The
Criminal Lawyer
CLSA
CLSA’s
JANUARY
2008
ISSUE 7
T H E J O U R N A L O F T H E C R I M I N A L L AW S O L I C I TO R S ’ A S S O C I AT I O N
Call for unity
The CLSA held its annual conference last month at Thame, near Oxford
Ian Kelcey, the CLSA’s outgoing chair, launched
the day’s proceedings with a minute’s silence in
tribute to Paula Rohan, freelance journalist and
friend of CLSA who very sadly died at the age of
32. Mr Kelcey said: “Paula was totally committed
to her work, and all who knew her will recall her
enthusiasm for the subject of legal aid.
“Our thoughts and condolences go out to
Paula’s family at this sad time. She will be missed
but not forgotten.”
The overwhelming message in Mr Kelcey’s speech was a
call for the profession to unite to put “the playground
bullies otherwise known as the LSC and the government
in their place”.
“We have been disregarded, lied to, lied about and dealt
with with contemptuous arrogance by those two
organisations,” Mr Kelcey said.
“We have been proud to be able to say over the years
that those in receipt of legal aid would receive as good a
service as those paying privately. Those of us in this room
know that to say that to a client now would be dishonest.”
Instead, he said, we should be pointing out to clients that
legal aid is a limited service because the government is not
prepared to fund it properly.
With resolve, we could bring the government back to the
table. “We know that the court system cannot survive
without us,” he said, adding that he was frankly worried for
his own practice, “but more importantly, petrified for the
criminal justice system”.
Jonathan Sedgwick, the acting chief executive at the
Office for Criminal Justice Reform, reported on progress in
the five strands of the 2004 reform strategy. Public
confidence was increasing and victim and witness
satisfaction had seen some improvements, he said. In terms
of the third goal, bringing more offences to justice, Mr
Sedgwick said he could see that the way the targets were
drawn may have had some negative consequences, and that
improvements needed to be made.
Real progress had been made in terms of effective
enforcement, for which “we give ourselves modest ticks,”
he said.
In the fifth strand of the strategy — “a modern, joined-up
criminal justice system” — there was more to do, Mr
Sedgwick admitted. He acknowledged that his office had not
engaged well enough with bodies such as the CLSA.
The goal for criminal justice in 2011 included more
effectiveness in bringing criminals to justice; increased
public confidence in the effectiveness and fairness of the
CJS; the placing of all victims at the heart of the system;
and using technology to simplify processes to enable the
police to focus on tackling crime.
“Underpinning the vision is that the process of decisionmaking is in its own right one of the benefits of a civilised
society. It is important because it inspires public
confidence. That drives all we do.”
“We have been proud to be
able to say over the years that
those in receipt of legal aid
would receive as good a service
as those paying privately. Those
of us in this room know that to
say that to a client now would
be dishonest”
Continued on page 2
IN THIS ISSUE
4 LEGAL AID
6 FIXED FEES
8 JAMES
10 BOOK
11 DIRECTOR’S
12 VIEW
DOWN UNDER
Vicky Ling makes
sense of the
changes
MORTON
REVIEWS
REPORT
Casting a practised
eye on expert
witnesses
Cross-examination
and a survival guide
FROM THE
(NEW) CHAIR
An Australian
experience for
Joy Merriam
CRIMINAL LAW
SOLICITORS’ ASSOCIATION
Edited by:
Sharon Wallach
Tel: 01763 273376
Email: S.Wallach@btinternet.com
Continued from page 1
“Efficiency is a
wonderful thing
unless it’s
combined with
saving money”
Published by:
The Criminal Law Solicitors’ Association
Suite 2 Level 6
New England House
David Kirk,
director of the
Fraud Prosecution
Service
New England Street
Brighton BN1 4GH
DX 2740 Brighton
Tel: 01273 676725
Fax: 01273 676231
Web: www.clsa.co.uk
Director:
Rodney Warren
Email: rw@clsa.co.uk
Administrator:
Sue Johnson
Email: sue@clsa.co.uk
Designed by:
Jonathan Payne
Email: jpdesign@fireflyuk.net
Printed by:
RAP Spiderweb Ltd
Tel: 0161 947 3700
Email: enquires@rapspiderweb.com
CLSA
2 The CLSA’s Criminal Lawyer
Next came David Kirk, director of the Fraud Prosecution Service, who
departed from his script to describe his own experiences “moving back and
forth between prosecution and defence”. He rejoined the CPS last year
after 18 years of defending, where, he said, “the landscape was very
unfamiliar”. Money was now at the core of all issues. “Efficiency is a
wonderful thing unless it’s combined with saving money”.
Turning to his current role, the FPS was concentrating on the Attorney
General’s fraud review, the 2006 Fraud Act and non-jury trials. He called
for dialogue; “the defence is not the enemy”, he said.
Professor Ed Cape and Roger Smith, director of Justice, then took the
stage. Professor Cape, director at the Centre for Legal Research at the
University of the West of England, spoke on the future for criminal
defence lawyers in a “modernised” world. The word “modernised” was, he
said, an annoying term, part of the nonsense language used as a
justification for many government policies, a deliberate ploy used as cover
to hide fundamental changes.
Summarising current and future trends, Professor Cape listed cutting
legal aid entitlement and quality; increase of police powers and a move
towards a summary justice system; and the change of our adversarial
system — but to what, he asked.
The word
“modernised”
is an annoying
term...
Professor Ed Cape,
director at the Centre
for Legal Research
at the University
of the West of
England
C L S A
He suggested there was a pattern whereby the government
was seeking to diminish the role of defence solicitors in the
criminal justice system. Making justice simple, speedy and
summary was also reducing that role.
Roger Smith launched on an impassioned speech,
beginning with the stark warning that the number one
problem was money. Jack Straw, he said, was not interested
in legal aid; his imperative was to keep the budget within
£2 billion. The identity of the legal aid practitioner was
disintegrating; as far as the government was concerned
there was only one game in town for containing expenditure
— compulsory competitive tendering.
Relatively little future existed in legal aid — apart from
various niche areas — for small operations. “We are facing a
change of provision that will come whatever,” he said.
“Criminal justice has been over-politicised as an issue, with
no money to go with it.” It was a major failing of social
policy over the last 20 years, not necessarily deliberate.
On the brighter side, Mr Smith insisted that lawyers had
an inherent resistance to authority. “I won’t have it that
it’s all doom and gloom. Lawyers won’t give up. I’ve seen
that all round the world.”
He won applause for his call to stand firm over the right
of the client to choose his lawyer. The way that legal aid
was being separated from this right had implications in
C O N F E R E N C E
“Criminal
justice has been
over-politicised
as an issue,
with no money
to go with it”
Roger Smith,
director of Justice
terms of human rights and good practice and policy. “The
selling off of clients as though they are dodgy loans is
offensive.”
Breakout sessions after lunch were led by Andrew Keogh,
on higher rights, and Penny Owston, on working with fixed
and graduated fees.
The association’s AGM saw Joy Merriam take over the
chair of CLSA from Ian Kelcey.
Message from a sponsor
Criminal Law Week was delighted to sponsor the
2007 CLSA conference. Cited in all courts including
the House of Lords, Criminal Law Week is provided
to more than 15,000 criminal law practitioners
including all of the judiciary and magistrates’
courts’ legal advisers, the Ministry of Justice, the
Crown Prosecution Service, and all police forces in
England and Wales via PNLD. Subscribers also
include barristers, solicitors, government
departments, law libraries and academics.
Many of solicitors’ firms subscribe to Criminal Law
Week Plus, the package designed specifically for
them, enabling all criminal law practitioners to have
individual access to Criminal Law Week Online for
one firm subscription.
Criminal Law Week Online provides:
• a database of over 10,000 digests of all reported
criminal cases and relevant legislation
• weekly issues
• new update feature
• links from digested cases to full-text transcripts from
Casetrack
• editorial commentary on developments of particular
interest provided by James Richardson (editor of
Archbold)
• annotated full-text statutes service
Criminal Law Week CPD distance learning course is
free for all Criminal Law Week Plus subscribers, thus
enabling them to attain up to 75% of required CPD
hours at no extra cost.
Criminal Law Week has also begun offering CPD
seminars; details can be found on the Criminal Law
Week home page.
• powerful search engines
• comprehensive tables and subject index.
For further information on Criminal Law Week please
telephone 01483 414 040, email Katherine@criminallaw.co.uk, or visit our website at www.criminal-law.co.uk
The CLSA’s Criminal Lawyer 3
L E G A L
A I D
I N
O Z
Vive la
difference
A trip to Australia made me proud to be a British lawyer, writes Joy Merriam
In early spring I realised a long held
ambition and travelled to Oz to stay
with my flatmate from university. I
was determined to forget all about
criminal law, the LSC, Carter et al for
three blissful weeks.
On the second morning my friend had
to visit the local cop shop to make a
statement about her husband’s stolen
pedal cycle. Well, curiosity got the
better of me and we went together to
sleepy Hornsby police station, where
we were met by a senior constable
resplendent in shorts and T-shirt. My
friend duly identified the bike and
made a statement. She asked what
happened next; the officer explained
the case would go to court and as the
defendant had legal aid he expected
lots of adjournments, or mentions as
they call them. He would then
probably plead guilty. I couldn’t help
but declare an interest and asked the
officer about crime in suburban
Sydney. He was quick to point out he
usually worked on drug busts — “ice”
(crystal meth) being the main drug of
choice in Oz — he had a drug bust in
court that day but the case would not
be on till the afternoon.
He remarked that we may see
something in the local court next
door, but our best chance to see some
action would be at Sydney Central
court on Monday. We duly trotted next
4 The CLSA’s Criminal Lawyer
door to find nothing but traffic, and
we settled down to watch a trial. The
defendant was unrepresented and the
prosecutor inept. However the DJ was
spot on, and as I predicted to my
friend, threw the case out for a weak
ID. My friend was horrified (having
been impressed by the victim) and
was even more shocked when we saw
the defendant get in the case officer’s
car, presumably for a lift home! The
dinner party circuit in Sydney was
regaled with this injustice for the rest
of my stay.
I decided to make further enquiries
and rang the Crown court to ask for a
local defence lawyer contact. So it
happened that early on Monday
morning I was sitting in the office of a
senior lawyer in Sydney’s legal aid and
assistance department. He explained
that after the war, Australia, like the
UK, had set up a publicly funded
defence service that was primarily
provided by State employees. He did
not like the term public defender for
some reason. All the major courts were
covered by these employed lawyers
and in local courts the work was
subbed out to private practice. The
basic fee per case was low (around
$200) but the lawyers were paid court
time on top, hence, he said, the
number of mentions.
Furthermore, he explained that the
inept prosecutor I had seen was a
police officer — police officers carry
out much of the summary work (a bit
like the old court presentation officers
for those old enough to remember
them). He knew all about the Carter
review and was pleased to inform me
that Australia spent less per capita on
legal aid than the UK. (I subsequently
sent him, at his request, the CLSA
response.)
I arranged to meet him afterwards
for feedback and he explained that in
Sydney Central the custody and bail
courts were in separate buildings.
We headed off to the custody court
expecting a busy morning. There was
one case called on: an adjournment for
a rehab place where reports were not
ready. The defendant waved cheerily
to his mum in the public gallery — “but
that means he will spend another two
weeks inside,” my horrified friend
exclaimed. Nothing else was ready —
so pretty much the same as the UK.
The judge retired and I managed to
get backstage to see him. He explained
that this was par for the course and
the custody cases would not be arriving
till the afternoon; however the
next cases were by video link and
would proceed.
Back in court I then witnessed an
astonishing list of cases where the
prosecution was not ready to commit.
L E G A L
A I D
I N
O Z
“The thing that
shocked me
most was
the way the
custody clients
were completely
disengaged from
the process”
Joy Merriam outside Sydney Central court
In every case there was no enquiry by
the court and no opposition by the
defence. However, the most surprising
thing was that the defendants did not
appear even by video link. They had
been told the case would not proceed
and had consented not to be produced.
This was understandable in view of the
lack of opposition by any lawyer to the
adjournments. It made the earlier two
week adjournment for the rehab client
seem innocuous.
About 11 am the court dried up
altogether so we went to try our luck
at the bail court. There the cases were
almost exclusively motoring, many of
them excess alcohol. Despite this
apparently being a serious offence, low
sentences of three month bans were
handed out. More interestingly, one
defendant, who had clearly instructed
a lawyer privately, was able to
persuade the judge that a particular
section applied. Consequently, he did
not sustain a conviction at all, despite
an admission. The cases were all
prosecuted by police officers and I
spoke to one who explained they are
trained for this purpose and that it was
quite a cushy number.
We met our friendly defence lawyer
afterwards. He explained that there is
a section under Australian law (which
can only be used once) when a judge
can agree that a conviction is not
recorded. I asked him about the video
link and the defendants not being
produced. He seemed surprised by this.
My conclusions were that the
Australian system is cheaper than ours
because there is considerably less
crime. The Sydney Central court was
very quiet compared to courts in
British inner cities, so a cost per capita
when the crime rate is low is not a
useful indicator. However, the thing
that shocked me most was the way the
custody clients were completely
disengaged from the process. In a
system where work and a salary are
guaranteed there is no incentive to
fight for your client. This has
implications for the cost per case (LSC
take note), but more importantly for
the integrity of the criminal justice
system. A society where lawyers do not
stand up for the poor and oppressed is
not in my view a civilised society and,
as I said at the start, I came away from
the experience feeling proud to be a
British lawyer.
Footnote: The man who stole my
friend’s husband’s cycle pleaded guilty
on the first occasion and received a
community penalty.
The CLSA’s Criminal Lawyer 5
F I X E D
F E E S
Right place,
Continual changes in the timetable for the reform of criminal legal aid have increased
uncertainty amongst criminal defence practitioners, writes Vicky Ling
The LSC has recently announced that
the introduction of fixed fees in police
station cases has been postponed until
January 2008. However, since 6 April
2007, revised standard fees for
magistrates’ court work, which
included a fixed element for travel and
waiting, came into effect in 16 main
urban areas. The timetable has
slipped, but the substance of the
changes has not. Firms will need to be
more efficient than ever before if they
are to make a profit.
The level of the new fixed fees
means that firms will need to reduce
travel and waiting, as these elements
will be rolled up into the overall police
station fee. Some fee earners will need
to spend more time working away from
the office, to reduce travelling and
waiting times. This means they will
need laptops so that work can be done
anywhere and downloaded from home
onto the office network.
Allocation, allocation, allocation
Successful crime firms are generally
busy and flexible. They know that what
gets them repeat work is a high level
of client care. This creates huge
logistical problems as the work that
needs to be done changes continually
through the day: for example, cases
that run over the lunch break, clients
who are not produced at court after
all, the police who are unexpectedly
ready to interview, or a client who gets
arrested. None of these things can be
planned for in detail a month or even a
day in advance. At the centre of good
crime firms there is usually an
outstanding administrator, working
closely with a partner for support when
necessary, who knows the clients and
the lawyers, and can continually
allocate work throughout the day.
Larger police station boundaries
which the LSC may introduce in some
areas, combined with performance
targets, could mean that firms will
struggle to cover their new duty slots,
although de-restricting the work that
can be done by police station
representatives could help resolve this
problem. Unfortunately, by allocating
work on the basis of the numbers of
duty solicitors employed, the LSC has
made it more difficult for firms to
reduce their costs by substituting some
accredited representatives for some
“The precise division of labour will depend
on the type of crime a firm does, but
partners and supervisors will need to
become expert in segmenting a case into
individual tasks and getting someone at
the right level to do it”
6 The CLSA’s Criminal Lawyer
F I X E D
F E E S
right time?
“Firms will have to get much better at
ensuring that all fee earners spend as
much time as possible doing work at
their highest possible fee rate”
duty solicitors and thus reducing the
overall wage bill.
Firms will generally need to look very
hard at what the most expensive feeearners are doing and allocating work
accordingly. There’s nothing new in
that — this principle is already well
established in the assessment of Crown
Court bills, with rates being
determined by the level of fee earner
who should have done the work, even
though someone more senior might
actually have done it. Solicitors in
crime departments will have to be
reserved for making decisions about
the degree of complexity in each case
and how the law should be applied.
The precise division of labour will
depend on the type of crime a firm
does, but partners and supervisors will
need to become expert in segmenting a
case into individual tasks and getting
someone at the right level to do it.
Much preparation can be delegated
as long as each case is evaluated by an
experienced practitioner and is
properly supervised. Again, many firms
already do this, especially with Crown
Court work; but the same principles
will need to be applied in police
station and magistrates’ court work as
well. This will involve agreeing and
introducing a framework case
management model which everyone
uses, so that cases can be passed from
person to person and still be
progressed at a good level of quality.
Firms will have to get much better at
ensuring that all fee earners spend as
much time as possible doing work at
their highest possible fee rate. One
area of criminal practice which firms
can find profitable is the exercise of
higher courts rights, particularly appeal
applications.
Electronic case management
The need to change ways of working
has been underlined by the interim IT
guidance which the LSC recently
published and can be downloaded
from:
http://www.legalservices.gov.uk/docs/
news/ECMSinterimguidancedocument
Feb07.pdf
The LSC will require firms to use some
form of computerised case
management system, incorporating key
milestones or workflows, which will
move cases along. If most of the
people working on files are highly
trained and/or very experienced, there
is no pressing need for such a system,
as they know what to do. Requiring an
electronic case management system
will increase firms’ overheads, and one
way of redressing the balance, at the
same time as taking full advantage of
the benefits of such a system, is to use
less experienced or less qualified staff.
Team working
Effective team-working with active
management and supervision will be
the key to surviving the Carter reforms.
The CLSA’s Criminal Lawyer 7
F E A T U R E
Expert
witnesses
By James Morton
A new biography is out on the life of
and particularly evidence given by
the great pathologist Sir Bernard
Spilsbury, a man who dominated the
courts from the beginning of the 20th
century to his death in 1946.
He gave evidence in dozens of
murder cases and it came to the point
where if Sir Bernard said there was
scientific evidence to show the man
had or, (very rarely) hadn’t done it,
then the jury went along with him. In
Lethal Witness (Sutton Publishing £20)
immigration judge Andrew Rose writes
of how Spilsbury came to believe he
was infallible and, once he had made
up his mind, refused to look at any
exculpatory evidence or explanation
there might have been. The evidence
he gave in the case of David
Greenwood, who in 1918 was convicted
of the murder of a young girl Nellie
Trew, was little short of disgraceful.
Fortunately for Greenwood the Home
Secretary thought there was at least
some doubt about the case, and in the
end he served a mere 15 years. What
made the case so appalling is that
there was another very convincing
suspect who when he was sent to a
mental hospital was described as “of
an exceedingly homicidal nature”.
As a result of Spilsbury’s evidence
Norman Thorne was probably wrongly
hanged for the murder of his fiancée
in 1925; there was considerable doubt
about the conviction of John Robinson
8 The CLSA’s Criminal Lawyer
for the murder of Minnie Bonati; and
Harold Loughans was certainly
wrongly acquitted in 1944. In
between there were plenty of other
mistakes, particularly when he either
embroidered his evidence or set
himself up as a firearms expert which
he certainly was not. Even when
other genuine experts such as Sir
Sydney Smith and Keith Simpson
disagreed with Spilsbury, as they did
in the case of Sydney Fox, it was
Spilsbury’s flawed evidence which
captivated the jury.
Have experts changed today? In my
day it was all fingerprints. It took some
time for fingerprint evidence to gain
the stranglehold it has had on juries.
The first case in England involving
fingerprints was in 1902 when an old
lag Henry Jackson was done for
burglary. Then in 1905 came the
Stratton case when two brothers were
accused of robbery and murder. They
were convicted more or less on
fingerprint evidence alone. One by one
the countries of the western world
abandoned the old Bertillon system of
measuring noses, ears, the width of
eyes and so forth and adopted
fingerprints. From then on it was up to
criminals to try to defeat the system
by having the skin taken from their
fingertips — it did not help. The new
skin simply grew the same papillary
lines. Fingerprint evidence was here to
stay and to convict.
Sir Bernard Spilsbury in his laboratory at St Bartholomew’s Hospital
F E A T U R E
“One by one the
countries of the
western world
abandoned the old
Bertillon system of
measuring noses,
ears, the width of
eyes and so forth and
adopted fingerprints”
Now in the eyes of the courts it
became an exact science. Speaking
about fingerprint evidence in 1997
when she was chair of the Criminal
Bar Association, Mrs Justice Anne
Rafferty said: “If fingerprint evidence
emerges when you are defending a
client, then you tend to put your head
in your hands. There is not really a
question mark over it.” So hands up
those of us who over the years bowed
the knee or head and gave up when
an expert witness said that he had
found our client’s fingerprints on the
bank safe. Fourteen matching points
and the ten years’ experience (never
less) of the prosecution’s expert
witness — what did they do in the first
nine? — was quite sufficient to send us
running for the cover of the highly
illegal sentence bargain. Unless that
is, the client had an account at the
bank and that previous week had been
invited to a select sherry party in the
vault given by the manager. But no,
he didn’t want him called.
But nearly a century later,
fingerprint evidence came under
renewed scrutiny. In 1998 the Court of
Appeal quashed the conviction of
Danny McNamee convicted of the 1982
IRA bombing in Hyde Park. In the
preparation of an American case, US v
Byron Mitchell in 1999, two
fingerprints from a car robbery were
sent to 50 FBI agencies, 20 per cent of
which failed to identify the owners
correctly. Then came a most
interesting article by Michael Specter,
“Do Fingerprints Lie?” in the New
Yorker (27 May 2002). It centred on
the 1997 Scottish case of policewoman
Shirley McKie whose print was
apparently found in a room where a
murder took place. She said she
hadn’t been there and was prosecuted
for perjury. Fortunately, a senior New
Scotland Yard scientist was convinced
it was not her print. “It wasn’t even
a close call,” he said. In January of
the following year a US district court
judge limited the use of fingerprint
evidence in a Philadelphia murder
case. He noted the “alarmingly
high” error rates on periodic
proficiency exams.
One problem I never had to face
was DNA evidence, which has replaced
fingerprints in the scheme of
irrefutable evidence but the principles
still apply. For the moment the
situation is what might be called 4F —
properly collected, collated and not
contaminated then it is probably
unchallengable. But if evidence
involves a human being — and it
necessarily does — there’s always the
possibility of error. Experts, however
apparently eminent they may seem,
are not infallible. We should not just
roll over supinely and wave our paws
in the air in submission. Moral: never
give up in the face of difficulty — as
my school reports used to say.
The CLSA’s Criminal Lawyer 9
The Criminal Advocate’s
Survival Guide
By Jan Davies
(The Carbolic Smoke Ball Company, £9.99)
“MacCarthy takes the
conventional wisdom that
witnesses are there to be
controlled and discredited
and stands it on its head”
This book is a must for any newly-qualified criminal
solicitor advocacy in the magistrates’ court. It covers a
lot of ground, and includes chapters on key areas such as
bail applications and preparing for trial in the Crown
Court. In addition, it has appendices dealing with the
hearsay provisions and bad character evidence, which
are a useful reference guide.
The book is highly practical in its approach, and the
author uses examples from her own experience which
gives the book an informal style.
I would highly recommend the book to criminal
advocates at all levels — an ideal little Christmas
present.
Sonya Frough-Haghighat
MacCarthy on Cross-Examination
By Terence F. MacCarthy
($129. 95, ABA Publishing, 321 North Clark Street, Illinois 60610)
There really aren’t too many good books on advocacy —
indeed Du Cann, Napley, Eric Crowther are the only
ones which immediately spring to mind — and so any
new one is welcome. The fact that Chicago trial lawyer
Terence MacCarthy, who headed the Federal Defender’s
office for 40 years, looks at the art from an American
perspective, doesn’t mean it does not contain a great
deal of advice that applies to an English crossexamination.
MacCarthy takes the conventional wisdom that
witnesses are there to be controlled and discredited
and stands it on its head. Persuasion is the keyword and
that applies to the whole trial. The lawyer must look
good to the jury and that is more persuasive than
controlling, extracting information or insulting, which
he equates with discrediting. He advocates pace — do
not allow a witness to take advantage of a pause or
interrupt witnesses, even your own. A study has shown
this loses the sympathy of jurors. Form, he believes, is
often of far more value than substance.
MacCarthy, who believes that every good crossexamination should tell a story, gives substantial
10 The CLSA’s Criminal Lawyer
examples. He does not like asking the witness regular
or open ended questions — “What else do you know
about my client, officer?” which allows the witness to
become a participant in the proceedings rather than a
friendly puppy being taken for a walk. He favours the
statement phrased as a question, “You went to the
shop?” Legal speak which adds “Isn’t that right?” and
“Did there come a time?” is definitely out.
Interestingly, he is also against the use of pencils and
pens being pointed at witnesses. My recollection is
that in the 1970s Treasury counsel John Mathew’s gold
pencil pointed at an erring witness was one of his most
damaging weapons.
Even if you do not agree with everything he
advocates, MacCarthy is always sound and interesting.
Any young lawyer should, as my law tutor used to say,
“Read, learn and inwardly digest”. Even if the price of
the book is a whopping $129.95, particularly given the
strength of the pound, it is a well-worthwhile
purchase.
James Morton
D I R E C T O R ’ S
R E P O R T
Learning the lesson
By Rodney Warren
“The irony of the
much heralded Civil
Service IT award to
the Commission
for LSC Online and
the subsequent
complete collapse of
the system within a
fortnight is not lost
on practitioners”
The Legal Services Commission has
been quite open about its
preference to have been able to
pilot the means test before it was
introduced into the magistrates’
court in October. Unfortunately
there was no authority given in the
legislation to allow that to happen.
Changes which were introduced into
the Criminal Justice and Immigration
Bill will now allow a pilot for any
future scheme of means testing in
the Crown Court.
In some areas problems with the
means test are as bad as ever and in
others even worse than at the point of
introduction. The post implementation
review has some objective comment
but reveals the true cost of the
scheme in terms of payment
reductions to solicitors at £40 million
(over 16%). This is money being
stripped from magistrates’ court
spend and is in addition to the money
being saved by the abolition of
separate travel and waiting payments
in the standard fees in urban areas.
Work still needs to be done on the
means test to radically improve the
assessment of applications. A new
approach is needed which sees a move
from the current risk averse approach
towards a more commercial and
proportionate assessment of risk. The
emphasis should be on fostering a
radical shift in attitudes towards the
grant of legal aid being seen as an
integral part of the CJS and not an
obstacle to it.
So although we see little done to
improve the means test there is an
acknowledgement that piloting
something first can provide valuable
information from which improvements
can be made for any final roll out.
What a contrast then when looking at
the current situation of the provision
of criminal defence work in general.
Here we have what has been
described as “the big bang” approach,
with the simultaneous implementation
of CDS Direct, police station fixed
fees and the litigators’ graduated fee
scheme. How about that for a change
in approach to risk?
On the one hand there can be no
risk taken that one self employed
window cleaner, for example, might
get legal aid in the magistrates’ court
without proving he has no accounts
and on the other such a level of risk
in untested whole system change that
could see wholesale financial collapse
of providers or, worse, severe damage
to the legal aid scheme as a whole.
There is so much uncertainty and
apprehension in the profession about
what lies ahead, with payment
processes for staff working out of
hours at the police station as a prime
example, that it is no small wonder
the profession is becoming disengaged
and can see no future in their chosen
specialisation. At the same time
ministers, the Commissioners and
those who advise them demonstrate a
commendable level of self belief.
The irony of the much heralded Civil
Service IT award to the Commission for
LSC Online and the subsequent
complete collapse of the system within
a fortnight is not lost on practitioners.
The question is: will change
management lessons be learned?
The CLSA’s Criminal Lawyer 11
V I E W
F R O M
T H E
C H A I R
Keep the faith
When I assumed the mantle of chair from
my esteemed predecessor Ian Kelcey, I did
so at a conference of defence lawyers
battered by the new contract fiasco,
writes Joy Merriam
“If you add into the pot
the chaos engendered
by LSC Online, which
has left members angry
and frustrated, we can
expect a rocky 12
months ahead”
First of all, in October, we were faced with fixed fees
in police stations, swiftly followed by a new contract
in which we would have to express an interest.
No sooner were we marshalling ourselves for this
then the goal posts moved again and we had a month
to sign up to a new contract bringing in a raft
of changes. All protests by the Law Society and
ourselves were ignored by a LSC determined to press
on at all costs.
On 3rd November at our conference in Oxford,
however, little did we know that a new drama was
unfolding. The LSC had suspended their contract with
CDS Direct providers Bostalls, as they had not obtained
the necessary waiver from the SRA. CDS Direct looked to
be in trouble; yet, a week later — again despite
opposition — the SRA granted the waiver late in the
afternoon of the 9th November, and the LSC announced
it would be reinstating Bostalls’ contract. Is this really
any way to deal with provision of criminal defence
services to those in need?
If you add into the pot the chaos engendered by LSC
Online, which has left members angry and frustrated,
we can expect a rocky 12 months ahead. The Association
is still considering the live issue of the provision of
telephone advice in police stations through CDS Direct,
and whether it is a breach of section 58 of PACE. I will
keep you advised as to how this pans out.
As chairman, it is my firm aim to communicate with
you and support you throughout my term. Those of you
who were at the dinner in Oxford will have heard me
quote that venerable Roman lawyer Marcus Tullius
Cicero on the subject of friendship and support. Friends
talk to each other — and I intend to keep you regularly
informed through a revamped web site and regular
e-bulletins. I would urge those of you who are not
subscribers to our e-group to join. This is a forum for
lively discussion on the issues of the day and a valuable
source of practical advice, too. Many of our new
committee members are regular contributors.
Finally, I hope to see as many of you as possible at our
annual conference next year which will be slightly
earlier, on the 17th October in Yorkshire. I am hoping it
will be in my home town of Sheffield (UTB!), subject to
a suitable venue being found.
So that’s all from me for now folks: keep the faith.
The CLSA’s Criminal Lawyer