Today the government is going to force the Data Retention and Investigatory Powers (“DRIP”) Bill through the House of Commons.
The intention is that it will be an Act of Parliament by the end of the week.
Why should this matter?
And what is worth looking out for?
First, the DRIP Bill is not really “emergency” legislation.
Part of it (though not the majority of it) has been occasioned by a decision of the European Court of Justice (the EU court, not the ECHR court) in April. The effect of that decision is that the UK’s legal regime for insisting that communications companies retain data became vulnerable to legal challenge. So one thing DRIP is doing is shifting the legal regime from regulations made under the European Communities Act to a new Act of Parliament. This shift should keep the relevant law safe(r) from being quashed by a UK court for non-compliance with EC law.
Note the dates: an April ECJ decision with a time-lag of three months before the government decides it is an “emergency” needing legislation made in a week.
In fact, this legislation could (and should) have been brought forward in the last three months and not the week before Parliament goes into recess.
But even taking this (supposed) emergency at its highest, the majority of DRIP has nothing directly to do with the April ECJ decision at all.
Most of DRIP is not about data retention (the “DR” of the acronym) but investigatory powers (the “IP”).
What the government has done is slip in on the pretext of “emergency” legislation substantial changes to a separate but related area of law: interception warrants.
In essence, interception warrants are legal instruments which the government serves to obtain content from service providers.
What DRIP does is to expand the scope of interception warrants in two significant ways.
First, clause 4 of DRIP makes interception warrants enforceable against non-UK entities as well as UK entities.
Well, this matters because unless the interception warrants are enforceable against non-UK entities there is no actual obligation for non-UK providers to provide the information requested.
In practice (until the Snowden revelations), non-UK providers routinely provided the information requested. A mere interception warrant was enough. But more recently the non-UK providers – and especially their compliance departments – have become more jumpy, and they are insisting on the practice of providing information be given an actual legal basis.
What this means, of course, is that the current practice of non-UK providers actually has no legal basis. It is unlawful. They may co-operate with the warrants, but they cannot say they are compelled to do so.
The effect of Clause 4 of DRIP is to make any non-UK providers which do not provide information with an interception warrant subject to the same (potential) coercion of civil and criminal sanctions as UK-providers.
This is not because any non-UK providers are threatening to withhold information - they want to co-operate – but they need to be able to point to a law saying they have to do so.
As such, clause 4 is really about the convenience of corporate interests. Put crudely: they want their arses covered, and the government is using an emergency legislative procedure to enable them to have this pleasure.
Second, clause 5 of DRIP expands the relevant definition of “telecommunications service” for interception warrants to include, “any case where a service consists in or includes facilitating the creation, management or storage of communications transmitted, or that may be transmitted, by means of such a system“.
What does this mean?
And, more importantly for any key legal definition, what does it not mean?
Well, I am a communications lawyer, and I am as bewildered as you are.
The intention of the government is that this will now cover web-based email – gmail and hotmail and others. But it could mean almost anything on the web: things stored on the cloud and so on.
Again, the real intention here is corporate arse-covering: this is information which is no doubt provided already in practice, and the post-Snowden compliance monitors are insisting that there is a sound legal basis for this information to be requested.
There may be a political case for the expansion of the legal scope of interception warrants as envisaged by clauses 4 and 5 of DRIP. But the proper process for this is for there to be consultation and then the anxious scrutiny of all the provisions, as part of a Bill being dealt with in the normal way.
There is no case at all for these provisions to be forced through at break-neck speed. Clauses 4 and 5 are not even connected to April’s ECJ decision; there is no good reason at all for them to be in DRIP.
If MPs and peers are responsible law-makers then they should insist that clauses 4 and 5 are removed so that they can be carefully considered. Alternatively, MPs and peers should also insist on a “sunset” clause repealing the “emergency” Act in six months (not in two or so years as currently envisaged) so that there can be proper consideration on a non-emergency basis.
Detailed legislation extending the rights of the government to interfere with individual rights should be properly examined scrutinised, and the interests of all those affected should be balanced in public debate. It should not be rushed legislation to appease the compliance departments of international corporations.
Under clauses 4 and 5, the UK government will be able to legally insist on more data than ever before from corporations around the world; such significant amendments should not be done in a hurry.
And all because this may well be the current practice (that is, without a lawful basis), this is no good reason to make lawful something which is unlawful – and certainly not without careful deliberation. This not “clarifying” a legal “grey area” – it is changing the law to turn something black in to something white.
This week will see whether Parliament is able to check a government misusing emergency legislation to substantially change the law on interception on the irrelevant basis of an April decision of the ECJ. There is “all party” support.
There is a lot at stake: this is an area where the law has to be got right. Bad law imposes illiberal burdens, and bad law may not be enforceable or may not have the intended effect.
By forcing through this legislation without proper consultation and scrutiny it is the government which is acting irresponsibly – and not the Bill’s critics.
Magna Carta is, we are told, “important”. It is “fundamental”. It is sometimes even “important and fundamental”.
Is it? And if so, how?
With the 800th anniversary coming up next year of the sealing of the original document (though what we commonly call Magna Carta is actually from 1297 and not 1215), it seems as good a time as any to set a challenge. So here it is:
When was the last legal case, if any, that was determined by the fair trial right set out at Article 29 of Magna Carta?
Put differently: when was the most recent English legal case (either at first instance or on appeal) where the “ratio” was Article 29 of Magna Carta? That the outcome of the case would have been different but for the application of Article 29 of Magna Carta?
Article 29 provides:
No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
There will be those who say this is “to miss the point”. I call them “Magna Carta symbolists” (as “Magna Carta sentimentalist” would be perhaps pejorative). For the Magna Carta symbolist, it does not matter that few if any have ever relied on the fair trial right set out at Article 29, it is still symbolic all the same.
Against this view there are (I think) two points.
First, when a symbol has no substance, then it can be easily contested – even contradicted.
For example: even though politicians and judges often cite Magna Carta as the “cornerstone” or “foundation stone” of liberty, no voter or litigant ever gets to rely on this supposed right. In this way, Magna Carta is just as “symbolic” of the lack of enforceable rights than the basis of such rights, if not more so.
Second, it is a sorry set of affairs when the supposed foundation of one’s liberties is of no practical use. Yes, symbols can be important – and, following Bagehot, some parts of the constitution are perhaps more dignified than efficient – but that surely should not be the case with the right to a fair trial. A US citizen is not content to merely adore the Bill of Rights; he or she can got to a court and insist on his or her rights being recognised.
In fact, we are so used to being told that Magna Carta is “important” and “fundamental” that we have not noticed that what we are nodding along with is not worth anything at all. But because we think it is s “important” and “fundamental” we shrug at the prospect of having enforceable rights.
As it stands, there is nothing whatsoever stopping Parliament from legislating in breach of Magna Carta, and while judges garnish their judgments and speeches with references to Magna Carta, they will always either groan at or mock any party to a case that dares to rely on it in court.
So as a “Magna Carta empiricist” (or “realist”), this blog poses the challenge: what has Article 29 of Magna Carta ever done for us?
My FT post on the myth of Magna Carta (free to access but registration required).
(The above challenge is in respect of English law (which also normally applies to Wales); but the challenge is also posed for any jurisdiction where Magna Carta forms (or has formed) part of the law. I am not qualified in Scots or Northern Irish law, and so do not know whether Magna Carta forms part of those legal systems. Similarly, I am not able to say if it forms the law of the United States, the rest of the former British Empire/Commonwealth, any other common law jurisdiction, or even that of Jersey, Guernsey, or the Isle of Man. But if Magna Carta is somehow part of the law in any jurisdiction, I would be delighted to hear if it has ever been relied on in an actual case.)
Please use a name when commenting so to make it easy for other commenters to refer to your comment; no purely anonymous comments will be published.
In an office, somewhere in London.
Nephew: Happy Magna Carta Day, uncle!
Nephew: Magna Carta Day a humbug?
Scrooge: If I could work my will, every idiot who goes about with ‘Magna Carta Day’ on his lips, should be boiled with his own pudding, and buried with a rolled medieval manuscript through his heart.
Scrooge: Why do you celebrate Magna Carta?
Nephew: It is the basis of our right to a fair trial, uncle. Everyone knows that. Even you.
Scrooge: Has this Magna Carta “right to a fair trial” ever been successfully relied on by any litigant in an English case, eh? Has it?
Nephew: That’s not the point.
Scrooge: Hardly the basis of the “right to a fair trial” then , is it? Look at the courtrooms and the prisons: has any defendant ever been helped by this so-called right in Magna Carta? Has any case ever turned on it? Eh, Sir?
Nephew: Uncle, that is not the point! Magna Carta is of fundamental importance.
Nephew: It symbolises…
Nephew: …it symbolises…the symbolism of our liberties.
Scrooge: So it makes no practical difference.
Nephew: The Prime Minister is for it.
Scrooge: Does that not strike you as odd? What sort of symbol of our liberties is it that is praised by the head of the government? The whole point of a symbol of our liberties would be that a Prime Minister should not like it!
Nephew: Uncle, you are being contrarian!
Scrooge: No Sir, I am just being clear instead of muddled. I ask another question of you: does Magna Carta stop parliament? Can the Commons still legislate as they will?
Nephew: Yes, Sir, I am sad to say so.
Scrooge: Oh! I was afraid, from what you said, that something had occurred to stop it.
Nephew: That is not how Magna Carta works!
Scrooge: Magna Carta does not work at all! Nobody is the better for it. It assists neither the prisoner nor the appellant. It is flapdoodle, claptrap, balderdash. It may as well never been passed at all for all the difference it has ever made.
Nephew: But is still a symbol!
Scrooge: Yes. But it is a symbol of how easily people are taken in. It is a symbol of the fact we pretend there is any constitutional block on parliament and judges to exactly what they want anyway. Good day, Sir.
Scrooge: Good day.
With an apology to Dickens.
[For a more serious version of the above, see my post at the Financial Times (free to access, registration required).]
The appointment of Mr Steve Coogan as a patron of Index on Censorship seems to me to be an odd one.
But Index and Hacked Off have contrasting views on the issue of press regulation.
There is a lot of concern at the apparent tension in this. Is this concern warranted?
So I asked questions of both Hacked Off and Index.
Below are their responses.
[Add: statement from Mr Coogan has been added at foot of this post.]
From Hacked Off:
“We understand Steve Coogan agreed to be patron of Index on Censorship after an approach from the organisation, having debated the merits of Leveson on a platform at a legal conference on 20th May.
“He did not consult Hacked Off before agreeing their request and nor would we expect him to.
“We strongly support his decision to be a patron of Index because, on matters other than Leveson, Index does excellent work which we support. For example, leading members and supporters of Hacked Off are involved in the Libel Reform Campaign with Index. Several other Index patrons are supporters of Leveson.”
In response to my questions:
1. A list of all times Mr Coogan has spoken on behalf of Hacked Off.
2. What he has said on those occasions.
3. A list of any public statements Hacked Off has made about Index (and its opposition to press regulation).
“We don’t keep these records – although you can search for published examples online.”
4. The extent of Mr Coogan’s financial support for Hacked Off (including but not limited to http://hackinginquiry.org/mediareleases/steve-coogans-rash-cash-pledge/)
“Steve Coogan matched cash donations from the public during a fundraising campaign last year, accompanied by a subsequent plea from Alan Partridge not to be duped by this request for a matching cash pledge.”
[Added when I asked for more detail]“We think the public generously contributed about £20,000 and Steve has generously matched that. The full sum is not yet totalled but will be reported in due course.”
5. The other ways Mr Coogan has supported Hacked Off.
“Steve Coogan’s support included appearances on platforms with Hacked Off, written press articles and a reception at the Labour Party Conference last year. He set out much of this in an interview for Total Politics on 26th March.
“He also provides support and encouragement to many of the victims of press abuse who are not otherwise in the public eye. As well as writing, broadcasting and acting, his time has been taken up on the Philomena campaign and on a campaign to help prevent FGM. We are very grateful for his time and energy.”
In response to my questions:
1. Why has Mr Coogan appointed as a patron?
“Index on Censorship is actively seeking new patrons from a variety of artistic spheres, known both in the UK and abroad. We are also looking for new patrons outside of the UK.
“Steve Coogan is a high profile writer and comedian who has spoken out openly on free expression and we believe he will be a strong supporter of work defending artistic freedom globally.”
2. When was the last patron appointed before Mr Coogan?
“I [Jodie Ginsberg, the CEO] don’t have a record on this but one has not been appointed for several years as far as I’m aware.”
3. Is there any formal procedure for appointing a patron?
4. Who approached whom about Mr Coogan being a patron?
5. When was this approach?
“I first spoke to Mr Coogan in early May and approached him formally this week.”
6. Who made the decision to appoint Mr Coogan as patron?
“The management team in discussion with the chair and trustees.”
7. Who was consulted re this decision?
“Staff and trustees.”
8. Who approved this decision?
“The chair and CEO”
9. Did anyone oppose this decision?
10. What account was made of Mr Coogan’s position as a spokesperson and key funder of Hacked Off?
“We recognised that Mr Coogan had taken an opposing position to us on the Royal Charter, as had other patrons.”
11. Has Mr Coogan made a donation to Index? Will he? Details please.
“Mr Coogan has made no donation to Index. I have no idea if he will make a donation.”
12. Is there any donation to Index connected with Mr Coogan’s appointment?
13. When did the appointment take effect?
14. Is there any limit to the support a person could give to the regulation of the press in any country before they became ineligible to be a patron of Index? If so, what is that limit?
“Yes – we would not appoint anyone as patron who did not agree with Article 10 of the European Convention on Human Rights.”
ADDED – From Steve Coogan:
This statement was emailed to me.
I am not a computer scientist or even a techie (and I certainly have no expertise in Artificial Intelligence); but I am a lawyer and journalist and so I am used to asking questions. Not just difficult or loaded questions, but all sorts of questions, depending on what purpose I have in asking them.
So I thought I would chat with this chatbot this lunchtime.
I started by asking the most basic question “what is your favourite colour”.
It gave a cute answer about asking instead about its favourite size and shape. So I took the word “shape” and asked what it meant.
It did not know.
I then asked about Turing, and got a glib answer about him being a “pioneer”. So I asked what “pioneer” meant.
It did not know.
And so I carried on – not trying to ambush the bot with unusual words or hard questions, but simply taking words it chose to use and asking it to explain them.
And not once could it explain any word that itself had chosen to use.
A Ukrainian 13 year old speaking English as a second language would be able to explain (in some fashion) the words he or she was choosing to use.
From the hype I was expecting something impressive, even if not of the level to pass the Turing Test; but, on any view, this was just embarrassingly bad. Not only did it have no “idea” what it was being asked, it did not even have any “idea” what it was saying itself.
Somethings are not new.
The influence of religion in Birmingham state schools is one of the big political issue of today.
And one of the biggest political controversies in late 1860s and early 1870s was, well, also about secular education in Birmingham schools. Indeed, the young Joseph Chamberlain launched his political career by exploiting the disquiet at the role of religion in Birmingham schools. His novel methods of political organisation – in some ways, the start of modern party political campaigning – were also developed in the local School Board elections which followed the 1870 Education Act.
So there is nothing new at politicians exploiting issues like this either…
(I knew my aborted Modern History BA dissertation on religion and politics of the Birmingham secular school problem in 1860s would one day be relevant-ish!)
I am currently writing a detailed post for the FT on the Public Defender Service following the Operation Cotton appeal decision.
Here are some posts with information which you may find helpful.
The journalist Jenny McCartney at the Telegraph: Why is Chris Grayling trying to nationalise the criminal bar at a higher cost to the taxpayer?
The Home Office is a dreadful department, the purpose of which often seems to be to enact as many criminal offences as possible.
But good grief: what a speech today by the Home Secretary Theresa May to the Police Federation.
One almost felt sorry for the police officers listening. The picking of a selection of unrepresentative examples so as to tar the majority is similar to what Grayling is doing with the legal profession.
And it was also possibly unwise: any government needs the goodwill of the police, in the same way it needs the goodwill of those who work in the legal system (and, of course, the goodwill of nurses and teachers, and so on). There is no point the Home Office promoting more criminal justice legislation if the police are unwilling to help make it work.
These things needed to be said, and they needed to be said by a Home Secretary and they needed to be said to this audience.
The accumulation of so many dire examples of misconduct and malpractice can no longer be excused as the famously few bad apples. Even though most police officers do a great and difficult job, there is a problem of confidence, and it needs to be addressed not evaded.
And not only did these things need to be said; there are things which need to be done. Here the Home Secretary’s concrete ultimatums in this respect are as welcome as much as they are astonishing and unexpected.
It is all so strange. Home Secretaries are not ‘supposed’ to make speeches like this; instead they should blather about how we need identity cards and do not need human rights, and so on – so as to please any passing tabloid editorial writers.
They are not expected to say anything, well, serious – or to do anything sensible.
But it seems this one has done. And it was remarkable.
One can only wonder what the consequences will be.
Here were my questions this week to the Ministry of Justice press office on the Public Defender Service, with their answers. I will be using some of this material for a forthcoming post at FT.com – - but I thought it would be useful to set the questions and answers out in the public domain so as to inform discussions that may follow the handing down of the Operation Cotton appeal judgment.
What has been the annual budget for PDS each year since its inception? What is the forecast budget for the PDS in this and next year?
The PDS was established in 2001. The audited expenditure details are as follows:
The PDS out-turn for 2013/14 has not yet been audited and is therefore subject to change, however, the current estimated out-turn is £2.28m.
If the PDS does VHCC work, how can it possibly do any non-VHCC work? When was it first proposed that the PDS be devoted to VHCC work?
The establishment of the PDS Advocacy Unit further strengthen its capability and allows it to provide a range of criminal defence services.
Where a member of the PDS was instructed on a VHCC clearly it would depend on the individual case as to what their workload would be but, as we have seen on numerous occasions, there are invariably ‘cycles’ to cases which include periods when there is time for other work. We would expect that to be most likely during the preparation of a case in this type of work.
I understand the PDS is there (in part) for “market failure” – what does the MoJ mean by “market failure”? (see page 10) http://www.justice.gov.uk/downloads/publications/corporate-reports/legal-aid-agency/laa-business-plan-2013-14.pdf )
The PDS is available to provide a service in parts of the criminal legal aid market where, for whatever reason, clients are unable to access advice and representation in the Police Station, Magistrates Court and Crown Court.
In the MoJ skeleton argument for the Operation Cotton appeal, it is stated: “It is presently intended to secure the necessary number of advocates for the PDS to cover the affected cases. Twenty-one have already been appointed. The Government is ready to place advertisements as soon as the weekend and head-hunters have been retained on a contingency basis to secure senior Counsel.” Can you please provide as much detail as possible on this statement.
There is nothing to add to the statement which very clearly sets out our intention.
How much has MoJ spent on the “head-hunters” re above? How much does it intend to spend? What does “contingency basis” mean?
It’s too early to say as costs will depend on how we recruit additional capacity. As the statement above clearly says – we stand ready to place advertisements should that be needed.
The MoJ skeleton argument states: “The Lord Chancellor regards this as an emergency measure to address the needs of the interests of justice with the current VHCCs.” – why is this an “emergency” measure when it was clear from last year that the VHCCs were at risk?
Legal aid remains available for all VHCCs – if a QC picked up a typical VHCC they could expect to receive around £100,000. It remains open to the Bar to take these cases and there are also PDS lawyers available. Clearly the Government will take the necessary steps to ensure representation on cases that would otherwise be disrupted.
Is the MoJ aware of any other government department which has ever told the High Court or Court of Appeal that it was in a state of “emergency”?
We do not hold records of other Government department’s legal arguments.
Does the MoJ dispute the figures set out in https://dl.dropboxusercontent.com/u/77869779/PDS%20Facts.pdf as to the relative costs of the PDS and independent Bar? If the MoJ disputes these figures, can it explain the basis of the dispute?
The figures quoted do not compare like with like. It should also be noted that the calculations mentioned assume a self-employed barrister will only take on one case a year and only work on legal aid, when that may not necessarily be the reality.
What is the MoJ response to the PDS being described as a “false economy” See http://www.lawgazette.co.uk/analysis/comment-and-opinion/pds-is-a-false-economy/5041282.article ?
What is the MoJ response to the PDS being described as a “total waste of public money” See http://www.lawgazette.co.uk/practice/call-to-review-public-defender-service/5039489.article
Our over-riding priority is to ensure that defendants have a fair trial and the justice system continues to function properly. Barristers are refusing to work on Very High Cost Cases because they do not agree with the legal aid fees being offered. Even at the new rates – a QC could expect to pick up £100,000 for a typical Very High Cost Case.
In line with our effort to try and target the highest fee reductions towards the highest earners we have cut fees in Very High Cost cases the most. That is because these are a small number of cases that cost a disproportionate amount of taxpayers’ money – for example just one cost more than £8.5 million purely in legal aid fees.
How many of the PDS advocates are VHCC accredited?
21 advocates have signed contracts with the PDS Advocacy Unit. Of these, 15 are VHCC accredited and the other 6 are in the process of gaining VHCC accreditation.
When was it first proposed that the PDS be devoted to VHCC work? I can find no mention of the possibility before 2013 – is this correct?
They will undertake a range of criminal litigation and advocacy.
It appears that all be barristers being appointed are to do VHCC work. Will they be expected to do any non-VHCC work?
What do you mean by “disproportionate amount of taxpayers’ money” as opposed to a high proportion? Does the MoJ think anything with a high proportion is disproportionate?
VHCCS represent less than 1% of all Crown Court cases but were costing 10% of the crown court legal aid budget. As stated on many occasions, and discussed in numerous meetings with the professions in the past year, we are trying to target the highest reductions at those who receive the most in fee income from legal aid.
Will the PDS continue to not have a London office?
As we made clear in our skeleton, we will expand the PDS as necessary to ensure availability of advocacy. We will make decisions as to the resources and set up as appropriate.
(Apologies for the lack of paragraph numbers, will be inserted later)
The Lord Chancellor – Proposed Intervenor
SUBMISSIONS OF THE LORD CHANCELLOR FOR PERMISSION TO INTERVENE IN THE PROSECUTOR’S APPEAL AGAINST THE TERMINATING RULING BY HH JUDGE LEONARD QC OF 1ST MAY 2014
By his ruling of 1st May 2014, HH Judge Leonard stayed the prosecution of all Defendants in this case and summarized his reasons on two main grounds:-
a. That he was “compelled to conclude that to allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place now amounts to a violation of the process of that court.”
b. That “even if I was wrong about that, I further find that there is no realistic prospect that sufficient advocates would be available for this case to be tried in January 2015 from any of the sources available to the defence, including the PDS”.
The position of the Lord Chancellor and the purpose of his proposed intervention
The Lord Chancellor and the MOJ are, of course, committed to ensuring that all criminal trials are conducted fairly in accordance with their obligations under the Courts Act 2003, Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and under Article 6 of the ECHR. They will, therefore, ensure that criminal defence advocates of suitable qualification will be available within a reasonable time to deal with all Very High Cost cases which are pending, including, if applicable, the instant case. The Lord Chancellor is entirely supportive of the independent, self-employed Bar and has made strenuous efforts to secure their continuing co-operation in providing top quality representation for Defendants and thereby ensuring fair trials in these cases.
The Lord Chancellor adopts a neutral position in relation to the appeal in this particular case. The ultimate merits of this appeal are a matter for the court to determine as between prosecution and defence and not a matter for the Ministry of Justice. The purpose of this intervention is to assist the court in the following ways:-
To assure the Court that, in the event the appeal is allowed, the MoJ will ensure that suitably qualified defence advocates will be available within a reasonable time to represent the Defendants.
To inform the Court of the urgent steps that the MoJ has taken and is taking to ensure that such advocates will be available.
To address any implication to the effect that the absence of representation by the self-employed Bar was attributable to the fault or failure of the Lord Chancellor.
The relevant Legal Aid Regime
The applicable legal aid regime for this case is set out in Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). The Lord Chancellor is required to secure that aid is available in accordance with Part 1 (section 1) of LASPO.
Payment of remuneration to those who provide services is governed in part by regulations made under s 2. LASPO and the Criminal Legal Aid (Remuneration) Regulations 2013 (SI 2013/435). These Regulations contain the concept of a “Very High Cost Case” which is defined as follows. A “Very High Cost Case” means a case in which a section 16 determination has been made and which the Director classifies as a Very High Cost Case on the grounds that:-
in relation to fees claimed by litigators:-
i. if the case were to proceed to trial, the trial would in the opinion of the Director be likely to last for more than 40 days and the Director considers that there are no exceptional circumstances which make it unsuitable to be dealt with under an individual case contract for Very High Cost Cases made by the Lord Chancellor under section 2(1) of the Act; or
ii. if the case were to proceed to trial, the trial would in the opinion of the Director be likely to last no fewer than 25 and no more than 40 days and the Director considers that there are circumstances which make it suitable to be dealt with under an individual case contract for Very High Cost Cases made by the Lord Chancellor under section 2(1) of the Act;
in relation to fees claimed by advocates, if the case were to proceed to trial, the trial would in the opinion of the Director be likely to last for more than 60 days and the Director considers that there are no exceptional circumstances which make it unsuitable to be dealt with under an individual case contract for Very High Cost Cases made by the Lord Chancellor under section 2(1) of the Act.
The reductions in Legal Aid rates and the understanding reached between the MoJ and the self employed Bar.
From December 2013, the rates paid to advocates in new very high cost cases (VHCCs) and those existing cases with trial dates after 31 March 2014 were reduced by 30%. These changes followed a process of public consultation.
These changes were controversial and there followed a period when the criminal Bar appeared to be taking concerted action in response to these reductions. This included a refusal by members of the self-employed Bar to accept or to retain briefs in VHCCs affected by the reductions and days of action.
As a result of negotiations between the MoJ and the Bar, a “deal” was agreed between the leadership of the Bar and the MoJ whereby the fee reductions in AGFS cases were deferred to summer 2015. In response, the leaders of the criminal Bar gave a commitment that they would cease disruptive action and that they would agree that there was no objection in principle to their members accepting the reduced rates for VHCC’s. The Chairman of the Criminal Bar Association in a public statement made on 27th March 2014 stated, “consequently the CBA has decided to suspend its current action including the No Returns policy to allow constructive engagement with the government to continue and the restoration of normal working practices within the CJS” (our emphasis).
The non-acceptance of instructions in this case by the self-employed Bar.
As a result of this “deal” the MoJ reasonably expected that the self- employed Bar would continue to provide representation in this and other VHCC cases. However, contrary to these expectations no-one at the self-employed Bar has, so far, accepted instructions in this case.
The MOJ’s commitment to ensure representation in all pending VHCC’s.
In response to the fact that the self-employed Bar has failed to provide representation, the MoJ is taking swift and determined action to ensure that suitable advocates are available to the defence. The Lord Chancellor, as always, would welcome the maximum possible participation of the self-employed Bar in this regard. The Government has decided to implement any necessary increase of the PDS to ensure representation in the VHCCs in which legally aided defendants are currently unrepresented. It is presently intended to secure the necessary number of advocates for the PDS to cover the affected cases. Twenty two have already been appointed. The Government is ready to place advertisements as soon as the weekend and head-hunters have been retained on a contingency basis to secure senior Counsel.
The Government intends to be flexible in the means it adopts in sourcing the additional advocates to ensure maximum expedition and efficiency. Some will be employed by the PDS, and the Government wishes to consider options for obtaining advocacy services through sub-contracting from other providers.
The Lord Chancellor regards this as an emergency measure to address the needs of the interests of justice with the current VHCCs. It remains open for the self-employed bar to accept instructions in this and the other pending VHCC’s, but if the self-employed Bar continue to refuse the briefs, the government will ensure that the PDS is provided with the resources necessary to represent the Defendants. The levels of staffing and resourcing provided to the PDS will be kept under review and will depend upon the response of the self-employed Bar. The Government is committed to ensuring the continued availability of effective representation across the criminal justice system.
The new ability of the PDS to represent multiple Defendants whose interests conflict.
Until early this year, the PDS Code of Conduct for advocates prevented one PDS advocate from representing a defendant in a criminal trial where another defendant in that trial was also represented by the PDS and the interests of the two defendants conflicted. This reflected professional standards for solicitors and reflected the fact that, until recently, the majority of the lawyers employed by the PDS were solicitors.
The Code was changed with effect from earlier this year to allow PDS advocates to act for multiple defendants in the same trial notwithstanding conflicting interests. The new Code was laid before by Parliament in March this year.
A protocol has been laid down to ensure that confidential information and instructions given to PDS advocates representing conflicting Defendants are not held by the PDS and cannot be accessed by the PDS. There is no reason to suppose PDS advocates are not just as capable of managing conflicts as members of the self-employed bar who share the same chambers. Therefore the concerns expressed by the learned Judge in relation to conflicts within the PDS are not well founded.
At paragraphs 67 and 68 of his judgment the learned judge considered paragraph 7.3 of the amended PDS Code as requiring him to have in mind whether any legal representatives outside the PDS would be available in the event of a conflict within the PDS. It is submitted that, notwithstanding that the new PDS Code may require a PDS advocate to disclose the existence of a conflict within the PDS to a client and explain that the client is free to be represented by an outside advocate, the Code does not confer a right upon a client to refuse a suitable PDS advocate where an outside advocate is not reasonably available and where enhanced confidentiality provisions within the PDS will be adequate to protect his interests.
The learned judge’s finding that the State would “benefit from its own failure…. to provide the necessary resources to permit a fair trial…. if an adjournment were granted” [see paras 79(b) and 84 of the Judgment]
It is submitted that this ruling by the learned judge is misplaced for the following reasons:-
The relevant question for the learned judge to consider was the question he directed himself to consider at paragraph 77 of his judgment, namely, whether there was a realistic prospect of securing a fair trial in January or September 2015. Whether or not the present unavailability of representation from the self-employed Bar could be characterized as the “failure” of the state was an irrelevant factor to the determination of that question.
In any event, even if had been a relevant question, it was not appropriate for the learned judge, on the limited evidence before him and without hearing evidence or submissions from the Lord Chancellor, to conclude that the failure of the self-employed Bar to provide representation was attributable to the state and to base his decision upon such a finding of fact.
The learned judge, in so finding, was assuming the authority to make a determination as to the merits of a dispute between the Bar and the MoJ. He did not have the materials before him fairly to do so, even if entering into such an inquiry had been an appropriate or relevant exercise, which it was not. He implicitly accepted it was not a relevant exercise at paragraph 25 of his judgment.
It is submitted that the Lord Chancellor’s policy decisions as to the appropriate allocation of scarce resources for the funding of criminal legal aid, constrained as he is by the government’s economic strategy in a time of austerity, are matters of political value-judgment. Such issues are to be determined on their political merits by the executive branch, subject to the democratic oversight of Parliament or, in the case of unlawfulness, impropriety or irrationality, subject to judicial review by the courts.
The evidence in this case may well suggest that members of the self-employed Bar are tacitly expressing their disapproval of the MoJ’s policy despite the assurances of the leaders of the Bar that there is no longer any objection to such cases being taken by them. If, as a result, the Defendants are left without representation from the self-employed Bar, the question of whether that is the fault of the Bar or the fault of Lord Chancellor (or indeed anyone’s fault) is a purely political question for the executive and for Parliament and for the electorate and not a judicial question for the determination of the learned judge.
In paragraph 84 of his judgment the learned judge held that it would be a “violation of the process of the court” merely to allow an adjournment to enable the state to put right its own “failure” to provide resources necessary to permit a fair trial. By so ruling the learned judge might be understood to be finding implicitly that there had been some unlawful conduct, bad faith or manipulation on the part of the Lord Chancellor. There was no evidence to support such a finding nor could there be any justification or warrant for such an implied ruling. The Court is respectfully invited to clarify the position to ensure there is no such misunderstanding
It is submitted that:-
The concern expressed by the learned judge that there was “no realistic prospect” that the Defendants would be supplied with suitable representation within a reasonable time can be allayed by the Lord Chancellor’s commitment to supply such representation through an expanded PDS, which can now represent multiple conflicted Defendants.
There is no justification for any implicit finding that the Lord Chancellor or the MoJ have acted unlawfully, improperly or wrongfully in their implementation of cost savings in relation to VHCC’s nor for any implicit judicial finding that they are in some way legally to blame for the self-employed Bar’s refusal to accept such instructions nor for any consequent conclusion that they have “violated” the procedure of the Crown Court.
Therefore, the Court can safely proceed upon the assumption that a fair trial of this case and the other pending VHCC’s will not be precluded by any lack of available defence advocates.