Monthly Archives: June 2016

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Michael GOVE -Justice Secretary

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

Pre Justice Secretary

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

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

 Comments on his appointment 

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

An assessment and initial analysis in this article in Legal Voice

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

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

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

First speech

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

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

Gove and Prison Reform

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

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

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

In the meantime….

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

MOJ and the Saudi contract

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

Poetry

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

Gove’s Visit to Highbury Court

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

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

Ending Two-tier contracting!

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

Gove and Grayling

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

Missing in Action: Gove and Brexit

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

Gove and Human Rights

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

The Gove Committee

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

Personal Life

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

Tory Leadership bid

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

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

Sacked

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

Conclusion

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

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

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

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

Gove-Post Justice Secretary

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

He returned to the cabinet following May’s ill- judged “snap election” in June 2017.

More GOVE

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

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

An unfortunate encounter with salt here

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

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The Magistrates Court- Managerialism vs Justice

 A Fair Trial in the Magistrates Court? 

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

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

A “Legal Advice Note” issued to Magistrates in June 2016 (extracts below, and in full Here) casts doubt on whether a citizen accused of a criminal case can secure a fair hearing in the Magistrates Court.
Practitioners in Criminal Law have become used to a fast pace of legislative changes and Judicial Policy, along with the incorporation of Criminal Procedure Rules, “Speedy Summary Justice”, “Transforming Summary Justice” and more.

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

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

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

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

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

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

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

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

LEGAL ADVICE NOTICE

Date: June, 2016

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

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


Always take plea at the first hearing

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

The following are not good reasons not to take plea: 


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


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


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


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

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

MY COMMENTARY

The Legal Advice Note includes :-

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

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

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

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

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

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

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

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

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

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

Action

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

The LCCSA, with CLSA, CBA and The Law Society, raised these issues at a meeting with the Senior Presiding Judge, DPP and Chief Magistrate. Consideration was given to amendments to the CPR, which were later modified as a result of our representations.

Notes

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

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

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

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