Michael Turner QC on direct action and a united Bar

‘Organising barristers… is a bit like herding cats. Is there any chance of getting us to agree on anything?’ began a posting on the Criminal Bar Association web site at the end of last month. Well, apparently, there is. According to the ‘legal aid barrister’ (in whose name the post appears) in ‘the robing rooms of London’ there is ‘a rare unanimity’: things have gone too far.

‘The only thing that we can do, the only thing that can force the government to change their mind, is direct action,’ the barrister argued. ‘Not a phased-out withdrawing of instructions as happened before (that was doomed to fail), but a shut down of the Crown courts for a period of time to show that we are serious.’

So is the Bar really about to man the barricades and down wigs? ‘Absolutely, as to the nature of that action we aren’t prepared to say at the moment,’ says Turner. The barrister, who practices at Garden Court Chambers, insists that there is ‘absolute unity within my profession’ and (less likely) ‘within the solicitors’ profession, now joined with the Bar’. ‘What is happening is not about cost savings to the taxpayer and it is not in the public interest,’ the silk adds.

Those two dread acronyms – QASA (quality assurance scheme for advocates) and OCOF (one case one fee) – were, according to our legal aid barrister, ‘part and parcel of a new plan for legal aid that will spell the end of the independent Bar’.

‘These aren’t factors conspiring by chance,’ says Turner. ‘The regulators are introducing a QASA system that has nothing to do with quality assurance whatsoever. It has everything to do with restricting client choice.’

Turner is particularly exercised by a new report published by the Legal Services Board on the cab rank rule. ‘We are not convinced that it even is a proper rule,’ argue the authors, Professors John Flood of the University of Westminster and Morton Hvvid of the University of East Anglia. ‘It seems at best a statement of principle masquerading as a rule in order to make it appear to have more teeth than it does.’

‘How dare they?’ fumed Turner in a recent newsletter. ‘This is a further demonstration that the LSB is a politically motivated body whose mission is the wholesale destruction of the publically funded criminal Bar.’

‘We are legal aid lawyers’
The LSB hasn’t said it supports the report’s findings. The authors claim that the many exceptions to the rule, including the exemption for legal aid work, ‘virtually emasculate’ it. Turner counters that the authors argue that the rule is ‘breached on a daily basis because specialist Chambers refuse to work outside their specialism. Really, that is a complete misunderstanding of the rule.’

The legal aid exception was introduced because ‘everyone has decided that the fees for legal aid are completely derisory’, the silk says. ‘You cannot force barristers to work on slave wages. However those of us who continue to do legal aid work don’t refuse it on any other basis than we are booked up. We are legal aid lawyers. We believe it is important.

‘The idea that legal aid lawyers are picking and choosing, taking one derisory fee over another, is absolute nonsense.’

Turf war
Jim Meyer, of the London Criminal Courts’ Solicitors Association, recently accused the criminal bar of using QASA as an excuse for a ‘turf war’. The debate needed to be seen ‘in the much broader context of a battlefield on multiple fronts, including the Bar extending its direct access scheme and the proliferation of barristers training to be duty solicitors’, he argued.

‘For every barrister facing problems, there is a criminal solicitor facing redundancy… what is unhelpful to the debate is narrow self-interest of one group of stakeholders being promoted above the wider interests of clients’.
Jim Meyer

Meyer is also senior partner of the largest criminal defence practice Tuckers and has his own particular vantage point on the debate. The larger firms are ‘coming from one angle… to feather their own nests’, counters Turner. ‘They want to screw not only their profession but also the Bar; they want to become the suppliers.’ The complaint over direct access is ‘a nonsense and no threat to solicitors’. ‘The bar isn’t en masse going to get trained for police station work,’ he adds.

Restrained assets
The CBA has its own ideas about making economies and, in particular, has been calling on the restrained assets of wealthy defendants to be unfrozen to meet defence costs. ‘Allowing the release of funds to cover legal representation would save a significant amount of expenditure in the overall legal aid budget,’ the group argued recently; adding it was ‘particularly important’ as a small minority of very expensive criminal cases account for a significant proportion of the criminal legal aid budget. ‘[Many] of these involve instances of very wealthy defendants receiving legal aid for defence costs that could be covered by restrained assets,’ the CBA said.

How much are we taking about? ‘The government won’t release the figures,’ says Turner. ‘They have been asked countless times and claim the Data Protection Act. They argue they need it to compensate the victims. Most of these cases have no identifiable victims. The victim is either the taxpayer on a VAT carousel fraud or a whole series of poor drug addicts where they find a drug den.’

Silk cut
As reported last week, the earnings of silks came under attack form the Justice Secretary. ‘If you look at the daily rate for a senior QC it can be between £1300 and £2,000. For somebody who’s going to become a QC in a month’s time, it’s just over half that amount,’ said Chris Grayling on BBC Radio Four’s Today programme last month.  ‘The question is can we really afford so often to use people who are paid such an additional higher rate compared with somebody’s who’s nearly as experienced, who’s a seriously competent barrister, who will become a QC one day if they choose to do so?’

In light of the savage nature of the LASPO cuts, especially to the civil side, surely it seems perfectly legitimate to look to the senior bar to make economies? ‘The question presupposes that it is necessary in order to save money. It is not,’ says Turner.  ‘What is happening all over the country is juniors being put out to prosecute serious cases, cases collapse and then a silk is brought in on the retrial to cure the situation. That’ s no saving to the taxpayer at all.’

 ‘The debate signals an attitude towards the victims of crime that is in my view absolutely disgusting. They’ll trot out a serious silk to prosecute on a charge that the 10-year call junior could do falling off a log; but when it comes to the murder of someone’s son by a street gang, they say: “No, we are not prepared to give you a silk”.’

No competition
The silk is quick to say that this ‘isn’t a competition between my civil brothers and sisters and myself. I support them to the hilt.’

Turner continues: ‘This government continues the work of the last in seeking civil legal aid in the hands of the private sector. But if you look at the private sector contracts already up and running, and you can see how the taxpayer is completely and utterly conned.’

The barrister is unimpressed by the ongoing deregulation programme under the Legal Services Act and the introduction of alternative business structures. The prospect of legal aid contracts going ‘into the hands of the likes of the Co-op, Eddie Stobart and ABSs’ is ‘absolutely extraordinary’, he says. ‘Once you are an ABS, you’re paying corporation tax at 23%. It’s all about handing it over to the private sector who are fleecing them on contract price and then they aren’t even getting the amount of tax back that they should.’

According to Turner, a study of the Old Bailey found the cost per minute of running a courtroom with a jury was £110. ‘Delays in our court system are endemic for huge variety of reasons: waiting for the prosecution to get disclosure right; the privatised prison service can’t get the prisoners to court on time, often not all; ALS cannot provide a proper translator, either they cannot speak English or they cannot speak the language of the defendant and often they don’t turn up at all. All that represents a bill picked up by the taxpayer on a tab that the taxpayer never sees.’

 

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About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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