Category Archives: Civil Rights

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COURT AVAILABILITY– See here: http://www.freelanceadvocacyservices.uk/

Other than pre-booked trials, I am now contracted with with Kingsley Napley until June this year. I am of course still accepting bookings for criminal and regulatory cases from July onwards Book via gregfoxsmith@msn.com  

Charter for Justice- for a Fair Justice System

Charter for Justice- for a Fair Justice System- guest blog by Raj Chada

Just  5 months ago, we welcomed the “Lammy Review”  into inequality of outcome for black and ethnic minority defendants, but questioned whether it could change the landscape. .
We know that nothing has changed, but that the whole criminal justice is close to collapse.

Justice on the cheap means no real justice for any community – but it will always, and indeed has, affect most those that are discriminated against , those with limited means , those with no voice at all.
That is who we must in a Charter for Justice.
David Lammy was comissioned to prepare a  report (an   ‘independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System “  in response to the over -representation of BAME individuals in the criminal justice system.
You are 17.5 times more likely to be stopped and searched if you are black
45% of those in youth custody are from an ethnic minority – a higher percentage than the US.

I borrow from the LCCSA response to Lammy – If you are a defendant in the Crown Court (and certainly should you reach the Court of Appeal) you can expect white Judges, mostly men and often still an all-white court room. Imagine roles are reversed. Imagine if you are white appearing in an all-black courtroom where you believe you have been harshly treated. Later you might read of higher sentences for white people, or that white deaths in custody never result in any prosecution. That white youth are disproportionately stopped and searched. You may imagine a lack of equality in the criminal Justice processes.
Think of that role reversal when you ponder why Lammy said that there was a trust deficit ; and then ask ourselves how that is not top of the agenda for Justice Secretary, every minute of every day of every week of every year that he or she is in office.
Think of that when you consider that the real trend is abolish any pretence of establishing a system with balance and checks, professionals exercising judgement from experience and training. With legal aid fixed cases cut to the bone, and a pressure to plead guilty,  there is insufficient time to develop relationships with clients ; to consider, review, analyse  the papers, and to properly advise clients. The   MoJ response to Lammy pointing out the lack of trust for BAME is not to re consider how fixed fees operate ; not to look at the absurd rates of pay in police stations, to demand at how the professions train and recognise the needs of the communities that they serve….
but to welcome the development of an app that can be used to explain people rights in custody.

The MoJ rejects the idea of accountabilty for the judiciary by feedback from users – lawyers, defendant or victims as if it will mean those that are aggrieved by decisions will use it as a complaint mechanism.
The MoJ offers nothing new about how to increase diversity of judiciary, – of the senior judiciary 81% went to Oxbridge, 76% went to fee paying schools and half went to boarding schools.
Enough already.
We need concrete action ; not the luke-warm response to the genuinely innovative idea of deferred prosecution for youth offending that will allow youngster not to have a criminal convictions on an agreement of behaviour in future. Good enough for a multi national company caught defrauding millions of pounds – not good enough for the balck defendant in Brent that was caught shoplifting for £50.
Of course I know that the solution to this is wider the CJS It requires us to help individuals through support and intervention, to hold individuals to account through community mechanisms and to develop that individual so that he has sense that he or she belongs and has a stake.
The solution as to why so many BAME youths do not feel they have that stake is political not legal: An active well-funded state that exists to help all its citizens, not just one section would benefit everyone, not just BAME communities. It is why we must make common cause across civic society with Trade unions and others…
We must start with CJS. This is not just about pay for us – it is about our participation in a public service, with our own roles to play and that the same system of justice should exist no matter what the social status, race or means of the victim, no matter what the social status, race of the defendant.

If we don’t have that now, we should be prepared to fight to achieve it.

That is why striving to achieve a fair Justice system must be part of the #Charter4Justice that we must all fight for.

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Raj Chada, (Partner, HJA,). 26 March 2018

The above is the text of a speech given by Raj at the launch of the Charter for Justice, 26 March 2018 (edited by Greg Foxsmith)

Notes

See also blog  “Lammy- we must not be silent”

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Charter for Justice -prison and probation reform

On a humane and effective prison and probation service

Guest Blog by Dr Laura Janes, (Legal Director of the Howard League)

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This is the text of a speech that Dr Laura Janes gave at the launch of the Charter for Justice on 25th March 2018 

The Howard League for Penal Reform was founded in Charles Dickens’ Britain in 1866 – over 150 years ago.

How fitting then, if utterly depressing, that we are now dealing with a prison system that retains Dickensian features.

Dickens describes the children in the jail that backed onto the Old Bailey as “hopeless creatures of neglect”, children without a childhood.

Every day, at the Howard League, we provide legal support to children and young adults in prison through our free advice line.

There are fewer children and young adults in prison today than there were 10 years ago – one piece of good news.

But that is where the good news ends.

• 45 per cent of children in prison are from black and minority ethnic backgrounds– even though this group accounts for just 18 per cent of the general population.

• One third of all children in prison can expect to spend time in isolation, sometimes for prolonged periods, such as AB, who I represent – a 15 year old child who spent over 23 hours a day locked in his room for 55 days, solid. The High Court ruled that was unlawful but fell short of inhuman and degrading treatment – a point we are appealing to the Court of Appeal.

• The recent snow inexcusably led to many children being locked up in solitary confinement for days on end – due to staff shortages. We heard of one child who was allowed out of his cell once in a two week period for a visit with his foster mother. He reported that on the way to the hall, he reached out to touch the snow but was sharply told not to by the guard.

• Violence and harm is rife. In the five years leading up to 2016 the Youth Justice Board says that

o The use of force increased by 36%

o Assaults increased by 95%

o Self harm increased by a staggering 120%

• Exposure to, let alone experience of these things, would give rise to a child protection referral in the community

• It is not surprising then that Chief Inspector said last year that no prison he inspected was safe for children and young people

• Since legal aid cuts for prisoners in 2013, calls to our specialist legal advice line have increased by 62 per cent.

Sadly, the reduction in numbers for children and young adults have not been mirrored among the adult population.

At any one time we have over 80,000 men, women and children in prison. The prison population has more than doubled since the mid-1990s. We lock up more people than any other nation in Western Europe.

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No public service in England and Wales has deteriorated more dramatically and more profoundly in recent years than our prison system.

Someone takes their own life in prison once every five days. Over 2000 people have taken their own lives in prison since 1990.

Three in four men’s prisons are holding more people than they are designed to accommodate.

Wandsworth prison, for example, is designed to hold no more than 943 men. But it currently holds 1,564 men.

On top of that, our prisons are reeling from poor upkeep, after Chris Grayling handed the £200 million pound maintenance contract to Carillion in 2014.

This situation is inhumane for the prisoners and unmanageable for those charged with their care. Staff numbers have been reduced since 2012 by up to 40 per cent, making the so-called transforming rehabilitation agenda impossible to achieve.

Nor is it effective. One third of prisoners reoffend on release,

Turning to our probation service. It has been split in two. The national probation service has been absorbed into the failing prison service. Pressures on probation officers are unsustainable. The “less serious” cases have been farmed out to private Community Rehabilitation Companies, who in the words of the Public Accounts Committee last week, “the Ministry accepts … were plainly not working as intended”. The Ministry has agreed to pay them up to £342 million pounds more of taxpayers’ money but can’t explain what it is getting back for its money. Pausing for a moment, that figure is around ten times the amount the Ministry hopes to save from this latest round of criminal legal aid cuts.

With David Gauke, we have our sixth Lord Chancellor in as many years.

That fact in itself suggests a contempt for justice and total disregard for the importance of the justice system. Yet, the notion that the way we treat our prisoners is a measure of the strength and virtue of the nation is as true today as it was at the turn of the century.

I am glad that we have moved from the deplorable ideological attack on prisoners, spearheaded by Mr Grayling in the form of cuts to legal aid for prisoners.  Those cuts were an affront to the rule of law. The whole point of the rule of law is that “everybody matters”.  Legal aid was designed as an equalising measure to allow everyone to access justice. The lawlessness within our prisons today is unacceptable. How can we possibly hope to instil respect for the law in prisoners if we exclude them from its protection?

I am proud that, along with the Prisoners’ Advice Service and over a five year period, our successful challenge to the Court of Appeal has seen the first areas of legal aid brought back into scope since LASPO – even though prisoners are still effectively denied access to justice in some important areas. It is also good that in Rory Stewart we have a Prison’s Minister who is taking the crisis in our prisons seriously. But they need more than just a jolly good clean.

I delighted to be here today at the launch of a Charter for Justice calling for:-

Less people in prison

– A humane and effective prison system and

– An end to the two tier failing semi privatised probation service

Laura Janes, 25 March 2018

Note- the charter for Justice is here

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Book Review: Jeremy Hutchinson’s Case Histories

Title -Jeremy Hutchinson’s Case Histories
Author-Thomas Grant QC
Publisher – Hodder and Stoughton

An earlier version of this review was published in The London Advocate here

As the title suggests , this book summarises some of the many illustrious cases in which Jeremy Hutchinson appeared. It is not a conventional biography, and all the better for it.
Hutchinson was defence counsel of choice in some of the greatest trials in the 1960s and 1970s. His roll-call of cases includes defending both Christine Keeler and Howard Marks, as well as appearing for Penguin Books in the “Lady Chatterly” trial.
He was always well prepared, speaking fearlessly to Judges and clearly to juries.
What is clear is that as much as highly regarded, he was also greatly liked, by colleagues, solicitors and clients alike. He is one of those characters about whom it is hard to find anyone having a bad word to say, and his natural modesty meant he never put pen to paper to set out an auto-biography, despite several invitations to do so.
Thankfully, Thomas Grant QC, who met Hutchinson (now over 100) a few years ago has performed a valuable service in penning this book, telling (thematically rather than chronologically) the stories of some of the best cases from Hutchinson’s career.
Each fascinates, and even those that are already familiar pieces of social history are brought vividly to life. Hutchinson is the “golden thread” that binds together the battles played out in the Old Bailey- defending alleged spies and traitors, peace protesters, art thieves, and battling against reactionary forces- from heavy handed Government to Mary Whitehouse. This is a book that is informative but also a pleasure to read, and should appeal equally to a wide readership, not just (as is often the case in legal biographies) lawyers.
Grant makes the case that Hutchinson represents the finest traditions of the Independent Bar.
He certainly had the right background (son of an eminent QC and Judge, public school education followed by Oxbridge, and an opportunity to be a Judge’s Marshall with a “family friend”). He bought his first home with the proceeds of a Monet painting that he had been gifted. That’s not the start that all of us enjoy.
Hutchinson was nonetheless happy to take on the establishment if that what was justice required, and did so defending without fear or favour.
Hutchinson also had an extraordinary upbringing- the family being connected with the Bloomsbury set. For this reviewer, the introductory chapter that charts the connections with numerous well known luminaries of the era was the least satisfactory. Of more interest are the wonderful portraits in the case histories of some of the legal characters of the day-an array of cantankerous opponents and eccentric Judges.
Reading about the trials is a reminder how much has changed from what was a truly adversarial system to the case managed process of today. Here you will be reminded of the days of contested committals with live witnesses, defences not disclosed until the start of the case, the right to jury challenge, and the absolute right to silence without adverse comment.
In one case, Hutchinson introduces without prior notice a defence witness who would only identify himself as “Agent X”, who purportedly worked for the Mexican Secret Service and gave evidence that the defendant had also done so. No “Notice of Defence Witnesses” required!
The longest case that Hutchinson ever conducted was a multi-handed drug importation which lasted two months. Now similar cases can last much longer, due to the modern tendency to “read” or play long passages of intercept transcripts, and lengthy mobile telephone and cell-site material. But it is not just trial length that has increased- so have the length of sentences, leading to a phenomenal rise in the prison population. Heavy sentencing and overcrowded prisons are matters that Hutchinson deprecates, and in his retirement from the bar he has, amongst many other worthwhile endeavours, supported Penal Reform and campaigned for the abolition of the “dock”.
We need advocates of his calibre and courage just as much today, to challenge the power of the State with it’s increased surveillance powers, and discrimination and prejudice that still exists in the CJS as the Lammy report has revealed.
The book concluded with a postscript from Jeremy Hutchinson himself, then a sprightly almost Centurion. He explains how when called to the bar there was no formal advocacy training, and he learned his trade by countless appearances in the Magistrates Court. This will strike a chord with many solicitor HCAs who trained in the same way, yet are criticised by some at the bar for “lack of training”. He laments Government cuts to Legal Aid, and lambasts a recent incumbent of the office of Lord Chancellor- the odious Chris Grayling. Still forthright, his views remained cogent to the end.
This book is an affectionate tribute to one of the greats of Adversarial Advocacy. Mr Grant clearly grew to like Jeremy Hutchinson very much. After reading this book so will you.

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Lammy Review-We lawyers must NOT be silent

Colour-blind justice? – the long-awaited review by David Lammy MP on race and the criminal justice system released in September 2017 concluded that the system discriminates against black, Asian and minority ethnic people.

We already knew that. The disproportionality in outcome between different ethnic groups in the Criminal Justice system been known of and remarked on for as long as I can remember. Nothing meaningful has been done.

Young black people are nine times more likely to be locked up in England and Wales than their white peers, The report delivers some recommendations on how to fix this, some better than others. (See this Summary in the Law Soc Gazette)

The report also noted  that because black defendants distrust the system, they tend to plead not guilty in court – disqualifying themselves from the reduced sentences that can come with an early guilty plea. Lammy calls for deferred prosecutions where suspects can have charges dropped by completing rehabilitation; basing criminal responsibility on a suspect’s maturity rather than age; and wiping the slate clean earlier for young offenders who rehabilitate, so they can get on with finding employment. Lammy, writing in the Guardian, calls for urgent action to implement his recommendations which require political support and legislative action.

But what can lawyers do within the system to combat the ongoing systemic imbalance? The discrimination which underlies these stark statistics is institutionalised, but covert, and as it is never openly expressed remains unchallenged.
We all know what the problem is, but what  are we going to do about it?

Usually, the answer do the question “what can we do?” is “nothing”.
We need new answers.

There is already a “trust deficit”. To win back trust, we need to deserve that trust. #WeMustNotStaySilent

We have to talk about Discrimination. Prejudice. Racism.

We have to challenge why some parts of our profession have race inequality https://www.thetimesbrief.co.uk/users/39175-the-brief-team/posts/28590-white-students-dominate-bar-pupillage-intake

We have to challenge the Police about their charging decisions.

We need to raise the issue of sentencing disparity in Court. The  Magistrates need to hear it, and our clients need to hear it.

We have become complicit in an unfair Justice system.

To stay silent is no longer good enough.

There was an event for Lawyers to discuss his report on 2 October 2017 at Kings College which David Lammy attended and I chaired. (Panel: Sir Anthony Hooper, DPP Policy Advisor Sara Carnegie, Sandra Paul of KN, Courtney Griffiths QC of 25 Bedford Row and Judy Khan QC of Garden Court)

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A review of the event is here or you can watch a video of  whole thing here

The Lammy Review equips us with the evidence and the stats to challenge injustice, particularly prevalent in the Youth Court.

When appearing in the Youth or Magistrates Court representing a young black defendant, dare we say to the bench in our closing submissions “my client is worried that statistically he is more likely to be convicted, and when convicted sentenced higher, than his white contemporary”? 

Traditionally we would not raise that directly, for fear that we may be thought to be accusing the bench of bias. It is time to stop being afraid. if we don’t call it out, if we ignore the problem, we are part of the problem.

Speech at CLFS Conference, May 13 2016

Intro



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 COULD HAVE TOLD THEM THAT!

(WE DID TELL THEM THAT!!)



 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.

Unity 
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.
BCM/ DCS/ PTPH/CJSM 


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

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.

Cheers!

Greg Foxsmith

President, LCCSA

A Re-Appraisal of the Law on “Joint Enterprise” (guest blog by Greg Stewart)

This blog by Greg Stewart, criminal appeal specialist and head of GT Stewart solicitors, assesses the new Joint Enterprise landscape following the long-awaited Supreme Court Judgment in R v JOGEE

Introduction

Criminal lawyers have gone from an aridly dry January (1) to fabulous, celebratory wet February – even for such a well soaked profession. How often does our highest court declare that we have all been getting the law seriously wrong for over 30 years?! Even less often I would say than Government Ministers suddenly reverse their views on whistle blowers and protests from criminal defence lawyers. (2)

Of course the Supreme Court have sought to make it clear that the clarification made to the common law by R v Jogee and Rudduck v The Queen [2016] UKSC 8 & 7 is not “unprecedented”– it’s just that you, me, the bar including umpteen queen’s counsel, and the senior judiciary had been looking at the wrong precedents for more than three decades, or more accurately, overlooking the right ones. 

Indeed, a cynical jurist may just smell a political strain that is not unrelated to what is happening in other areas of criminal justice – we have a Justice “Ministry” (with all the evangelical zeal that implies)  that now lambasts it’s own civil servants for the failings of the prison system, allows the restocking of prison libraries and generally enlisting the values of the New Testament in place of the Old. In doing so there is belated recognition that over those 30 years the prison population has doubled. The proportion of young people incarcerated in this Country, despite recent reversals, remains scandalously high.

This judgment will go a long way to stopping the interminable waste of young people – disproportionately black – rotting in detention centres and prisons for year after year well beyond condign punishment or meaningful rehabilitation.

Joint Enterprise Law- a pre-Jogee history

For those of you who have not had a chance to study the judgement, the Supreme Court reviewed the evolution of the common law principles of joint enterprise (or common purpose) from the 19th century. It noted about then there was an important clarification away from the belief that it was sufficient that the conduct of the principal was a probable consequence of the common purpose, it had to be part of the common purpose. This identified the fundamental distinction: whilst a probable consequence was always going to be an important consideration for a jury when deciding what the common purpose of the defendants was, it was not sufficient on its own to fix criminal liability. The judgment highlights the important (but until now overlooked) line of authority from:-

R v Collison (1831) 4 Car & P 565 – an accomplice of an apple thief who attacked the landowner’s watchman with a bludgeon would only be guilty if that was part of the common purpose should resistance be encountered; 

R v Skeet (1866) 4 F & F 931 – poachers routinely carry weapons and it is necessary to find a common design or intention, beyond poaching, to kill or cause grievous bodily harm for homicide; 

R v Spraggett [1960] Crim LR 840 – a burglar’s conviction for the killing by his co-accomplice was not safe where the trial judge wrongly directed that a common intention to commit a burglary was the same as a common intention to commit violence;

 R V Reid [1976] 62 Cr App R 109 – the appellant was correctly convicted of manslaughter – not murder – when he attended the home of an army colonel in the early hours of the morning with others who were carrying weapons including firearms as the common purpose was clearly to cause harm even though he did not intend death or grievous bodily harm (though he might have been said to foresee it).

 However, in Chang Wing-Siu [1985] AC 168 the Privy Council extended the doctrine beyond this – three appellants had gone to the flat of a prostitute to rob her husband carrying knives which were in fact used to slash her and kill him. They complained about a direction at trial that they would be guilty if they contemplated a knife might be used with intent to commit serious bodily harm. They said the level of contemplation had to be more than 50%. The PC rightly rejected that argument but then went on to create a new form of “parasitic accessory liability” where “it turns on contemplation or, putting the same idea in other words, authorization, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal liability lies in participating in the venture with that foresight”.

 This novel development was confirmed by the House of Lords in R v Powell & English [1999] 1 AC 1 where Lord Hutton recognised the logical anomaly it created in that the principal who merely foresaw a possibility would not meet the mens rea of murder but the person who had not actually killed would. However, there were strong policy reasons in the area of criminal conduct for holding that to be the case. Lord Steyn agreed whilst Lord Mustill also did with more unease. In English’s case his appeal was successful as the knife produced by his co-accused was “fundamentally different” from the wooden post he had used in the joint attack on the police officer.

The Jogee Judgment

The Supreme Court acknowledged that the courts could make the doctrine more severe but only with caution especially for a secondary party. Five reasons swayed them: (1) they had the benefit of a much fuller analysis of important case law; (2) the common law is not working well in practice: (3) it is an important doctrine that has taken a wrong turn; (4) foresight is no more than evidence of intent and (5) it is not right that the liability of a secondary party is set lower than the principal. [paras 80-84]. From now on what matters is whether the accessory encouraged or assisted the crime committed by the principal. “Fundamental departure” is no longer a useful part of the doctrine but merely a consideration of what was foreseeable when weighing up evidential considerations.

Of course, the Supreme Court reminded us that a change in the law does not provide an automatic ground of appeal. And even where it can be argued that the doctrine was misapplied the Court of Appeal will only grant leave to appeal out of time if the applicant can demonstrate a “substantial injustice”. However, given the disparity between a determinate sentence for manslaughter and the mandatory sentence for murder that should not be an insurmountable obstacle – though it may result in a re-trial rather than an acquittal.          

 What stopped this injustice in the end was the relentless pushing of the lawyers. My client, 16 years old, of good character and 200 yards from the stabbing was refused a certified question by the Court of Appeal three years ago and after 18 months of waiting also denied admissibility by the European Court, so hats off to those who got there. But it would not have happened but for the irresistible weight of a liberal consensus that this was wrong. That consensus had built over the past 5 years thanks to interests groups. These were mainly the parents of young people serving life sentences. They found support from campaigners concerned with youth justice (JENGA and JFK being the most prominent) but it included many journalists (one being Melanie McFadyean at the Bureau of Investigative Journalism) and the media (Fran Robertson – who made Guilty by Association). Whilst there has been an important Law Commission report in 2007, it would have gathered dust, like most, but for the campaigning. That led to parliamentary engagement. In 2011 a Parliamentary Justice Committee started to take evidence from a wide spectrum of those involved including the victims’ families – and it was often the victims (or near victims) in the witness box and the “winning” group in the dock. A consensus grew that joint enterprise as applied to the accessories to a crime and especially murder, was a lottery which had to stop. (3) The lottery had many outlets. It often started with a wide prosecutorial discretion: what an individual lawyer considered foreseeable? Of course across the country different cultures developed and these would determine who got a ticket for this lottery or who got offered a public order charge or was not prosecuted at all. Once in court it depended on the discretion of the lawyers on both sides to advise defendants and victims to accept pleas or proceed with uncertain outcomes. Ultimately the judge was then left to tip toe through labyrinthine jury directions. Finally the burden on juries was huge – as was the consequences for those in the dock. Ultimately, it took our most senior lawyers to admit we had been getting it wrong (or had “taken a wrong turn”as they delicately put it)  In fact, it had been a devastating lurch to the right in the criminal law. It’s always political.

Who would have foreseen all this during the depressing days of January?!

Blog by Greg Stewart of GT Stewart, February 2016   

  
Editor’s Notes

1 Civil Rights Editor endured dry January to raise money for cancer relief and can be sponsored here!

2 The celebrations by criminal legal aid lawyers throughout February arose from this statement by Lord Chancellor Michael Gove, over-turning the disastrous, unfair contract tendering scheme introduced by his appallingly inept and hated predecessor Chris Grayling. Leading  law firm GT Stewart were one of the firms  taking legal action against the MoJ over the botched procurement, and welcomed the climbdown.

3 There were numerous calls for reform by lawyers for years (see eg this recent blog by Ronnie Manek)

Prison Books: Helping to Turn over a New leaf

The decision earlier this year by Justice Secretary Michael Gove to lift the ban on family and friends sending books to prisoners was welcome

Anybody who describes prison as a “holiday camp” has either never been to prison, or never been on holiday- the reality of contemporary incarceration is boredom from enforced idleness, interspersed with occasional violence (assaults are rife) but little support for rehabilitation programmes or tackling prevalent issues of mental health. Cuts to staffing levels have overlapped with a rapidly rising prison population. Recent reports by the Prison Inspectorate have been damming.

Books do not in themselves provide a panacea, but they are a good start. They provide education, help literacy and personal development, and broaden the mind.

The book ban introduced by Gove’s predecessor Chris Grayling was a vindictive, unjustified act.

The purpose of prison is punishment and rehabilitation- the first is implicit in the removal of liberty by being locked up, the second currently not achieved by draconian policies that fail to tackle the root causes of offending behaviour. In Nelson Mandela’s moving autobiography “Long Walk to Freedom”, he writes of the value and importance of books to him through his long period of imprisonment. Everyone but Grayling could see the value of books within prison.

In March last year I joined a demonstration against the book ban outside Pentonville prison organised by the Howard League for Penal Reform, and supported by authors including the Poet Laureate. See a short video clip here.

The reversal came initially as a result of a successful Judicial Review brought by solicitor Samuel Genen and counsel (all acting pro-bono) -read more about that here. The High Court ruled the policy was unlawful. Gove then confirmed in July the complete relaxation of the unfair and arbitrary rules Grayling introduced. That is a victory- unlawful policies do not always lead to policy reversal -look at the vexed issue of prisoner voting.

Now we no longer have a book ban, and we now longer have Grayling despoiling the office of Lord Chancellor. So what of his successor?

Gove has said that “the most useful thing we can do is make sure prisoners are usefully employed, and improve literacy, numeracy and work skills”. Will he act or are these just “words”?

I would suggest the most useful thing Gove could do would be to reduce the prison population by crime prevention and successful rehabilitation, and reducing the numbers imprisoned for pointless short sentences for non-violent crime.  This in turn would save money, which could be redeployed to properly fund the Justice system. Government cuts to Legal aid have put our Justice system at risk. The spending cuts were ideological, deferring costs elsewhere in the system.

Grayling was a wrecker, who for what he hoped would gain him short term popularity damaged both the Criminal Justice system and an effective penal system.

Gove has a long way to go to fix these problems, but reversing the book ban was a good start.

Published on International Literacy Day, 08 september 2015

An earlier version of this article was published here in the Islington Tribune in July this year

Modern Slavery Act – a synopsis (Guest Blog by Ben Ticehurst)

The following is a guest blog by solicitor Ben Ticehurst of  E.M.M. Solicitors  


The Modern Slavery Act 2015

 

The Modern Slavery Bill received Royal Assent on the 26th March 2015. Following the announcement of Royal Assent, Unicef Director David Bull said:

The passing of the Modern Slavery Bill into law is an historic moment in the fight against modern slavery and human trafficking. Unicef UK is proud that the UK has committed to stamping out these horrific crimes and, in particular, to protecting vulnerable children.

http://blogs.unicef.org.uk/2015/03/26/modern-slavery-bill-becomes-law-unicef-uk-statement/

Why the need for new legislation?

The Global Slavery Index 2014 reported that over 35 million people are trapped in slavery across the world today. Modern slavery takes multiple forms including forced labour and human trafficking, and is found across the economic sphere in domestic servitude, the sex trade, on farms, building sites and in factories. Many are working in terrible conditions for extremely long hours, for little or no pay, and are vulnerable to verbal and physical abuse. 

http://www.globalslaveryindex.org/

The National Crime Agency suggests that the number of victims of trafficking in the UK rose by 22 per cent from 2012 to 2013 and these numbers are continually on the rise globally as well.

http://www.nationalcrimeagency.gov.uk/news/news-listings/452-nca-human-trafficking-report-reveals-22-rise-in-potential-victims

In the UK, around 60% of children rescued from trafficking have gone missing from social services. Those working as foreign domestic workers on a tied visa (about 15,000 each year), meaning that they are tied to one employer for the duration of their stay, are unable to leave their houses unaccompanied or find alternative jobs to escape abusive employers without becoming criminalised. 

Until now, there were three pieces of legislation on slavery and trafficking that are scattered, impractical and therefore difficult to use. As a result, there were only 8 convictions of human trafficking in the UK in 2011. There have been calls for the law was to be on the side of victims of slavery and trafficking and so the new Modern Slavery Bill, has been hugely welcomed as it is pivotal to ensuring victims of abuse are found, cared for and receive justice for crimes committed against them.

A Home Office spokesperson recently said the bill was 

an historic opportunity to get legislation on the statute books that will , for the very first time, address slavery and trafficking in the 21st Century”

Summary of the Act

http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0098/15098.pdf

The Modern Slavery Act brings together current offences of trafficking and slavery, introduces tougher sentences (up to a maximum of life imprisonment) for traffickers, and creates an independent anti-slavery commissioner, likely to be a former police officer. It contains provisions for seizing traffickers’ assets and allows for confiscation proceedings (section 7) under the Proceeds of Crime act 2002 (POCA 2002). It also allows for the channelling of traffickers money towards victims, by way of compensation payments (section 9).

It is hoped the Act will provide greater protection for victims and improve the prospects for prosecuting perpetrators

The Act includes provision to defend those that have been forced to commit crimes as victims of slavery or exploitation (section 45). This includes a defence for child victims against prosecution for crimes committed directly as a consequence of their trafficking.

The provisions to protect children are continued in that Section 48 creates ‘Child Trafficking Advocates’ who will support and represent any child that has been the victim of human trafficking. The Act also sets out a ‘presumption about age’ (section 51) which means that where is it unclear as to the age of the victim and they could be under 18 years of age then they will be treated as under 18 until it is know otherwise.

The Act will also make a development in relation to corporate responsibility and accountability in an attempt to improve transparency in supply chains (section 54). This will require companies to make a statement detailing the steps they have taken to ensure that slavery and human trafficking is not taking place within the company or supply chains, or that no such actions have been taken. This step follows the USA, Brazil and Australia who have already made efforts to address modern slavery in supply chains.

Observations

There have ben some criticisms of the Bill in that it concentrates on enforcement and prosecution of traffickers as opposed to focusing more on victim protection.

Former conservative MP Anthony Steen has said: 

the prime minister said he wants to drive slavery out of Britain; I am convinced he is committed to doing something about it, but you are not going to catch traffickers unless you have evidence, and you are not going to have any evidence unless you support the victims. The reason why we have so few convictions in Britain is that police scare the living daylights out of victims.”

Barrister Parosha Chandran has commented that the section of the bill that deals with transparency in supply chains does not extend to wholly owned subsidiaries of UK companies abroad. 

She has stated that 

“…the modern slavery bill represents a huge step forward in the development of corporate accountability. Yet we will never really begin to tackle modern slavery unless we ensure that the supply chains of all our companies, whether doing business in the UK or overseas, are not tainted by trafficking, exploitation or abuse.

http://www.theguardian.com/global-development/2015/mar/24/loophole-modern-slavery-bill-transparency-supply-chain-abuses

Andrew Wallis, chief executive of Unseen, a charity that works with the survivors of trafficking and modern slavery, was more inclined to be positive. 

Whilst no legislation is ever perfect it must now be matched by a concerted and collaborative effort to put the provisions of this law into full effect”.

“Many have contributed to the process of drafting this legislation and we have arrived at an

Act that the UK can and should be proud of. There is and always will be more to be done

but it was crucial that this legislation reached the statute books before this parliament ended

so that we have a good foundation upon which to build.”

http://www.unseenuk.org/uploads/20150326125647668.pdf


Unrepresented Defendants (guest blog by Penelope Gibbs)

This blog is by Penelope Gibbs of TRANSFORM JUSTICE

Transform Justice was set up in 2012 by Penelope Gibbs, a former magistrate who had worked (successfully) to reduce child and youth imprisonment in the UK. The charity aims to help create a better justice system in the UK.

Please complete the survey at end of article, and forward to other practitioners
The mysterious increase in defendants without lawyers in the criminal courts 
People are slightly mystified why numbers of unrepresented litigants in the criminal courts seem to be rising.  Everyone expects numbers to rise steeply if the government succeeds in bringing in proposed changes to the way legal aid lawyers are paid.  Then there are likely to be legal aid deserts where no solicitor is willing to work for legal aid rates. But numbers have already started to rise according to a survey from the Magistrates’ Association (http://www.magistrates-association.org.uk/wp-content/uploads/2015/01/01-Survey-on-litigants-in-person-and-unrepresented-defendants-13-January-2015.pdf).  This suggested one in five of those in 1st listed bail, “Narey”, courts were unrepresented, as were 14% of those on bail hearings, 23% of those being sentenced and 22% of those in criminal trials.  If scaled up countrywide, these would represent thousands of defendants.  No-one knows why these defendants are unrepresented since the criteria for legal aid have not changed for several years. Some people may be ineligible for legal aid either because their crime is serious enough, or because they do not meet the, quite low, means test. But Transform Justice is looking for more information about those struggling to defend themselves in the criminal courts. If you are a criminal solicitor or barrister, or someone who works in the courts in another capacity, please fill in this short survey https://www.surveymonkey.com/s/WBJ3VVY