Tag Archives: LCCSA

img_0125

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

img_0126

img_0172

LCCSA Outgoing President Speech November 2016

Welcome to the LCCSA AGM!

President’s speech 07/11/16

I woke this morning to the exciting news on my radio that we are about to experience the most important Presidential election ever. They were saying that whatever the result the current outgoing President was highly regarded, and far more popular than a likely successor.
Imagine my disappointment on realising they were talking about tomorrow’s US Presidential election, and not this evening’s LCCSA AGM and election of our new President…

It has been a funny year-a new PM, a new Lord Chancellor, BCM and “Pressure to plead Hearings, Brexit, killer clowns, and Donald Trump.

But for me, It has been an amazing year and enormous privilege to be LCCSA President.
It was a bit daunting….
The President was meant to be the then VP, but with a WEEK TO GO he bailed out, and (in the absence of anyone else) I was parachuted in.
My immediate predecessor was Jon Black.
I had to prise the presidential medallion from him, chest hairs still attached. Now I feel the same sense of ownership of the Presidential medallion, which exerts a command like the ring over a Hobbit.

img_1777
Equally “precious” and hard to relinquish is the Presidential cigar box, although I am disappointed to say when my successor opens it, he will find only a note saying “sorry-I smoked all the cigars
The Constitution said the outgoing president has to stay on for a further year. Thank goodness! Jon’s hard work over the last year has been an enormous help. Thank you Jon (below,as Pres)

img_5637                              img_1751
I have also been hugely helped and supported by Jenny Wiltshire as VP, who stays on as VP for another year- thank you Jenny. (Pictured above, LCCSA Conference, Ghent)

First the sad news-
We are losing from the committee one of the key officers, loyal to the LCCSA and lovely to work with, and who took on the role of Law Reform Officer and reformed it.
There are innumerable consultations and reforms, too many for you to respond to, so this association does so on your behalf. When i say association, I mean….TONY

imageToast to Tony Meisels

The good news -we are retaining all of our co-opted senior statesman-Steve Bird, Ray Shaw, Malcolm Duxbury and Paul Harris, and joining them is Jon Black, who deals with the CLSA.
Last year we made Paul Harris an award of Honorary Life Membership.
This year we also feel compelled to reward onother of our former presidents an award, for staying on the committee and being supportive. Raymond Shaw
TOAST RAY SHAW
Rakesh Bhasin remains in post as our treasurer having kept us solvent, Mark Troman our secretary, Diana remains training officer.

And Congratulations members-tonight you have just elected a BRILLIANT COMMITTEE
And best of all we have as incoming president- Greg Powell.
Those of you who voted through the new constitution without reading it may not have realised the change that any future Pres has to be called Greg.
I don’t know whether Greg Stewart will be feeling pleased or anxious….

All of the committee bring their ideas and enthusiasm, many contribute significant amounts of time. I salute you all. (Pictured below, committee dinner, January 20160

img_4052Toast- the LCCSA committee

President.
I had very little time to prepare for the role.
It took a while to get used to the idea.
Mrs F, however quickly become adjusted to the idea of being a president’s wife. It basically meant extra work for her when I was absent on LCCSA business. There is no recognition or reward for being the wife of a President, but she took that on without complaint, has never been anything other than supportive, and, being grounded, has reigned in some of my crazier ideas.
Those of you who know her know she is brilliant, and those who know us both know that she really is my better half.
Now she realises that my Presidency is over and we can spend more time together, she may be the only person wishing I had stayed on for another year.
Toast-the ex-President’s wife

It seems like only yesterday I was starting my criminal career at EFBW.
Heavyweight lawyers, Nigel Dean (now DJ Dean) John Lafferty (now HHJ) and LCCSA legend Paul Harris
And Howard Riddle.
HR was senior partner when I started my articles.
He taught us several important lessons and gave extremely helpful Advocacy tips.
Of course, back then we practised in a fully adversarial justice system, much of which has been eroded and sacrificed on the bonfire of expedience and speedy summary hearings. I don’t know who to blame for that…
Anyway, as you know Howard became a stipendiary Magistrate, and ended up as the “Chief Magistrate”, and throughout has remained a member of and friend to this Association. I am delighted that he has agreed to be our guest speaker tonight, and welcome him and Hilary to our AGM Dinner.
Speaking of advocacy, last year I spoke of a report then just published which criticised the experiences of non-lawyer participants at the Crown Court, making reference to the alienation of seeing barristers swishing about in gowns and wigs.
i had a bit of fun with that, and tried on a series of wigs to see what difference they may make…

img_1778                 img_0188
When this came out, a spirited defence of wiggery was then made by some at the bar- “dignity of the court” and “providing anonymity”.
I was told the wig “protects the identity of the advocate”

Really?!

Not much of a disguise is it?!
Imagine cross examining on ID in a case where the alleged robber was concealed only by a horsehair wig with curls!

Why stop at a wig to avoid recognition?
Why not wear a full mask?
How about -to be really contemporary-a Donald Trump mask, or even a “killer clown”mask?

img_0170                                                    img_6122
Killer Clowns-scary but comical, a bit tragic. Come to think of it, very definition of Chris Grayling.

Alternatively, if a mask is going too far and we stick to a wig, how about something more contemporary-a Donald Trump wig perhaps?

I’m just teasing our friends at the bar.
We have many friends at the crim bar, and I have enjoyed working with the CBA. It is so important that the two sides of the profession are united in tackling our current challenges.

We have had in the last year great support from certain chambers, and particularly 25 Bedford Row, 5 St.Andrews Hil, and Doughty st.

We have worked with the Justice Alliance and the CLFS.

We also thank Thomson Reuters for sponsoring tonight. LCCSA members are eligible for discounted copies of Archbold.

Toast: Friends of the Association

Review of the last year:-

In January we defeated Grayling’s two tier proposals
I met the Lord Chief Justice (wearing a Christmas jumper)
We are engaged in a War on touts, and busy Ghost-busting.
We had a great Autumn Conference in Ghent.

image                                      image

We relaunched the London Advocate in digital format.

And, within the last month, we had an LCCSA victory on the “embarrassment clause” (forcing the LAA to rethink clause 2.2 aka the “gagging clause”. We were the only practitioner group named in the action that led to this, and can be rightly proud that we did not shy away from taking the fight directly to them.
(A full review of the year is in my President’s report, published on the LCCSA website)

Unfinished business
The postponed cut has not gone away-it was only postponed (to March)
We have to persuade the MoJ to abandon it, and we have to be ready to act if they do not.
And we will be ready.

We now have the measure of Liz Truss.
When our Senior Judges came under political and polemical attack, the lord Chancellor, whose oath of office is to support the independent Judiciary, has been found wanting.
Our association condemns the tabloid and political attacks on justice, and castigates the Secretary of State for Justice for her failure to swiftly support due process and the Rule of Law.

Well we have news for Liz Truss.
We are not gagged or trussed, and we will fight fearlessly for justice, for legal aid and for our member’s interests.

We are not the “Big Firms Group” or a small firms group, we are an accountable and united members group. You are the members. We are the LCCSA.

Conclusion
It has been a challenging but enjoyable year. have survived it only thanks to enormous help from a supportive and hard-working committee, whom I am proud to know as colleagues and happy to think of as friends.
Long live the Association

Members, thank you all for coming.
With your help and support the LCCSA has a strong future.
Final toast -the LCCSA

img_4104 img_1775

Above-current ID card.                                               Above -LCCSA ID card circa 1989

img_2079.jpg

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.

20140314-125301.jpg

Grayling Day Demo -Speakers for Justice

The following speakers spoke up for Justice at The Grayling Day demo in Westminster  07/03/14

1 Paul Harris
A former president of LCCSA, Paul opened the proceedings with a rousing address. He said the cuts would result in a two-tier system – one for those with money and one for those without.
2 Alistair Webster QC
20140313-233553.jpg
A Lib Dem peer he reminded us of their Party Policy of supporting Legal aid, but commented adversely on their failure in government to speak out against Grayling’s cuts, concluding “The politicians may have failed Justice. We will not.”

3 Laura Janes
Laura, representing The Howard League for Penal Reform dealt with how Chris Grayling has removed most prison law work from criminal legal aid. Her whole speech is available here.
4 Sir Ivan Lawrence QC
Sir Ivan (criminal barrister for over 50 years, and was a Tory MP for over 20 years) said he was ashamed of this Government. “We will bring the Criminal justice system to a halt to save it- that’s why we are here”
5 Ian Lawrence (NAPO)
Representing the Probation Service, another service under attack by Grayling,

6 Paddy Hill

20140314-003739.jpg

Paddy reminded us what is at stake. “There will be many more miscarriages of Justice like the Birmingham 6if legal aid is cut to this level.” An article about Paddy’s speech, with a clip in which he brands the MOJ the “Ministry of Injustice” is here.

20140314-004257.jpg

7 Sir Anthony Hooper
Retired Court of Appeal Judge, Sir Anthony reminded us  eloquently:-“For some 60 years everyone has had the right to equal access to Justice. This Government is destroying that right”
8 Francis Neckles
A man who was rightly acquitted at trial, preserving his good character, thanks to good representation by his Legal Aid lawyer. “Chris Grayling says he can’t afford to fund legal aid- Francis Neckles says we can’t afford NOT to”
9 Shami Chakrabarti

20140314-005149.jpg
Representing Liberty, Chakrabarti (back when she was universally admired and before her appointment as Baroness) made a powerful speech linking Legal Aid with freedom.
(See  the Liberty consultation response here)

20140314-012811.jpg

20140314-012823.jpg

10 Dave Rowntree
Dave is drummer with Blur and also a solicitor with Kingsley Napley.
He spoke about the Magna Carta, which was signed 800 years ago next year, and reminded us of clause 40 – “To no one will we sell, to no one deny or delay right or justice.”
11 Nigel Lithman QC
Representing the CBA, he had been invited to speak to demonstrate the unity between bar and solicitors in fighting the cuts. Three weeks later, Lithman struck a “deal ” with the MoJ, having met them secretly, for which act he was widely condemned by campaigners He Has subsequently been appointed a Circuit  Judge.
12 Janis Sharp
Janis is Mum to Gary McKinnon, and led a courageous (and ultimately successful) fight against his extradition. She knows the value of legal aid, and again can be seen in the YouTube film (incorrectly subtitled as Janis McKinnon- apologies Janis)
13 Bill Waddington
Bill was chair of CLSA. Selfless, dedicated and competent, he is the opposite of the bungling, greedy and legal illiterate Chris Grayling.

20140314-111615.jpg
14 Noela Claye
Speaking with the support of the charity Women against Rape WAR, Noela brought a victims perspective, and showed that ultimately this demo was not about fees or careers, it was about victims, clients, and justice.
Noela spoke on camera in this short film of the start of the demo. (Thanks to Matt Tiller for film)

Hanna Evans
Hanna was a new tenant and rising star at 23 Essex St. Chambers. Read more (and hear her speech) at #Just4Justice demo here.
15 Sadiq Khan MP
A former lawyer in a legal aid practice,  Labour MP and shadow Lord Chancellor (as he then was) said he opposed Grayling’s cuts. When asked  to give an unequivocal commitment to reverse them if  in office he declined. In the run-up to the election campaign, he  combined his portfolio responsibility with a role of attacking the Green Party (who had made a commitment  to restore legal aid funding) After the election, he successfully campaigned for London Mayor.
16 Matt Foot
Matt, one of the founder members of the Justice alliance summed up the rally, before leading the demonstraters on a March to the Ministry of (In)Justice.

NOTES

Short summary with speaker clips here on Youtube

Pictures of demo by demotix here

Excellent commentary and photos of “Grayling Day” here (courtesy of Legal Aid Watch)

Photos of demo, all speakers, thanks to Luca Nieve, here