Category Archives: Civil Rights

Prison Mutiny

Three defendants were today sentenced at Winchester Crown Court to 3 years immediate custody, for taking part in a “prison mutiny” in June 2016 at HMP Erlestoke as reported here

A fourth defendant had been acquitted.

Numerous other prisoners who had participated in the disturbance had been dealt with administratively, or were charged with lesser offences.

This disturbance was one of a number of similar episodes in recent years, which many commentators have contributed to a hugely reduced prison budget, which has led to a shortage of experienced prison officers, and raised tensions for prisoners.

These recent disturbances have followed a long and predictable pattern.

The most infamous British prison riot in recent history was at Strangeways in April 1990 (One prisoner killed, and 147 prison officers and 47 prisoners injured. Much of the prison was damaged or destroyed with cost of repairs coming to £50 million)

The resulting Woolf Report found “Prisoners felt their complaints about conditions were being ignored. Remand prisoners were only allowed out of their cells for 18 hours per week, and Category A prisoners were locked in their cells for 22 hours a day, and rarely left their cells except for “slopping out“, a one-hour exercise period each day or a weekly shower”

Lord Woolf concluded that conditions in the prison had been intolerable, and recommended major reform of the prison system.

“Slopping out” has ended, but many of the other recommendations were never implemented, subsequently abandoned or now ignored. So much so, that 25 years later in 2015 Lord Woolfe warned that prisons are again at Crisis point (as reported here) and as evidenced in numerous Prison Inspectorate reports, and the annual Inspectorate report.

The IMB (Independent Monitoring Board) reports which visited Erlestoke gave an insight of the dire situation there before the disturbance. (Most recent report here)

(Erlestoke is a medium secure all-male prison with over 500 prisoners including violent offenders, sex offenders, and “lifers”. A number were “IPP” prisoners who had served longer than their sentence but with no indication as to when may be released.)

The IMB reports showed:-

-Drugs were rampant in the prison, particularly SPICE

-smuggling of tobacco

-smuggling and useage of mobile phones

-a culture of bullying

-property going “missing”

-high levels of self-harm

– a “self-inflicted death” (2015)

-high levels of mental-health issues, many unaddressed and/or untreated

-chronic staff shortages.

On the 11 June there were only 17 members of staff on duty.

As a result, there was a lock-down.

Despite what was said by the Prosecution at the outset of the trial, and then reported in local media, this was never about a “smoking ban” which had been introduced that year.

The trigger for the disturbances was the lamentable staff-shortages which caused the prison to have another unannounced lock-down, a decision that was communicated to prisoners by a note pushed under their cell doors, and communicated to staff with a note pinned to the notice-board wishing them “good luck”.

The consequences that flowed from the lock-down included:-

– being locked in cell all day, (in some cases shared cells with an open-toilet)

– no hot meals,

– no association,

– no showers

– and no calls to friends or family (one of the prisoners on trial had promised he would call his daughter. it was her birthday)

That was a systemic failure, and not the fault of the hard-working prison officers on duty.

If it does not excuse prisoner’s conduct, it does at least explain it.

Prisoners kicked off, and some broke through their doors, which were wooden.

Two ended up on the roof.

So far as the damage is concerned, it is hard to establish an accurate valuation as much of what was repaired was badly in need of repair or refurbishment anyway, including:-

-some of the showers and boilers that didn’t work,

-the huge backlog of maintenance which should have been but was not completed by Carillion,

-wooden doors on the cells which are usually seen in a prison museum rather than an operating prison.

The prison service conducted a review into the disturbance, and produced a report which they have not published and declined to provide to the Prosecution.

The two wings which were damaged are back in operation.

It will however take more than a lick of paint and new cell doors to repair what is broken in the prison system.

The real damage inflicted on the prison system is not broken windows and roof tiles, but the savage cuts to the prison budget by former Justice Secretary Chris Grayling, which has left prison buildings to decay, slashed numbers of prison officers, and cut back on education and rehabilitation for those locked up.

When people , whether prisoners serving their time or sailors at sea, are treated unfairly and subjected to intolerable conditions, it will (as Captain William Bligh discovered) lead to mutiny.

Prisoners convicted of prison mutiny pay a price for their participation in disorder, and those sentenced today will now serve an additional three years to their current sentences.

But as a society we all pay the price of Government failure to tackle the prison crisis that shames this Country.

As Winston Churchill once said: “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm and dispassionate recognition of the rights of convicted criminals against the state, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate, and an unfaltering faith that there is a treasure, if only you can find it in the heart of every person – these are the symbols which in the treatment of crime and criminals mark and measure the stored up strength of a nation, and are the sign and proof of the living virtue in it.”

Name, Number and Nationality

This blog has also been published by the JUSTICE GAP here

Excerpts were quoted in a Law Society Gazette article here: https://www.lawgazette.co.uk/law/defendant-nationality-declarations-offensive/5063715.article  (see also the lively comments thread)

A new requirement is in force (with effect from Monday 13th November) that requires every defendant appearing before a Criminal Court to confirm their nationality, or risk a prosecution and imprisonment.

The provisions are as follows:-
Section 162 of the Policing and Crime Act 2017 provides as follows:

162.         Requirement to give information in criminal proceedings
In the Courts Act 2003, after section 86 (alteration of place fixed for Crown Court trial) insert—

86A         Requirement to give information in criminal proceedings
(1)          A person who is a defendant in proceedings in a criminal court must provide his or her name, date of birth and nationality if required to do so at any stage of proceedings by the court.
(2)          Criminal Procedure Rules must specify the stages of proceedings at which requirements are to be imposed by virtue of subsection (1) (and may specify other stages of proceedings when such requirements may be imposed).
(3)           A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed by virtue of subsection (1), whether by providing false or incomplete information or by providing no information.
(4)            Information provided by a person in response to a requirement imposed by virtue of subsection (1) is not admissible in evidence in criminal proceedings against that person other than proceedings for an offence under this section.
(5)           A person guilty of an offence under subsection (3) is liable on summary conviction to either or both of the following—
(a)     imprisonment for a term not exceeding 51 weeks (or 6 months if the offence was committed before the commencement of section 281(5) of the Criminal Justice Act 2003), or
(b)     a fine.
(6)          The criminal court before which a person is required to provide his or her name, date of birth and nationality may deal with any suspected offence under subsection (3) at the same time as dealing with the offence for which the person was already before the court.
(7)          In this section a “criminal court” is, when dealing with any criminal cause or matter—
(a)     the Crown Court;
(b)     a magistrates’ court.”

The provision is offensive and objectionable, and introduced without justification or consultation. Why nationality? Why not require confirmation of ethnicity or of religion? Perhaps instead of requiring a question and answer routine, the Court could just write down the defendant’s skin colour.

It is presumed by some the legislation is to assist with the speedy deportation of “foreign” criminals. But how to monitor them once identified? Well lock them up obviously – something that is 9 times more likely to happen if the foreign national is non-white, as evidenced in the Lammy report.

But after that?  It is a only a short step from obtaining verification of nationality to requiring the foreign defendant to be tagged , a digital equivalent of being forced to display a star or triangle.

Enforcement

How are the provisions to be policed? If a defendant fails to answer, it presumably falls on the Prosecutor to lay a charge, yet the CPS have had no training or guidance in respect of this legislation.

How will the charge be proved? The prosecutor presumably cannot be a witness in their own case. Will the Judge be required to give evidence, or treat it as they would a contempt? (See para 6 above)  Is the defence Advocate professionally embarrassed in the substantive proceedings as well as the nationality offence?

There may well be a temptation for a foreign national appearing in Court to keep their head down and answer “British”, to avoid some unspecified future sanction.

But perversely, as a British born citizen ashamed of this legislation and outraged at it’s purpose, the temptation for me were I appearing as a defendant would be to refuse to answer out of sheer bloody-mindedness (“don’t tell em Pike!”) or to say something flippant (European? Independent republic of ISLINGTON?) That is probably the British in me coming out.

Answering questions in these circumstances (rather than sticking up two fingers)  would feel “un-British” – as alien as compulsory ID cards.

Absurdities

Is it permissible to answer “none” if the defendant is stateless, the refugee without a Nation home?

What of the defendant who answers one nationality, but is believed to be of another (the first limb of the s3 offence?) How is the “true” nationality to be proven?

Is there a defence if the defendant genuinely believes they have acquired British nationality and answers accordingly but in fact has a status still undetermined, or is it a strict liability offence?

What is the penalty for the prankster who answers “Vulcan” or “Jedi”?

Do they get a second chance, or like the drink-driver at the police station who doesn’t blow into the tube hard enough, is it a one-off opportunity?

Which nationalities are recognised? The 193 currently recognised by the UN, or a broader definition? There are said to be 270 nationalities (and 300 different languages) in London alone.

What of dependent territories, or those are on the verge of becoming sovereign nations? What of autonomous regions of different nations? Can a resident from Barcelona answer “Catalan”?

Are fat-cat tax avoiders to say “British”, or name their off-shore domiciled Nationality?

What of those with joint or dual nationality- do they get to choose?

How about somebody with mental health issues who is unfit to plead-are they also unfit to confirm Nationality?

What about a defendant who is silent throughout the proceedings? Mute by malice, or by visitation of God?

Conclusion

At this post-Brexit time of national discourse leading to discontent, with the issues of prejudice and discrimination in the criminal justice system to the fore after publication of David Lammy’s report, the timing of this rushed and  ill-judged legislation is unfortunate.

Book Review: Jeremy Hutchinson’s Case Histories

Title -Jeremy Hutchinson’s Case Histories
Author-Thomas Grant QC
Publisher – Hodder and Stoughton

An earlier version of this review was published in The London Advocate here

As the title suggests , this book summarises some of the many illustrious cases in which Jeremy Hutchinson appeared. It is not a conventional biography, and all the better for it.
Hutchinson was defence counsel of choice in some of the greatest trials in the 1960s and 1970s. His roll-call of cases includes defending both Christine Keeler and Howard Marks, as well as appearing for Penguin Books in the “Lady Chatterly” trial.
He was always well prepared, speaking fearlessly to Judges and clearly to juries.
What is clear is that as much as highly regarded, he was also greatly liked, by colleagues, solicitors and clients alike. He is one of those characters about whom it is hard to find anyone having a bad word to say, and his natural modesty meant he never put pen to paper to set out an auto-biography, despite several invitations to do so.
Thankfully, Thomas Grant QC, who met Hutchinson (now over 100) a few years ago has performed a valuable service in penning this book, telling (thematically rather than chronologically) the stories of some of the best cases from Hutchinson’s career.
Each fascinates, and even those that are already familiar pieces of social history are brought vividly to life. Hutchinson is the “golden thread” that binds together the battles played out in the Old Bailey- defending alleged spies and traitors, peace protesters, art thieves, and battling against reactionary forces- from heavy handed Government to Mary Whitehouse. This is a book that is informative but also a pleasure to read, and should appeal equally to a wide readership, not just (as is often the case in legal biographies) lawyers.
Grant makes the case that Hutchinson represents the finest traditions of the Independent Bar.
He certainly had the right background (son of an eminent QC and Judge, public school education followed by Oxbridge, and an opportunity to be a Judge’s Marshall with a “family friend”). He bought his first home with the proceeds of a Monet painting that he had been gifted. That’s not the start that all of us enjoy.
Hutchinson was nonetheless happy to take on the establishment if that what was justice required, and did so defending without fear or favour.
Hutchinson also had an extraordinary upbringing- the family being connected with the Bloomsbury set. For this reviewer, the introductory chapter that charts the connections with numerous well known luminaries of the era was the least satisfactory. Of more interest are the wonderful portraits in the case histories of some of the legal characters of the day-an array of cantankerous opponents and eccentric Judges.
Reading about the trials is a reminder how much has changed from what was a truly adversarial system to the case managed process of today. Here you will be reminded of the days of contested committals with live witnesses, defences not disclosed until the start of the case, the right to jury challenge, and the absolute right to silence without adverse comment.
In one case, Hutchinson introduces without prior notice a defence witness who would only identify himself as “Agent X”, who purportedly worked for the Mexican Secret Service and gave evidence that the defendant had also done so. No “Notice of Defence Witnesses” required!
The longest case that Hutchinson ever conducted was a multi-handed drug importation which lasted two months. Now similar cases can last much longer, due to the modern tendency to “read” or play long passages of intercept transcripts, and lengthy mobile telephone and cell-site material. But it is not just trial length that has increased- so have the length of sentences, leading to a phenomenal rise in the prison population. Heavy sentencing and overcrowded prisons are matters that Hutchinson deprecates, and in his retirement from the bar he has, amongst many other worthwhile endeavours, supported Penal Reform and campaigned for the abolition of the “dock”.
We need advocates of his calibre and courage just as much today, to challenge the power of the State with it’s increased surveillance powers, and discrimination and prejudice that still exists in the CJS as the Lammy report has revealed.
The book concluded with a postscript from Jeremy Hutchinson himself, then a sprightly almost Centurion. He explains how when called to the bar there was no formal advocacy training, and he learned his trade by countless appearances in the Magistrates Court. This will strike a chord with many solicitor HCAs who trained in the same way, yet are criticised by some at the bar for “lack of training”. He laments Government cuts to Legal Aid, and lambasts a recent incumbent of the office of Lord Chancellor- the odious Chris Grayling. Still forthright, his views remained cogent to the end.
This book is an affectionate tribute to one of the greats of Adversarial Advocacy. Mr Grant clearly grew to like Jeremy Hutchinson very much. After reading this book so will you.

B4280BA7-7348-4909-862F-7AD32A184A8A

Lammy Review-We lawyers must NOT be silent

Colour-blind justice? – the long-awaited review by David Lammy MP on race and the criminal justice system released in September 2017 concluded that the system discriminates against black, Asian and minority ethnic people.

We already knew that. The disproportionality in outcome between different ethnic groups in the Criminal Justice system been known of and remarked on for as long as I can remember. Nothing meaningful has been done.

Young black people are nine times more likely to be locked up in England and Wales than their white peers, The report delivers some recommendations on how to fix this, some better than others. (See this Summary in the Law Soc Gazette)

The report also noted  that because black defendants distrust the system, they tend to plead not guilty in court – disqualifying themselves from the reduced sentences that can come with an early guilty plea. Lammy calls for deferred prosecutions where suspects can have charges dropped by completing rehabilitation; basing criminal responsibility on a suspect’s maturity rather than age; and wiping the slate clean earlier for young offenders who rehabilitate, so they can get on with finding employment. Lammy, writing in the Guardian, calls for urgent action to implement his recommendations which require political support and legislative action.

But what can lawyers do within the system to combat the ongoing systemic imbalance? The discrimination which underlies these stark statistics is institutionalised, but covert, and as it is never openly expressed remains unchallenged.
We all know what the problem is, but what  are we going to do about it?

Usually, the answer do the question “what can we do?” is “nothing”.
We need new answers.

There is already a “trust deficit”. To win back trust, we need to deserve that trust. #WeMustNotStaySilent

We have to talk about Discrimination. Prejudice. Racism.

We have to challenge why some parts of our profession have race inequality https://www.thetimesbrief.co.uk/users/39175-the-brief-team/posts/28590-white-students-dominate-bar-pupillage-intake

We have to challenge the Police about their charging decisions.

We need to raise the issue of sentencing disparity in Court. The  Magistrates need to hear it, and our clients need to hear it.

We have become complicit in an unfair Justice system.

To stay silent is no longer good enough.

There was an event for Lawyers to discuss his report on 2 October 2017 at Kings College which David Lammy attended and I chaired. (Panel: Sir Anthony Hooper, DPP Policy Advisor Sara Carnegie, Sandra Paul of KN, Courtney Griffiths QC of 25 Bedford Row and Judy Khan QC of Garden Court)

IMG_0842

A review of the event is here or you can watch a video of  whole thing here

The Lammy Review equips us with the evidence and the stats to challenge injustice, particularly prevalent in the Youth Court.

When appearing in the Youth or Magistrates Court representing a young black defendant, dare we say to the bench in our closing submissions “my client is worried that statistically he is more likely to be convicted, and when convicted sentenced higher, than his white contemporary”? 

Traditionally we would not raise that directly, for fear that we may be thought to be accusing the bench of bias. It is time to stop being afraid. if we don’t call it out, if we ignore the problem, we are part of the problem.

Lord Chancellor Liz Truss-a Review of her Term of Office

On 14th July 2016 incoming Prime Minister Theresa May  appointed Liz Truss as the new Secretary of State for Justice (also known as Lord Chancellor).

She lasted less than a year, being demoted by May on 11th June in the re-shuffle that followed the “mandate” election.

Truss took over from Michael Gove,  sacked for his disloyalty and failed leadership bid rather than his performance in post (Gove had replaced the hopeless and reviled Chris Grayling, widely believed to have been the worst Lord Chancellor in living memory)

Truss was the third consecutive non-lawyer to be appointed to the post. Did  that matter? Read the Secret Barrister blog.

This blog reviews Truss’  time in office.

Background-Pre-Justice Secretary

Truss was previously at DEFRA, and perhaps best known for her widely ridiculed Conservative Party conference speech about French cheese and British Pork (footage enjoyed on this clip from Have I Got News For You )  This was followed another much ridiculed Conference speech (October 2015) when she called for a return to “giving animals their proper names”

She co-authored a book (“Brittania unchained“) which accused British workers of laziness :”The British are among the worst idlers in the world. We work among the lowest hours, we retire early and our productivity is poor. Whereas Indian children aspire to be doctors or businessmen, the British are more interested in football and pop music.”

Critics who have attempted to engage with her, (according to George Monbiot in The Guardian) have said she is “indissolubly wedded to a set of theories about how the world should be, that are impervious to argument, facts or experience.”

Background

Born: 26 July 1975, in Paisley, Renfrewshire
Constituency: MP for South West Norfolk since 2010
University: read PPE at Merton
Before politics: 10 years as a management accountant, economics director at Cable & Wireless; deputy director of Reform (education think tank)

Truss and Criminal Justice (pre-appointment)

Truss was a member of the Justice Select Committee between March 2011 and November 2012, but apparently only ever spoke about justice issues three times in parliament,one of which was to strongly support cutting the legal aid budget.

On Home Affairs she consistently voted for a stricter asylum system and stronger enforcement of immigration rules; for the introduction of Police & Crime Commissioners, and for requiring the mass retention of information about communications.  She spoke several times during the committee stages of LASPO (transcripts here)

Comments and initial reaction on her Appointment 

There was initially mixed disappointment and scepticism from legal aid lawyers, largely due to Truss’ record of continuously voting for Legal Aid cuts.  Her priority should have been to sort out and protect Legal Aid, said the All-Party Parliamentary Group on Legal Aid, as reported here in the Solicitors Journal. Concerns were also raised about her views on prisons (eg here in the Justice Gap, July 2016)

Lord Faulks,  justice minister under her two predecessors, resigned his post because he felt that the inexperience of Truss  could  put at risk the standing of the judiciary and courts.  Anna Soubry QC turned down post of No. 2 to Truss (according to this piece in Legal Cheek)

Much of the commentary focussed on Truss’ gender, and her being supposedly the first female Lord Chancellor, but critics of Truss denied misogyny ( eg Lord Falconer here in the Guardian)

Lord Pannick pointed out that contrary to some reports she is not the first female Lord Chancellor – that was Eleanor of Provence, who filled in for her husband Henry III in 1253.  He added that at the time “there was probably a 13th-Century Lord Falconer complaining Eleanor hadn’t been trained as a lawyer”.  

The CLSA released a statement welcoming her appointment.

Peter Oborne writing for the Mail on Sunday had this observation:-

I greatly enjoyed seeing Ms Liz Truss, the new Lord Chancellor, in her majestic Tudor-style robes of office, redolent of old England, tradition and deference.

It is amusing to recall Ms Truss’s radical anti-Monarchy speech to the Liberal Democrat conference in 1994 (she was once on the national executive committee of that party’s youth and student wing) when she proclaimed: ‘We do not believe people are born to rule.’ Her target was the Queen. 

She found out soon afterwards that Oxford graduates in Philosophy, Politics and Economics, such as herself, are indeed born to rule, and it doesn’t much matter which party they are in.  I’m sure she’ll enjoy the many conversations with Her Majesty she’ll now have, thanks to her new high office”

First days in post

The Annual HM Inspector Of Prisons report was published (19 July) and once again showed a prison service in crisis- violent, over-crowded and full of drugs with few opportunities of rehabilitation. Truss response below:-



On 21st July Truss got to dress up in black and gold robes, and was sworn-in as Lord Chancellor. The ceremony can be viewed on this YouTube clip.

 

 

First Three  Months

After a long  pause to master the brief, Truss gave her first interviews and indicated she was planning to introduce a Bill of Rights. No such bill was introduced.  It was initially unclear whether we would be keeping or scrapping the Human Rights Act.

Truss also indicated the Government would not be proceeding with “Problem Solving Courts” (previously announced by Gove) although it was later clarified she actually meant they were still considering them, and a week later confirmed the Government were in fact proceeding with them.

After a Summer break, Truss attended a meeting of the Justice select Committee, (07 September) where to the astonishment of all those attending or following, she could not confirm any planned legislation, merely saying everything was under review (Guardian report here ) Private Eye was also unimpressed:

image

On 03 October Truss was all trussed up again in robes, together with a “train bearer”,  to attend her first “Opening of the Legal Year” service. Her speech here.

On 04 October Truss gave her first Conference speech as Lord Chancellor. It was a more assured performance than the infamous “cheese speech” (see above) but failed to mention Legal Aid or Access to Justice. She spoke of prison reform, announcing £14 million additional investment (although it turned out this was funding already announced by Gove). She did not acknowledge the then topical high suicide rate in prisons, but promised that “ex-soldiers” would be recruited as prison officers.  The rest of the speech was a series of platitudes. In. Very. Short. Sentences. Text  here.  Quentin Letts’ summary “How could so jellyfish and unformed a political personality have been made lord chancellor? I have known ping-pong  bats less wooden, CBeebies presenters more statesmanlike.”

November-Failure to Defend the Judiciary

On 03 November, the High Court ruled in the case of Miller that Brexit via article 50 should require a vote in Parliament. In an outpouring of outrage in the tabloids there was open hostility to the judges who were described on one front page as “enemies of the people” The LC, whose oath of office is to uphold and defend the Independence of the Judiciary, would be expected to speak up in defence of the rule of law. Instead, for a long period, silence. #WheresLizTruss?  was trending on twitter. Read more here. Then, belatedly a half-hearted statement as reported here.  Criticism continued to grow, with an attack by some Tory MPs, as well as lawyers (see this summary as reported in the Guardian)

Truss later managed a half-apology, but the criticism never really died away and (in March 2017) the Lord Chief Justice piled in  here.

Prisons Crisis

The effects of the drastic cuts implemented by Grayling led to a crisis which continued to escalate during Truss’ term of  office. There was an escalation of assaults on prison staff, suicide and self-harm of prisoners,  a “strike” by officers, violence, drugs, escapes and riots. How did Truss cope? Poorly is the general consensus – see eg here

PI Reform

Truss achieved better headlines for her “crack-down” on whiplash claims. But these “reforms” , badged as reducing insurance premiums supposedly over-inflated by dodgy claims and the “compensation culture” will in fact not help consumers, but harm those suffering genuine injury, and offer a bumper pay-out for insurance companies. See this article for the detail.

Six months In 

In December Truss appeared in the Commons to announce that “barking dogs” would tackle the problem of drones being used to courier drug deliveries. Seriously. Read this article and play the clip where Truss announces this (to laughter). Could they? See the Guardian Pass Notes

Happy Christmas!

Liz Truss extended a special message to hedgehogs. Happy Christmas hedgehogs!

2017

February–slammed by lawyers following another “car-crash” TV Interview

First bill  (23 February 2017) – the Prisons and Courts Bill (2017)  covering four main areas:-

1 Prison safety and reform –  described as a “new framework and clear system of accountability for prisons”  It will “enshrine into law ” that a key purpose of prison is to reform and rehabilitate
2 Court reform: -another commitment to victims and the most vulnerable, as well as improving the system by digitisation. (But see here for critical commentary)
3 The judiciary – a better working environment for judges,  modern court facilities + better IT
4 Whiplash compensation – new fixed tariffs capping whiplash compensation pay-outs

The bill has not yet been enacted.

April By April, Truss appeared out of her depth, and reports indicated she does not have the confidence of the Judiciary OR cabinet colleagues.

See this  summary of her tenure, by Frances Crook (Howard League) . Meanwhile, with the election called, pundits predicted she would not last a full year -see eg this Legal Cheek piece by Joshua Rosenberg They were right.

May-June and the General Election Truss was largely absent for most of the General election campaign. But she did visit Wibsey! 

Goodbye Truss, hello David Lidington 

So Truss has left the full cabinet by being demoted to first secretary to the treasury, replaced by David Lidington. Lidington is the 3rd new lord chancellor in little more than two years. It used to be a job that the recipient would fulfil for a decade. He is also the fourth consecutive non-lawyer to have held the post. Read more about Lidington here.

Conclusion

If Truss had showed even half the enthusiasm for justice that she has for cheese, she could have really made her mark in an area crying out for reform. As it is, Truss lasted just 11 months in the job, the shortest tenure since the post was created, and has now been demoted.

Truss was not the worst Lord Chancellor in recent time (Grayling set a high standard  for that) but she fell far short of what was required. She never appeared to be on top of her brief, abjectly failed to tackle the prison crisis, failed to stand up for the Judiciary, and does not appear to have a solitary positive achievement she can point to from her term of office.

Speech at CLFS Conference, May 13 2016

Intro



I am now all that stands between you and the Friday evening drink, and all that stands between you and the weekend. I therefore hope to be brief.

Although probably not as much as you hope that I will be brief.

I have been asked to speak on the topic of “the victory”, or the “win” by which I think is meant the climb-down earlier this year by the MOJ in respect of two tier contracting.
I have to say that this was very much a Pyrrhic victory, and although there was much relief, there was only muted celebration.

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

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

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

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

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

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

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

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

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

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

So unsuccessful firms took legal action against the MOJ….

Take the example of EFBW:-

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

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

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

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

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

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

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

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

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

WE COULD HAVE TOLD THEM THAT!

(WE DID TELL THEM THAT!!)



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

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

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

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

big firms and small, private and legal aid, 

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

History of Campaign



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

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

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

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

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

We lost.

And it was expensive.

We campaigned and fundraised.

Many of you contributed – thank you.

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

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

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

For example:-

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

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

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

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

We had No Returns.

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

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

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

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

To be perfectly blunt, he was a bit of a

difficult man to engage with.

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

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

The New Legal Aid Landscape



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

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

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

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

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

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

At least until the next row! 

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

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

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

United we stand, divided we fall.
Current Campaigns



There is always some horror lurking around the corner.

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

If not before.
BCM/ DCS/ PTPH/CJSM 


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

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

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

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

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

Gove didn’t just abandon two-tier tendering.

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

-the ban on prisoners receiving books from their families 

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

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

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

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

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


We are still waiting.

But perhaps no news is good news.

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

 We cannot take any more.

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

We all play our parts- barristers and solicitors.

Brothers and sisters in arms.

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

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

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

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

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

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

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

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

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

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

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

Cheers!

Greg Foxsmith

President, LCCSA

Chris Grayling- the worst Lord Chancellor in history

Who is Chris Grayling?

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

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

Introduction and Overview

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

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

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

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

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

EXPENSES (pre-appointment)

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

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

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

Grayling and cuts to criminal legal aid

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

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

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

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

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

Grayling and cuts to other areas of legal aid

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

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

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

PRISONS CRISIS

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

The Independent reports on Grayling callous indifference to rising suicide rate

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

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

Grayling makes Chief Prison Inspector reapply for his job.

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

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

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

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

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

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

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

Picture: demo against book ban outside Pentonville prison:


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

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

Grayling and Human Rights

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

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

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

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

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

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

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

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

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

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

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

More here on why principled lawyers would not attend.

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

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

Grayling and the Probation Service

Grayling was accused of no less than murdering the probation service

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

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

Grayling and Judicial Review

JR bill falls apart after grayling admits misleading Commons

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

Grayling in his own words

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

Grayling as Lord Chancellor

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

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

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

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

Musical Grayling

Check out the chris Grayling playlist

Freedom of Information

Naturally Grayling is not a fan (source:Guido)

Lord Chancellor Grayling In Retrospect

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

Unfavourable comparison with his successor here in the Spectator.

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

Grayling Brexit

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

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

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

Post MOJ: Grayling as Leader of the House

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

From Jail to Rail: Grayling as Transport Secretary

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

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

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

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

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

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

In October 2017 Grayling attending the launch of the new hybrid train between Bristol and London. A service that not only arrived into Paddington 45 minutes late after the train broke down while switching from diesel to electricity, but whose air conditioning had failed, drenching dozens of passengers with water.

As for Brexit, he says that everything will be fine because “British farmers will grow more”, a comment so facile it is beautifully eviscerated in this must-read demolition of Grayling’s ignorance  which describes him as “the wilfully ignorant, insouciantly callous former Justice Secretary who took a sledgehammer to the legal aid and prison systems” (independent)

He also appeared before the Transport Select Committee, in a shambolic performance that was beautifully captured in this sketch  (worth reading in full- concludes with “while there was a refreshing honesty to his incompetence, there really didn’t seem to be any part of his brief that Grayling fully grasped. He was dangerously deluded about what had gone on on his watch and complacent about the here and now”

Grayling’s short tenure as Conservative party chair

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

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

More transport shambles

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

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

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

The Times has this to say

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

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

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

Introduction

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

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

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

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

Joint Enterprise Law- a pre-Jogee history

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

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

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

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

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

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

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

The Jogee Judgment

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

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

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

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

Blog by Greg Stewart of GT Stewart, February 2016   

  
Editor’s Notes

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

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

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

Prison Books: Helping to Turn over a New leaf

The decision earlier this year by Justice Secretary Michael Gove to lift the ban on family and friends sending books to prisoners was welcome

Anybody who describes prison as a “holiday camp” has either never been to prison, or never been on holiday- the reality of contemporary incarceration is boredom from enforced idleness, interspersed with occasional violence (assaults are rife) but little support for rehabilitation programmes or tackling prevalent issues of mental health. Cuts to staffing levels have overlapped with a rapidly rising prison population. Recent reports by the Prison Inspectorate have been damming.

Books do not in themselves provide a panacea, but they are a good start. They provide education, help literacy and personal development, and broaden the mind.

The book ban introduced by Gove’s predecessor Chris Grayling was a vindictive, unjustified act.

The purpose of prison is punishment and rehabilitation- the first is implicit in the removal of liberty by being locked up, the second currently not achieved by draconian policies that fail to tackle the root causes of offending behaviour. In Nelson Mandela’s moving autobiography “Long Walk to Freedom”, he writes of the value and importance of books to him through his long period of imprisonment. Everyone but Grayling could see the value of books within prison.

In March last year I joined a demonstration against the book ban outside Pentonville prison organised by the Howard League for Penal Reform, and supported by authors including the Poet Laureate. See a short video clip here.

The reversal came initially as a result of a successful Judicial Review brought by solicitor Samuel Genen and counsel (all acting pro-bono) -read more about that here. The High Court ruled the policy was unlawful. Gove then confirmed in July the complete relaxation of the unfair and arbitrary rules Grayling introduced. That is a victory- unlawful policies do not always lead to policy reversal -look at the vexed issue of prisoner voting.

Now we no longer have a book ban, and we now longer have Grayling despoiling the office of Lord Chancellor. So what of his successor?

Gove has said that “the most useful thing we can do is make sure prisoners are usefully employed, and improve literacy, numeracy and work skills”. Will he act or are these just “words”?

I would suggest the most useful thing Gove could do would be to reduce the prison population by crime prevention and successful rehabilitation, and reducing the numbers imprisoned for pointless short sentences for non-violent crime.  This in turn would save money, which could be redeployed to properly fund the Justice system. Government cuts to Legal aid have put our Justice system at risk. The spending cuts were ideological, deferring costs elsewhere in the system.

Grayling was a wrecker, who for what he hoped would gain him short term popularity damaged both the Criminal Justice system and an effective penal system.

Gove has a long way to go to fix these problems, but reversing the book ban was a good start.

Published on International Literacy Day, 08 september 2015

An earlier version of this article was published here in the Islington Tribune in July this year

Modern Slavery Act – a synopsis (Guest Blog by Ben Ticehurst)

The following is a guest blog by solicitor Ben Ticehurst of  E.M.M. Solicitors  


The Modern Slavery Act 2015

 

The Modern Slavery Bill received Royal Assent on the 26th March 2015. Following the announcement of Royal Assent, Unicef Director David Bull said:

The passing of the Modern Slavery Bill into law is an historic moment in the fight against modern slavery and human trafficking. Unicef UK is proud that the UK has committed to stamping out these horrific crimes and, in particular, to protecting vulnerable children.

http://blogs.unicef.org.uk/2015/03/26/modern-slavery-bill-becomes-law-unicef-uk-statement/

Why the need for new legislation?

The Global Slavery Index 2014 reported that over 35 million people are trapped in slavery across the world today. Modern slavery takes multiple forms including forced labour and human trafficking, and is found across the economic sphere in domestic servitude, the sex trade, on farms, building sites and in factories. Many are working in terrible conditions for extremely long hours, for little or no pay, and are vulnerable to verbal and physical abuse. 

http://www.globalslaveryindex.org/

The National Crime Agency suggests that the number of victims of trafficking in the UK rose by 22 per cent from 2012 to 2013 and these numbers are continually on the rise globally as well.

http://www.nationalcrimeagency.gov.uk/news/news-listings/452-nca-human-trafficking-report-reveals-22-rise-in-potential-victims

In the UK, around 60% of children rescued from trafficking have gone missing from social services. Those working as foreign domestic workers on a tied visa (about 15,000 each year), meaning that they are tied to one employer for the duration of their stay, are unable to leave their houses unaccompanied or find alternative jobs to escape abusive employers without becoming criminalised. 

Until now, there were three pieces of legislation on slavery and trafficking that are scattered, impractical and therefore difficult to use. As a result, there were only 8 convictions of human trafficking in the UK in 2011. There have been calls for the law was to be on the side of victims of slavery and trafficking and so the new Modern Slavery Bill, has been hugely welcomed as it is pivotal to ensuring victims of abuse are found, cared for and receive justice for crimes committed against them.

A Home Office spokesperson recently said the bill was 

“an historic opportunity to get legislation on the statute books that will , for the very first time, address slavery and trafficking in the 21st Century”

Summary of the Act

http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0098/15098.pdf

The Modern Slavery Act brings together current offences of trafficking and slavery, introduces tougher sentences (up to a maximum of life imprisonment) for traffickers, and creates an independent anti-slavery commissioner, likely to be a former police officer. It contains provisions for seizing traffickers’ assets and allows for confiscation proceedings (section 7) under the Proceeds of Crime act 2002 (POCA 2002). It also allows for the channelling of traffickers money towards victims, by way of compensation payments (section 9).

It is hoped the Act will provide greater protection for victims and improve the prospects for prosecuting perpetrators

The Act includes provision to defend those that have been forced to commit crimes as victims of slavery or exploitation (section 45). This includes a defence for child victims against prosecution for crimes committed directly as a consequence of their trafficking.

The provisions to protect children are continued in that Section 48 creates ‘Child Trafficking Advocates’ who will support and represent any child that has been the victim of human trafficking. The Act also sets out a ‘presumption about age’ (section 51) which means that where is it unclear as to the age of the victim and they could be under 18 years of age then they will be treated as under 18 until it is know otherwise.

The Act will also make a development in relation to corporate responsibility and accountability in an attempt to improve transparency in supply chains (section 54). This will require companies to make a statement detailing the steps they have taken to ensure that slavery and human trafficking is not taking place within the company or supply chains, or that no such actions have been taken. This step follows the USA, Brazil and Australia who have already made efforts to address modern slavery in supply chains.

Observations

There have ben some criticisms of the Bill in that it concentrates on enforcement and prosecution of traffickers as opposed to focusing more on victim protection.

Former conservative MP Anthony Steen has said: 

“the prime minister said he wants to drive slavery out of Britain; I am convinced he is committed to doing something about it, but you are not going to catch traffickers unless you have evidence, and you are not going to have any evidence unless you support the victims. The reason why we have so few convictions in Britain is that police scare the living daylights out of victims.”

Barrister Parosha Chandran has commented that the section of the bill that deals with transparency in supply chains does not extend to wholly owned subsidiaries of UK companies abroad. 

She has stated that 

“…the modern slavery bill represents a huge step forward in the development of corporate accountability. Yet we will never really begin to tackle modern slavery unless we ensure that the supply chains of all our companies, whether doing business in the UK or overseas, are not tainted by trafficking, exploitation or abuse.

http://www.theguardian.com/global-development/2015/mar/24/loophole-modern-slavery-bill-transparency-supply-chain-abuses

Andrew Wallis, chief executive of Unseen, a charity that works with the survivors of trafficking and modern slavery, was more inclined to be positive. 

Whilst no legislation is ever perfect it must now be matched by a concerted and collaborative effort to put the provisions of this law into full effect”.

“Many have contributed to the process of drafting this legislation and we have arrived at an

Act that the UK can and should be proud of. There is and always will be more to be done

but it was crucial that this legislation reached the statute books before this parliament ended

so that we have a good foundation upon which to build.”

http://www.unseenuk.org/uploads/20150326125647668.pdf