A Zealous Roundup: Bail Offences, the Criminal Charge, & Legal Aid Forensics

After a hiatus of some 18 months, I'd like to return blogging on a semi-regular basis. The approach with which I will be experimenting will be a sort of 'weekly round up' structure; thoughts on a few issues that have caught my eye recently, rather than extended discussion on single topics. That being said, this first one is longer than initially planned ! Comments/retweets welcome.

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REDUCTION IN OFFENDING ON BAIL: SOME THOUGHTS

Some interesting figures have been released in relation to offending on bail. In mid-August 2015, the Ministry of Justice (MoJ) revealed that offences committed on bail dropped substantially during the last Parliament. The figures were released in response to a Freedom of Information request, although it is unclear who made the request. The headline figure states that between 2010 and 2014 'the number of offenders convicted of committing an offence of any kind while on bail has fallen 48% from 69,348 to 36,053'. The response provides data on the various types of offences committed on bail. It is not clear whether the headline figure relates to ALL types of bail (i.e. police and court bail). A footnote for Table 2 of the response suggests that the figures relate to all types of bail; however, this table does not cover all offences on bail. It is not confirmed elsewhere which types of bail the figures cover.

The MoJ states that 'the overwhelming majority of people bailed do not reoffend' and adds that the figures demonstrate 'substantial progress since 2010 in reducing the number of offences committed on bail'. The first statement is fairly uncontroversial. The second should perhaps be questioned. In infers that some proactive strategy on the part of the Government has reduced offending on bail. What this might be is not specified. The reduction could be explained in a number of ways. For example, bail may be being granted less; the police may be detecting offences on bail more infrequently (perhaps due to cuts in police numbers); as the response admits, the recording process does not necessarily capture all those suspects/defendants who offend on bail.

The figures will provide useful context for a research project I am currently working on with Professor Ed Cape and Fair Trials International, entitled the 'Practice of Pre-trial Detention'. The project has involved a desk based and empirical examination of the use of court bail and remands in custody in England and Wales, alongside 9 other EU jurisdictions. The figures on offending on bail may help provide explanations for trends in the use of bail/custody at the pre-trial stage. For example, lower offending on bail may encourage courts to make greater use of unconditonal/conditional release. Of course, such conclusions must be treated cautiously, be the release of the figures helps create a more complete picture of the practice of pre-trial detention and release in England and Wales.
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THE NON-DISCRETIONARY NATURE OF THE CRIMINAL CHARGE IS IRRATIONAL

Blogger @jackofkent recently highlighted the rather shaky rationale offered by under-secretary for Justice, Shailesh Vara, for the non-discretionary nature of the widely criticised Criminal Courts Charge. Way back in March 2014, in a Parliamentary debate about the proposed charge, Mr Vara said:

'The UK justice system is one of the finest in the world, and our courts must remain independent and impartial. Providing the court with discretion over whether to impose the charge would risk creating a perception that our judges and magistrates were being given the ability directly to influence the funding of the criminal courts—a system of which they are an integral part and the success of which they have a vested interest in. We cannot permit the risk of such a perception.'

This statement essentially says the following: 

• Judges/magistrates want the court system to succeed 
• If judges/magistrates can choose to impose the charge, this might give the impression that they can make money for a system from which they benefit 
• This implies judges/magistrates may be tempted to abuse this power for their own gain

The conclusion is therefore that the judiciary cannot be given any discretion lest persons unknown believe the above to be true. As such, the court charge should be compulsory. This is fairly ludicrous for several reasons.

First, the uproar amongst the judiciary (including the resignation of magistrates) since the charge was introduced in April 2015 makes it very clear that they DO NOT want to order the charge in many cases. As such, the suggestion that judges/magistrates might want to over-use and inappropriately apply the charge is nonsensical.

Second, the statement implies that a) the MoJ believe the judiciary cannot be trusted to make fair and independent decisions because they may be tempted to abuse that power and b) that some other group of persons (the public maybe?) also believe this. There is no evidence to support this and it makes a mockery of centuries of judicial independence in decision-making. It undermines the judiciary. It also seems to contradict the statement that we have 'one of the finest' justice systems in the world if our judges can be so easily tempted into corruption.

Third, it is not clear that the Criminal Courts Charge directly benefits the court system or the judiciary. In a tweet on the 28th August 2015, @jackofkent reported asking the MoJ whether revenue from the charge would be fed directly back into the system - they refused to answer (although I cannot find any official/alternative source for this). Beyond the vague statement that the charge will go towards the cost of 'running the courts', the MoJ have provided no detail. Where the revenue generated will end up is at present a mystery. Additionally, there is no suggestion that it will personally benefit the judiciary (e.g. by contributing to salaries - and let's not forget that magistrates are unpaid volunteers).

Fourth, the MoJ's solution is wildly over-the-top. It imposes a blanket charge that is inflexible, frequently unfair, and punishes those without means. The charge can be grossly disproportionate to the offence in question (see the Howard League's campaign on this). To compensate for some vague impression that the judiciary would 'abuse' their discretion, the MoJ have chosen to remove it entirely rather than temper it. More rational responses would include:

a) Giving authority to a non-judicial figure for imposing the charge
b) Providing a set of strict guidelines on imposing the charge
c) Introducing some kind of gradation based on means
d) Not introducing the policy at all

Finally, it is faintly surreal that the MoJ wanted to avoid the perception that judges would be making money for the court system, so are obligating them to impose it. The charge is clearly designed generate revenue. The MoJ have said that the charge exists to recoup costs and is not a 'punishment' (although this is unconvincing in practice). By this logic, it must thus exist simply for the financial benefit of the court system - and judges are compelled to help with this. This seems equivalent to saying:

'We don't want you to choose to steal that old lady's handbag - so we're going to force you to do it.'

This is, quite simpy, irrational.

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FORENSICS IN CRIMINAL LEGAL AID: A HARD ROAD AHEAD?

In late August 2015, forensic science specialist Contact Traces announced that it would no longer be providing its services in criminal proceedings in England and Wales. In its departing statement, it expressed its dismay at the disappointing state of criminal legal aid and the impact that budget cuts were having on the legitimacy and effectiveness of the system. Chief Scientist Tiernan Coyle said:

‘I’d like to pay tribute to all our clients from the criminal defence sector... Over the years they have faced a daily struggle to get the necessary funds from a decimated legal aid budget; just so they can provide their clients an understanding of the strength of the scientific evidence against them – which is a fundamental human right.’

Clearly, Coyle saw the role of organisations like Contact Traces as playing an essential part in upholding ther right to a fair trial and equality of arms. It is difficult to dispute this. Not only do forensic services help question a prosecution effectively; they also assist clients to engage with the justice process - they can 'understand' what they are facing and why. This may help them make a more appropriate decision as to plea, etc. Equally, the same arguments apply for foresnic services provided to the police and prosecution.

As Coyle suggests, the ability of defence lawyers to access such services - and thus do their job - is diminishing with the criminal legal aid budget. For those who can, Contact Traces no longer be available to assist. Whilst alternative providers exist, one wonders how many are considering the viability of continued practice in criminal proceedings. If access to such services disappears (for both defence and prosecution), the integrity of criminal proceedings will be damaged. This should be seen as warning sign.

Making crime pay? Thoughts on defendant contributions to criminal justice costs

On seeing the Lord Chancellor's announcement today that convicted offenders will pay a contribution towards the costs of running the courts, my mind wandered back to fieldwork I conducted last year with criminal defence lawyers at the 'Justice For Sale' meeting. One of the questions posed in the survey I distributed asked whether convicted defendants should pay a contribution towards their legally aided defence. Interestingly, a majority (64%) said 'yes', with only 31% disagreeing. Whilst the two proposals - a contribution to court costs and a contribution to legal aid - are not the same, they both share the same underlying principle ('make the offender pay') and relate to costs drawn from the same pot.

Some of the reactions so far - primarily on Twitter and comments on news articles - have criticised the proposal. One might be led to believe that the idea of the defendant making a contribution is therefore not supported by those within the legal profession. However, the response in my fieldwork suggests that the idea of a convicted client paying for the costs of prosecuting them (in some form) is not opposed as strongly as one might think. Indeed, in their response to the 'Transforming Legal Aid' consultation, the South East Circuit of the Bar proposed the very same idea now announced by the Lord Chancellor.

The criticisms levelled at both the Lord Chancellor's proposal and my hypotethical one (by respondents to the survey) are similar. Foremost among them is the practicality of enforcing such orders against defendants who cannot afford to pay or may have to be chased for payment. The former problem renders such proposals redundant - if a defendant has no money, the order is meaningless. In the event that enforcement costs more than the amount sought, the latter problem means that such proposals are a false economy. Ultimately, both problems risk making a farce of such orders.

This would not, of course, be universally true. The South East Circuit paper presents arguments suggesting that enforcement could be achievable in an economic way. It has also been pointed out that enforcing such orders against wealthy offenders - who have benefited financially from their crimes - could be more realistic. However, this is not without issues. There currently appears to be a discrepancy between costs/surcharges ordered by courts (e.g. confiscation orders) and their actual enforcement - in short, only a small proportion of the proceeds of crime are actually being reclaimed. Adding more orders to the bill seems pointless.

In addition, one could argue that wealthy offenders are more likely to be able to 'hide' assets; a protection not so readily available to indigent offenders. This infers that such proposals could disproportionately penalise those with fewer assets. These defendants are also likely to be of a lower cost to the system than wealthy ones, who may be involved in complex and costly trials for fraud or drug offences, for example. Moreover, one might argue that certain costs (e.g. legal representation) could be paid for by wealthy offenders from their own assets, rather than freezing those assets and compelling an application for legal aid - which must then be recouped by the state at a later stage.

In general, the addition of another cost for offenders to pay - in addition to the existing victim surcharges and prosecution costs - seems needlessly complex and bureaucratic. It may well be that administering such orders will cost more than they are worth. If, as proposed in the fieldwork, a legal aid cost were also added, the system would seem rather ridiculous. Perhaps all of these costs could be rolled into a single order, distributed later on. Maybe, in practice, this is the reality; maybe to do so would also be costly, since some authority would have to be responsible for pursuing and distributing the money reclaimed amongst the beneficiaries. Perhaps the proceeds of this 'single order' should be returned straight to central funds, with the increased income allowing for increased funding to the CPS, HM Courts and Tribunals and legal aid providers, with an automatic payout to victims. One suspects that the individual beneficiaries would object, on the basis that they would never see the money.

A last thought. Since the courts service - including the payment of staff, running of the estate, etc. - exists in perpetuity and regardless of whether a defendant is convicted or not, is it really fair to charge convicted offenders for its operation? Those who are acquitted after a trial get equal use from them. They exist as a public service for the good of society, whether people are engaged with the system or not. In contrast, were a defendant to plead not guilty, obtain the benefit of legally aided defence representation, and then be convicted, he or she would have created a cost that would not have existed had he or she pleaded guilty. In this circumstance, it seems fair to ask for a contribution towards the cost of a service. Then again, the same scenario means electricity, heating and staff costs which could have been avoided.

Clear opposition to the Lord Chancellor's proposal amongst the legal profession would contrast with the responses in my fieldwork. This might be regarded by cynics as stemming from self-interest: convicted clients can pay for my costs but not those of the courts. This is probably unfair and inaccurate. No respondents expressed the view that costs should specifically benefit them - merely that contributions could help fund the justice system. Moreover, the contribution would likely be so small as to make little direct difference to the income of individual providers.

Speculating on the Public Defender Service: Some Questions

In an interesting move, the Ministry of Justice (MoJ) today announced the appointment of two QCs to the Public Defender Service (PDS). It also posted an advertisement to recruit more lawyers to the organisation. This follows the announcement of a new Head of Advocacy in October 2013. The PDS was created in 2001; it provides publicly-funded criminal defence services and is an arm of the state. Therefore, PDS lawyers are state employees with fixed salaries, much like the Crown Proesecution Service (CPS), whereas private firms of solicitors and the self-employed Bar - who supply the majority of defence services - are akin to independent contractors, paid with public money. The PDS is a small organisation. It has only four offices - in Cheltenham, Darlington, Pontypridd and Swansea - reduced from eight (Liverpool, Chester, Birmingham, Middlesbrough have all closed). The announcement has quickly generated controversy and drawn criticism, from the Law Society as well as the blogs and Twitter accounts of lawyers. The announcement raises a number of interesting questions, some of which do not necessarily have clear answers:

- Why are the Government investing money in expanding the PDS, whilst proposing fee cuts for all private criminal defence suppliers?

- Should more money be invested in a service which has been criticised in the past for being excessively expensive?

- Is the Government aiming to rebuild the PDS to its original size and beyond?

- Does the Government want to exert more control over the operations of criminal defence lawyers by making them state employees?

- Is this an overt indication that the Government would prefer criminal defence services to be delivered by an arm of the state?

- Is this a first step towards a US-style universal public defender service (which has been much criticised in recent years)?

- Why have the Government not explained their justifications for these appointments at a time of proposed contraction in the defence services sector?

- Does the expansion of the PDS, a public entity, stand in contrast to both the ideology and practice of the Coalition?

- Is the timing of the announcement designed to undermine current opposition to legal aid reforms, perhaps representing a threat that work can be taken away from the private sector?

- Does active recruitment suggest the Government are preparing for strikes by defence lawyers, which the PDS will be used to cover?

- Is the Government poaching key players, in the hope that others will follow? Is it attempting to create divisions between opponents of the reforms?

- Will the temptation of a guaranteed salary and benefits (e.g. pension, holiday, etc.) tempt private sector lawyers away?

- Why has a high-profile circuit leader decided to leave the private sector for the PDS?

- Considering two of the most recent appointments (David Aubrey and Gregory Bull), is there some link between the Welsh Circuit and the expansion of the PDS?

- What position have the two QCs been appointed to? Will they simply be advocates, or are they tasked with any management/business duties?

- Is it wise or fair to appoint QCs on high wages to an organisation that currently provides a very small proportion of criminal defence services?

- Do these particular appointments contradict the Government's implied attitude towards barrister fees i.e. that too many are earning too much?

- What sort of clients will QCs be serving? Will they be involved in VHCC case work? How frequently is high-value work undertaken by the PDS?

- Does the PDS have a monopoly in its operating regions? Does this damage quality of service because of a lack of competition?

- What current evidence is there that the PDS provides benchmarking for quality standards, as claimed by the Government in its 'Transforming Legal Aid' consultation?

- Does criticism of the PDS by privately employed lawyers stem from a fear of competition? Is the private sector truly as competitive as it claims to be?

- Is there an argument to be made that the PDS will provide a guarantee of services to clients should private firms and chambers close in the wake of cuts?

- In the long-term, can the PDS generally pay wages that will attract talent to publicly funded criminal defence work?

- Could a well-funded, properly managed, universal public defender service, with a robust ethical framework and competitive aspects, be as effective as the private sector? Is this a realistic goal?

- How robust would ethical protections for clients be in an expanded PDS? For example, how would the Cab Rank principle cope, how 'zealous' would representation be?

- Would an expanded PDS dilute the independence of advocates, employed as they are by the state?

- Will clients be able to fully trust state-appointed defence lawyers?

- Will  fluctuating pressure on public funding directly impact on the behaviour of lawyers via their superiors - for example, in making plea decisions, accepting clients, use of time for preparation of a case, travel, etc.

- Are the interests and aims of the PDS and the private sector so different as to prevent co-existence and cooperation?

- Considering its current size, would significant expansion of the PDS not take an enormous amount of financial investment and time? Are the Government (and subsequent Governments) willing to commit to this long-term?

- Would the expansion of the PDS require a large shift in clients away from their familiar lawyers? If so, would this create issues of trust between lawyers and clients? Otherwise, would there need to be a simultaneous shift of lawyers and clients to the PDS?

- If the Government is planning to expand the PDS, is it time for a fresh, independent assessment of its effectiveness and value for money?

Any thoughts on these and any other questions would, of course, be welcome !

Earnings of the Criminal Bar: It's all about timing...

With impending strikes across England and Wales by criminal barristers on January 6th, the Ministry of Justice has chosen to use the first working day of 2014 for a not-so-subtle pre-emptive 'strike' of its own. The MoJ has released figures detailing the earnings of criminal barristers in 2012/2013. The timing is clearly relevant. Whilst one might argue that the beginning of the year is a logical time for publishing such information, a search of the database of Government publications in recent years reveals that no such equivalent statistical release has occurred - not at the beginning of the year or, in fact, at all. As such, collating this information has presumably been specifically commissioned with both target (criminal barristers) and timing (prior to their strike) in mind.

The main findings that will likely be highlighted by the Government are the mean and median earnings - £72,000 and £56,000 respectively. Whilst the explicit purpose of the document is to provide the public with an idea of what criminal barristers' earned last year, I would argue that the implict purpose is to suggest that barristers aren't doing too badly financially. After all, £56,000 a year is more than double the average national salary. The logical progression from this conclusion would be  - 'how can barristers justify striking over fee cuts when they earn THAT MUCH??' The timing of this publication strongly suggests that invoking such a train of thought is the intention.

Importantly, the document clearly underlines the dangers of misinterpretation and the caution with which such figures should be treated. Factors that should be considered include: that the figures may represent several years worth of earnings; that VAT and disbursements (such as travelling expenses) need to be considered; that barristers must cover professional overheads (e.g. a proportion payable to their Chambers); and that the majority of barristers are self-employed and must deduct income tax and national insurance contributions from gross earnings. Moreover, other factors not mentioned should be considered. Self-employed barristers do not have state pension provision and so need to account for this from the earnings above. Barristers are also compelled by the Bar Standards Board to take out professional indemnity insurance - another cost to deduct. 

When considering the amounts earned, one must also remember that the work undertaken by barristers varies enormously in complexity. Very High Cost Cases are usually lengthy and technically challenging, representing the most difficult work criminal barristers can undertake. Harder work should mean a higher reward. Finally, barristers - like similar professionals - have trained for many years and undertaken extensive education in order to serve the criminal justice system, building up very large debts in the process. It seems only fair that such commitment, to a profession that many do not have the skill or determination to enter, should lead to a higher than average salary.

If one deducts the proportions above and weighs the indirect factors mentioned, £56,000 (as an average) begins to look a lot more modest. Add to this the stressful and sometimes traumatic nature of the work, and you have a salary that seems to undervalue barristers. The question is - will the Government, in discussing the findings, mention these factors or will they simply highlight the headline figures? One suspects the latter will occur. If so, this will surely be an attempt to undermine the strike action - which the Bar insists is about preserving a functioning justice system rather than protecting their salaries. One must, of course, consider this statement carefully too; it is rare for a group to strike for entirely altruistic reasons. But the implication that 'fat cat' barristers are striking over pay whilst earning large amounts is obviously misleading and underhand. It is also the oldest trick in the book. If the Government choose to pursue this tactic in the guise of balanced statistical analysis, it will surely be a new low.

Law Society vote of 'no confidence' - is unity the latest casualty of war?

In fieldwork I conducted In May 2013 at the 'Justice For Sale' meeting of criminal defence lawyers, the unity amongst the profession - solicitors and advocates, constituents and representatives - was pretty clear. The strength of agreement and the robust nature of this alliance was almost unprecedented, created by the near absolute rejection of the Ministry of Justice's legal aid reforms.

Nine months on, the picture is somewhat different and one might ask - is this 'unity' slowly dying in the heat of battle? The Law Society are now considered enemies by a substantial number of defence solicitors. Critics have been vocal and consistent in their condemnation of the Society's negotiation with the MoJ over the legal aid reforms. Yet, today's Vote of No Confidence saw a near 50/50 split between those wishing to bring down the executives who have apparently betrayed the cause and those who, for various reasons, wish to protect them. Unity might well be one of the reasons. Targeting the wrong enemy and wasting energy may be another.

Most striking is how different the internal dynamic is now when compared to May 2013. Defence solicitors no longer seem to be singing from the same hymn sheet, regardless of their differences; and unlike the Bar, there does not seem to be a clear plan of action for the future. They appear to have lost sight of the greater goal. When an opposing force is dvided, there is clearly an opportunity for the enemy (in this case, the Government) to take advantage. Internal squabbling and power struggles are likely only to dilute the power of the campaign against reform. Unity was the primary strength of the profession - that now appears to be at serious risk. Moreover, the spotlight will shift away from the substantive issues to the grisly business of politics.

Perhaps the recriminations can wait until later, whilst there is still a war to be won?

VHCC fee cuts: A sign of things to come in criminal defence work?

Having been engaged in fieldwork over the last 6 months, I've neglected to keep up blogging. With a new year approaching, I'd like to try and renew it with more posts - so here's the first.

Today, a variety of changes kick in relating to the funding of criminal legal aid in England and Wales. Chief among these is a reduction of 30% (possibly more in some cases) in the level of fee paid to lawyers for Very High Cost Cases (VHCCs) in criminal work. These involve lengthy preparation, complex issues, technical knowledge and extensive proceedings in court. They are the toughest cases and thus are generally handled by the best practitioners. VHCCs usually involve serious offences such as fraud, terrorism, murder, sexual offences, drugs, etc. Any threat to the integrity of these criminal cases is therefore of great significance.

The cuts in fees affect legally aided VHCC work - in short, those who cannot afford to pay to defend themselves and are reliant on the state. In light of the large reductions in effect from today, an indeterminate but apparently significant number of criminal defence advocates will be returning ongoing VHCC work and refusing future briefs. The concern this raises is that defendants in VHCCs will not be able to obtain representation, effecting the fairness of trials. 

An example of this was recently cited by retired Court of Appeal judge, Sir Anthony Hooper. In R v P [2008] EW Misc 2 (EWCC), a convicted drug dealer faced confiscation of the proceeds from his offences. The values involved ran into the millions and the issues were complex. No lawyer could be found to represent the defendant due to the low fees, 'deemed' (as the Bar's terminology expresses it) as insufficient remuneration for the level of work involved. It was held that the proceedings should be stayed as the defendant could not have a fair hearing. The confiscation therefore did not take place.

This case may represent an harbinger of trouble to come. If the logic of the judge in R v P is followed, potential offenders may escape justice if left without representation in VHCCs involving serious matters. Equally, if proceedings are not stayed, unrepresented defendants may be faced with serious challenges to their Article 6 rights. Judges will have to deal with this; delays may be caused; appeals will likely increase; miscarriages of justice could occur.

The Government has expressed its confidence that replacements can be found in place of those lawyers rejecting the fees. Presumably, these 'supply' lawyers will not be of the same quality; after all, if large numbers of the best representatives turn their back on VHCCs, why would anyone at the same level, with the same experience, choose to fill the void?

Those with something to gain from this situation are the less experienced (and possibly less able) defence lawyers, who see the opportunity to act in a VHCC as being more valuable than the fee offered. As such, one would logically presume that the quality of VHCC representation would inevitably diminish. This in turn implies that the Government's insistence that its reforms to legal aid will not damage quality cannot be accurate. 

The VHCC cuts and their aftermath may therefore represent a test-run for the broader roll out of fee cuts next year, which may only leave two outcomes for defendants: no representation or poorer representation.

Doctor Grayling: A Short Story

Chris Grayling has unwittingly been appointed the shift doctor at a busy A&E. He has no medical qualifications and no experience in treating patients. A man , Mr CJ System, comes into the department with a badly broken leg. Mr System knows he is broken, but luckily he is a doctor and has a good idea of how one would go about sorting his medical issue. Mr Grayling does not. He’s also been told in no uncertain terms by hospital management that he must save time and money in doing his job ! 

“Hmm” thinks Doctor Grayling, “there’s something wrong here, but I have no idea what I’m doing. But I’ve got to do SOMETHING”. Complicated surgery is way beyond his capabilities, would take quite a long time, and cost the hospital cash. He doesn’t want to ask anyone else – after all, he’s the shift doctor and it’s his job to sort the problem.

Suddenly Doctor Grayling thinks of a solution – he’ll just cut the leg clean off ! That will save time and money, and fix the problem of the broken leg (sort of). After all, Mr System can just use a crutch or a cheap artifical leg instead, right?

“DEAR GOD!” screams Mr System as Doctor Grayling hacks away at his leg, “What are you doing?? I know how you can save my leg!!”

“Now, now, quiet down” says Doctor Grayling ,“I’m just doing my job. Patients just don’t know what’s good for them sometimes !”

THE END (Probably)