‘Efficiency’ is the new ‘Targets’ = The massacre of the Criminal Justice system
Last night I was up until 3am working on a last minute defence case statement for a case which should have reached trial in the magistrates’ court on Friday, only it didn’t as the CPS didn’t serve the witness statements until a week previously and then wrote a scathing letter to the court when the defence had the audacity to ask for the witnesses to be present at trial. At this stage I could launch an attack on the CPS, and no doubt in time I will do, but the failure of this trial to go ahead is like many others in the courts every day, evidencing the fact that the criminal justice system no longer offers justice for anyone, victims, witnesses or defendants and is imploding. All the while it is imploding we are facing a daily barrage of comments from those civil servants and ministers who have never even set foot in a police station or court room telling us that if we were more efficient with our working the criminal justice system would work just fine. I swear if I hear this one more time I am likely to become my own client.
Here is a sample day in the magistrates’ court for me, and I know I am not alone in this ‘efficient working’ daily experience.
* the CPS prosecutor not turning up until 11am (and that’s not their fault as the local offices have been closed and some now have to cross into a different county and travel an extra 25 miles to get to work), and then realising they don’t have the right file;
* a police officer attending straight after a night shift (actually let’s make it after 9 night shifts in a row, it should be 5, but there are so many officers on sick leave or driving round during the day to diary appointments which the public either don’t remember or can’t make as they have to go to work). The officer will be told that they are not needed at court and asked ‘didn’t you get the memo cancelling your attendance at court?’. Had there still been witness care units in police stations, the officer may have been notified, but with witness care units at such a depleted state, the memo will still be buried under all the other memos that the staff have not yet managed to get to.
* not to worry, the police officer will be needed anyway, as the victim and civilian witnesses have not arrived. The officer will be asked to go and see if they can collect the witnesses. Hmm… The first problem with that is that in many areas there are now not enough cars, the officer will have been dropped at court by a colleague and have to make their own way back..don’t forget the cars are needed for the diary appointments that no one keeps! But even if a car is available, the witnesses are unlikely to be at home. They work and we’re not warned to attend court today so have not booked the time off, another unjust result of complete witness care units being made redundant again. But not to worry as there is a witness care unit in the next county, they can help..oh but they are all off on stress leave due to the pressure of having to do twice the work with a quarter of staff;
* Que the court staff, can they print out the file for the prosecutor as they will have received a copy at the first hearing. Unfortunately the court doesn’t have any working photocopiers at the moment, and even if it did, there is no paper in them….at least ‘efficiency’ is benefitting the rain forests.
* all of this is immaterial in any event as my client is 15 years old, being held in secure accommodation and hasn’t arrived. The magistrates ask that the usher makes a phone call to find out about this situation, oh but sadly there are no longer any ushers in the court, ‘efficient working’ put a stop to that. Hence the court clerk has to make a call, but the court can’t sit without the court clerk so the magistrates have to leave the court and sit outside doing nothing while the calls are made. Now there is efficiency for you!
* unfortunately the Youth Offending Team can’t help us in the search for my client, their computers are down, they have been for the past week and no one seems inclined to fix them….no doubt G4S have already bought new computers in anticipation of their take over. But after half an hour we trace my client to secure accommodation 55 miles away, the closer accommodation was closed down earlier this year as it was too costly…imagine that, a centre for vulnerable youths not being able to make a profit. Anyway, we are told that my client will not be coming to court as there are no staff to bring him. They are running on a skeleton staff of two as that’s all the current funding will provide, and if one member of staff accompanies my client, that will leave the other member looking after six vulnerable youths on their own.
* the end result is that no trial will go ahead today. But not to worry, this is a legal aid case so I will get paid….oh, hang on a minute, I only get paid for advocacy now, and not attendance, and there was no advocacy. So that is nil £ for me today, but I’m not sure it would have made a difference anyway, the Legal Aid Authority doesn’t seem to be paying bills at the moment. My last communication from them was 8 weeks ago, relating to a case which was finished over a year ago and which had to go for adjudication of fees. I was notified that after a year the adjudicator had made a decision, but there weren’t enough staff at the Legal Aid Authority to type it up and approve the payment, and therefore they would get back to me when they could…. I am not holding my breath on that one!
*but at least my travel to court will be paid? Ah.. Back to the adjudication, apparently taking the train to court at the cost of £8.40 return and a journey of 45 minutes each way is not very ‘efficient’ when I could get a bus for £2.60 return, and it only takes 2 hours each way. Hence, the adjudication was to cut my travel costs by £5.80, and I am sure that the time spent by the adjudicator and the Legal Aid Authority staff ( when they finally get to my claim) will have been worth the £5.80, although let’s face it, if they spend more than 10 minutes on the adjudication they will be working at a loss.
All the while, the Government which is telling us we must be more ‘efficient’ and that those of us working in the criminal justice system are to blame, is wasting a vast amount of money on a Public Defender Service, which is not wanted or needed, but which is an example of the Lord Chancellor and the Ministry of Justice throwing their toys out of the pram when those in the criminal justice system fight back against the cuts.
I am a criminal lawyer and always will be, and I am a fighter, but this Government is consistently knocking me down and I fear that soon I and all the others who have made a career within the criminal justice system will no longer have the fight to get back up. I am in a very fortunate position, I am self employed, and I know that the solicitors who instruct me will not refuse to do so anymore on the basis of this blog. Many of my colleagues in the criminal justice system are not so lucky, whistleblowing policies seem to be a waste of paper. Those in the police, CPS and Court Service who are speaking out are finding themselves disciplined or sidelined, living in fear that if they speak out they may no longer be able to afford their rent or their mortgage. The bosses who are supposed to protect them are so ‘efficiency’ target driven that the implied term of trust and confidence only seems to exist in the employee/employer relationship and not the other way round.
I’m not looking for sympathy, just that those of us in the criminal justice system continue our fight, and support each other, as that is the only way we will prevent the implosion of the criminal justice system and ensure at least a certain amount of justice for those who are unfortunate enough to become part of it.
“FA Cup Final to be bubble Policed – and there is nothing fans can do about it”
“Governors decide a local primary school will be closed down due to disagreements with the Head teacher – and the parents have no power to challenge it”
“Your nearest hospital will now be 25 miles away – sources say patients’ views on the matter were not even considered”
“Town’s fire station to be closed as the Local Authority wants to sell the land to housing developers, but doesn’t plan a replacement fire station – Local Authority say they are doing it ‘because they can‘”
Don’t panic, these are fictitious headlines – at the moment. But they give an idea of the all to real prospect of the future if the Lord Chancellor’s plans to effectively remove legal aid from judicial review proceedings go ahead.
I am sure some of you are thinking ‘oh there she goes again, banging on about legal aid.” And you are right, I have been quite vocal about the Government’s renewed attack on legal aid. 7th March 2014 is a day of action for lawyers opposed to this destruction of legal aid, and this is why lawyers are still fighting for this.
Football fans have faced many restrictions on their freedom of movement, association, and speech through the restrictions placed on them by the Police and Local Councils when attending football matches. Many of these restrictions, including bubble policing, limitation of away ticket numbers, requirement to produce ID when traveling to a match, and fans being held in pubs and clubs and being prevented from attending the match being played only yards away have all been challenged by legal actions such as judicial review. In many instances, the fact that the judicial review proceedings were issued was sufficient for the Police or Local Authority to rethink its restrictions. These legal challenges have only been possible due to legal aid. Ignoring the costs of preparing the application (as many lawyers will offer this for free) the court costs are too restrictive for most fans to be able to afford to pay.
But it is not just football fans…. Challenges to a decision to close a local secondary school, cancel a bus route, close a fire station.. all the decisions which affect our daily lives are the types of judicial review applications which have been brought in the past two years. We have seen the Government and Local Authorities cutting services with abandon, so it is now more important than ever that we are able to challenge their decisions.
I anticipate that in the lead up to the 7th March 2014, the Government will start its usual spin with the media. The standard phrases of “most expensive legal aid system in the World”, “fat cat lawyers” and ‘Your tax shouldn’t be funding unemployed career criminals to get off on technicalities” will appear in some newspapers and in the Ministry of Justice press releases. I don’t intend to spend time telling you why this spin is so factually incorrect, if you want to know more, the Criminal Bar Association website has tons of articles on this misrepresentation of the facts. http://www.criminalbarassociation.wordpress.com
But what the Government spin is not telling you is that it is exactly the low to middle income tax payer who will be losing out in this decimation of legal aid, which doesn’t only affect crime. Judicial review is the means by which the Government. Local authorities and other public bodies can be held to account. The Government plans to severely restrict legal aid in judicial review cases, such that there will be no legal aid available for most cases, and in cases where legal aid could possibly be granted, it will only be granted if the claim is most likely to be successful. Lets face it, if the Police, Local Authority, Government thought that the application against them was most likely to be successful, then they should withdraw the offending rule or policy. To continue opposing the application would be a waste of tax payers money.
But it is in cases where there is no clear answer on whether the public authority or the complainant who is right, that judicial review is most important. The whole point of judicial review is to be able to challenge the actions of the state, not just those where the State is overwhelmingly and obviously wrong. Without the prospect of being challenged, the public authorities will be able to do what they want with impunity, because they know that whether they are right or not, the general public will not be able to afford to challenge them. Cynics like me are questioning whether this is the actually the Government motive as there have been some quite high profile losses for the Government in judicial review cases in the past three years. Whatever the motive, without access to legal aid for judicial review the Government, Public Authorities and Local Authorities will be able to spend tax payers money as the wish without any threat of challenge. This is certainly not a future I want see…how about you?
What you can do to help.
Sign this petition started by Joanna Lumley www.change.org/en-GB/petitions/david-cameron-uk-government-save-legal-aid-to-protect-access-to-justice-for-all
Make others aware of the issues, spread the word via social media, or in your workplace or just among family and friends.
Write a complaint to your MP or start a petition to present to your MP.
Many of us lawyers are working very hard to fight these proposed changes, but we can’t do it alone, we need your help.
To find out more about the proposed changes to judicial review and what judicial review is all about read this one page guide prepared by Irwin Mitchell Solicitors www.disabilityrightsuk.org/sites/default/files/pdf/judicialreview.pdf
To strike or not to strike? Why Criminal Lawyers should make up their own mind and not be swayed by others.
Having read many comments and blogs over the past few weeks regarding whether the Criminal Bar should refuse publicly funded work, effectively to strike, I have decided to weigh into the debate.
Firstly, make no mistake, I am appalled at the way the MOJ have behaved towards the legal aid consultation, and I believe that Chris Grayling has made it clear that he knows nothing about criminal practitioners, nor does he want to. His actions and comments have ranged from deceitful to childish, and in the main have been nothing to do with supporting the profession which works long hours day after day to represent those who are unfortunate enough to find themselves in the criminal courts, but instead have been everything to do with trying to win the support of the Middle England voters who have been fotunate enough to have never been involved in the criminal justice system.
However, I think Chris Grayling’s actions should be put to one side when considering whether the profession should effectively go on strike. We are professionals and should weigh up all the pros and cons of refusing work, just as we would weigh up the likely outcomes of taking a certain course of action in our criminal prosecutions or defence. I am concerned that an overbearing attitude is creeping into the profession, which if we are not careful will create a ‘either with us or against us’ scenario. Particularly for younger members of the profession who are worried about whether their future work will dry up if they do not support the ‘strike’ action, this is unhealthy. As far as the Criminal Bar is concerned we are Independent. We hold this independence out to be one of our strongest features, and yet I am hearing daily of counsel who are being told that they must strike ‘or on their head be it’. All of us run an independent practice, and therefore we should be able to make our own decision on whether to refuse work.
I will not strike. I have made this decision on the basis of my principles, I do not want to see a defendant having to represent themselves, or be represented by a lawyer who is not their lawyer of their choice, due to the fact their lawyer is on strike. I am prepared to work to rule, and only work from 9 to 6 on my legally funded cases, and then to justify to the court why a case is not prepared, but it should be down to me to make that argument to the court and not the client.
I accept that financially, the MOJ’s cuts will make it very difficult to all of us criminal practitioners to survive, and I believe that a work to rule may make the MOJ realise that in reality cases are going to take longer and so will be just as costly. Not just in payments to counsel (in cases where we do actually receive payment for the extra days a case will take) but also in the extra court time taken to deal with each case.
I have seen much written about the cuts in recent weeks, and I am concerned that the ground we made with the public with regard to the damage that the MOJ proposals could do to them, is now being lost by the constant reference to the new proposed fees in criminal legal aid. The public do not understand that most of our daily rate does not end up in our back pocket, nor that we often have to wait over a year for the payments. None the less, I fear that focussing on the money is causing us to lose ground to the MOJ on public opinion.
I also represent claimants in the employment tribunal (mainly thought the Free Representation Unit and the Bar Pro Bono Unit) and none of my clients earn as much as the daily trial rate in either the Magistrates or Crown Court. Try telling a client who has worked 40 hours a week on the minimum wage (£247.60 gross), for five years, only to be told that they are being laid off, and so are still classed as employed but can only receive the Job Seekers allowance per week, that earning over £100 per day for a trial is tough. This is not an extreme example, these are cases that I am seeing day after day, of people who are working for less than minimum wage or who are being told that their employer cannot afford to pay their salary for the month. These are the public who we should be trying to get on our side, not alienating. Talking about our fees will not help our cause, the country is under austerity measures, the NHS is at breaking point and everyday people are being made redundant or told that they need to move from their home as they have a spare room. We are not the only ones who are suffering, and we should try to connect with those who are suffering, after all for many of us they are our clients, whether criminal, employment, housing or immigration.
It is my personal opinion that a strike will alienate the public, and will just give Chris Grayling more ammunition to throw at the criminal profession. I can just see the headlines of articles in the Daily Mail and the Telegraph about how criminal defendants are having to languish in jail, awaiting trial as their greedy lawyers are striking!
Hence, for my part I will not be striking, nor will I be telling anyone else what to do, or criticising them for their decision. The criminal professions joined together like never before to fight the first MOJ consultation, it will be such a shame to see that union fragment into a blame culture. That would play right into the MOJ’s hands. We should be united in making sure that we reply to the 2nd Consultation, and in supporting each other..it is that which will make us a respected profession and also create an environment where, no matter what happens with the MOJ cuts we continue the support as much as we can.
Is £52.50 too much to ask of the tax payer to ensure a 16 year old is released from jail and able to sit her GCSEs? Why the Save UK Justice campaign is so important.
Once again I am wading into the legal aid debate. This blog is not aimed at lawyers, what I have to say in this blog is nothing new to them. But this will be new to the majority of the public who are being bombarded with misinformation by the Ministry of Justice about the legal aid bill. This is a longwinded explanation, but please bear with it. The Ministry of Justice has added a response to the Save UK Justice epetition set up by criminal lawyers. In that response it is stated that the firms given the contracts for legal aid work will have to show they have competent and capable lawyers. In my eyes, competent and capable is not enough, those of us who have been doing this work for years do it because we are committed to our clients, and I like to think that all the criminal lawyers I know are way above competent and capable – they are experienced, passionate and dedicated, they understand that with clients, the law is actually only a small part of the service.
Last week I was in the youth court representing a 16 year old youth (X) who had been charged with an offence of violence on the basis of a drive by identity carried out by a shaken and upset teenage victim. X had been remanded in custody. I arrived at court, to find X’s very distraught parents, and quite understandably so. Their child who had never been in trouble before, had been held in the police station overnight – and that in itself was enough to send mum over the edge. Her child had been locked in a cell all night, on their own, in a large police station in an area where hardened criminals are arrested daily. Worse still, X was a good student, predicted A and B grades in GCSE exams, one of which was taking place that day!
In the cells I met X. To use the phrase ‘a rabbit in headlights‘ is an understatement. Having been held in the police station all night, and then transferred in a prison van to a cell in the court, searched in the police station, and again in the court cells, denied an opportunity to speak to mum and dad, and denied the use of the phone, and then told that the case would be ‘heard when its heard’, by the time I arrived in the cells, just after 9am, so much damage had been done it took me 15 minutes just to calm X down enough to get any sense out of her. It took another 30 minutes to get all of the information I needed out of her. Anyone who has teenage children or who regularly deals with teenagers will understand that the task of drawing information from them is not a simple task, made even worse when it is accompanied by sobbing at regular intervals and the need for constant reassurance that X would not have to go to prison.
Having obtained the information I needed from X and carried out more reassurance, and requested that a female custody officer in the cells take X a drink and sit with her for a while just to keep a check on her, I headed back up to see mum and dad. I had to then start the whole reassurance again with mum who bombarded me with questions – Was X ok? Had X eaten breakfast? Had I told X that mum and dad were there for her? In the meantime, dad paced the floor, getting more and more agitated and frustrated. I set dad on the task of contacting the school and finding out what could be done about X missing the GCSE exam, and calmed mum by asking her to tell me more about X.
In between this, I had passed word to the court that I was ready to get X into court as soon as possible, and had negotiated with the Prosecutor that this was not a case where X needed to be remanded in custody, and agreed bail conditions. X’s case was called on by 11.30am and I explained to the court what I had found out about X, how I saw weaknesses in the Prosecution case, not least the fact that the victim did not get a good look at her attacker’s face, but could describe the attacker’s clothing and bag. What she had actually described was a school uniform and bag which which was worn by at least 500 girls in that area. In which case it was highly probable that the victim had picked out X on the basis of the uniform and the bag and nothing more. In addition, X’s future was in jeopardy as she had a place at college to study A Levels but would lose that if she could not sit her GCSE’s, and I was very concerned about X’s wellbeing even after one night in a cell.
X was released on bail, with the next court date set for a time that did not interfere with the rest of her GCSE exams, and was released from the court in sufficient time to get to school and sit her exam.
As X is a youth, she was entitled to legal aid for my handling of her case. My legal aid fee for that morning was £52.50 (including my £9 travel). I do not profess that I am worth more than £52.50, nor do I think I did anything more than any of my criminal legal aid colleagues would have done, but I do think that to be good value and not a waste of tax payer’s money, ensuring that X was able to get to her GCSE exam and preventing a young life being damaged (possibly beyond repair) both educationally and emotionally.
Hence, when the Ministry of Justice makes noises about ‘Fat Cat’ lawyers and the highest legal aid bill in the World, it is interesting to note that they cannot back it up with examples, yet myself and my criminal legal aid colleagues can provide thousands of examples such as these….the real people that the cuts will affect. Ask yourself, if it was your 16 year old in the cells, would you want them to be given a representative who is merely competent and capable, or alternative a dedicated, experienced criminal lawyer who cares….
X’s dad sent me a text…’can you send me the link to the petition….can’t put a value on your service…priceless 🙂 ” So here is the link… if you want to be able to choose your lawyer, and don’t want the expertise to be replaced with a representative from a large corporation who is classed as ‘competent and capable’ please sign this epetition and pass it to others… Save UK Justice epetition
It has been questioned why we are fighting so hard to get to the 100,000 signatures on this epetition. The Ministry of Justice intends to implement these cuts via secondary legislation, which means it does not have to be voted on in either the House of Commons or House of Lords. Hence the only way we can get a proper debate in Parliament on these proposed cuts is to get to 100,000 signatures. Please don’t let the Government bypass democracy and introduce these cuts without a vote.
Finally, in typical lawyer disclaimer style…some of the case details have been changed to further protect the identify of X.
If you have read this far…thank you for taking the time to read my ramblings!
Brighton and Hove Albion v Crystal Palace – Hopefully a Better Fan Policing Experience
Last Friday ahead of the CPFC v BHAFC match I blogged about the restrictions in place and how they were unworkable. If you didn’t read my blog, it is below, including a letter to the Met Police Commissioner and a statement about police powers of stop and search.
Hopefully this can be a more positive post. I have heard from Sussex Police who have asked that I pass the word around. They have no intentions of stopping fans and asking to check their tickets and ID, nor are they going to ask stewards to do the work for them. Obviously the usual rules regarding stop and search still apply, so if they think that an offence has been committed, or there is a risk of an offence or disorder, they reserve the right under PACE to stop and search, and take a person’s details. But they do not intend to engage in the draconian restrictions I refer to in my blog below.
I know some fans were treated like criminals on Friday, forced to provide their details before entering the stadium and held for so long that they missed kick off. Hopefully this will not happen at the Amex.
Wishing you all a great match experience, no matter who you support, and if you see me on the train or around the pubs on Monday night touting the #SaveUkJustice epetition, please come and say ‘Hi’ and sign the petition. Hopefully you will never need legal aid and the services of a lawyer, but you should ‘never say never’. Infact any challenge to actions, such as the Met Police behavior last Friday, will probably not be possible unless we are successful in defeating the proposed amendments to legal aid and judicial review
The pre and post match info can be found here Seagulls Pre and Post match entertainment and travel.
If you want a handy guide to stop and search laws, download the stop and search app
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I know the restrictions placed on fans traveling to the Crystal Palace v Brighton and Hove Albion match today and the reverse on Monday have caused concern among fans. I have received emails and tweets criticizing the ‘draconian’ measures, with questions such as ‘since when did ID cards come in through the back door?’ and I agree that they are draconian, and more importantly I believe they are unworkable. They don’t take into account the lack of powers a steward has to stop a fan, it is certainly not clear why there could be the need to stop and check fans when they are traveling home, and I think they open both the police and the Clubs up to legal challenge. See my letter to the Met Police Commissioner here Signed Letter To Commissioner Bernard Hogan Howe on police restrictions on fans at the CPFC v BHAFC matches 10th May and 13th May 2013 The FSF have also produced a handy guide Statement-from-Lochlinn-Parker
However, the reality is that if the police do stop you and ask for your ID, if you want to go into the match you will probably have to hand it over. You can guarantee that there will be a large police presence at both matches and the first sign of discontent among fans will bring a risk that dispersal notices will be considered. The dispersal notice means an instant ban from the match, and probable arrest if you refuse to leave the area. We can bring the legal challenges afterwards, but by then it will be too late you will have missed the match, and worse..
I will keep you updated with the progress of my letter and the Freedom of Information requests on the decision making behind these restrictions, in the hope we can prevent this happening again in the future and to other fans…. but I could do with a few days off over the Summer, so please, don’t get nicked for kicking off with the police or a steward…and definitely…no smoke bombs!
alisongurden 