December 2

What’s it all about?

This week the Ministry of Justice announced further cuts to Legal Aid. It has not significantly amended its original proposals to the number of duty solicitor contracts to be awarded (up from 525 to 527, meaning two thirds of criminal duty solicitor firms will be unable to continue in business).

It still intends to implement further cuts of 8.5% to solicitors’ fees. The Ministry’s original decision on these topics was judicially reviewed. (The Ministry’s approach might be illustrated by the fact that it tried to hide two of the reports it commissioned, which said that the cuts and changes make the sector unviable. The High Court found that the Ministry had acted illegally in doing so. The Ministry of Justice called this finding “a technicality”).

Recently the Ministry of Justice also announced the end of police cautions: alternative methods of case disposal are to be preferred, including attaching requirements to orders the police impose (even if they have no forensic controls).

Amongst all this news is the confirmation that the police are succumbing to the pressure they are under to reduce crime figures. Which they do by “no-criming” offences. This means crimes are not
reported and do not go through the courts.

There has also been an announcement, barely noticed, that the Offences Against the Person Act 1861 is to be reviewed. It is after all very old. It governs ABH, GBH and such offences, ones with which the public as well as lawyers are well familiar. One of the criticisms of the current Act is that too many minor offences of violence are dealt with in the (relatively expensive) Crown Court.

All of which could be read as necessary reform of the criminal legal aid sector, a government reducing crime, and positive changes to old laws.

In reality all of the above changes are about cost. Reducing representation, reducing cases going to court, and reducing cases going to the Crown court (where juries sit and where you or I might want to be tried if we were to be accused of a crime, that is according to the evidence, by our peers). Our system states there should be fairness for all before the law, however poor the background of the person or uneducated they may be. But it is no good pretending we have a Rolls Royce criminal justice system when it is in fact a clapped-out Reliant Robin. And saying again and again it is a Rolls Royce doesn’t make it so.

In 2012 the cost of our criminal justice system was in fact equal to spending in other EU countries. So say the National Audit Office. Since then there have been enormous cuts. The Ministry of Justice has already met the savings it sought to make by 2018. It is now making more cuts. It is likely that those who work in the system will find that the cuts have gone too far. Eventually the reality will hit so many people it will hit the headlines again – when too many victims have crimes “no-crimed”, too many witnesses have to attend court several times due to double and triple listing of cases in the same courts, when too many defendants have been wrongly convicted, too many criminals wrongly acquitted, or perhaps most significant of all when too many of the wealthy have a brush with the criminal courts and are acquitted (due to their highly paid legal teams) but then still have to pay the bill – because in this country even acquitted defendants have to pay their private legal fees (courtesy of the Legal Aid and Sentencing Punishment of Offenders Act 2012).

With many legal aid providers driven out of business and only a wealthy few remaining who can afford private legal fees, the criminal justice system will become increasingly unbalanced, against the poorest and the most vulnerable in society. It is said that crime only matters to people when it affects them. Witness, juror, defendant, victim and the families that know them is nonetheless a large group: it could be you. Just hope rather than expect the system to work for you when you are affected by it: Reliant Robins are not renowned for their reliability after all.

It was said of Rufus Choate, a famous American trial attorney, that he always seemed to get the best cases. Increasingly those with the most resources will find they have better outcomes at court. Hardly fairness for all. Hardly fair at all. Yet one of the first casualties for people who become involved in the criminal justice system is their detached objectivity – strangely I have yet to be asked by a client to do my job worse so it is fairer to the other side, however bad they may be. But then you get what you pay for.

May 3

Mediation: unlocking deadlock

Mediators have varied backgrounds. Some are teachers, some psychologists, some lawyers. All must undergo specialist training before accreditation, showing a particular level of knowledge as well as expertise. Yet the key to success can stem from the personal skills used both before and during mediations, albeit ones honed by professional experience in other areas.
Scepticism about mediation can focus on the polarisation of parties’ views and the apparent prospects of success. Disputes that have gone on for some time frequently become bitter, with people’s personalities seeming to provide insurmountable obstacles to resolution; perspective on a disagreement sometimes being the first casualty of involvement with outside agencies, such as solicitors and courts, local authorities and parents.
In commercial disputes the disagreements tend to have histories in happier times; SEN mediations sometimes reflecting the anger and despair of parents felt let down by the apparent level of care others provide for their child: frustration at the inability of one party to understand the other’s position is a common theme of those that come to a mediation table.
Overcoming these problems is crucial to resolving apparently intractable disputes. Perceptions of mediations can be skewed by the reluctance and even inability of the parties to see beyond their own positions and the initial stance taken by the other side. But these can be overcome by mediators using their personal and professional skills – by mediating.
So when a party explains his wife is a godparent to his ex-business partner’s child, but that he would rather die than give him any money, neither a demand for a settlement figure nor an early lunch are likely to help. In this case, I knew it was serious when even the barrister advising the individual concerned went quiet. Yet allowing the outburst meant the party felt he was being listened to, before he went on to tell his story, and lastly, led to his own acknowledgement that emotions might actually hinder the chances of ending of the bitter dispute.
Or when a head teacher has inadvertently terrified the mother of a child with special needs, explaining to him in robust terms it is time for someone else to speak can empower the parent, who, through her tears explained how she had become scared of speaking up because of minor arguments that had festered and grown out of all proportion to the real problem.
Or when the egos in a room leave space scarce enough to breathe, patiently allowing the parties present to explain their own value can allow the commercial realities to come to the fore, once pent-up emotions have been aired and, sometimes, self-importance set aside.
This all means mediators may have to stay still to avoid any (physical) fighting, stay calm to avoid any (more) crying, and stay patient whilst strong characters explain the centrality of their role (again). But it all helps trust to build, the true reasons for disputes and obstacles to agreement to be identified, and step by step resolutions emerge from what appeared intractable disputes, as they did in all of the above mediations. Or to put it another way – slowly, slowly, catchy monkey.

January 18

Lies, damned lies, and (the Minstry of Justice’s) statistics

The day of action on the 6th January 2014 was the first of its kind in 600 years. Barristers stopped working for half of one day in protest at further cuts to their rates of pay. No coincidence that the Government published an ad hoc statistical release about payments to barristers on the 2nd of January 2014.

That release can be found here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/269061/laa-barrister-spend.pdf

The notes on page 5 show the published figures include VAT and all expenses.

Yet Saresh Vara, the Minister for Justice, has touted the figure of £84,000 as the average income for a barrister. This figure includes VAT (20% paid pack to the Treasury) and expenses (roughly 30% of what is left – these expenses include not just travel and professional fees, but payments to clerks who manage a barrister’s administration). Self-employed barristers are paid no pension, maternity or paternity pay. There is no holiday or sick pay. So in reality the £84,000 figure is nearer a salary of £49,000, excluding any pension or employment rights. But even this figure is cherry-picked as it also excludes many of the lowest earners from the Ministry of Justice’s own figures, on the questionable basis they do not work in legal aid full time. The highest figures paid to a very few individuals, usually representing work done over several years (because larger cases can take years to conclude from the first court appearance to sentence and because payments are frequently delayed many months) are of course included.

In contrast the Criminal Bar Association has calculated that the average gross income (i.e. equivalent salary) for a criminal barrister is £27,000 per annum, based on the Ministry of Justice figures. This after years of expensive training to be a key part of the justice system, helping ensure the right people go to prison for the right amount of time.

Put another way, the figure of £84,000 is neither a true average nor representative of true income. It is wholly misleading. On this basis of inclusion of allowances and pension rights, Saresh Vara MP is paid £174,000 per annum (in contrast to the £66,396 published salary for MPs) – not a figure the politicians quote.

These are straightened times and we all accept cuts to public services have to take place, but payments to criminal barristers have not been increased for inflation since 1985 and there are currently cuts in the region of 30% already taking effect: the criminal legal aid budget (the 14th most expensive of 20 European countries) is falling fast. Legal fees in commercial contexts may have risen sharply, but this is not the same at all as rates of pay in the legal aid sector.

Whichever way the figures are considered, the profession is clear the further cuts of between 17 and 30% proposed by the government go too far and will be resisted – it is perhaps difficult to imagine, doctors, teachers or tube drivers accepting a pay cut at all, let alone a 17% one after all. Hopefully the criminal justice system will one day be adequately funded for us all: for the sake of victims, witnesses, defendants, and yes, those that work within it too – otherwise, like America, we will live in a country where court outcomes for the rich are increasingly better than those for the poor.

UPDATE -19th March 2014

The UK Statistics Authority, an independent body, has since criticised the Ministry of Justice’s use of the figures, as can be seen in the report attached to the link below. It just goes to show what seems to be the deliberate misuse of information presented by the government for what looks increasingly like ideologically and not economically-driven cuts to the criminal justice system:

https://www.lawgazette.co.uk/practice/ministry-ticked-off-over-barrister-earnings-claim/5040420.article

January 3

A successful start to the year…

JT had never been in trouble with the police before, but he tested positive for alcohol at a roadside breath test. He was arrested and taken to the local police station. As the reading was a low one (42 in breath with the legal limit being 35), he was statutorily entitled to have his blood tested too. This tends to provide a more accurate result, but it was late and the officer conducting the test suggested it would be quicker and easier not to do the blood test. JT followed the officer’s steer and declined the blood test option. This was crucial as the breath test result was only marginal and a blood test may have indicated a lower reading, which could have precluded prosecution.

Because of the officer’s unfair intervention, however well-intentioned it may have been, JT lost an important right. In those circumstances the breath test procedure should have been excluded as evidence, or the prosecution discontinued because the procedure was or may have been unfair. At the trial in the Magistrates’ Court the video of the procedure was played and the arguments presented, but the Magistrates chose not to accept the clear legal arguments in favour of JT. He faced an immediate one year driving ban, but defendants in the Magistrates’ Court can appeal to the Crown Court against both sentence and conviction as of right. On advice JT did so. His appeal was allowed, with the Crown Court judge making clear his view that the prosecution should never have continued after the defence legal arguments were raised (several months earlier).

The ban imposed by the Magistrates was also set aside pending his appeal so JT was able to drive throughout the proceedings, which took more than a year to conclude from the time of his arrest. The case not only vindicates the original advice to challenge the prosecution, but shows that with a little patience defendants can achieve the desired result, and, as in this case, get awarded their costs too.