This week’s roundup of legal news and comment includes legal aid for criminal advocacy, the traumas of jury service, the stresses of life at the bar, the conduct of the judiciary and where we are with Brexit. (Updated with additional links 27 Feb 18)

 

Legal Aid

Crime doesn’t pay: the reboot of AGFS

Criminal advocates have been asked to consider a new Advocates’ Graduated Fee Scheme, which the Ministry of Justice is intending to replace the existing arrangement. A key feature of the new scheme is to replace the current system whereby advocates are paid by the number of pages in a trial, and instead to be paid according to the seriousness and complexity of the work. Announcing the scheme on 23 February, the MOJ said

“The changes will bring the scheme in line with modern practices, taking into account the fact that more and more evidence is submitted electronically.”

The revised scheme follows earlier consultation (concluded and responded to by the Ministry on 23 February) and feedback from lawyers.

“Significant changes have been made to the original proposals to ensure that the vital contribution of junior barristers and solicitor advocates is better recognised in the new scheme.”

The changes are due to come into effect on 1 April 2018, which is (coincidentally) the fifth anniversary of the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which slashed legal aid for many areas of civil and family proceedings.

The Law Society issued a press release entitled Robbing Peter to pay Paul will penalise entire criminal justice system, quoting its president, Joe Egan, as saying:

“The MoJ needs to develop a coherent plan for addressing the underfunding crisis across the whole of the defence professions. Increased fees for advocates will be of no use if there are no litigators left to instruct them. […] It is not rational for the MoJ to argue that they have to cut one part of the system because of their own financial pressures, but then find additional money to pay advocates for working on the very same cases. Robbing Peter to pay Paul simply isn’t in the interests of justice.”

The Bar Council response, given by its chair Andrew Walker QC, was:

“We cannot ignore the unpalatable fact that the changes being made do not truly involve an increase in the money being committed to the scheme, even though several of the rates payable will be higher than originally proposed; and while we are not surprised by this, we cannot disguise our disappointment.  […] Nevertheless, the changes that have been made represent an important step in the right direction for the long term future of the Criminal Bar, by seeking to address the barrier created by the distorted structure that repeated cuts [in fees] had produced. [… ]  It is reassuring to see a number of the shortcomings addressed in the final scheme, even if the gains at an individual level are modest,…”

The Criminal Bar Association, chaired by Angela Refferty QC, listed the broad details of the new scheme in a press release on its website and said

‘These reforms are detailed and wide ranging and will require considerable analysis from our members and their clerks as the impact may differ in relation to each individual’s practice area.’

The CBA have announced that

‘We are forming a coalition with criminal legal aid solicitors to campaign for the restoration of properly funded criminal legal aid and a halt in the degradation of the Criminal Justice System.’

Criminal barrister Rebecca Herbert was also unimpressed with the proposals:

https://twitter.com/RebeccaHerber44/status/967010386028343296

The Criminal Law Solicitors Association (CLSA) is chaired by Bill Waddington who responded:

Bad press

Legal aid is one of the least well understood aspects of the legal system, largely thanks to the often selective and thereby misleading information put out by the government, which is trying to save the public purse from paying for it, and the (mainly tabloid) media, for whom it is often an all too easy stoker-up of public outrage.

Three blog posts by seasoned legal commentators attempt to explain how things actually work with legal aid, for better or worse:

Max Hardy, Counsel of Perfection, Legal Aid – A Defence (again), addresses misinformation in the Mirror about the legal aid provided for notorious rapist John Worboys (see various recent Weekly Notes on controversy and litigation surrounding his early release by the Parole Board).

Nicholas Diable, the Defence Brief, The cost of saving your family, explains why a mother who won her appeal against the local authority that wrongly took away her child was still unable to recover her costs (In re M (A Child) [2018] EWCA Civ 240)

David Burrows, on Transparency Project, discusses the same case in Mum wins appeal about her child’s potential adoption but still has to pay her own legal costs – why?

PLUS – A plea for better transparency and more public legal education from Lucy Reed in Counsel magazine, Public trust and confidence: it’s good to talk

Civil and family: the legacy of LASPO

We’ve written before about the longer term effects of the Legal Aid Sentencing and Punishment of Offenders Act 2012, which came into force in April 2013. Suffice it to say that matters haven’t improved in the year since that piece was written, despite some tinkering in the margins (eg around the evidential requirements for funding in respect of domestic violence) and every-lengthening promises of review by the government.

In a recent radio programme, solicitor Jo Edwards, head of family law at of Forsters, gave a candid front-line assessment:

“Since the legal aid cuts introduced in April 2013 the statistics have been quite stark. What we’ve seen in that time is there are now one in three cases where neither party is represented – so that’s been a doubling in the numbers – and I think approximately 80% of cases involve at least one litigant in person.

So what we’re seeing is this huge influx into the family courts because of the legal aid cuts of people representing themselves. And really overarching all of this, the message has got to be a civilised society should enable access to justice for all. But the reality is, with the legal aid cuts, we’re not permitting that. Many thousands of people are left to fend for themselves and really it’s nothing short of a national scandal.”

She was being interviewed on Radio 5 Live Breakfast, on 20 February 2018 (about 55 mins in).

Legal practice and wellbeing

Stress test

The Law Society Gazette says two surveys found Barristers ‘more stressed’ than NHS staff. They were reporting on The South Eastern Circuit and Criminal Bar Association Quality of Working Lives and Flexible Operating Hours Pilot Survey showed, amongst other things, that

  • A very substantial majority of respondents indicated that they did not believe the Flexible Operating Hours proposals were practicable, likely to achieve stated aims or well thought out.
  • Most respondents reported that they believed the proposals would increase their experience of work related demand and adversely affect work-life balance.
  • Respondents reported significantly lower levels of overall Quality of Working Life, lower satisfaction with home-work balance, working conditions, and higher levels of stress at work compared to a benchmark sample of UK NHS staff.
  • Barristers practising at the Criminal Bar reported significantly lower levels of satisfaction with their Home-Work Interface (HWI) and Working Conditions (WCS) compared to the Family and Other practice areas, and reported significantly lower overall quality of working life compared to other barristers.
  • Barristers aged between 45 and 59 reported significantly lower overall Quality of Working Life compared to those under 45 years of age.

You can download the combined survey report from the CBA here (PDF). 

Juror trauma

‘Once you’ve seen you can’t unsee:’ Support for jurors sitting on traumatic cases criticised was the title of a piece ITV News put out on Friday 23 February, about a juror in a 7-week murder trial who found the experience traumatic and required counselling afterwards, which she had to find and pay for herself.

While jurors in Scotland are offered a counselling service, those in England and Wales get no formal support from the courts for any trauma they suffer. They are forbidden to talk about the case they have tried, but they could unload some of their fears and anxieties if properly trained and targeted counselling were made available. Instead, they are just told to ask their GP or call the Samaritans. According to ITV, ‘Her Majesty’s Courts and Tribunals Service (HMCTS) commented that there is “a well-established support system in place” for jurors but that “more can be done” to improve their experience.’

But it’s not just jurors. Lawyers and court staff can be traumatised, and the fact that they see more of it doesn’t necessarily inure them to its effects. A spokesperson for the CBA said:

“Assistance available for the judiciary and court staff is often inadequate. No specialist help is provided by the criminal justice system for jurors. Court staff are not given training to recognise signs of trauma in jurors, and there is a risk that jurors who are being deeply affected by their task may fall through the net.”

Judicial conduct

A brave piece in Counsel magazine by Jo Delahunty QC tackles the difficult issue of judicial bullying and other inappropriate conduct, inspired by the debate on social media set in motion by Mary Aspinall-Miles, and a post by Lucy Reed on her Pink Tape blog. This led to a Twitter movement @behindthegown

In Judicial conduct: when it goes wrong Delahunty goes on to consider the official Guide to Judicial Conduct and its appendix, Dignity at Work Statement, and the Bar Council’s wellbeing website www.wellbeingatthebar.org.uk, before discussing specific cases and how best to deal with similar situations. The important thing is not to ignore it. She also recommends a system of providing feedback which might make judges more aware of the problem and stimulate improvement.

There is also an article by Judith Trustman, Who judges the judges? about how complaints against judges are investigated by the Judicial conduct Investigations Office (JCIO), the limitations of its remit, and the alternative avenues of redress. A further piece by Michael Hayton QC (Where to turn) outlines the support offered by Heads of Chambers and Circuit Leaders.

There is an interesting parallel with the United States federal judiciary, as this tweet shows:

New QCs

It’s not all been gloomy on the advocacy front. This week 119 barristers and solicitors have been appointed QC. Congratulations to them all. Speaking at Westminster Hall to welcome their promotion, the Lord Chancellor David Gauke told them:

“Today represents a journey to the pinnacle of your profession. That journey has been more marathon, than sprint, and I congratulate you on lasting the course so far. The title of Queen’s Counsel is a mark of excellence, not just in this country but around the world, where it plays an important role in supporting the attractiveness of English and Welsh legal services more broadly.”

Policy

Meanwhile, in Brexitland…

With big political speeches coming out left, right and – very occasionally – centre, the formation of a coherent policy on Britain’s future relationship with the European Union still seems as unlikely as a rainbow coloured unicorn in parliament square (though come to think of it, that would make a great conceptual art exhibit for the Fourth Plinth up the road in Trafalgar Square).

At a recent country house weekend at Chequers  the Prime Minister sought to forge with her bickering ministers a coherent strategy on the government side, at least. (What this widely circulated picture appears to show is mainly those in blue suits on the left and those in grey suits on the right. Was this a coded message and, if so, what did it say?)

Meanwhile, Labour have dithered over what sort of customs union they still like the sound of, or want to pretend they like the sound of, stressing over the idea that it isn’t THE customs union, but merely A customs union – we want an ‘a la carte’ version of what everyone else is having from the fixed menu options. (To be fair a lot of Tory preferred options on the EU sound like that.) Jeremy Corbyn is apparently delivering his big speech in a place where they make driverless cars. (No one has yet invented a backseat-driverless car, though, and political parties are full of them.)

For more about Corbyn’s big speech, see Ian Dunt in Politics.co.uk: Labour’s new Brexit policy: Choose your own adventure 

On the subject of driverless cars, back in 2016 after the Queen’s Speech, in the days before the jolly old referendum whence all our woes,  Jeremy Corbyn likened the Cameron government to “a driverless car heading in the wrong direction”, according to the BBC. O how the wheel becomes it! (Unless of course it’s a steering wheel.)

We still await Theresa May’s big speech, in which all versions of government policy will be fused into a white-hot certainty of purpose. In the meantime, here’s some legal commentary, which may be more useful.

Joanna Hunt, on Free Movement, asks: Just how level do we want the Brexit playing field to be?

Cabinet ministers are suggesting a “level playing field” as meaning that EU nationals would be subject to the same immigration restrictions as non-EU nationals when visiting, working or setting up a business in the UK. But if we are going to apply a level playing field between EU and third country nationals after Brexit, European countries will probably apply similar restrictions to UK nationals travelling to the continent. Is that really what we want, asks Joanna Hunt.

Paul Craig, on the UK Constitutional Law blog, discusses the European Union (Withdrawal) Bill: Legal Status of EU Retained Law

He says “It is desirable that the status accorded to EU law in the UK post-Brexit matches, insofar as possible, the status accorded to that law pre-Brexit” and also that it “coheres with what we would recognize in our constitutional order as the divide between primary and secondary legislation.” Having considered the matter, he is “now of the view that a rational and workable divide between retained EU law that should be classified as primary legislation, and that which should be classified as statutory instruments can be made,” – for reasons which he explains in the post.

 

Supreme Court

Launch of Yearbook vol 8

The yearbook has beautiful illustrations by Isobel Williams (above) and Robin Sukatorn (see his Art 50 at the Supreme Court drawings), and was well received by those at all stages of their legal careers:

Dates and Deadlines

Gresham College lectures

Dealing with sex abuse: how does the family court assess risk?

 Lecture by Jo Delahunty QC at Barnard’s Inn Hall, Holborn, London WC1V 7DZ

1 March  2018 : 6:00 pm – 7:00 pm

And in case you missed it, Joshua Rozenberg’s talk last week on the MOJ’s court modernisation programme, Justice Online: Getting Better? is available to watch on video via YouTube

The written handout should soon be available on the Gresham College website.

 

Women in Criminal Law – launch event

The new organisation sets out to connect and promote professional women across the criminal justice sector.  Founded by Katy Thorne, and sponsored by the CBA, its patron is Lady Justice Heather Hallett. It will be working to support, inspire, mentor, empower and encourage women in criminal law.

It is being launched at a reception at the Law Society on 1 March 2018, at 7pm. Booking advisable.

 

Bridget Lindley Memorial Lecture 2018 

Louise Tickle, Guardian journalist and member of the Transparency Project will be talking about The Impact of Social Media on Family Proceedings and Family Law Journalism.

Date: 13 March, in Birmingham. Attendance on allocation basis only. For more details, contact the Family Justice Council.

 

Legal Aid Lawyer of the Year awards 2018

Nominations now open for the LALYs, closing 10th of April 2018. This year they have 12 award categories, including a new award to recognise the exceptional work of Practice Managers.

Full details via the LALYs website.

 

CP Conference 2018

#CPConf2018 in conjunction with The Transparency Project. This year’s conference is on Future Risk of Emotional Harm.

Save the date: 15 September 2018 Details via Eventbrite

 

Obituary

Sir Paul Jenkins KCB QC, Master Treasurer, Middle Temple

As we were going to press, we read the sad news of the sudden death of Sir Paul Jenkins, former government lawyer and Treasury Solicitor, recently appointed treasurer of Middle Temple, and a gentle, humorous, wise and even-handed voice on Twitter. He will be greatly missed. We reproduce his pinned tweet, which provides evidence of his approach to problem-solving in relation to media regulation (sadly not yet fully implemented):

There is a tribute from his chambers, Matrix, on their website. Messages of condolence can be sent to Jason Housden, Interim Chief Executive, by email or by post to Matrix; these will be passed onto Paul’s family.

There is also a Condolence Book at Middle Temple, where he was Treasurer.

 

Law (and injustice) from around the world

America

Presidential boost for law school applicants

The American Bar Association is reporting that the conduct of the current President of the United States, during and since his election campaign, has massively stimulated young Americans to want to read and understand, and defend, the law.

Under the title, The ‘Trump bump’ for law school applicants is real and significant, survey says, the ABA reports that

“We’ve seen significant jumps in both LSAT takers and law school applications over the past admissions cycle, which has fueled speculation about how much impact, if any, the 2016 election and subsequent political climate has had on this year’s law school admissions landscape,” Jeff Thomas, executive director of Kaplan’s pre-law programs, said in a press release. “We now have an answer: It’s significant. The (Trump) bump is real.

As of last month, the number of law school applications had increased by 10.6 percent when compared to January 2017, according to the Law School Admission Council.”

Canada

… has something called a Maple Syrup Lawyer. Many retweeters of this said that was what they wanted to be, along with jokes about being paid ‘sweeteners’ and boasting that however tricky the case they would never ‘bottle it’.

That, by the way, was your tweet of the week. That’s it for now. Thanks for reading and thanks for all the tip-offs in your tweets and blogs.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.