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So who is next?

No tears were shed when, following the 2015 election, Chris Grayling was removed from the role of lord chancellor. There were nevertheless raised eyebrows when his successor was announced – Michael Gove, another unqualified incumbent.

But many fears were allayed when he set about righting the mean-minded Grayling rulings, such as the severe restriction of reading material in prisons. He also promised a review of ongoing criminal legal aid reforms and said there were no plans for further cuts on top of those already announced.

Speaking of the “dangerous inequality at the heart of our system” he said: “There are two nations in our justice system at present. On the one hand, the wealthy, international class who can, for example, choose to settle cases in London with the gold standard of British justice. And then everyone else, who has to put up with a creaking, outdated system to see justice done in their own lives.” He also grasped the nettle of prison overcrowding with far reaching proposals for ‘new prisons for old.’

On civil justice he said: “The current system adds to stress at times of need, and restricts access to high quality resolution of disputes by simply being too complex, too bureaucratic and too slow.”

Then came the upheaval following the referendum, with the change of prime minister and the ministerial reshuffle which consigned Gove to the wilderness. His replacement, Liz Truss, completed a hat trick of non legally qualified lord chancellors.

She set out her views on sentencing and the prison population in an address to the Centre for Social Justice. She said that the problems boil down to four distinct areas: sentences are too long; prisons are too overcrowded to work; the wrong people are in prison; and the management of the prison population at the moment isn’t good enough.

She identified the biggest driver for prison growth in the last twenty years as the exposure, pursuit and punishment of sexual offences and crimes of violence, and a toughening up of sentences for these crimes.

In family courts “I will end the appalling practice of domestic abuse victims being cross-examined by their attacker” she said. She herself took flak from the lord chief justice, Lord Thomas of Cwmgiedd, who launched a forthright attack for her failure last year to defend judges who were branded “enemies of the people.”

Introducing the Prisons and Courts bill, she said: “I want our prisons to be places of discipline, hard work, and self-improvement, where staff are empowered to get people off drugs, improve their English and maths to get a job on release,” she said.

The bill hopes to pave the way for the biggest overhaul of prisons in a generation and the delivery of a first class court system. Protection of victims and vulnerable witnesses in the courts, along with a commitment to reform offenders in prison, are laid out in law for the first time. The bill will provide a better working environment for judges, with modern court facilities and better IT that will help manage cases more efficiently.

Across the country more than 2,000 new senior positions are being created for experienced prison officers on promotion. She concluded: “The answer to overcrowding is not to cut prisoner numbers in half. It is to make sure we have the right resources, the right workforce, the right buildings and the right regimes to reform offenders and turn their lives around (then) we will see our society become safer and our prison population will reduce.”

Now we have another hiatus caused by the election. How many of the enlightened proposals will survive? I will leave the shadow home secretary, Diane Abbott, to spell out the number of extra police officers required and the cost thereof.

Photo courtesy of mrgarethm on flickr

Posted in Law Updates, UncategorizedComments (0)

Legal aid for prisoners

The government has lost an important battle in the court of appeal over access to legal aid. Denying prisoners in England and Wales legal aid so they can effectively challenge the conditions under which they are held could be illegal, the court has ruled.

In R (Howard League for Penal Reform and the Prisoners’ Advice Service) v the Lord Chancellor, the court of appeal judges – Lord Justice Leveson, Lord Justice Tomlinson and Lady Justice Sharp – considered five areas of prison law where the Ministry of Justice removed criminal legal aid eligibility in December 2013. Read the full story

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Reforming the Advocates’ Graduated Fee Scheme

The Ministry of Justice (MoJ) has issued a consultation paper which sets out proposals for the reform of the Advocates’ Graduated Fee Scheme (AGFS). This scheme pays advocates to defend clients in the Crown Court. The current AGFS scheme was last subject to major change in 2007.

In his introduction to the consultation, Sir Oliver Heald QC MP, Minister of State for Courts and Justice, said: “Sir Brian Leveson has produced an outstanding blueprint for the modernisation of our criminal proceedings system. His reforms are already beginning to transform the criminal justice system to reflect the new reality that we face. It is vital that we update the way that we pay criminal defence advocates to reflect this reality too. Our current payment system does not focus enough on the skilled advocacy that barristers and solicitor advocates demonstrate in the Crown Court. I want to change that.”

According to the Government, the AGFS relies too heavily on Pages of Prosecution Evidence (PPE), served by the Crown Prosecution Service, as a means of deciding how complex individual cases are, and therefore how much a defence advocate should be paid. The current scheme also relies on the number of witnesses to help determine the fee to be paid.

The justice system is changing, and new forms of evidence are becoming critical features of many criminal cases. The counting of pages, and counting of new forms of electronic evidence, converted to “pages” is held to be no longer the most effective way of assessing how much work an advocate needs to do in an individual case, and therefore how much that advocate should be paid.

The proposed scheme claims to reduce reliance on counting pages, and instead would introduce a more sophisticated system of classifying offences, based on the typical amount of work required in each case. The time spent in court, conducting the advocacy upon which the justice system relies, would also become a more important driver for the fee paid. It is designed to be cost neutral, “with no intention to reduce or increase the overall cost envelope.”

While encouraging as many members as possible to respond to the proposals, the Law Society asserts that MoJ plans to impose cuts of up to £30 million on criminal defence solicitors. The proposed cuts come less than a month after the MoJ published proposals that will see QCs’ fees rise by 10% at the expense of other criminal advocates. The MoJ will reduce payments to advocates appointed by the court to cross-examine alleged victims of abuse from private rates to legal aid rates, and will make changes to the Litigators Graduated Fee Scheme (LGFS) which will slash payments for paper-heavy Crown Court cases. Criminal solicitors simply cannot afford to absorb any further cuts.

James Parry, chair of the Law Society’s Criminal Legal Aid Committee, said that these cuts are unnecessary and ill-timed, given the long term project to reform the litigator fee scheme, which will ultimately remove reliance on the pages of evidence which are creating this problem. As the Society will be working with the MoJ on this longer term project “it is unwise to impose short-term cuts on the scheme before that project has even started.”

“The Ministry has extensive independent evidence from consultants that demonstrates that solicitors’ businesses cannot afford to absorb further cuts, and there is a substantial risk that these cuts will drive a significant number of firms into insolvency,” said Parry.

“We recognise that the MoJ has concerns about the use of paper as a proxy for determining fees in the Crown Court,” he said. “With so much evidence now being video or data evidence, we have long shared those concerns. This is why we lobbied the Legal Aid Agency to start discussions about revisions to the LGFS to reflect the reality of Crown Court cases today. It is deeply disappointing that the MoJ is making ill-considered ad hoc changes to the scheme when those discussions are ongoing and making good progress.”

Parry concluded: “This is not a rational approach. The Government needs to tackle the problem at source. It cannot keep responding to every change in the criminal justice system by slashing the fees paid to lawyers.”

Posted in Criminal Justice, Legal Aid, UncategorizedComments (0)

Duty Contracts In. So they really listened then …..

In a written Statement on 27 Nov the Lord Chancellor and Secretary of State for Justice, Chris Grayling, said that he was publishing the Government response to the “Transforming Legal Aid: Crime Duty Contracts” consultation. Read the full story

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Withholding legal aid in immigration cases unlawful

The Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests) issued under section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, applied by the Legal Aid Agency in withholding legal aid in immigration cases, has been ruled to be unlawful in that it sets too high a threshold.

Collins J sitting in the Queen’s Bench Division so held in a reserved judgment when allowing claims by Teresa Gudanaviciene and five other claimants, for judicial review of the decision of the first defendant, the Director of Legal Aid Casework, to refuse them legal aid in respect of their immigration proceedings. The case reference is [2014] EWHC 1840 (Admin); [2014] WLR (D) 266. Read the full story

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Forced marriage

Schools will soon be out, and the long summer break is the time when many girls will fly, unsuspecting, to Africa, the Middle East and parts of the Far East, ostensibly for a holiday, but in fact to be forcibly married.

A forced marriage is described as one in which one or both spouses do not consent to the marriage but are coerced into it by physical, psychological, financial, sexual or emotional pressure. The pressure put on people to marry against their will can be physical (including threats, actual physical violence and sexual violence) or emotional and psychological (for example, when someone is made to feel like they’re bringing shame on their family). Financial abuse (taking your wages or not giving you any money) can also be a factor. Read the full story

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Magna Carta and all that

Famous American satirist Tom Lehrer gave up in despair when arch Vietnam hawk Henry Kissinger, held to be responsible for many thousands of deaths, was awarded the Nobel peace prize. He said he couldn’t compete with that.

I think I know what he meant. Regular readers of this blog will be well aware of my hobby horse of how successive administrations have wilfully thrown away personal freedoms born of Magna Carta.

Now comes the news that justice secretary Chris Grayling is to stage an international conference next year on the anniversary of Magna Carta to celebrate the achievements of the British legal system. He will hold a three day global law summit in February 2015 to mark 800 years of legal history.

February is four months early because an inconvenient May general election could prove embarrassing.

Grayling said it would showcase “the UK’s unrivalled legal expertise, based on a long history of freedom and justice.” But a meeting of criminal barristers and solicitors raised the possibility of shaming the justice secretary into reconsidering the proposed legal aid cuts by withdrawing support for the high-profile conference. The view was expressed that it was inappropriate to celebrate the rule of law alongside the minister accused of undermining it.

Speaking on behalf of all six criminal circuit leaders, Sarah Forshaw QC said it would be “rank hypocrisy” for the MoJ to make political capital from something for which it had no regard. She added: “If Mr Grayling seeks to promote himself, his position and UK plc at that event, he should sit on that platform alone. The bar should withdraw its support. So too should any member of the legal profession who genuinely values our rule of law.”

Planning is well under way for the global summit, with support from the lawyers’ professional bodies as well as the City of London and the MoJ. It is intended to be a valuable showcase for English commercial law, an important invisible export that makes a significant contribution to the UK’s balance of payments.

A decision by the legal profession to pull out of the event would be highly embarrassing for the justice secretary. Arguably his pet project could not continue without the profession’s support.

Posted in Civil Liberties, Criminal Justice, Legal Aid, UncategorizedComments (0)

Barristers’ boycott begins

When the Attorney General Dominic Grieve, QC addressed the this year’s Annual Bar Conference his main message was a stark warning about the dangers of taking industrial action. He particularly urged barristers not to return instructions they have accepted for the most serious criminal cases in protest at fee cuts, warning that if they do, the government may “look elsewhere” for others to do the work.

He said: “I do have concerns about returning instructions that have already been accepted, and particularly so where a trial date has been set.” He said the resulting disruption to the courts “carries with it the very serious risk that within government there will be a view that people should look elsewhere for the service to be provided…I think (it) is something which the bar has got to
bear in mind.”

But he accepted that barristers are entitled to refuse to accept new instructions at a fee they find unacceptable, and now a complex fraud trial, due to begin in late April, is threatened with collapse because barristers are refusing to take on defence work due to government cuts in legal aid. The case, involving eight defendants accused of land bank fraud, is the first criminal proceeding affected by concerted action by advocates refusing to accept work for lower fees.

This is a very complex case with more than 100,000 items of evidence. It would normally require 16 defence barristers, two for each defendant, but only two defence barristers were present at the pre-trial hearing. One of the defence solicitors said he had rung 17 chamber sets but all had declined to help. “None have said they would take on the case at the new rates.”

The MoJ is cutting rates paid for trials deemed to be very high cost cases (VHCC) by 30%. The reductions will affect trials starting after the end of March 2014.

The defending solicitor applied to have the date of the trial put back. The judge, Anthony Leonard QC, refused the delay and warned the defendants that they may have to represent themselves. He went on to tell the defendents that “They must be ready for trial … even if they have to attend in person to deal with it in person [however] much it will cost the country.” Cases involving unrepresented litigants usually last far longer.

Nigel Lithman QC, chair of the Criminal Bar Association, expressed the hope that refusing to take these briefs would not interrupt court cases but would send out a message that will be listened to. He said that the cuts were a recipe for chaos, adding “Criminal barristers nowadays have to work for a week to earn what commercial barristers earn in an hour. A questionnaire sent out to heads of chambers produced a reply that 95% of criminal barristers have said they will not take on very high cost cases at the reduced rate.”

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Glass ceiling

The Chambers Student Guide is an in-depth guide to finding a legal career in the UK. It reviews solicitors’ firms, barristers’ chambers, and law schools and provides market analysis and guidance on the recruitment process. Read the full story

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