It is really good and uplifting to see both sides of the profession cooperating on the exposure of the serious threat to British Justice that the recent disclosure failure cases have highlighted. We know that the crisis is far from limited to Rape allegations but applies across a whole range of offences.

It is especially good to see our national Broadcaster, the BBC, also prepared to cover the issue in such depth.

Last week a new survey on disclosure was announced.

The BBC became involved and expressed a keen interest on running the survey in conjunction with CLSA/LCCSA and CBA.

The BBC would like to hear from the profession about the disclosure concerns behind the headlines – identifying disclosure issues that arise on a day-to-day basis in the police stations, Magistrates’ and Crown Courts.

Please spread this survey far and wide and on social media and encourage all your colleagues to participate.

It is my hope that we will see more cross profession cooperation as we fight together to save the tattered reputation of UK justice before it is lost for ever. It is also my hope that the tide has now turned and more mainstream media will print the truth and view MOJ propaganda with the scepticism it deserves. We knew and predicted the serious risk miscarriages of justice caused by both Prosecution failure and the past unwillingness of the Courts to hold them to account.

Now is the time to tell the world what our Criminal Justice System has become. How neglect, underinvestment and disingenuous on the part of the the MOJ has brought our justice system nearly to its knees. We need to ensure all take part. It needs to be a major discussion point in the advocates/robing/waiting rooms in all our courts and at the police stations. This present generation of lawyers fights back. We have had enough. We blog. We tweet. We post. We are beginning to be listened to. Our focus in on Justice for the people of the UK and we will not be silenced. Spread the word.

Well done CLSA. Well done CBA. Well done LCCSA and well done BBC for giving this issue the airtime the nation deserves as its freedoms are increasingly compromised by the evidential disclosure abuses which have been taking us back to the bad days of the Guildford four and Birmingham six we had hoped had been left behind but now threaten every citizen of the UK again.

The survey only takes a few minutes to complete. All responses will be treated confidentially. Closing date is Monday 19th February.






Liam Allan, 22, was charged with 12 counts of rape and sexual assault but his trial collapsed after police were ordered to hand over phone records. See http://www.bbc.co.uk/news/uk-england-london-42365521

All credit to Prosecution barrister Jerry Hayes who revealed this failure to disclose scandal after he discovered a computer disk containing 40,000 messages which revealed the alleged victim pestered Mr Allan for “casual sex” none of which were disclosed to the defence Solicitors despite repeated requests

I am beyond fury on this case for a number of reasons.

Of course the fundamental issue of a an innocent man being on bail for two years facing distressing charges when there was no need whatsoever had the police done their job properly is the main reason.

But another cause for fury is to read this: ‘Mr Allan’s solicitor Simone Meerabux said when her client was arrested he had told police about the existence of the messages but “in spite of all that he was charged”.

She said prior to the trial the CPS had told them there was “nothing further to disclose” and it was only after they reiterated their request on the first day in court that the information was made available.

We are told that the police and CPS will be conducting a review. I should think so but this is not an isolated case. It is symptomatic of something far worse.

I feel like a disregarded Cassandra cursed to speak true prophecies that no one in the legal establishment believed as the CLSA (and the author, in a series of articles written) have been banging on about disclosure for sometime and predicted exactly this sort of near catastrophe. The CLSA launched a survey of the profession which shook many to the core with its revelations of prosecution failure to disclose and more disturbingly the failure of the courts to uphold the law and rules on disclosure. See the following attempts to sound the alarm:





And here the piece on the survey which revealed how deep the profession’s concern was and is:


Has the legal establishment reacted with alacrity and concern? Not so far. The Criminal Procedure rules committee has not yet considered the matter despite the desperate urgency as revealed in this shocking case. Why has an emergency meeting not been convened as soon as we revealed the scandalous state of affairs?

And what about the the Ministry of Justice? On the BBC World at One program today the defendant’s solicitor Ms Simone Meerabux was absolutely right to speak of the MOJ latest cuts to legal aid which would target exactly this sort of case with many documents for the defence to investigate but if the unjustifiable cuts proceed will be hamstrung in future from doing so.

At the same time the Government (with one eye on the impact of Brexit) touts our ‘legal services’-on the international stage as ‘great.’ They may well be but the news media headlines surrounding the continuing destruction of access to Justice by unsustainable cuts to legal aid hardly provides a suitable or attractive optical or sound backdrop to that campaign.

Enough is enough. The legal and Government establishment must:

1. Announce an intention to reform the Criminal Procedure Rules on disclosure to give them teeth. To ensure the courts enforce them. To ensure compensation is available to defendants when cases are adjourned. To have cases dismissed where this is in the interest of justice to do so. To award wasted costs order in favour of defence lawyers and not as at present to the LAA which pushes money from one Government department to another.

2. Drop the legal aid cuts to large paper count cases at once to prevent future miscarriages of Justice. This is being litigated at the moment and we would ask if defending that case brought by the Law Society can possibly now be considered appropriate after this awful case?

The reputation of British Justice has been diminished and tarnished and should be restored in the manner suggested before we have not just appalling near misses like this but actual miscarriages of justice as we did in the past. For some it may already be too late.

Once again we warn. Once again we say to the Legal and Government establishment for God’s sake when will you listen?

For Gods sake when will you act?

Robin Murray

15th December 2017

The position of vulnerable suspects under arrest. Back to the Dark ages.

I once was in a police station faced with a female client, on a minor charge but who was clearly in a state of mental collapse. She could not stop sobbing. I tried to calm her to no avail. I found out from her that she had two days before been told by her GP that she needed to be admitted as a voluntary mental health patient. I reported to the custody sergeant that in my honest view she was in need of an appropriate adult and frankly I suspected that her mental condition was such that she was not fit for interview.

The Custody sergeant said that in his opinion she did not need an appropriate adult. If I insisted in maintaining she was unfit he would call in the on call GP. (Divisional surgeon). I said ‘she hasn’t got a broken leg. She has mental problems.’ The sergeant ignored me apart from informing me that I would have to wait outside for the GP. I did so but followed the GP back in (unauthorised) and there we found the custody sergeant in the corridor marching the poor sobbing lady up and down saying ‘Come on now. Pull yourself together. There’s a good girl.’ He saw me, looked a tiny bit embarrassed and showed me into the consultation room whilst the medical examination took place elsewhere.

I am afraid my experience of the on call Divisional surgeons was mixed and my opinion was not enhanced by what happened next. The Doctor told me ‘I can see she is a bit upset but I think she can cope with an interview’. I shook my head in disbelief. The custody sergeant could hardly contain his glee.

We went into interview and the young officer tried to explain the caution and ascertain the client’s understanding of it. This lasted for 20 minutes during which all the suspect said was ‘I want –sob- my husband- sob’ over and over again. I said to the officer ‘in the name of common humanity for God sake stop this tragic farce NOW!!!’ It took every inch of professional self-restraint to keep control such was my anger at them all.

She was bailed to another date. She was admitted to hospital. A report was obtained. I made a formal complaint that was upheld and that resulted in a letter being sent to all police stations in Kent saying ‘if a solicitor or any other professional informs the custody sergeant in good faith that an appropriate is needed then the benefit of the doubt must be exercised in favour of securing such person.’

Many of us have stories like this. I have more which I will not trouble you with.

After many years of incremental improvements in the position of vulnerable suspects the clock is about to be turned back to a darker age or less enlightened times. I remember this period and have always fought hard to improve the position of vulnerable suspects under arrest, with modest success, for example in helping to secure funding in Kent for what was then innovative Community psychiatric intervention in police custody. What matters now though is that positive safeguards are being eroded in proposed changes to the relevant Police Codes C and H. It has had little attention which is regrettable. Practitioners need to ready themselves for a harder time in securing decent treatment for those they represent. It is shocking really and against the tide of modern trend in policing and our justice system.

To what retrograde steps do I refer? It is the change in the PACE code from what is currently reflected in the present PACE code 1.4 to a far inferior protection. This provided:- ‘If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to dispel that suspicion, the person shall be treated as such for the purposes of this Code’ and thus automatically triggers the calling in of an appropriate adult under PACE code note 1G:- ‘When the custody officer has any doubt about the mental state or capacity of a detainee, that detainee should be treated as mentally vulnerable and an appropriate adult called.’

What is changing? Firstly the definition is changed from ‘mentally disordered or otherwise mentally vulnerable’to ‘vulnerable adult’ but defined under para.1.13(d) to mean a person who (paraphrasing): -‘may have difficulty understanding the implications procedures and processes including their rights and entitlements because:-

(i) they may not understand the significance of what they are told, of questions they are asked or of their replies;

(ii) may be particularly prone in certain circumstances to:

  • providing unreliable, misleading or incriminating information without knowing or wishing to do so;
  • accepting or acting on suggestion from others without consciously knowing or wishing to do so; or
  • becoming confused and unclear about their position.”

Here below are the likely battle lines I suggest, arising in the revised Note 1G which in my view, very regrettably, firstly says:-

‘but the fact that someone has a mental health condition “does not, in itself, mean that they are vulnerable”. That has to be determined by the custody officer on a case by case basis, taking all the circumstances into account.’

So whereas we almost had a fail-safe default position that someone at least with a diagnosed mental health condition would be assisted by an appropriate adult that will no longer be the case. In a sense the custody sergeant is retrospectively qualifying or ignoring an existing medical diagnosis without needing anyone else to tediously express a contrary view. What will happen is that after a cursory few seconds discussion at the custody desk, provided the suspect grasps as few basic concepts rattled off in those seconds, the Custody sergeant will happily say ‘I am satisfied he understood the ‘implications procedures and processes including the rights and entitlements’.

But, you may say, perhaps the interviewing officer will discover the problem and stop the interview. In my experience all the interviewing officer generally wants to do is to get through the process as quickly as possible. Certainly most junior officers will not want to challenge a custody sergeant’s judgment.

But perhaps the Solicitor can save the day and make representations? After all they will have had a far better opportunity to assess the client in a consultation than a busy sergeant at the custody desk. Well that depends if there is one present. About half of suspects do not request legal representation. Vulnerable people are perhaps often not able to make that judgement call in their own interest. Secondly the redraft of Note IG no longer has the final sentence of the existing text advising that in case of doubt, the person should be treated as vulnerable and an appropriate adult be called. So looking back at my story of the Custody sergeant arm in arm marching a suspect up and down snapping ‘pull yourself together’ do you think that sergeant would listen to the solicitor or would they say ‘in MY judgement I am satisfied he-she understood the ‘implications procedures and processes including the rights and entitlements’ when I booked him/her in’. No longer will the Solicitor be able to say ‘Now look sergeant and with all respect, in my opinion this client is vulnerable and as I am telling you that in good faith you should treat the client as such under PACE code 1G’ because that safe guard is removed.

So prepare for amateur custody sergeant medical diagnosis over ruling your professional judgement as to vulnerability of your client in interview. Your experience and even knowledge of the client will potentially be swept aside.

The absence of an appropriate adult also weakens resistance to attacks via the inference of silence with prosecutors relying on their absence to bolster an assault upon the exercise of the right to remain silent which can be crucial to the vulnerable. ‘Well it was not considered that he needed an appropriate adult’.This will also conversely of course result in more challenges based on the unfairness of the procedure under S78/S76 etc. You would be entitled to argue, possibly with medical evidence that due to the incorrect decision by the custody sergeant that the interview should be excluded. This may be a costly change indeed. We have taken a backward step in the treatment of the vulnerable. Back to the dark ages.

Robin Murray

Monday, December 11, 2017

Criminal Legal aid. A new approach to funding

  1. My first and firm preference has always been for a properly public funded system through legal aid. I think that instinct is widespread and entirely laudable. It is also doomed to failure and disappointment. It has already been substantially eroded by cuts.
  2. We need new thinking about the provision of access to justice in criminal cases. Legal aid is a right to gain access to justice not a benefit. The Bach Commission report is ahead of its time. I support its findings. However It does tend to deal more with civil legal aid than criminal funding for perhaps the obvious reason that this was hit hardest. This short piece concentrates on criminal legal aid. It is not uncontroversial but we need to drastically change our dependancy upon Treasury ‘generosity’ because if we do not the system will not survive. The Treasury does not understand this or does not care and MOJ ministers are too intimidated by them and career focused to make a stand against cuts.
  3. My starting point is this. No one of moderate or inadequate means should be denied access to justice simply because they lack immediate income or ready capital to fund representation at a particular time. However criminal legal aid needs a completely new approach if it is to survive as a viable quality service with skilled lawyers devoting their time to this area of work.
  4. The level of remuneration is not the only factor but a sense of vocation does not pay for housing or support a family. Longer term there is an obvious link between levels of pay and the quality of legal representation. How do we restore that link to at least viable levels?
  5. Access to justice should not be the preserve of the wealthy. Neither should it be a welfare benefit or free like healthcare provision for the convicted but a loan repayable upon conviction and sentence.
  6. We cannot stop a contraction of the criminal legal aid market – that is dictated by circumstances beyond our control (the drop in criminal activity, the way the police and CPS act, and so on) but we can move away from high volume, low paid models of working.
  7. We need to scrap the absurd over regulation of legal aid (6 levels ) and move to ‘one stop’ regulation to avoid overpayment or incorrect claims through key performance indicators so that firms whose figures seem ‘out of line’ can be identified and audited.
  8. Apart from this audit role, the Legal Aid Agency would be reduced mainly to being a payment department.
  9. The SRA would audit advice, conflict checks, standard letters etc and ensure compliance with the ethical code.
  10. The sweeping away of over regulation will save millions for the treasury and free firms from having to cope with the present onerous and expensive tick box bureaucracy.
  11. The fees we earn should be independently set and not limited to tax payer funding.
  12. We should move to a mixed funding approach to guarantee access to justice. There is nothing ‘progressive’ or ‘socially compassionate’ in acquiescing to the gathering pace of Government destruction of legal aid for criminal cases.
  13. The crisis needs us to embrace new thinking or die. We cannot rely on HMG alone to fund in a time of financial crisis. It simply is not a priority for either HMG or the public ( until it affects them personally.)
  14. The profession should have the right to negotiate top-up fees with clients (not on benefit) where appropriate.
  15. It will be a duty to advise rates vary between firms. Solicitors will need to market themselves. Some will market themselves at legal aid rates only and highly price competitive. Others advertising some or all of their work as worthy of a top up premium.
  16. Counsel will also be free to negotiate top up fees with solicitors’ firms. The Bar have been badly hit by legal aid cuts.
  17. Legal aid eligibility for police station work will be free at the point of delivery with incentives for senior lawyers to attend on more serious cases.
  18. Crown Court legal aid eligibility should be drastically simplified. There would have to be more contribution levels and they will each have to be higher than for the lower case work.
  19. All contributions for Crown Court work should be collected in the same way as for the lower case work (back not front loaded and nothing to pay till the outcome.
  20. For lower & higher Court work nothing to be repaid for legal aid part of case funding upon acquittal.
  21. Defendants will not object to paying a little towards their own defence according to (albeit limited research) and they will now, in common with solely private clients have a financial stake in demanding and driving quality representation.
  22. Those who want a more than a basic service can pay a top up fee – for example, to have the attention of a more senior lawyer.
  23. Lastly we can simply block our ears, shut our eyes, behave like the ostrich but without a radical new approach we will be forever condemned to hoping against hope that some decent socially responsible Ministers will ‘rescue’ criminal legal aid. Might that happen? Do you think in your heart of hearts it will with all the competing demands upon the Treasury? Or as I argue above do we have to show politicians that there is a cost saving and more efficient method of funding that is detoxified in media terms by moving to a mixed partnership between firms, their clients and the Government? We should do what we do in Court. ‘ Show them the way home‘. Politicians are busy with conflicting demands upon their time. With few exceptions they do not want to see the collapse of access to justice on their watch but simply they will not listen to anything that hints at further expenditure. Hence Dominic Raab’s unfortunate and incorrect summation of the Bach Commission report as such in the recent West Minster Hall debate.

This is vital.

Vital for the public.

Vital for the profession – especially the young lawyers who deserve better from some, but not all, senior colleagues than a closed minded outdated traditional clinging on to a failing system of legal aid provision that politicians wrongly traduce as excessive expenditure.

We need new thinking to reflect the reality of the political and economic situation. I believe these ideas will actually not only save legal aid but improve the quality of access to justice. If followed it will ensure the survival of the profession dedicated to the noble cause of providing legal representation to those accused of crime by the powerful State and others.

Robin Murray


Salt in the wound: Disclosure failure. Where are we now?.

The awaited response of the Criminal Procedure Rules committee to deal with the disclosure scandal has not yet been made known or indeed whether there will by any response at all by the committee. I am led to believe the issue is under consideration but if it would be helpful if that was made publicly known given the high level of disquiet on the issue. see https://mintedlaw.wordpress.com/2017/08/29/interim-clsa-disclosure-survey-results-if-her-majestys-courts-and-the-crown-prosecution-service-do-not-obey-laws-and-lawful-regulations-why-should-the-rest-of-us/

The Boardman case has proved to be something of a false dawn which would explain the survey results revealing court and continuing prosecution disclosure failure on an epic scale. In R. v Boardman (David) [2015] EWCA Crim 175, the Court of Appeal had upheld the trial judge’s decision effectively to bring the prosecution to an end where evidence had been served late.

It was this passage which gladdened my heart the court:

fully recognised the pressure under which the CPS was working, but that could not be an answer if effective case management was to mean anything. In any event, it was not just the CPS which was under pressure. If defence lawyers on a fixed fee had to make repeated applications that reduced the rate at which they were remunerated. Further, the court lost days which could have been used to try other cases and court resources were expended.

The court however did warn that :

‘the fact that the defence solicitors did not alert the court to the problems of non-disclosure at a time when something could have been done about it (but left the complaint so late that the trial date could not be met) meant that the court was deprived of the opportunity of an earlier listing to resolve the issues could be resolved and maintain the trial date. It would be perfectly open to the judge to decide that the consequences of such a failure of duty on the part of the defence should be to reject a complaint of prejudice consequent upon the need for an adjournment.’

This word of warning was reinforced later by the same court in the case of R. v Salt (Thomas) Court of Appeal (Criminal Division)[2015] 1 W.L.R. 4905; [2015] 2 Cr. App. R. 27; where the Appeal Court further warned that:

‘where the documents not disclosed were of limited materiality, in contrast with the more significant failing in Boardman, a fair trial was possible, and failings by X’s defence team had played a part in what happened. Balancing those factors, the court felt it would not be in the interests of justice to stay the proceedings’.

Actually in the Salt case the evidence in question related to the credibility of the Complainant’s evidence. That decision was worrying as it seems to downgrade the importance of ‘credibility’ evidence. Note in contrast how often the courts will admit ‘bad character’ evidence against the defendant thus eroding the latter’s credibility. This will please some politicians and press commentators who elevate ‘complainants’ to ‘victim’ status before the evidence has been tested.

So once again, and with respect, the court itself manipulates the system by setting the bar high before it will ‘stay the proceedings’. In reality a ‘stay’ means forcing the Crown to proceed without out reliance upon evidence not served resulting in the prosecution offering ‘no evidence’ and the case being dismissed as a consequence. The damage is done by the courts from top to bottom placing undue reliance upon CRimPR 2015 Rule1 (2) (c) which I set out here:

‘Each participant, in the conduct of each case, must at once inform the court and all parties of any significant failure.’

Not enough weight is being given to the equally (and I would say more) important other rules and law requiring prompt disclosure.

What other provisions do I refer to? Firstly the initial disclosure rules 8 (2) (3) and (4) which the prosecution fail to follow often up to the date of trial where essential evidence is either not served or served late at the very door of the trial court.

Beyond the initial disclosure (if you are lucky enough to receive an adequately complete disclosure including statements etc.) there are further obligations upon a prosecutor to serve available evidence in good time, especially before a trial. These obligations remain covered by:

a) All the requirements of the common law,

b) By Article 5 and 6 of the European Convention on Human Rights (as CRimPR 1 (1) overriding objective explicitly recognises)

(c) EU Directive 2012/13 of 22nd May, 2012 and;

(d) Crim PR 14.5(2) imposing a continuing duty upon the prosecutor to ‘provide the court with all the information in the prosecutor’s possession which is material to what the court must decide’ and;

(e) CRimPR 24.13 which provides that ‘any party who introduces a document in evidence, or who otherwise uses a document in presenting that party’s case, must provide a copy for each other party’ etc.

On the face of it the case of R v Salt was disappointing  because it gives the appearance of searching hard to distinguish Boardman by focusing not upon the appalling prosecution failure but deciding the type of documents not disclosed were of ‘limited materiality’.

I appreciate all cases depend upon their own facts but, with respect how does the court know what evidence is material to the decision on guilt or innocence on the facts put before the tribunal of fact? If it is relevant to an issue in the case and normally admissible but for failure to disclose – why is it in the interests of justice to ambush the defence at the last minute with it? Isn’t that just the sort of conduct the CRimPR’s were meant to discourage?

To adjourn the case, to permit the use of late served evidence, seems to suggest it is indeed material and yet not ‘material enough’ to be excluded apparently. With respect I find that approach rather indulgent of prosecution failure. What does that mean to the defence? You are entitled to service but have to ignore the failure to serve if only ‘a bit material’? Either it is material or it isn’t and if it is material the prosecution should be held to account for failing to serve it.

It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. That principle was reinforced by the ECHR in Jespers v Belgium (1981) 27 DR 61).

So why do the courts fail to enforce the rules designed to prevent this disclosure abuse? I do not wish to be over critical of the court in the Salt case because the clue to that failure might be found here within the R v Salt judgment:‘

(Obiter) All Chief Crown Prosecutors and Chief Constables should study the judgments of this court in Boardman and in this case. There should be no recurrence of failures of this kind by either the CPS or any police force. Further, the Criminal Procedure Rule Committee would be invited to consider whether other sanctions, beyond the making of a wasted costs order, could be imposed on the prosecution in cases of this kind (paras 71, 73).

In other words the Court of Appeal although having to deal with the present disclosure regime implicitly refers to its inadequacy. Why else invite the rules committee to consider other sanctions?

The problem with defence notification to the courts of prosecution disclosure failure is that is such notification often prejudices the defence still further with uneconomic (and for the defendant) stressful adjournments as the lower courts appears to strain every sinew to, if not to excuse the prosecution, then to make sure there are no adverse consequences suffered by them. Rarely does the ‘polluter pay’.

I have argued before that there should be urgent reform of the CJS to provide for more adequate compensation for parties and lawyers than the present wasted costs regime. See: https://mintedlaw.wordpress.com/2017/09/15/lord-chancellor-wasted-costs-orders-are-wasted-on-the-laa-change-the-rules-to-compensate-those-who-suffer-the-loss/ .

Furthermore the request to the Criminal Procedure Rule Committee by the Court of Appeal in the Salt case, to consider ‘other sanctions’ has not yet produced action from that body. Once again I suggest that the committee develop a sense of urgency and respond to the Court of appeals invitation and indeed that of the profession. (See the disclosure survey graphs and statistics).

The committee should consult with the MOJ about changes to the wasted costs regime as suggested previously so that if a court regards an adjournment as not inimical to the interests of justice then proper compensation for the unwanted adjournment can be paid to the accused and to the defence lawyers (Not to the LAA). That may act as both a deterrent and an incentive to comply with disclosure rules where, such as in R v Salt, the court described disclosure failure in in these terms:  ‘the conduct of the CPS and the police as having been reprehensible.’

What other sanctions could the Court of Appeal been referring to? Difficult to say but in truth most practitioners believe the prosecution are not fearful of the consequences of failure. Partly this is due to the dismal record of many courts is ensuring the CRimPR’s are enforced. It is obvious that the rules need strengthening.

The bar for successful applications to adjourn after failure to serve evidence must be elevated so that it becomes a real hurdle to overcome. An overwhelming majority – (96.16%) of practitioners surveyed by the CLSA took the view – that at a trial – the Crown should not be able to rely upon evidence served late which might put the defence under unreasonable logistical or time pressure without leave unless in exceptional circumstances. (Or it is agreed).

There will be times where to do justice, balancing all factors, it would not be in the interests of justice to stay the proceedings (on the basis that if not stayed their continuation would undermine public confidence in the administration of justice) but necessary to allow the case to be adjourned, after considering all the usual criteria (as set out in CPS v Picton (2006) 170 JP 567).

A combination of weapons is desirable. Once the CRimPR’s have been amended to raise the bar on adjournments for lack of evidential service these failures will become fewer. Further if the Prosecution budget is hit by fixed compensation to parties and wasted costs directly to the lawyers, after all, it is they whose financial position is hurt by any adjournment as explicitly recognise in Boardman quoted at the beginning of the piece, perhaps both measures will cure the disclosure ills affecting the CJS and restore respect for the process.

Both the profession and the Court of Appeal know the problem is real. The problem is now. There must be no further delay in dealing with these scandalous costly and time wasting service of evidence failures.

Robin Murray

Sunday, 19 November 2017

Get involved. You don’t realise your own collective strength.

The CLSA has tried & tried to boost membership. By appeal. By active example by punching far above its weight. By securing important gains, wins and concessions from HMG, by calling for & leading direct action which was actually long term in the long term more impactful than many realised at the time, by raising thousands for and instituting litigation. By tackling disclosure and ghosts. (Still supported quietly according to reports from contract managers who get complaints about ghost firms), by getting 14 hours changed as per latest statement from CLSA.

So the CLSA has a fantastic tradition and history of fighting hard for the profession.

BUT with all that background how many who are happy to snipe on social media actually bother to pay a modest membership fee? How many bother to get involved by joining or even attending meetings local or national? Many just can’t be bothered. Many don’t even have a clue what is happening. They just plough on daily not realising that their apathy actually hurts them & their firms personally. The don’t grasp that with unity of purpose we could achieve so much.

How much more effective would the CLSA be if it became a far more mass membership organisation? Much more. The answers lies more with the profession as individuals than with the CLSA leadership in my view. If people are so apathetic & that despite all the obvious good hard work by the CLSA over the years they choose instead to snipe from the sidelines they basically do the MOJ job for them. The latter love the professions apathy.

I was pleased by a sudden influx of new committee members including you returning (hopefully for more than a few meetings this time). The Conference was well attended. That is a start. I hope you new people manage to find the key to mass membership. It has proved illusive so far.

It would be nice to have a single voice in the profession.

But as Bill Waddington pointed out sometimes despite assurances the Bar will cut a separate deal at solicitors expense. In turn when the bar have taken action in support of solicitors not all solicitors actually support their own side as they take advantage & hoover up work or just ignore the action. We are our own worst enemies by not acting in unison & undermining the Associations call for action. ( we tried to cover it up but the ironically the committee gets the blame from militant areas for abandoning protocols which were unraveling)

So these things are incredibly difficult. New committee members will find that out. But it may be that the penny begins to drop that active support of each other is the key. The best dramatic sign & indication of support is to stop being key board warriors but becoming a member & actively recruiting others into the CLSA. In turn the that will strengthen the impact of the CLSA who can then with increasing credibility speak for us all and reach out to other groups in the profession. There is no use our chair promising joint action to other groups like the Bar without there being on the ground real commitment & support from solicitors.

So there it is. Get more involved or get more grief from the MOJ. Hang together it hang separately.

If at the Bar join the CBA who do excellent work for the Criminal Bar and with whom in the past and hopefully in the future the CLSA have worked well. We need to get back their as we have more common interest than issues dividing the branches. All agree that the CJS and access to justice is underfunded and a common approach needs to be thrashed out to deal with this. I mention also the LCCSA who have fought hard along side the CLSA often.

I wish the new committee all the best in the fights ahead and although not on the committee now I will do all I can to support their efforts to expand the membership and their fine work. I will post this elsewhere just in case some do realise that it is time to stop being defeatist, apathetic & Uber critical and it IS time to join the fight. The least anyone can do is by simply becoming a member. That increase in membership will send an important message to the MOJ & potential allies. Just do it. The profession does not grasp its own potential strength. The CLSA achieves a great deal. Just imagine what more can be done with greater involvement. Do it. Join. http://www.clsa.co.uk/index.php?q=joinclsa

14 hours and ghosts. Some movement.

The CLSA has a continuing dialogue with the LAA in relation to the 14 hours requirement and as a consequence of recent discussions can confirm;

The LAA confirmed its intention to retain the 14 hours requirement.

The LAA state that there are still firms who are operating with very different rules to the norm and the LAA maintains 14 hours is the method of addressing this.

The Representative bodies unanimously asked the LAA to consider crown court advocacy to count towards 14 hours whilst still requiring 36 attendances (Police Station, Magistrates and others)

The LAA agreed to consider (and CCCG) asked that a small sub-group be set up to explore further the 14 hours

In the meantime the LAA will pause any contract action where, if crown court advocacy counts towards 14 hours, all other requirements are met

If any firm is unhappy with the result of an audit they should follow the advice below;

Utilise the contract review routes available

Raise a complaint using an email headed “Complaint” to the LAA

Contact the CLSA via hours@clsa.co.uk who will contact John Sirodcar (Head of Contracting) and open up four way dialogue with the firms Contract Manager

Zoe Gascoyne, CLSA Chairman


The announced Cuts to Criminal Legal aid a few days before a proposed review into the impact of cuts to legal aid provide a classic insight into the deceitful culture that grips the Ministry of Justice. How do I justify that statement? It’s a simple as ABC. Not only discernible from this obvious contradictory approach of the two conflicting announcements but also comparing their published response to the consultation on the latest fee cuts to the actual factual history which exposes the flannel within it as utter humbug.

The calculation of litigator preparation fees on larger cases is based upon a page count of served prosecution evidence. The MOJ through their employees at the Legal Aid Authority (LAA) chose to manipulate the page count downwards by the artifice of taking advantage of the sensible prosecution switch from paper to electronic service and disallowing costs that included these. Quite rightly the courts saw through this and sensibly treated such electronic evidence as part of the calculation.

This was what the courts have said:

R v Napper SCCO Ref 160/14

held that “relevant circumstances” (appropriate to include it ) within the Regulations would include “whether the evidence served electronically was pivotal, whether it underpinned the understanding or admissibility of other pieces of evidence, and whether the volume of evidence disrupted the fair and predicted economic balance of the remuneration paid for a case in the light of the LAA’s position statement that the statutory changes were not designed to disrupt the status quo” (para 29). Quoted with approval in the cases of R v Dodd [2014] Costs LR 1131 where it was said ‘Evidence served electronically is not peripheral, but is crucial and essential to the prosecution, is a factor weighing in favour of the material in question being PPE’ followed in R v Manning (3rd April 2015 Manchester Crown Court).

Let me stress the implication of these cases.

• The cases meant that the LAA had denied firms payment for work properly done in their duty to prepare cases.

• The cases meant that firms henceforth could properly claim for work done.

• The cases meant not that a sudden largesse for firms had whimsically been awarded by the courts to legal aid lawyers but that the LAA had been grossly underpaying firms.

• The cases meant inevitably there would be a subsequent slight uptick in spend on these cases which reflected this restoration in fair payments. (Look at this in the context of the overall fall in the legal aid spend from £1,289 in 2010 -11 to £863. In 2016-17.)

Let me drill down into what the MOJ say and correct it. For ease of reference I have italicised the MOJ responses.

• ‘Around half the firms currently holding a contract will be unaffected by the proposal’.

 Or to put it another was half the firms will be affected and bearing in mind the recent the fall in offices by 20% in recent times and warnings from experts on the financial stress suffered by legal aid firms (Otterburn and Oxford economics) 50% is a huge amount of firms adversely affected by this proposal. Advice deserts will grow. The public will suffer from travelling greater distances if local firms withdraw or fold. Although some multi duty ghost firms may disappear as their model is tested to destruction other decent substantial firms and employers will be lost to the MOJ and public.

• ‘It is understood that large volumes of served evidence can contain material of less relevance to the client’s defence,’

There is no evidential support for the contention for such a sweeping assertion by the MOJ. Further how does one know what is ‘relevant’ to the defence or ‘pivotal’ to the case until you have read it?

• ‘and in many cases is capable of being searched electronically.’

Again this is disingenuous. There are also times when the electronic data (as is conceded) is not capable of such an electronic search. (Data files?) I say an overall cut is only logical if all cases can be searched electronically. Failing this the MOJ are implicitly acknowledging that in many of the cases the cut cannot justified even in their own terms that electronic searching is possible. The cut is not justified at all in my view due to falling legal aid expenditure as referred to above.

‘A combination of volumes, case-mix and supply side factors such as sitting days can mean expenditure in future years increases or decreases. A reduction in spend because volumes have decreased or cases have become less serious overall is a natural consequence of the number or types of cases.’

This misses the point. Whatever the volume, the time spent preparing as a litigator on each case is relative to the amount of evidence there is to study. That is so whether you have a case load of 1 or a case load of 1000. The general contract is entered into on the basis of fees agreed. Most of these are fixed fees (not in Crown Court) and often relatively uneconomic to do now especially on many cases committed to the Crown Court for sentence (such as a burglary) where the LGFS fee which is unprofitably low.

When signing the contract the firms do so on the basis that more profitable work on larger cases will help them cope with this unprofitable work. ‘Swings and roundabouts’ if you will. This is a giant and sudden spoke in the roundabout. To mix the playing fields metaphors, to ‘change the goal posts’ in this way is to invite the application of the ‘nudge economic theory’ where firms are denied this large case compensatory swing on a low paid roundabout may well result in not only firm closures but far more unrepresented clients at the Crown court as firms choose to cherry pick the Crown Court work they do.

• ‘Our PPE proposals are not designed to get us to a particular expenditure level (irrespective of volumes or case-mix). They are designed to return the element of payment driven by PPE to pre-Napper levels in line with our intended policy.’

 And there you have it. The fundamental dishonesty of this MOJ approach revealed. The effect of Napper was to reverse the incorrect interpretation by the Legal Aid Agency (LAA) of the regulations that had unfairly reduced the page count on which payments to advocates and litigators is based. Had the Ministry of Justice correctly calculated those payments the 2013/4 spend on criminal legal aid would have been properly and legitimately higher.

As quoted previously R v Napper, R v Dodds and R v manning cases all refer to “whether the evidence served electronically was pivotal”. How do you know whether or not evidence is ‘pivotal’ until you have read it? This has never been explained.

The automatic disallowance by the LAA of perusal of the electronic page evidence has been successfully challenged in these cases as revealing an unfair and unlawful approach but now the MOJ decides to address that unfairness by replacing it with another injustice.

The consultation proposed an arbitrary reduction in the number of pages you can read from 10,000 to 6,000. In other words they are saying ‘so if we were wrong to disallow electronic service we will compound that recent injustice by imposing another injustice by imposing this new 6,000 page cap’!

  • ‘ vast majority of respondents (97%) disagreed with the proposal’

The MOJ concede making once again the pointlessness of taking the MOJ consultations seriously other than as a vehicle of protest. (These people have no shame).

If the CPS etc. are wrong to serve the electronic file in such an incontinent prolix and surplus manner then is that not a matter for the Government to take up with the CPS? The defence do not generate this.

In fact I do not seek to criticise the CPS for serving relevant material (normally I complain when they do not ). The fact is cases have become more complex and involve greater volumes of material, for example the explosion of social media has created vast swathes of extra evidence which can be very demanding upon both the defence and the prosecution. It is bad enough that we are not paid to consider the defence material but certainly the MOJ should not be cutting the defence fees for dealing with the prosecution material properly served in discharge of the prosecution disclosure obligations.

Defence lawyers are not generally blessed with clairvoyance and have to read material as part of their professional duty to their clients. The logic of these cuts is that firms work for nothing beyond 6,000 pages or stop dead in case preparation and risk being professionally negligent. The MOJ will say that is not the case as if we have to read on past 6,000 we can still claim this as special preparation for this work.

What that fails to recognise is that special preparation only pays for reading and not for any subsequent work that may be needed as a result e.g. taking the client’s instructions, advising and discussing with the advocate about and any follow up work. It is impossible for firms to be placed so unfairly in this situation.

The MOJ is failing in its own statutory duty to secure that legal aid is made available by placing the defence in this position where legal aid does not cover important case preparation. Another court judgement highlighted the risk

R v Jagelo [2016] 1 Costs LO 133, Costs Judge Rowley found that ‘the use of special preparation is not a particularly attractive solution. That there to be is a potential lack of incentive for litigators to spend time on their client’s defence where a special preparation claim is likely to be required.’ The Learned Judge added that ‘the uncertainty of the assessment process is not to be underestimated, particularly where the PPE is well above the cut off. As the Law Society have quite properly pointed out in essence, a litigator cannot know how much evidence will be served when she/he is instructed in a case.

The MOJ will not deploy adequate numbers of personnel to cope with the flood of special preparation claims which will cause delay and thus additional financial hardship after firms have carried the overhead costs for a long time on these long lasting and large cases.

We do not agree that cases that were formerly VHCCs have significantly contributed to an increase in expensive LGFS cases since 2013-14. Although formally contracted as VHCCs, cases estimated to last between 40 to 60 days had actually been remunerated under the LGFS since 3 October 2011.

I challenge that assertion due to the time lag of such cases feeding into the LGFS plus there may well have been an ‘uptick’ due to, for example the recent number of serious sexual cases.

In our view, electronic material is fundamentally different, and less time consuming as it is often electronically searchable, than other material such as witness statements, records of interview and expert reports as we set out in the consultation document. We do not accept that the huge increase in PPE volume seen in LAA payments since the Napper case is entirely driven by an increase in volume of evidence served by the CPS rather that it is the result of the change in definition.

I have already dealt with the argument above relating to functionality of electronic searching. The fact is that the Courts (R v Napper et al) found the LAA were entirely WRONG not to include electronic files in the page count. They remedied an injustice. The MOJ now perpetrate a further injustice by imposing this lower page count cap.

We remain committed to working, as soon as possible, with the Law Society and other representative bodies to reform the scheme so that we measure the relative complexity of cases in a way that does not involve counting pages, but takes into account the totality of the evidence, whether paper or not. We would like to introduce a revised and future-proof scheme in 2018. Full reform taking this length of time creates a need for a short-term measure in order to relieve the financial pressure on the Ministry.

The MOJ arbitrarily withdrew from the advanced talks taking place with the profession on adopting a more sensible model for assessment of these large cases. I was personally on the periphery of these from time to time. They have unilaterally imposed this harsh cost cutting measure after the usual perfunctory tick box consultation where it was opposed by 97% of respondents who in customary MOJ fashion are duly ignored.

All the independent experts (Otterburn-Oxford etc) inform the MOJ of the dangers to a viable legal aid service of further cuts which warnings are ignored. In the meantime the profession (dealing with legal aid) ages dangerously in terms of the near future and advice deserts are likely as firms fail.

To try and disguise this blatant cut to fees as an adjustment relating to a ‘change in definition’ is dishonest. Not only dishonest but blatantly hypocritical having a few days later bowed to political and media pressure, playing to the public gallery announcing a review into the impact of legal aid cuts.


It is as easy as ABC. Further cuts are not justified as the overall spend on legal aid has fallen to critically low levels to maintain sustainability of access to Justice. In civil law this has resulted in great injustice and expense as Judges cope with litigants in person appearing before them like lost souls. In Criminal law though the implications are far starker. Reputation and liberty are in jeopardy.

Not just the reputation of those accused of crime by a state funded police and CPS. But the reputation of UK Justice is at stake at a time when, with somewhat of an air of desperation in a post referendum crisis, the Government is touting UK legal services on the international scene.

This is what Andrew Langdon QC, Chair of the Bar says in a great article about that. It made a huge impression on me and affected my already wavering default position that the ‘UK legal system is the best in the world.’

‘I have just come back from an international conference where legal aid schemes around the world were compared.- It was difficult not to notice that the shrinkage of legal aid expenditure in England and Wales is in stark contrast to expansion of such expenditure elsewhere. The Japanese delegate was so struck by the contrast with his own country that he had created a slide devoted to illustrating reduction in expenditure in England and Wales in recent years. The international audience was astonished. They asked me what had gone wrong. It was difficult to answer, and it felt a little shaming. Not least because at this same conference, in the context of Brexit and next to our Union flag, the UK government brandishes the slogan ‘Legal Services are GREAT’. Frankly, this is difficult to stomach. Great for whom?’

This shabby attempt to further cut legal aid erodes our international reputation still further. I call upon the MOJ to halt this erosion now by:

1. Halting the cut at least until the outcome of the promised review unless the review like MOJ consultations is also a sham.

2. Re-engaging in talks with the profession to reform the calculation of Litigator fees that they so ruthlessly abandoned.

In the meantime, if you havent already done so please sign this petition https://you.38degrees.org.uk/petitions/reverse-cuts-to-legal-aid-for-uk-citizens-prosecuted-by-the-state-and-others

Robin Murray

Friday, 03 November 2017

Lord Chancellor. Wasted Costs Orders are wasted on the LAA. Change the rules to compensate those who suffer the loss.

I have been hammering away on the scandalous failure of the courts to deal with the serious disclosure issues in the courts, both Magistrates and Crown courts. If this was a face to face conversation by now your ears would be bleeding and you would probably be screaming ‘please stop – I beg you’. But I make no apology because the reputation of UK Justice is threatened by this failure which is causing major alterations and imbalance to the much celebrated ‘level playing field within the Criminal Justice system.   Retired Lord Justice of Appeal Sir Henry Brooke has been kindly supportive on the disclosure scandal and the CLSA survey stating this should be high on the list in the ‘in-tray’ of the new Lord Chief Justice. But what he also said is this;

Listening to so many of these complaints – as I have done for the last two years as a member of the Bach Commission on Access to Justice – I feel a bit like Rip Van Winkle, waking up after a long sleep to find the world he remembered had completely changed. Although we had some oddities during my days of practice in the criminal courts, we never encountered anything like this, and our arrangements for criminal justice were all the better for It.’ https://sirhenrybrooke.me/2017/09/14/failures-in-prosecution-disclosure/

For me and many of you of course we are only too awake and alive to the daily problems and miscarriages of justice in our working lives. Only last night I received this from a clearly distressed Counsel. This is just part of what she had to say:

‘Thank you for this. I was wondering how to challenge the behaviour of the chair. The judicial language and conduct has devastated my client. I have never witnessed such overt rudeness, and explicit bias before. The client and I actually had a conversation this morning whether to cut our losses at half time and let them convict her – get it over with and appeal to the Crown Court. I made it clear to the LA that I was ashamed of the CJS today. Probably not the wisest thing to say, but I was so shocked at their behaviour! Not that she gave much legal advice, in fact she gave incorrect legal advice.’

I have argued for a strengthening of the Criminal Procedure Rules (CRimPR’s) with overwhelming support in the survey for this including these proposals specifically put to participants:-

Q7 At the first hearing would you support the strengthening of Rule 8.4 of the Criminal Procedure Rules by the imposition of a presumption of adjournment to another hearing date where late disclosure places the defence under unreasonable logistical or time pressure difficulties in dealing with such that day?’


‘Q8. At the trial or final contested hearing, where late service of documents, media or any other evidence places the defence under unreasonable logistical or time pressure would you support a strengthening of Rule 24.13 of the Criminal Procedure Rules so that such evidence can only be admitted by leave of the court in exceptional circumstances or by S10 agreement?’

Of those responding 93.67% and 96.16% agreed the proposals, respectively.

However one has to be realistic and accept that sometimes courts would balk at taking steps that would effectively terminate a prosecution no matter how egregious the disclosure abuse. Recently I argued successfully for exactly that to happen and the case was dismissed as the Crown could not continue without the evidence now excluded under S78 PACE. But that may be not a commonplace occurrence with courts anxious about witnesses on both sides being denied justice.

Although repeated collapses of Crown cases would rapidly become well known and might change the culture I wish to provide another weapon in the courts armoury to encourage the holding to account any failure by a party to comply with the CRimPR’s.

I invite the Lord Chancellor to amend the legal aid regulations-

– to compensate those mainly affected by disclosure failure in particular. At present applying for wasted costs against the prosecution when legally aided fails to compensate the firms suffering from any adjournment imposed due to disclosure failure (or any failure). It is to be frank a chore with no benefit for the suffering firm or client. This particularly so in fixed Fee Cases: You have the following choice:

  1. Keep what has been recovered inter partes and make no claim on the fund; or
  2. Pay what is recovered into the fund and claim payment in full from the LAA as normal.

Where costs have been ordered for only part of the case it is often likely that option 2 will be the best option. Unfortunately this means that you are not getting any benefit from obtaining the costs order as all your costs are being claimed from the fund in the same way as if no order had been obtained, although it could be of benefit to the client in cases where the Crown Court contribution arises if the Lord Chancellor also made a concomitant regulatory reform to achieve this. Of course the Court should be encouraged to reimburse the clients personal losses for fruitless attendances.

Otherwise we are however enjoined to obtain costs orders where possible as part of our duty to protect the fund! Except that it doesn’t ‘protect the fund’ on largely fixed fee cases. The firm suffers the financial loss of an adjournment in CRimPR’s failure induced adjournments not the fund.

Why on earth should we go through all that rigmarole to compensate the fund that generally has not suffered any loss that needs any compensation? Who has really suffered the loss on fixed fees? The answer is the firm not the fund. The fixed fee usually remains static (the clue is in the name) whilst the firm’s value therefrom is reduced each time the case is adjourned. Every hearing is funded by the firm’s overheads. The fee usually remains the same. In fact there is a good case for arguing that payment directly to the firm will in fact reduce the burden on the fund as the costs received could be offset against the fund reducing any possible entry of the claim into the next standard fee band.

The wasted costs should be paid directly to the firm. (I use the term wasted costs as a shorthand but I refer S19 not S19A costs) This direct payment will encourage the CPS to comply with the CRimPR’s, especially if calculated, as they should be to reflect the true cost to the firm, at private rates.

How can this be achieved? Fairly straightforwardly in my view. S19 Prosecution of Offences Act 1985 makes provision for orders as to costs in these circumstances.

‘(1) The Lord Chancellor may by regulations make provision empowering magistrates’ courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs.’

There is nothing in the CRimPR’s that requires amending to achieve this see R 45.8.—(1)

‘This rule applies where the court can order a party to pay another party’s costs incurred as a result of an unnecessary or improper act or omission by or on behalf of the first party. (2) In this rule, costs include costs met by legal aid.

(3) The court may make an order—

a) on application by the party who incurred such costs; or (b) on its own initiative.’


So what is required is for the Lord Chancellor to change the regulations (a commonplace occurrence) to provide that waste costs are paid to the firm. The costs should be by way of compensation to the party suffering the loss which is the firm not the LAA.

See the Court of Appeal guidance in

In re P (A Barrister) [2001] EWCA Crim 1728; [2002] 1 Cr App R 207. –

‘i) The primary object is not to punish but to compensate’

[On a slightly different point relating to counsel or individual solicitors rather than firms, S19A (not S19 to which I generally am referring) the case of R (Crown Prosecution Service) v Bolton Crown Court, Bar Council of England and Wales Intervening, [2012] EWHC 3570 (Admin) needs revisiting. Counsel was denied the benefit of a wasted cost order as ‘not a party to proceedings’. The court opined that the issues raised in this case ought to be considered fully by the Legal Services Commission and Ministry of Justice. We are still waiting].

Is this proposal for wasted costs (S19) hard on the prosecution? I feel I can do no better than to refer to a passage in in the Divisional Court in R (on the application of Maninder Singh) v Ealing Magistrates Court [2014] EWHC 1443.

The facts were that Mr Singh had turned up to the Magistrates Court with his solicitor to plead to drugs and driving offences but the prosecution did not have a file. The case was adjourned and the deputy district judge refused the application for wasted costs as he was unable to identify against whom such order ought to be directed (i.e. police or CPS?). The CPS accepted this was not a proper basis to reject the application but submitted that the order should not have been made because of a ‘mistake’ and the impact of the spending cuts on resources.

This what the Divisional court said:

‘Mr Justice Bean said: “we reject the submission that a mere mistake without repetition cannot be grounds for an order under section 19. There is no doctrine in this area that every dog is entitled to one bite…we also reject Mr Richardson’s argument based on current pressure on resources…the culture of adjournment which still plagues the criminal justice system will not be defeated unless in appropriate cases courts are prepared to use their powers to make orders for costs under section 19 of the 1985 Act.”

Could anyone have put this better? But to incentivise firms to make the application the Lord Chancellor should regulate to compensate the firms not the LAA. The present system is absurdly just moving money from one Government department to another. That will result in far more applications for costs compensation and effectively reinforce existing rules. Hopefully that will contribute in the fight to secure proper disclosure.

I am grateful for Andrew Keogh of Crimeline for his overview and slight tweaking. I hope there are none but any possible remaining errors though will be entirely mine not his.

If you have read this thank you. If you feel it is worthy of sharing please do so to help secure this modest reform?








I start this with a small anecdote relating to police station rather than duty work. This happened a few years ago, before the changed police station standard fee structure made complex cases unprofitable. In truth it is an anecdote my spouse tells at my expense. It is about 2.30am. My phone rings.

My telephone manner is not at its best at that time of the morning. ‘Yes can I help you’? I said in rather grumpy way. ‘Your son? Which police station? Can you tell me if the police said for what offence he was being arrested?’ – All delivered to be honest in a 2 am in the morning – sort of -matter of fact tone.

My spouse then heard the following change of tone and engaged interest level. ‘Really? – Murder? – How awful for you. Leave it with me. Give me your number and try not to worry’.

With only slight exaggeration my spouse claims the bedroom door had hardly closed before she heard my car wheels spinning as I hurtled towards the police station.

Now the enthusiasm is dampened a little by the economic disincentive built into the fee structure which creates a financial loss for attending police stations on lengthy cases.

It is not uncommon for serious cases to involve ten hours plus of police station attendance over several days (and nights). With firms typically paying their staff half of the hourly rate for out of office hour’s attendance we can understand the reluctance of anyone going to the police station on Christmas day or a Bank Holiday on a murder for about £8.00 per hour

I was one of the very first Duty Solicitors. My pin number is between 500 and 600. I am proud to call myself a ‘duty solicitor’. I wish to make this crystal clear. In my view there is absolutely no difference in treatment of clients by duty solicitors compared to ‘own client solicitors’. That ancient slur was always a lie and should not be resurrected in any review without being challenged. That is not to say that over-all standards are not under threat but that applies equally to non- duty and duty solicitors.
I have been thinking about police station work having read comments upon how Duty Solicitors are viewed by suspects in the Lammy Review into the ‘treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System’.
I will deal with the sections that troubled me.

Many do not trust the promises made to them by their own solicitors, let alone the officers in a police station warning them to admit guilt. What begins as a ‘no comment’ interview can quickly become a Crown Court trial. Trust matters at other key points in the CJS too.


‘Many BAME defendants trust neither the advice of solicitors paid for by the government, nor that the CJS will deliver on the promise of less punitive treatment in exchange for prompt admissions on guilt.’

This grim view is supported elsewhere. For example in Daniel Newman’s book, Legal Aid Lawyers and the Quest for Justice, 2014 – Newman refers to lawyers treating their clients with contempt, spending as little time as possible with them ‘and pressurising them to plead guilty.’
Newman does comment on proposed cuts to legal aid funding which could have implications for undermining access to justice. He notes that defendants reliant on legal aid cannot be denied their access to justice through inadequate representation that hinders their taking an active part in the criminal process.

He concludes by making the important point that:

“Defendants in the criminal process deserve justice, and lawyers should be made to work for their clients and properly enact adversarial principles” (p.168).

As Vicky Kemp says in her review of the Newman book

‘ legal aid reforms need to take into account how solicitors’ firms can be remunerated in a way which provides a quality service and supports their adversarial role within the criminal process.’

The reference to ‘no comment interviews’ does strike a chord with me. I do from time to time as a trial lawyer find myself increasingly puzzled by some advice to suspects to go down the ‘no comment’ advice route. You do find yourself asking why a perfectly viable defence has not been offered to avoid the guilty inference even if by written statement.

Just because a client has the right to exercise the right to remain silent does not mean tactically that it is always wise to advise such. Courts do not understand and like it unless there is a clear good reason such as the client being vulnerable or due to inadequate disclosure.

I am a strong supporter of the right to silence. I am also a strong advocate in training our police station representatives that if you can and the case permits it that giving an account more often than not strengthens rather than weakens a case. Each case depends upon its own facts and above all the characteristics of the defendant.
I think Vicky Kemp’s point about legal aid needing to support solicitor’s adversarial role is well made. The imposition of fixed fees and their erosion in value by reduction in rates produces a risk that some of those advising in police stations will take a ‘short cut’ and will advise a no comment interview to speed the process of interview rather than because of the exigency of the case. I know that will cause controversy but I am not at all sure that the standard of representation is always adequate or puts the suspect first.
The Lammy review states:

‘In focus groups conducted by the charity Catch 22, researchers identified a lack of trust in legal aid-funded solicitors among both White and BAME offenders as a particular problem. Many questioned the motives of the legal aid solicitors, who were often viewed as representing ‘the system’ rather than their clients’ interests. Offenders commonly believed that solicitors did not have the time or the capacity to advise them effectively in any case’

We can ignore this view at our peril. That is the impression many clients now have. Also the factory style ghost firm has diminished the volume available for decent firms to compensate for reduced legal aid rates and forced the latter to engage in a duty solicitor arms race just to stay in business. It should be remembered the Duty scheme is there to provide proper legal advice for suspects, not to provide employment for Solicitors.
This has been a trend in Metropolitan areas and has spread to rural areas lately. But it has been a growing trend for many years – see – A. Pavlovic, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Oxford: Clarendon Press, 1994 where for example, there were concerns raised over the way in which outside of small towns and rural locations managerial influences were encouraging solicitors’ firms to manage a high volume of cases in order to maximise profit costs.
This is exacerbated by falling legal aid rates and the way they are skewed in favour of speed not quality.

This Lammy review recommendation requires comment I believe:

Recommendation 9: ‘The Home Office, the MoJ and the Legal Aid Agency should work with the Law Society and Bar Council to experiment with different approaches to explaining legal rights and options to defendants. These different approaches could include, for example, a role for community intermediaries when suspects are first received in custody, giving people a choice between different duty solicitors, and earlier access to advice from barristers.’

I agree entirely with the need for more work. I am not being territorial though when I comment that advice from barristers who are inexperienced in police station work is of questionable value. I am a strong supporter of the Bar but it is arrogant to assume that the skill set required for specialist advocacy is exactly translatable to specialist police station work. The same might be said for those police station specialists who are not specialist advocates. It depends upon the training of individuals and simply being a ‘barrister’ does by no means guarantee proper tactical advice if this recommendation is intended to apply to police station custody.
But the Law Society needs to promote access to Solicitors in the police station. This is especially so given the appalling way that many police officers and some police stations have a cultural disposition to put people off from being represented.

The Custody Sergeant will, by their rapid fire offer of legal representation, do all they can to discourage take up of representation.

Interviewing officers keep suspects waiting inordinate lengths of time and then threaten even further delay by ‘checking’ if the client still needs a solicitor.

If you need further proof of that cultural approach just look at how police attempted to circumvent PACE representation until this campaign resulted in a change in the law to address the growing abuse of police exploiting a loop hole in the PACE code whereby the police did not have to offer free legal advice outside the police station. See https://www.lawgazette.co.uk/analysis/police-interviewing-loophole-must-be-tackled-urgently/65336.article and this outcome. http://www.clsa.co.uk/index.php?q=251

To summarise:
1. The Home Office should adopt a default position that anyone in custody or a volunteer should have contact with legal advice where the offence accused carries imprisonment.
2. The MOJ and LAA need to look at the current legal rates and the escape level from fixed fees to ensure skilled lawyers deal with serious offences.
3. The Profession needs to have a good look at itself and indulge in serious self-examination as to why many BAME and white suspects have a ‘lack of trust in legal aid-funded solicitors’. Those who represent suspects in police stations need to show proper respect, put the client first not the need to process them as if on a conveyor belt. (See 2 above)
4. In my view there is a need for an in depth study. There has been no serious study since Mike McConville and his colleagues did one in 1994. But as the admirable Vicky Kemp argues (a past speaker at the CLSA Conference) says, ‘with a greater emphasis on the lawyer-client relationship through the organisation and practices of criminal defence lawyers.’

If any one doubts the value of the presence of solicitors in police stations then simply look at the appalling miscarriages of Justice that so disfigured our criminal justice system in the not so recent past. But we need to raise our game and quality.

Lastly a duty solicitor needs to be ‘adversarial’. It’s our job. Or as I say whenever a police officer attempts to shut me down.

‘Look officer my name is not Samuel Pepys or Bridget Jones. I am not here so I can go home and later write in my diary about what an interesting time I had listening to your questions. I am here to do a job. You won’t stop me. Many have tried and none have succeeded. Now as I was saying ……”

Robin Murray
Saturday, 09 September 2017