Tuesday was the fifth day of the line-by-line scrutiny of the Legal Aid bill in the Lords and it produced the first positive result for the opponents of the bill. The government announced that one of the most controversial elements of the bill – the means testing of suspects held in police stations – has been abandoned.

Former director of public prosecutions Lord Macdonald had just risen to propose an amendment to the much criticised clause 12 when, for the government, Lord McNally intervened. He said: “My Lords, if I may interrupt, this may ruin a few speeches but I think it will help if I say that the Government intend to table an amendment to Clause 12 on Report that will remove the power to introduce means testing for initial advice and assistance at the police station.” He went on to confirm that: “For an individual in custody at a police station, or other premises, legal aid will be provided under Clause 12.” At Report stage in the Commons last November, justice minister Djanogly had said: “I appreciate that there are many deeply held concerns across the House and more widely on both the principle and the practicality of means-testing for advice and assistance for those in police custody and in relation to the concept of contingent legislation…I can confirm that we will, therefore, carefully review our approach to these clause issues as the Bill goes through its stages in another place.” The promised review has borne fruit.

This was a welcome relief from the shadow boxing that has occupied the first five days of the Committee stage in the Lords. Over 100 amendments have so far been considered. The government have proposed several textual amendments which have all been agreed, and many other amendments were not moved. The majority of amendments have been debated but all have been withdrawn without being put to the vote. There have been over 30 hours of rhetoric, almost entirely hostile to the provisions of the bill, but the opponents have not laid a glove on the government.

Already many contentious matters have been raised. On Committee days 4 and 5 these included: young people; domestic violence; the definition of abuse; public funding for judicial review claims; those unlawfully deprived of their liberty; the victims of people trafficking; family reunion cases; debt issues; legal aid for employment matters and support for victims of unlawful practice; exceptional cases; and citizens advice bureaux, law centres and other not-for-profit advice and support agencies. Many amendments have been withdrawn on the vaguest government promise “to look again” at the particular matter before Report stage. But, as has been said before, government promises are like pie crusts – made to be broken.

Committee day 6 is listed for next Monday, 30 January. It is to be hoped that some of the teeth shown by their lordships in consideration of the Welfare Reform and the National Health Service bills can be brought to bear on the legal aid proposals. As it is, a great deal seems to be being left to Report stage.

Barristers are renewing their efforts to capture the territory that has traditionally been the preserve of solicitors. To this end two initiatives have been launched.

The public access scheme was first established in 2004 and allows a barrister to be instructed directly by a lay client without the need for a solicitor. In order to take on public access work a barrister must have more than three years’ practising experience, must be properly trained and must have registered with the Bar Council as a public access practitioner. One stumbling block has been payment of barristers by clients.

In his inaugural speech to the Bar Council on Monday, Michael Todd QC, Chairman-Elect, confirmed that he is “chairing a Working Group, essentially led again by the Member Services Team, to look at the feasibility of a service which would provide BSB-regulated entities and Public Access barristers with an escrow account facility in which can be placed ‘client monies’ and which will be administered centrally from one location by a third party.” He said: “Already considerable interest has been displayed by a number of potential providers of this service.”

He told the Bar Council: “We have no entitlement to work. We must compete for it. We must invest better to adapt, to change, and to flourish. The returns on such investment are, in my view, undeniable.” He went on to say: “Of a Bar of about 15,000 members, nearly 5,000 are now ‘Public Access’ trained. They have made an investment in their future.” In his CrimeLine twitter

Andrew Keogh confirms that: “My police rep courses are mainly filled with barristers at the moment.”

Then on Wednesday last week the Bar Standards Board (BSB), the regulatory body for barristers in England and Wales, announced that it is consulting on amendments to its Code of Conduct for barristers following a review of its public access rules. The BSB said: “Public access rules do not allow a client who may be eligible for public funding to instruct a public access barrister. This is one of the rules the BSB seeks to change. The consultation also suggests that barristers should have a duty to ensure that, before accepting public access instructions, the client is able to make an informed decision about whether to apply for legal aid or to proceed with public access representation.” The lifting of the ban on barristers with under three years’ practising experience from accepting public access instructions is also proposed.

The BSB claim that the change would improve client choice and provide greater access to justice for clients who find themselves without access to legal aid solicitors. Removing the three-year rule and allowing barristers to do direct access work from the time they qualify would expand consumer choice, create greater competition and increase the supply of high quality and competitively priced advocacy services.

According to the Law Gazette, the consultation paper states: “The purpose of allowing lay clients to instruct barristers directly is to remove unnecessary barriers to the provision of barristers’ services and to save costs by cutting out superfluous intermediaries.”

The consultation will close at 5pm on 9 March 2012, and the consultation paper can be found at:
http://www.barstandardsboard.org.uk/assets/documents/Public%20access%20consultation%20paper%20new.pdf
PS: “Escrow generally refers to the placing of property which is the subject of a commercial transaction (money, title deeds, software source code, etc.,) into the hands of a trusted third party for safekeeping until some specified event occurs which will trigger the release of the property to one party to the initial transaction.” (Out-Law.com)

Last Wednesday Secretary of State for Justice, Ken Clarke, made a written statement to the Commons on Competitive Tendering. The proposed timetable has yet again slipped back.
He told the Commons: “The Government believe that tendering criminal defence work for competition, alongside regulatory changes, has the potential to significantly modernise legal aid provision, improve the service provided to legal aid clients, streamline the procurement process and deliver value for money for the taxpayer.” In a thinly veiled threat he said: “Pressure on legal aid expenditure is likely to continue, increasing the need for further reform of the current arrangements for administratively set remuneration rates in the absence of competition.”
He added: “Clearly the development of a competition strategy will be likely to have a substantial impact on the market for legally aided services, as will a number of other current developments. These changes will require significant levels of engagement between the Government and the profession. We plan to begin these discussions in early 2013 once the key components of our legal aid reform package, the regulatory changes allowing alternative business structures, and the introduction of the quality assurance scheme for advocates have had time to bed down. We will publish a full formal consultation document on the competition strategy towards the end of that year.”

The revised timetable will be:

Consultation paper published: Autumn 2013

Response to consultation paper: Spring 2014

Tender opens in first competition areas: Autumn 2014

First contracts go live: Summer 2015

In an almost throw-away last paragraph of this statement he went on to say: “I would also like to inform the House that we intend, subject to parliamentary approval of the Legal Aid, Sentencing and Punishment of Offenders Bill, to implement all of the legal aid reforms in April 2013. This will include the abolition of the Legal Services Commission under the Bill and the creation of the new agency in its place.” This amounts to a six-month delay to the programme.

The ‘Guardian’ reports that Labour’s shadow justice secretary, Sadiq Khan, said: “This six-month stay of execution due to government incompetence will do little to reassure the millions of people who rely of social welfare legal aid to gain access to justice. Rather than delaying the implementation of their disastrous reforms to social welfare legal aid, which supports some of the most vulnerable people in our society, this government should abandon them completely.”

The bill goes to the committee stage in the House of Lords on 20 December. At its second reading in the chamber last month, the proposed legal aid cuts were savaged by the overwhelming majority of speakers in the debate. Since then Lord Wilson, the newest appointment to the supreme court, and Sir Nicholas Wall, president of the family division, have added their voices to the opposition. Three other supreme justices – Lord Hope, Lady Hale and Lord Dyson – have also expressed concern about the effect of government proposals to save £350m a year by reducing the availability of legal aid.

The Government showed with the Public Bodies bill last month that they are prepared to jettison proposals to ensure the passage of a bill. It will be interesting to see how they react to the Lords’ amendments and what, if anything, is thrown off the sledge to escape the chasing pack.

The government has abandoned plans to scrap the Youth Justice Board (YJB). The decision came shortly after another U-turn over plans to axe the post of chief coroner. Both issues had threatened to derail the passage of the Public Bodies Bill through the Lords last Wednesday.

In October 2010 it was announced that the YJB would cease to function as a public body, and the leadership of youth justice and functions of the YJB would move into the Ministry of Justice. Justice minister Jonathan Djanogly said at that time: “This organisation has helped to transform the delivery of youth justice and has fulfilled an important role in reducing offending and re-offending by young people. Now is the right time to look more radically at the arrangement of youth justice, including the role of the YJB, ensuring that a dedicated focus on rehabilitation needs of young people is driven forward in the future.”

Both the YJB and the office of the chief coroner were to have been scrapped as part of a so-called ‘bonfire of the quangos’. But the government was defeated in the House of Lords on both decisions earlier this year, and further defeat was expected at the latest stage of the bill. The Ministry of Justice said the youth justice system still needed reform to make it more efficient and directly accountable to ministers, but, “following careful consideration”, the board would be saved. So both burning brands were plucked from the fire at the last moment.

Crossbench peer and former chief inspector of prisons Lord Ramsbotham, whose amendment reprieving the board was accepted by the government, welcomed the decision. He said: “I would like to thank and congratulate the Government on the decision that they have come to. By deciding to retain the Youth Justice Board, they have provided a service to two separate organisations and bodies: first, the youth justice system as a whole, which has benefited from the leadership and direction of the Youth Justice Board since 1999; and, secondly, the Ministry of Justice itself, because it has retained an independent body capable of directing and overseeing the youth justice system on its behalf that is accountable and responsible to Ministers.

“This is particularly important in the light of the riots in the summer, because during that period the Youth Justice Board played an enormously important part both in liaising with, overseeing and helping the youth offending teams out in the community and in overseeing the introduction and reception into custody of people who required a great deal of help.”

In a BBC report, Juliet Lyon, director of the Prison Reform Trust, is reported as saying that the government had shown that it is prepared to listen to reason. “By holding on to the Youth Justice Board it can build on an impressive drop in youth crime and continue to reduce the numbers of children and young people getting into trouble,” she said.

So what’s next for U-turning?

There is much talk of strikes in the air at the moment, with wide and varied organisations planning to take industrial action on 30 November. In a different context it now looks as if they could be emulated by barristers.

As reported in the ‘Law Gazette’, the new chair of the Criminal Bar Association, Max Hill, has warned that criminal barristers will take direct action, including withdrawing their services, if the government presses ahead with its plans for price-competitive tendering. He told the Bar Council’s recent annual conference that “price competition is anathema to an independent, high-quality bar”, and would mark an end to a quality service and equality. He said that the introduction of price competition and the retention of an independent bar are mutually exclusive, and that the government is in ‘cloud cuckoo land’ if it thinks the system would present a level playing field on which the bar can compete. “Price competition is nothing short of an order that the bar disband and go into business with solicitors. Call it fusion, call it partnership, call it what you like. It is the end of the bar,” he said. He added that barristers are prepared to “act on principle, to safeguard the public interest which is served by an independent bar of specialist advocates….We can and must stand up and act.”

On taking office as chairman of the Criminal Bar Association in September, Max Hill stressed that criminal barristers play a vital role, both prosecuting and representing people charged with criminal offences, to ensure the criminal justice system works efficiently and fairly. He warned that, in this context, legal aid cuts could cripple the criminal bar. In addition, in an interview with ‘The Times’, he said that in the view of the Criminal Bar the imminent cuts to barristers’ fees, on top of serial reductions in preceding years, amounts to a very real threat to a fully functional criminal justice system.

Also reported in the ‘Law Gazette’ is that plans to introduce the Quality Assurance Scheme for Advocates (QASA) have run into serious difficulties. The Criminal Bar Association has been told by Max Hill that, amid a dispute about linking payment to accreditation level, progress on QASA has been halted so far as the CBA is concerned. He said that the scheme as proposed would lead to “a world in which the word barrister would have no meaning, and no place within the fee structure.” He added: “Proper reflection from all sides may produce a solution. It is in everyone’s interest to allow that solution to emerge.”

So it looks as if his year of office could be interesting. Urging his colleagues to remain united in the face of the challenges that lie ahead he said: “Tough times are undoubtedly ahead for the criminal Bar. But rather than allowing these issues to divide and depress us all, my mission must be to raise our chins from the floor. I have one key message for anyone who will listen: you can destroy the publicly funded Bar if you want, but you will want it back when it is too late to recover what you have lost.”

One in five women and one in ten men suffer from the obsessive attention of a stalker at some point in their life. British Crime Survey figures show that up to five million people experience stalking or harassment every year, but only around 8,000 people are convicted of harassment-related offences each year.

According to the national charity Protection Against Stalking, “Stalking and harassment is life changing. It causes intimidation, loss of jobs and relationships, the victim to move home, fear and sometimes death to the victim. The behavioural characteristics of the stalker are easily recognised but yet practitioners in the Criminal Justice System time and time again have failed to identify, assess and manage the risk due to a lack of understanding and inadequate training.” Laura Richards, a psychologist with Protection Against Stalking, said: “Victims are rarely taken seriously and most of the time they are told that the police cannot do anything and ‘their hands are tied by the law’. Too often we hear that perpetrators have rights, while victims only have codes and charters.”

The ‘Call to End Violence Against Women and Girls – Action Plan’ was published earlier this year. Key actions from the plan include making data on regional levels of violence against women – including domestic abuse, sexual assault and stalking – more accessible to ensure resources are targeted to where they are most needed. A new national stalking group was promised to support the work of the Association of Chief Police Officers and the Crown Prosecution Service in improving the police response to stalking.

Now it looks as if stalking could become a new criminal offence following an online consultation announced on Monday. Views are sought on how best to tackle this crime and provide protection for victims, on whether specific offences of ‘stalking’ and ‘cyber stalking’ should be added to existing harassment laws, and what training and guidance is needed for police and prosecutors. Home Secretary Theresa May said: “I am determined to ensure that victims of stalking have the protection and support they need. We are particularly interested in hearing from those with direct experience – victims, police and the courts.”

Speaking in Manchester, at the first of four regional events taking place on stalking, the minister for equalities and criminal information, Lynne Featherstone, said: “Stalking is an issue which profoundly affects many lives, often in devastating ways…There are campaigners and police I have talked to who believe the actual words of ‘stalking’ and ‘cyber stalking’ need to be in the act.” She promised that the Government would give more help to victims of stalking following the consultation. “It is quite clear that they are being let down but this government’s ambition is nothing less than ending violence against women and girls,” she said.

Closing date for contributions to the consultation is 5 February 2012. Provision for online submissions can be found at:

http://www.homeoffice.gov.uk/publications/about-us/consultations/stalking-consultation/

Clause 12 of the Legal Aid, Sentencing and Punishment of Offenders Bill provides that advice in the police station in future could be subject to a means test. This would drive a coach and horses through the universal right to representation by a solicitor at a police station, enshrined in section 58(1) Police and Criminal Evidence Act 1984, in response to a series of serious miscarriages of justice in the 1970s and 80s involving unrepresented defendants.

During the debate on the second reading of the bill Ken Clarke was asked to consult carefully about the practical implementation of proposals to limit legal aid for advice and assistance in police stations. The justice secretary said: “We will consider the issue and no doubt my hon. Friend or others will return to it in Committee. I realise that there has been some concern.” It was indeed raised again in Committee, when justice minister Jonathan Djanogly admitted: “The practicalities are the greatest stumbling block, and the costs could be significant.”

But when the bill returned to the Commons at Report stage last week clause 12 was unamended, and, on Wednesday, means testing was the subject of considerable debate. Mike Crockart (Lib Dem, Edinburgh West), drawing on his experience as a serving police officer, stressed that the presence of a lawyer not only protects defendants from police abuse but protects the police from false allegations by defendants. He asked: “Who will ask what someone’s earnings are, or how much their mortgage is? Those questions will have to be asked in extremely stressful situations. Will the Minister explain how the proposals will work without the whole process becoming extremely unwieldy?” Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionydd), said: “As anyone who has practised criminal law will know, the first couple of hours in custody can be crucial…Most people, when facing a police interview, particularly for the first time, are unable to think clearly and may not be cognisant of their best interests.”

Karl Turner (Lab, Hull), who has practised criminal law as a solicitor for many years, and whose wife is a qualified criminal duty solicitor, said: “I firmly believe that everybody should be entitled to free and independent legal advice while in a police station. It is a fundamental right in a democratic society, and to remove it would be a huge mistake.” Jenny Chapman (Lab, Darlington), said that applying means testing in the police station would inevitably introduce delay in the process and prevent the police from proceeding as quickly as they would wish. “Clients who are in police custody will not have access to documents with which to verify their entitlements, and clients who do not pass the means test are in no position to instruct the solicitor of their choice on a private basis.”

Justice minister Djanogly was at the Despatch Box for the legal aid section of the bill, though at the very beginning of the debate he had to make a statement about his insurance interests. In response to the means testing debate he said: “Having heard what has been said and having considered the issue, I appreciate that there are many deeply held concerns across the House and more widely on both the principle and the practicality of means-testing for advice and assistance for those in police custody and in relation to the concept of contingent legislation…I can confirm that we will, therefore, carefully review our approach to these clause issues as the Bill goes through its stages in another place.”

Seem to have heard that before.

For the first time government, industry, voluntary groups and law enforcement agencies have joined forces to tackle fraud. Thirty-seven organisations have come together to launch ‘Fighting Fraud Together’, a new strategy that aims to reduce fraud, estimated to cost the UK £38 billion every year.

Speaking at the Fighting Fraud Together launch event, minister for crime and security James Brokenshire said: “Fraud causes serious harm to the public, to businesses and the wider economy. For too long fraud has almost been seen as a victimless crime. It isn’t and too often the victims are some of the most vulnerable members of our community. That’s why this new strategy is important to better target, prosecute and prevent it.”

The strategy includes activities aimed at preventing fraud being perpetrated in the first place, increasing awareness of the risks of fraud and the level of fraud reporting and ensuring there is a more effective enforcement response to reported fraud. The policy document ‘Fighting Fraud Together’ sets out a new approach with the ambition that by 2015 this country will be demonstrably more resilient to and less damaged by fraud. Individuals, businesses, public and voluntary bodies are tasked with detecting and preventing fraud. Law enforcement and other partners should increase the risk of disruption, with punishment to organised and opportunistic fraudsters deterring potential criminal offenders.

There is a fifty point action plan and detailed yardsticks to measure results and progress. Improved intelligence capabilities at the National Fraud Intelligence Bureau should help with the speedy closure of the channels through which fraudsters operate and launder their ill-gotten gains. A new Economic Crime Command at the National Crime Agency is being developed to provide a more effective, better co-ordinated and intelligence-led response across all the UK’s economic crime fighting agencies.

The organisations that have come together are the Attorney General’s Office, BIS, Cabinet Office, DCLG, DWP, Home Office, HMRC, MoJ, HM Treasury, ACPO, the Association of British Insurers, The British Bankers Association, the British Chambers of Commerce, the British Retail Consortium, the Building Societies Association, the Charity Commission, the Charity Finance Director’s Group, the Citizens Advice Bureau, the City of London Police, the Council of Mortgage lenders, the Crown Prosecution Service, the Federation of Small Businesses, Financial Fraud Action UK, the Financial Services Authority, the Fraud Advisory Panel, the Insurance Fraud Bureau, the Land Registry, the Law Society, the Metropolitan Police, National Council of Voluntary Organisations, the National Fraud Authority, the Royal Institution of Chartered Surveyors, the Serious Fraud Office, SOCA, the Solicitors Regulation Authority, the Telecommunications UK Fraud Forum, the UK Cards Association and Victim Support.

The full text of ‘Fighting Fraud Together’ can be found at:

http://www.homeoffice.gov.uk/publications/agencies-public-bodies/nfa/fighting-fraud-tog/fighting-fraud-together?view=Binary

Dangerous drivers who seriously injure others could spend longer in jail thanks to a new criminal offence.

For the vast majority of dangerous driving cases the maximum penalty of two years’ imprisonment provides the courts with sufficient and proportionate powers to punish offenders. The new offence of ‘causing serious injury by dangerous driving’ will carry a maximum sentence of five years in prison and allow the courts to impose tougher punishments on dangerous drivers.

Announcing the new offence, justice secretary Kenneth Clarke said: “Dangerous driving can destroy lives and have a devastating effect on victims and their families and friends. We have listened to the victims of dangerous drivers, their families, MPs, judges and road safety groups and their experiences have directly informed these changes. Making our roads safer is a priority – five people died on our roads each day last year, so we need to do everything we can to further improve safety.”

Road safety minister Mike Penning said: “The vast majority of motorists are safe and responsible but the wilfully reckless minority who put lives in danger must face serious penalties. We are taking action to help the police tackle drink and drug driving, as well as to crack down on uninsured and dangerous drivers, and this new offence will mean the courts can properly punish those who inflict serious injuries.” The change was welcomed by Andrew Howard, Head of Road Safety at the AA, who said: “These law changes should make sentences more proportionate to the devastation dangerous driving causes and should also deter people from driving badly.”

The changes will be taken forward as part of the Government’s Legal Aid, Sentencing and Punishment of Offenders Bill, which is rapidly becoming a grab bag of last minute proposals. The bill comes before the House of Commons again this week at Report stage. So far the bill, including plans to cut legal aid and curb payouts, which could benefit the insurance industry to the tune of £1bn a year, has been piloted through the Commons by justice minister Jonathan Djanogly. Djanogly has investments worth at least £250,000 in companies with insurance arms. His brother in law, in whose companies Djanogly’s children were shareholders, also stands to gain. Labour’s justice spokesman Andy Slaughter recently wrote to cabinet secretary Gus O’Donnell calling for an investigation into Djanogly. Slaughter pointed to conflict of interest claims, given that the minister had neither resigned nor removed himself from discussions from which he could personally profit.

The outcome was that Djanogly has been stripped of his responsibility to regulate firms that ‘ambulance chase’ the public. According to the ‘Guardian’, in reply to Slaughter, O’Donnell said that while there is “no suggestion of any impropriety in relation” to Djanogly’s brother-in-law’s firms that “for the avoidance of doubt decisions about the regulation of individual (claims management companies) should henceforth be handled by another minister.”

The justice secretary will now be in charge of the industry, but this still leaves Djanogly in charge of legal aid and civil litigation, which means he will be able to identify growth areas for claims management companies. It will be interesting to see what role he plays in the Commons this week.

Word has it that there have been some fierce knock’em down and drag’em out battles in cabinet between Theresa May and Kenneth Clarke on the subject of mandatory prison sentences. If that is the case the home secretary has triumphed. David Cameron has intervened and decided.

Clarke made clear his personal opposition to the use of mandatory sentences at a hearing of the Commons home affairs committee on Tuesday. His preference is to give judges unfettered discretion to set sentences based on the facts of the cases for nearly all crimes except murder. He also made clear his view that a minimum mandatory sentence for juveniles under 18 was not part of the traditions of the British criminal justice system. But on Wednesday he announced a new sentencing regime, which includes:

• A mandatory life sentence for anyone convicted of a second very serious sexual or violent crime. This will mean that mandatory life sentences can be given for crimes other than murder
• Extending the category of the most serious sexual and violent offences.
• The Extended Determinate Sentence (EDS) – all dangerous criminals convicted of serious sexual and violent crimes will be imprisoned for at least two thirds of their sentence.
• Criminals who complete an EDS must then serve extended licence periods.
• Mandatory custodial sentence for aggravated knife possession by 16 and 17 years olds.
• Replacement of the much-criticised indeterminate sentence for public protection (IPP).

The new regime will be debated in the House of Commons next week as an addition to the Legal Aid, Sentencing and Punishment of Offenders Bill. It is likely to increase the already record 87,000 prison population in England and Wales, putting a serious question mark over hopes of stabilising the jail population.

Already there has been opposition to the new regime. John Bache, the chairman of the Magistrates Association youth courts committee, said that while he agreed that removing knives from the streets was of paramount importance, the Magistrates Association was against mandatory sentences. Frances Crooke, chief executive of the Howard League for Penal Reform, said: “We have nearly 12,000 life sentence prisoners – that’s more than Russia, Poland, German and France all added together. We are using the mandatory life sentence and discretionary life sentences like confetti.” Juliet Lyon, director of the Prison Reform Trust, said: “Subject to good sentencing guidelines, what’s wrong with allowing the courts to make sure that the sentence fits the crime?”

The justice secretary also announced additional measures “to better protect people from intruders, dangerous criminals and excessive no-win no-fee legal costs.” The measures include:

• Making squatting in residential buildings a criminal offence.
• Strengthening people’s rights to use force to defend themselves from intruders in their own homes.
• Giving magistrates power to hand down bigger fines.
• Banning referral fees that allow middle-men to profit from encouraging others to make unnecessary compensation claims.

These measures will also be debated as an addition to the Legal Aid, Sentencing and Punishment of Offenders Bill.