirms what many of us are seeing daily:-

Barrister blows whistle on 'broken legal system brought to its knees by cuts'

Damning book by ‘secret barrister’ tells of courts plagued by daily errors leaving them unfit for purpose

Courts that are like an A&E unit on a Saturday night, violent abusers walking free because evidence has gone missing, and lawyers doing hours of unpaid work to keep the system from collapse, are all part of a damning picture painted in a new book on the legal system by a barrister. According to the anonymous author of The Secret Barrister: Stories Of The Law And How It’s Broken, the courts in England and Wales have been brought to their knees by government cuts and left so plagued by daily errors they are no longer fit for purpose.

The identity of the writer of this fly-on-the-wall account of what goes on in courtrooms across the country is a well-guarded secret – and the subject of online curiosity among a Twitter following of 87,000. The eponymous “secret barrister” uses the accounts of real people and cases to reveal the legal system as being so broken that the innocent can find themselves behind bars while “every single day the provably guilty walk free”.

In a newspaper interview the author, a criminal barrister who works as a defence lawyer and prosecutor, warns that our legal system is approaching a tipping point and in urgent need of funding and reform. From the “wild west” of the magistrates’ court, likened to “an inner city A&E department on a Saturday night” to the upper echelons of the crown court, where the stakes are higher but the catalogue of errors equally long, the author describes a system creaking under the strain of a decade’s worth of cuts.

Amid speculation and intrigue over the identity and gender of the author, some rumours have suggested that the hugely popular blog is an algorithm run by a small section of the legal community. “Secret barrister” has said that just close family members are privy to this moonlighting. “I don’t have a profile outside my online existence. I’m a junior criminal barrister, I’m extremely ordinary. I hope the focus of the book will be on the issues raised rather than me.”

The book says: “Walk into any court in the land, speak to any lawyer, ask any judge, and you will be treated to uniform complaints of court deadlines being repeatedly missed, cases arriving under-prepared, evidence being lost, disclosures not being made, victims made to feel marginalised, and millions of pounds of public money wasted. I wanted to bring the things I saw that upset me to a wider audience. They will not come as a shock to lawyers in the system. But whenever I [spoke] to a non lawyer about them they would look at me with horror and I realised there was a disconnect between the criminal justice system and the people it is meant to serve.”

The book tells the story of a man held wrongly on remand for months on end, a violent abuser allowed to walk free because basic evidence was missing and a vulnerable witness who gave up after a trial was adjourned for a third instance due to lack of court time. Defendants, victims and ultimately society are failed on a daily basis with life-changing consequences, the author claims, by a system brought to its knees by years of public service cuts.

The barrister cites the problem of repeated court adjournments and issues around disclosures as two of the toughest challenges for the system. But, overwhelmingly, the biggest problem is lack of funding across the board, the writer says. “The system is at breaking point and now running exclusively on the goodwill of the barristers and solicitors that work unpaid, after hours, through lunch, through nights, through weekends, to plug the problems in the system. Perhaps we need to say if we, the court staff and the CPS staff weren’t going the extra mile, if judges weren’t above and beyond, then everything will collapse.”

There is also a warning that, with changes on the horizon concerning the way criminal barristers are paid, there may come a tipping point soon. “There is a lot of disquiet because reforms the government insist are cost neutral, upon inspection don’t appear to be. They will continue to push people out of the profession.” However, for the moment, the secret barrister will not be among those departing. “People do not go into criminal justice for an easy life or because they want to earn a fortune but because they want to provide a public service and see justice done.”

But there is one vital half of the job that remains undervalued and misunderstood. “It’s curious, the question that comes up without fail, when I’m asked what I do for a day job – how can you defend somebody you know is guilty? But I’ve never once been asked by anyone – how can you prosecute someone you think is innocent?” People in Britain tended to lean towards the presumption of guilt rather than innocence, the barrister suggested. “The same cognitive bias that a lot of us share and is not helped by the way the tabloids treat criminal justice, which is – there is no smoke without fire.”

There was a tendency, too, to overlook the word “accused” despite many first-time entrants to the justice system being innocent. “It doesn’t really stick with people until they’ve been through it personally or until they watch Making a Murderer on Netflix. A charge is not proof of guilt. People think it won’t happen to them, but anyone can find themselves in the criminal courts. You never know when you might need a good lawyer and if you do you’d better hope they are operating within a system that works.”

The Ministry of Justice and the Crown Prosecution Service were approached for a response but declined to comment.

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This morning Bob Neill and his Justice Committee will be continuing his TR inquiry by questioning this lot:-

Justice: Transforming Rehabilitation 10:00 am; Room 18, Palace of Westminster 

Witnesses: 

Trevor Shortt, Director of Operations (Community), Sodexo 

Ed Roberts, Finance Director, Sodexo CRC Business, Sodexo 

John Baumback, Managing Director, Seetec 

Suki Binning, Chief Executive Officer, Kent, Surrey and Sussex CRC 

Sonia Crozier, Probation and Executive Director, Probation and Women, NPS 

Kilvinder Vigurs, Probation Divisional Director London, NPS 

Lynda Marginson, Probation Divisional Director North East, NPS 

Ian Barrow, Probation Divisional Director Wales, NPS

Barristers Speak Out

It's been brought to my attention that, such is their anger with the out-going government and Lord Chancellor in particular, that the Bar Council have published their own manifesto. Of course it's at times like this that the lack of effective leadership of our own profession becomes all-too-obvious. 

The Value of Justice

The Bar Council's manifesto for Justice

A fair society depends on a strong and effective system of justice

It depends on every member of society as well as businesses and organisations, small and large, being able to turn to the Law for protection, for redress, for legal certainty and to establish their rights and freedoms. The Rule of Law underpins the fairness and solidarity of our society and our democratic way of life. 

The quality of any system of justice depends not only on the fairness of the law itself, but also on its accessibility. In 2017 the accessibility of our Law is under threat at home and abroad. This manifesto is addressed to all who take an interest in the future of our justice system. It explains, in the public interest, what we need from our next elected government, and why.

Core values of our justice system

Over time we have built a reputation for the best quality of justice available anywhere in the world. This reputation was not accidentally acquired. It has been founded on six core values: 

I. Judicial independence: by demonstrating our judges were independent, free from corruption, free from government pressure and robust in the face of attacks from the media. 

II. Legal excellence: by valuing standards of excellence in judges, in legal practitioners, and all who serve the administration of justice. 

III. Stewardship: by making proper investment in the infrastructure of justice - in court staff, buildings and administration, and by not charging excessive fees to those who want access to courts and tribunals. 

IV. Innovation: in a mixed economy: by enabling a mix between private and public funding of lawyers which ensured that everyone had access to the highest quality of representation and fostered an ethos of public service. 

V. Humanity: by respecting the rights of the poorest and most vulnerable in our society to ensure they had the means to achieve equality before the Law. 

VI. Open market for legal services: by enabling litigators all over the world to bring their cases to be tried in our courts, by avoiding protectionism and enabling our lawyers to trade freely and demonstrate their values and skills overseas.

This hard-won reputation is at risk. A reputation can be easily lost. Each of the above six values is under threat. 

I. The independence of judges has been attacked, and the defence of their independence was inadequate. The Lord Chancellor did not stand up for the judges who were attacked by the press as ‘Enemies of the People’. The Rule of Law depends on an independent judiciary. 

II. Judges and lawyers who serve the public have become less valued of their expertise and skills. For example, even before the press attack, a survey revealed that fewer than half judges (43%) felt appreciated by the public and virtually none felt valued by the media (3%) or by government (2%). Legal Aid lawyers have suffered 30% cuts over 10 years – more than any other sector providing public services. 

III. Although investment in technology is being made, the infrastructure is creaking. Court buildings are being closed and those that remain are insufficiently maintained. 31% of judges have concerns about the poor physical quality of court buildings. Court staff and court administration have suffered from a lack of investment. 64% of judges are concerned about low morale of court staff. The imposition of huge increases in court fees has deterred many from bringing their cases. For example, since fees were introduced the number of cases taken to employment tribunals has fallen by 70%. 

IV. Public funding of lawyers is diminishing in scope and value, to the detriment of those who cannot afford to pay for advice and representation. We are at risk of developing two-tier justice. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed whole areas of law from the scope of legal aid. Five years later nearly half a million people a year no longer receive legal advice on employment, housing, welfare and family issues. This does not save money for the country because unresolved legal problems create other expensive problems for society. The social costs cannot be ignored. The courts, especially the family courts, are filled with litigants in person; those who cannot afford lawyers and for whom the state now makes no provision. Many who cannot afford to be represented do not engage in the legal process at all. Disengagement of sectors of society can lead to a growing sense of injustice which of itself risks populism and extremism.

V. Changes in society have created new unmet needs for protection and redress for the most vulnerable in society. Poor decision-making affecting those with little or no knowledge or access to the Law is creating unfairness. For example, the huge increase in the detention of immigrants in detention centres is characterised by the very large proportion who are never removed from the UK and who ought never to have been placed in detention. The humanity of a society is judged by how it treats its most vulnerable. 

VI. Unless a strategic plan for the future of our legal services is devised and delivered, our exit from the EU will damage the international market value of the legal services sector, and undermine acquired rights and protections for our citizens and for our environment.

What must the next government do?

The next government must reverse this trend and restore our commitment to the six core values identified above. The fairness of our society and our international reputation for justice depend on this. Making the commitment should not depend on an upturn in the economy: it is too important to be left to that. Our economic growth and prosperity depend on the Rule of Law. 

Justice is not a commodity and should never be a luxury available only to those who can afford to pay for it. Justice is not like any other public service. Nor should the belief take hold that a system of justice must pay for itself. Justice is not a business. It underpins the principles of liberty and democracy, the Rule of Law and our human rights and fundamental freedoms. The price we pay for justice should reflect the value we place on living in a just and ordered society. We should take pride in our justice system. 

This is not to say that public expenditure on justice should be limitless. We look to the next government to invest in the administration of justice to ensure it is accessible to all and can be delivered efficiently and effectively.

To ensure that justice is available to all, the increasing diversity of our society should be reflected in the diversity of all who serve justice. Initiatives which promote under-represented groups in the professions and the judiciary should be supported by the Ministry of Justice. Working conditions for all court users should ensure that no under-represented group is deterred from participating in the administration of justice. We need to bring greater diversity to the judiciary. 

So we call on the next government to:

I. Demonstrate its commitment to uphold the independence of the judiciary and the Rule of Law. Under our constitution the Lord Chancellor has a specific duty to continue to uphold the independence of our judges. The next government must demonstrate its determination to fulfil this responsibility through a Lord Chancellor whose experience is combined with the requisite authority among ministerial colleagues to defend the independence of the judiciary and ensure that they have the support that is necessary to enable them to exercise their functions. 

II. Provide appropriate funding which recognises the value of the judiciary and those who work for the administration of justice so that standards of excellence can be achieved. Solicitors and barristers who were once prepared to undertake publicly-funded work are choosing not to do so because the rates of pay have become so low. So the quality of judges and of lawyers who work in public service in the future is at risk, and the quality of justice will suffer if nothing is done to reverse this. The standards of our justice system should not be allowed to fall. 

III. Invest in infrastructure. The previous government secured £750m worth of investment in IT on the basis that technology would make savings. Such investment is welcome and we must continue to modernise the justice system. But savings must not be made in a way which compromises the fairness of trials or at the expense of necessary human contact and the delivery of justice in open court. Existing court buildings must be maintained and modernised so that they become work places that are fit for purpose for all court users and provide suitable places for the delivery of justice to our communities.

IV. Review the consequences of LASPO and take steps urgently to remedy the loss of access to justice by the most vulnerable in society. In the last 10 years the amount spent by government on legal aid has reduced by a third from £2.5bn to £1.6bn. Yet the need for representation in housing, in immigration and in welfare cases persists. A recent survey of London MPs’ surgeries showed that 89% of the issues raised by constituents were legal. The most common areas of concern were housing, immigration and welfare benefits. The number of litigants in person in family courts is another visible sign of the problem. The loss of nearly £1bn legal aid support has effectively disenfranchised a whole sector of society from obtaining access to justice. Government should reintroduce legal aid to assist vulnerable citizens who are currently left to fend for themselves. 

V. Remedy poor decision-making by those in authority who deal with vulnerable members of society. For example, approximately half of those detained in immigration detention centres ought not to be there as is demonstrated by charities which provide legal assistance to those who cannot use lawyers. As with other sectors of society where administrative decisions impact vulnerable people, the Government should undertake a review of decision-making processes by immigration officers, in particular the time limits for making decisions, and ensure that provision is made for strong, independent oversight and review of decisions which is consistent with our commitment to the Rule of Law.

VI.In exiting the EU, develop a strategy for the legal services sector. This must recognise the value that Britain’s legal services contributes (£25bn which is 1.6% of GDP to the UK economy) and ensure that, subject to appropriate parliamentary scrutiny, measures are taken to: 

a. Enable citizens of the UK to continue to obtain judgments and enforce them across borders when the need arises as a result of an accident abroad, a commercial dispute involving a party in another country, or as a result of family cases involving custody and contact with children; and to ensure that (for example) existing benefits deriving from the EU in the workplace, consumer rights, and arrangements for the protection of the environment, can continue to be enforced in the UK. 

b. Ensure that EU co-operation in fighting cross-border crime continues. Current co-operation in investigation and detection of crime and the swift and efficient extradition of those accused of crime must continue so that today’s streamlined processes, essential to the fight against crime, are replicated. 

c. Safeguard and promote the UK’s international reputation as a global leader for the provision of legal services in the face of increasing competition from overseas, notably New York, Frankfurt, Paris and Singapore. The UK accounts for around 10% of the global market for legal services, second only to the US. It is also the largest market in Europe, accounting for around a fifth of Europe’s legal services fee revenue. Our competitors will use our exit from the EU to try to take our market share. To remain internationally competitive upon exit, we need to achieve mutual recognition and enforcement of judgments, and seek to maintain free movement of lawyers between countries. We should avoid taking protectionist measures and ensure the UK market for legal services remains open, liberalised and internationally competitive and that our jurisdiction continues to be the forum of choice for the resolution of international disputes. We should continue to promote the law of England and Wales as the choice of law between contracting parties across the world.

Our call on behalf of justice to politicians who ask for our vote 

• In 2017 our system of justice has become fragile. The six core values underpinning the justice system need to be supported and strengthened. 

• There is a growing body of evidence which is showing that the fairness of our justice system is being questioned, that justice is not serving all of our society, in particular those who are most in need. 

• Judges and practitioners who serve the public feel undervalued and demoralised. 

• To build a stronger, fairer Britain, that works for everyone, not just the privileged few, politicians of every hue must attend to the evidence of what is wrong with our system of justice and address themselves to the solutions we recommend.

The Bar Council represents 16,000 barristers in England and Wales. It promotes the Bar's high quality specialist advocacy and advisory services, fair access to justice for all, the highest standards of ethics, equality and diversity across the profession, and the development of business opportunities for barristers at home and abroad.

More on Grayling's Legacy

Following on from yesterday's powerful view from a defence solicitor, here's respected legal commentator Joshua Rozenberg writing recently in the Law Society Gazette:- 

Repairing Grayling’s damage

As the Conservatives gathered for their party conference a year ago, I commented in the Gazette on the widely held view that Chris Grayling was ‘simply the wrong person for the job’ of lord chancellor and justice secretary. That view seems to have been heeded by David Cameron.

Unlike the chancellor of the exchequer, the home secretary, the foreign secretary, the defence secretary and several other cabinet ministers, Grayling lost his high-profile department after the general election in May. Since succeeding him, Michael Gove has set about dismantling many of Grayling’s more indefensible policies.

As you might expect, the former education secretary began in July by lifting the remaining petty restrictions on prisoners reading books. Inmates can now have them sent in by family and friends and can keep more than 12 books in their cells at a time.

Also in July, the justice secretary scrapped plans to spend an estimated £85m building a huge prison in Leicestershire for 320 young offenders. Although £5.6m had already been spent on Grayling’s ‘secure college’, the Ministry of Justice said it would be a ‘mistake to press ahead with such a development when resources are so tight’.

This month, Gove announced a much-needed review of education in adult prisons. Little wonder then that the justice secretary is confident enough to speak at a meeting in November arranged by the Howard League for Penal Reform. Grayling, by contrast, tried to undermine the UK’s oldest penal reform charity last year by accusing its chief executive of supporting the Labour party.

When dismantling Grayling’s legacy, Gove ensures that discredited policies are attributed to the ‘coalition government’ or the ‘previous parliament’. That was the phrase he used to distance himself from another project that Grayling had enthusiastically promoted during his two-and-a-half years as lord chancellor. Just Solutions international (JSi) described itself as the commercial arm of the National Offender Management Service (itself an executive agency of the Ministry of Justice).

Its brochure said it specialised in providing ‘offender management products and services to overseas governments’ — such as designing new prisons. The legal blogger David Allen Green, who worked as a central government procurement lawyer from 2005 to 2007 and who has made much of the running on this story, derided JSi as ‘an exercise in amateurism and obfuscation’, which allowed MoJ officials to go round the world ‘selling their supposed expertise to foreign despotic governments’ rather than running the prison and probation services of England and Wales.

Earlier this month, Gove said he had decided that JSi should ‘cease to operate’. However, one last deal would be honoured: a project to conduct a ‘training needs analysis’ for prison service staff in Saudi Arabia. Ministers had decided that ‘withdrawing at this late stage would be detrimental to the government’s wider interests’ – quite apart from the financial penalties involved. As far as Gove was concerned, though, there would be no more commercial work for foreign governments.

On legal aid, the justice secretary still has a long way to go. But at least he got the parties talking. Answering MPs’ questions this month, he thanked ‘the leadership of the criminal solicitors’ profession and the criminal bar’. Playing down the ‘action’ they had ‘felt it necessary to take’ during the summer, he praised their ‘constructive dialogue’ with his officials.

The one policy on which Gove has not yet relented is Grayling’s criminal courts charge, under which adults convicted of offences committed after 12 April 2015 must be ordered to pay either £150 or £180 if they plead guilty at the magistrates’ court but £520 or £1,000 if they are convicted after a trial, the higher charge applying to offences that are triable ‘either-way’. In the Crown court, you pay £900 for a guilty plea or £1,200 after a trial. The charge, which disincentivises putting the prosecution to proof, is in addition to fines, compensation orders and costs.

Gove promised MPs that the charge would be reviewed. But I am told that this was no concession: he was referring to the review he is required by statute to carry out after three years. He also claimed that the ‘payment of the charge in due course should be linked to the offender’s means’.

That was an apparent reference to the court’s power to cancel a charge if a convicted person has taken all reasonable steps to pay or if collection is impracticable. But you cannot even apply for a charge to be cancelled until two years after your most recent conviction. And who pays for the paperwork?

Gove may not be too worried by reports that more than 50 magistrates have resigned over the charge. But what should concern him is that this is another ineffective Grayling legacy that is wrong in principle and costly in practice.

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Here's an article in the Independent outlining the lengths some sentencers are going to in avoiding the dreaded new tax:-

Magistrates let guilty petty criminals off without punishment to protect them from 'tax on justice'

Magistrates across England and Wales are letting guilty petty criminals off with no punishment in order to protect them from controversial new court fees, The Independent has learnt. They are increasingly resorting to a little-known sentencing option called an absolute discharge which registers guilt but hands out no punishment – effectively letting the criminal off.

Since it was introduced earlier this year, the Criminal Courts Charge has prompted a judicial revolt with around 50 magistrates resigning and several judges lambasting it from the bench. In recent weeks, The Independent has reported on growing opposition within the criminal justice system to the new levy, which some say amounts to a “tax on justice”.

The charge is payable by anyone found guilty of a crime in addition to any fines or costs. It is not means-tested or adjusted according to the seriousness of the crime. In the magistrates’ court it is fixed at £150 if someone pleads guilty, but it can rise to £1,000 if they are found guilty.

New figures suggest that more than £5m has already been billed to people under the new court charge in its first three months – and that less than £300,000 of it has been collected. Magistrates have no discretion over how much someone has to pay in court charges if they are punished for their crime. But if they grant an absolute discharge then no punishment is given and poorer defendants are protected from paying over the odds for minor offences.

Normally even minor crimes are subject to a conditional discharge, meaning that a punishment could be meted out if they reoffend within a A Berkshire magistrate gave a 51-year-old man on disability benefits an absolute discharge earlier this month after he was caught with around £5 worth of cannabis at home.

The defending solicitor, Mike Davis, had argued: “If you give him a conditional discharge he will still have to pay the £150 criminal courts charge – that’s an awful lot for a tiny amount of cannabis. If you were to give him an absolute discharge he wouldn’t have to pay it.” The presiding magistrate, Robert Lynch, agreed to the recommendation. “That’s only the second time in 10 years I’ve done that,” Mr Lynch said. A judicial source abreast of the picture across England and Wales said: “We’re seeing this a lot. Effectively this is magistrates being creative with their sentencing in order to avoid the charge. It’s always for low level harmless stuff. It’s happening around the country. We expect this to increase as the cycle of trials subject to the charge continues to kick in.”

Mr Davis, the defending solicitor in the Berkshire case, said he and solicitors across the county had started arguing for absolute discharges with increased success since the Criminal Courts Charge was introduced in April. “Generally it’s because it’s low level crime that would normally merit a conditional discharge but the defendant’s circumstances are such that they can’t pay [the court fees]. Previously I hadn’t asked for an absolute discharge in 20 years because it would have had to be a pretty exceptional case. But since the charges came in I’ve used the argument about five times to avoid disproportionate cost - and it’s worked twice.”

The new levy was introduced in April by the former Justice Secretary, Chris Grayling, to make criminals pay for the upkeep of the courts. Campaigners hope his successor, Michael Gove, will consider scrapping the measure as evidence grows that it unfairly penalises those whose crimes are very minor and motivated by poverty.

The defending solicitor, Mike Davis, had argued: “If you give him a conditional discharge he will still have to pay the £150 criminal courts charge – that’s an awful lot for a tiny amount of cannabis. If you were to give him an absolute discharge he wouldn’t have to pay it.” The presiding magistrate, Robert Lynch, agreed to the recommendation. “That’s only the second time in 10 years I’ve done that,” Mr Lynch said. A judicial source abreast of the picture across England and Wales said: “We’re seeing this a lot. Effectively this is magistrates being creative with their sentencing in order to avoid the charge. It’s always for low level harmless stuff. It’s happening around the country. We expect this to increase as the cycle of trials subject to the charge continues to kick in.”

Mr Davis, the defending solicitor in the Berkshire case, said he and solicitors across the county had started arguing for absolute discharges with increased success since the Criminal Courts Charge was introduced in April. “Generally it’s because it’s low level crime that would normally merit a conditional discharge but the defendant’s circumstances are such that they can’t pay [the court fees]. Previously I hadn’t asked for an absolute discharge in 20 years because it would have had to be a pretty exceptional case. But since the charges came in I’ve used the argument about five times to avoid disproportionate cost - and it’s worked twice.”

The new levy was introduced in April by the former Justice Secretary, Chris Grayling, to make criminals pay for the upkeep of the courts. Campaigners hope his successor, Michael Gove, will consider scrapping the measure as evidence grows that it unfairly penalises those whose crimes are very minor and motivated by poverty.

The Magistrates Association is calling for an urgent review of the policy, saying the poorest defendants are being encouraged to plead guilty to crimes they did not commit out of fear they will face crippling costs if they later lose their case.

The Government is also accused of burying the latest figures on the scale of courts charges handed out - and how few have actually been collected. When it published a list of all fees imposed and collected by courts it failed to separate out the Criminal Courts Charge. Instead it was lumped in with obscure court fees in the ‘other’ category.

Ms Crook of the Howard League said she was disappointed to see no individual figures on the charge. In the first quarter of this year just £744,000 was collated in the ‘other’ category. The only new addition to this category in April was the Criminal Courts Charge, causing the total charged in the next quarter to jump to £6.4m. Yet the amount of collected within one month was just £326,000.

A Ministry of Justice spokesman said: “It is right that convicted adult offenders who use our criminal courts should pay towards the cost of running them. The legislation and guidelines to magistrates and judges make it crystal clear that the charge is separate to the sentence and should not be considered as a mitigating factor. “It was not possible to provide separate figures on the charge which met the data quality standards required in time for this publication. More detailed figures will be published in due course.”

Legal definition: Absolute discharge

Although the “absolute discharge” has always been an option for magistrates it was previously only used in very rare exceptional circumstances. It means that the court acknowledges a person is guilty but decides to give out no punishment at all.

It is useful in avoiding the Criminal Courts Charge as although the defendant still gets a criminal record, they are not subject to any fees, or other penalties. Previously magistrates preferred to give a “conditional discharge” to those convicted of petty wrongdoing, which means they will face punishment if they re-offend within a set period.

Judicial anger at the Criminal Courts Charge

A Leicester judge became the latest judicial figure to speak out against the Criminal Courts Charge this week, saying he does not think it has “any merit”. Recorder Timothy Raggatt QC made the comments in Leicester Crown Court when jailing an unemployed man for 10 weeks for possessing a knife.

Having been told defendant Moz Johnson did “not have any money,” Mr Raggatt said he did not want to impose the mandatory £900 criminal courts charge. “I will make the order only because it’s down to statute and not because I think it has any merit,” he said. “Those who impose these things may have the responsibility of collecting it and whether or not they can achieve anything is a moot point. I wonder how much that will cost the country in terms of administration?”

He is not the first judge to speak out about the charge. Judge Christopher Harvey Clark, QC, lambasted it while sentencing in Truro Crown Court last month. He said: “The charge has no bearing on your ability to pay. It is totally inappropriate for people of no means to have to pay this charge. It happens to be Government policy but as an independent judge I regard it as extremely unfair and, although I have to impose it, I do so with immense reluctance.”