The Justice and Security bill introduces “closed material procedures” to prevent sensitive intelligence being revealed in civil courts. Comprehensively and bitterly opposed, the government quickly made two concessions, exempting inquests and conceding that secrecy would have to be signed off by a judge rather than a minister. The proposals to expand secret courts suffered a series of hefty defeats in the House of Lords Royal, reversed in the Commons, and Royal assent finally came after months of bitter political fighting, with much talk of the loss of habeas corpus.

The Crime and Courts bill set up the National Crime Agency, which will be fully operational from this October. It also reforms judicial appointments and allows magistrates sitting on their own to deal speedily with low level cases. TV cameras will be allowed to broadcast limited footage from courts, initially in the Court of Appeal and then extended to the Crown Court. Also included is reform of the extradition law, power to make drug-driving illegal and clarification of the law on self-defence.

It came politicised when a cross-party political deal was struck over Leveson press reforms. The Crime and Courts bill was randomly chosen as the legislative vehicle to pave the way for a new body to regulate the press, probably because it was in an advanced stage of progress through the House.

The Communications Data bill. The home secretary’s proposals to allow GCHQ to conduct real-time surveillance of a person’s communications and their web usage would give the intelligence services and police powers to insist that internet and phone companies hand over our data without our knowledge. These proposals proved most controversial within the coalition. They were widely criticised, not least by the House of Lords Constitution Committee. So much so that that they were moved from the fast tracked Crime and Courts bill into a stand alone bill.

Widely criticised as a snooper’s charter, Nick Clegg insisted it be put through a special scrutiny committee of both peers and MPs. The scrutiny committee, chaired by Lord Blencathra, a former Conservative minister, savaged the home secretary’s bill and demanded sweeping safeguards before it could go ahead. The home secretary did a substantial rewrite of the bill, but Clegg again rejected it, saying it was still not workable or proportionate to the problem. His intervention blocked the bill from appearing in this year’s Queen’s speech.

The Defamation Bill takes aim at trolls and, in a major reform of the libel laws, places a duty on internet service providers to try to identify internet trolls without victims needing to resort to costly legal action. Websites will also be given greater protection from being sued if they help to identify those posting defamatory messages. It will also put an end to cases of so-called libel tourism.

Other key reforms include a serious harm threshold aimed at making it harder for trivial and vexatious claims to reach court, a public interest defence of ‘reasonable belief,’ and a single publication rule, preventing libel actions being triggered each time an article is republished.

The event was the latest in the Society’s roadshow programme, sponsored by iLaw, to meet with practitioners to discuss current issues and to canvass views. After opening remarks from Richard Atkinson, Tim Hill gave a presentation on digital working, which will be a necessary prerequisite for any PCT contracts.

Then Mark Stubbs spoke on PCT, seeking advice on how to respond to the MoJ’s “outrageous, appalling proposals” in the current consultation exercise. He said the Society’s position was that nobody could make the proposed system work and that the time frame was unachievable. The proposal on client choice was potentially illegal and the proposals should not progress. The Society is building a consensus, with the Bar being most supportive. But he accepted that the present system was “not great”, and that savings had to be made.

The first question from the floor was “why are you waving the white flag?” The proposals should be “opposed in every possible way.” There were calls to withdraw labour and “bring the system to its knees – the government couldn’t bring in the army or the police.” Solicitors had been a soft touch in the past. The Society’s attitude should be to “go the whole way with utmost determination,” not “we surrender, what do you want.” “We’ve already had a massive pay cut.” The Society seems to have failed to recognise the very real struggles and “should stick up for its members.” “It is not for us to do the Government’s dirty work for them.” The Society should conduct a national ballot on strike action.

Mark Stubbs said that the Society was not conceding that cuts should be made and warned of the dangers of strike action. Breach of competition actions could result in very hefty fines. The response from the floor was that the Bar had stood up to the government – their action continues – and they have escaped PCT despite Grayling’s crude threats at a recent meeting. Tough responses on behalf of CPS staff had been successful in the past. The importance of first class PR was stressed.

The general opinion was that nobody could make the proposed system work, not even Eddie Stobart. There was a belief that savings of £220m had been made already, and the call was for a freedom of information enquiry to establish the latest figures.

Not everybody spoke but it was significant that no speaker contested the need for militant action. Mark Stubbs promised to take back all the points raised for urgent consideration. But the last word from the floor was that they were “angry, disappointed – and frightened.”

Despite the fact we all believed this was protected in LASPO, it seems the minister allowed himself enough wriggle room and soon it will be like A&E, you simply get the first doctor to see you and no choice in the matter.

S.27 of LASPO says:

“(4) An individual who qualifies under this Part for representation for the purposes of criminal proceedings by virtue of a determination under section 16 may select any representative or representatives willing to act for the individual, subject to regulations under subsection (6).

“(3) The Lord Chancellor’s duty under section 1(1) does not include a duty to secure that, where services are made available to an individual under this Part, they are made available by a person selected by the individual, subject to subsections (4) to (10).”

The Lord Chancellor and justice secretary, Chris Grayling, has made clear his views on client choice in chapter 4 of his consultation paper. “An approach that removed client choice entirely would…deliver the greatest level of certainty,” he says.

This is because: “If client choice were retained as now as a part of this model – both at the outset or allowing clients to switch providers at different stages of the process – this would introduce a level of uncertainty over the case volumes a provider would be allocated.” His one concession is to accept that there may be “exceptional circumstances in which clients might be permitted to change their allocated provider (either at the point of requesting advice or during a case)”

The MoJ impact study reinforces this approach. “Giving the provider greater certainty by restricting a client’s right to choose their provider at the point of request and to transfer to a new provider will have a positive impact on providers, enabling them to retain business throughout the life of a case.”

According to the ‘Law Gazette’, Grayling told a recent meeting of the barristers’ circuit leaders that abandoning client choice was designed to help new entities, such as the bar, to enter the market place. During the meeting he clearly tried to get the barristers on side, but issued the astonishing threat that “If the bar does not co-operate I may introduce PCT in the Crown court.” I thought the official line was that PCT was the most efficient and modern method to process the criminal legal system. Now it is clearly a method of punishing those who do not fall into line.

If Grayling’s meeting was an attempt to drive a wedge between solicitors and barristers it clearly failed. After he left the meeting the circuit leaders firmly agreed that they must act in unison and with CBA, liaising with solicitors and Law Society and organising any necessary publicity and media liaison. They will meet the justice minister again before the end of the consultation period.

On Monday, MoJ issued a consultation document which sets out the government’s proposals for further reform of the legal aid system in England and Wales. The expressed aim of the proposals is to deliver savings of £220 million per year by 2018/19. At its launch, justice secretary Chris Grayling said: “We have an excellent tradition of legal aid and one of the best legal professions in the world. But we cannot close our eyes to the fact legal aid is still costing too much. I am clear we will continue to uphold everyone’s right to a fair trial but that doesn’t mean we shouldn’t look again at how the system which provides this is operated.”

This document is a 164 page hatchet job. If the full text is too much for you, at least read chapter 4. See how by mathematical sleight of hand 1600 firms can be reduced to a mere 400. Grayling is the first Lord Chancellor in modern times who is not a lawyer, and it shows.

On 5 April the Law Society issued a consultation paper inviting the profession’s views on a number of alternatives to price competitive tendering for criminal legal aid. The purpose of the consultation paper is to give Law Society members an opportunity to contribute to shaping the vision and strategy of the Society in relation to future tendering for criminal legal aid services.

Law Society president, Lucy Scott-Moncrieff, said: “The stark reality is that whatever arguments we put forward against competitive tendering, we are told savings will be required. However wrong we may feel this to be, the fact is that Government is committed to making savings and there will be less money available for criminal legal aid.

“This is why we need to seize the initiative and present our own ideas for a future vision of how criminal legal aid could work. Whatever new procurement model emerges from this process, there will be winners and losers. The Law Society is committed to trying to find a solution which will result in the fewest number of losers possible.”

Precisely because the future looks grim it is vitally important that everyone makes a contribution to these consultations. The MoJ paper ‘Transforming legal aid: delivering a more credible and efficient system’ is at: http://www.justice.gov.uk/downloads/consultations/transforming-legal-aid.pdf and the consultation closes on 4 June.

The Law Society paper ‘Procuring criminal defence services: is there a better way?’ is at: http://www.lawsociety.org.uk/news/stories/consultation-procuring-criminal-defence-services/ and the consultation closes on 10 May.

Re: Transforming Legal Aid

I read your opening ministerial statement in this lengthy document and had a moment of early confusion. You said:

“Unfortunately, over the past decade, the system has lost much of its credibility with the public.”

And I assumed you had stopped to talk about the banking system. Propped up with £123.93bn of the tax payers money in 2009 and currently still owing the tax payer £456.33bn?* And as a tax payer, I do feel very angry about this, alongside every other tax payer in this country.

But of course not, you were actually talking about a new way of promoting a “fair, open justice system” whilst saving £220m per year. As you said this with a straight face, I would like us to stand back together for a moment and look at those figures:

£456.33bn vs £220m – do you notice a pimple sized problem here in the grand scheme of things?

The amount the government is trying to save by radical reform of the criminal legal aid system is about the size of the standard bankers bonus pot these days. That pays for a lifestyle that is beyond the means of any of us who have devoted our working lives to the legal aid system – and that includes the 6 barristers that you, Mr Grayling, have taken a particular dislike to in para 5.34 of your lengthy consultation paper. And I am so incredibly angry about just these facts that it is difficult to know where to start on the rest of it. But here is some early feedback for your consultation:

1. An obvious first point: the data in Appendix D fails to show anyone the actual cost of these cases and is therefore fundamentally flawed as a basis for calculating fees. If Appendix D was a witness, its credibility would be taken apart very quickly and effectively.
2. The maths of your basic assumptions is really suspect. You require firms to fund a 250% expansion with proposed fee cuts of at least 17.5% and no guaranteed level of work under each contract. Would even a sub-prime mortgage banker take those odds?
3. The impact assessment on both providers and clients of BVT again ignores the dodgy maths. 400 contracts in 42 areas means that as few as 38 firms could end up with contracts if a few large organisations and joint ventures bid for multiple areas. That means no choice for clients and genuine ethical difficulties in conflict situations. It also means 1,562 criminal law practices potentially closing, making a lot of people unemployed, together with ancillary businesses that sit around those firms. And you have the temerity to suggest that this is somehow of a piece with the governments SME agenda.

But my most fundamental point is aimed at the disingenuousness of trying to persuade us, tax payers and supporters of legal aid and principles behind it, that this all adds up to a fair system of justice. It doesn’t. I have spent long enough on the front line of the criminal justice system (unlike you or the people who put this damn fool scheme together) and I know that this plan represents game over for justice in the criminal courts.

Christina Grzasko

*Source: http://www.guardian.co.uk/news/datablog/2011/nov/12/bank-bailouts-uk-credit-crunch

The Justice Secretary’s recent announcement bringing forward the implementation of Best Value Tendering is not welcomed in quite the same light. “Tendering for contracts is an absolute nightmare for everyone”, he says, and this will inevitably result “in the lowest possible price for the service.” He quotes on speculation likening Eddie Stobbart Law operating a Crime ‘Tesco Law’ service and its worrying implications for smaller practices. He also recognises the trend emerging of ‘safety in numbers’ to fight against the emergence of a potential Eddie Stobbart Law firm.

“One has to wonder what incentive there will be to promote justice and quality as opposed to price and profit”, Carl asks.
But he also accepts that digital working will definitely help to cut costs. “If you can have typists that work from home, if solicitors don’t need their travel expenses paying because they can go to a court closer to their home and access their files, dictation and email via iPad then that will hopefully save us substantial amounts.”

The importance of tablet devices in day to day criminal proceedings is empathised more. Carl states he is using his iPad in his current trial to access digital case files via his remote access case management system. All of his papers are scanned and emailed over to his iPad. He rarely drags around big volumes of books and case papers because “everything is there in a convenient bundle”, but only on the proviso “as long as you have a power source.” In 2013 he has not carried one hard copy book because their digital working allows for electronic copies to be accessed.

Visit Meldrum Solicitors – www.meldrumsolicitors.com

He was also the lucky winner of an Apple iPad Mini via the Upper Case Legal Journal relaunch competition! Carl Woolf, partner and co-founder at one of the foremost criminal practices in Hertfordshire, Meldrum Solicitors, is responsible for the running of their Crown Court Advocacy.

Carl is a highly experienced senior higher rights advocate who is currently leading junior counsel in a Conspiracy to Murder trial at the Crown Court. He obtained higher rights of audience formally in 2004 but had previously utilised his inherent rights of audience since the late 90’s. The Lord Chancellor’s Advisory Committee recently selected Carl to assist in the selection of new magistrates. His professional accolades include successfully defending a client in the world’s largest prosecution ever for eBay fraud, the first landmark prosecution for Land Banking Fraud and the first ever prosecution of illegal material posted on Newsgroups.

Early doors at CKFT solicitors in Hampstead, Carl thought he had “made a terrible mistake” by practicing law. He then found what he describes as his ‘labour of love’ having previously prosecuted on behalf of the R.S.P.C.A and for the Federation against Copyright Theft.

Carl acknowledges working in the legal sector’s most exciting area of law has its draw backs. The vast frustrations with operating within today’s criminal legal aid parameters are echoed by Carl time and again. He states that it’s not primarily just the “changing goalposts, reduction in rates and the removal of remuneration for vast areas of the law” that is systematically damaging the industry.

The pressing matter at hand came about in August 2010 with the change to a centralised billing and payment structure which has resulted in firms waiting up to 4 or 5 months and sometimes longer for payment. Carl outlines the implications of the “massive impact on cash flow” and likens this to damaging staff morale as well as business performance.

Carl also regards the public sector cuts to the Police service as a catalyst for the demise in ‘duty solicitor’ work being readily available. Meldrum Solicitors fortunately don’t rely too heavily on the duty solicitor scheme; primarily they rely on their ‘loyal own client-following’ which stems from what he describes as their excellent customer service. They benefit from a “seamless service from the police station through to the Crown Court.” Their team utilises a high ratio of solicitor advocates to duty solicitors with this longevity of client interaction strengthening customer relations throughout.

He subsequently questions whether being asked to do “more and more every day for less money” when “criminal defence lawyers being all that stands between an innocent person and losing their liberty” is ethically correct.

His summing up of this echoes the opinion of many in that “you don’t become a criminal lawyer because you want to earn lots of money.”

Read Carl Woolf’s thoughts on Digital Working

This Monday a report on the results of a survey examining the cuts to civil legal aid introduced by LASPO – carried out jointly by Warwick University’s Centre for Human Rights in Practice and social justice forum ilegal – was published. The report presents the findings of a survey conducted between 29 January 2013 and 3 March 2013 in which 674 individuals took part. The majority of respondents currently work in the not-for-profit sector, although a significant proportion work in private practice. The majority of respondents, of whom two thirds are female, gave their location as either London and the South East or the North of England.

One in three respondents identify as being at risk of redundancy as a result of the cuts. In addition, large numbers of respondents also reported greater job insecurity, longer unpaid hours and reductions in the legal services provided by their organisation as a result of the cuts. Those who have worked in the sector for over ten years are worst affected by the risk of redundancy. Next worst affected are those who have worked in the sector for between 4-7 years.

Specialist Advisors are also among the worst affected by the risk of redundancy, and expertise in the areas of law that have traditionally been referred to as ‘social welfare law’ (debt and money, employment, housing and welfare benefits) is most threatened as a result of the cuts. All this at a time when the biggest shake-up in welfare benefits affects those most in need of advice and guidance. Among advice workers most likely to be made redundant, highly-qualified women are expected to be disproportionately at risk.

Half of respondents who said their service is “very likely to close completely in 2013” were from the north. 22% who said they could close in 2013-2015 were in the Midlands and 19% of those who said they would end specialist casework were from the south-west.

The report’s author, Natalie Byrom, said: “Legal advice services are most heavily concentrated in London and the south-east of England. But our survey found that it is the rest of the UK that will be disproportionately affected by reductions in legal advice services. This survey raises grave concerns about the creation of ‘advice deserts’ and vulnerable people unable to get the advice they desperately need.” The survey reported that some centres were beginning to charge for advice to fill the funding gap left by legal aid cuts.

Participants commented on the impact of the legal aid cuts on clients located in rural areas, who would have to travel further using expensive public transport to access legal advice. Many respondents were concerned about the impact of the changes on children and vulnerable clients. Also reported were concerns that the most vulnerable may be at risk of exploitation as a result of the cuts. Respondents highlighted inadequacies in the proposed new delivery methods for advice services, particularly the shift to an emphasis on “self help” and telephone advice lines.

In the foreword to the report, Patrick Torsney and Colin Henderson, leaders of ilegal, said: “Whatever your views on the coalition government’s austerity agenda, it is now abundantly clear that equality before the law is no longer a statutory principle of our society. The likely impact on social cohesion of both welfare reform and turning the justice clock back to the pre-Beveridge 1940s will be profound.”

The full text of the report ‘The State of the Sector: The impact of cuts to civil legal aid on practitioners and their clients’ can be found at:

http://downloads.ilegal.org.uk/2013/SOSReport.pdf

The proposals to expand secret courts suffered a series of hefty defeats in the House of Lords last November. But most of these amendments were thrown out or neutralised by a single vote in a subsequent Commons committee, with the help of the Democratic Unionist party’s Ian Paisley Junior. You wonder whether or not a quid pro quo was offered for that favour.

Speaking in last week’s Lords debate, former DPP Lord Macdonald (Lib Dem) said: “It is a matter of regret for me that my party, in the face of this striking illiberality at the heart of the legislation, associated itself with the removal in the other place of safeguards previously added to the Bill by your Lordships.”

The first amendment sought to add an amendment making the use of closed materials procedures – secret courts – a last resort. In proposing, opposition justice spokesman Lord Beecham said: “Openness is…replaced by effectiveness, a very different concept. Effective, one might ask, from whose perspective? Is it that of the party, presumably the Government? Openness now counts for nothing.” The House voted 158 for and 174 against.

The second amendment was introduced by Lord Macdonald, who proposed: “…that the court must…pay heed to the deep public interest in open justice, balancing it in coming to a conclusion on whether to move into secret session.” The amendment was not moved. The second division took place over an amendment suggested by Lord Marks (Lib Dem) which concerned the “review and renewal” of the operation of closed material procedures. The House voted 65 for and 141 against.The bill will be sent to the Queen for royal assent before she opens a new session of parliament on 8 May, and secret hearings in civil courts could be introduced in weeks.

In the debate Lord Beecham said: “The consequences of closed material procedures are that claimants are both blindfolded and effectively gagged, even in cases of habeas corpus.” Earlier last month Ken Clarke told the Commons that the bill would not impact on habeas corpus claims, though subsequently he rowed back from that statement. A spokesman for the Cabinet Office is reported as saying: “Habeas corpus cases involving national security evidence are extremely rare. Under the bill, a CMP could only be used in such a case where a judge has found that their use would be in the interests of the fair and effective administration of justice.”

The type of case that concerns campaigners is the recent habeas corpus claim of Yunus Rahmatullah, one of two men detained by UK forces in Iraq in 2004. He was subsequently handed over to the US and rendered to Bagram prison in Afghanistan, where he remains without charge or trial. The habeas corpus claim in the court of appeal was successful, forcing the UK government to ask the US to return Rahmatullah, but the appeal court’s ruling was later overturned after the US refused the demand. This case illustrates how, with secret courts, the government could claim “national security” reasons, making it harder for defence lawyers to win, as they would not be able to hear or challenge the government’s evidence.

Habeas corpus, first used in Britain in 1305, is invoked to demand that a prisoner be released from unlawful detention. It is regarded as one of the fundamental safeguards of liberty. As a child in elementary school I remember being taught that this was the main reason why Great Britain was better than any other country. Once sacrosanct, without this bedrock we are now all the poorer. It is an immutable rule of government that if you leave legislation lying around someone will use it, perhaps future administrations or judges who are not as high principled as the current lot claim to be.

Debate in the Commons, expected to be bitterly fought with very close votes, became a walk in the park. The terrifying thing was the way in which Lib Dem deputy leader, Simon Hughes, led off his contribution with the words: “I rise to thank the Secretary of State for introducing this group of new clauses and amendments, and to support them. They are in the name not just of the Prime Minister, the Secretary of State, the Home Secretary and the Leader of the Opposition, but the Deputy Prime Minister.” Cross party agreement on contentious issues is extremely rare and nearly always fatal. Just think of the disastrous Dangerous Dogs Act and the Iraq war.

The hastily drafted legislation bore all the hallmarks of bleary eyed middle-of-the- night confusion, hardly the considered and thoughtful process it required. The vehicle chosen to carry this load was the Crime and Courts bill, probably just because it was in an advanced stage of progress through the House. It now goes back to the Lords next week for consideration of the amendments. This bill is about the National Crime Agency, proceedings and powers of courts and tribunals, border control, drugs and driving. Now it’s also about press regulation.

We come now to the self-interest bit. Are blog posts like Upper Case Legal Journal caught by this legislation? On Monday morning the ‘Guardian’ carried the reassuring news that “Downing Street sought to reassure small-scale web-based news providers and blogs that they would not be required to co-operate with the new regulatory system. No 10 said bloggers, tweeters, news aggregators and social networking sites such as Facebook or Twitter, as well as special interest titles, would be excluded.”

But the reassurance was short lived. On Monday night the Commons overwhelmingly agreed to add clause 29 to the Crime and Courts bill. This clause seeks to clarify the meaning of ‘relevant publisher’ in the context of press regulation:
“ (1)… “Relevant publisher” means a person who, in the course of a business (whether or not carried on with a view to profit), publishes news-related material—(a) which is written by different authors, and (b) which is to any extent subject to editorial control.

(2) News-related material is “subject to editorial control” if there is a person (whether or not the publisher of the material) who has editorial or equivalent responsibility for—(a) the content of the material, (b) how the material is to be presented, and (c) the decision to publish it.”

No exceptions here. Kirsty Hughes, CEO of Index on Censorship, said: “This will undoubtedly have a chilling effect on everyday people’s web use.”

As Tory MP Mark Reckless said in debate in the Commons: “It is also extraordinarily unclear how the charter will apply in the blogosphere and to the web…I hope that my blog will be exempt and I will not have to answer to the Home Secretary for any transgressions I make within that sphere.” Amen to that.