Criminal Law: new case on adjournments: Hottak v DPP


DC (Sharp LJ, Nicol J) 18/10/2016
A magistrates’ court had exercised its discretion reasonably in refusing to adjourn a trial, to exclude evidence, or to recuse itself, after an Achieving Best Evidence video had only been disclosed to the defendant on the day of the trial. The magistrates had taken steps to ensure that the defendant had time to consider the evidence, and they could be trusted to exclude from their deliberations any inadmissible material arising from the video.
The appellant appealed by way of case stated against several decisions taken by a magistrates’ court during his trial for common assault.

The appellant had been accused of assault in relation to a domestic altercation with his two sisters, who were aged 16 and 18. It was alleged that he had kicked the younger sister and pulled her hair, causing injuries, and bitten the older sister’s arm. They called the police and photos were taken of the injuries. The police conducted an Achieving Best Evidence (ABE) interview with the younger sister. Its contents were summarised and a summary provided to the appellant. The younger sister later withdrew her allegations. The ABE video was only made available on the first day of the trial. The appellant applied to adjourn the trial, and for the video to be excluded from evidence because it could contain impermissible material. The magistrates refused both applications. The video was shown to all parties and the court, and the appellant was given an additional two hours to prepare. In the video, the sister discussed the appellant’s violent conduct over several years. The prosecution had not submitted a bad character evidence application. The appellant submitted that the magistrates should recuse themselves as they had heard impermissible evidence, and that the trial should be adjourned so that he could respond to the video evidence. His applications were refused, with the magistrates holding that they would not take into account any impermissible material and would not adjourn, in particular because the sister, a vulnerable 16-year-old witness, was present and waiting to give evidence. A second trial day took place a few weeks later. The appellant did not give evidence. He was found guilty and given a suspended sentence. The case stated questions were whether the magistrates had exercised their discretion reasonably in refusing (1) to exclude the ABE video as evidence; (2) the first application to adjourn the trial; (3) the application to recuse themselves; (4) the second application to adjourn.

HELD: (1) The magistrates had correctly exercised their discretion in each instance. The appellant’s submissions did not come close to undermining the judges’ discretion. They had been entitled to reach the decisions taken. Although the appellant should have been given the ABE video before the hearing, the magistrates had been capable of accommodating that fact during the trial. They took steps to ensure no unfairness arose for the appellant. No prejudice had arisen from the admission of the ABE video.

(2) The refusal to adjourn was reasonable on the facts of the case: the substance of the ABE video had already been disclosed via the summary, so there were no surprises for the appellant or reasons for adjournment. The only point made at the time was that the sister had spoken quickly in the video and no transcript was available, but the court was unimpressed by the proposition that the appellant had been unable to prepare a straightforward case in the two hours allowed by the magistrates after the video had been played.

(3) The matters relevant for adjournment by a magistrates’ court were those in Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin), (2006) 170 J.P. 567. The magistrates had been concerned about the sister, a vulnerable 16-year-old witness who was waiting to give evidence. They had considered both sides’ positions and had been entitled to decide that no adjournment was required, after properly considering all the factors, Picton applied.

(4) The argument that the magistrates should have recused themselves lacked merit. They could be trusted to decide the case on its merits and to exclude inadmissible material from consideration. Nothing in the ABE video was out of the ordinary. They had been entitled to proceed as they had done. Their decision was not unreasonable, and was correct on the facts.

Appeal dismissed
Counsel: For the appellant: Tom Dunn: For the respondent: Ben Lloyd

LTL 18/10/2016 EXTEMPORE


Freelance Advocacy Services: News and Advocacy Availability

Subscribe to the Fortnightly Freelancer! An email bulletin sent on request every other Friday.

Content is updated regularly here (as is availability on


I am available for criminal or regulatory hearings, Inquests or arbitration. I cover Courts and Police stations. I have some  availability over the next two weeks -see here.   To book please email or call 07980846330 .


Criminal Law Friendly Society. It was a pleasure to speak at the CLFS Conference in Manchester. I look forward to speaking at the London Conference this Friday (details below and photo above)

No Adjournments Check out the case of Hottak v DPP reported this week-it’s available on Westlaw, or a summary here. Defence refused an adjournment even when ABE evidence served on day of trial image

The Advocate

It’s  back! The LCCSA magazine returns in digital format. Check out the new edition here

Howard League

I attended the Parmour lecture delivered by Nick Hardwicke (Parole Board, former Prison Inspector)  It was an excellent speech on the concept of hope in prison reform. The full text is available online at    A crowd justice campaign  was launched yesterday. Together with the Prisoners’ Advice Service, HLPR are challenging the cuts to legal aid for prisoners in court. If you would like to make a donation to help challenge these cuts in court, please visit this link

Victory over Embarrassment Clause The LCCSA were party to a pre-action letter to LAA about their objectionable “gagging clause” in the new Legal Aid Contracts. This was the clause which prohibited contracting firms from doing anything which may cause “embarrassment” and was drafted so widely it could include adversely commenting on legislation, posting a critical tweet, making an effigy or a Gove puppet, or attending a demo. The LCCSA were the only practitioner group to take on the LAA , others saying they were worried about upsetting (or embarrassing?) the LAA.  Following LCCSA action, the LAA had a re-think. See here for detail, or this report.

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The LCCSA message is clear “We will NOT be gagged“.

Truss Watch:-  

Keep up to date with news of the Lord Chancellor with my Liz Truss blog.  Or alternatively read this Conference sketch  (extract:  “ I have known table tennis bats less wooden and CBeebies presenters more statesmanlike”

Blackstones v Archbold  With Blackstones confirmed as  replacement for Archbold for the year ahead (see Gazette article “Game of Tomes“) I am comparing both for a comparative review. Please send me your comments on either text.

Sober October
I’ve signed up to Go Sober October, which means I am abstaining from alcohol for 31 days.  But it’s all for a good  cause – I’m raising money for Macmillan Cancer Support. Some of you know why. And all of you will know of somebody whose life has been effected by cancer. Sponsor link here (please ignore if you previously sponsored my Dry January!)

SAHCA I attended the excellent SAHCA Autumn Conference and AGM. Well done outgoing chair Leslie Cuthbert, and administrator Hilary Riddle. Good luck to incoming chair William Richmond-Coggan!

Sex with the LCCSA. I attended the excellent LCCSA training event on sex offences on Monday, delivered by Judge Rook, at offices of HJA.image

My final LCCSA engagement as President will be the AGM/Dinner on November 7th. I will be speaking on my own criminal past, alongside a short review of the last year. Please do come and see me off!  See below for booking details

Vulnerable Clients Don’t miss this informative conference organised by Inns of Court Advoacy school 0n 29/10. Last chance to book today! Booking and details here

CLFS CPD Criminal Law Conference, London,  28 October –info and booking here

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LCCSA AGM/DINNER 07 November-venue confirmed-the Crypt! (St Ethelreda’s church, Farringdon)  save the date!! Book via LCCSA website, or contact Sara

The Criminal Appeal Lawyers Association invite you to attend their annual conference.

CRIMINAL APPEALS: The Engine that Drives Law Reform? 12th November 2016 – 10am to 4pm
Atkin Building, City Law School Standard: £30 Students: £15  Tea/coffee and lunch provided. It carries 4.5 CPD points  Purchase tickets now at

Grayling and Railway platforms. Mr Grayling is wrong about the Brexit dividend to station platforms-read more here.

LAWYER OF THE WEEK  Francis Fitzgibbon QC

Francis has taken over from mark Fenhalls at Chair of CBA. He is an excellent appointment, and the LCCSA looks forward to working closely with him . Writing earlier this week, FFQC said that lawyers “don’t ask to be loved, but without respect for the law our country will become nastier, poorer, and more brutish”.

Congratulations to winners at the Law Society Awards especially John Halford, human rights lawyer at Bindmans, being named solicitor of the year, and Major-General Susan Ridge of the Army Legal Services picking up the Law Gazette’s legal personality of the year gong. The judges described Halford as having gone the extra mile in “challenging unjust legal aid reforms and thereby preserving access to justice and equality before the law”. Ridge was awarded for making military history last year, when she became the highest-ranking woman ever in the British Army.

All change. Solicitor Lucinda Nicholls is now freelancing, and can be booked directly by emailing or call/text 07736320197.


The MoJ sneaked out a short consultation on the closure of Camberwell and Hammersmith Courts. Full story and my comments here. Consultation closes 27/10-please participate!



Hats off to Gary Lineker for speaking out in support of refugees, as a result of which he has been vilified by the Sun. Don’t buy the Sun obvs.


LCCSA submission to Lammy review here.

Meeting the SPJ  With my LCCSA hat on I met the Senior Presiding Judge, DPP and the Chief Magistrate, and discussed some potential changes to the Criminal Procedure Rules on disclosure that may help address the current inadequacies of IDPC. I also raised the controversial Advice Note circulated to Magistrates. I requested that all Advice Notes should be both published and publicly available, and that the senior Judiciary should correct the false impression given in this note.The SPJ gave an undertaking to respond on both counts. I have updated the blog Magistrates Courts- Managerialism v Justice.

Justice Secretary untrussed!   Read more about our new Lord Chancellor Liz Truss  here.(updated blog)


LCCSA Party   President speech here.

Michael Foot memorial – a reaction to the criminal damage of this monument (in Plymouth) in this blog by Matt Foot (later picked up by the Plymouth Evening Herald here.)

Gove sacked! My assessment of his tenure as Lord Chancellor here


Chilcot Report. Will there be a prosecution of Tony Blair? Updated blog here. See also this crowd-funded legal action.

Howard League Seminar Summary of Lawyers group seminar discussing youth sentencing consultation here.

Legal Aid spending falls due to reduction in volume of cases . Stats here.

The Public Accounts Committee today reported what we already know- the Criminal Justice System is at breaking point. Read about their damming report here.

How to become a QC: This letter tells us much about the judiciary, the bar and silk selection….

CLFS Conference 2015- London  (Detail here) Over 300 delegates attended. My speech here.

New lawyer on the block: Greg “Box-Smith” defending, as reported in the SCUM newspaper....

Hillsborough:New blog- barrister Anna Morris shares her experience as counsel at the Inquest in this guest blog

Crime in Islington -my response to a call from Islington Labour Councillors to Highbury Ma


Michael Foot Memorial (guest blog by Matt Foot)

Editor’s Intro:-

Michael Foot was born in Plymouth, Devon, and a Lord Mayor of Plymouth. He served as Labour MP for Plymouth Devonport from 1945-1955, and was Labour Party Leader 1980-1983.

A memorial, funded by public subscription and fundraising, was unveiled in Plymouth in August 2015.

The memorial was defaced with nazi graffiti in July 2016, following the Brexit vote.  A response to the graffiti  in chalk was later added by a local artist, quoting Michael Foot. Both original graffiti and response were removed by the local Council.

The blog below ( published 15/07) is a response by Michael Foot’s great-nephew, solicitor Matt Foot. A version was later reprinted (with permission) by the Plymouth Evening Herald here.


We are here to provide for all those who are weaker and hungrier’ 

My first thought when I saw that my Great Uncle Michael’s Memorial had been daubed with fascist graffiti was for Michael’s niece Alison Highet. She was the driving force to ensure the Memorial came to being, only to see it abused with a swastika. 

When Thatcher died the state (us that is) paid £3.2 million for her funeral, but no money was proffered for Michael. Fittingly, a campaign obtained funding for this Memorial in Freedom Fields opposite the house where he was born. It recognises Michael alongside his unique contribution to his beloved Plymouth, whose constituents he served, and then supported all his life, including becoming an honorary member of its football team at the age of 90. 

It is a special place for our family to remember him.

The response to the racist graffiti has been tremendous, with widespread disdain in the community, press and social media. Especially so the contribution of a local artist who used chalk to draw one of Michael’s famous quotes in front of the memorial,

“We are here to provide for all those who are weaker and hungrier, more battered and crippled than ourselves. That is our only certain good and great purpose – Michael Foot, 1983.”

Thank you to the sympathiser who sent me the marvellous poem ‘V’ by Tony Harrison, written after he found his parents gravestone defaced. Michael would have approved – he never missed an opportunity to inspire others to read literature and poetry. 

The Memorial also celebrates Michael the peace activist, and no doubt in the week of the Chilcot Inquiry, he would be insisting we reread Tony Harrison’s “A Cold Calling” written in 1991 during the First Gulf war but which would make a fitting forward to the Inquiry:-

I saw the charred Iraqi lean towards me from bomb-blasted screen, 

his windscreen wiper like a pen ready to write down thoughts for men,

his windscreen wiper like a quill he’s reaching for to make his will. 

I saw the charred Iraqi lean like someone made of Plasticine

as though he’d stopped to ask the way and this is what I heard him say: 

“Don’t be afraid I’ve picked on you for this exclusive interview.

Isn’t it your sort of poet’s task to find words for this frightening mask? 

If that gadget that you’ve got records words from such scorched vocal cords,

press RECORD before some dog devours me mid-monologue.” 

So I held the shaking microphone closer to the crumbling bone:

“I read the news of three wise men who left their sperm in nitrogen, 

three foes of ours, three wise Marines with sample flasks and magazines,

three wise soldiers from Seattle who banked their sperm before the battle.


Below: Visiting Michael Memorial Freedom Fields Plymouth, summer of 2015.



 Matt Foot is a solicitor with Birnberg Peirce in London.
Both author Matt Foot, and blog editor Greg Foxsmith, are also fans of Plymouth Argyle (as was Michael Foot)


New Justice Secretary Liz Truss

On 14th July 2016 incoming Prime Minister Theresa May as part of her cabinet reshuffle appointed Liz Truss as the new Secretary of State for Justice (aka Lord Chancellor) and the first female incumbent.

Truss takes over from Michael Gove,  sacked for his disloyalty and failed leadership bid rather than his performance in post (Gove had himself replaced the hopeless and reviled Chris Grayling, widely believed to have been the worst Lord Chancellor in living memory)

Truss is the third consecutive non-lawyer to be appointed to the post. Does that matter? Read the Secret Barrister blog.

This blog Aims to chart the progress of Truss in  office.

Pre-Justice Secretary

Truss was previously at DEFRA, and most famous or infamous for her widely ridiculed conference speech about French cheese and British Pork (footage enjoyed on this clip from Have I Got News For You )

She co-authored a book (“Brittania unchained“) which accused British workers of laziness :”The British are among the worst idlers in the world. We work among the lowest hours, we retire early and our productivity is poor. Whereas Indian children aspire to be doctors or businessmen, the British are more interested in football and pop music.

Critics who have attempted to engage with her, (according to George Monbiot in The Guardian) have said she is “indissolubly wedded to a set of theories about how the world should be, that are impervious to argument, facts or experience. She was among the first ministers to put her own department on the block in the latest spending review, volunteering massive cuts. She seems determined to dismantle the protections that secure our quality of life: the rules and agencies defending the places and wildlife we love.


Born: 26 July 1975
From: Paisley, Renfrewshire
Constituency: MP for South West Norfolk since 2010
Education: Educated at local comprehensive in Leeds; read PPE at Merton
Before politics: Ten years as a management accountant, economics director at Cable & Wireless; deputy director of Reform education think tank

Truss and Criminal Justice (pre-appointment)

Truss was a member of the Justice Select Committee between March 2011 and November 2012, but apparently only ever spoke about justice issues three times in parliament,one of which was to strongly Support cutting the legal aid budget.

In terms of her votes on Home Affairs she consistently voted for a stricter asylum system and stronger enforcement of immigration rules; for the introduction of Police & Crime Commissioners, and for requiring the mass retention of information about communications. She spoke several times during the committee stages of LASPO (transcripts here)

Comments on her Appointment 

There was initially mixed disappointment and scepticism from legal aid lawyers, largely due to Truss’ record of continuously voting for Legal Aid cuts. A priority should be to sort out and protect Legal Aid, says the All-Party Parliamentary Group on Legal Aid, as reported here in the Solicitors Journal. Concerns were also raised about her views on prisons (eg here in the Justice Gap, July 2016)

Lord Faulks,  justice minister under her two predecessors, resigned the post because he felt that the inexperience of Truss  could  put at risk the standing of the judiciary and courts.  “I have nothing against Ms Truss personally,” he told The Times. “But is she going to have the clout able to stand up to the prime minister when necessary on behalf of the judges? Is she going to be able to stand up, come the moment, to the prime minister, for the rule of law and for the judiciary … without fear of damaging her career?”

A previous Labour lord chancellor, Lord Falconer, told The Times: “Liz Truss has not experience or gravitas and gives every impression of only wanting to climb the greasy pole.”

Anna Soubry QC turned down post of No. 2 to Truss (according to this piece in Legal Cheek)

In a lively debate in the House of Lords (20 July) Former Supreme Court Justice Lord Brown claimed she was “not over-burdened with previous experience” of courts and access to justice.  His remarks were condemned by Baroness Helena Kennedy, who said there had been a “clamour of male lawyers and judges” criticising Ms Truss who had not spoken out about  Gove or Grayling’s lack of legal background. (Source: Esther Webber, BBC Parliament online)

This in turn prompted a top piece of trivia from crossbencher Lord Pannick, who pointed out that contrary to some reports she is not the first female Lord Chancellor – that was Eleanor of Provence, who filled in for her husband Henry III in 1253.  He added that at the time “there was probably a 13th-Century Lord Falconer complaining Eleanor hadn’t been trained as a lawyer”.  

The CLSA released a statement welcoming her appointment.

Peter Oborne writing for the Mail on Sunday had this observation:-

I greatly enjoyed seeing Ms Liz Truss, the new Lord Chancellor, in her majestic Tudor-style robes of office, redolent of old England, tradition and deference.

It is amusing to recall Ms Truss’s radical anti-Monarchy speech to the Liberal Democrat conference in 1994 (she was once on the national executive committee of that party’s youth and student wing) when she proclaimed: ‘We do not believe people are born to rule.’ Her target was the Queen. 

She found out soon afterwards that Oxford graduates in Philosophy, Politics and Economics, such as herself, are indeed born to rule, and it doesn’t much matter which party they are in. 

I’m sure she’ll enjoy the many conversations with Her Majesty she’ll now have, thanks to her new high office.

First days in post

The Annual HM Inspector Of Prisons report was published (19 July) and once again showed a prison service in crisis- violent, over-crowded and full of drugs with few opportunities of rehabilitation. Truss response below:-

On 21st July Truss got to dress up in black and gold robes, and was sworn-in as Lord Chancellor. The ceremony can be viewed on this YouTube clip.

The New Team

Oliver Heald is Minister for Courts and Justice  Sam Gyimah is Minister for Prisons and Probation, and  Phillip Lee is Minister for Victims, Youth and Family Justice. Read about the new MOJ ministerial appointees in this blog by Russell Fraser

Challenges Ahead

Will Truss save Legal Aid? This letter from lawyers asks her to urgently redress the LASPO cuts. Will Truss have the courage to release IPP prisoners? (Article here -Guardian 28/07)

Truss and Legal Aid 

Truss has lamentable form in attacking legal aid – as explained by James Sandbach here on Legal Voice (08/16)

First Two Months

After a suitable pause to master the brief, Truss gave her first interviews and indicated she was indeed planning to introduce a Bill of Rights. It was later clarified this did not mean the UK would be withdrawing from the European Convention on Human Rights. It was initially unclear whether we would be keeping or scrapping the Human Rights Act. She also indicated the Government would not be proceeding with “Problem Solving Courts” (previously announced by Gove) although it was later clarified she actually meant they were still considering them, and a week later confirmed were in fact proceeding with them.

After a Summer break, Truss attended a meeting of the Justice select Committee, (07 September) where to the astonishment of all those attending or following, she could not confirm any planned legislation, merely saying everything was under review (Guardian report here ) Private Eye was also unimpressed:


In conclusion, the “jury is still out” on Truss, and she will need to be judged on her actions, rather than words. She has met with the CBA who have talked to her about “advocacy”, but cancelled her meeting with the Law Society, which has yet to be rescheduled. Watch this space!

On 03 October Truss was all trussed up again in robes, together with a “train bearer”,  to attend her first “Opening of the Legal Year” service. Her speech here.

On 04 October Truss gave her first Conference speech as Lord Chancellor. It was a more assured performance than the infamous “cheese speech” (see above) but failed to mention Legal Aid or Access to Justice. She spoke of prison reform, announcing £14 million additional investment (although it turned out this was funding already announced by Gove). She did not acknowledge the current high suicide rate, but promised that “ex-soldiers” would be recruited as prison officers. (As we know, sadly many ex service-men are already in the prison system, but not as prison officers.) The rest of the speech was a series of platitudes. In. Very. Short. Sentences. Text  here.

Or read Quentin Letts’ summary “How could so jellyfish and unformed a political personality have been made lord chancellor?” Letts asked of his readers. “I have known ping-pong [that’s whiff whaff to you, foreign secretary] bats less wooden, CBeebies presenters more statesmanlike.”

Whilst at Party Conference, Truss was also approached by a campaigner for the Families of the Birmingham Pub Bombings, who described Truss as “like a rabbit in the headlights”, according to this piece in the Birmingham Mail.



LCCSA Summer Party -President’s Speech

Welcome guests to LCCSA Summer Party!


Last November, at our AGM, many members were still tied up in litigation after the award of contracts in LAA’s botched two- tier contracting exercise.

That contracting, initiated by Grayling, followed an unsuccessful JR by the Association in 2015 against the whole tendering process, which despite generous contributions by members, depleted our resources as we had to fund that action.

Counsel’s fees alone were in excess of £100k, and our action, including those fees, brought this Association to our knees financially. The committee and membership were also physically and mentally exhausted, after several years of desperate campaigning against Legal Aid cuts. 

So when I agreed, at short notice, to take up the Presidency I did wonder whether we would survive.

Would solicitors, demoralised and involved in litigation, renew their memberships? 

Well you did rejoin, our membership is solid, we remain a dynamic accountable representative body -I thank you.

And our AGM dinner sold out, and was the best-attended ever. 

And then, in January this year, Gove abandoned two-tier!

And now, tonight, the Summer Party!

Sold out, because you are here, solicitors, counsel, members, friends.

Not on our knees, but standing shoulder to shoulder.

Tonight we are here to party, but we are also ready for battles ahead, with whoever takes over as Lord Chancellor, ready to deal with whatever new idiocies are inflicted soon us by the MOJ, and take on the Courts with their increasing managerialism.

So Thank you all for coming tonight, and your ongoing support for this Association.

We did ask the Public Law set,  whose Counsel earned well over £100k in that unsuccessful JR, whether they would as a gesture sponsor this event. They would not.

Thankfully therefore, our friends at Doughty St chambers stepped up and have sponsored tonight’s party. Their generous sponsorship means we keep the costs down, and have more drinks available. I thank them   

This event is not run at a profit, and I took the decision to dispense with the tradition of inviting Judges as paid-for guests. Of course, there is nothing to stop members inviting Judges as guests, or in years to come Judges buying their own tickets to attend, and I hope they will do so. Instead this year I chose to subsidise tickets for trainee solicitors or paralegals, and I am delighted to see some younger members of the profession here tonight, albeit slightly concerned about their ability to drink…..

You guys are the future, please join the Association and ensure it survives to serve your futures

I thought I would invite the Big Firms Group tonight, so I looked to their website to get contact details, but they do not have one. They have, so far as I can tell, neither website, constitution or elected officers. But they continue to have a seat at the table in talks with the MOJ. and are recognised by the Law Society as a practitioner group. This has got to stop. We have now way of knowing how many solicitors this group represents, although clearly it is representing the owners of those firms rather than the employees.

This association alone aims to represent the interests of all criminal solicitors in London:-

 Owners, managers, partners, salaried staff, big firms and small firms, legal aid or private. 

Of course we sometimes have competing or even conflicting interests, but we try to resolve these fairly, and we recognise we have more in common than those issues that divide us, we have re-learned the important adage that United we Stand, Divided we Fall.

Traditionally, this event was a black-tie dinner, with a top-table and speeches.

I  invited two special guests to this event to my “virtual” top table.

Firstly, the SoS for Justice,  the Right Honourable Michael GOVE MP.
Gove ended two tier, and reversed many other Grayling policies including the Criminal Courts Charge. He spent his first six months on prison reform, and the remaining time campaigning successfully for Brexit and unsuccessfully to be PM. As a result, he has largely left us alone, and I thank him for it.

Michael Gove has many failings

But manifestly less than Grayling’s 

He is, I regret to say, not here.
So, instead of Michael GOVE, I introduce to you… Michael GLOVE (introduces the Gove/glove  puppet)

And when you think about it, Gove is a bit like a right-handed glove- all fingers and thumbs, limp and floppy, and useless on it’s own…

My second invited guest is a good friend of Gove, Gary Bell QC

I thought it would be helpful for him to be here not just for us but for him.

As you all know, he has appointed himself chair of an advisory panel on the justice system, terms of reference unknown, and with his friends as members. He is also by his own admission sometimes ‘used as a bit of a conduit by the Criminal Bar Association’. I thought he may want to hear our views, I know you would want to share them.

He, I regret to say, is not here either.

I understand he holds strong views about solicitor advocates, who he says are :-

insufficiently qualified” and ‘not up to the job’, and firms that employ them are “venal”  (see here for full quotes)

I was hoping we could take the opportunity to put Gary straight on some of those views. 

But he has not replied, so instead I have Gary “Alarm- Bell”

And when you think about it, any lawyer making such pejorative comments. tick-tocking  away with ill-informed remarks about HCAs would be a bit of a clock, albeit without the second consonant.

And so I don’t have MGMP or GBQC here in person as actual entities, and I can present them to you tonight only as non-entities on my virtual top-table, and I stand between them, the Gove-end, and the other end.

A few thank you’s

To PSP (the firm with most attendees here tonight!)

To KN (continuing help and support for the Association including use of room for committee members)

To HJA (providing our regular training venue) 

To Sara, (our administrator) and my fantastic committee (a special mention to Rhona Friedman at Bindmans!)

To Stuart Wild and Nigel Edwards, from Save UK Justice, who have yravelled from outside London to be here!

To 25 BR who are here in numbers, and are sponsoring our Autumn conference in Ghent (along with 5SAH)

And To Doughty St for support tonight

On which note I would like to introduce and welcome from DS:- FFQC

Francis is currently vice chair of CBA, and soon assumes the helm. 

I wish him well, and I look forward to us working together.

So, two things – firstly a toast:  “the Association”

And secondly a warm welcome to FFQC and a show of appreciation to DS chambers!



Legal Action against Blair over Iraq- could it happen?

Could Blair be prosecuted for War Crimes?

British involvement in the Iraq War was recognised by some (such as Elizabeth Wilmshurst) even at the time as unlawful.

There have been calls for a prosecution of Tony Blair for his role in the Iraq war since at least 2005, and these have been renewed (see eg Lindsey German in the Guardian) following the publication of the Chilcot report. Initial opinions in the run-up to ublication of the report were that a Prosecution was unlikely (see eg this piece in Telegraph)

However, after the Chilcott report, lawyers and commentators began looking beyond a prosecution by the ICC, and considering other options eg Misconduct in Public Office.

Blair and Iraq: Conduct or Misconduct?

Tony Blair’s conduct in the run-up to the second invasion of Iraq could amount to misconduct in public office, Lord Macdonald (who was DPP between 2003 and 2008) has said.

Writing  for the Times,  Macdonald said  it “seemed very likely” that the former prime minister had “roundly abused the trust placed in him by the public” and accused Blair of “twisting both the evidence and the law”.
Macdonald told The Times: “It is the final disgrace that a British prime minister should have sunk so low as to twist not just the evidence but even the law itself, in order to send British men and women into a conflict for which there was no justification other than the satisfaction of his own desire for flattery in Washington. 

Millions of people will feel that if the law now has no reckoning for Mr Blair, then it is the law itself that is diminished by his disgrace.”

He added: “It is of no comfort that the consequences of Mr Blair’s outrageous manipulations are with us still in Syria, Iraq and throughout a world made radically more dangerous by his awful miscalculations.”
Lord Macdonald pointed to one example of “particularly egregious misconduct” revealed in the report, which appears to have happened when Lord Goldsmith, the attorney-general at the time, told Blair that any legal justification for war was utterly dependent on Iraq having committed “further material breaches of UN resolution 1441”.
Macdonald said: “Yet, without seeking any advice whatsoever, or calling for any evidence to determine whether this critical condition was met, Mr Blair simply expressed ‘the unequivocal view’ that such further breaches had indeed occurred.”

He added: “In behaving in this disreputable way to win tainted legal backing for massive armed conflict, it seems very likely that Mr Blair roundly abused the trust placed in him by the public.

“The only remaining question is whether he had a reasonable excuse. Mr Blair, of course, will resort to familiar claims of security armageddon in the event of Saddam’s survival in power, but Chilcott and history have combined to expose his defence as a busted flush.”

Prosecution of Blair?

Elsewhere, Joshua Rozenberg also suggests that Chilcot may have opened the door for Blair to be prosecuted (writing here in the Guardian). A careful appraisal (by Philippe Sands) of the Chilcot report, with focus on the legal advice at the time and the consequences now, is well worth a read (here in the LRB)

Civil Action

Families of soldiers who lost their lives in Iraq intend to sue (as reported here in the Telegraph) 

Review and analysis of options considered here on the BBC website

A crowd-funded legal action on behalf of families has been launched here. Read more about that in this powerful piece in the Justice Gap.


1 There is a bounty available for Blair’s arrest – claim via this link –

2 Few MPs in office at the time come out of the Iraq War debate with any credit, but one who does is Jeremy Corbyn (as argued in the Independent here)

3 There was at leat an imaginary prosecution, in the 2010 play The Trial of Tony Blair

4 There is a call for impeachment and prosecution here , and by Stop the War Coalition

5 There are also some petitions calling for Prosecution including this one from Stop the War coalition

6 Even the Deputy Prime Minister at the time now believes the war was illegal (John Prescott writing in the Mirror)

Below- cartoon by Dave Brown (Independent newspaper)


Michael GOVE -Justice Secretary

Following the Conservative election victory on 07 May 2015, Cameron replaced Chris Grayling as Justice Secretary (Lord Chancellor) with Michael Gove. Gove was sacked by incoming Prime Minister Theresa May on 14 July 2016, and replaced by Liz Truss. This blog reflects on his achievements and failures in office.

Pre Justice Secretary

Gove was previously Education secretary, attracting controversy and unpopularity in equal measure. A review by Ian Leslie of Gove’s successes and failures , together with his challenges ahead as Justice secretary, was published here in the New Statesman.

He  consistently championed cutting public expenditure, other than his own (the extent of his expenses claims outlined in the Telegraph here.)

 Comments on his appointment 

A cautious welcome and “improvement on his predecessor” said Jerry Hayes (barrister and former Tory MP)

An assessment and initial analysis in this article in Legal Voice

A piece by Tom Smith (writing for the Justice Gap) looked at the ongoing battle with criminal legal aid contracting and asked whether the approach to Gove should be Conciliation or revolution?

There was certainly nothing conciliatory in Frankie Boyle’s description of Gove as a tree-frog escaping a scrotum…

A website with opportunity to slap Michael Gove was launched and continues to attract regular hits (viaThis link.)

First speech

On 23 June Gove delivered his first policy speech since appointment, describing a “two-tier” system of justice.
My reaction via BBC News in this clip.

He identified the problem, but not the cause of the problem, making no mention of the Legal Aid cuts which led to two-tier justice.  He also failed to identify the solution (proper funding) , instead preferring to focus on “improved technology and increased digitalisation” and the notion that there might be more “pro-bono” work from better-paid commercial lawyers who may want to dabble in social justice.

Gove and Prison Reform

Gove was a huge improvement on his predecessor, apparently wanting to take a constructive approach to a prison service in crisis. Eventually there were reforms set out in Queen’s speech (May 2016) but lacking the investment needed to really tackle the problems. He had however already overturned Grayling’s ridiculed and unlawful  prison book ban.
Gove and Legal Aid 

Gove initially appeared set on implementing further cuts to Legal Aid, albeit by continuing with the proposals of his disastrous predecessor Grayling. He  declined to cancel the 8.75% cut which came into effect on 1st July, leading to a series of firms refusing to act in what was to all intents and purposes a Legal Aid Strike. Jack of Kent summarised the issues in his excellent blog “Gove and the Lawyers revolt.”

After several weeks of the Criminal Lawyer’s strike, the representative bodies (LCCSA and CLSA) were invited to meet Gove- a step forward from Grayling who would not engage. Further talks with MoJ were offered, and action was suspended as a “goodwill gesture”. Finally, the offer from Gove was communicated in September- a suspension of the latest 8.75% cut for three months, from January 2016. Tendering proceeded for “two-tier” contracts, and contract awards were made -but on a flawed basis. Unsuccessful bidders launched legal actions (for outcome, see “ending two-tier” below)

In the meantime….

Gove squandered taxpayers cash on empty Courts, with Courts closed to save money, but many remaining unsold (reported in the daily Mirror.)

MOJ and the Saudi contract

Goves efforts to extricate the MOJ from Graylings ill-judged commercial contracts with a despotic regime are explained here in an article by Jack of Kent.


Poem for Mr Gove (published on National Poetry Day last year)

Gove’s Visit to Highbury Court

In January 2016 the Lord Chancellor visited Highbury Corner Magistrates Court, with an army of  civil servants and advisers. He visited the Advice Service based at that Court, and every department but met no representative of the Defence Advocates. I attempted to engage him, and was able to present him with a letter offering to meet:-

We were advised that Mr Gove was indeed willing to meet a representative of the London Defence Community, for an informal constructive chat, and his advisers would set up a meeting as soon as possible. That was confirmed in several emails, but never happened. Gove was invited to the LCCSA Summer Party, but failed to attend and was replaced with a G(l)ove puppet.

Ending Two-tier contracting!

In January 2016 Gove finally abandoned Grayling’s plans for a two-tier justice system with this announcement. This was welcomed by most solicitors (see eg LCCSA comment) Detail and comment in this piece in Solicitors Journal.

Gove and Grayling

Cancelling two tier, ending the prisoner book ban and Saudi contract (above) and the Criminal Court Charge, meant that at least six of Grayling’s main policy disasters were now overturned. Read this useful summary of the top 6 reversals -within six months! Gove 6, Grayling 0

Missing in Action: Gove and Brexit

In February, Gove came out (in this Spectator Article) as a key cheerleader for the “Leave” campaign in the proposed referendum. For the next four months he was never out of the news- usually alongside Boris- as that toxic campaign rumbled on. I do not intend to include Brexit in this blog- suffice to say that tumbleweed blew around the MOJ offices, and most legal aid lawyers were just relieved to be left alone in peace and quiet, as were Human Rights lawyers (see below)

Gove and Human Rights

Abolishing the Human Rights Act was seen by some commentators as both the most urgent and most difficult task in Gove’s in-tray (see eg this analysis by Joshua Rozenberg) In practice, Gove (sensibly) did absolutely nothing about it.

The Gove Committee

During his period of MOJ abstinence Lawyers received the news about the “advisory committee” that Gove had promised in January (above) – but not from Mr Gove or even the MOJ – but from the apparent chair, Gove’s friend Gary Bell QC (aka “The legalizer“)  in this article (TLS Gazette 24/05/16)   Mr Bell appeared to have selected members of the Bar-dominated committee himself, comprising friends, colleagues and an instructing solicitor, leading the Law Society to question the diversity of the panel. Read more about Bell (and his controversial views on Solicitor-Advocates) here.

Personal Life

Gove is married to DailyMail journalist Sarah Vine, a glimpse into their relationship was offered by an email from her to Gove that was accidentally sent to the wrong address and then published, as described here (Guardian, 29/06/16). See also her account of the day after Brexit as Reported in the Daily Mail on the same day.

Tory Leadership bid

On 30 June Gove announced he was standing as a candidate to be the Conservative Party Leader (and therefore if successful, Prime Minister) . He did not resign as Justice Secretary. By 7th July he was out of the running, failing to attract support and generally ridiculed for his disloyalty. He was proved right about one thing – he was unsuitable to be PM.

Meanwhile, judging by the content it appears that somebody other than Mr Gove had registered the Gove2016 website…..


Post Brexit vote, Gove was now a Minister waiting for the axe. He had unfinished business that had been on hold during his electioneering- continuing  prison reform, and perhaps reforming the Court of Appeal (as argued by Julie Price in this powerful piece in the Justice Gap.)  Theresa May sacked Gove in appointing her initial cabinet, having assumed office the previous day.


Gove deserves two cheers, one for leaving human rights and legal aid alone, and another for positive noises on prison rehabilitation. Whether those noises amount to genuine reform is doubtful – see this analysis  (in “the Justice Gap”)

Confounding expectations, Michael Gove was a better Justice Secretary than most criminal lawyers or legal aid lawyers could have hoped for,  largely because he was an improvement on Grayling, which was admittedly a low threshold.

Michael Gove spent the first half of his tenure undoing the damage inflicted by his predecessor and the second half doing very little. 

On that basis alone, he was quickly missed, and initial assessments of his successor were underwhelming -see this assessment of Liz Truss.

Gove-Post Justice Secretary

Gove returned to journalism, writing for the Times. He had been a staunch cheerleader for Rupert Murdoch, even during the Leveson enquiry (leading to this call by Ian Hislop for an investigation)


The classic video of “Michael Gove falling over” (a YouTube classic)

Gove at Oxford Union Debating Society reveals what is under his kilt, and in so doing reveals also his character (Here)

Below- an effigy of Mr Gove making an appearance at a Save UK Justice rally, January 2016



The Magistrates Court- Managerialism vs Justice

 A Fair Trial in the Magistrates Court? 

This blog has been updated following an earlier draft  published here on LCCSA website. 

This is an ongoing issue, and the blog will be updated. (Comments, examples of injustices arising from managerialism or links to related articles are welcome and can be incorporated -email

A “Legal Advice Note” issued to Magistrates in June (extracts below, and in full Here) casts doubt on whether a citizen accused of a criminal case can secure a fair hearing in the Magistrates Court, and is illustrative of changes which cumulatively may have, without public debate, reversed the burden of proof.  
Practitioners in Criminal Law have become used to a fast pace of legislative changes and Judicial Policy, along with the incorporation of Criminal Procedure Rules, Speedy Summary Justice, Transforming Summary Justice and more. 

Some have raised concerns that the cumulative effect has reversed the burden of proof.

Most carry on nonetheless representing the best interests of their clients and the interests of justice to the best of their ability. On occasion, to do so requires more time, and it may be necessary on the first hearing of a case to ask for an adjournment.

In seeking an adjournment, the lawyer (at least in legal aid cases) has no financial advantage. Cases at the Magistrates Court are paid as a fixed fee, with no increment for travel or the inevitable waiting time. it follows that a lawyer seeking an adjournment is likely to be doing so in the interests of justice rather than financial gain. Reasons can include;-

-To obtain proper disclosure of evidence, in order to properly advice on plea (see eg the protocol devised by CLSA to highlight this frequent difficulty) 

-To seek a referral back to the police to receive  a “caution” rather than prosecution, particularly in the Youth Court

-To make representations to the Prosecution, where those cannot be made or considered on the day (eg if an “agent” or “Associate” prosecutor is at Court without authority to respond) 

-To obtain a psychiatric assessment for a client with apparent mental health issues who may not be able to provide instructions.
How are such apparently reasonable requests to be approached by the bench or District Judge?

The answers are set out in this guidance (circulated to magistrates) and some extracts of which I include here:-


Date: June, 2016

Issued to: Magistrates, District Judges (Magistrates’ Courts), Legal Advisers and Court Associates 

Issued by: HM Courts Service Justices’ Clerk
Subject: Case Management Good Practice – Legal Advice Note 

Always take plea at the first hearing

Rule 3.9(2)(b) Criminal Procedure Rules 2015 requires the court to take the defendant’s plea at the first hearing. 

The following are not good reasons not to take plea: 

I should have got a caution: this is no basis for not taking plea. See Legal Advice Note 3 of 2014. The decision in R (F) v CPS and the Chief Constable of Merseyside (2004) 168 JP 93, emphasises that if a reprimand, warning, or caution is offered at the police station but the suspect declines to make any admissions at that time, they are not entitled to rethink their position once charged and require the matter to be returned to the police station for diversion. Neither the CPS nor the police are bound to act in that way. This means that it is inappropriate to adjourn an adult or youth offender for consideration of a caution where that youth or adult did not make a clear admission of the offence at the police station. The court should proceed to sentence. Defence advocates will sometimes urge the court to adjourn but such requests such be refused where the youth or adult defendant failed to make a clear admission at the police station whereby a caution could then be considered. 

The defendant has mental health problems and a psychiatric report is needed before plea can be taken: this is not normally a basis for not taking plea. There is no fitness to plead procedure in the magistrates’ court. The court must follow the statutory procedure set out in s11 Powers of Criminal Courts (Sentencing) Act 2000 or in s37(3) Mental Health Act 1983. Seek the advice of your legal adviser. 

For defence to make representations to the CPS: any representations should be made at the first hearing and the prosecutor can decide on them. In any event plea should be taken. If a NG plea is entered then a trial should be fixed but with a review hearing before the trial if the representations might make a material difference to whether the trial proceeds or not. 

Because the IDPC is not adequate: Initial disclosure of the prosecution case (IDPC for short) is governing by the Criminal Procedure Rules. The relevant rule is Rule 8.3 

There is a long section within the advice note on disclosure – see the full note for detail)


The Legal Advice Note includes :-

Rule 3.9(2)(b) Criminal Procedure Rules 2015 requires the court to take the defendant’s plea at the first hearing”.

That is in fact only part of rule 3.9(2)b which in its entirety reads:-

 “At every hearing the Court must, where relevant, (b) take the defendant’s plea, or if no plea can be taken find out find out whether the defendant is likely to plead guilty or not guilty”

You may think that this is not exactly the same as the wording of the Advice Note.

As for the remainder of the “advice”, none of this is new, but it may shock some to see set out in such stark terms the modern Judicial approach at the Magistrates Court.

If you represent a youth of good character who was unrepresented or poorly advised at the police station,who made no comment but is now admitting the offence- well, bad luck, plead guilty and they will have a conviction.

-If your client is impaired with mental illness but appears on a day when the Court Duty Psychiatrist is not present, well never mind.

-If you cannot get a decision on representations about a plea on limited basis or to a lesser offence, don’t bother asking for an adjournment, plead Not Guilty, spend half an hour completing a case-management form, set down for trial and take up half a day of Court time, and hope for a Prosecutor who may review somewhere pre-trial.

-And if your disclosure is inadequate, and you wish to cite the CLSA protocol or Law Society Guidance, or act in accordance with your professional duty, remember your client “must know whether they are guilty or not”, and the “credit” for pleading guilty will disappear to be replaced with a punishment for seeking to do the case properly in what is still an adversarial system with a supposed presumption of innocence. 

Do these rules and practice notes actually help with the professed aim of convicting the guilty and acquitting the innocent, or only the first half of that ambition?


The LCCSA and others believe things have gone too far in tipping the scales of justice against the right of a defendant to a fair trial.
The burden of proof is under attack, managerialism and bureaucracy appear to be prized above justice, with the emphasis on “cracked trial rates” , adjournment statistics and “guilty plea rate”.

The LCCSA, with CLSA, CBA and The Law Society, have raised these issues at a meeting with the Senior Presiding Judge, DPP and Chief Magistrate. Consideration is being given to amendments to the CPR, and we have asked for a Judicial clarification that there remains a discretion to adjourn cases where in the interests of Justice to do so.


The Legal Advice Note was circulated to Magistrates in Kent. We know it has been forwarded to at least some regions of London, although unclear if adopted. I am grateful to Andrew Keogh for this clarification of the status of this advice:-

The status of the advice is to be found in ss 28(4) and (5) Courts Act 2003: (4)The functions of a justices’ clerk include giving advice to any or all of the justices of the peace to whom he is clerk about matters of law (including procedure and practice) on questions arising in connection with the discharge of their functions, including questions arising when the clerk is not personally attending on them.

(5)The powers of a justices’ clerk include, at any time when he thinks he should do so, bringing to the attention of any or all of the justices of the peace to whom he is clerk any point of law (including procedure and practice) that is or may be involved in any question so arising.

The LCCSA believe that Judges and Magistrates, if relying on or considering Legal Advice Notes, should state so in open Court, providing a copy and an opportunity to respond. Open Justice requires transparency.

Mayor of London’s housing chief James Murray: it’s just not cricket

Howzat!! Islington Cllr James Murray, newly appointed deputy Mayor for Housing, was wined and dined in a private box at Lords in 2013 by a housing company according to this article in Islington Gazette.
Caught out? Or bowled a googlie in an unfair presentation of the facts?
The story had legs because Cllr Murray, not shy of attacking opponents as “arrogant and greedy”, was himself at the time the Labour lead Cllr for housing in Islington, a portfolio for which he was handsomely rewarded by the Council Tax Payer in the form of the high allowance that he and colleagues voted for. In short, he could have paid his own way.

There is no doubt that Murray is dedicated to campaigning for more affordable housing, saying recently “Islington is in desperate need of family homes for social rent, particularly while low income families bear the brunt of cuts”.
I do not criticise him for taking an opportunity to network at a hospitality event, and I make it clear that there is no suggestion that he was put under any improper pressure, or that there is anything untoward in the invite or his acceptance of it (and as the Gazette makes clear, this story only came to light because he quite properly declared it)

What intrigues me is  Cllr Murray’s desperate explanation (when challenged) for attending a cricketing event given that he implausibly claimed to have little understanding or enthusiasm for the sport (despite having attending public school). 

His quote in full:-

When asked why he could not have a discussion about Islington’s housing priorities in a different setting, Cllr James said there was a broad range of people at the event and it was an opportunity to talk to them all.
He said: “I don’t know much about cricket and I still don’t after going to the match as I took it as an opportunity to talk to people.”
“I went there because it was a chance to speak to lots of people and other councils about the needs of Islington.”

I am not sure the other (unnamed) people enjoying Family Mosaic’s hospitality and trying to enjoy the cricket would have been bowled over by being talked at by Cllr Murray about the needs of Islington, or what that would have achieved. A waste of Cllr Murrays time, an annoyance for others, and certainly a waste of a ticket.

James Murray was one of Islington’s finest Councillors, but previously claimed that he “nearly had to leave Islington altogether” as a newly elected opposition Cllr back in 2007, as the rental market was “unaffordable” (this was before his Executive Allowance ) Thankfully Islington Labour MP Emily Thornberry helped out by buying a Housing Association properly at auction, and renting  out “cheap and cheerful rooms to young peoples”, one of whom was Cllr Murray.
(Full story in Camden New Journal)
It was that tough background that helped forge the young Cllr into the hosing campaigner he became and the high-salaried Deputy Mayor for housing he has become.
So let him not be judged harshly for his freebie. But if Family Mosaic want to invite people in future to talk about housing AND enjoy the cricket, let them start with their tenants. They may deserve it more, they would certainly enjoy it more.

The James Murray cricketing playlist



Speech at CLFS Conference, May 13 2016


I am now all that stands between you and the Friday evening drink, and all that stands between you and the weekend. I therefore hope to be brief.

Although probably not as much as you hope that I will be brief.

I have been asked to speak on the topic of “the victory”, or the “win” by which I think is meant the climb-down earlier this year by the MOJ in respect of two tier contracting.
I have to say that this was very much a Pyrrhic victory, and although there was much relief, there was only muted celebration.

Much time, energy – and money – had been expended on tortuously difficult tendering documents, much anxiety hanging on the results. Firms had closed or merged in anticipation of the outcome, or planned mergers. Solicitors changed firms- only some voluntarily.

Some were bidders, some not, some “winners” some losers.

Then when contracts were awarded, those unfairly left out were minded to challenge the outcome, potentially in conflict with those awarded contracts.
What was Two Tier ?

Accompanying another 8.75% fee cut, yes the follow up to a the first 8.75% cut we had already absorbed, TT was the controversial contract-tendering procedure which would restrict the number of law firms permitted to do duty legal work. 

It was hatched by the MOJ and initiated by Chris Grayling, the previous Injustice Secretary. It was supported -encouraged even- by some firms in the BFG.

It threatened to wreak havoc on a supplier base acknowledged to be fragile, and for comparatively modest savings.

This proposed enforced consolidation of the profession would have been effectively forcing many solicitors’ firms to merge or close.

This, despite an acknowledgement that over the last parliament annual spending on legal aid was reduced from £2.4bn to £1.6bn.

What went wrong?
TT was wrong in principle, but to add insult to injury it was ultimately botched in application.

Contracts were awarded, and a whistleblower revealed the marking had been carried out by unqualified temps from a recruitment agency. 

So unsuccessful firms took legal action against the MOJ….

Take the example of EFBW:-

In October EFBW were informed by the LAA that they had been narrowly unsuccessful in their attempt to obtain a legal aid contract for duty solicitor work in Hackney, Newham and Tower Hamlets. EFBW brought legal challenges (represented by Bindmans) against the results of the procurement process in all three areas. Almost 100 other firms brought similar challenges.
The LAA then admitted that it made a basic transcription error in scoring at least one of EFBW’s bids, and that consequently EFBW should have been awarded a contract in Hackney. 

The possibility of such an error was identified by Bindmans in October, but was not addressed by the LAA in pre action correspondence and a formal offer of ADR was not taken up. 

The LAA sought to resist disclosure to other firms, and a Court order had to be requested.

Even after disclosure, the LAA ignored requests to settle EFBW’s claim and proceeded to file a defence that admitted the error but failed to acknowledge the consequences. Only later did they acknowledge that if the error had not been made, EFBW should have scored higher than at least one of the purported successful bidders, and therefore should have been awarded a contract.

The LAA still refused to settle the claim despite the fact that it should never have had to be brought, and summary judgement was sought.

So, increasingly firms involved were confident of victory, but the case rumbled on.
The Announcement.

In January the SoS for Justice, MIchael Gove announced that the plans for two-tier contracting and the cuts of 8.75% to legal aid fees for duty criminal solicitors were to be suspended.

This was a policy U-turn which followed many others, as Gove re-planted the scorched earth of the Grayling period.

Announcing the about-turn in a Commons written statement, Gove pointed out that awarding a limited number of “dual contracts” – under which solicitors take on duty legal aid work at police stations and magistrates courts as well as represent their own clients – would lead to a less diverse and competitive market.



 We had pointed out that natural consolidation was already taking place in the criminal legal aid market, as crime reduced and natural competition took place.
Gove also accepted his department had already made substantial savings.
Secondly,as he said:-

 ” it has become clear, following legal challenges mounted against our procurement process, that there are real problems in pressing ahead as initially proposed. My department currently faces 99 separate legal challenges over the procurement process, which has required us to stay the award of new contracts. 

In addition, a judicial review challenging the entire process has raised additional implementation challenges. Given how delicately balanced the arguments have always been … I have decided not to go ahead with the introduction of the dual contracting system”
So ultimately it was the lawyers wot won it, using the only effective tactic in our armoury- the law.

We can celebrate the acts of those in the litigation that argued the tendering process was fundamentally flawed. There was also support even from those not directly involved:

big firms and small, private and legal aid, 

two-tier contracts, single-tier contracts and lots- of -tears no contracts.

History of Campaign

Before the “victory” there were other battles in the ongoing war, with many skirmishes along the way. By ongoing war, I mean the continuing battle for legal aid lawyers to be properly paid.

First there was a consultation, or bearing in mind it was from the MOJ a NONsultation.

That was flawed, and had to be re-run.

Then there was the tendering procurement scheme itself, and the JR in which we argued the whole scheme was irrational. 

The LCCSA was proud to have fought that battle, together with CLSA and TLS.

We lost.

And it was expensive.

We campaigned and fundraised.

Many of you contributed – thank you.

Counsel’s fees from a leading Admin set totalled around £150k (which goes to show why we should practice admin law not crim law)

That meant, despite generous donations, we depleted our reserves and gave our treasurer sleepless nights. 

So the fact that we have survived as an Association, with membership steady, and in a period of consolidation, is a victory of sorts.
But campaigning had started long before the litigation

For example:-

On May 22nd 2013 the LCCSA organised a demo which generated national coverage

On the afternoon of the same day there was a national meeting attended by 1000 solicitors and barristers. 

On 4th June (the closing date of the first consultation) another demo organised by solicitors outside the MOJ again with considerable national publicity. 

By March the following year there was a day of action, a withdrawal of services from courts, called in some quarters a “strike”.

We had No Returns.

We had a protocol where firms agreed to sign up no new legal aid cases. Only a small minority breached that, some reluctantly for vulnerable own clients only, and fewer still took an opportunity to clean up or profit.

We learned solidarity, and began to trust each other.
But the truth is so far as funding is concerned, for years we have endured a slow death by a thousand cuts, a sustained attack, and only belatedly we learned to fight back. 

We campaigned, protested, demonstrated, withdrew services, and went on strike.

We battled the most odious and incompetent of Lord Chancellors, the infamous Chris Grayling.

To be perfectly blunt, he was a bit of a

difficult man to engage with.

Grayling, known by all as “failing Grayling” was described by JH as a “turd that couldn’t be flushed”.Grayling didn’t like lawyers, and the feeling was mutual.

So, we rallied in Parliament square, outside Westminster Magistrates Court, the Old Bailey and MoJ HQ, and we walked from Runnymede to Westminster.
And we took legal action against the MoJ, with our JR at the High Court.
Much of this achieved little at the time, so maybe the “win” in January is something we should cherish.

The New Legal Aid Landscape

Right to legal aid is ‘basic human right’, Jeremy Corbyn told a Justice Alliance meeting at the start of this year. 

Whether you area Corbynista or not, the fact that the Leader of a Political Party – the leader of the opposition no less – not only mentions legal aid but does so in a supportive way is a significant development.

Labour have initiated the Bach review into Legal Aid, and Gove has said that he is convening a committee or forum to discuss legal aid in a constructive way.

There was nothing constructive about relations/negotiations with Failing Grayling, so the political landscape has certainly changed.

Two years ago, Paul Harris spoke about the need for unity.

At that time, relations between leadership of the criminal bar and solicitors had reached a low point. Last year Greg Powell again spoke on the theme of unity. This followed a slightly fractious period- relations between solicitors and our friends at the bar had become strained. Like an old married couple, we were bickering, but I think we are living comfortably together again now.

At least until the next row! 

We are working constructively on proposals for AGFS and litigator fees to try and make sure we are all properly paid for the work we properly do.

We can learn from what happened when Grayling successfully sought to divide and rule.

The lesson of unity is a simple one, especially where we have a common enemy.

United we stand, divided we fall.
Current Campaigns

There is always some horror lurking around the corner.

 Currently, during this quiet period when Michael Gove has become the SoS for Brexit, our friends at the Sentencing Guidelines Council are consulting on the amount of credit for guilty pleas- and with some alarming proposals out there to reduce the incentive if the client didn’t cough and confess at point of arrest. 

If not before.

Yes its acronym time – Bloody Case Management, Dire Case Systems and Pressure to Plead Hearings. 

A good idea in principle- less hearings, less paper.

But the underlying problems have not gone away -inadequate disclosure, late disclosure, lack of legal aid, problem getting prison visits etc.

The LCCSA and CBA have worked hard to try and help this work, at a series of meetings, from the National Implementation Team (NIT) to the London Implementation Team (LIT)

Thankfully there hasn’t been further devolution to the Central London Implementation Team, or the South Hampstead Implementation Team, the anacronym of which may best sum up the whole mess.

Gove didn’t just abandon two-tier tendering.

He had already reversed many of Grayling’s money saving initiatives, including 

-the ban on prisoners receiving books from their families 

-the equally detested criminal courts courts charge, (the mandatory payment of up to £1,200 imposed on all convicted defendants irrespective or means or ability to pay

He forced the government to cancel a £5.9 million contract to advise the Saudi Arabian prison system.

He scrapped the commercial wing of the Ministry of Justice after human rights concerns.

And Gove abandoned plans to build a £100 million “secure college” for teenage prisoners.
But where is he now?

Missing in Action
He popped up at HCMC at the start of this year on a day where I also happened to be there, and as he was meeting everyone but the defence I ambushed him with a letter requesting a meeting, and he agreed.

We are still waiting.

But perhaps no news is good news.

We have had enough of diktat and pronouncement by highly paid civil servants at the MOJ , and we have had enough of cuts.

 We cannot take any more.

The sustainability of the justice system relies on proper preparation and presentation of cases.

We all play our parts- barristers and solicitors.

Brothers and sisters in arms.

So yes we had a victory in January, but let’s not be fooled- that was a battle, and so far as legal aid is concerned there is an ongoing war.

At least we no longer have Grayling, who managed to combine total war with Cold War.

But depending on the outcome of the Euro Referendum, we may not have Mr Gove much longer, and who knows who will succeed him?
The LCCSA had virtually -and by necessity- re-invented ourselves as a campaigning organisation.

Thankfully, we have put the banners and t-shirts away, at least for now , and gone back to our core business- training events, representing criminal lawyers in London whether doing legal aid or not, and of course our famous social events.

Which presents me the chance to do my one “plug” – the LCCSA Summer Party, July 8th!

So it’s a half- cheer for the Victory in January, and a relief that we can get back to our day jobs.

Some of us will always remember where we were on the day when we heard the news of Gove’s announcement abandoning two-tier. 

I certainly remember going to the pub to meet fellow lawyers to celebrate the victory.

Unhappily, I was in “dry January” and celebrated without the assistance of alcohol.

That bleak month has long passed, and I promised not too keep you too long from your drinks.

So I hope to see some of you in the pub- Steve has the details- and let us raise a glass to justice, celebrate solidarity, drink to the health of legal aid, and share a toast -to Victory.


Greg Foxsmith

President, LCCSA