Category Archives: Featured

Speech at CLFS Autumn Confrence, London, 2017

I was invited (jointly with Greg Powell) to speak at this CLFS conference in the final speaker slot, on the topic of “unity, and changes ahead”

Greg Powell spoke first, lambasting the MoJ for their announcement earlier in the week that following their LGFS consultation (and despite 97% opposition) they would cap payment at 6k pages of PPE. (For non criminal legal aid lawyers, this basically is yet another cut in legal aid payments)

The text of my speech is below:–

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.

Anyway, once again I have been asked to speak on unity in the profession. This year, clearly not to be trusted I am sharing with Greg Powell, a hard act to follow.
In the programme we are billed as the “two Gregs” – like the three amigos but less fun and without the sombreros.
Or perhaps when you think of “Greggs” plural you have an image of a couple of sausage rolls.

I am no more qualified than anyone else to speak on the topic of unity.
But I suppose being involved in a rep body- in my case the LCCSA-has given me some small insight into where we, as a profession, have successfully united, and where we have not, as well as whether it matters.

I am also going to touch on breakfast Courts and the 14 hour rule for duty solicitors in the current LAA contract.
And there will be a thinly veiled appeal to join and support the LCCSA.
And in case none of that appeals I will have a go at Grayling.

Unity

Can we achieve it even between ourselves as criminal lawyers?
It’s a good topic because we have much that divides us, not least healthy competition, but it seems to me that in recent years there has been an increase in shabby gamesmanship by unscrupulous client-chasers posturing as reputable lawyers but lacking integrity.

A 1/4 century or so ago, when I was first attending courts and police stations, (back in the days when we were paid travel, waiting and a London allowance) other solicitor firms were rivals, but also friends and colleagues.
people I could approach for advice, and who would gladly provide it.
Nobody interfered with client choice or objected to a LA transfer.

Now you can go to some Courts (one in North London comes to mind) and find an army of solicitors from a rival firm armed with clipboards hovering by the door of the court or by the notice-board with list of cases, tapping up all the clients and diverting first appearances from the duty.
These are rivals but neither friends or colleagues.They are touts.

These sharp practices, whilst deplorable, probably arise from the ceaseless cuts which lead to a race to the bottom, and the less scrupulous fighting like rats in a barrel.
But ignoring that debased minority, criminal lawyers nonetheless have much in common.
The work we do, undervalued and underfunded though it is, is not merely a job, it is a profession and a vocation.
We have, I think, uniting us, an overarching interest in justice.

Of course we all have a degree of self interest, and we all would like to be well paid.
Or at least properly paid
Or sometimes even paid at all

So we are united in wanting better, and fairer, rates of pay.

We are also, I imagine, united in wanting, amongst other things:-

-Properly equipped courts with an adequate advocates room, and maybe even a cafe

-List officers that take into account advocates availability

-video-links that work,

-prisoners to arrive on time,

-competent interpreters to be booked,

-timely and adequate disclosure

and an opportunity to properly assess the evidence, give proper advice, and where appropriate prepare properly for trial including the right to challenge prosecution evidence and put forward a defence case.

We want a level playing field, we want a fair hearing.

But we also have different interests.
Big firms vs small, legal aid v private, generalist v specialist, own client vs duty, etc.

And then within law firms there are divergent interests, typically between employers (partners or co directors, firm owners) and salaried staff, or “overheads” as the former sometimes think of them.
If only there were an organisation that strives to represent all those interests, not just one vested interest group….

So what is left that may unite us?
A desire for better rates of pay
A desire that the Government may just leave us alone for a while
A wish that the LAA would go and f, f, f, fade away

Can we unite around our common interests?

How do we unite?

Firstly you need strong and accountable representative organisations.
We don’t have a trades union.
We have the Law Society, but….

Here in London you have the LCCSA .

We respond to the consultations.
We lobby.
And we reluctantly became an effective campaigning organisation

How do the LCCSA and other representative bodies work together?

Easy enough when campaigning against cuts or a Lord Chancellor so universally hated that all are joined in opposition

Remember Grayling? Whatever happened to him?
Grayling as Transport secretary
In October Grayling attending the launch of the new hybrid train between Bristol and London. A service that not only arrived into Paddington 45 minutes late after the train broke down while switching from diesel to electricity, but whose air conditioning had failed, drenching dozens of passengers with water.
As for Brexit, he says that everything will be fine because “British farmers will grow more”, a comment so facile it is beautifully eviscerated in this must-read demolition of Grayling’s ignorance which describes him as “the wilfully ignorant, insouciantly callous former Justice Secretary who took a sledgehammer to the legal aid and prison systems” (independent)
He also appeared before the Transport Select Committee, in a shambolic performance that was beautifully captured in this sketch (worth reading in full) which concludes with “while there was a refreshing honesty to his incompetence, there really didn’t seem to be any part of his brief that Grayling fully grasped. He was dangerously deluded about what had gone on on his watch and complacent about the here and now”

After CG , we had Gove, we liked him, but he didn’t last.

He did give us the Bell Committee- anyone remember that?
Gary Bell QC, the HCA hating barrister, who was to report on the CJS
His self appointed committee appears to have died a natural death
That has certainly helped unity 🙂

A year ago we had Liz Truss, lover of cheese and pork markets, who failed to stand up for the judiciary when they were attacked by the tabloids.

Now we have Lidington, beneath the radar. Not very high profile – perhaps this week’s announcement mean he is a silent assassin.
Anyway, irrespective of which Lord Chancellor we have, there are always

topics we can unite on by opposing:-
1 The announcement this week of the LGFS “restructure” (cut) which 97% of those consulted were against. Greg Powell has dealt with the absurdity of the MOJ response and this uneccessary cut. LCCSA Statement here

The Criminal Bar Association have put out a statement which “reminds the legal community and the MOJ that the system is at breaking point. There should be investment in Criminal legal aid, not cuts or reductions of any kind. We are unified with our solicitor colleagues in our aim to ensure that legal aid survives, and thrives.”
So that is unity with our friends at the bar and we thank them for it.

2 Flexible Operating Hours

The proposal came from nowhere, no consultation.
Promised it would have robust evaluation.
That evaluation went to Tender, they got that wrong, so proposals were deferred or, we hoped, died, but now they have revived the corpse.
The Breakfast court at HCMC seems to have gone, but they will be listing CPS bail trials from 5.30 pm to 8:30 pm Mon-Thursday.

Perhaps they don’t realise that Court sometimes sits that late already, with trials listed from 2-4pm. With these plans you could be there to midnight, So be ready to resist when handing in your PET forms…
Blackfriars will piloting 2 four-hour CC sessions and a half CC /half MC session (as before.)
Make sure the obvious objections are made at each stage, and this pilot will inevitably show the failings inherent in this half baked scheme.
3. 14 hours term in the new duty contracts

The duty solicitor rotas were bloated
There was a desire to remove ghosts
But what are ghosts?
We thought they were the ones on the rota who were dead retired or abroad
I’m which case a requirement to do a min amount of ps work or duty compliance would suffice
So why 14 hours p/w?!

Two examples of why this is crazy:-

1 HCAs for example do considerably more than 14 hours per week, the vast majority of which is Crown Court preparation or advocacy paid on a legal aid account under the AF1.

This is not “Contract Work” and does not therefore count. Sitting behind that advocate unpaid while they undertook the advocacy on a case would count.
The absurdity of this situation is obvious.
Equally obvious is that neither of them is remotely ghost-like. I can see no logical reason why “Contract Work” is the defining element for hours worked for the firm.
Nobody is begging to be woken up at 4am to undertake duty work but it provides clients with good quality legal advice to have people like this on the rota – this is after all the point of the duty solicitor scheme.

I cannot see the justification for disallowing this work from the 14 hours. It goes way beyond the purpose of the rule and is completely unacceptable to anyone with an ounce of common sense.

2. Child care

A DS (over 20 years call) is also a consultant and has child care responsibilities for two young but school age children. Duty work suits her well as she knows in advance when she has to be available for work and she undertakes her duty work.
She undertakes more than 14 hours a week if you do not count the weeks that she has had to be unavailable for work due to child care responsibilities, namely the school holidays. The period of review includes both Easter and the summer holidays when she was unavailable for any work at all.

When you add in those 0 hour weeks, she falls below the 14 hours and likely to be removed. Madness. And discriminatory.

It also begs the question as to how the 14 hours is calculated. Is it 14 x 52 per year – no one works 52 weeks a year – apart from probably Greg Powell. So is it 14 x 48 (4 weeks holiday) or 14 x 46 (6 weeks civil service holiday allowance)? In which case it averages over a year at less than 14 hours a week?

How did we get into this mess?
It was an LAA idea, but when canvassing representative bodies only the LCCSA objected.

For others, ghosts were not just those on the rota who never went to PS or court or undertook their duties, ghosts also included freelancers. So they supported, and still do, a requirement that solicitors work 14 hours a week and just for one firm.

The LCCSA position on 14 hours is consistent:-

In The past we have been driven into a contracting supplier base and pessimism by relentless cuts , unnecessary bureaucracy , and too often by overly hostile stances by assessors , auditors and managers .
The collapse of the scheme to contract duties passed without apology .
The LCCSA argued in relation to rules for Duty Solicitors for simplicity and an acceptable minimum standard , namely a mix of actual duties completed in court and police stations with some minimum number of overall attendances.
We argued against any hours requirement as unnecessary , bureaucratic and against the interests of working parents and especially that it offended the principles of simplicity and ease of checking .

The Present
Predictably “the Hours” will now consume much energy .All its limitations and difficulties are thrown into sharp relief as reports of overzealous interventions by account managers filter through while confusion over aspects of the schemes detail spreads .
As a membership organisation we have always fought to protect individual ownership of scheme membership .
Similarly we have favoured the widest interpretation of qualifying work and terms that allow our diverse membership to properly contribute through duty solicitor work whilst maintaining a wide variety of working lives .
The future
We will be informed by our members response .Some argue that the future should involve consolidation of the supplier Base and the concentration of ownership of duties in the hands of fewer powerful owners .This would devalue the economic positions of members of the LCCSA . It is not a position we will adopt. It is sometimes disguised as concern for the future stability of supply when it really reflects a desire to gain economic advantage.
What we always need is unity around the political issue which has been the Government desire to restrict scope and impose austerity. The hours issue is a battle for a settlement in the widest interests of members but the great issues are restoring value and scope

Well we are where we are.
What do we do about it?
Can we bring a JR ?
Well Legal Action being a last resort, we are first making representations to the LAA to soften the harsh interpretation.

We want HCA Advocacy to Count, as well as file reviews and supervision. Also:-
-Pro-rata reduction for part time workers, and for absence through illness,
-VHCC work to Count
-Hours to count whichever firm or office carried out for

Who makes these reps?
The Law Society leads.
They have a group called the ”Practitioner Group”
That includes elected bodies such as the LCCSA and CLSA
Also it includes the “Big Firms Group”

Who are the BFG ?

Nobody really knows
They don’t have a constitution
Or a website
If they have aims they are not made public
If they have a committee, we don’t know who is on it , how they were elected or even if they were elected.
They are not accountable.
We know they supported breaking the link between indiv Duty sols and their slots, putting duties in the name of the firms to distribute as they wish.

And their name suggests they focus on the interests of Big Firms, or more accurately over those that own and run them (their employee base are not consulted and do not participate)

And yet they- this self appointed group- sit at the table seeking to influence the decision makers. The two-tier contracting proposals arose from their wish to restrict the supplier base.
It is a matter of regret, that we have allowed this body to fracture Big Firms from small.
Perhaps there should also be a “Small Firms Group” and a “medium Firms Group”. There was a freelancers group, but the BFG and CLSA objected to them participating at meetings of the Practitioner Group.

Or perhaps we could just tell TLS and the MoJ to ignore the BFG, and we could all unite behind an organisation that represents big firms and small, owners, the employed and the self employed.

The LCCSA is that organisation.

The LCCSA have the following objectives,

The objects of the London Criminal Courts Solicitors’ Association are to:
▪ Encourage and maintain the highest standards of advocacy and practice in the Criminal Courts in and around London;
▪ To participate in discussions on developments in the criminal process;
▪ To represent and further the interests of the Members on any matters which may affect Solicitors who practise in the Criminal Courts; and
▪ To improve, develop and maintain the education and knowledge of those actively concerned with the Criminal Courts, including those who are in the course of their training.

So to conclude:-
The LCCSA had virtually -and by necessity- re-invented ourselves as a campaigning organisation.
We are if necessary prepared to fight again against cuts and to protect the interests of all who practice in criminal law.

Are you up for that fight?
Any representative bodies is only as strong as our membership.
We can only campaign, take legal action, put on events if our membership is strong, and we are funded by our membership fees.
If you join, or retain a membership, we are stronger.
My plea to you is, if you are not already signed up, is to join your representative body the LCCSA.
If you are a member already-thank you- and remember membership renewals are due on 1st November
Please come to our AGM Dinner on November 13th
Please consider joining the committee.

Thank you for your support.
We don’t want to do this without you, and tbh we can’t do it without you.
Join up, and we are united together.
United we stand, divided we fall.
That is the true message of Unity.

And now, time to unite and join friends and colleagues in the pub.
I hope you will raise a glass to justice, celebrate solidarity, drink to the health of legal aid, and share a toast -to Unity.

Cheers

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)

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.

Lord Chancellor Liz Truss-a Review of her Term of Office

On 14th July 2016 incoming Prime Minister Theresa May appointed Liz Truss as the new Secretary of State for Justice (also known as Lord Chancellor).

She lasted less than a year, being demoted by May on 11th June in the re-shuffle that followed the “mandate” election.

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

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

This blog reviews Truss’ time in office.

Background-Pre-Justice Secretary

Truss was previously at DEFRA, and perhaps best known for her widely ridiculed Conservative Party conference speech about French cheese and British Pork (footage enjoyed on this clip from Have I Got News For You ) This was followed another much ridiculed Conference speech (October 2015) when she called for a return to “giving animals their proper names”

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.”

Background

Born: 26 July 1975, in Paisley, Renfrewshire
Constituency: MP for South West Norfolk since 2010
University: read PPE at Merton
Before politics: 10 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.

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 and initial reaction 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. Her priority should have been to sort out and protect Legal Aid, said 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 his post because he felt that the inexperience of Truss could put at risk the standing of the judiciary and courts. Anna Soubry QC turned down post of No. 2 to Truss (according to this piece in Legal Cheek)

Much of the commentary focussed on Truss’ gender, and her being supposedly the first female Lord Chancellor, but critics of Truss denied misogyny ( eg Lord Falconer here in the Guardian)

Lord Pannick 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.

First Three Months

After a long pause to master the brief, Truss gave her first interviews and indicated she was planning to introduce a Bill of Rights. No such bill was introduced. It was initially unclear whether we would be keeping or scrapping the Human Rights Act.

Truss 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 the Government 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:

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 then topical high suicide rate in prisons, but promised that “ex-soldiers” would be recruited as prison officers. The rest of the speech was a series of platitudes. In. Very. Short. Sentences. Text here. Quentin Letts’ summary “How could so jellyfish and unformed a political personality have been made lord chancellor? I have known ping-pong bats less wooden, CBeebies presenters more statesmanlike.”

November-Failure to Defend the Judiciary

On 03 November, the High Court ruled in the case of Miller that Brexit via article 50 should require a vote in Parliament. In an outpouring of outrage in the tabloids there was open hostility to the judges who were described on one front page as “enemies of the people” The LC, whose oath of office is to uphold and defend the Independence of the Judiciary, would be expected to speak up in defence of the rule of law. Instead, for a long period, silence. #WheresLizTruss? was trending on twitter. Read more here. Then, belatedly a half-hearted statement as reported here. Criticism continued to grow, with an attack by some Tory MPs, as well as lawyers (see this summary as reported in the Guardian)

Truss later managed a half-apology, but the criticism never really died away and (in March 2017) the Lord Chief Justice piled in here.

Prisons Crisis

The effects of the drastic cuts implemented by Grayling led to a crisis which continued to escalate during Truss’ term of office. There was an escalation of assaults on prison staff, suicide and self-harm of prisoners, a “strike” by officers, violence, drugs, escapes and riots. How did Truss cope? Poorly is the general consensus – see eg here

PI Reform

Truss achieved better headlines for her “crack-down” on whiplash claims. But these “reforms” , badged as reducing insurance premiums supposedly over-inflated by dodgy claims and the “compensation culture” will in fact not help consumers, but harm those suffering genuine injury, and offer a bumper pay-out for insurance companies. See this article for the detail.

Six months In

In December Truss appeared in the Commons to announce that “barking dogs” would tackle the problem of drones being used to courier drug deliveries. Seriously. Read this article and play the clip where Truss announces this (to laughter). Could they? See the Guardian Pass Notes

Happy Christmas!

Liz Truss extended a special message to hedgehogs. Happy Christmas hedgehogs!

2017

February–slammed by lawyers following another “car-crash” TV Interview

First bill (23 February 2017) – the Prisons and Courts Bill (2017) covering four main areas:-

1 Prison safety and reform – described as a “new framework and clear system of accountability for prisons” It will “enshrine into law ” that a key purpose of prison is to reform and rehabilitate
2 Court reform: -another commitment to victims and the most vulnerable, as well as improving the system by digitisation. (But see here for critical commentary)
3 The judiciary – a better working environment for judges, modern court facilities + better IT
4 Whiplash compensation – new fixed tariffs capping whiplash compensation pay-outs

The bill has not yet been enacted.

April By April, Truss appeared out of her depth, and reports indicated she does not have the confidence of the Judiciary OR cabinet colleagues.

See this summary of her tenure, by Frances Crook (Howard League) . Meanwhile, with the election called, pundits predicted she would not last a full year -see eg this Legal Cheek piece by Joshua Rosenberg They were right.

May-June and the General Election Truss was largely absent for most of the General election campaign. But she did visit Wibsey!

Goodbye Truss, hello David Lidington

So Truss has left the full cabinet by being demoted to first secretary to the treasury, replaced by David Lidington. Lidington is the 3rd new lord chancellor in little more than two years. It used to be a job that the recipient would fulfil for a decade. He is also the fourth consecutive non-lawyer to have held the post. Read more about Lidington here.

Conclusion

If Truss had showed even half the enthusiasm for justice that she has for cheese, she could have really made her mark in an area crying out for reform. As it is, Truss lasted just 11 months in the job, the shortest tenure since the post was created, and has now been demoted.

Truss was not the worst Lord Chancellor in recent time (Grayling set a high standard for that) but she fell far short of what was required. She never appeared to be on top of her brief, abjectly failed to tackle the prison crisis, failed to stand up for the Judiciary, and does not appear to have a solitary positive achievement she can point to from her term of office.

London Legal Walk 2017

Monday 22 May was the London Legal Walk – with over 8,000 lawyers walking 10k to raise money for London Legal Support Trust.
The LLST is an independent charity that raises funds for free legal advice services in London and the South East.
I entered as part of the Bullivant Law team- and we all finished!

Please sponsor the team! Our fundraising link is here:-http://uk.virginmoneygiving.com/team/BullivantLaw2017

Thank you!

Check out my walking playlist here

Below- at the start with Judge Rinder

Below-a well earned drink at the finish

Unity in the Criminal Law Profession

Edited text of speech at CLFS Conferences (delivered 21/10/16 Manchester + 28/10/16 London)

Intro

I have been asked to speak on unity in the profession.
I am no better qualified than anyone else to speak on this topic, but I suppose being involved in a representative body- in my case the LCCSA– has given me some small insight into where we as criminal lawyers have successfully united, and where we have not.

Last week I attended the Parmour lecture for the Howard league, delivered by Nick Hardwick, now at parole board but perhaps better known in his previous capacity as a fearless Inspector of Prisons, whose reports graphically condemned prison after prison as unfit for purpose.
The audience included, as you might expect, bleeding hearts, liberals, lefties, lawyers, the usual suspects. So as you may imagine. I was at home.
But the lecture was at Clifford Chance, and I did not feel at home in their glittering building in Canary Wharf.
Lawyers there are not familiar with the type of law that we do anymore than we are with their commercial activities
They don’t understand criminal law as we understand it

(Although I did read last week that somebody employed in a City firm was sacked and struck off for stealing stationery. Perhaps it’s only to be expected that things disappear in a magic circle firm…)

Anyway…

At Clifford Chance, they don’t practice legal aid
A fixed fee for an entire case at the magistrates court is equivalent to the hourly rate of lawyers there.
What do we have in common with these “masters of the Universe?”
We have the same regulatory body, we pay the same practicing certificate, we are in the same profession….

..and we have virtually nothing in common.

So we can’t expect unity with City firms
Or can we?
Underneath their expensive suits do these lawyers not still have an interest in justice? Might they not help us? There was discussion at one point of a 1% tax on Commercial Law firm profits to fund Legal Aid. That’s not going to happen, but can we, should we, dare we approach our better-heeled fellow lawyers and ask for help?

I do not mean encouraging the provision of well intentioned “pro-bono” advice from junior employees at the Law Centre, but can they support legal aid practices by eg seconding trainees, or providing support services, in the way a PL club may “loan” a player to a less well-heeled club?

Or can they help us lobby MoJ using their access to the corridors of power?
Just ideas.
Unity.

Unity in the Profession

What about the High St Practice? The one-stop shop with a range of services , a holistic approach?
Law is increasingly fragmented, and LASPO has ripped the heart out of much of what would have been publicly funded advice.

We think we have it bad in Criminal Law, but where were we when multi-disciplinary practices were axing family departments, abandoning employment, immigration and welfare benefit advice? Were we campaigning and fighting for the principle of equal access to the law, or squabbling about page count?
We need to fight for Justice generally, not be marginalised into separate spheres of narrow self-interest.
Representative bodies try to do this, meeting together -TLS, LAPG, YLAL, CBA

Can we expect unity with our fellow lawyers from other disciplines? Do even we deserve it?
Can we achieve it even between ourselves as criminal lawyers? We are all competitors in a diminishing market.
I believe that although we have much that divides us we criminal lawyers have much more in common
We have , I think, an overarching interest in justice
This is not a job, or even just a profession, it is a vocation.

Of course we all have a degree of self interest, and we all would like to be well paid.
Or at least properly paid.
Or sometimes even paid at all.

But we care about the principle of justice.

And we actually want what the current Govt has adopted as a slogan- a “criminal justice system that works for all”

We are united in wanting for example:-
-video-links that work,
-prisoners to arrive on time,
-competent interpreters to be booked,
and an opportunity to assess the evidence, and give proper advice , and get proper credit for pleading guilty without being rushed or bullied into pleading.

We want a level playing field, we want a fair hearing.

So there is understandably good unity when we campaign on those issues that we all agree on.

Unity against a common enemy

Lawyers individually and their Practitioner Groups are at their best when have a common cause or better still a common enemy.
When we don’t it all falls apart and we can get back to hating each other, like the PFJ vs the JPF.

The last time we had a very obvious common enemy, it was an easy target, an odious pig-headed individual who will be forever remembered as worst LC ever.
I probably don’t even need to say his name, but it rhymes with Failing.

Which brings me back to the Howard League lecture I attended last night. Much of Grayling’s bad work has been overturned or abandoned, but in the failing prison estate we are seeing the legacy of Grayling’s cuts and policies.
The shocking murder in Pentonville this week is the 6th murder in prison SO FAR THIS YEAR.
Grayling described the increase in deaths in custody as a “blip”
I invite you to pause for a moment and consider that continuing blip
In last 12 months, over 300 deaths in prison (up 30%)
Over 100 were prisoners taking their own life.
Over 10k self harm incidents
Over 20k assaults
And the prison population keeps rising, as the resources and staffing for the prisons diminishes.

And where are the prison lawyers?
Access to legal advice to prisoners was heavily curtailed by Grayling in September 2013. That reform has not overturned.
Where were we when prison law was being axed?

First they came for the immigration lawyers, but I didn’t speak out because I wasn’t an immigration lawyer.
Then they came for the prison lawyers, but….
Well you know how it goes.

But it’s not all doom and gloom.
Let’s look at and celebrate what we can achieve when we are united-starting with “two-tier”

Unity in Adversity (fighting the two-tier litigation)
In January we had “the victory”, and although there was much relief, there was only muted celebration.
For those who don’t know or don’t remember, 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 “Big Firms Group”.
Accompanying this was a proposed 8.75% fee cut, the follow up to the first 8.75% cut we had already absorbed

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.

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 effectively forced many 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
They banded together in a consolidated group action.
And they were successful.
Unity.

Before the tendering process began, there was a 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 Admin set 11kbw totalled around £150k (which goes to show why we should practice admin law not crim law)
It wasn’t pro-Bono, and it wasn’t mates rates.
That meant, despite generous donations, we depleted our reserves and gave our committee sleepless nights. We were not indemnified against losses, we were personally liable.
So in our darkest hour, we had to fundraise and more importantly trust that people would renew their memberships just to survive.

So the fact that we have survived as an Association, with membership steady, is a victory for Unity.
Although you may be interested to know that when we asked 11KBW whether they would contribute or sponsor an LCCSA event, answer came there none.
Instead our sponsorship came from friends at the criminal bar who don’t command such eye-watering fees, small firms, and individual solicitors.
I thank you.
Unity!

Unity in Campaigning

On May 22nd 2013 the LCCSA organised our first demo outside Parliament which generated national coverage.
On the afternoon of the same day there was a national meeting attended by 1000 solicitors and barristers.
In June another demo was organised by solicitors outside the MOJ
In March 2014 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 a few 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, once memorably described by Jerry Hayes as a “turd that couldn’t be flushed”.
Grayling didn’t like lawyers, and the feeling was mutual.
So, we rallied, we lobbied, we marched, we demonstrated.

And we learned Unity

Unity Undermined: “divide and rule”

But Grayling’s one great trick- and looking back it’s hard to believe any of us let him get away with this- was to divide and conquer.
He played barrister against solicitor.
At those rallies and actions I described we were shoulder to shoulder with the criminal bar led by Michael Turner QC.
But later, the MoJ met other representatives of the bar privately, and struck a “deal”.

Relations between leadership of the criminal bar and solicitors reached a low point. Like an old married couple, we were bickering.
We lost that unity, and we were the poorer for it.

I believe put those differences behind us.
We enjoyed a good relationship with Mark Fennells QC, and have confidence in his successor Francis Fitzgibbon QC.
We need to 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.

It wasn’t just solicitor v bar.
A few years ago we also saw the creation of new self-appointed special interest groups, principally the so-called Big Firms Group.
Who are they?
I don’t really know.
They don’t have a website.
I don’t know if they have a constitution, or if their committee -if they have one-is elected or self-appointed. I do know you cannot join them as an individual solicitor, even if you are employed by one of the Big Firms who apparently constitute the membership of the group, which again is unclear. Perhaps they have a secret handshake.
So they are unaccountable.
Now it is right that two of the leading firms of the BFG- TV Edwards, and Tuckers-joined the strike (sorry I mean individual actions) of June 2015.
And I accept unequivocally the right of any individual or firm to organise themselves as they want, and to act in their own best interest, and competitively. But, if we fracture into competing interest groups, big vs small, owners v staff, employed v freelancer, we are not united.

We can learn from what happened when Grayling successfully sought to divide and rule.
The lesson of unity is a simple one.
United we stand, divided we fall.

Current Campaigns

There is always some horror lurking around the corner.
We are currently engaged in 6 consultations.
And we have put a lot of work and endured many meetings with the LAA, to try and improve the contents of the new LA contracts.
Just this week we forced the LAA to redraft the embarrassment clause.
What was that?
Remember how in North Korea they banned sarcasm?
Well LAA inserted a clause in contracts that bans any contracting party from doing any act that “might cause embarrassment.”
This was nothing short of a “gagging” clause, and I am glad to see the back of it.

Gove
We liked Michael Gove.
He left us alone.
He made positive noises on prison reform.
He overturned Grayling’s policies.
He abandoned two tier.
He postponed the second cut.
The one thing I wasn’t so keen on, was his ill-judged appointment of an “advisory” committee, headed by his chum Gary Bell QC.
Gary had some strong views on solicitor advocates, and these were recorded NOT in off-the-cuff remarks but (here) in an interview in socitors magazine Law Society Gazette :-
“The biggest threat to its existence”, he asserted, is not the two-tier system for solicitors’ contracts, but a situation that has existed for some time — the increasing use of solicitor higher court advocates (HCAs), who are insufficiently qualified and ‘not up to the job’.

HCAs, he rates, as ‘rubbish’. “I’m sure they’re nice people and are nice to their children. I’m sure they do their best for their clients.

The majority of solicitor HCAs, he suggests, are ‘failed barristers – who either started at the bar, but never got pupillage or tenancy, and for good reason, or who did but then found that they couldn’t make a living because they were useless.

‘So they go and work for these solicitor’s firms as very low paid HCAs and because the solicitors have got the ear of the client they can always persuade the client that this absolutely crap person that they employ is the best person to conduct their case.

‘They are the best person from one perspective — it’ll optimise the earning capacity of the solicitor’s firm. And if that means that the client has to go to prison for a few years, that’s not really a problem for the solicitor – at least they can buy another Aston Martin.’

His anger is not directed towards HCAs themselves, but the firms that compel them to do higher court advocacy. ‘It means that venal solicitors will earn a lot more money. It’s greed; it’s avarice”

Mr Bell is one of the highest earners at the criminal bar, reportedly earning nearly £1/4million p.a. On his legal Aid work. How are you doing in comparison, you “venal” greedy solicitors?
He concluded his interview with this:-
‘If there are any solicitors that read this who employ HCAs, they can fuck off anyway, because they’re destroying both professions’.

UNITY? Perhaps we still have some way to go.

Bell then appointed his own committee, bypassing representative organisations, and sidelining solicitors.

I don’t knows what has happened to his committee or his report

But as for Gove, he got caught up with Brexiting, and ended up exiting.

Truss

Our new LC Liz Truss was a bit of an unknown quantity.
We knew she liked British cheese and pork markets
But will she sort out the mess of our prison estate?
What will she do about the second cut?
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.

So to conclude:-
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.
But we are ready to resume action if forced to do so, and will do so if the Government tries to bring in that second cut, which will threaten not profitability but sustainability.

But all the representative bodies are only as strong as our membership.
We can only campaign, take legal action, put on events if our membership is strong and we are funded by the membership fees.
If you join, or retain a membership, we are stronger.
My plea to you is, if you are not already signed up, join your representative body (LCCSA, CLSA, CBA)
If you are a member already-thank you.
Thank you for your support.
We don’t want to do this without you, and tbh we can’t do it without you.
Join up, and we are united together, and we can achieve great things together that we cannot do on our own.
That is the true message of Unity.

And now, time to “unite” and join friends and colleagues in the pub.

With thanks to CLFS for a fantastic conference, and 25BR for sponsorship.

Cheers!
Greg Foxsmith
President, LCCSA

Freelance Advocacy Services Awards-TOP 25 Solicitors of 2015!

In 2015 Freelance Advocacy Services launched a weekly news-email, “The Friday freelancer” (also published online in this blog, updated weekly) which included a feature “Lawyer of the week”

This page celebrates the recipients of the awards, and has been edited to the top 25 solicitors of that year, and provides a ‘where are they now’ update (as at November 2016) A list of my top lawyers of 2016 (so far) is published by Freelancer Advocacy Services HERE

The list below was in date order (Kate the first award of the year and Tim the last) and is therefore in reverse chronological rather than hierarchical order, all being top lawyers of equal merit!

These were my “LAWYERS OF THE YEAR 2015”:-

Tim Huestis Tim represented my old client Ashley Walters with a new case. Tim, an outstanding lawyer who previously blogged about drug driving here, is at Shearman Bowen.

2016 update- Tim instructed me at the Crown Court and we ensured there was a NOT GUILTY verdict for the contested racially aggravated charge

Sean Caulfield and Hannah Britz Sean (criminal) and Hannah (housing) are both at HJA, and this week announced the birth of Molly Caulfield. Congratulations! 2016 Update- Sean was best man at the wedding of Ronnie and Aileen (see below)

Rakesh Bhasin Rakesh is at Steel and Shamash, and has been on the LCCSA committee for two years. At the AGM in November he stepped up to take on the role of treasurer.2016 update-Rakesh was re-elected as treasurer at the LCCSA AGM

Tim Walker Tim was LCCSA treasurer during difficult times- including through our JR actions against the MoJ Tim stands down at the AGM, and we thank him for great service. 2016 Update- Tim was appointed as a Recorder at the Crown Court. Congratulations!

Bill Waddington Bill is director of Williamsons In York, and is approaching the end of his tenure as chair of the CLSA. He has tirelessly worked in supporting criminal solicitors, bringing the JR against the MoJ, speaking at events and demos and lobbying the Government. 2016 Update -Bill was elected LCCSA/CLSA rep on the law Society Criminal Committee

Charlotte Howarth Hird. Charlotte has an outstanding reputation for public law and civil liberties cases. She has been advising and assisting Carla whose son Imran lost his life in Belmarsh Prison, aged only 18. I previously wrote about about that here. The Inquest started on 12 October. Hopefully, Carla will have some of her many questions about Imran’s death answered. 2016 Update- Charlotte and I supported Carla through the inquest following which there was a narrative note

Steve Bird. Steve is my lawyer of the week, firstly for penning a demolition of the MoJ “offer” in response to the protest against Legal Aid cuts, and secondly for captaining the LCCSA “veterans” football team who have performed so well in the London Legal Aid league. Steve has his own firm BIRDS and is an outstanding lawyer and an Appeal specialist. 2016-Steve’s 5-a-side LCCSA team win the Legal Aid league!

Myles Jackman. Myles was featured in the Guardian, a revealing portrait of a lawyer in full-time campaign mode, with insight into Myles’ views, and the current laws on obscenity. It’s also a wonderfully well-written piece, with some lovely asides on the CJ system.

Paul Morgan. Paul is an outstanding Solicitor Advocate. Paul has been a steady source of encouragement and advice, and we had great fun co-defending recently. This week I had a difficult case for an old client that I needed someone to cover due to a fixture clash, and Paul is stepping in. Although regularly instructed by Birds, he is an independent freelance HCA, and a quality brief.

Paul Harris. Paul this week chalked up 25 years service at Edward Fail Bradshaw Waterson, where he is now Managing Partner. A stalwart supporter of the LCCSA and Legal Aid campaigner, Paul is also the solicitor representative on the CPR committee. Paul was also responsible for the “Tuesday Truth” blog. 2016 Update – Paul was awarded a “honorary lifetime membership” of the LCCSA in November 2015

Mark Troman, Mark is a solicitor advocate at Powell Spencer Partnership, and is a committee member on the LCCSA. 2016 Update – Mark is now Secretary of the LCCSA

Nicola Hill is a great lawyer and and has a substantial regulatory and professional discipline practice at Kingsley Napley. She was last year’s president of the LCCSA.

Jon Black. Jon, a founding partner of BSB solicitors, is currently the President of the LCCSA. He has shown leadership throughout a difficult term of office, notably during the JR action against MoJ. Jon is active on Twitter and other social media, and was as co-signatory to this letter in the Guardian .

Jenny Wiltshire
Jenny (Hickman Rose) is an outstanding lawyer (featured in Legal 500) and secretary of the LCCSA. 2016 Update- Jenny is now the LCCSA Vice President

Greg Stewart, Daniel Jones and Joel Bennathan (authors of Criminal Appeal Handbook)
I am currently reviewing this book for the Advocate magazine. (Greg, as well as running GT Stewart, is also a fellow player in the LCCSA football team). 2016 Update – book review published in the Advocate here

Ed Grange and Rebecca Niblock
Ed and Rebecca are top extradition lawyers, and co-author of Extradition Law: A Practitioner’s Guide (a new edition of which has just been published) and a fellow LCCSA committee members. Ed is with Corker Binning and Rebecca with Kingsley Napley.

Kate Nutter
Kate is a barrister, currently working at Shearman Bowen and Co, who was the organiser and inspiration for the joint SB/LCCSA team in the London Legal Walk. 2016 Update-Kate has commenced a pupillage–at 2 Bedford Row

Anna Thwaites
Anna is a solicitor specialising in civil liberties at HJA. I remember her as an outstanding trainee there in 2005. On Sunday she ran the London Marathon. She had barely recovered from running the Brighton Marathon! Update 2016 – Anna continues to specialise in contentious inquests and civil actions arising from protests. After the NYC Marathon in November 2015, she has decided to take a break from running!

Ben Holden
A partner at Shearman Bowen and Co, Ben Holden is a great lawyer, and one of the nicest people in the profession. Now he takes on a new challenge-fatherhood! Congratulation to Ben and Elys on the birth this week of a beautiful baby daughter! Posted April 2015

Ronnie Manek and Aideen McMahon
My joint lawyers of the week are Ronnie Manek and Aideen McMahon, both with GT Stewart solicitors, who have announced their engagement. Congratulations to you both! Originally posted 10 April 2015 Update 2016 -Ronnie and Aideen were married in Ireland, and I officiated as Registrant at their wedding in Ireland

Arlene Mansoor
Arlene is a solicitor at Shearman Bowen, and a trial advocate. Last year for charity she climbed Ben Nevis and the Yorkshire “3 peaks”, as well as walking from London to Brighton. This year she has a new challenge – walking 100km to raise money for CRISIS. Posted 03/04/15 Update 2016 -this year Arlene and I worked together on a difficult case in Oxford Crown Court,during which I had to report some newspapers to the Attorney General for contempt of court when the complainant (a well known BBC journalist) gave a pre-trial interview in the Times…

Pam Reddy. On Friday 27th March Pam Reddy left HJA after 14 years, to join Simons Muirhead and Burton. Congratulations and good luck! Posted 27/03/15 2016 Update- In November 2015 Pam joined the LCCSA committee

Rhona Friedman

Rhona Friedman (Bindmans) is a great lawyer, and a founder member of the Justice Alliance.
Rhona came up the idea of “impeaching” the Justice Secretary and walked from Runnymede to Westminster to join the Magna Carta demonstration that she had helped organise outside the so-called “Great Legal Summit” at which Grayling was speaking. Rhona is on the LCCSA committee.

Ben Ticehurst
Congratulations and good luck to BEN TICEHURST who has been headhunted by EMM Legal
Ben and I worked together at HJA, and then at Shearman Bowen. 2016 Ben has now joined Rahman Ravelli

Kate Goold (Bindmans)
Kate is an outstanding criminal lawyer, and gave expert evidence to the Parliamentary Select Committee on the issue of police bail. She also represented Paul Gambiaccini Posted 06/03/15

Criminal Law: new case on adjournments: Hottak v DPP

HOTTAK v DIRECTOR OF PUBLIC PROSECUTIONS (2016)

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
AC9402051

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.

GUEST BLOG BY MATT FOOT

‘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.

Notes

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)

LCCSA Summer Party -President’s Speech

Welcome guests to LCCSA Summer Party!

Background:-

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!

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.

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