Lauri Love and the potential civil law “backdoor” for obtaining encryption keys

10th May 2016

This is an “explainer” post about a potentially significant court decision being handed down today on whether the UK State can use civil law as a legal “backdoor” for obtaining encryption keys.

The case:  Lauri Love v National Crime Agency

The venue: Westminster Magistrates’ Court, from 1000 hrs today

The claim: An application under section 1 of the Police (Property) Act 1897 for recovery of computer equipment seized by the National Crime Agency – note this is an example of a civil matter being dealt with by a Magistrates’ Court.

The procedural stage: The application is still pre-trial, and the overall application is set down for a trial hearing on 28 July 2016.

Today’s decision: Today the presiding judge District Judge Tempia will make a decision on whether Lauri Love be “directed” at this stage to provide an encryption key as part of the civil claim, and before the trial.

This is because the National Crime Agency, the “defendant” in this claim, is insisting that the key be handed over before the application be tried and a decision made to return the equipment.

Why this matters: The statutory regime for requests for encryption keys (and encrypted data) is under Part III of the Regulation of Investigatory Powers Act 2000 (RIPA).

The state agency – in this case the National Crime Agency – would serve a “section 49” notice, and if a valid section 49 notice is not complied with, then the recipient of the notice can face prosecution under section 53.

The recipient, however, has the protections of the safeguards of section 55 and the protections of the detailed (fifty-odd page) Code of Practice.

By requesting a direction as part of the civil application, the National Crime Agency is seeking to sidestep the RIPA scheme and effectively circumvent the section 55 safeguards and the protections of the Code of Practice.

The extradition context: Lauri Love is facing extradition to the United States.  The United States indictments are at Lauri Love’s website.  The extradition application is also being heard by Westminster Magistrates’ Court, but those are separate and distinct legal proceedings.

This civil claim is self-contained and is not directly relevant to the extradition.

The earlier section 49 notice: Lauri Love has also been already served with a section 49 notice, in February 2014, and did not provide the requested information.   The National Crime Agency did not continue with the RIPA process.

Comment:

Many of the coercive and intrusive powers given to the state under RIPA are balanced by safeguards and protections against abuse of those powers.

The powers and the checks on them should be seen as a package.

By seeking to use directions in a civil claim to achieve the same aim, where the safeguards and protections against abuse will not apply (and which would be decided on a lower standard of proof – section 53 has the criminal standard, whilst a direction in a civil case would (of course) have the civil standard) then the National Crime Agency are departing from what RIPA intended.

If the National Crime Agency want the encryption key then they should follow the RIPA statutory scheme and not try to get round it.

Instead, the National Crime Agency are asking the courts to construct an civil law “backdoor” for obtaining encryption keys (and encrypted data) outside the statutory scheme of RIPA.

Further reading:

The Intercept

The Register

BBC

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FT post on Theresa May, Hillsborough, human rights law and the politics of superficiality

27th April 2016

I have a new post at the Financial Times on how the superficial politics of Theresa May – especially her statements about human rights law – do not match with things such as the new Hillsborough Inquest.

In brief: the new Hillsborough Inquest could not have ranged as widely without Article 2 of the ECHR having effect in domestic law – the same ECHR which May wants the UK to leave.

A couple of excerpts are below:

MayHumanRights

MayHumanRights2

The post was received well on Twitter.

Lawyer and Rugby legend Brian Moore:

The UK’s leading legal commentator Joshua Rozenberg:

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Law and policy round-up: three points about Cameron’s prisons speech

9th February 2016

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Prisons policy

Yesterday was a busy and perhaps significant day for prisons policy.

The Prime Minister gave a speech devoted to the subject.  The speech was even trailed with two government announcements here and (on treatment of pregnant women in prison) here.

Frances Crook of the Howard League gave the speech a cautious welcome and Ellie Dunt, also of the Howard League, correctly observed that the most significant thing about the speech was that the Prime Minister was giving it.

There are three things worth noting about the speech and what may be behind it.

First, prisons are expensive even if “law and order” rhetoric is cheap. Wise politicians realise this and know that the current approach to prisons policy is financially unsustainable, regardless of what lines voters and tabloids clap along with.  The current policy also makes no real sense from a crime prevention perspective and is best seen as one devised by a mischievous demon.

Second, there is a move in right wing thought against custodial sentences as the default punishment for crime, especially in the United States.  (I wrote about this in 2013 at the FT.)  This development in right wing thought may be having an influence on Michael Gove.

Third, if such a speech is indeed the political price Micheal Gove has extracted from David Cameron for support on the EU referendum issue, then it is a good bargain.

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The prisons policy of a mischievous demon

8th February 2015

Prisons policy is in the news today.  This is from my 2013 post at FT on custodial sentences:

Here is a thought-experiment: imagine that you have asked some mischievous demon to conceive the most counter-productive way of dealing with crime.

What fiendish scheme would this diabolic agent devise?

The demon could suggest a system:

– where offenders are kept together with more serious and experienced criminals for months or years, and so can learn from them;

– where the offender is taken away from any gainful employment and social support or family network;

– where the offender is put in places where drugs and brutality are rife;

– where the infliction of a penalty can make the offender more, and not less, likely to re-offend; and

– where all this is done at extraordinary expense for the taxpayer.

A system, in other words, very much like the prison system we now have in England and Wales.

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The damning Commons justice committee report on the criminal courts charge

20th November 2015

One of the most illiberal and misconceived measures adopted by the Ministry of Justice – perhaps by any government department in recent years – was the criminal courts charge.

Today the Commons justice committee has published a short but critical report. You should read it – the web version is here and a PDF is here.

The MoJ cannot easily ignore this; and it may be that is the point.  It is very helpful for a Tory-majority select committee to give “cover” to the MoJ in reversing this measure.  Indeed, you can easily imagine the polite conversation:

“Hello Bob”

– “Hello Michael.”

“Thank you for taking my call, Bob. Very kind. How are you?”

– “In good form Michael, mustn’t grumble. How are you?”

“I am well, thank you ever so much for asking. So thoughtful of you.  But I do need a little help. Dreadful policy inherited from Chris. We need to shift it, but we do need some cover.”

[Pause.]

– “I know, perhaps a damning report?”

“What a great idea, Bob, oh yes please. I knew you would think of something.”

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I am certain no such conversation actually took place (and I am only being satirical).  The charge is so awful that being critical of it needs no external influence.

And if the MoJ does now proceed with the charge’s abolition (or fundamental change) then – following the MoJ’s delay last week of the botched criminal legal aid procurement – it would seem that almost every distinctive policy of Grayling at MoJ has now been reversed or improved.

 

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Michael Gove “picks a fight” over the MoJ’s Saudi contract bid: the background

13th October 2015

The overnight news was dramatic: the Lord Chancellor and Justice Secretary, Michael Gove, has “picked a fight” in Cabinet.

And the subject of this political spat?

It would appear that it is the commercial bid by the Ministry of Justice (MoJ) to assist the prison service of Saudi Arabia, something I have been blogging about here and at the FT since January.

This post sets out the general background to this political development: in essence, everything you need to know.

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The overnight news

The story broke in the Times, with a page one news feature and a (very) well-informed opinion piece inside.

The front page of the print edition (hat-tip Nick Sutton):

20510 Times3

And here is what the online story looks like:

201510 Times2

And the opinion piece:

201510 Times1

(Please now click and read the originals if you can, even it involves paying: journalism costs money, whatever its source.)

The key facts in the Times story are as follows:

– there is a “cabinet row” between Gove and Philip Hammond, the Foreign Secretary;

– Gove has demanded the MoJ commercial bid be scrapped;

– Gove has circulated a memorandum to this effect;

– the dispute was raised at a meeting of the “National Security Council”

– the Prime Minister has had to determine the dispute, and has insisted that the commercial bid go ahead;

– Sajid Javid, the Business Secretary, supports Gove;

– Hammond warned that cancelling the deal would make the UK look an untrustworthy ally;

– and so, in summary, the Foreign Office and the Prime Minister have overruled the MoJ.

The Opinion piece repeats these facts, and adds the following detail:

“There was a robust exchange of views,” says a Whitehall source who has seen the letters. “The MoJ had human rights concerns; the Foreign Office felt this would have far bigger ramifications.” Downing Street ruled that the Ministry of Justice must honour its bid. Unless something changes, Mr Gove will sign the contract any day now and British civil servants will spend six months working with one of the most barbaric prison systems in the world.”

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The “commercial bid” of the MoJ

So what is this about?

[Most of the information below is contained in and sourced in these previous posts: FT, January 2015Jack of Kent, February 2015,  FT, September 2015Jack of Kent, October 2015, and FT, October 2015 (yesterday).]

The “commercial bid” of the MoJ to assist with the Saudi prison service was one of a number of transactions proposed by a group of MoJ civil servants who called themselves “Just Solutions international” (or “JSi” complete with gimmicky lower-case “i”).

JSi was established in 2012, when Kenneth Clarke was Lord Chancellor and Justice Secretary, but it developed rapidly under his successor (and Gove’s predecessor) Chris Grayling.

The idea was that JSi would sell “expert” services to foreign governments in return for cash on a “commercial” (as opposed to a costs) basis.  The MoJ would thereby make money from the transactions.

Involved in the creation and promotion of JSi was PricewaterhouseCoopers.

The proposed Saudi contract was first mentioned (in passing) in a MoJ report to Parliament in December 2014.  That in turn was brought to the attention of David Hencke, who broke the story in January 2015.

The MoJ under Grayling continued with the bid (despite the public criticism), putting a final bid in around April 2015.

In May 2015, after the general election, Gove replaced Grayling.  Gove then quickly reverses a number of Grayling’s policies: see Joshua Rozenberg here.

In September 2015, the MoJ announced it is closing down JSi, but also that the Saudi commercial bid was too advanced to be stopped.

After a bit of digging, I was able to establish that one reason then given by the MoJ for not dropping the bid – “financial penalties” – was invalid (and this led to an amendment of the September announcement to parliament).  The MoJ then confirmed it had to continue with the bid because of the “wider interests” of the government.  Alan White at Buzzfeed reveals that MoJ (and Gove) wanted to drop the bid but could not.

At this stage, therefore, there was obvious tension between government departments. Tension is not new, of course.

But what then electrified the situation is that at the end of September 2015, the new Leader of the Opposition Jeremy Corbyn mentions the bid in his conference speech.

Corbyn demanded of the Prime Minister:

“And while you’re about it, terminate that bid made by our Ministry of Justice’s to provide services for Saudi Arabia – which would be required to carry out the sentence that would be put down on Mohammed Ali al-Nimr.”

And that in turn is the immediate background to the overnight news.

So: an issue of “reverse public procurement” (ie, public bodies seeking to sell goods and services) in a relatively small government department (in spending terms) leads to a political fight between the holders of two great offices of state – the Lord Chancellor and the Foreign Secretary – which the Prime Minister then has had to resolve in the face of criticism from the Leader of the Opposition.

And then someone tells the Times about this happening.

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Assessing the overnight news

Things do not end up on the front page of the Times by accident.

There are reasons why this story has hit mainstream media in this well-informed way, and in the manner it has.

The details of the contract bid, or the MoJ’s recent opposition to continuing with it, are not news.  It has previously been covered in detail by David Hencke, by me here and at the FT, and by Alan White at Buzzfeed.  It was not of particular interest to political correspondents and columnists.

What has converted it to front page news is that the bid and the MoJ’s opposition has become the stuff of a cabinet split.  One can guess who would benefit from such a story.

What appears to be the situation (and here I am only going on what is in the public domain) is that the issue is of natural interest to Gove (I do not doubt his sincerity in not liking this Saudi bid) but that it also is a useful political tool for him to use.

Gove did not have to close down JSi – the fact he did shows his general disdain for selling MoJ services to foreign despots, even though it shut off a potentially lucrative revenue stream to a cash-starved department.

It is also clear that the Saudi bid would have been stopped but for pressure from the Foreign Office.

And so it also serves Gove as a political weapon: it is reminiscent of how Gove used the faith school issue in Birmingham when he was Education Secretary.

Whatever the political realities of the matter, one thing is plain: the MoJ should never have got itself into the misconceived and illiberal position of making commercial bids to sell UK state services to repressive regimes.

Nothing good was to come of it.

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“Exclusive” – the Home Office has a MoU with Saudi Arabia about which it is keeping quiet.

  1. 2nd October 2015

In researching around the Ministry of Justice’s Memorandum of Understanding (MoU) with the Saudis, I came across a curious piece of information.

(ADD, 3rd October 2015: A “Memorandum of Understanding” is a formal agreement, but usually one that is not intended to be contractual binding.)

According to a 2015 Foreign and Commonwealth Office report, the Home Office signed a Memorandum of Understanding with the Saudi interior ministry in March 2014:

“In March, the Home Secretary, Theresa May, signed a MoU with her Saudi counterpart to help modernise the Ministry of the Interior, which draws on UK expertise in the wider security and policing arena. This will complement work going on between the College of Policing and a range of Saudi security bodies.”

The remarkable thing is that – other than this mention on the FCO website (and that is in an fairly obscure report) – there appears to be no public mention by the government at all of this document.

It may well be that the FCO mention is a fortuitous-sort-of-accident and that the MoU was never intended to be known about publicly.

But the MoU is an important document: the UK Home Office is formally assisting the police in one of the most repressive regimes in the world.

As this blog has previously set out: the Saudi regime is, without any exaggeration, barbaric.  Criminal offences are not defined; there is no recognisable due process for defendants; and the punishments are savage. And this description is not just some hyperbole of a breathless human rights lawyer: it is what the UK embassy in Riyadh itself says in its chilling Information Pack for British Prisoners in Saudi Arabia.  On punishments, the guide says:

“Criminal law punishments in Saudi Arabia include public beheading, stoning, amputation and lashings. Serious criminal offences include not only internationally recognized crimes such as murder, rape, theft and robbery, but also apostasy, adultery, witchcraft and sorcery. In addition to the regular police force, Saudi Arabia has a secret police, the Mabahith, and “religious” police, the Mutawa. The Saudi courts impose a number of severe physical punishments. The death penalty can be imposed for a wide range of offences including murder, rape, armed robbery, repeated drug use, apostasy, adultery, witchcraft and sorcery and can be carried out by beheading with a sword, stoning or firing squad, followed by crucifixion.”

That is the regime our Home Office is formally assisting.

But it seems the Home Office do not want you to know about the Memorandum of Understanding whatsoever; it is nowhere on the Home Office site, and so far as I can see, it is not mentioned anywhere else.

(If this is wrong, please add links in the Comments below.)

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I asked the Home Office press office about this MoU today, and their answers were as follows:

Q: Can you confirm whether the FCO statement is correct?

A: “The information on the FCO website is accurate.”

 Q: Can you confirm whether the Home Office-Saudi MoU is still in force?

A: “The Home Office does have an MoU with the Kingdom of Saudi Arabia. The MoU remains in effect.”

 Q: Is it possible to get a general statement on the MoU?

A: “There is nothing to add regarding this MoU beyond the information already available on the Gov.uk website.”

On the last answer, I asked as a follow-on:

The third answer is ambiguous: is there information on the Gov.UK website on the MoU other than at that FCO link?  If so, may I have links to that publicly available information?

To which the response was:

A: “…just to be clear; I was referring to the information you have already highlighted.”

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So:

– there is a Memorandum of Understanding between the UK Home Office and Saudi Arabia;

– the Memorandum of Understanding covers serious matters;

– the Memorandum of Understanding means UK policing expertise is given so as to assist the police in a notoriously repressive regime; and

– the Memorandum of Understanding remains in force.

But left to the Home Office you would not even know it existed.

 

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Michael Gove and the Ministry of Justice’s change of tone

13th July 2015

Over at the FT I have just posted on the change of tone at the MoJ – is it a change of substance as well as of style?

 

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Michael Gove and the Lawyers’ Revolt

8th July 2015

Today, like yesterday, there will significant disruption in the criminal courts of England and Wales; and in the next few weeks this disruption is likely to get worse.

The trigger was the decision by many criminal defence solicitors last week not to take on any new legal aid work as from last Wednesday (1 July 2015), in protest about the government’s criminal legal aid policy; but the causes are more complex than any particular set of refusals to accept publicly funded instructions.

Some criminal defence barristers are joining in the protest by also refusing to do legal aid work from last Wednesday, and their representative body is now balloting on whether barristers should take a “no returns” stance (which will be explained below) which will convert the current disruption into a near stand-still.

Pretty soon the criminal courts may not be functioning at all.

If a crisis can be defined as a complex and serious situation the outcome of which is not predictable, then the criminal justice system of England and Wales is plainly in a crisis.

Last March, the last time criminal defence barristers and solicitors joined together in what most would call a “strike” (a few lawyers – being lawyers – quibble with the word), the Ministry of Justice (MoJ) was able to avert its consequences by the expedient of promising to delay planned cuts to barristers’ fees, leaving solicitors in a lurch.

But such a cynical divide-and-rule tactic is probably not going to work again. This time round, nobody knows how it will end up.

This presents an immense and urgent problem for Michael Gove, the new Lord Chancellor and Secretary of State for Justice.

The problem is not entirely of his own making. He has only been in office since May 2015, whilst the MoJ policies at the heart of the dispute have been in place since April 2013, if not before.

The main responsibility for this mess is with his predecessor Chris Grayling, as well as with the senior clutch of officials at the MoJ.

The primary cause of the discontent is that the MoJ wants to substantially reduce expenditure on criminal legal aid. This in turn is because of overall expenditure cuts forced on the department by the Treasury.

But the difficulty for the MoJ is that it cannot simply make a brute long-term reduction in expenditure; if it did so there just would not ever be any lawyers willing and able to afford to contract with the MoJ to do the work needed.

And so since 2013 the MoJ has hit on a succession of clever-seeming wheezes so as to force through the desired spending cut. One misconceived idea was to somehow introduce competitive price tendering between solicitors; another one was to legally oblige all those accused to have to take a defence solicitor of the government’s choice. Both these proposals were dropped as they failed simple tests of reality and practicality.

But the one policy which has limped on is that known as “dual contracts”.

The concept behind “dual contracts” is that the market for the provision of criminal legal aid can be compelled by the government’s buying power into undergoing a fundamental and sudden process of restructuring; effectively a market crunch.

The chosen method of this compulsion is to cut the number of contracts for providing criminal legal aid as “duty solicitors” from 1,600 to 527.

The notion is that if cuts in criminal legal aid cannot be borne by lots of small firms then using the MoJ’s market power can ensure that a smaller number of larger firms (or groups of firms) can absorb the cuts whilst maintaining service levels.

(The “dual” is because solicitors can also bid for contracts to provide legal aid other than as duty solicitors; but such contracts are commercially pointless, as most criminal legal aid work comes in as a consequence of doing “duty solicitor” work.)

This “dual contracts” model must have looked a very good idea on paper; and indeed, the MoJ has paid a lot of money to external consultants to come up with papers setting out this policy.

The “dual contracts” model will not be fully in place until next year; the MoJ is still at an early stage in its (expensive) procurement exercise.

A sensible MoJ approach would have been to delay any further cuts in criminal legal aid until the new contracts were let.

More sensible still would have been Mr Gove (or any other incoming Lord Chancellor and Secretary of State for Justice) to take an opportunity to revisit this (to put it politely) “ambitious” piece of social and economic engineering.

After all, it does seem rather odd that any right-of-centre government would want to “buck the market” based on management theories and consultants’ assumptions, when the tangible – and quite deliberate – effect of the policy will be the closure of hundreds of small- to medium-size businesses in towns and cities across England and Wales.

There is no reason to believe that the “dual contracts” model will even be a success on its own terms.

There are few if any criminal legal aid solicitors which can take the current cuts in their stride; and in three areas of England and Wales, there have been insufficient bidders for the contracts on offer.

There is certainly no evidence to believe that the successful firms (cobbled together groups of firms or “market entrants”) will in practice be able to “deliver” services at the lower prices.

But the MoJ is determined to drive on with this illiberal and ill-conceived exercise, just because – it seems – it has started on it.

And what makes it more damaging, and which has led to the current lawyers’ revolt, is that the MoJ has also insisted on a concurrent 8.75% cut in criminal legal aid fees, as from last Wednesday.

This cut, taken together with a similar cut in March 2014, means that the MoJ seeking to have its cake and to eat it: reducing fees for current criminal legal aid solicitors until next year in the hope that the new “dual contracts” will then make such reductions viable in the medium- to longer-term.

Mr Gove is, of course, not to blame for MoJ policies from before he became the department’s ministerial head; but he was in charge when the cut of 1 July 2015 was placed into law, though he may not have been aware of its likely effect.

He may well have been swayed by plausible MoJ officials assuring him that by halting the planned reductions in barristers’ fees, there could again be a game of divide-and-rule between solicitors and barristers.

So Mr Gove may have good excuses for not expecting the current crisis.

Indeed, just two weeks ago he gave a clever and charming speech in which he emphasised the importance of the rule of law:

“And I am conscious …that there is something distinctive about the role of Lord Chancellor, different from other Cabinet posts.

“The most important thing I need to defend in this job – at all costs – is not a specific political position – but the rule of law.”

He also praised “the scrupulous patience, intellectual diligence and culture of excellence” which he said characterises the work of solicitors and barristers. The speech – which is worth reading carefully and in full – showed a thoughtful (if abstract) understanding of what the rule of law means, and he had warm compliments for judge-led initiatives to improve efficiency in justice system. It was almost as if peace was breaking out between the MoJ and the legal profession.

But charm and cleverness are never enough to deal with genuine problems.

And so in the days leading up to the cut of 1 July, starting in Merseyside and then in every major city, meetings of criminal solicitors and barristers met to discuss what to do about the cut and the imposition of “dual contracts”, and what not to do.

The significant attendees at these meetings were not the verbose firebrands who are always up for a fight, but the quiet, scrupulously patient, intellectual diligent and culturally excellent lawyers who manage the solicitors’ firms. For them refusing to take on new criminal legal aid work at the lower rates would not be some wild altruistic gesture; it would be a rational step, as it would be uneconomic to do otherwise; they could no longer afford to their job.

The only real choice was to act in unison with other solicitors and show the government a united front of disapproval and non-cooperation.

Importantly, the criminal defence Bar also seems to be behind the solicitors. Again, this is not from narrow self-interest (the MoJ having been careful to first delay and the annul the planned barristers’ fee cuts so as to keep them on side), but because the future of the criminal defence Bar depends on work from solicitors’ firms.

And without such work, there is no basis for a criminal defence Bar, and that in turn means that the quality (and quantity) of advocacy in serious criminal matters will suffer.

Though the leadership of the Criminal Bar Association (CBA) initially was against barristers taking any action in support of the solicitors (preferring “constructive dialogue” with the MoJ – and, to be fair, they have *twice since 2013 negotiated to protect the positions of barristers at the expense of solicitors ), pressure up from grassroots seems to be coercing the CBA into a more openly robust position.

[*note this is disputed by an informed source, who tell me the the two criminal fees concessions by MoJ had little to do with the CBA – note added 9 July 2015]

If a “no returns” stand is taken – and here it is important to note that the crown courts which deal with serious offences rely on the flexibility of barristers to accept “return” instructions when other barristers become unavailable – then the solicitors’ protest will have powerful support.

This lawyers’ revolt began slowly after last Wednesday; it takes time for cases to work through the criminal court system, and the solicitors’ refusal to take on new legal aid work was only for cases from 1 July onward.

Solicitors were careful to comply with their obligations to provide “duty” work, mainly at police stations and magistrates’ court (this is why the quibbling lawyer will say is not a “strike”); but such work is at best a bare minimum of what is required to ensure those arrested and charged with proper representation.

Over the last few days the effects of the revolt have been manifesting.

The handful of defence lawyers employed directly by the MoJ – the Public Defender Service (PDS) – found themselves being sent from their four small regional offices all over the country to deal with serious matters where no legal aid solicitors accepted instructions. The PDS is a fine group of dedicated lawyers, but each one can only deal with one high-profile case at a time in one place, rather than a list of dozens of low-level offences in each local court. And even deploying the PDS has not been enough; a man charged with murder in Bristol had no representation in court yesterday and there had to be an adjournment, among many other similar examples in the last day or so.

The MoJ’s processing centre for placing cases with legal aid defence solicitors – the Defence Solicitor Call Centre (DSCC) – appears to be failing to cope with the current demands (though the MoJ press office insists the DSCC “is not in meltdown”). DSCC staff are reduced to desperately contacting solicitors hundreds of miles away from those needing advice and representation, and often cannot place instructions at all.

I have been told by a number of solicitors of examples where the DSCC is unable to obtain anyone to do even straightforward criminal defence work, either as “back up” to “duty” solicitors or at all.

Another pressure-point are police stations, where it appears (from various sources) that those arrested are now being released – or bailed – without charge, and planned arrests are not taking place, because what can be done by “duty” solicitors is insufficient.

And in the courts, it is now well attested that the attending “duty” solicitors are often now having to slowly do the majority of cases, leaving many defendants unrepresented.

If these are the manifestations of the lawyers’ revolt, then what will be its knock-on effects? Hearings and trials will take significantly longer, and will also be repeatedly adjourned and delayed, many (guilty) people will be released without charge, and (not guilty) people may plead guilty without the benefit of advice – or, if a trial goes ahead without proper representation, wrongly found guilty.

The criminal justice system will cease to function in any meaningful way; and there is no point having politicians and civil servants making and implementing laws which cannot be enforced.

But if there are no defence lawyers who can afford to run their businesses accepting the fees now on offer, then the cause of this problem is with ministers and officials who set the rates.

And what will be its political consequences?

What can actually change as a matter of policy as a result of this revolt?

The 1 July cut is now the law of the land; and the “dual contract” policy, having survived a legal challenge, is now at the stage where there is an on-going procurement exercise.

Neither the cut nor the procurement exercise can be easily reversed; and the Treasury still demands reductions in expenditure from the MoJ.

There is no quick fix available to the MoJ to placate and appease the criminal defence lawyers; nothing can be done by tomorrow.

One observer has suggested that the revolt can be seen as a mere “howl of pain” by the lawyers involved; and it may well be that the fine resolutions and unanimity of the solicitors and barristers fall away having made a lot of noise and caused a lot of disruption, followed by a slow drift back to accepting legal aid work until the “dual contracts”arrive and put most of those lawyers out of work.

Mr Gove is an intelligent and media-savvy politician: all he may need to do is wait and put up with what is happening, watch the protests collapse, spot things he can blame the lawyers for having caused, and then ensure that the public gets to hear the MoJ’s version of how well the criminal justice system meets its “challenges”.

The indications, however, are that Mr Gove may be taking a more prudent course of action.

Unlike his time as education minister, he and his advisers have not gloried in the conflict. Tabloids have not (yet) been briefed against the lawyers. The MoJ has instead been careful to keep lines of communication open with the professional bodies.

It will now be clear to the MoJ that it cannot deftly just play barristers against solicitors, or rely on the PDS to make the problems go way. It will also be plain that the lawyers’ revolt is holding and even becoming firmer.

It is, in fact, a good time for the MoJ to think afresh, to look at other litigation funding models for criminal legal aid and work in accordance with an existing market, rather than hope like utopians that somehow that an ideal one comes along.

There was never any good reason to impose the 1 July cut so far ahead of the letting of the “dual contracts” – and there was actually no reason to believe (or empirical evidence to show) that the “dual contracts” model will ever achieve the desired sustainable reductions in criminal legal aid.

As Mr Gove said in his speech just a couple of weeks ago, “the most important thing I need to defend in this job – at all costs – is not a specific political position – but the rule of law”.

He now has the opportunity to show that he can make that very choice.

Mr Gove does not need to defend – at all costs – a specific political position erroneously taken by his predecessor; he can instead decide to ensure that the criminal justice system continues to function on a sustainable basis; in short, and as he says he wants to do, he can choose to defend the rule of law.

How not to count prison over-crowding

11th June 2015

There was a ministerial statement today from the Ministry of Justice, and it contained a remarkable admission.  But you had to look carefully.

The statement was headed with the unrevealing title “NOMS accounts – explanatory note”.

(NOMS is the National Offender Management Service, part of the MoJ.)

The admission was about prison over-crowding figures:

“In instances where two prisoners were held in a cell designed for one, both prisoners should be counted as being in crowded conditions. Some prisons, however, were only counting the additional prisoner.” 

Extraordinary.

It takes a special kind of genius to think that two prisoners in a cell intended for one means that only one of them was in over-crowded conditions.  Of course, both of the prisoners should have been counted.

And this is the same NOMS branch of the MoJ which is – disgustingly – seeking to sell “expertise” on prison management to the barbaric Saudi regime.