Rebalancing the scales of justice

This year will be remembered for many things, but not as the year the Ministry of Justice sought further cuts to access to justice, nor the year in which lawyers took to the streets in protest against legal aid cuts.

January began with uncertainty over the future of the new criminal contracts. The integrity of the marking system was under scrutiny through litigation via a two-pronged attack brought by Edward Fail, Bradshaw & Waterson (represented by Bindmans) and others on one side and the Fair Crime Contracts Alliance, which sought judicial review, on the other.

On 7 January, the Justice Alliance arranged the first event of the year: a public meeting. This was a historic occasion, not simply because it was the only outing of a papier mâché model of Michael Gove, or because Paul Harris, a managing partner of EFBW, shared a platform with Jeremy Corbyn, but because EFBW had succeeded in forcing the Legal Aid Agency to back down and accept the fundamental error that it had made in assessing the bids.

By the end of January, after much speculation, the LAA announced that it was abandoning the duty solicitor contracts and reinstating the 8.75 per cent fee cut imposed six months previously, pending further review.

New contracts

This gave rise to protracted discussions about the shape of the new contracts. The Law Society and Legal Aid Practitioners Group were consultees. The Bar Council appeared to have a seat at the table – some might say acting as ‘minders’. Somehow the LAA was persuaded of the need for solicitors to explain their choice of advocate to the client on each occasion.

The drafting appears to have ignored the issue of late returns, yet creates a further level of unremunerated bureaucracy for solicitors’ firms already under pressure to find marginal profits to ensure they can still continue to provide access to justice for their clients.

The London Criminal Courts Solicitors’ Association, the Criminal Law Solicitors’ Association, and the Big Firms Group were allowed to feed into the Law Society but, without obtaining a mandate from their own members, had a difficult job. The hot issue was reducing the oversupply on the duty schemes by getting rid of ‘ghost’ duty solicitors, outlawing payment for slots, and ensuring that those on schemes were actually covering their slots. Concerned about the impact that the rule requiring a minimum of 14 hours a week working for one firm would have on freelancers and part-time workers, the LCCSA sought the views of members, but these concerns were dismissed in the drive to destroy ghosts.

It was only when the draft contract was published that the embarrassment clause became apparent. By late summer the Public Law Project, instructed by the LCCSA and Tuckers, issued a letter before action against this, resulting in major concessions from the LAA. Two years ago this week, the original tendering programme was suspended pending judicial review; a year ago, unsuccessful bidders’ litigation had derailed the programme; and, at the time of writing, firms have finally received verification of the new contracts, which were first proposed in a totally different guise nearly four years ago.

Legal aid touts

It is unfortunate that the new contract failed to address a further concern of the profession, namely ‘touts’. Having seen the growing practice of defendants being treated as commodities by individual ‘fixers’ who travel the country making unsolicited prison visits, and those touts who stand at the doors of the court diverting unrepresented clients from the duty solicitor, the LAA was urged to take a robust approach to this issue.

There is a feeling, however, that this is not something that the agency wishes to grapple with, preferring to put resources into auditing many honest, overstretched firms to distraction. If only the focus was on the real wastage, caused by the touts, then perhaps we would have some savings.

Lord Chancellors come and go

The turnover of Lord Chancellors has caused severe storage problems, as papier mâché effigies of first Chris Grayling and then Gove were left redundantly collecting dust. The surprise appointment after the change of government in the summer was Liz Truss. While popular in some circles, Gove’s position was untenable, but the profession’s concern about his successor seems to run deeper than the fact she is not legally trained. Her handling of the prison crisis and lack of defence of the judiciary has not won her any fans to date. Whether the Lord Chancellor takes aim at criminal legal aid is yet to be seen.

Pressure on defendants

The programme of court closures, coupled with the new proposals to shut further courts, is a clear statement of intent to streamline a system that for centuries has centred around local justice for local people, in order to create a centralised justice warehouse presided over by people with limited local knowledge.

Meanwhile, the scales of justice continued to be tipped against the defendant in 2016 with the launch of better case management, which saw a revolution in how we conduct Crown Court proceedings. This meant plenty of technical glitches, with a whole justice system predicated on functioning Wi-Fi and passwords, and slow, churning lists as the parties in court struggled to navigate the online forms.

Justice has lost its way from the halcyon days of committal proceedings when a case would not leave the jurisdiction of the magistrates’ court until the defendant had seen the entire case against them and it had been properly reviewed by the Crown Prosecution Service.

This year also saw the plea and trial preparation hearing renamed the ‘pressure to plead hearing’ by blogger ‘CrimBarrister’. This is a reference to the fact that a defendant can appear in the Crown Court facing serious allegations with only the briefest of case summaries to be advised on. Even though credit for an early guilty plea is key to a lighter sentence, in some circumstances the convictions and sentences that follow can be life changing. The dangerous drive towards securing convictions on this basis is counter productive and likely to create a greater financial burden than any cost-cutting measure.

When former CLSA vice chair Robin Murray gets the bit between his teeth, he is unrelenting. His drafting of the CLSA protocol to deal with poor disclosure in the magistrates’ courts was widely circulated among the profession. Lord Leveson and the Lord Chief Justice took notice and the matter was referred to the Criminal Procedure Rules Committee, which has issued an amendment preventing the CPS from relying on information in court without notifying the defence.

The legal textbooks will need to be rewritten as R v Jogee [2016] UKSC 8 joins the ranks of landmark rulings such as R v Galbraith (1981) 73 Cr App R 124 and R v Turnbull [1976] 3 WLR 445. The dogged campaigning of Joint Enterprise: Not Guilty by Association and the team behind the joint appeals led to a historic ruling on a concept that has, over the last 30 years, led to the conviction of many young people who were not necessarily aware of the intention of the principle offender. A minor rebalancing of the scales, perhaps, but it’s a start.

Access to Justice Review

This year has also seen, for the first time, one of the major political parties take issues of legal aid and access to justice seriously. Lord Bach, much derided by the profession during previous incarnations, established a review of access to justice, drawing from a non-partisan panel of experts across and outside the legal profession.

The interim report can be found here: https://bit.ly/2hPGAwv.

Jonathan Black is a partner at BSB Solicitors and former president of the LCCSA

@bsbsolicitors

www.bsbsolicitors.co.uk