Category Archives: Law

Jury: Murder Trial- what verdict on our jury system?

The programme “The Jury: Murder Trial” (https://www.screendog.co.uk/retrial) being broadcast on Channel 4 this week should be fascinating viewing. In the words of the programme makers this drama “will examine the jury system for the first time on British television by recreating an entire, real murder trial from the original transcripts in front of two randomly selected juries, neither of whom are aware of the other” Filmed over ten days, in a former courthouse in Essex, the series claims that it will take a forensic look at the inner workings of justice.

I hope the programme makers show enough for us- the TV jury if you like – to glean a glimmer of insight as to how juries deliberate and reach their verdicts. Currently, research into juries or at least how they reach their verdicts remains generally taboo (see eg s8 Contempt of Court Act, whereby it is an offence for a person to ask for or make public any opinions or arguments put forward by a jury member in the course of making a decision)

Channel 4 have tried a similar programme before- in 2007 I was one of the legal advisers (and with a cameo role as the solicitor advising at the police station) to “Consent” (Century Films) which filmed a randomly selected jury deliberating on a rape trial, using real lawyers (although victim and accused were both actors) The Guardian review of the programme concluded “all credit to Channel 4 for airing the issue, which needs a lot more informed public debate, in such a perceptive way”. (https://www.theguardian.com/culture/tvandradioblog/2007/jan/23/didheordidnthe)

Regrettably that was followed soon after by a heavily criticised and lamentable BBC attempt to do the same exercise with a “celebrity jury”. The less said about that, the better.

The new programme by ScreenDog productions to air on Channel 4 promises an improvement on both in two significant ways. Firstly it uses actual transcripts from a real case, and secondly has the idea of filming two juries both watching the same trial, each jury unaware of the presence of the other. We the viewer can watch the two juries deliberate-will they be persuaded by the same points of evidence, and, of course, will they reach the same verdict?

This, if the programme is done sensibly and without sensationalism, should genuinely better inform us as to how juries work, but in all likelihood, the programme maker’s claims are unlikely to stand up to scrutiny.

Potential problems?

Firstly, it seems likely that those on the juries have “applied” to participate, rather than picked by random selection, and in any event the programme makers would be likely to favour “characters” to add some spice to the deliberations.

Furthermore ,the presence of TV cameras means people are more likely to “perform”, or at least be mindful not to display their prejudices which might otherwise come out in the confines of the jury room.

Finally, the juries will be aware that the person in the dock is an actor- and not in real jeopardy of conviction and an actual sentence.

Even allowing for the obvious flaws, and even if they abandon reality for contrived drama (Love Island in a jury room) it my not be wholly without merit.

Every criminal lawyer has wanted to be a fly on a wall in a jury room, and unless called for jury service, this, sadly, is as good as it gets.

So whilst it is unlikely we will gain real insight into the workings of our jury system, if nothing else it should start a debate, and hopefully lead to some proper meticulous research into jury trial, to see whether still fit for purpose or in need of improvement.

Jury Service

Some citizens of course already have the benefit of first hand experience (I have yet to be selected) and although years ago we lost the right to “jury challenge”, there is still an element of self-selection as some will try to get out of their civic duty citing any number of reasons, but principally employment, as satirised in this apocryphal anecdote:

Judge: “Is there any reason you could not serve as a juror in this case?”

Juror: “I don’t want to be away from my job that long.”

Judge: “Can’t they do without you at work?”

Juror: “Yes, but I don’t want them to know it.”

Jury stories

A citizen without experience in the justice system and yet to be called up as a juror may rely on published literature (I strongly recommend “the Juryman’s tale” by magistrate, journalist and former editor of the Sunday Telegraph Trevor Grove), reading occasional commentary pieces. or perhaps by having watched a hazy mix of film dramatisations such as “12 Angry Men”.

Here is Lord Devlin’s famous and often cited robust defence of jury trial:

The first object of any tyrant in Whitehall would be to make parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of 12 of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives …

Of course that is true only if we have confidence that the 12 of of our Countrymen selected are suitably well equipped to make an informed assessment of the evidence and reach the right verdict in accordance with the law. Maybe we should shine a light onto Lord Devlin’s lamp.

Sometimes we are shaken:

In a late 18th-century case in York, about two hours into the trial, Mr Justice Gould suddenly interrupted counsel and declared: “Here are only eleven jurymen in the box. Where is the twelfth?”

“Please you, my lord,” replied one of the eleven, “he has gone away about some business but he has left his verdict with me.”

Sometimes we are stirred:

A man is on trial for murdering his wife, although a body has not been found.

His lawyer says there is not enough evidence. “The ex-wife is not even dead, I am going to prove it to you, she is going to walk through the door in about one minute.”

Almost all eyes are focused on the door. A minute passes. Another minute passes. And another.The prosecution says: “she didn’t walk in.”

Defence say “But the fact that you were all staring at the door expectantly proves that there is reasonable doubt.”The jury deliberates. The defendant is found guilty.

“How can you send a man to prison on such flimsy evidence?” The lawyer asks?

One juror says: “In the three minutes that passed, I looked through the courtroom, and I saw that the defendant was the only person who didn’t look at the door even once.”

There is a treasure trove of great jury stories and anecdotes that supporters (and detractors) of the system can deploy – but sometimes, like the statue of justice, we are blindfolded to it’s faults

Juries are nor perfect

The obvious reality is that the jury system is (as with any system of justice) it is imperfect. If the jury system were perfect, we would not have miscarriages of justice.

Of course many miscarriages are not the fault of the jury- they can arise from perjury, police bias, inadequate disclosure, and many more of the failings in our Justice system (increasingly arising from whole scale underfunding by consecutive governments), but as mark Twain once observed there is “probably no remedy for a jury that lacks common sense”

A good system of Justice is one that recognises juries do not always get it right, and looks how best to correct errors with a robust and fair appeal system, whilst also maintaining confidence by allowing an examination of the issues. Because a jury does not give reasons for their verdicts, it affects the way in which an accused person can appeal against their conviction, typically focussing on the adequacy and fairness of the judge’s directions to the jury if challenged, rather than whether the jury understood or followed them.

Limited Jury Research

In 2010 the Ministry of Justice published a report by Professor Cheryl Thomas of University College, London, after 18 months of research in which more than 1000 jurors in England were interviewed anonymously.

The results of the research were generally positive for the jury system but also confirmed areas where our practice could be improved.

The report also concluded that juries were efficient, but there were three areas in which the report identified scope for improved performance. They were:

(i) making sure that the jury fully understood the judge’s legal directions,

(ii) providing the jury with clear guidance of what to do if a member of the jury appeared to be guilty of misconduct and

(iii) preventing jurors from researching for facts relating to their case on the internet.

While there is always room for improvement, public attitude surveys have shown continuing strong support for the jury system, trust that a jury would come to the right decision, and a belief that a criminal trial by jury is fairer than such a trial by a judge. Whether or not that belief is correct, the jury system involves citizens in the process of criminal justice. The facts of the case are decided upon not by the administration or professional judges but by a group of randomly selected citizens.

I generally share the public’s confidence that juries usually reach the correct decision on the evidence which they have heard in criminal trials.

But I don’t think we should be complacent.

I hope this programme doesn’t prove me wrong.

Verdict?

I look forward to giving my own verdict after the programme has finished- and hearing other views too. Majority support (10/12) following the programme would be great- but if the jurors filmed show bias, ignorance or naivety leaving the viewer with negative views (or even mixed opinions – a “hung jury”) it could be increasingly awkward for defenders of the flame.

BOOK REVIEW: Charged -how the police try to suppress protest (Foot/Livingstone)

Title: CHARGED – how the police try to suppress protest

Authors: Matt foot and Morag Livingstone

Publisher: Verso

Oppressive States, whether totalitarian or democratic, often resort to oppressive means and draconian laws to stifle dissent and outlaw protest. Draconian laws need police to enforce them, and to suppress those engaged even in peaceful protest.

Historically it is not difficult to find examples of regimes cracking down on protest by deploying police, militia or even the army to arrest, charge and imprison, and we can also see contemporary examples today in Hong Kong, China, or Putin’s Russia.

All of these recent examples have been criticised (and rightly so) by the U.K. government.

And yet at the same time, this Government has been enacting it’s own latest set of illiberal measures to deter protest by criminalising those that participate via The Police Crime Sentencing and Courts Bill 2021.

This Act contains a number of core proposals that “pose a significant threat to the UK’s adherence to its domestic and international human rights obligations, while also lacking an evidential basis to justify their introduction” (Justice, https://justice.org.uk/police-crime-sentencing-and-courts-bill/ ) and has attracted serious criticism from Liberty and Amnesty amongst others.

The Bill is only the latest in a perpetual and evolving battle between Government authority, and those who wish to exercise what even this Government purports to recognise as the “democratic right to protest”.

The Government makes laws- those are political decisions.

The Courts interpret the laws- those are judicial decisions.

And the police enforce the law. But is the policing of protest an operational or policing decision, or itself political?

Superficially it seems that sometimes the police can’t win-at least so far as the tabloid media and some MPs are concerned.Within a short space of time the Met police were being criticised for being too “hands-off” in policing XR or Black Lives Matter protests, and then too “heavy-handed” at the Sarah Everard protest.

But anyone who has been fooled into thinking that the Police are just helpless pawns doing their best in impossible circumstances, needs to take a read of ”Charged” by Foot/Livingstone, a well researched, impressive and above all readable account of the relationship between the police and those that they police.

As the full title suggests , this book does not hold it’s punches in setting out and taking to task the role that the police have carved for themselves in actively suppressing protest. Much of this has been done in secret, and therefore without political accountability as the book’s introduction makes clear, highlighting the secret deals conducted by the Home Office and ACPO. The authors have examined recently de-classified documents that catalogue the deliberate, planned but secret shift in policing tactics in the early 80s, and in stark hypocritical contrast to the recommendations of Lord Scarman’s report for better Community policing. It was also an extension of the secretive and equally unaccountable surveillance techniques, some of the implications of which are only now coming to light in the Undercover Policing Inquiry (aka the “spy cops scandal”)

The book is divided into 4 parts, dealing sequentially with the Thatcher era (industrial unrest and the “poll-tax riot”) , the 1990s, the “New Labour (tough on crime!)” years and a shorter final section (“Austerity Justice”)

These are book-ended by a foreword by Michael Mansfield QC (“the real agenda….is to ensure that any effective public expression is circumscribed…” and the concluding chapter (‘State of Play”)

I have attended protests as a legal observer, as well as acting for those who have been accused of offences arising from participation in public protest, and I know this book will appeal to those with similar experiences because this book shows there is much to learn even for seasoned protest veterans.

Equally, I recognise that there are those who have never been on a “demo”, and whose views may be formed either from having experienced some inconvenience from a protest, or what they have read or seen on media reports. Such media coverage is heavily influenced by police accounts, and often wholly inaccurately (many examples of which are cited here, particularly e.g. the misreporting of police officers assaulting striking miners at Orgreave, 1984). This book therfore is an invaluable corrective to such misconceptions, and should appeal to social historians as much as lawyers or criminologists.

The concluding chapter effectively summarises the last 40 years of policing protest, where we are now, and gives a nod to the future (“ the long history of protest confirms that dissent always returns despite efforts of the State to suppress it’)

Are they right? Or will over-zealous policing make it impossible to demonstrate or protest without frisking getting ”charged“ , criminalised and sanctioned.

Let’s see what the authors have to say in the follow-up book (which I warmly anticipate) in 10 years or so. I applaud the writers for presenting a detailed account of where we are now and why in a way that makes this book a pleasure to read, and recommend it to lawyers and non-lawyers alike.

LCCSA: Do-gooders united!

This is an edited version of the guest speech given by Matt Foot at the LCCSA AGM 14/11/21

**Do-gooders of the world unite!** **Guest blog by Matt Foot**

I am very honoured to be invited to speak at the annual meeting of the British Virgin Islands Lawyers. And thank you for the £700k. Oh Sorry -wrong speech!

I am sorry to raise this after you have just eaten but we need to talk about Priti Patel….

Last year she reached the nadir in front of her Party conference when she attacked the ‘do-gooder lefty lawyers’ trying to defend migrants. Patel said the legal aid ‘activist lawyers’ were ‘defending the indefensible’ (1)

So vitriolic was she that a legal aid lawyer was attacked in his office by someone whipped up by her rhetoric, for which she had no regrets and told us ‘to get back to work’. (2)

It’s difficult to work out where this vitriol comes from, how can someone so lack empathy. I think I’ve finally struck on why it is she is so bitter….

I came to this realisation when we saw her at her happiest with a massive smile wandering around a back alley donning a police jacket on a police raid – she never looked so happy. On her lapel it said “Home Secretary” but she obviously always wanted to be… a copper!

Certainly there is no stopping Patel’s adoration for the police – her police bill would only allow protests that were silent and did not “cause unease”

So in love with the police is she that she introduced, as part of the Bill, the idea of a police covenant. As they ‘deserve special recognition’ because ‘they will always have the support of the nation’. Making it ‘a statutory duty to do more to support the police’. This would place a requirement on her to report annually to Parliament on progress with the covenant.

To help her out I’ve written next year’s annual report for her, in recognition of some of the achievements of the police in the last year:

Annual Report on the Police 2020-2021 (as compiled by Matt Foot)

1 Racism

On racism the police are maintaining a higher stop and search rate of black people than was the case at the time of the McPherson report, and particularly so under the covid rules.

This year a former probationary officer has been convicted of being a member of the neo-nazi organisation, National Action.

And in another first, the bodies of two murdered black sisters, Nicole Smallman and Bibaa Henry were photographed by police and passed round a WhatsApp group for their entertainment.

2 Sexism

Infamously, serving police officer, Wayne Couzens, elevated to the diplomatic corp and assisted by deployment and misuse of Patel’s new covid powers, kidnapped Sarah Everard, and then went on to rape and murder her.

3 Policing Protest

When women came out to peacefully show their respects to Sarah Everard a number of (mainly male) officers handcuffed them and manhandled them to the ground.

4 Policing the police

The police have consistently failed women who make accusations against officers of domestic violence as evidenced by Alexandra Heal’s ground-breaking work for the Bureau for Journalism, which I am proud to say won the Paul Foot award for campaigning journalism. Heal identified 700 reports against police officers for domestic abuse and that those allegations were taken less seriously than other complaints.

5 Police Corruption

This year the Metropolitan Police have been recognised as institutionally corrupt in the Daniel Morgan Panel Report. Finally, after his brother Alastair Morgan has been campaigning for the truth for 34 years.

It’s an annual report that shows that more than ever we need to have strong legal aid lawyers to defend people from an institutionally sexist, racist and corrupt police.

It’s clear that despite this report Patel will blindly continue to give special favour to the police and in so doing she will be ‘defending the indefensible’.

LCCSA -defending, Campaigning

However, we in the LCCSA have a strong history of campaigning, including a few years ago against another zealot, Mr Grayling – his affliction when Justice Secretary was asset stripping, privatising anything that he could – legal aid; probation; prisons; -anything he could he would try and sell.

We feared that an underfunded, privatised probation service would be catastrophic. The proved to be true and the probation service has recently been taken back into public hands.

Let us not forget 8 years ago – individuals, firms and lawyers associations led by the LCCSA joined together, uniting to campaign for Justice, demonstrating outside parliament, (5) and we successfully stopped competitive tendering, the “two tier” system, and staved off a further proposed cut.

That was eight years go. I know looking round we are getting older and more grey haired and I was thinking “where can we draw inspiration to defend legal aid again?” I want to look at what the do-gooder lawyers have been up to over the last year. It’s quite a contrast with the police!

I now want to read the Annual report of London Criminal Courts Solicitors’ Association. I think its impressive.

Annual Report of LCCSA “do-gooders” 2021 (as compiled by Matt Foot)

I have 5 wonderful examples of ‘do-gooder’ solicitors dealing with injustices over the last year, many of which have been hanging around for years:

1 Firstly, for several years all our clients have had the ignominy of having to state their nationality, before their case even starts, as if that was somehow relevant to their reason for being in court. (3) That was until LCCSA committee member, Rhona Friedman and her new firm Commons Law – got together and planned out an evidence based challenge and got rid of this racist practice forever. (4) Thank you to her and her firm.

2 When it comes to protest for several years it’s been very difficult to protest at all without falling foul of the full force of the law on obstruction of the highway. Last year at the Supreme Court there was the case of Ziegler, taken on by Raj Chada and presented by Henry Blaxland, which confirmed important protest rights that can help to protect the environment and to challenge the wrongs in this society. (6)

3 20 years ago sub post masters working hard in local post offices around the country were suddenly prosecuted and convicted for fraud. They weren’t guilty of fraud at all – it was all based on dodgy expert evidence, around the new accounting system called Horizon. Last year ex-president of the LCCSA Paul Harris represented several of those who overturned their convictions in what has been called the greatest miscarriage. He rightly said ‘what had happened was evil’.

4 Nearly 50 years ago – four black people were convicted of an attempted theft and assault at Oval tube station, and they went to prison. Last year they finally had their convictions overturned. Lord Justice Fulford made one of those classic judicial understatements : “It is highly unfortunate that it has taken nearly 50 years to rectify this injustice.”

I recommend to you all on iplayer watching ‘Black Power the British Story’. There you can see William Trew’s story – it is quite clear he was fitted up for his politics, and as he walks out of the Court of Appeal you can see him with his solicitor Jenny Wiltshire, former LCCSA committee member and vice-president. Steve Bird another LCCSA committee member also represented one of the Oval 4. https://www.bbc.co.uk/news/uk-england-london-52022925

5 The last and oldest case of injustice I want to highlight goes back a hundred years – let me take you back to the 1920s. I am perhaps just little bit biased in thinking this is the most important. It involves a footballer who played for arguably the best team in the country and more importantly the best team in Devon. Jack Leslie – a black footballer who played inside left for Plymouth Argyle, was picked for England – then suddenly he was dropped because they hadn’t realised when they picked him that he was black. Former LCCSA president, Greg Foxsmith got together with his best mate Matt Tiller to set up a brilliant campaign. They raised the money for a statue at the best ground in the country, Home Park, and have gone into schools to use Jack’s story in a positive way against the indefensible racism that existed then, and in different ways today. Thank you to Greg. (7)

Going forward the biggest threat for the do gooders to continue dealing with such injustices is the chronic underfunding of the Criminal Justice System.

The hourly rates for criminal defence work have not increased since 1996. Over 25 years. 1996 was when the spice girls released their first single, and even before Jon Blacks first tweet. No other group of workers I believe have had such a cut by governments of both colour.

We don’t know what CLAR is going to do – is it going to make good the recommendations of the All Party Parliamentary Group report this month that we be paid in line with inflation by an independent panel. The CLAR report is imminent. If they don’t increase the rates we will have no choice but to campaign and take action alongside the bar.

I would like to finish on a quote of the Irish socialist Jim Larkin – ‘the great only appear great because we are on our knees. Let us rise’.

NOTES

1 https://www.independent.co.uk/news/uk/politics/priti-patel-immigration-lawyers-migrants-law-society-bar-council-b832856.html

2 https://www.dailymail.co.uk/news/article-8882165/Priti-Patel-shrugs-attack-lawyers-brands-reaction-criticisms-ridiculous.html

3 The “Nationality Requirement” https://www.lawgazette.co.uk/law/defendant-nationality-declarations-offensive/5063715.article

4 The end of the Nationality requirement- thanks to Commons https://twitter.com/commonslegal/status/1358732682209996802?s=21

5 Matt too mention to modest, but he was a key figure and final speaker at the 2014 demo

6 Here’s the case ref: Ziegler

7 (Note from Greg:Thanks to Kingsley Napley for backing me and backing the campaign ! ). It’s not too late to get on board- law firms supporting the campaign will get recognition on the statue plinth, and campaign website!

8 Matt also thanked the LCCSA committee in his speech: Firstly we need to thank all the committee for their hard work in keeping this very important association together, particularly Mark Troman and Kerry Hudson who have done so much in a really difficult year when we haven’t even been able to meet together in person. Good luck to nw President Hexham Puri and the committee for the year ahead.

9 How times change… a note on the http://LCCSA AGM dinner from 2015, from 2016, and the Summer Party of 2016

10 And finally….find out more about the LCCSA (and if eligible, how to join) here: https://www.lccsa.org.uk/about/officers/

Black Lives Matter-an open letter. (Guest blog by Mbombo Kaoma)

Reader beware – this is an open letter about race on both sides of the Atlantic. The truths expressed here make for uncomfortable reading, but I encourage you to read on: the time for sticking heads in the sand has long since passed.

We are all now familiar with the ongoing social unrest in the US and around the world.

Disgust and disbelief turned into anger, anger into protest, and peaceful protest morphed into disruptive civil disobedience. All in response to George Floyd’s killing in Minnesota on 25 May (and Amy Cooper’s abhorrent abuse of racial privilege in New York, and the modern-day lynching of Ahmaud Arbery in Georgia, and [insert injustice of the reader’s choice…]).

For some, the knee-jerk reaction has been to ignore the peaceful protests and shift straight into condemnation of the mass disruption.

This open letter is addressed to those who continue to query why black people in the US/UK/elsewhere (and – very welcome – allies of all racial persuasions) may feel compelled to take to the streets and be (non-violently) disruptive right now; an effort to engage – respectfully and apolitically – with the ‘But why are they being so disruptive?’ brigade.

The short answer is that such disruption is the nature of protests, of civil disobedience. The very purpose is to upend the established, oppressive order; to effect change within the system being protested against.

That is said not to condone violence, but rather to justify (non-violent) acts of civil disobedience and disruption.

The factors which open the floodgates to waves of protestors, which cause them to abandon social norms and speak out, emanate from the perception that the status quo is in some way broken. That the way things have been is oppressive and must change. So protestors seek to disrupt; not with wanton abandon, nor with glee, but out of desperation to have voices heard which have for too long been passively forgotten or actively silenced.

And yes that sometimes spills over into disruption, into social unrest.

This is unfortunate, but often inevitable, and is the essence of taking to the streets to effect change. Keyboard warriors (this one included) can be ignored out of hand; marching masses cannot.

To paraphrase the stand-up comedian Kae Kurd (because dark humour gets us through dark times): ‘If the person you’re protesting against is happy with your means of protest…then that’s not really a protest, is it?’. An idea echoed by another comedian/political commentator, Trevor Noah, host of the Daily Show: ‘There is no “right way” [for the Have Nots] to protest because that’s what protest is’.

Such is the nature of every truly seismic act of civil disobedience, of every successful movement for the advancement of the underprivileged that there ever has been or ever will be.

From the 14^th century English Peasants’ Revolt, to the Suffragettes sticking it to the patriarchy in the early 20^th, to Martin Luther King proclaiming ‘I have a Dream’ in 1963, the story is the same. The Haves disregard the Have Nots until the downtrodden cause a sufficient nuisance that they can no longer be ignored.

So when a vocal minority of Haves chastise the Have Nots by saying ‘you’re being far too disruptive’, the response from protestors should simply be ‘thank you…that’s the point’.

(And for those who mistakenly believe ‘but it’s different in Britain’, remember that for better or worse what happens in the USA matters in every corner of the world in which American culture permeates. Regardless of whether we are speaking of economic shocks or social attitudes, it remains a truth universally acknowledged that ‘When America sneezes, the World catches a cold’.)

The essence of every well-functioning society is (enforced) consent to the system for the mutual benefit of all. Put philosophically, it’s the Social Contract. In today’s America we see that the Social Contract has been breached so flagrantly and so systemically for so long that portions of the body charged with policing it are now intrinsically part of the problem (but only portions; it’s important to remind ourselves that most police officers are fundamentally good people).

So the time has come to seek: a) justice (the belated charging of the other 3 George Floyd officers was a good start), and b) tangible change (at the very least, compulsory bodycams for all officers). And perhaps to seek change by means other than working within the formal institutions of the system (albeit non-violently). To March on Washington and Westminster, not to sit still and wait for yet another name to be added to the Wall of Unarmed Victims.

Perhaps more glaringly, that blight of institutional racism has become so endemic that the Amy Coopers of this world feel entitled to weaponise the To Kill a Mockingbird-style shameful truth that a white woman’s word will – no matter the circumstances – count for far more than that of a black man’s (unless someone happens to be filming). In the absence of indisputable video evidence clearing his name, I have no doubt that at this very moment there would be a man awaiting trial for the heinous ‘crime’ of Bird Watching While Black.

Bringing up the Amy Cooper example is in no way intended to diminish the suffering and anguish of the last moments of George Floyd’s life; a man has been murdered and nothing can return him to his family.

Rather, the Cooper episode highlights the uncomfortable fact that the minority of Haves who were so quick to jump on the condemnation bandwagon are – silently – well aware of the (unasked for, but nevertheless very real) privilege that they share with Ms Cooper. These people are not blind. They recognise that certain groups are marginalised and face prejudice; and yet these same people appear to expect those oppressed groups to simply weep a little, move on, and pretend that they See No Evil and Hear No Evil.

This inconsistency between outward expression of condemnation versus inward recognition of oppression faced by others was depressingly demonstrated by this YouTube clip where renowned anti-racism activist Jane Elliott (famed for her 1968 ‘Blue Eyes-Brown Eyes‘ classroom experiment) asked a predominantly white American audience in 1996: ‘I want every white person in this room who would be happy to…receive the same treatment as our black citizens do in this society…please stand’. Unsurprisingly, not one of those Americans stood (and I doubt any Brits would stand either).

Jane Elliott’s response to this inconvenient truth was incisive: ‘That says very plainly that you know what’s happening, you know you don’t want it for you. I want to know why you’re so willing to…allow it to happen for others.’

We are all fortunate that the world has – to a significant extent – moved on since those 1968 and 1996 video clips. However, the fact remains that no white American in 2020, nor in 1776, indeed no white American who has read a newspaper at any point in the last 250 years would have stood up in response to Jane Elliott’s question.

That is why, regardless of race, colour, or creed, we who believe in equality must continue to make our voices heard around the world in solidarity with the American marching masses and donate to equal rights causes where we can.

That is why we must continue to protest. That is why we must continue to disrupt.

Mbombo Kaoma, a black British lawyer at Hogan Lovells International LLP, who hopes that one day open letters such as this one will no longer be necessary, that they will have become mere footnotes to history.

NOTES

This open letter was first published in the Law Society Gazette here , and republished on this site with kind permission of the author.

Volunteering in the time of Coronavirus

My employers at Kingsley Napley have a strong ethos within the firm of supporting fundraising and volunteering and have continued helping charities and the local community during the COVID-19 crisis (see here for detail). My role as an advocate has understandably been affected by the CRISIS, given the lack of hearings taken place, as was my planned Easter break, so with permission of the firm I took some time out to do some volunteering. How did I get on?

1 NHS “responder” volunteer

Like so many others I signed up as a volunteer “responder” to help, if and when I could, those in need during the coronavirus #COVID19 crisis.
The app looks great! I tested the alarm-sounds like an air-raid warning! And waited…

..and waited. I completed my “profile”. I went out and acquired a mask, hand-gel, gloves. I have no symptoms or underlying health conditions. I am DBS checked. I have a car, a bike, live near a hospital, and flexible working hours. 300 hours passed…The app is clever in that you enable the maps so they can pinpoint your location and match you to somebody nearby in need. I live in Central London, and there is plenty in that category! And still I waited…AND THEN… it finally happened! The alerts sounded! 👏

I was cycling at the time (as permitted exercise) and nearly fell off my bike! 🚲 I pulled over, and accepted the call. Details followed…

And then I looked at the address, and the postcode was LS12 …that’s in LEEDS! 😳
I mean don’t get me wrong, I love Leeds. I studied at Leeds Uni and was sad when our annual reunion last month was cancelled due to #COVID19.
But travel 🚂 to Leeds to answer this call would hardly be lockdown compliant!

2 Food bank

Since #coronavirus closed the schools, my 16 year old son (GCSEs cancelled) has been doing some volunteering. So I joined him for a day at the foodbank at “brickworks” Community Centre, Hanley Crouch. To our surprise, Jeremy Corbyn was also volunteering there!

The surprising thing was that Corbyn stayed for the full 3 hour session at the food bank. We sorted food🥖 packed bags, distributed, did all the mundane stuff that goes on- running a food-bank isn’t glamorous. And then he left.

3 Other volunteering

I am grateful to have the opportunity to help out with a local mentoring charity of which I am a trustee -“Bridging the Gap Islington” -which KN have also supported, including a recent grant that allowed us to enable mentors to meet those they are helping “virtually” , and holding our trustee meeting by zoom.

I’ve also been working on the Jack Leslie Campaign – to recognise the achievements of a legendary footballer who 100 years ago should have been the first black footballer to play for England. The aims and objectives:

1 To raise the funding for a statue of Jack Leslie in Plymouth, where he played as a professional footballer for Plymouth Argyle.

2 To promote the story of Jack Leslie, the first black footballer to be selected for England way back in 1925, and to use Jack’s story positively to combat racism in football, supporting the aims of the “Kick It Out” campaign.

4 Pro-bono work

The COVID-19 crisis and the government response and regulations has created a number of challenges for all of us, and injustices for a few. We all understood that funerals had to limit the number of mourners, but Islington Council closed their cemetery (a vast site) to all, including those who used it for their daily walk and to visit loved ones. I was contacted by a grieving parent whose 17 year old son had recently died in tragic circumstances, and was now unable to undertake her visits to tend to his resting place. This interruption to the grieving process was highly traumatic, and I helped take up the case, as reported here , eventually (with the help of Cllr Caroline Russell) persuading the Council to allow the cemetery to reopen with new social distancing measures in place.

I also challenging the bizarre decision of the Council to close fruit and veg stalls, rather than assisting traders to managing social distancing in selling their wares. This time I was able to deploy the assistance of the local MP – having raised the issue with him at the food-bank (see above)

CONCLUSION

The much-flaunted Responder App was a disappointment and remains so, and appears to have been deployed as part of the Government’s media strategy deploying “we are all in this together” war-time rhetoric. I did enjoy however having the chance to do some voluntary work locally. I have to be honest- it was good for me personally, as I like to keep busy and was struggling to adapt to “lock-down” and having no work. But it also good to help out the incredible voluntary sector, a part of a diverse community that feels like a family, and where others far more worthy than me give their time commitment and resources regularly. It was a humbling experience.

Charter for Justice- for a Fair Justice System

Charter for Justice- for a Fair Justice System- guest blog by Raj Chada

Just 5 months ago, we welcomed the “Lammy Review” into inequality of outcome for black and ethnic minority defendants, but questioned whether it could change the landscape. .
We know that nothing has changed, but that the whole criminal justice is close to collapse.

Justice on the cheap means no real justice for any community – but it will always, and indeed has, affect most those that are discriminated against , those with limited means , those with no voice at all.
That is who we must consider in a Charter for Justice.
David Lammy was comissioned to prepare a report (an ‘independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System “ in response to the over -representation of BAME individuals in the criminal justice system.
You are 17.5 times more likely to be stopped and searched if you are black
45% of those in youth custody are from an ethnic minority – a higher percentage than the US.
I borrow from the LCCSA response to Lammy – If you are a defendant in the Crown Court (and certainly should you reach the Court of Appeal) you can expect white Judges, mostly men and often still an all-white court room. Imagine roles are reversed. Imagine if you are white appearing in an all-black courtroom where you believe you have been harshly treated. Later you might read of higher sentences for white people, or that white deaths in custody never result in any prosecution. That white youth are disproportionately stopped and searched. You may imagine a lack of equality in the criminal Justice processes.
Think of that role reversal when you ponder why Lammy said that there was a trust deficit ; and then ask ourselves how that is not top of the agenda for Justice Secretary, every minute of every day of every week of every year that he or she is in office.
Think of that when you consider that the real trend is abolish any pretence of establishing a system with balance and checks, professionals exercising judgement from experience and training. With legal aid fixed cases cut to the bone, and a pressure to plead guilty, there is insufficient time to develop relationships with clients ; to consider, review, analyse the papers, and to properly advise clients. The MoJ response to Lammy pointing out the lack of trust for BAME is not to re consider how fixed fees operate ; not to look at the absurd rates of pay in police stations, to demand at how the professions train and recognise the needs of the communities that they serve….
but to welcome the development of an app that can be used to explain people rights in custody.
The MoJ rejects the idea of accountabilty for the judiciary by feedback from users – lawyers, defendant or victims as if it will mean those that are aggrieved by decisions will use it as a complaint mechanism.
The MoJ offers nothing new about how to increase diversity of judiciary, – of the senior judiciary 81% went to Oxbridge, 76% went to fee paying schools and half went to boarding schools.
Enough already.
We need concrete action ; not the luke-warm response to the genuinely innovative idea of deferred prosecution for youth offending that will allow youngster not to have a criminal convictions on an agreement of behaviour in future. Good enough for a multi national company caught defrauding millions of pounds – not good enough for the balck defendant in Brent that was caught shoplifting for £50.
Of course I know that the solution to this is wider the CJS It requires us to help individuals through support and intervention, to hold individuals to account through community mechanisms and to develop that individual so that he has sense that he or she belongs and has a stake.
The solution as to why so many BAME youths do not feel they have that stake is political not legal: An active well-funded state that exists to help all its citizens, not just one section would benefit everyone, not just BAME communities. It is why we must make common cause across civic society with Trade unions and others…
We must start with CJS. This is not just about pay for us – it is about our participation in a public service, with our own roles to play and that the same system of justice should exist no matter what the social status, race or means of the victim, no matter what the social status, race of the defendant.

If we don’t have that now, we should be prepared to fight to achieve it.

That is why striving to achieve a fair Justice system must be part of the #Charter4Justice that we must all fight for.

Raj Chada, (Partner, HJA,). 26 March 2018

The above is the text of a speech given by Raj at the launch of the Charter for Justice, 26 March 2018 (edited by Greg Foxsmith)

Notes

See also blog “Lammy- we must not be silent”

Lord Chancellor David Lidington-a review

On 11 June 2017 PM Theresa May in a post-election re-shuffle appointed David Lidington as Secretary of State for Justice and Lord Chancellor. He replaced the hapless Liz Truss, who had herself been appointed by May in a post-election re-shuffle less than a year before. Lidington was himself replaced as Lord Chancellor in Theresa May’s botched reshuffle on January 8th 2018. Lidington was the fourth consecutive non-lawyer appointment- his predecessors were Liz Truss, Michael Gove and Grayling (widely regarded as the worst Lord Chancellor ever).

This blog reviews Lidington’s performance over his brief term of office.

Background

David Roy Lidington CBE PC (born 30 June 1956) has been MP for Aylesbury since 1992. He was Minister of State for Europe from May 2010 to July 2016, and Leader of the House of Commons.

He was educated at a public school, before studying history at Cambridge (appearing on University Challenge)

He was given a CBE in Cameron’s widely criticised resignation honours list.

Expenses scandal In May 2009, it was revealed Lidington had claimed £1,300 on expenses for dry cleaning. He also claimed for toothpaste, shower gel, body spray, vitamin supplements and a second home allowance. He repaid the claims for toiletries, saying: “I accept that many people would see them as over-generous.” So although he eventually came clean, you paid for his soap

Record in Parliament pre-appointment (Justice issues)

Lidington voted in favour of repealing the Human Rights Act, restricting the scope of legal aid and limiting fees paid to solicitors in no-win no-fee cases. The “they-work-for-you” website says Lidington generally voted against equal gay rights, and his record on cutting legal aid is here.

First six months

The new Lord Chancellor was sworn in on 19 June. In the in-tray? Read anopen letter to Lord Chancellor from Joshua Rozenberg

Sort out the prison crisis! read these recommendations from the Howard League

His first official pronouncement, following the Grenfell tragedy, was on availability of legal aid in housing cases- and he got it wrong (see here)

There was then a period of calm, in a political period dominated by Brexit, we heard very little from or about the Lord Chancellor until the Party Conference in October when there were apparently conciliatory noises on LASPO reform

Prisons

The crisis within the prison service has shown no signs of improvement under Lidington. The shocking number of suicides by vulnerable prisoners, murder and violent assaults by against prisoners and staff remains at high levels in crumbling, under-staffed, unsafe failing prisons. The extent of this is too great to record in this blog, and can be charted elsewhere (see eg Howard League) but of the many scathing, shameful reports I include this one from the Independent Monitoring Board into Aylesbury Prison -it is in Lidingtons constituency, so the shameful record has happened “on his watch” as local MP and Justice Sec.

The treatment of young people in custody has also remained dire and dangerous under Lidington’s watch – see this report of November 2017

Legal Aid and funding

Under this Lord Chancellor, there was no improvement in funding for the MoJ in general or legal aid in particular, as it was revealed the department will have suffered a 40% cut in budget by 2020 (as reported in Gazette in November here)

Conclusion- a summary of Lidington’s tenure

Lidington has been the silent chancellor- we heard very little from or about him. In a Government divided by over but dominated by Brexit issues, this Lord Chancellor kept his head down. There is much to be said for that, preferable at least to failing Grayling or hapless Truss, but a failure nonetheless to tackle the big issues in his department- the chronic underfunding of the Justice system, and in particular legal aid and the prison estate. He left everything without comment to MoJ apparatchiks, who have continued with their pet projects including pilot projects on extended Court hours. He remained silent on the “disclosure scandals” that have thrown a spotlight on the sorry state of our justice system, and prisons and young offender institutions remain as overcrowded, dirty and dangerous as when he took over.

His department did however find the money to pay fat-cat consultants to advise on “digital transformation”, leaving solicitor Matt Foot to assess his legacy with this tweet “Justice Minister Lidington’s only contribution was to cut criminal legal aid by £30 mn, given to PricewaterhouseCoopers (650k profit per partner) instead“

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.

Speech at CLFS Autumn Confrence, London, 2017

I was invited (jointly with Greg Powell) to speak at this CLFS conference in the final speaker slot, on the topic of “unity, and changes ahead”

Greg Powell spoke first, lambasting the MoJ for their announcement earlier in the week that following their LGFS consultation (and despite 97% opposition) they would cap payment at 6k pages of PPE. (For non criminal legal aid lawyers, this basically is yet another cut in legal aid payments)

The text of my speech is below:–

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.

Anyway, once again I have been asked to speak on unity in the profession. This year, clearly not to be trusted I am sharing with Greg Powell, a hard act to follow.
In the programme we are billed as the “two Gregs” – like the three amigos but less fun and without the sombreros.
Or perhaps when you think of “Greggs” plural you have an image of a couple of sausage rolls.

I am no more qualified than anyone else to speak on the topic of unity.
But I suppose being involved in a rep body- in my case the LCCSA-has given me some small insight into where we, as a profession, have successfully united, and where we have not, as well as whether it matters.

I am also going to touch on breakfast Courts and the 14 hour rule for duty solicitors in the current LAA contract.
And there will be a thinly veiled appeal to join and support the LCCSA.
And in case none of that appeals I will have a go at Grayling.

Unity

Can we achieve it even between ourselves as criminal lawyers?
It’s a good topic because we have much that divides us, not least healthy competition, but it seems to me that in recent years there has been an increase in shabby gamesmanship by unscrupulous client-chasers posturing as reputable lawyers but lacking integrity.

A 1/4 century or so ago, when I was first attending courts and police stations, (back in the days when we were paid travel, waiting and a London allowance) other solicitor firms were rivals, but also friends and colleagues.
people I could approach for advice, and who would gladly provide it.
Nobody interfered with client choice or objected to a LA transfer.

Now you can go to some Courts (one in North London comes to mind) and find an army of solicitors from a rival firm armed with clipboards hovering by the door of the court or by the notice-board with list of cases, tapping up all the clients and diverting first appearances from the duty.
These are rivals but neither friends or colleagues.They are touts.

These sharp practices, whilst deplorable, probably arise from the ceaseless cuts which lead to a race to the bottom, and the less scrupulous fighting like rats in a barrel.
But ignoring that debased minority, criminal lawyers nonetheless have much in common.
The work we do, undervalued and underfunded though it is, is not merely a job, it is a profession and a vocation.
We have, I think, uniting us, an overarching interest in justice.

Of course we all have a degree of self interest, and we all would like to be well paid.
Or at least properly paid
Or sometimes even paid at all

So we are united in wanting better, and fairer, rates of pay.

We are also, I imagine, united in wanting, amongst other things:-

-Properly equipped courts with an adequate advocates room, and maybe even a cafe

-List officers that take into account advocates availability

-video-links that work,

-prisoners to arrive on time,

-competent interpreters to be booked,

-timely and adequate disclosure

and an opportunity to properly assess the evidence, give proper advice, and where appropriate prepare properly for trial including the right to challenge prosecution evidence and put forward a defence case.

We want a level playing field, we want a fair hearing.

But we also have different interests.
Big firms vs small, legal aid v private, generalist v specialist, own client vs duty, etc.

And then within law firms there are divergent interests, typically between employers (partners or co directors, firm owners) and salaried staff, or “overheads” as the former sometimes think of them.
If only there were an organisation that strives to represent all those interests, not just one vested interest group….

So what is left that may unite us?
A desire for better rates of pay
A desire that the Government may just leave us alone for a while
A wish that the LAA would go and f, f, f, fade away

Can we unite around our common interests?

How do we unite?

Firstly you need strong and accountable representative organisations.
We don’t have a trades union.
We have the Law Society, but….

Here in London you have the LCCSA .

We respond to the consultations.
We lobby.
And we reluctantly became an effective campaigning organisation

How do the LCCSA and other representative bodies work together?

Easy enough when campaigning against cuts or a Lord Chancellor so universally hated that all are joined in opposition

Remember Grayling? Whatever happened to him?
Grayling as Transport secretary
In October 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) which 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”

After CG , we had Gove, we liked him, but he didn’t last.

He did give us the Bell Committee- anyone remember that?
Gary Bell QC, the HCA hating barrister, who was to report on the CJS
His self appointed committee appears to have died a natural death
That has certainly helped unity 🙂

A year ago we had Liz Truss, lover of cheese and pork markets, who failed to stand up for the judiciary when they were attacked by the tabloids.

Now we have Lidington, beneath the radar. Not very high profile – perhaps this week’s announcement mean he is a silent assassin.
Anyway, irrespective of which Lord Chancellor we have, there are always

topics we can unite on by opposing:-
1 The announcement this week of the LGFS “restructure” (cut) which 97% of those consulted were against. Greg Powell has dealt with the absurdity of the MOJ response and this uneccessary cut. LCCSA Statement here

The Criminal Bar Association have put out a statement which “reminds the legal community and the MOJ that the system is at breaking point. There should be investment in Criminal legal aid, not cuts or reductions of any kind. We are unified with our solicitor colleagues in our aim to ensure that legal aid survives, and thrives.”
So that is unity with our friends at the bar and we thank them for it.

2 Flexible Operating Hours

The proposal came from nowhere, no consultation.
Promised it would have robust evaluation.
That evaluation went to Tender, they got that wrong, so proposals were deferred or, we hoped, died, but now they have revived the corpse.
The Breakfast court at HCMC seems to have gone, but they will be listing CPS bail trials from 5.30 pm to 8:30 pm Mon-Thursday.

Perhaps they don’t realise that Court sometimes sits that late already, with trials listed from 2-4pm. With these plans you could be there to midnight, So be ready to resist when handing in your PET forms…
Blackfriars will piloting 2 four-hour CC sessions and a half CC /half MC session (as before.)
Make sure the obvious objections are made at each stage, and this pilot will inevitably show the failings inherent in this half baked scheme.
3. 14 hours term in the new duty contracts

The duty solicitor rotas were bloated
There was a desire to remove ghosts
But what are ghosts?
We thought they were the ones on the rota who were dead retired or abroad
I’m which case a requirement to do a min amount of ps work or duty compliance would suffice
So why 14 hours p/w?!

Two examples of why this is crazy:-

1 HCAs for example do considerably more than 14 hours per week, the vast majority of which is Crown Court preparation or advocacy paid on a legal aid account under the AF1.

This is not “Contract Work” and does not therefore count. Sitting behind that advocate unpaid while they undertook the advocacy on a case would count.
The absurdity of this situation is obvious.
Equally obvious is that neither of them is remotely ghost-like. I can see no logical reason why “Contract Work” is the defining element for hours worked for the firm.
Nobody is begging to be woken up at 4am to undertake duty work but it provides clients with good quality legal advice to have people like this on the rota – this is after all the point of the duty solicitor scheme.

I cannot see the justification for disallowing this work from the 14 hours. It goes way beyond the purpose of the rule and is completely unacceptable to anyone with an ounce of common sense.

2. Child care

A DS (over 20 years call) is also a consultant and has child care responsibilities for two young but school age children. Duty work suits her well as she knows in advance when she has to be available for work and she undertakes her duty work.
She undertakes more than 14 hours a week if you do not count the weeks that she has had to be unavailable for work due to child care responsibilities, namely the school holidays. The period of review includes both Easter and the summer holidays when she was unavailable for any work at all.

When you add in those 0 hour weeks, she falls below the 14 hours and likely to be removed. Madness. And discriminatory.

It also begs the question as to how the 14 hours is calculated. Is it 14 x 52 per year – no one works 52 weeks a year – apart from probably Greg Powell. So is it 14 x 48 (4 weeks holiday) or 14 x 46 (6 weeks civil service holiday allowance)? In which case it averages over a year at less than 14 hours a week?

How did we get into this mess?
It was an LAA idea, but when canvassing representative bodies only the LCCSA objected.

For others, ghosts were not just those on the rota who never went to PS or court or undertook their duties, ghosts also included freelancers. So they supported, and still do, a requirement that solicitors work 14 hours a week and just for one firm.

The LCCSA position on 14 hours is consistent:-

In The past we have been driven into a contracting supplier base and pessimism by relentless cuts , unnecessary bureaucracy , and too often by overly hostile stances by assessors , auditors and managers .
The collapse of the scheme to contract duties passed without apology .
The LCCSA argued in relation to rules for Duty Solicitors for simplicity and an acceptable minimum standard , namely a mix of actual duties completed in court and police stations with some minimum number of overall attendances.
We argued against any hours requirement as unnecessary , bureaucratic and against the interests of working parents and especially that it offended the principles of simplicity and ease of checking .

The Present
Predictably “the Hours” will now consume much energy .All its limitations and difficulties are thrown into sharp relief as reports of overzealous interventions by account managers filter through while confusion over aspects of the schemes detail spreads .
As a membership organisation we have always fought to protect individual ownership of scheme membership .
Similarly we have favoured the widest interpretation of qualifying work and terms that allow our diverse membership to properly contribute through duty solicitor work whilst maintaining a wide variety of working lives .
The future
We will be informed by our members response .Some argue that the future should involve consolidation of the supplier Base and the concentration of ownership of duties in the hands of fewer powerful owners .This would devalue the economic positions of members of the LCCSA . It is not a position we will adopt. It is sometimes disguised as concern for the future stability of supply when it really reflects a desire to gain economic advantage.
What we always need is unity around the political issue which has been the Government desire to restrict scope and impose austerity. The hours issue is a battle for a settlement in the widest interests of members but the great issues are restoring value and scope

Well we are where we are.
What do we do about it?
Can we bring a JR ?
Well Legal Action being a last resort, we are first making representations to the LAA to soften the harsh interpretation.

We want HCA Advocacy to Count, as well as file reviews and supervision. Also:-
-Pro-rata reduction for part time workers, and for absence through illness,
-VHCC work to Count
-Hours to count whichever firm or office carried out for

Who makes these reps?
The Law Society leads.
They have a group called the ”Practitioner Group”
That includes elected bodies such as the LCCSA and CLSA
Also it includes the “Big Firms Group”

Who are the BFG ?

Nobody really knows
They don’t have a constitution
Or a website
If they have aims they are not made public
If they have a committee, we don’t know who is on it , how they were elected or even if they were elected.
They are not accountable.
We know they supported breaking the link between indiv Duty sols and their slots, putting duties in the name of the firms to distribute as they wish.

And their name suggests they focus on the interests of Big Firms, or more accurately over those that own and run them (their employee base are not consulted and do not participate)

And yet they- this self appointed group- sit at the table seeking to influence the decision makers. The two-tier contracting proposals arose from their wish to restrict the supplier base.
It is a matter of regret, that we have allowed this body to fracture Big Firms from small.
Perhaps there should also be a “Small Firms Group” and a “medium Firms Group”. There was a freelancers group, but the BFG and CLSA objected to them participating at meetings of the Practitioner Group.

Or perhaps we could just tell TLS and the MoJ to ignore the BFG, and we could all unite behind an organisation that represents big firms and small, owners, the employed and the self employed.

The LCCSA is that organisation.

The LCCSA have the following objectives,

The objects of the London Criminal Courts Solicitors’ Association are to:
▪ Encourage and maintain the highest standards of advocacy and practice in the Criminal Courts in and around London;
▪ To participate in discussions on developments in the criminal process;
▪ To represent and further the interests of the Members on any matters which may affect Solicitors who practise in the Criminal Courts; and
▪ To improve, develop and maintain the education and knowledge of those actively concerned with the Criminal Courts, including those who are in the course of their training.

So to conclude:-
The LCCSA had virtually -and by necessity- re-invented ourselves as a campaigning organisation.
We are if necessary prepared to fight again against cuts and to protect the interests of all who practice in criminal law.

Are you up for that fight?
Any representative bodies is only as strong as our membership.
We can only campaign, take legal action, put on events if our membership is strong, and we are funded by our membership fees.
If you join, or retain a membership, we are stronger.
My plea to you is, if you are not already signed up, is to join your representative body the LCCSA.
If you are a member already-thank you- and remember membership renewals are due on 1st November
Please come to our AGM Dinner on November 13th
Please consider joining the committee.

Thank you for your support.
We don’t want to do this without you, and tbh we can’t do it without you.
Join up, and we are united together.
United we stand, divided we fall.
That is the true message of Unity.

And now, time to unite and join friends and colleagues in the pub.
I hope you will raise a glass to justice, celebrate solidarity, drink to the health of legal aid, and share a toast -to Unity.

Cheers