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.

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

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

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

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

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

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

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

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

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

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

So unsuccessful firms took legal action against the MOJ….

Take the example of EFBW:-

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

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

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

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

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

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

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

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

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

WE COULD HAVE TOLD THEM THAT!

(WE DID TELL THEM THAT!!)



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

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

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

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

big firms and small, private and legal aid, 

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

History of Campaign



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

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

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

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

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

We lost.

And it was expensive.

We campaigned and fundraised.

Many of you contributed – thank you.

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

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

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

For example:-

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

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

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

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

We had No Returns.

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

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

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

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

To be perfectly blunt, he was a bit of a

difficult man to engage with.

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

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

The New Legal Aid Landscape



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

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

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

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

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

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

At least until the next row! 

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

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

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

United we stand, divided we fall.
Current Campaigns



There is always some horror lurking around the corner.

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

If not before.
BCM/ DCS/ PTPH/CJSM 


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

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

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

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

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

Gove didn’t just abandon two-tier tendering.

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

-the ban on prisoners receiving books from their families 

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

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

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

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

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


We are still waiting.

But perhaps no news is good news.

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

 We cannot take any more.

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

We all play our parts- barristers and solicitors.

Brothers and sisters in arms.

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

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

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

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

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

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

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

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

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

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

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

Cheers!

Greg Foxsmith

President, LCCSA

Hillsborough Inquest – a lawyer’s perspective (guest blog by Anna Morris)

Dedicated to the memory of the 96 victims of the Hillsborough Stadium disaster who died on 15 April 1989.

On 26th April 2016, I hugged two of my clients with elation after a jury of 6 women and 3 men set the record straight after 27 years about what happened at Hillsborough stadium on 15 April 1989. Moments later, they looked at each other and said, without missing a beat, “so, what do we do tomorrow?” They hadn’t dared to believe there could be a day when they would not have to fight for justice, to fight to clear the name of their loved one. This had been a life-defining fight for a generation of children, wives, parents and siblings of those 96 men, women, boys and girls.

The jury’s conclusions finally saw their families achieve something they recognise as justice. Much has rightly been reported about their tenacity, commitment and patience. But I want to say something about their humanity.

The families have endured the longest jury case in English legal history. 319 days of witnesses, evidence and submissions. For many of the families, attending Birchwood business park had become a full time job. Employers who asked, “haven’t you got over it yet?” had to be negotiated with, child-care had to be arranged, health problems had to be managed, life continued to be put on hold. But when they could be there, they were there. Sitting, listening. Waiting.

At the start of the process, many approached with caution after decades of being let down again and again by lawyers, judges and politicians. They had no reason to trust us, their lawyers but as they sat there in our conferences, polite but knotted tense with questions and anger, their thoughts were never just of themselves; “who will look after the jury?” “What about the survivors, who speaks for them?” “How do I find the man who helped our brother, I want to thank him?” We could only tell them, “we will try and get these answers for you. We hope we can”.

Most of the families had an encyclopedic knowledge of the papers disclosed as part of the Hillsborough Independent Panel. As their lawyers we had to be able to call up documents at the click of a finger to answer the broad and complex questions that troubled them. More than one set piece of witness examination conducted by our team of advocates was centered on a document recalled through the mists of time by one of our clients, tracked down in the 250,000 plus pages of disclosed material. In fact, one of my clients, when she presented 10 neatly typed pages of devastatingly precise and searching questions to Operation Resolve, the Coroner’s Investigation team, was (with only a hint of humour) offered a job as an investigator. We all had to be at our best. No one wanted to let these families down.

But on many occasions, it was our clients looking after us, using their 27 years of pain to help us navigate our way through the sea of changing emotions. From flasks of pea-whack soup served from the boot of a car, to cups of tea in their homes, we were shown such warmth and respect that it was truly humbling. I took great strength from one client who, when I asked her how she kept going through all the lies being told about her brother, about him being a drunken hooligan who caused his own death, she simply smiled broadly and answered, “eyes and teeth, eyes and teeth”. I have repeated that mantra many times since that day.

During the inquest I was the mother to one young boy and pregnant with a second. I was representing the family of boys who were 15 and 19 when they died and I was incredibly moved by the loss of so many young boys’ lives. I couldn’t imagine them just not coming home one day. One client, on the morning of her young son’s inquest, presented me with a bag full of hand knitted baby clothes specially made for my son. It absolutely floored me that this woman could even think about anyone else in the circumstances, let alone extend such deep kindness. I have a drawer full of beautiful blankets and clothes, made by those strong women of Liverpool. Nothing could make me prouder.

When my youngest son finally made his first trip to Birchwood, he was passed from mother to mother, bounced on knees and fussed over as if he was one of their own. It only struck me later, like a tidal wave, that I had been swapping teething, sleeping and feeding stories about children who would never grow old.

There are many small moments that made the Hillsborough Inquests more than just an inquiry into the circumstances into how 96 people died that day. Moments that might have started in the court room but resonated far wider. The pen portraits that painted the real pictures of 96 cherished loved ones who attended a football match and never came home with humour and dignity. The vigorous handshake in the corridor between a father and the off-duty Metropolitan Police Officer who pulled his son from the pen, the damp-eyed slap on the back for the fellow fan that carried someone’s brother on a stretcher and wished he could have done more. The sympathetic words for colleagues who also lost loved ones during the months of the inquests. The jurors who when discharged when court concluded that final time, were each hugged by the families, each thanked for their commitment. The families in their grace never left anyone un-thanked. I hope that those witnesses, relieved of their burden after 27 years were the lighter for it.

Every day of the inquest we shared tea and tears with those who traveled to that grey box on a business park. On the some of the most difficult days of evidence, the families would always be able to find a joke, a smile and a hug for each other. Willing each other on. Someone was always in charge of making sure there was milk for tea and the biscuit tin was always full.

They are the best in all of us. It could have been any of us in their shoes whose brother, father, sister or son went to that match. They have defied the state’s attempt to define them by gender, geography, class or type. We can all aspire to their dignity and strength. It has been a privilege to walk with them on a small part of their journey.

No one can now deny the success and the power of the families’ campaign for justice all these years. They are the reason that 96 verdicts of ‘accidental death’ were quashed. It is their demands that ensured the truth has now been heard. We should never be in doubt that this is the reason why families should be at the heart of the inquest system.

Anna Morris, May 2016


NOTES/LINKS

Hillsborough Independent Report: http://hillsborough.independent.gov.uk (disclosed materials and report)

Inquest Charity: http://www.inquest.org.uk/

Michael Mansfield: “Hillsborough families were my rock ” (Liverpool Echo)

A full if harrowing account of the evidence, the inquest and the outcome reported in the Guardian here.

Why the police “apology” was neither sincere or believable explained by Mark George QC. 

Call for a rebalance of the justice system and equality of arms at Inquest hearings (reported here in the Guardian May 2016)

Another Hillsborough Lawyer, Elkan Abrahamson, interviewed here in the Liverpool Echo.

And don’t miss this survivor’s account by Adrian Tempany. Powerful and moving.

About the author

Anna Morris is a barrister at Garden Court chambers. Anna’s practice focuses on criminal justice and civil liberties and encompasses criminal defence and appellate advice, inquests into deaths in custody, civil actions against the police and public law. A human rights specialist, Anna has extensive experience of successfully representing clients whose cases challenge public policy and promote civil liberties. Read full profile on Chambers website here.

Hornsey YMCA and the Crouch End Festival

My son Daniel (9) ran a mile at this year’s Crouch End festival to raise funds for North London YMCA.  All the money raised goes directly to their work and services, not fundraisers, bureaucrats or charity directors. Their work is community based, and includes outreach work, youth work, housing and finance advice.
In 2014 we raised £150 and we hit that target again last year

THANK YOU FOR HELPING US REACH THAT TARGET AGAIN! 

It’s not too late to help by sponsoring Daniel now-thank you!



Running Playlist here

Below-Daniel and Adam from a previous year’s effort

20140518-213629-77789892.jpg

Below:- end of 10k!


Chris Grayling- the worst Lord Chancellor in history

Who is Chris Grayling?

Born on April Fools Day, Christopher Grayling MP (Conservative MP for Epsom) was the Justice Secretary and Lord Chancellor from October 2012 to May 2015.  He was the first non-lawyer to have served in that post.

This blog reviews Grayling’s tenure in office as Lord Chancellor.

Introduction and Overview

Overview  here (my TV interview about Grayling, Legal Aid and Magna Carta, via YouTube)

Joshua Rozenberg assessed Grayling’s likely legacy In the Law Society Gazette here (March 2015)

Grayling “just didn’t get it” – article in Gazette here  (November 2015)

Top ten things about which Grayling was wrong and why (Mirror, Nov 14)

Why “Failing Grayling” illustrates the worst aspects of Cameron’sGovernment  (by Nick Cohen in the Spectator, Dec 2014)
2014 review of a year in the life of Christopher Grayling (with links) as reported in the “Tuesday Truth” blog.

EXPENSES (pre-appointment)

Chris Grayling as an MP and certainly as Lord Chancellor purported to want to cut public expenditure. However, when it comes to his own public expenditure, Chris likes to get as much of it as he can. The extent of his guzzling was chronicled in the Telegraph expenses scandal  here (as shadow home secretary h3 claimed thousands of pounds to renovate a flat in central London – bought with a mortgage funded at taxpayers’ expense, even though his constituency home is less than 17 miles from the House of Commons)

Chris neeed a good secretary, so the taxpayer forked out for him to have a secretary (at an eye-watering 40k pa) . Luckily, someone was available for the job- no need to advertise! The ideal candidate? Step forward Mr Graylings wife- susan!

Years later, how Grayling get away with it, and whether he did in fact refund some of the money as he publicly pledged , remain shrouded in mystery (as explained by Ian Dunt in this article, Jan 2017)

Grayling and cuts to criminal legal aid

Grayling had supported, despite overwhelming opposition in the preceding “consultation, a new model for payment of criminal league aid solicitors known as Price Competitive Tendering, which was so flawed even the Mail on Sunday criticised it ( enjoy this  Downfall parody video with Grayling stabbed in back by MoS ) Legal Aid had already been cut to the bone, before Grayling set to work with cuts to all areas of legal aid.

Criminal Lawyers even went on “strike” (January 2014) Grayling did not back down, the LCCSA took legal action, and a year later (under Grayling’s successor) the Government caved in and the scheme was abandoned.

Government guidance in relation to the granting of legal aid for immigration cases was found to be unlawful (Dec 2014)

Meanwhile as more defendants were appearing unrepresented, even Magistrates started commenting on the “threat to Justice”   (full story and my quote in The Independent here) (January 2015) and more detail here (via the Bureau of Investigative Jouralism)

Grayling attracted criticism even on Tory blog  “Conservative Home”- see this demolition of Grayling’s Legal Aid Cuts (“damaging and unfair”,  Feb 2015)

Grayling and cuts to other areas of legal aid

The supposed “safety net” introduced for exceptional cases was revealed in this article  to be a failure (Daily Mirror 28/12/15)

Grayling repeatedly claimed that Legal Aid in the UK is “the most expensive in the World” -an inacuracy also repeated by the MoJ but demolished here

His LASPO Residency test was overturned in July 2016 (see here)

PRISONS CRISIS

Guardian article on rising suicide figures exposing prison crisis, and subsequent letters.

The Independent reports on Grayling callous indifference to rising suicide rate

An insider account of the “Highdown 11” (prison protesters against prison cuts all acquitted)

Lord Ramsbotham speaks out against Grayling over the prison suicide crisis.

Grayling makes Chief Prison Inspector reapply for his job.

Grayling dismisses huge increase in prison suicides as a “blip“.

Grayling’s legacy will be to have left prisons in a worse state than he found them.

After cancelling an effective rehabilitation course, Grayling was described as an “incompetent, short-sighted recidivist” (The Guardian, April 2015)

Grayling was criticised in a parting shot from the outgoing Prison Inspector here (the Indy, Jan 2016)
Prisoner Book Ban

Grayling’s book ban, and and the Howard League’s response

Authors use Chris Grayling as villain in response to the book ban.

“Strange and absurd” -Court Judgement on Grayling and the book ban.

Picture: demo against book ban outside Pentonville prison:


Having lost on his prison- book-ban, Grayling delays implementation and is described as “stealing Christmas“.

A short Video of the book ban demo outside Pentonville prison, March 2014

Grayling and Human Rights

The sad truth is, Grayling doesn’t actually understand Human Rights, and even the Daily Mail had to correct him- see this article.

Grayling’s views on workfare and making employees work for free here (New Statesman 2012)

GRAYLING AND THE MOJ
Man wrongly imprisoned for 17 years persued for costs by MOJ

Under Grayling’s tenure, there were record levels of absenteeism as MoJ staff were sick with stress and mental health issues (as reported here)

Grayling gets MOJ “flogging expertise to Saudi floggers” -selling legal services to Saudi Arabia and other repressive regimes. (As set out by David Hencke, Jan 2015)

The MOJ “deal” with the Saudi regime represents a clear conflict of intetest as set out by Jack of Kent in his informative argument. Gove has done his best to extricate the MOJ from Grayling’s toxic legacy -update here.

The commercial arm also managed to make a £1million loss! Detail here
Grayling and Magna Carta

BACKGROUND:- this website has info about Magna Carta, it’s historical significance then and now, why we should celebrate it and how the Government has hypocritically hijacked the anniversary.

Nothing but lip-service, is all we can expect from this Lord Chancellor

Grayling is a hypocrite with his MOJ event to commemorate Magna Carta (argues Peter Oborne) – don’t jump on the bandwagon!

Robin Murray spells out the hypocrisy and called for a boycott of Grayling’s Magna Carta event.

More here on why principled lawyers would not attend.

Frank Magennis in the Justice Gap described this as an unfolding of British Justice (published Feb 2015)

In the 800th anniversary of Magna Carts (see below) a RELAY FOR RIGHTS saw demonstrators walk from Runnymede to Westminster to protest against Christopher Grayling and his preposterous, hypocritical “Great” Legal Summit. This led to a public Impeachment for the man masquerading as Lord Chancellor.
See also this article on Grayling and Magna Carta in the New Statesman (Feb 2015) by Anthony Barnett.

Grayling and the Probation Service

Grayling was accused of no less than murdering the probation service

Grayling’s privatisation has led to job losses and failure (article in the Independent December 2015)

Grayling’s failings revealed Probation reforms deemed a costly disaster by NAO in this scathing report (2019)

Grayling and Judicial Review

JR bill falls apart after grayling admits misleading Commons

The Lord Chancellor lost yet another judicial review in October. This time it was over his decision to make mesothelioma sufferers pay up to 25 per cent of their compensation for legal and insurance costs should they win their case. Giving his judgment in the High Court, Mr Justice Williams said: “No reasonable Lord Chancellor faced with the duty imposed on him by section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty. This is not a case in which the procedural failure was minor or technical in nature.”

Grayling in his own words

in this article we find out what Grayling thinks , with critical analysis.

Grayling as Lord Chancellor

Former Tory MP, barrister and blogger Jerry Hayes described Grayling as “a shit that has to be flushed after the election”

Matthew Norman, writing in the Independent, (Jan 2015) asks “what in Sanity’s name is Chris Grayling doing in the job of Lord Chancellor?”

Minutes of Grayling’s appearance as Lord Chancellor before the Justice Select Committee here. Note the admission to Jeremy Corbyn that cuts are “ideological” (Q200)

Grayling on Twitter
You can find out more about Mr Grayling by searching #FailingGrayling

Musical Grayling

Check out the chris Grayling playlist

Freedom of Information

Naturally Grayling is not a fan (source:Guido)

Lord Chancellor Grayling In Retrospect

Has there ever been a more incompetent minister than Grayling? Answer in this article in Huffington Post

Unfavourable comparison with his successor here in the Spectator.

Lord Pannick described Grayling’s performance as “notable only for his attempts to restrict judicial reviews and human rights, his failure to protect the judiciary against criticism from his colleagues and the reduction of legal aid to a bare minimum.”

Grayling Brexit

After the May 2015 election, Grayling let it be known that he would be very happy to stay on as Lord Chancellor. He was promptly demoted by Cameron to “Leader of the House”. The New Statesman asked “Is Grayling the most incometent Minister?” (article December 2015) “It’s often said that all political careers end in failure, it just seems that Grayling’s seems to be failing before it has ended…”

For many months we heard nothing about Grayling. Then it emerged he had been granted permission to campaign in favour of Britain leaving the EU in the forthcoming referendum, and he became a self appointed leader of Brexit. Grayling’s support for “out” caused celebrations in the “in ” camp, as Grayling (a “sheep in sheep’s clothing”) proved that he has “yet to discover an argument he has consciously been on the right side of” (read the full sketch by John Crace 14/01/16) However, as we now know, the Country did vote to Brexit, although few have cited Grayling and his support as having been an influential factor in that.

One of his first speeches in the cause showed his “humorous side” as described in this article 50 shades of Grayling (Political sketch by Patrick Kidd, Times, January 2016)

Post MOJ: Grayling as Leader of the House

We didn’t hear much of or about Grayling after his demotion from Lord Chancellor, other than his legacy being unravelled and overturned by his successor, and his Brexit campaign (above). However, never one to be on the right side of an argument, he  sought to with-hold details of MPs dodgey expenses and arrests (as outlined here in the Daily Mirror (Feb 2016)

From Jail to Rail: Grayling as Transport Secretary

Grayling was appointed transport secretary in Theresa May’s new cabinet (July 2016)

Two weeks later there were 16 hour delays in traffic jams leading to Dover…

He combined his newfound interest in Brexiting and Transport with an important intervention in Public Life-railway platforms. Mr Grayling is however wrong even about the Brexit dividend to station platforms as explained here

Meanwhile, as controversy mounts over heathrow expansion and HS2, Chris struggles to find any relief for the long-suffering commuters reliant on failing Southern Rail. He is then “offered a new job by a Village without an idiot”, according the satirical website NewsThump here

in December 2016 there are calls for his resignation even from Tory MPs (see this BBC News item)

In 2017 Grayling supported Heathrow expansion, and Monarch Airways went bust.

In October 2017 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- 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

Grayling’s short tenure as Conservative party chair

On 08 January 2018 in Theresa May’s botched cabinet re-shuffle, Conservative HQ tweeted congratulations to Grayling on a post that he had not in fact been given, as described here https://www.standard.co.uk/news/politics/chris-grayling-named-as-new-tory-party-chairman-in-now-deleted-tweet-in-cabinet-reshuffle-blunder-a3734531.html

That it took nearly half a minute to realise the mistake was a surprise: most people don’t need nearly that much time to work out that Grayling is invariably the wrong person for any job.

More transport shambles

Grayling was trending again on twitter (and not in a good way) in June 2018 after ongoing train cancellations and timetable shambles. Chris was supposed to meet MPs but had to cancel some meetings after he didn’t timetable them properly (I’m not making this up) and then gave a statement in the house where he said that those responsible should resign.

“It’s completely unacceptable to have someone operationally in control and not taking responsibility,” Failing Grayling declared hysterically. At that moment, satire died. (Full sketch by John Grace here, and here is a further extract: If you were writing a new series of The Thick of It, you’d hesitate to create a character like Chris Grayling for fear no one would believe in him. Even in the current cabinet, a confederacy of dunces where the sole qualifications for membership are being a bit dim and entirely incompetent, the transport secretary is a class apart.

To say that Failing Grayling has more than his fair share of bad days is a category error. Because that implies he has the occasional good one. He doesn’t. Every day is a desperate, losing struggle against the chaos caused by his own hopelessness. But even for a man who has turned his failure into a monumental work of performance art, Monday hit a new low. Or, as Grayling might see it, a total triumph. The moment he formally achieved the coveted status of the idiot’s idiot.

The Times has this to say

Chris Grayling used the publicly owned French railway as an example of how bad a UK nationalised railway would be…yet we pay the French rail to run private UK services and UK fares can be 4x more expensive for similar journeys.

KICKING OFF for the Hundred Families Charity (Guest blog by Len Hodkin)

The 2nd floor at the Central Criminal Court will forever have a special place in my heart and for those of you who know me, no, I am not referring to the café. It is home to a unique group of people, who in my opinion, are more important, more significant than any Judge, prosecutor or defence counsel who attends the Old Bailey. You will have all seen them. They are there every day and they go about their business quietly and largely unnoticed but the court could not operate without them.

I refer to Linda Harlow and her amazing team of volunteers from the Witness Service. These unsung heroes support not only the victim’s families but prosecution and defence witnesses alike in addition to children and vulnerable witnesses.

 I had heard of the Witness Service and had some dealings with them across the various Courts I had attended across London but was largely ignorant as to what they actually did. I thought it was simply a case of escorting a witness to and from the Court to give evidence. How wrong I was.

 In 2012 my family and I spent four and a half weeks at the Old Bailey for trial of the woman who killed my mum Sally. It is not an experience I would ever wish to repeat yet strangely enough, I do look back upon those four and a half weeks with immense fondness. I witnessed first hand the volunteers from the Witness Service at work. I saw them share the burden of victims and witnesses grief and trauma. I saw them offer comfort and support to those in their darkest hour. A service all delivered with a smile and an unwavering passion for what they do. A service very much undervalued and overlooked by many but most importantly a service which is free. A Safe Haven.

 It was a privilege to see these amazing folk at work. My family and I cannot thank them enough for how we were treated and looked after and we are no different to the hundreds of families, witnesses and children who come through the doors at the Old Bailey each year.

 Each year since my mum’s death we have held a memorial football match at Welling United Football Club. Read media coverage of last year’s event HERE) To date we have raised over 35k for charitable causes. In 2013 we donated a substantial amount to the Witness Service along with the family of Elouise Littlewood to help renovate the witness rooms at the Old Bailey. Now the waiting area and rooms are almost unrecognisable to those that were there in 2012. 

   

  
  

 

However, the job is not quite finished…

 This years Charity game will be held at Welling United on 7 May with a 3pm kick off. We are raising money for the Witness Service at the Old Bailey and a Charity called Hundred Families of which I am a Trustee.

 Hundred families: http://www.hundredfamilies.org/

 Hundred Families is a small charity that receives no Government funding. We provide practical support, information, and advocacy services throughout Britain for families who have lost loved ones as a result of killings by people with mental illness. We work with the Criminal Justice System and the Health Service to secure meaningful improvements for victims’ families and the way in which they are treated. We provide research, training and evidence based resources to mental health professionals and policy makers to try and prevent such killings from happening in future. This year we produced a Practical Guide for families after mental health homicide. This guide is available to download free from our website or free in hard copy upon request.

 If anyone would like to come along to the Football match on Saturday 7 May 2016 please feel free. Everyone is welcome and it is a good family day out. There is also a raffle held after the game. If anyone would like to advertise in the programme, buy raffle tickets or simply make a donation please contact me at len@hundredfamilies.org or you can donate by text. For example to buy 5 raffle tickets just text HUND43 £5 to 70070just text HUND43 £5 to 70070 

To donate to the Witness Service or ensure your donation is made available specifically for the benefit of witnesses and bereaved families at the Central Criminal Court please

• make a cheque payable to Citizens Advice and send it to:

Citizens Advice Witness Service, Central Criminal Court,  Old Bailey ,  London EC4M 7EH

Send the cheque with a covering letter stating you wish the donation to be allocated specifically for use by the Witness Service at the Central criminal Court, the Old Bailey and the funds will then be allocated for their use only.

Finally, next time you are at the Old Bailey and you find yourself on the 2nd floor about to go into the café spare a thought for the amazing unsung heroes right next door.
Len Hodkin  Len Hodkin is a solicitor at GT Stewart Solicitors, and Trustee for Hundred Families Charity.

In Memory of Sally Hodkin

Sally Hodkin worked as the accounts manager for a solicitors practice in Blackheath. She was wife to Paul Hodkin for 38 years, Mum to two sons Len and Ian, and a loving grandmother.

  
 

 

 

 

 

 

Hatton Garden Burglary Sentence

Six defendants were yesterday sentenced at Woolwich Crown Court for offences arising from the “Hatton Garden Raid”.

The majority were sentenced to six years imprisonment for Conspiracy to Commit Burglary.

 In my capacity as current President of the London Criminal Courts Sentencing Association I was invited on the LBC Nick Ferrari show to explain how those sentences may have arisen. I make it clear I was not defending any of the defendants, and my knowledge of the case and the sentence is based purely on the press reporting.

Firstly, although described in some reports as “the Hatton Garden robbery”, the offence committed was not a robbery (which in simple terms is theft accompanied by violence or threat of violence) which carries a maximum sentence of life imprisonment.

The raid here was a burglary, ie entering premises as trespassers, and stealing property. In fact, the defendants were charged with conspiracy to burgle , in other words agreeing to take part in the burglary. This suggests equal culpability for each conspirator, regardless of their actual role within the operation. The maximum sentence and sentencing range for conspiring to commit an offence is the same as for committing the actual offence, in other words there is no advantage in sentencing terms to pleading guilty to a conspiracy rather than the burglary.

Some have commented on the apparent leniency of the sentences, but in my opinion the Sentencing Judge got the sentence exactly right.

If the offence were aggravated burglary, eg if violence had been used, the maximum sentence would have been life imprisonment. This was not an aggravated burglary.

If the offence were a domestic burglary (it was not) the maximum sentence would have been 14 years, the law quite properly recognising the invasion of someone’s home is more reprehensible than commercial premises. 

The maximum penalty for “non-domestic” burglary, as in this case, is ten years.

And that is pretty much what the defendants received, allowing for a reduction for sentence of about a third for pleading guilty. (Credit for guilty pleas to avoid unnecessary trials apply in any case for any offence, and the maximum “discount” of up to a third applies for pleas at the early stages of a case, not delayed until the start of trial)

In conclusion, a sentence of seven years is understandable and justifiable within the framework of the current sentencing structure. The Judge would have taken into account any aggravating features (in particular the high value) and any mitigating circumstances (including age or infirmity), but the exceptional circumstances and particularly the high value of goods taken in this case took it outside the Sentencing Guidelines for burglary.

Postscript 

Although I had not seen them when interviewed on the radio, the Judges sentencing remarks were published Here.

It seems that most of the media reporting the sentence chose to ignore this! 

Highbury Court Advice Centre-One Year On!

A Local court-based advice and support service celebrated its first year at Highbury Magistrates Court this month.
North London advice and support service, Community Advice based at Highbury Magistrates Court has been providing practical help and access to long term support to those who attend court.

  
Based inside the court, the service in its first year has helped over 600 people from Islington, Haringey, Camden and Enfield. It has assisted court users with accessing long-term support services such as alcohol treatment, housing, mental health services or providing immediate help with practical issues such as outstanding fines and benefit claims.

The service is aimed especially at those who are not eligible for probation support due to the level of their offences such as theft, vandalism, drunk and disorderly conduct, but appear in court again and again absorbing a considerable amount of the criminal justice system’s resources.

A paid coordinator and a team of volunteers at the service help identify and tackle the underlying problems that contribute to people’s offending such as housing needs, debt issues, and drug and alcohol misuse.

The service has made hundreds of referrals into wider community services ensuring those who come to court can continue to receive the support they need once they leave the building. In its first year, the clients attended three quarters of all the referrals made for them and two-thirds reported their issues had been resolved six months on.

Set up by the Centre for Justice Innovation, the service is supported by local magistrates and court service and is delivered by Islington Citizens Advice. For more info, check out this short film!

Joanne Thomas, Innovative Practice Manager at the Centre for Justice Innovation said: “Community Advice is an invaluable resource as it is addressing significant unmet needs of people who are coming to court. There are early, positive signs that it is helping people who would have had no other recourse to resolve their issues.” (See also this blog by Joanne)

Notes

• The Centre for Justice Innovation is a UK justice research and development charity. It works to build a justice system that holds people accountable, that is fair and feels fair, and which seeks to address the problems of those people who come into contact with it. It is an initiative of the Center for Court Innovation, based in New York.

• A reception event to mark the anniversary was held on March 9th in Islington Town Hall. My contribution:-

Anyone practicing in criminal law is aware that the vast majority of defendants have any one (or more) of a number of complex issues or difficult challenges , which often underpin or contribute to their offending, but which the Criminal Justice System does not address. These issues can include mental health issues, drug addiction, homelessness, welfare benefit issues, domestic violence, exploitation, pressure by gang members, unemployment, depression, and more. 

In some cases limited help provided comes from the probation service, but gone are the days when there was a probation “service” whose role was to “befriend the prisoner” and instead we have a fragmented, part-privatised, underfunded system whose main purpose is to punish, and, where there is a subsidiary component of help, it comes with sanctions for “non-compliance”. 

Leaving the offender to seek their own help, we have also seen a steady diminution of help and advice services , both Centrally and by Local Authorities, and a particularly brutal reduction in services since LASPO.

Solicitors cannot plug this gap-as a result of year on year Legal Aid cuts we barely have time to take meaningful instructions on cases to present a proper defence for a desirory fixed fee within an adverserial system. In earlier years a High Street Practice would offer a holistic service, with solicitors advising on employment law, benefits advice etc, now that rearely exists.

About 10 years ago I began mentoring ex-offenders, which I continue to do, and I have been amazed at the paucity of mentoring available compared to the potential demand, and the willingness of people to give up their time. My mentoring campaign led, accidentally, into politics, and indeed into this Town Hall where I was an elected Councillor from 2006-2014.

I never managed to establish an Islington mentoring service, but I have at least now seen the birth of an Islington mentoring project, BRIDGING THE GAP ISLINGTON.

Mentoring, which is time-intensive, essentially is signposting or referring clients to the right experts who can provide help with specific issues. “If only”, I sometimes mused, “there was a service where the people needing help and the volunteers who can provide it could be gathered together in one place”. It was no more than a pipe-dream.

So now I turn to the Highbury Court Advice Service.  The service that shows me that dreams can come true!

I was aware there was some kind of pilot project in Plymouth, (my home City!)

I was aware of the excellent work of the Centre for Justice Innovation.

And I was very aware of Highbury Corner Magistrates , my Local Court.

But never would I have believed that somehow these threads would be drawn together to create this outstanding service.

The first time I saw it in action, I spotted somebody gliding across the waiting area, friendly, welcoming, introducing themselves to clients. Naturally I thought it was one of the infamous solicitor-touts that proliferate at Highbury Court, trying to poach clients from other solicitors (fighting for scraps at the beggars banquet)

You cannot imagine my delight when I realised that instead this was a volunteer from the Advice Service, offering help and advice. On subsequent visits I introduced myself to the team, and gradually met more of the volunteers. I referred my clients to them. I visited the CJI for a seminar. I blogged about the Service. I am, in short, unambiguously a fan.

I tell everybody I can about this Service, and was glad to see Mr Gove visited. I hope he was impressed.

So well done, and thank you to the visionaries who developed the concept, the volunteers who deliver and all those who support it.

And I ask of you all one thing, support this scheme, and shout about this service from the roof-tops.

We need to ensure that it survives, and that it is rolled out across London and hopefully Nationally.

I look forward to the 10 year anniversary celebration! 

  

(A version of this speech appears on the CJI website here)

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

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

Introduction

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

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

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

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

Joint Enterprise Law- a pre-Jogee history

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

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

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

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

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

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

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

The Jogee Judgment

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

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

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

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

Blog by Greg Stewart of GT Stewart, February 2016   

  
Editor’s Notes

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

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

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