Time to abolish legal aid?

Lawyers have a reputation for being money grabbing bastards of the lowest level.  It is quite clear when you speak to some people that they cannot differentiate the criminal defence lawyer from the drug dealer or violent husband whom they represent.  I gather this is much the same for soap-opera actors who must put up with being treated as their characters as they shop for underpants.

The current campaign by lawyers of both main legal professions against the legal aid reforms is mostly being ignored by the general public and the media.  But, when the public do hear of it many seem to take the view that the campaign is a fight by lawyers protecting their own income.

The truth is that if lawyers got into the legal aid game to make quick and easy cash then they are fools because legal aid has never been well paid in comparison to other areas of privately funded law. 

More telling is the fact that so many lawyers oppose the government’s legal aid reforms.  If lawyers of both professions were interested solely in money rather than justice, the justice system and the interests of their clients’ and society then they would be campaigning against legal aid being available to anybody.  In fact, lawyers did campaign against the introduction of legal aid in the 1940s (I seem to recall legal aid as we know it appeared around 1949 along with the NHS) because they feared that the lower fees would result in a brain drain from the profession that would lead to a reduction in quality.

Today, lawyers who are only interested in money would not want legal aid for anybody.  They would be fighting against the legal aid system and in favour of individuals financing their own cases.  We could make extra cash by flogging punters (or more likely their families) lovely finance deals.  Would we get paid?  Of course we would.  Look at how many people are willing to spend vast sums just to keep their driving licence.  Imagine what you would spend to avoid missing the next 4-years of your child’s life.  In the USA people risk bankruptcy to avoid prison; there’s no reason to think the British wouldn't pay up to stay free.

It might result in slightly less firms, but I suspect that the remaining firms would be larger and so the number of individual solicitors would probably be roughly similar, all earning vastly higher salaries.  Solicitors being paid privately to litigate would probably be less inclined to conduct their own advocacy so there would be less threat to the independent Bar from solicitor-advocates (like me) and from the employed Bar.

Conversely, there would be a large section of society who had little or no access to the justice system; people who did not receive the benefit of professional legal advice when facing a criminal allegation.  But, if lawyers were only interested in money they why would we all care about some bloke we've never met being falsely accused of rape or murder or burglary or whatever?

The total abolition of legal aid would be good for prosecutors too.  With soaring incomes in the private sector, the public sector would have to increase their salaries to retain their staff.

But, no lawyer is campaigning to abolish legal aid.  Most are campaigning to keep legal aid and retain a system that allows them to receive a reasonable income for doing a very difficult and complex job representing what are often very difficult individuals. 

This is why when you hear lawyers saying that legal aid is necessary, should be retained and is good value for money you can trust what they say… because, lawyers interests would be much better served by doing away with legal aid altogether!

Claire's Law

For those who haven't heard of it, Claire's Law is the popular name for a modern law that allows police to tell potential victims of domestic violence about their partner's previous convictions.

I do not understand the purpose of this law.  I get that it is supposed to forewarn women who might be the victim of domestic violence (or where their children might be at risk of sexual offences from a new partner) but I just can't see how this is a useful law.

To receive a disclosure the woman must go to the police and apply for the information.  The police then assess the request and decide whether it is appropriate to make a disclosure.

What strikes me about this is that to trigger somebody to go to the police the partner would have to be displaying some unusual behaviour; something that makes the new partner uncomfortable or suspicious.  If somebody is making you uncomfortable then why would you want to stay with them?

We, by which I mean a cultural or national we, seem to be slipping into a world where we distrust our own instincts and the evidence of our own eyes and experience.  We seem to rely more and more on others to take responsibility for us and guide us in our decisions.  I really do think that people need to trust themselves more.  Trust their instincts.  Trust the evidence of their own eyes.  If somebody makes you so uncomfortable that you need the police to officially endorse your relationship then it's not the right relationship for you.

Best Value Tendering

Brace yourselves because the topic today is a bit dull, but they're will be a reward for reading all the way to the end.

The Government is looking to introduce Best Value Tendering (BVT) as a new way of paying for criminal legal aid cases.  BVT is likely to mean the introduction of One Case One Fee (OCOF), but there's no reason that OCOF must follow BVT.  OCOF means that the solicitor is paid all the money and can chose how to run the case using it, so he might instruct Counsel or keep the work for his in-house advocates.  OCOF already exists in the magistrates court where fees are paid to solicitors who can chose to instruct Counsel.

At present solicitors receive one fee for handing a case, which is either a fixed fee in police stations and magistrates courts or it is a graduated fee, which is comprised of a basic fee and can go up if the case is particularly complex, this is measured by the number of pages of evidence served by the prosecutor or days that the trial takes.  Barristers are paid either an agreed fee in the magistrates by their instructing solicitor or they receive their own graduated fee in the Crown Court.

The proposal is to award BVT contracts based upon the lowest price.  So Smith & Jones Solicitors will bid to run cases for say £500 + VAT while Shotgun Bastard and Dribble might put in a bid of £400 per case.  The winner of this bid will be Shotgun Bastard and Dribble as the only criteria is cost to the government.

Recently, the government has run two bidding procedures to contract for criminal justice services.  The first was for firms to run the Defence Solicitor Call Centre.  This service assigns suspects in police custody to duty solicitors and, in a lot of cases, provides telephone advice to those suspects.  The DSCC staff can make a decision whether a suspect deserves a solicitor and, if they decide not, then the DSCC staff will provide telephone advice only and will not pass the suspect on to a qualified solicitor.  This went so well that a firm of unqualified 'lawyers' won the contract and promptly went bankrupt.

The second bidding process was for the provision of interpreters to assist defendants, victims and witnesses in courts.  That also went well with interpreters boycotting the contract winner - who turned out not to have anywhere near as many staff as they claimed.  There was chaos in courts for months afterwards.

All this gives me an idea - but don't tell anybody about this!  If BVT comes in, I'm going to bid for a contract.  I won't have any staff, but that doesn't matter because I'll rely on projections for staff recruitment rather than actual employed staff when I bid (I'll lie).  When I win the contract I will hire a small army of school leavers as "paralegals" to shuffle paper around the desks.  I'll hire some newly qualified solicitors and barristers who will all be going very cheap since nobody else will be in a position to employ them.  With those people in place I'll be in a position to run criminal defence cases for next to nothing, while enjoying huge profits generated from the fourth-rate service I'll be providing.

Best of all, if clients don't like my service it doesn't matter because they'll be nobody else in the area to represent them!

I promised you a reward for getting to the end... unfortunately for you I lied but I got you to read it, just like fibbing about staff will help me win that hugely profitable BVT contract.

Police cautions

Senior people, including police officers, have been making a lot of fuss about the inappropriate use of cautioning by the police.  For those who don't know a caution is a case disposal that police officers use instead of sending somebody to court.  The caution is recorded on their criminal record, although it's not itself a conviction for any offence.  The caution will be disclosed in some circumstances, e.g. if you go to court as a defendant or witness (if it's relevant) or if you apply for a CRB check.  You may also have to disclose cautions when you apply for jobs.  A caution is more serious than a fixed penalty notice.

Suspects can only receive a caution if they ADMIT THE OFFENCE.  I've written that in capital letters because it is very important.  You must confess and show remorse, or at least an understanding that what you did was wrong, to be eligible for a caution.  You cannot receive a caution if you deny the offence in anyway, e.g. by giving an alibi or putting forward a defence.

There's a lot of nonsense talked about inappropriate cautioning, which distracts from the real inappropriate cautions.  The typical example you'll hear is that in the past year 23 (or whatever, I'm making a number up here) people were cautioned for rape.  Think of rape and you think of a demented man grabbing a woman in a dark underpass, holding a knife to her throat and forcing her to submit to sex against her will.  That is rape and I seriously doubt that any offence with those particulars has ever been dealt with by way of a caution.

Cautions for rape are very rare.  They are usually given out because the prosecution are not going to be able to prove the allegation in court, maybe because the victim does not want to go to court or maybe for another reason.  I suspect more often cautions are given out for "offences" that you might not expect, as in my next anecdote.

A couple of years ago I dealt with a "rape" of a girl under 13.  My client was her "attacker" and I know, you're thinking I'm a nasty bastard for using the quotes on those two words.  But, this "attacker" was a tiny and very scared 11-year-old boy.  He gave an account, which I completely believed, whereby he had been shanghaied into going into a block of flats with this girl where she had performed oral sex upon.  He told me he was nervous about what was happening, but nonetheless went along with it.  Teachers at school found out, informed the girl's mother and between them the police were called.

After I had left the police station and against my advice he, on the advice of his mother, accepted a caution (for kids they are known as reprimands and final warnings, but it's basically the same thing) for rape - on a separate point I really do believe that at least 50% of parents should never be allowed near their child in custody, but that's a whole other post.  Because of his caution he is now a registered sex offender and must notify the police of his address.  That is a wholly inappropriate caution for rape, but not for the reasons the press would have you believe.

Last weekend I represented a couple of men who had been arrested for affray.  They told police they had been attacked outside a night club by three men.  They had serious injuries to prove it.  Despite putting forward an account in which they were the victims of an unprovoked assault they both accepted cautions after I had left the police station.

It seems to me that cautions are regularly being used to dispose of cases that where securing a conviction would be very difficult, if not impossible, but where the suspect is vulnerable to the promise of a speedy conclusion.  I assume that this boosts detection rates and is much cheaper than prosecuting.

Is this a sensible way to do things?

It's Easter Sunday and I've been sat about for the past 14-hours waiting for clients to be interviewed in the police station.

I have one in Chiswick.  I have called the police several times through the night and day.  So far, there doesn't seem to be a police officer assigned to interview this chap.  I therefore have no idea when he will be interviewed.  I do know; however, that if officers ask for an extension to the 24-hour period they can hold him for I will be objecting on the basis that for the first 15-hours of his detention they appear to have done bugger all.

I have two clients being held in Hounslow.  They have also been in custody about 15-hours.  I understand an officer has been assigned to interview these boys.  However, the officer is based at Acton.  The obvious thing to do would be for the officer to take the 20 minute drive to Hounslow, interview them and get on with it, particularly as Acton has no cells available to hold them.  For some reason, the plan is to have 4 or 5 officers travel from Acton to Hounslow, drive both suspects back to Acton where the investigating officer can question them, but only once cells become available at Acton.  Having spoken to the custody sergeant I understand that these two with be the third and fourth suspects to be transferred in this way today!

All three suspects have been arrested as they have been named as being involved in offences, so it can hardly be a surprise to the police that these people are in custody.

Admittedly, I'm probably more annoyed than usual because I had to cancel dinner and my little boy's easter egg hunt at my mum and dad's house to wait for these interviews.

UPDATE.  It's now 18.15, which is about 18-hours after the people mentioned in this post were arrested. The suspects at Hounslow have been transferred to Acton.  As this has freed up some space at Hounslow the obvious thing to do is to transfer prisoners from Chiswick to Hounslow.  So, that's what's happening.

Incidentally, having spoken to custody I am told that officers have been assigned to these cases but have not bothered to make any substantive contact with custody staff since being assigned and that the officers have not been answering their telephones all day. 

I honestly hope that these people are never asked to organise anything as difficult as a piss up in a brewery.

Addicts

I dealt with a man at the police station today who is an alcoholic.  Unlike most addicts I come across he accepted he had a problem and genuine appeared to want to change but also recognised that he isn't capable of doing anything about his problem alone.

The first response of many people when they think about addicts is to say either that they decided to do the drug and so they brought the addiction on themselves or that the addict should do something to sort themselves out.  In reality, neither of these ideas is helpful.  First, whether the person brought it on themselves or not is irrelevant insofar as them beating their addiction is concerned.  Secondly, it's often not so easy to simply do something about it.

I am quite fat.  I need to lose weight.  I know how to do this.  Eat healthily and cut down on the booze for a while (I'm writing this with a pint in hand waiting for a takeaway delivery).  In reality it's not that easy.  I ate a lot of healthy foods a couple of weeks ago and lost half a stone.  I then had what seems like not very much bad food at all and put most of the weight back on last week! 

If I'm completely honest, I don't really like chocolate that much.  But, I know there's some in the kitchen and I know that come the morning there won't be any left.  When I eat chocolate I usually feel a rush as I bite into it followed by an urge to eat it until it's all gone.  I know why this happens, because the chocolate is associated with pleasure and reward and so activates the reward centres in my brain causing a release of dopamine.  This is exactly what happens when a drug addict uses his or her drug.

If I can't give up eating like a fat bastard then imagine how hard it must be for somebody who is addicted to alcohol or drugs.

I gave this chap some homework to do from the police station, namely call some agencies and see if they can help him find temporary accommodation, normally a client who isn't really motivated will get annoyed by this suggestion.  But, this fellow was straight on it the moment we left the consultation room. 

The problem he has is that all of the agencies who might be able to help are closed for the Easter break.  To be honest, when they are operating they aren't much use.  He will be produced in court tomorrow morning and I can guarantee that there will be nobody there who can help him find a place to stay.  The upshot is likely to be that he is remanded in custody, misses the opportunity to continue the work he has already started and is released in a month with his will to fight his addiction shattered.

I've said this before and I'll say it again.  We, as a nation, have the choice of deciding to accept that people become addicts and telling them that it is their problem or actually investing resources into fighting addictions and preventing people from becoming addicts in the future.

Real investment (by which I don't mean huge sums of money spent shotgun fashion as seems to be the case with much of government spending) targeted in the right places coupled with meaningful changes to the law will do more than anything else to reduce crime across the board.

PS just so we're clear, if you want to criticise the typos that certainly exist in this blog then feel free and, to answer you question, no I don't usually bother to proof read these things - I already told you I have been in my hand and a takeaway en route... a fat man's gotta prioritise!

Huhne, Pryce and Grayling

Earlier today the former wife of former minister and former MP, Chris Huhne, was convicted of perverting the course of justice after the failure of her defence of marital coercion.

The failure of that defence is no great shock.  To succeed the wife must convince a jury that she was so completely under the control of her husband at the time that she had no free will and no choice but to obey her husband.  It is a defence that made sense when it was introduced in a time when women had practically no rights and were expected to obey their husbands in all things.  In the modern world it is a defence that will succeed only in the most extreme circumstances.  It is probably time for this archaic defence to be removed from the statute book.

What is more interesting, from a criminal lawyers point of view, about this case is the rank of counsel instructed.

Like all Lord Chancellors, the current inhabitant of the office was appointed because of his lengthy experience of our legal system and his thorough understanding not only of the law but also of the courts and processes by which justice is achieved.  Hang on.. sorry... now I think about it that's total bollocks.  He has no idea about the law, legal system or anything else so far as I can tell.

In Mr Grayling's expert opinion senior lawyers should not be available to the sort of oik who receives legal aid.  I suppose the reasoning must be that if they want the best then they should pay... why should "ordinaries" receive the top-level of lawyer available?  Obviously he didn't say that.  He claimed that junior counsel are just as good and that most QC's are over the hill any way.  He made the point that a junior a month away from taking Silk is just as good the month before he or she becomes Queen's Counsel and they cost half the price.  That makes sense, if only there were a pool of junior counsel constantly a month away from taking Silk.  For obvious reasons there isn't such a pool.

Since our esteemed Lord Chancellor believes that even murder cases should be using junior counsel in place of QC's I was surprised to see Chris Hunhe and Ms Pryce (sorry I can't recall her first name and I refuse to waste my time looking it up) were being prosecuted by a QC.  Was the CPS lawyer who instructed Counsel not aware that a junior a month away from taking Silk is just as good but only half the price?  Did the Lord Chancellor not drive home the importance of not using Silks to the Director of Public Prosecutions?  Incidentally, the DPP is paid significantly more than most legal aid lawyers.  I can't be the only one thinking that the head of the CPS could just as easily be a junior lawyer as a QC, which is what Keir Starmer is.  They could save millions over the entirety of his tenure in the top job.  I hope therefore that we will see Mr Starmer ousted from his cushy job, for which Mr Grayling must believe he is greatly over-qualified.

Returning to the Huhne's (former and current), the case was historic and not very complicated.  It presented no significant challenges out of the ordinary for that type of case that I can see.  So, why did the CPS instruct a QC?  The answer is surely because, as the commercial bar readily admit, the reputation of the criminal bar around the world acts as a great driver for legal tourism to the UK, which is very big business with over-seas companies and oligarchs choosing to settle their differences in London's courts.  Grayling, Starmer, et al do not want the UK to look bad in front of the world's press.

Let's be clear.  The reason Grayling and co want to prevent defendants receiving representation from QC's is not because they want to save money.  I am informed that so far there have been a number of murders handled by junior counsel that have gone bad necessitating retrials with QC's instructed.  These cases cost more than double the price of simply instructing Silks from the start!  The reason Grayling and friends is pushing this nonsense is a) they want to look like they are cutting back on spending on criminals; and b) they no doubt hope that by using less experienced and less senior advocates they will get better conviction rates.  As usual it's a case of politicians trying to look like they are doing something rather than them actually doing it.