Justice is under attack – allies must unite and fight back

An exercise in confidence building is urgently needed to enable a powerful alliance to be forged between barristers, solicitors and others working in our beleaguered criminal justice system. Solicitors and barristers could each cite past ‘crimes and misdemeanours’ or grievances about a failure here, and alleged betrayal there. Some of which may be true, some exaggerated and some simply unsustainable when exposed to facts. In the past actions have begun in an ad hoc unilateral way with inevitable defects exposed as they were initiated without proper planning and liaison.

History is in danger of repeating itself.  It is hardly surprising that one side or the other is left unsatisfied at what they feel is a lack of adequate support from the other or where the timing of respective action is uncoordinated leading to such failure and resentment. I was there and bear the scars of one side or the other at various levels undermining either each other or at times some lawyers even undermining their own representatives. The frustrations of leadership in being unable to reveal the truth at the time haunts me still. But the mature and sensible thing to do is to remember that for a brief shining moment in the recent past there was a round table around which the professional representative bodies had regular strategy meetings and did work well together – until they didn’t. Let’s get back to that better time when they did.

History is not ‘bunk’ but is unhelpful at times if we dwell on it and do not move forward. Often we have our own version of the truth sincerely held in contrast to others who firmly recollect the same ‘facts’ differently. I share responsibility in responding to what I considered to be unwarranted attacks on colleagues when perhaps a self-denying ordinance would have been better. (Personal loyalty has a strong pull for me). My point here is that we need a clean slate and a fresh start with all taking a deep breath and diving in fresh waters where the past can be cleansed and a sense of renewal embraced.

In WW2 It may have been General Eisenhower who said to the joint US and UK allied headquarters staff at SHAEF:  ‘I don’t care if you call someone a SOB as long as you don’t call them a Limey or Yankee SOB. If you do – you are out.’

The same spirit must from now on pervade the approach of the leaders of the profession to build cross profession trust. If you disagree with a proposal – do so on the merits not because of its originator thus giving rein to a pre-formed parochial agenda. I am sure the leaders of the profession being exceptionally bright and focused can do this if given the space by their respective constituent membership. Above all commit to no separate deal so a signal can be sent to HMG that they will not divide and conquer as we stand united, indivisible in our desire to save access to Justice for the people.

In my view the present bar action should of course be supported and extended but paused temporarily in implementation to enable the whole profession to re-group and reach out to each other. Then immediate talks should be commenced across the profession and beyond, to work out what needs to be achieved and how to effectively achieve it in the quickest possible time.  This will have to be realistic without imposing impossible demands upon each other that would be catastrophically terminal for individuals or firms. There are effective possibilities here that each side will be aware of, which can be brought to the table and also can be potentially be delivered.  (Discretion suggests public speculation on tactics is not wise)

As documented elsewhere, the expenditure on legal aid is an infinitesimal amount of the Government budget. It has fallen considerably along with volumes of crime according to all measures. This is what the independent highly respected Oxford Economics report said:

The results show that under none of the three forecast scenarios assessed does total criminal Legal Aid expenditure increase over the next five years. Under the baseline it remains constant at around £872 million by 2021/22. Under both alternative scenarios, expenditure falls—by almost £20 million under the first scenario and by £111 million in the second if we allow both crime and prosecution rates to continue to change in line with the trend since 2010/11. In this latter case, almost three-quarters of the saving results from reduced volumes of crime higher cases—related to more serious, lower-volume, higher-cost Legal Aid work in the Crown Court.

In fact as we all know crime volumes are constantly falling so the base line is likely to be re-adjusted downwards. See this from HMG’s own figures published on March 29, 2018. (here)

Workload and expenditure fell in most areas of criminal legal aid between October and December 2017 and the same period of the previous year.

So expenditure is falling but still discredited austerity drives policy at the MOJ.

The fat cat lies are no longer believed and contrary to the Ministerial mantra our expenditure was never above average in comparison with other nations according to the briefing for The House of Commons Justice Committee ‘Comparing International Criminal Justice Systems’ – see here.

We are winning the debate on access to Justice. See the recent press coverage of the crisis in legal aid and in the CJS and the sea change in comment which has lately been favourable to the cause of saving legal aid due in part to the disclosure scandal plus the impact of the Secret Barrister’s wonderful book The Law and how it is broken to whom we are all so indebted.

Also several parliamentary committees reporting on the justice system have focused hard on the continuing collapse of legal aid and Justice. Meg Hillier MP, chair of the House of Commons’ public accounts committee, said:

An effective criminal justice system is a cornerstone of civil society but ours is at risk. Too little thought has been given to the consequences of cutbacks with the result that the system’s ability to deliver justice, together with its credibility in the eyes of the public, is under threat.”

The report concluded:

The system is already overstretched and we consider that the Ministry of Justice has exhausted the scope to make more cuts without further detriment to performance.’

The professional bodies should unite now and campaign, reinforced by action for:

  1. Significant funding injected into both the LGFS and AGFS. (Preparation and advocacy fees)

  2. An Independent Pay Review Board with rates Index linked to inflation.

  3. Adequate funding for our dilapidated court estate.

  4. Whatever other reasonable demands should be made such as reforms to listing and criminal procedure rules to deal with the disclosure of evidence crisis.

We should treat this as a war scenario and plan with absolute care and precision. It will take time and effort from hard pressed and grossly undervalued officers of respective committees. We should then (observing the law) set out the proposals discreetly as possible to our respective members. If they sense the hard work and planning involved there is every possibility they will take confidence in that and will follow in a critical mass. You will always find some contemptible greedy or myopic people who are willing to betray colleagues but they may be marginalised by the coalition of the willing of both branches and others who will exert a pincer movement to force HMG to save the criminal justice system from the consequences of its own unjustifiable betrayal of justice. No one, least of all those legal aid lawyers dedicated to the service of clients wants them to suffer. But without our taking a stand now generations of future citizens will be denied access to justice in any meaningful form as legal professionals drift away from criminal work and the training legacy for future lawyers and judiciary is snuffed out through neglect. Our international reputation as a skill centre of legal excellence lost for ever.

Robin Murray

About Robin Murray

Robin Murray is founder of Robin Murray and Co (part of Tuckers Solicitors) and former vice chair of the Criminal Law Solicitors Association. He was a joint winner of the 2015 Legal Aid Lawyer of the Year Award for fighting the legal aid cuts

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