Monday Message 08.04.13

 

CBA Chairman’s Update: Michael Turner QC

Personal Email: [email protected]

Tel: 07951157030

 

Headlines.

• Do Right Fear No One
• The BSB plays the Bar for fools
• Wear your NO to QASA badge with pride.
• Justice For Sale : Meeting Wednesday 22^nd May
• Serco underline what we have been saying from day one.
• All you need to know to make an application for costs against a third party.
• ALS/Capita proves to be expensive disaster: The Figures
• The Police Federation joins the fight.
• Look Who the LSC really wants to talk to.
• Grayling begins to lose the plot completely
• Sarah Vine tells it how it is in the Guardian
• Madness in the Maldives- We can do something to stop it.
• Not the Monday Message

 

1.         Do Right Fear No One

It is more important than ever that you all digest what we have to say in this Monday Message. As you will all be aware meetings are taking place on all Circuits with a view to answering two questions:-

 

a)      will you decline to sign up to QASA (‘the boycott’)

and

b)      will you support those circuits who are in the firing line first by not taking their work if they do not sign up. (‘the Pledge’)

 

On the South Eastern Circuit, a meeting of the Heads of Chambers was unanimous in those two resolutions. Following that meeting the heads were asked to consult their members and confirm or not the view of their chambers. Many have done just that, and so far everyone has signalled a resounding no to QASA. Sarah Forshaw QC does not wish to call in the final vote until after the PCT consultation has gone live. She published her plan in an email to the circuit only yesterday HERE. The timing of these meetings is a matter for the Circuits Leaders and we will work with them. However it the Western and Midland Circuits, which are at the sharp end of this strategy, before they meet to decide whether to boycott QASA, they need to know whether there exists Real support or not. That is particularly so with the misinformation put out by the BSB and others. The Wales, Northern and North Eastern Circuits have declared their support for the boycott, and have taken the Pledge. The last piece in the jigsaw is the SE, the largest Circuit. Please understand that what each Circuit does impinges on another. Unity is paramount if such action is to be effective. There are some who believe that it is possible to negotiate with this Government. Every attempt this Government has made to privatise public services has proved an unmitigated disaster, one only has to look at CAPITA and SERCO, in our world.  As the Chief Executive of Capita earns his many millions

 

Members of the CBA are, if they are lucky enough to go to court, earning £45, before tax and expenses for so doing.  The Government seeks to cut that further. They do so at the same time that their manifest mishandling of the NHS has seen Trainee doctors now being paid £2000 per day on as locums on an agency basis HERE.

 

There is a real sense that the Government is desperately keen to be seen to be doing something, whilst not actually knowing why it is doing it.  A recent example of this took place in the House of Commons on the day that the MOJ through Elizabeth Gibby, announced that the new consultation was not about the principle of PCT, but its implementation.

An executive committee member Mark Trafford asked Dr Gibby, at a parliamentary meeting how much the Government proposed to save by implementing BVT?  It was a fair question.  One that might have allowed us to talk about how best to save money in the system, how to collaborate, how to be part of the Big Legal Aid Society perhaps.  However, She had no idea, indeed she could not even argue that it would save any money, which we know it will not. It is astonishing that a department that seeks to bring in something as complicated as tendering (look what happened to the NorthEast Rail route tendering) should start the process by having no idea about a simple point on a process that is called PRICE-COMPETITIVE, what the price is they seek to achieve and what they seek to save.

 

Perhaps Dr Gibby could have reminded herself of the evidence to Parliament’s constitutional affairs committee at the beginning of the QASA discussions when it was made clear by the only independent study on the subject, that the increased cost in the legal system was caused, not by lawyers, whose income had remained essentially in line with inflation but by, you’ve guessed it, government legislation.

 

Perhaps Dr Gibby could have reminded herself of the last fiasco of trying to introduce tendering on the last occasion.

 

Rather in the way that the only reports into the quality of advocacy commissioned by the BSB and LSB show that the quality of advocacy is high and that the only decline in the standards of advocacy was at the CPS, the Government (and I include the BSB and LSB in that description) either does not know of or wilfully ignores its own work-and to what cost to the public?

 

“Dear Mr Hay,

Legal aid forms a vital part of a system of justice of which we are rightly proud. The Government strongly believes that access to justice is a hallmark of a civilised society. Our legal aid system is, however, now among the most expensive in the world, costing over £2 billion a year. In the current fiscal climate, this is simply unsustainable. My view is that the Government is absolutely right to consider competitive tendering as a means by which the system can be made more efficient and fairer to taxpayers.

Thank you for taking the time to contact me.

Yours sincerely,

Nadhim Zahawi”

 

In those circumstances we suggest it would be folly to place any store in the likelihood of a negotiated settlement.

 

Clearly it is vital that the Western and the Midland Circuits know the position of the South East before they take their votes.

 

What we suggest you do is make sure that your Chambers is in a position to declare their position when the consultation document comes out later this month. Even if one Chambers on a circuit fails to express a view that will be taken as ascent to QASA, even if it is not and that has a ripple effect across all circuits. Equally, while this process is on going it is important that the rumour mill does de-rail the process. One tweeter suggested that 25 Bedford Row, of all places might be thinking of signing up for QASA. Paul Mendelle QC has been opposed to QASA from the very day the concept was born so I was surprised to say the least. I have spoken to Paul and of course 25 Bedford Row, like the 30 or so chambers that have responded so far will be saying NO and NO.  I am also able to confirm having spoken to Nigel Lambert QC that Carmelite Chambers are 110% in support and have given a resounding NO and NO to the questions.   We must allow everyone to digest the arguments calmly and all we are confident will be left in no doubt that this is a fight for the survival of the legal profession as we know it.

 

2.         The BSB

The Baroness Deech took advantage of the Easter break in the Monday message to put out some more disingenuous propaganda. The first was a statement on the fourth consultation HERE.  Her points in headline form were:

a)      QASA is not linked to PCT

b)      The BSB only act in the public interest

c)      The BSB can help the Bar bid for PCT contracts via Procureco.

 

QASA is not linked to PCT

You will remember that the new deputy head of the BSB Ms Patricia Robertson QC had insisted that QASA had no link to PCT. In the last Monday message I pointed out to her the link made between the two by Lord Justice Thomas HERE inviting her to respond. She has conspicuously remained silent. The Baroness Deech, no doubt in an effort to shore up her new deputy, has continued to preach the same nonsense, in the hope that the gullible will eventually swallow the lie. Whilst, one can imagine that Baroness Deech and Ms Robertson QC might not have bothered to read Lord Justice Thomas’s evidence to Parliament, we can take it as that they both must have glanced at the Carter Review. I cite two small extracts:

 

“62 While the Legal Services Commission will need to determine the exact nature of the best value tendering process, it is likely to have the following features:

only firms that pass the appropriate quality threshold will be asked to bid;

 

Recommendation 3.1: The Legal Services Commission should begin from July 2006 a national roll­out of peer review assessment for all firms seeking a place in the new market so that the introduction of best value tendering can take place from April 2009 onwards. The Legal Services Commission should adopt four criteria to plan the roll­out of peer review:

• greatest quality impact for clients;
• greatest opportunity to restructure the local

market;

• ensure a level playing field for all firms until best

value tendering takes place; and

• assess the impact on the justice system. “

 

If you have a spare three hours, read the entirety of the Carter Review is set out HERE.

 

I have explained more than once why a quality assurance scheme is necessary for PCT. There are two reasons. First, because the market place will no longer be the determiner of quality, where the best have to prove themselves to get the work. Client choice of advocate will be limited to a small number of contract area, providers whose only contractual requirement will be to furnish the client with a suitably QASA graded advocate. Providing they have provided such an advocate the client will get no further choice. The second reason is that the government needs to have a defence mechanism to those disgruntled defendants who will complain that their human right – to a competent defence lawyer – has been denied them. (“No, Mr Rapist, your advocate may have looked and sounded like a Tesco shop assistant, but he has an independently-certified QASA badge to do your case.”) Simples. That is why both Lord Carter and Lord Justice Thomas saw it as a necessary precursor to PCT and of course it is.

 

It is worth adding, perhaps in mitigation for both Lord Justice Thomas and Lord Chancellor Straw’s much-maligned Best Man (twice) that they clearly envisaged, not this Leviathan that we now see, a beast bred by the civil service and regulariat to satisfy their own jobs, but that Thomas LJ and Carter anticipated in their evidence in 2007/7 peer review, much along the lines of the medical profession. This was, at least it seems from the Parliamentary evidence, AGREED by the DCA and Late LSC at the time.

 

The BSB only act in the public interest

The Baroness claims that it is the duty of the BSB to act in the public interest. She is right. It is unfortunate that it either does not understand what is in the public interest or simply does not care. How can it be in the public interest to usher in a scheme which will ultimately be used to restrict the public choice of representative?

 

However, the abuse of public interest point extends a lot further. The QASA scheme as currently drafted will abolish the right of a citizen to insist upon a Queens Counsel in the appropriate case. There is no separate level for silks within QASA, there are to be demarcated Level 4 QC. The sole reason for that is obvious. All level 4 advocates will be accredited to do all serious cases, and in consequence a new supplier’s contractual obligation will only extend to providing a Level 4 advocate to conduct a murder as opposed to a Level 4 QC. Silk certificates will go. The internationally-recognised ‘kite-mark’ of excellence that the letters ‘QC’ represent, will become a purely ceremonial honour, if it survives at all. Who will bother to go through the rigorous QCA assessment (and pay the eye-watering fee) for a badge that no longer means anything worthwhile?

How ironic therefore that Baroness Deech was awarded QC (Honoris Causa) this year.

 

Although, the Baroness, her previous deputy Sir Geoffrey Nice QC and her chief negotiator Sam Stein QC have said in terms that plea only advocates are not in the public interest they are enshrined in the scheme. I raise this not to start an old and distracting hare running, merely to underline how little store one can put in the BSB claim as the protector of the public interest. The reality is that our brothers and sisters of the solicitors’ profession have been forced onto the advocacy stage, because there are not properly remunerated for the work they do as solicitors. We have got to help them change that situation or they will be forced to continue to seek to take a slice of the advocacy cake.

 

The BSB can help the Bar bid for PCT contracts via Procure Co.

This claim is as stupid as it is insulting. When Procure Co was first put forward as a ship to save the Bar, many of us believed this spin and diligently went about trying to make it work. All of us found it to be a ship full of holes which could only result in bankruptcy to any chambers with more than 6 barristers.

 

“Dear Mr W. Waddington,

I am writing to all solicitors whom the SRA regulates about the Quality Assurance Scheme for Advocates (QASA) as it will have an impact upon you if you exercise your rights of audience in the Magistrates Courts and, if you have your Higher Rights of Audience (Crime), in the Crown Courts.

As you may be aware from recent media coverage, the SRA has for the past two years been working with colleagues at the Bar Standards Board (BSB) and ILEX Professional Standards (IPS) on the creation of a quality assurance scheme for all advocates undertaking work in the criminal courts.

The aim of the Scheme is to ensure that all those undertaking criminal advocacy are competent to do so—whether making a bail application in the Magistrates’ Court or conducting a murder trial in the Crown Court. There has for some time been considerable concern about the standards of advocacy in the criminal courts and the SRA’s focus has been on developing a scheme which will protect and promote both the public interest and the interest of consumers.

The Scheme has already been the subject of three consultations (two in 2010 and one in 2011) and there will be a fourth and final consultation from July to October of this year which will set out the final proposals on some of the key detail of the Scheme.

The Scheme will introduce a system of accreditation for criminal advocacy work in the Magistrates’ and Crown Courts. All solicitors and registered European lawyers (RELs) will be eligible to enter the Scheme at Level 1 which will enable them to undertake advocacy in criminal cases in the Magistrates’ Courts. Those with Higher Rights of Audience (Crime) will be able to enter the Scheme at either Level 2, Level 3 or Level 4 in order to undertake work in the Crown Courts. Once accredited in the Scheme, advocates will be able to move from one level to another by a process of formal assessment and will also need to seek reaccreditation once every five years.

Launch of the Scheme will commence in January 2013 when advocates will be required to register with their regulator and thereafter to be assessed in order to obtain their accreditation. Before that date, on 2 July 2012 the SRA’s Quality Assurance Scheme for Advocates (Crime) Notification Regulations 2012 are due to come into force. These will require all those solicitors and RELs who undertake criminal advocacy and will eventually be seeking accreditation within the Scheme, at whatever level, to notify us of their intention to do so. Accordingly, if you are a solicitor or REL who wishes to be able to undertake criminal advocacy in the next five years, you will have from 2 July 2012 until 21 September 2012 to notify the SRA of your intention to enter the Scheme, using the Notification form which will be available at https://forms.sra.org.uk/s3/qasa from 2 July 2012.

The Notification Regulations are included in Version 4 of the SRA Handbook, published on 21 June 2012.

More information on the Scheme, including details of a forthcoming webinar scheduled for Thursday, 5 July 2012, and full details of the Notification Regulations can be found on the SRA’s website at www.sra.org.uk/qasa.

Yours sincerely

Antony Townsend
Chief Executive”

 

3.         Wear your NO to QASA badge with pride.

The badges have arrived and have been sent out to all chambers reps. Given that the BSB likes to pretend that I am in a minority of one, perhaps you could send in a collective team photo from every court centre of those prepared to sport the badge with pride. We will publish the results.

 

4.         Justice For Sale: Meeting Wednesday 22^nd May

Friends Meeting House Euston:

Booking:

Time 1.30 – 5.00

 

This meeting has been called by the CLSA and the CBA has been invited to attend, and to speak. It is the first step towards presenting a united front between our two professions. The hall holds but 750, so if you believe in what we trying to do please be there.  The application form for a place will be on the CLSA website this week. Unfortunately, I cannot be there that day. My only holiday this year is for 7 days and it is that week. Forgive me. My Vice-Chair, Nigel Lithman QC, will speak.

 

5.         Serco underline what we have been saying from day one.

My scouts at the Old Bailey brought this to my attention:-

 

In a current case where  9 defendants are on trial, 4 of them are charged with murder, the remaining defendants are charged with firearms offences or perverting the course of justice arising out of the murder. The deceased was an 18 year old youth who was gunned down in a public street in the late evening of 6^th June 2011. Two firearms were discharged; there was no apparent motive other than territorial rivalry between gangs in south London. It is trite to observe that this is a case of the utmost gravity.

Nevertheless on Monday 18^th February the court was unable to sit for long periods of time because of the actions of Serco. The case was listed at 10.15 for legal argument, 10.30 with the jury. The court was not able to sit before 12.00 pm because Serco had failed to ensure that it had sufficient staff in the Central Criminal Court to enable it to have the prisoners in its charge brought into the dock. At 2.00 pm, when the court tried to sit after the short adjournment, there was a further delay until 2.30 pm for the same reason. As a result of this misconduct by Serco 2¼  hours were lost from a 5 hour court day. There are 20 counsel instructed in the case. The jury were kept waiting having been at court for a 10.30 start.

On 27^th March the court was due to sit at 10.30pm for the judge to deliver his ruling on the submissions of no case to answer. This was one of the most important moments in the trial. Serco had been on notice of the sitting time since 25^th March. They knew that the jury was due back at 2pm so that they could sit promptly after the ruling had been delivered and its implications discussed with counsel. Nevertheless the court was unable to sit until 12.00pm because Serco had yet again failed to send sufficient staff to enable the defendants to be brought up into the dock. In short, despite the earlier incident and despite being aware that an application for third party costs had already been made, Serco disrupted the trial yet again.

 

6.     All you need to know to make an application for costs against a third party.

The Prosecution of Offences Act 1985, s.19B makes provision for the award of costs against third parties.

For the latest learning from the Court of Appeal on the interpretation of “serious misconduct” R v Applied Language Solutions (now Capita Translation and Interpreting Limited) [2013] EWCA Crim 326 (25 March 2013) HERE

 

7.         Capita proves to be expensive disaster

A report this month by Involvis for Professional Interpreters for Justice [here] proves that Capita (who took over the contract to provide interpreter services from the accident-prone ALS) is an expensive disaster. Simply by way of headline the report reveals the following:-

 

• A total of 859 interpreters responded to the survey and four in five of them (81%) stated they refuse to join the register operated by Capita for interpreting jobs in courts and other parts of the justice system, even though the contract has been in operation for over a year.

 

• The interpreters who have registered with Capita TI (147 or 13% of the 859 who took part in the survey) were also dissatisfied. Over half said they were no longer accepting jobs and 42% stated they wanted to quit. Nearly half (47%) of those who are assigned to Tier 1 of the Capita TI register stated they were not asked to undergo any kind of assessment and 12% said they were not asked to supply evidence of their qualifications. These are breaches of the Framework Agreement terms.

 

• 87% of the interpreters who are on NRPSI said they have been contacted directly in the last three months by various parts of the Criminal Justice System requesting their services. 58% stated they had been telephoned directly by Court clerks with urgent requests for them to attend because Capita TI has been unable to supply.

 

8.         The Police Federation joins the fight

The Deputy Chairman of the Police Federation did his talking in Exaro News last week.

 

Crown Prosecution Service ‘letting criminals walk free’

Decisions to charge suspects based on cost rather than interests of justice

By Keith Perry | 2 April 2013

HERE

 

We have been saying for many months that it is the victims of crime who are the ones to suffer from these wrongheaded cuts that cost the tax payer more than they save. No doubt Mr Grayling and the rest of his colleagues will refuse to discuss matters with the Police Federation now that its Deputy Chairman has had the balls to speak the truth. At the current rate the Government will be speaking to no one save of course to the Co-Op, Eddie Stobart, G4S etc.

 

9.         Look Who the LSB really wants to talk to

We publish HERE the minutes of the LSB meeting of 28/11/12. Can you guess who was invited to address this meeting? Was it the CBA? A large solicitors’ practice? If any of you think it might have been, go to the bottom of the class. Maybe the last of the doubters will finally believe me when they see it was none other than the Co-Op.

 

10.       Grayling begins to loose the plot completely: Clampdown on legal aid for prisoners

The Government has announced plans that will see prisoners barred from claiming legal aid to fund complaints about the prison system. Chris Grayling said he had been “appalled” that taxpayers money was being used to allow convicted criminals to bring “unnecessary legal cases”. The MoJ said the plan would cut access to legal aid for cases such as a prisoner appealing against restrictions on visitors, the category of prison they are held in or a decision to move them to a different section within a prison.

 

Mr Grayling would do well to bring to mind Churchill’s words that “a democracy is to be judged by how its treats its prisoners”. Given the disregard Mr Grayling has exhibited for the rights of this Country’s unconvicted citizens we should not be surprised that he takes the view that all cases brought by convicted prisoners are “unnecessary”. Next stop Guantanamo Bay.

 

The excellent Shami Chakrabarti published Liberty’s views on the topic in the Times on Friday HERE.

 

11.      Sarah Vine tells it how it is in the Guardian

It is heartening that our members are beginning to find their voice in the media. Last week Sarah Vine got his excellent article in the Guardian HERE.

 

12.       Madness in the Maldives we can do something to stop it.

It’s hard to believe, but a 15-year-old rape survivor has been sentenced to be whipped 100 times in public!

 

The girl’s stepfather is accused of raping her for years and murdering the baby she bore. Now the court says she must be flogged for “sex outside marriage” with another man, who has not even been named! President Waheed of the Maldives is already feeling global pressure on this, and collective outrage can force him to save this girl and change the law to spare other victims this cruel fate. This is how we can end the War on Women – by standing up every time an outrage like this happens.

 

Tourism is the big earner for the Maldives elite, including government ministers. There is a million-strong petition to President Waheed this week. If supported it will threaten the islands’ reputation through hard-hitting ads in travel magazines and online until he steps in to save her and abolish this outrageous law.

 

I cannot imagine that anyone of us who would not wish to help put a stop to this disgusting behaviour.

Please sign it if you agree and forward link HERE.

 

13.       Not the Monday Message

There has been some questions raised about Ian west’s “Not the Monday Message”. Is it official? Have we sanctioned it? Do I really write it? The answers are No, No and No. Not the Monday Message is Ian’s work and his alone. He was kind enough to ask me if I minded before the launch and who am I to say no. The more our members find their voice the better. Mr Grayling who refuses to listen to any criticism should note that freedom of speech is more about listening to your enemies that your friends (not that Ian is the later). We live in a society where both parties are spending £ millions on gagging orders. Leadership, is not about telling people what to do, it is about seeking a consensus for moving forward for the good of your constituency. You can only achieve that by encouraging healthy debate. Long live Not the Monday Message and any other blog. We shut no one out and the BSB themselves have taken advantage of the fact. Strangely Sam Stein QC has gone very quiet, as is so often the case with those who have no confidence in their arguments, which is why the Chatham house convention is so often wrongly deployed.

 

Do Right Fear No One

 

Michael Turner QC

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