We need you all to hit those e mail address books, share and Tweet. Chat to colleagues.
We need a swift powerful campaign and a strong message to HMG that we will not tolerate any longer this disclosure abuse by the Prosecution and the Courts. The results reveal an absolutely shocking picture. We knew it was bad but this survey is revealing a horror story of law and rules being circumvented. It’s a disgrace.
It takes under 5 mins to complete and have your say. Do it people. Fight back.
http://www.clsa.co.uk/index.php?q=clsa-disclosure-survey
Category: Uncategorized
URGENT SURVEY INTO DISCLOSURE FAILURE
It is very important that everyone who is a criminal practitioner completes this survey into prosecution disclosure failure and failure of the courts to enforce the law and rules by holding the prosecution to account. Please send this link to every lawyer you know be they solicitors/ILEX or Counsel. Send to your firm an others. Send to your chambers and others.By this survey we will confront the legal establishment with the reality of what actually is happening with huge cost to Justice and the public purse.
The Government cannot have it both ways. If they insist on compliance by the defence with the law and the Criminal Procedure Rules they must ensure compliance by the Crown and deal with the Court failure to hold the Prosecution to account on disclosure. This is not a technical or 'nit picking' point but goes to the heart of our Justice system.
The rules are there to ensure fairness and efficiency. They are there to maintain balance. It is the right of all citizens to know the case against them when prosecuted. Disclosure should be full and timely. The rules state that. To be meaningful the courts must begin to give effect to the rules.
Further the rules need strengthening to ensure the courts no longer avoid enforcing them. If they are not strengthened the courts will continue to facilitate and enable disclosure abuse thus bring the laws and rules into disrepute.
This survey we hope will provide such overwhelming evidence of the system failing that the pressure for reform will become irresistible and failure to act clearly exposed and shameful to those who will not listen.
This is your chance in this area to change the course of legal history and to engage in beneficial reform. Please click on this link below.
http://www.clsa.co.uk/index.php?q=clsa-disclosure-survey but also send it you people in your e mail address book, your friends on Face book or tweet the link on twitter. Maximum participation adds weight and makes the campaign for reform unstoppable. We can do this. We shall prevail. We will turn the tide against the erosion of justice.
Robin Murray
Despatches from the Disclosure Battle Front.
The campaign to highlight the lamentable failure of the Judiciary and HMCTS in enabling or facilitating disclosure abuse gathers pace as more examples are exposed to view. The willingness of some courts and HMCTS personnel to frustrate the law and criminal procedure rules has reached scandalous proportions. This is now a daily occurrence.
Sadly it seems there are no subterranean depths to which some courts will avoid descending to in their apparent enthusiasm to tilt the scales of justice against the defence.
Forgive the insensitive analogy, as I do not wish to be in any way personally offensive but some courts behave like patriarchal figures encouraging abuse within the criminal justice family.
We have become like the old Soviet Union with a superficially attractive criminal code that the judicial establishment ignore.
If the legal and political establishment do not like the rules providing for fair disclosure they should be honest and argue to change the law not subvert it in a cowardly underhand way. Is this an inevitable consequence of a career structure that militates against real Judicial and civil service independence from the Executive?
Not only do the Courts increasingly fail to deal with these issues but often in their anxiety to let the Crown ‘off the hook’ they ingeniously find ways to blame the very lawyers bringing to the courts attention CPS failures. Sometimes this is accompanied with unwarranted rudeness and discourtesy and bogus criticism displayed to defence advocates in front of clients and their families.
My own recent example of the court failing to deal with the almost total absence of evidence until the day of the trial was this:
‘At the CMH court ordered service of evidence by a certain date. The Client came for an appointment and was informed could not be effective as no statements served. We sent 2 chasing e mails. Then with no response we wrote to the court asking them to list for a mention and copied the CPS in this. No response from CPS or court.
The day before the trial I spoke in person to a CPS lawyer at another court who kindly wrote to her own organisation (CPS) requesting service that day. No response from CPS but the court in the late afternoon evening court informed us these matters would be dealt with 'prior to the trial.’.
At the trial, with no evidence served. (Streamline file only at CMH), saw client and mum about having issues relating to their alerting the police to the existence of nearby CCTV which they said would clear his name. Client and family appalled at not seeing the evidence until the last minute and it became apparent they had enquiries they wanted us to make.
In court I said I oppose an adjournment and under S78 and CRpr 8.4 any reliance upon evidence not disclosed prior to today. I rejected the clerk’s invitation to sneak off into a corner to obtain rushed instructions on evidence served today. My client and his family I said would see it for what it was, a blatant attempt to rush the defence after the Crown have had months to get to this stage.
I recited the history and the fact the IDPC should have been served on day 1 and not needed all this chasing by e mail. I pointed out that we needed to see not only the statements but the schedule of unused and we had been denied investigation via the DCS and S8 application route.
My client and family would never willingly accept the risk of accidental conviction because they and their lawyer had not had the opportunity to prepare the case properly.
I quoted R8.3 and the new R8.4 preventing reliance upon the evidence if not served and adequate time then needed to be given to consider any late service by the defence. I referred to R. v Boardman (David) [2015] EWCA Crim 175; where the court of Appeal (Sir Brian Leveson PQBD; Andrew Smith J; Phillips J) ‘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.
The CPS said ‘I accept the CPS failed to serve the statements and they should have done but Mr Murray’s firm just can’t send the client away from their door due to lack of service and turn up here today saying they will not accept service and not get on with it now. Our witness is downstairs.’
The senior clerk Legal advisor said:
‘The defence could have carried out investigations prior to service and need not have waited for the Crown evidence. It was incumbent upon them to do so. There was fault on both sides as of course the evidence should have been served, but the court, although copied into the e mail correspondence did not have the staff to pro-actively chase parties and the request for the case to be listed for a mention 3 working days earlier was too late as the application should have been made as soon as it was apparent the time for service had expired. ‘
Odd that the legal advisor believed the court did not have to take action on being alerted by e mails to the delay as the CRpr's specifically provide that all 'participants' are under a duty to act. See R 1.2.2 'Anyone involved in any way with a criminal case is a is a participant in its conduct for the purposes of this rule.'
The Bench itself (which I knew well) did not make any criticism of the defence but declined to hear the case or exclude the missing evidence and simply adjourned saying for 'Mr Murray and the Defendant it would be unfair – as evidence was not served until today to hold a trial today.’
I was not treated with discourtesy although it was a somewhat stressful hearing. I will return to the issue of the timing of applications for a mention later herein as I was under the impression these interlocutory applications were now discouraged. This view may have to be revised.
Subsequently I appealed to the profession for examples of treatment of disclosure failure by the courts and have been almost inundated.
Here are examples I have been sent:
‘Yes I had a trial, no statements served till I turned up on the day despite requests for statements in advance and CPS breached the directions on CMH. Also no tape of interview served. The DJ says "well you have the statements take instructions now”
I will need 2 hours I say. No you won't she says, start now and see how you get on she says , I will rise for half an hour . (This is a 2pm listing) The CPS claim that they hadn't received the emails requesting statements and apparently it was my fault and also my fault for not listing the case for a CMH even though I had copied the court into all the emails that I had sent chasing CPS. Oh and also it was my fault for not having her interview because local practice is to collect from Windsor police station (something that a local lawyer later told me was bxxxxxxs) . Her face was thunder when I came back in and said I have just served a DCS.’
Here an accusation of court complicity in CPS failures.
‘I have been doing this for some time. (Listing for a mention for non-disclosure) – Driving my local CPS mad. I've even had replies telling me I should be more understanding because I'm ex-CPS, as if that would go down well with my clients! This e-mail reflects almost verbatim an argument I made 2 weeks ago (add in an abuse of process argument re: destroyed CCTV). I get an identical response to that you got. I understand the CPS are under pressure but my experience is that they have given up and many of them give the impression that they don't care and have nothing but contempt for defence solicitors. The courts are even more at fault by being so complicit in allowing the failures.’
And here is a hint of the hidden cost of this failure with elections to the Crown court to avoid the poor treatment of this disclosure failure by the Magistrates court:
‘There’s no justice in the mags. I have been electing on everything as fed up of banging my head in mags re disclosure & my client's not standing a chance of justice. Even happens with sentences on a G plea in mags; no psr ordered and custody. I appeal. Every one successful and custody replaced with comm order. In the cc there's still rigorous scrutiny by judiciary re CPR and consideration of guidelines, totality etc. Mags actually said to me recently "We don't do law here!"’
Here is another example of flight from the Magistrates court caused by this disclosure injustice:
‘I recently attended a MC without any (prosecution) papers, some 3 weeks and several emails after ABH charge. CPS downloaded papers on day 1 without complainant's statement.
I explained to the Bench that I couldn't properly advise but was told that a plea must be entered. Told client to elect, refused to indicate what the issues were and insisted that a full note of what had occurred be sent to the CC with the papers.
One angry Legal Advisor and cross Bench; but I acted in the best interests of the client …’
And this on deflecting pressure onto the defence lawyers:
‘That sounds familiar; the CJS is unable to cope now due to the cuts. Anything but a GP and the system cannot cope. Thus blame and hostility heaped into defence sols if total surrender at the first hurdle is not forthcoming. Sad state of affairs in an adversarial system’
Some District Judges are singled out for particular criticism.
‘This experience is (evidence of) widespread madness encouraged by certain District Judges – what ever happened to judicial independence and separation of powers. My experience today was a District Judge refusing to make a direction that the CPS shouldn't disclose their hand in respect of one element of the case because the DJ concerned thought that the rules about trial by ambush only impacted on the defence.’
A frequent complaint is also the way some courts treat lawyers who are simply doing their jobs.
‘I think some Judges need to move into the 21st C as their arrogance and distain for anyone who dares question them or argue back is quite evident. Some struck me as pure bullies who thrived on getting away with it. I saw many instances directed both at prosecution and defence. Shocking really’.
Another example of judicial discourtesy:
‘As I do not get tired of telling people met one of the rudest judges last week who seemed to mistake me for the defendant. It shows that the JAC cannot root out the true personality of applicants. Been doing the job a long while and treatment like this is now rare. However rudeness and blatant unfairness has no place in the court room.’
And another suggests lack of judicial impartiality:
‘Some of them ought to be reminded of the judicial oath they took "……I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will." After all, one assumes they don't want to risk damning their immortal soul by breaking it!’
Sadly this rudeness is not only found in the criminal arena apparently.
‘It is not confined to the criminal sphere either. There are some very rude judges in other jurisdictions that seem to think they can have a field day belittling and humiliating advocates in front of clients and the other parties. As you say work place bullying.’
Even where cases are adjourned sometimes hostility follows a disclosure battle:
‘But you didn't see the message I got from the Crown Ct Judge after the (another) Court had adjourned it again – how very dare we get an adjournment when he had specifically directed that the trial must proceed! Called for me to provide a letter of explanation! (Frightened my secretary!)’
'Frightened my Secretary'! Very nice.
Apart from the theme of rudeness this court seemed to expect qualities of clairvoyance on the part of the defence lawyer plus the ubiquitous availability of out – dated technology! Where is that old VHS player?
‘I attend for trial – D in custody. Comp fails to attend. CPS applied for witness summons at 1st hearing but failed to serve it citing "falsely" recent evidence of cooperation by the comp making it unnecessary to do so. CPS state they will proceed and rely on 999 call (res gestae). I explain we have never had 999 call. Court say take it now and listen to it.
I explain I cannot do so – its 13 mins long, I don’t have a tape recorder and my client in the cells can’t hear it and give me instructions on it. Court reply: why haven’t you brought a tape recorder to court and why haven’t you asked for the tape already? It was my entire fault and (I was treated) with such hostility and disdain. I explain I didn’t know the 999 call was relevant or even existed.
I tell court that if they force trial ahead I will withdraw for being unable to discharge my professional duty to client. The court then makes the cps apply to adjourn to get her witness here. I oppose but they grant it and further remand to new trial date. Of course she didn’t attend second time despite summons now being served and case dismissed.
Court treated me and spoke to me like dirt blaming me for all the crowns failures. The fact I stood up for myself didn’t help my cause either and I was seen as uncooperative and unreasonable for doing my job.’
Here is a case where CCTV of the alleged offence is not served until the day of the trial and where post charge an ID parade was held. This was also news to the defence on the day of the trial. It was disputed that a police S9 statement relating to this was served but in any event it was only 5 days previously when the law (S9 CLA 1967) allows 7 days to respond.
‘The court take umbrage that there been no response in 5 days. I explain the statute provides for seven. They don’t really care. The legal advisor is on the bandwagon at this stage explaining that there should have been a response and asking what we dispute.
I explain that it’s written in statute and they can’t move statute. I explain that the courts main issue seems to be why we within a time limit specified by statute haven’t responded whilst still “In time” and yet the CPS serve the evidence in this case “outside of the 28 days, and they have forgotten to call the officer whose evidence they want to adduce” and we are being told that this is fault of the defence?
The legal advisor interrupts asking why we want the officer. I explain ID is in issue and there would be questions for him on the procedure. For instance how many other officers were present and also where the defence were. I explained that defendant had a right to know. This has been served on the day of trial as said thus at short notice and there is no continuity statement adducing it. It is not admissible. I explain that S9 CJA 1976 applies and can’t be avoided. This falls on deaf ears. Mainly those of the legal advisor.
I seek to make a S78 application. The defendant gives evidence explaining that he cannot read and write. He explains that he signed whatever they asked and echoes what he told me from the dock when I was earlier afforded a short period for instructions. He explains that he doesn’t really understand but was told his solicitor would be at the viewing. (We weren’t and were never told one was taking place).
The Crown suggests it is ‘obvious’ that he knew he didn’t want legal advice. He says that this is not so. I explain that its standard procedure that The Crown serves the evidence in 28 days but that rarely happens and they cannot take the view that the procedure was lawful when it was being questioned. And it is not available through CAD/CRIS. It is not an automatic right to adduce evidence on the presumption of lawfulness otherwise there was no point in having a case management hearing. I further explain that they have heard no evidence from any one and can’t deal with the application on pure supposition.
The Crown explains that the CCTV does have an exhibiting statement which has been served today out of time. The Crown had not suggested that that statement was evidence or would introduce it. (It has not yet actually been served). The Court could not introduce that on the hoof. The bench retired to consider (With the legal advisor at various intervals for lengthy periods. I confirm I did not ask for a Cooper direction).
The bench decides that the CCTV is going in and that the defence should have chased that evidence.
I am baffled. We didn't want the CCTV so why do I have to chase it?
The bench decide there may have been a breach of PACE but the defendant didn’t ask for a lawyer in that meeting and explain that they don’t feel it is a breach of PACE that would mean S78 is operative. Therefore evidentially the Crown close their case. The defendant is convicted’
A well-known legal activist and lawyer commentator wrote:
‘This is a result of 20 years of political obsession with rebalancing the scales of justice, hyped up by the populist press every time there was an acquittal of someone who had an ugly mug shot and must have been guilty.
After the Judith ward case we were entitled to whatever we wanted …they continued to narrow the rules and angles until it was our turn to discharge the burden of proof’.
The above are just some of the examples collated. There are others. This is far more than evidence of a few whinging lawyers disgruntled by decisions that went against them. It would also be wrong to suggest that all courts are as unhelpful or routinely rude to the defence. That is not my universal experience or that of others: For example one commented:
‘I agree with the above save for a note of caution (and I hope this does not attract too much criticism for being more "dove" than "hawk"). Most of us operate in the same courts with the same benches and judges – To properly fallout with the local judiciary may not help your clients or career.
That said we should all be able to put forward an argument with strength, skill and subtlety. Different tribunals tend to need different solutions.
I consider myself quite lucky with the various members of the judiciary and magistracy I have appeared in front of over the years. Most have been courteous.’.
I would agree and enjoy most interactions with courts but I cannot pretend that I am unaware of a deterioration in some Judicial and Legal advisor conduct with some Courts so anxious to support the Crowns’ disclosure failures that they cross that line into arrogance, rudeness and hostility towards the defence lawyers who’s only fault is trying to make the court confront that failure.
Of course we are rough tough defence lawyers. But we are also human beings and entitled to be treated with respect and dignity.
One view expressed amusingly here suggests a return to a more an older more robust approach to disclosure failure:
‘ I recall an incident one Saturday at Old St MC when a certain Magistrate (in the days before they were DJs), who shall remain nameless, who was very kind to animals but equally malevolent towards human beings, who normally sat at Clerkenwell and if you were very unlucky, could occasionally be encountered at Highbury Corner, when the CPS failed to have any papers for the cases in the list, including one or two serious overnight matters, dismissed everything for want of prosecution, he was not the most pleasant tribunal, but that was not only reserved for the Defence. Perhaps this approach, as draconian as it was, if adopted as a matter of course, would give the system the kick up the arse it thoroughly deserves – one can dream and I look forward with equal certainty to a lunar voyage sometime soon.’
My conclusions.
The real issue here, I opine, is a combination of the lack of effective and firm guidance on disclosure failure combined with a lack of real sanctions to deal with such failure. When as a defence lawyer you are fighting hard for your clients it is difficult to take a step back and adopt a lofty and independent approach. That is not your role. As a defence lawyer you have to have a point of view which is consistent with your duty to your client. If the CPS fails to disclose vital evidence it is your duty to the Court and client to raise these issues. You should not be disparaged for doing so.
However standing back from the fray, of course the Court has a duty wider than simply consideration of the stress and disadvantage for the defendant as they have to bear in mind implications for the complainant, other witnesses, and the interest of the wider community who would become concerned at cases being dismissed without the issues in the case being resolved. The rules are there to ensure fairness not to punish the CPS for incompetence however lamentable their handling of the case may be. But there must be limits to the indulgence of the court of such failure.
These issues were admirably covered in full by Peter Hungerford-Welch in his Criminal Law Review 2015 case commentary on R. v Boardman (David) [2015]. In that commentary he wrote:
‘It is also noteworthy that the Court of Appeal criticised the defence in the present case on two grounds. First, not alerting the court to the problem of non-disclosure sooner. Whilst listing cases for "mention" is generally disapproved of, such mentions can be useful where a party is not doing what they should. Indeed, the court makes the point that if the defence delay in taking a non-disclosure point, a judge may well reject the application for disclosure.’
That seems to suggest that Comments by the Court of Appeal which some quote as discouraging mentions, really related to interlocutory appeals to that appeal court in the middle of complex cases involving thousands of documents.
Therefore it seems to me that it would be foolish not to ask the Court to list for a mention as soon as possible as suggested as appropriate by the Court of Appeal. If this results in the court becoming inundated by applications for a ‘mention’ hearings – well – sorry about that Courts – but direct your criticisms to whom it should be directed; those who fail to disclose evidence. We will rely on the Court of appeal and we at least will do our duty.
Plus if the Prosecution (providing the case survives the mention hearing) fail again prior to the trial to disclose evidence despite clear directions to do so, then at that stage we will expect courts to deal with S78 applications sympathetically and to seriously consider excluding such evidence.
We will not have gone to all the trouble of listing for ‘mentions’ only for the courts to cravenly excuse prosecution incompetence. That would be a failure of courts to even handedly dispense justice.
I have to say that the sanctions available to the court are problematic. Of course if the judicial language or conduct has impacted on the client or perception of fairness we should consider an appeal but the aim should be to remove the need to do this.
Plus if one is subject to gross discourtesy by the court then one can always make a formal complaint. First and within 3 months complain about magistrates to the Advisory committee for the area. For Crown court judges and district judges complain to the judicial conduct investigations office (JCIO).
If still dissatisfied appeal within 28 days to the Judicial Appointments and Conduct Ombudsman (JACO). I am told (I have never done it) it is easy to complain and there is no fee. It does I am informed cause a bit of a fuss. See https://www.gov.uk/complain-judge-magistrate-tribunal-coroner.
Wasted costs orders are a ‘waste’ of time, especially if the client is on legal aid. Not only is this simply pushing public money around from one department to another but it is actually time consuming and irksome as it involves time costing whilst normally billing is simple on a fixed fee. I never ask for them and will not do so.
Professional sanctions are again inappropriate and it is hard in most cases to single out any particular individual for such targeting. Again unless there is gross and obvious misconduct (misleading the court deliberately perhaps), I simply do not think I would not have the stomach to report a fellow professional advocate for disclosure failure.
However I do feel courts, having perhaps given the Prosecution a chance to redeem their failures following a mention hearing where they fail to take advantage of such, should robustly deal with the Crown in the manner I have suggested by exclusion of evidence. But where does that leave the individuals members of the public personally concerned in the case as witnesses or parties?
Although I disapprove of wasted costs I do suggest consideration be given to setting up a compensation scheme for those denied justice. Payments from either side responsible for failure of at least modest compensation for inconvenience and also loss of earnings and travel expenses where appropriate.
These awards would be monitored by the relevant audit authorities and published publicly.
I also feel that the new Criminal Procedure rule 8.4 (in force from 01/04/2017) which in my capacity as CLSA committee member with my committee colleagues and alongside the LCCSA veteran Paul Harris worked hard to achieve, should be amended and extended. At present this focuses on service of the IDPC on the first hearing. It should be strengthened to provide that where any party is ordered or directed to serve evidence at any stage of the proceedings and fails to comply by the trial date there should be a presumption that party should not be permitted to rely upon that evidence except in exceptional circumstances and only then with leave of the court.
If anyone in the upper reaches of the legal and political establishment including the Judiciary (if you will forgive my presumption that you may read this) , does not grasp the seriousness of the problem then please look again at the lively comments by colleagues at the beginning of this piece. If you still do not wish to take action then, and with respect, you are simply not listening.
I can say with absolute certainty however, this campaign with fairness and Justice at its heart will become louder and louder until people do listen and the Courts enforce the law and rules on fair disclosure as they are supposed to do.
Robin Murray
Saturday, August 5, 2017
DISCLOSURE DISCOMPOSURE
It is quite hard at times to maintain composure in the face of constant disclosure failures by the Crown. I have campaigned on this issue and written on this subject a number of times before. See http://thejusticegap.com/2016/07/kafkaesque-courts-complicit-prosecution-disclosure-failures/ and here: http://thejusticegap.com/2016/11/disclosure-rule-change-finally-stopping-erosion-burden-proof/.
Some progress has been made as a result of the CLSA campaign not least by insertion of an additional CrimPR 8.4 which came into force on the 3rd April 2017 which at least prevents the Prosecution relying upon any introducing documents or information that has or have not been first served or made available to the defence, plus the court itself must not allow (my emphasis) the prosecutor to introduce that information unless the defendant is allowed ‘sufficient time’ to consider it.
I would like to be able to say that this has caused a major change in conduct by the Prosecution and the Court but this is not the case. Recent reports reveal how poor the disclosure practice remains at all levels. See the shocking failure rates on disclosure revealed in this report on larger volume cases at the Crown court for example in this recent inspectorate report on the quality failures on service and selection of unused material : https://www.justiceinspectorates.gov.uk/hmicfrs/publications/making-it-fair-disclosure-of-unused-material-in-crown-court-cases/.
But at the most basic level the problems are just as profound. In the first place the new CrimPR 8.4 providing for the most basic requirements for initial disclosure is still being flouted daily by the Prosecution and indulged by the court. To remind us – what are the basic requirements? They are set out in CrimPR 8.3. There must be served upon the defence (a summary only if in police custody but otherwise):
(i) a summary of the circumstances of the offence,
(ii) any account given by the defendant in interview, whether contained in that summary or in another document,
(iii) any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence,
(iv) the defendant’s criminal record, if any,
and
(v) any available statement of the effect of the offence on a victim, a victim’s family or others’.
When must these be served?
‘(2) Where a defendant requests those details, the prosecutor must serve them on the defendant—
(a) as soon as practicable; and
(b) in any event, no later than the beginning of the day of the first hearing.
In practice and in many cases nothing of the sort happens. Directions are then made on the Case Management Hearing that the prosecution must serve the missing evidence (often the statement of the complainant and other witnesses without whose statements being obtained by the police the charge presumably would not have been laid before the court).
What happens next? A series of dreary chasing e mails by the defence (if the defendant is represented) to the CPS, pleading for service of the basic evidence. At the time of writing this piece I have a trial in less than 1 working days’ time where we have had to cancel an appointment to take instructions due to lack of any evidence other than a brief streamlined case summary. We have repeatedly chased. The court failed to answer our request to list the case for a mention. What will happen is that the court will switch all the pressure to the defence by asking ‘how long to you need us to put the case back for?’ It will suddenly become OUR problem. It will be the defence ‘delaying the court’ or causing an adjournment. Well I for one have had enough of this shabby treatment. What can we do?
Here is where the courts have mostly been consistently unhelpful. I appreciate that the court must weigh the needs of the witnesses and ‘complainant’ carefully. (See what I did there? I stubbornly but correctly refused to refer to complainants as ‘victims’ prior to the burden of guilt having been established by a verdict.) But until the courts more strictly enforce the CrimPR’s nothing much will change and it is that which causes delay through unnecessary adjournments. You have decisions like those in In DPP v Gowing (2014) 178 JP 181 (the Divisional Court), Brants v DPP (2011) 175 JP 246 and R v O [2011] EWCA Crim 2854 which took the view while proceedings should be efficient and expeditious, ‘the power to stop them should not be used to punish the prosecution!’
Not all courts have responded poorly to the increasingly appalling disclosure failures. The tide may be turning at least at a higher level. Here are some useful recent cases and also principles to cite:
1. R. v Boardman (David) [2015] EWCA Crim 175; where the court of Appeal, according to the Case Analysis on Westlaw, (Sir Brian Leveson PQBD; Andrew Smith J; Phillips J) ‘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. It was not in the slightest surprising that the judge became exasperated with the prosecution’s conduct’.
Three cheers for the court!
2. Following on from Boardman in Salt [2015] 1 WLR 4905, and at [2015] 2 Cr. App. R. 27 the Court of Appeal although in that case ruling in favour of the Crowns appeal against a stay of prosecution at first instance, made a point of saying this: ‘It was where continuation would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute that a court should make an order which would have the effect of stopping the proceedings.’
So pick your battles well and cite those Boardman and Salt cases I would suggest. Each case will of course depend upon its own facts and those include facts as to just how appalling the disclosure problems have been and how prejudicial the continuance of the case would be in which case the court should consider an application for a ‘stay’ or a S78 PACE application to exclude the evidence.
3. It will also be open for you to oppose any application to adjourn not only citing the CPS v Picton case (2006) 170 JP 567 (as the fault will have arisen due to the failure of the Crown) but also the basic principles of the ECHR such as under ECHR art.6 .3 providing The hearing must be ‘held within a reasonable time’. What is reasonable depends on the complexity of the case, its importance, the behaviour of both the applicant and competent authorities, and the length of time between the conduct in question (i.e. when the offence was committed and when the trial takes place).
Article 6(3) also provides the right to have ‘enough time and facilities to prepare a defence’ and further by 6.4 the applicant must have a real opportunity to present his or her case or challenge the case against them. This will require ‘procedural equality’ and generally requires ‘proper’ access to evidence relied on by the other party.
What this means in my view that those courts who simply offer to put the case back temporarily are, except in the most simplest and basic evidential case, wholly wrong to expect Lawyers to find a corner of the court to take hurried instructions for a trial later that day. The Prosecutor should recognise that and should be the one applying for the adjournment not the defence.
This applies quite beyond initial disclosure but to all outstanding evidence the prosecution has failed to serve in good time prior to the Trial. Common law disclosure rules govern the prosecution’s disclosure duties at any stage of the criminal process when the disclosure regime under the Act is not engaged.
To summarise: It is time the defence became more confident and assertive in demanding proper and timely disclosure. We need to embrace our inner ‘lawyer activist persona’ and make a huge fuss whenever we and our clients are treated this way. Let us keep the Crown to their time limits. List the case or at least alert the Court when they fail. Nothing I have written here is meant as an assault upon any friends we have in the CPS. They are coping they say, with limited resources. That may be so but our personal sympathy for them does them no service whilst we allow them and the courts a free pass on timely disclosure of evidence despite the rules requiring this. CPS resource issues are not our problem and nothing will change if we let these standards slide and the rules be flouted routinely.
Robin Murray
Monday, 31 July 2017
Magistrates and how they make you ‘cross’ (examine) or not.
Many years ago I was interrupted during my cross examination of a police officer over local stop and search criteria. The Chair said ‘I think it’s time to move on’. So I found myself rather provocatively responding ‘Well, with respect, you cannot possibly know that because you do not have the benefit of access to my client’s instructions or my approach to the case’. I carried on. But I was so annoyed that the intervention threw me somewhat off my stride and my rather pompous response introduced an air of conflict between me and the Court which did no good at all for the client. I would have handled the court intervention with more patience and diplomacy now partly due to greater experience but also because the role of the court has recently changed to a more interventionist stance. Nonetheless should there be limits to the Bench ‘descending into the arena’? It is that issue that I hope to address here. The issue that has triggered this piece is the growing number of reports of courts imposing a guillotine upon length of defence cross examination by rigidly holding advocates to time limit estimates provided on the PETs or Case Management (CMH) forms.
There has of course been a major sea change in the way the courts approach trials brought about in particular by the advent of the Criminal Procedure Rules (CrimPR ) back in 2005. The Rules are underpinned by the ‘Overriding Objective’ to deal with cases justly which includes ‘acquitting the innocent and convicting the guilty, dealing with both sides fairly, recognising the ECHR rights of the defendant, respecting the interests of witness, jurors and victims, dealing with cases in an efficient and expeditious manner and dealing with a case in a way that takes into account the gravity of the offence, its complexity, the severity of the consequences for the defendant and the needs of other cases.’ (There are special rules for vulnerable witnesses not addressed here).
This without question has enabled the court to adopt a more interventionist managerial role in the conduct of trials. How should that impact upon the length of time advocates take to cross examine? Are the courts able to interrupt an advocate in ‘full flow’ and abruptly curtail questioning before its natural conclusion by reference to the time limits indicated on the CMH form?
It has long been the position that a court can intervene in any event where the length of cross examination has been excessively lengthy in the courts view. Active case management allows the judiciary to curtail any cross-examination that is deemed unnecessary or repetitious. See case of Butt [2005] EWCA Crim 805 where rejecting a defence appeal Dyson LJ stated that the “management of a trial involves the exercise of judgment and discretion and the court will not interfere with a decision made when the judge is exercising this function.’
Earlier in Chabaan [2003] EWCA 1012 Judge LJ highlighted the importance of dealing with cases expeditiously. He said that “time is not unlimited … the entitlement of a fair trial is not inconsistent with proper judicial control over the use of time … every trial that takes longer than necessary is wasteful of limited resources. The importance of dealing with cases efficiently and effectively is clear.’ This is now underpinned by the CrimPR 2016 rule 1.1 repeating the overriding objective set out above.
So to address the issue in hand. Do these authorities and the CrimPR’s permit the routine curtailment or guillotining of cross examination due to breach of estimated time limits noted on the CMH form? In my view – emphatically not. Firstly at any level of trial there has to be a proportionate and flexible approach to judicial intervention that takes into account the fluidity of trials. Often time estimates can only be approximate because until one sees the witness in person or the direction of travel of other related evidence, such time estimates cannot be an exact almost mathematical or scientific prediction. Instead the court should not be distracted by clock watching but by the nature and quality of the evidence being elicited by cross-examination. Obviously questioning that is repetitive or seemingly not relevant to an issue in question could properly be addressed by a question to the advocate. I would submit this should be done rarely in order to avoid the impression of hostility to one side or the other. The court must appear impartial and unnecessary interventions erode that neutral impression. Excessive or unnecessary intervention can cause a case to become imbalanced in the eyes of participants or spectators and indeed can deny the court access to vital evidence if an advocate sits down flustered and dismayed at having been denied a full opportunity for their questioning to develop.
My own approach to cross examination is to be a brief as possible (this may surprise some!), to treat it as something of a commando raid into enemy territory. Get in. Do what you have to do and get out fast. I have never recently been pulled up for over extending a time estimate and I doubt if I have ever done so. But this may depend upon the nature of the case, documentation, the character and quality of the witness and what else has happened in the case. The very idea of being pinned down or held to a time estimate given (probably by another advocate) many months before and probably prior to service of other evidence is an anathema to me. But does it have any real legal basis or sanctions in any event? (Wasted costs for 5 minutes – Really? Formal complaint? – go on then) I suggest the various Magistrate courts who have recently adopted this policy of guillotining advocates are, with respect, wholly wrong and misguided in their interpretation of the law and the CrimPR’s.
The case R. v Newell (Alan) [2012] EWCA Crim 650 distinguishing Firth v Epping Magistrates’ Court [2011] dealt with the status of defence statements by lawyers on the CMH forms (as they then were referred to). The basic principle established related to the rather different issue of admissibility of admissions on the form. It was held you may recall that where statements were made on the form, which were not made under the section relating to admissions, such statements should be made without the risk that they would be used at trial as statements of the defendant admissible in evidence against the defendant.
To be frank it was a form of Defence lawyer activism that achieved this change in approach from Firth to Newell because the effect of the Firth decision purporting to pin an apparent admission by a lawyer to be used against a defendant resulted in deep caution by the lawyers when completing CMH forms. As Sir John Thomas P. observed the impact of Firth ‘was to make defence lawyers much more cautious about providing information on case management forms, in order to avoid the risk that the contents of the forms might be used against their clients. This is counter-productive, since the forms are intended to assist with case management.’
Many lawyers started to merely complete the part of the CMH form requesting information about the defence case with the word ‘privileged’ for fear of anything else being said that could harm their client in cross-examination by the Crown. It was that lawyer activist resistance that the court was clearly cognisant of in Newell when ruling that unless admissions were made in the section headed under the section relating to admissions they could not be used.
I cannot see that Newell can mean anything other than – unless something appears in the section under ‘admissions’ that the CMH form is merely anything more than an advisory guide and aid to case management to assist in complying with the rules. That must include the section on time estimates for cross-examination of each witness. But those time estimates are simply that. i.e. ‘estimates’ and for Magistrates to pretend otherwise is absurd and amounts to oppressive judicial behaviour towards the defence. They are not binding and defence advocates cannot in law be held exactly to them. That is not a suggestion that defence advocates should ignore time estimates. They should be courteous to the court if pulled up and apologise when explaining it is necessary to take a little while longer than estimated for whatever reason this may be. But courts need to be proportionate in dealing with time ‘estimates’ and not distort the flow of cross-examination nor potentially affect the outcome of a trial by arbitrarily, unreasonably and bureaucratically cutting necessary cross-examination short.
Case ‘management’ should not equate to an overbearing interference. Time is not unlimited but efficient case management should not be fulfilled by potential prejudice to the defendant. Some Magistrates it seems are in some difficulty in ascertaining the boundaries within which they operate. The courts are also subject to the CrimPR’s and these impose burdens upon the courts including ‘dealing with both sides fairly, recognising the ECHR rights of the defendant’. Such as the right to conduct necessary cross examination I would opine.
If some courts continue to behave in the way reported by colleagues, until restrained on appeal, I do predict another outburst of adversarial activism by defence lawyers (Bullying is usually although not exclusively aimed at them) either refusing to give any time estimates or once again writing boldly on the forms something like ‘approximate time estimate only without prejudice to necessity to exceed as appropriate’. I am hopeful that this recent ‘fad’ of Magistrates courts to excessively ‘descend into the arena’ by curtaining cross-examination will dissipate soon as defence lawyers show increased resistance to such unlawful and unwarranted interference in the representation of their clients. No self-respecting and self-disciplined advocate should ever allow Judicial bullying to prevent them from carrying out their duty to represent their client and cross examining for a reasonable time whatever the rough estimate supplied previously. This trend of the court must be resisted and defeated.
Robin Murray
Thursday, 20 July 2017
A not too serious look at what is it like being a candidate on polling day?
What’s it like? Different for everyone I suppose is trite answer. I can only describe my own experience. That was as a Parliamentary and as Borough Council candidate plus acting as an agent for other local candidates.
The first thing I learned is that you cannot sleep late even if you wanted to. Too much nervous energy and adrenaline pumping around I would reserve a local round to do a ‘today is polling day’ leaflet drop. I would be up at about 4 am. I would be out 15 minutes later pushing these through letter boxes.
In the insane pumped up mental state that I would be in I would be quoting loudly to myself pieces of Shakespeare such as ‘once more unto the breach’ or ‘Gentleman in England ‘will think themselves accursed they were not here who fought with us’ etc. Sometimes I would go all Churchillian, ‘we shall fight them on the beaches’ or ‘never in the field of human conflict. (With the voice! ). One man phoned home and left a message saying he was woken up by the letter box slamming and I had lost his vote. My wife said ‘don’t worry he woke me up too and has already lost mine’.
After a couple of hours of delivery I would go back home to the relative sanity of spouse and 3 children. They were normal even if I was clearly of my rocker.
The truth is on Election Day there is not a great deal the Candidate can usefully do. I never allowed that fact to stop me being a thorough nuisance to everyone else because to be honest after a frenetic campaign you could not simply stop still. Well I couldn’t.
Then I would, after forcing down some breakfast, head out in my car.
I would visit local ward HQ’s (committee rooms) to talk to the troops running local operations. We had a good complement of ‘Tellers’ asking people on the way out of the polling booths. By the way tell them how you voted and you will not get bothered with offers to take you to the poll. I was always amused my people boasting that for a quiet life they offered support to every canvasser. That could involve 3 party works knocking on your door. One year as an agent our candidate lost by one vote. One chap who had previously promised his support, whom I spoke to could not be bothered to go late to the poll despite an offer of a lift. later after defeat by 1 vote I remembered him.
I would visit the Tellers again and again to thank them as they ‘turned over’ all day and evening, and to see how they were and to make sure there were no gaps. One lovely lady for another party said; ‘I am so impressed that you keep coming round to thank people. More than our lot do.’ I replied it is the least I can do for people who turn out for you’. She said ‘yes but you thanked people from other parties too’! We all serve democracy whatever our loyalties I replied (somewhat in a saintly manner). She asked me if I would meet her son who was interested in a career in the law. I did, he worked during the holidays for me, became my trainee solicitor, assistant solicitor, became a partner, Chair of the Criminal Law Committee and next year will likely be President of Kent Law Society. He is the brilliant phenomenon that is Richard Atkinson. Some in the profession will know him.
Anyway I eventually went to vote, usually with the Children. I recall my son during an earlier election for the council election when I stood at the age of about 5, shouting at people attending the polling booth ‘Vote for Daddy Robin’. A clear breach of election law so near the booth! I was elected though so perhaps it did some good.
Earlier during canvassing he wanted to come with me to help. He liked pushing ‘sorry we missed you’ leaflets though letter boxes.
At one door a rather crotchety old man came to the door and shouted ‘Bugger off – you are all the bloody same’ and slammed the door in our faces. My young son was the picture of infant indignation. He glared at the door and said. ‘Well daddy, he wasn’t very nice. Not very nice at all’. He then stormed off up the road in a frightful stop but the image was somewhat spoilt by a loose belt and his trousers falling down. He was not amused. But I was. Some years later as a teenager he was at the Parliamentary count and was proud to see me give a flea in the ear to someone being insulting to party workers from another party.
My wife Sally ran our local committee room at home (our own ward) and cars were sent out here there and everywhere. There was a constant to and fro with her handing out pages of names (from triple layered canvassing pads to scores of volunteers sent to ‘offer lifts’ (ie remind people to vote).
I did my touring whilst these good people got out the vote, driving all over the area. To be honest it was rather exciting. I was always touched by the support people gave me and the cause. It was a wonderful team we put together.
Later at around 22.00, after being forced fed by my mother who was there ostensibly to child mind but could not contemplate my skipping a meal despite the fact that I was never hungry on election night, I would head off for the count. There the night would end in triumph or disaster. With cheers if we won or commiserations at a hard fought campaign if we lost.
I miss it to be honest and despite losing in the Parliamentary election I am glad I took part after being persuaded to stand. (Highest ever vote for our party in that area). I was happy beforehand being elected to the Council and proud to have contributed to civic life as ‘Councilor Murray’! Probably the electorate showed great wisdom in not electing me to Parliament and I didn’t resent that. There is only so much you can do with national trends. I was flattered and proud to have been asked to stand.
Whatever happens tonight I will spare a thought for all those candidates who gave their all for what they believe. For all those families who support them (They also serve) and all those party workers who gave a damn and got involved in that great adventure called democracy. God bless them all. They are the backbone of our way of life. And if you voted bless you as well.
Robin Murray
Thursday, 08 June 2017
AN OPEN LETTER TO MRS. MAY.
Dear Mrs. May.
You have failed to keep us safe.
The blame for terrorism can only properly be laid at the feet of the despicable terrorists. However the impact of cuts (20,000) in policing that you presided over as Home Secretary and now as Prime Minister cannot be ignored. They impact not only upon terrorism intelligence gathering, through the shocking reduction of community policing by which information could be funneled from communities, but also they impact general crime.
I speak as someone with intimate knowledge of the criminal Justice system after many years as a practicing lawyer. There are no professionals that I know either in the police or other lawyers and professionals serving the public in the system who do not feel that cuts have been extreme and have gone too far. That also applies to Governments cuts to the courts infrastructure and staff, the probation service and to the financial pressure placed upon both the CPS and defence firms.
How do these cuts manifest themselves?
• Firstly they are shown by way of an extraordinary fall in the numbers of prosecutions. No one involved in the system accepts this is all due to a downturn in crime itself. We simply do not believe Government statistics on ‘falling crime’. If the police do not attend and detect crime due to staff shortages inevitably the public begin to stop reporting crime. This applies to shops suffering theft as well.
• Many of the falling number of offences that do become subject of a police investigation are now handled by inexperienced junior police interviewers who are poorly trained in comparison with the relatively recent past. This results in poor outcomes at court if indeed the cases reach court at all.
• There is an over reliance on police cautioning as a substitute for prosecutions. This is combined with often bizarre decisions not to charge or to under charge in cases where I and my colleagues are left gaping in astonishment at the good fortune of those clearly deserving tougher treatment. As defence lawyers we ‘take the win’. As Citizens we are horrified.
• Due to understaffing the police cannot investigate cases properly. This leaves a serious risk of miscarriages of justice both against the public interest where there should be prosecutions and to those who are innocent and need other lines of enquiries pursued.
• When a prosecution is begun both the CPS and the defence have major difficulties in extracting evidence from the police to assist with the process of disclosure of evidence. This results in constant adjournments and trials being ineffective. Letters and e mails are unanswered. Witnesses not contacted. The regrettable indulgence by courts of Prosecution disclosure failure is a symptom of the cuts as the courts recognize the pressure the CPS and police are under.
• The same resources problems impact the CPS who simply cannot cope any longer with under funding and do the job properly. Most Prosecutors I know are in despair at the collapse in their organisations ability to do the job properly due to cuts. Defence lawyers are under similar pressure due to cuts to legal aid.
This has to change.
These cuts happened on ‘your watch’. Endless austerity cuts have consequences. We cannot afford as a nation to skimp financially on policing or Justice any more than we can on the NHS. The consequences can be deadly.
We need more police and more intelligence officers. We need a properly funded Crown Prosecution, Court service, probation service and legal aid to ensure the integrity of our Justice system. Tinkering with Technology, court building reduction or court sitting times is no substitute for real people with real expertise doing the job. The public deserve that.
We are the 6th wealthiest nation in the world, not a society without resources. To underfund all these essential aspects of our society is to put us all at risk. Properly funded Law and order is an essential requirement of a modern healthy democratic society. If taxes on the most wealthy have to be increased a little or at least not cut to fund this then I for one would prefer that rather than to trade our safety for tax cuts for the wealthy as you have done and further propose.
Robin Murray
Tuesday, 06 June 2017
Separation of powers and the election expense prosecution in Thanet
There has been a lot of coverage over the intended prosecution of people for alleged election fraud in Kent.
Let me state at the outset that anyone simply ‘charged’ as opposed to convicted of any offence is under our law presumed innocent. That applies to all, whether or not we support their views. However are there other important principles we cherish including the tradition of ‘separation of powers’. What does that mean? It means that major institutions of state should be functionally independent and that no individual should have powers that span these offices. (The Constitutional Reform Act 2005, removed the judicial functions of the Lord Chancellor to create a more formal separation of powers)
Separation between the executive and the judiciary is vital or our courts will simply become judicial rubber stamps for politicians. This separation is so embedded in our constitution that it was rather shocking to hear Theresa May the Prime Minister, expressing a view that this prosecution was ‘unfounded’. That word by any commonplace definition suggests that she thought the prosecution was ‘groundless’ or ‘baseless’. That seems to me to be an extraordinary thing to accuse both the police and Crown Prosecution of bringing an ‘unfounded’ prosecution. Why do I say that?
- How does the PM know the allegations are unfounded? I appreciate she will know some of the individuals concerned but surely she has not had access to police and CPS papers in this sensitive case? It may well be that the defendants are found not guilty but that is a matter for the court to decide not the PM. The PM could have simply said all are presumed innocent and the process should take its course.
- The police and the CPS are responsible to the Director of Public Prosecutions so is the PM implying that the Director or subordinates would sanction a prosecution that is ‘unfounded’? I stress again I make no comment as to the strength of the evidence which may well end in an acquittal but would be surprised, after all this time and consideration that the decision to prosecute was ‘unfounded’. The prosecution authorities must at least have concluded that there is more than 51% chance of conviction and that there is a prima facie case. If that view was unfounded the time to say so is at the outcome of the trial following any acquittal not prior to it.
- The timing of the announcement contrasts with the, arguably politically helpful announcement a few weeks ago, also during the election campaign that other cases elsewhere would not be the subject of charges so to claim political motives for this decision is dubious.
In The Evening Standard the front page refers to ‘Tory fury over Expenses Charges’ quoting such comments that the prosecution is ‘outrageous’ and ‘interference in the democratic process. This is the wrong way round. The comments by the PM and other Conservatives might be said to be an interference with the Judicial process.
Attempts to inflame public opinion to the point whereby the court might be influenced are very dangerous and discouraged by the courts. In the Jeffrey case (where an innocent man from Bristol was traduced by the press) in a written judgment on the contempt of court, the Lord Chief Justice, Lord Judge, Lord Justice Thomas and Mr Justice Owen described the newspaper articles as “extreme” and causing “substantial risks to the course of justice”. In that case the victim was an individual but also in a real sense the potential victim was justice itself.
The defendant’s publicly deny wrongdoing. They have a right to do so, within the limits of prudence I would advise. (Judges do not like cases tried in the media rather than in the courtroom). On a human level, whatever one’s own opinions on the politics, I personally hope for the individuals, their families and the health of our electoral process that there is a happy ending. But until the end of the case it would be wise in my view for all commentators to exercise restraint as to whether or not this was a proper prosecution to bring. That especially applies to members of the Government such as the Prime Minister who are constitutionally enjoined not to interfere with our Justice system which must remain separate from political interference.
Robin Murray
Friday, 02 June 2017
NO GO PRO BONO (and why legal aid lawyers need to stop collaborating in their own destruction)
This is a fine rant by the indomitable ‘crimbarrister’. (Published below). I wish to add to it.
There is no goodwill left among those who do legal aid work after attacks upon legal aid. This piece is from the perspective of Counsel but solicitors feel the same. Why oh why should the profession collaborate in pro bono work when it seems half the time we are not being paid for what we do now?
Until there is a recognition of the fact that access to justice is on its knees due to unsustainable cuts we should not cooperate and do pro bono work at all. It is shameful to collaborate at all until HMG changes its ways.
We should also look at other ways we work that facilitate our own destruction and stop doing it.
Our instinct is to be cooperative and helpful to the system and yet the system crushes us by exploiting our good nature and makes us work for next to nothing as this fine piece by Crim barrister illustrates.
The Government will of course rely on the venal bottom feeding poachers, ghosts (bogus duty solicitors) and touts to undermine resistance but between growing militancy at the Bar and support of the majority of decent firms perhaps we can unite and fight for access to justice not only for the public interest but (I make no apologies for this) for ourselves who are treated abominably by HMG and their lying friends in the press peddling garbage about ‘fat cat lawyers’.
I sense that soon something will snap. The mood out there in the profession is changing from dull docile acceptance to growing anger at the way legal aid and our clients have been treated.
The junior Bar and legal aid firms should urgently begin talks as to how to organise resistance. It is our democratic duty to fight for legal aid. HMG will try to keep us divided. We need to recognise together we can reverse the downward spiral. Area by area. Step by step. Creative action with the aim of saving access to justice.
These are my personal views and defeatists and those who always take a negative view of any effort to fight back will do so again. But before you do – ask yourselves these questions. Can we really go on like this? Further if we do just accept things as they are will they ever get better?
My view is that our failure to resist encourages the Treasury to cut more until eventually the system will collapse. Not though malice just through stupidity and the lack of our resistance.
More on a Bonfire of Regulators and on sourcing new funds for Access to Justice
I wanted to expand a little upon and respond to some very perfectly courteous comments on social media in relation to this article. Click here below.
http://thejusticegap.com/2017/05/criminal-legal-aid-reform-need-bonfire-regulations/
Somewhat to my amusement it has been suggested that these ideas favour big firms but elsewhere it is suggested the ideas are opening criminal practice to all and sundry. Both can’t be or are in fact true.
Big firms cope better with excessive regulation than small firms in my view by combining multi branch back office functions and the employment of specialists practice managers and IT specialists. For smaller firms to provide the equivalent, perhaps by out sourcing, can be crippling and onerous. This is not fair or necessary. None of us should have to cope with the level of bureaucracy and the cost of it that we all have to deal with. We are sometimes accused, entirely falsely, by politicians of not having put forward alternatives to cuts (which are unnecessary). Well here are some.
1. The budget savings should be redeployed into improving rates to avoid the growing crisis of recruitment and falling profitability as legal aid rates reduce in real terms and made worse by past cuts.
2. In addition we need to access new sources of funding. This should be, as we argued, by means of a loan scheme. Why? Because I do not believe that politicians will ever again agree to any increase from general taxation. We need an independent body to set rates and we need to access further funds to supplement those rates where affordable.
I personally would much prefer a hypothecated tax deduction for legal aid as suggested by the Liberal Democrats in their election proposals for the NHS but know that no party would be likely to endorse that.
How do we maintain standards?
High standards will be strongly maintained and it will require firms to pay for properly qualified trained and accredited people before deploying them to court and monitoring of these by both random financial audit by the LAA (one of its limited residual functions) and by the SRA in terms of compliance with standards.
Looking at the history. Criminal legal aid was open to all comers from 1949 to 2001 when franchising came in so this is not back to the pre 1980s but the recent past.
Up until the passing of the Legal Aid Act in 1988, responsibility for legal aid lay with the Law Society but it was more or less the same regime. The contract has only been in existence for 16 years. Have standards improved under contracting? Like hell they have. It’s nonsense to suggest they have improved in my view.
The situation is exactly the same: there are good lawyers but also a small but significant minority of bad lawyers and firms only interested in piling high or milking costs etc without regard to quality. The crooks and rogues are still around poaching, cheating and providing a poor service to clients that most of us deplore and yet they escape all these regulatory so called safeguards.
Pre- contracting, there was no monitoring of standards – you were struck off for fiddling the books but there was no control over the standard of job you did or even the service you gave.
The monitoring of standards ( what care letters you write etc etc and all that nonsense) is carried out by the SRA on the overwhelming number of firms in England and Wales -the vast majority of which do not do crime.
The SRA does not bother much with crime depts/firms because of the contract, but they have the staff – indeed they go into mixed practices and ‘audit’ every bit apart from crime – so including crime will hardly increase their workload by much; and although there would be the ‘extra’ work of crime only firms, this will not require a great increase in man-power ( they only have to do what the LAA does -look at sample files).
Indeed the method of standards auditing is replicated ,currently, by the LAA, SQM, Lexel, Peer Review and the SRA ( on non-crime work). (Plus we have to do internal file reviews). If the SRA do not want to do the work themselves they can contract SQM organisations to do it and each firm pay a fee to the SRA. A lot cheaper than all the hoops and present costs we suffer.
Some realism is required; those who want to get around standard rules will and always have – because there is no way of practically monitoring what practitioners actually do – unless you have ‘policemen’ in every firm , court, and police station everyday 24hrs a day. Every single method of monitoring fails – thats why there are so many lawyers and firms we deride and complain about.
I accept that in this day and age there should be, quite properly, some control over how we run our files and conduct ourselves – so I suggest the SRA who currently do this, as I said above, do this for for purely professional conduct issues plus an audit function that they can, it they wish, delegate. It might even be better than what we have now with the plethora of auditors, because it is simpler, but definitely will not be worse than what we have now which is the following over the top regulation.
a) The SRA
b) The LAA (Financial audits)
c) SMQ (Lexel etc.)
d) Peer review
e) Internal prescribed supervision file reviews.
f) Prescribed solicitors account audits by independent accountants.
In addition, what we have proposed in the article is very general – in the detailed document which may see the light of day, is where self -monitoring comes into the equation with Duty Solicitors committees making a come back to deal with the rogues they know subject to proper fair appeal procedures to avoid local mafia cartels. (I have been the victim of that in earlier days when trying to expand)
Also the accreditation regime we propose should be robust and so should a continuing training regime. No ‘fly by night’ firm is going to be able to pick any ‘lawyer’ off the street and throw him or her into court.
You will understand that the respected Justice Gap is edited by an award winning legal journalist, Jon Robins and he will only swallow so much detail in what was a long article anyway. It does need expansion. But I welcome courteous debate and discussion. Thanks for engaging if you have and for reading this.
Robin Murray
06/05/17
