The June 2019 Interim Pay Offer by the CPS and the MoJ

Here are my thoughts about the interim fee offer by the CPS and MoJ. It’s important to look at the context as well as the content of the offer. It’s not perfect but we’ve come a long way.

Context

In the dark days when Grayling was Lord Chancellor, there was little engagement, but palpable hostility, between MoJ and the criminal Bar. Since then, both sides have realised that constructive engagement is indispensable. The relationship will always be adversarial to a degree, but as we know from our everyday work, being adversarial is perfectly compatible with civility and cooperation, because it enables progress to be made. We looked over the edge of our silos and saw where there is common ground, and where the real issues lie.

The Bar’s contribution to the redesign of AGFS was always predicated on the government needing to invest significantly more money, in order to make careers and quality in criminal advocacy a sustainable long-term proposition.

That has always been the ambition. An increased fees is not an end in itself: the point is to ensure that the advocates who serve the Courts and the public as prosecutors and defenders are the best advocates, and they get a fair reward whether they are starting out or more experienced.

The leadership never conceded that the ‘figures in the boxes’ were enough to ensure that, and the re-design was always considered to be work in progress. The MoJ with its squeezed budget has felt unable to match our justified demands and ambitions. Put simply – we think we should be paid more, and they are unable or unwilling to commit as much of their budget as we would like. But engagement and good will, have enabled the dialogue to continue.

The pinch-point was always going to be PPE. The explosion of digital evidence has made PPE an unworkable and inefficient proxy for the complexity and difficulty. It is hard to defend it as a one-size-fits all method for assessing fees. It also created disparities between the incomes of barristers who have been routinely briefed in high PPE cases and those who have not. Some never got them. Getting many such cases, or getting none, may not reflect the quality of the advocate.

Those who got the occasional such case may have looked to them as a windfall to make up for the cases that did not pay. But reliance on unpredictable windfalls is no way to earn a living when bills have to be paid on time. The concentration of high PPE cases in a small number of hands (this is what happens) is not a fair distribution of work or money either. The loss of income is, of course, painful for people who have been used to making much more money than they do under the existing scheme. It needs to be compensated.

As the Bar said all along, and as the MoJ now recognise, the present PPE arrangements are too crude. The principle of payment ‘for work done’ is not always being kept to. It is not that the size of a case is never a guide to its complexity or seriousness. The trick, not yet achieved, is to devise an agreed method that identifies those high PPE cases that really do call for payment according to their size. Work is continuing on finding one.

Pausing there: there are those in the profession who think both that the MoJ would like to destroy the criminal Bar, and that the Bar’s leaders are somehow complicit or too feeble-minded to resist. Conspiracies theories may seem to explain complex phenomena and so give comfort to their proponents. All I can say is that in my experience of dozens of hours in discussion with MoJ officials, what they want is sensible and mature engagement; some may be more sceptical or less well informed than others, but at no stage did I sense a desire to destroy us. As for the Bar leaders, they have been resolute in defending the Bar’s interests and supporting our case with evidence.

Some people call for the appointment of an external negotiator. They miss at least two things: (1) barristers just are professional negotiators and persuaders; (2) if the external negotiator fails to win all or enough of the Bar’s demands, who is to blame? The people who appointed them. I for one would not want my subs to go to anyone who was not a member of the profession when dealing with issues like this.

It takes time to change entrenched attitudes: the old hostility may have faded, but the churn of ministers in the MoJ since 2014, and the loss of many of the more senior officials, meant that progress faltered. The Gauke administration has been relatively stable, and under him the response to the Bar’s demands has been positive. We voted in favour of AGFS Scheme 10 last summer, but the narrowness of the result and the unresolved issues gave the CBA a mandate for continuing to press for improvements. This resulted in the settlement reached in December 2018.

Far from giving up at that point, the Bar has continued to work for a better settlement. The CBA decided the time had come to tackle the CPS over its shocking long-term failure to pay barristers properly for so much of their work. It was the Bar’s decision to link the demands over prosecution and defence fees together, so it should come as no surprise that the CPS and MoJ – each a custodian of taxpayers’ money – should link them too. It’s not fair to see this as ‘divide and rule’.

Content

There’s no point repeating what you will have read in the messages from the CBA, the Chair of the Bar, the SE Circuit, and the DPP. You know what is on the table now, and what has been pledged.

The current Justice Secretary and Attorney General are both Bar-friendly but are unlikely to remain in post in whatever administration takes over in July. Their successors may revert to the older approach if the Bar rejects the offer. If background distrust of the government is well-founded, then why trust the new one any more than the present one?

This is an interim offer, not a final deal. The onus is on the CPS and MoJ to make good on what it has pledged in the next phase. If they fail, then action may be inevitable. 

The point of what I’ve set out here – if you’ve got this far – is that real progress has been made – much more slowly than anyone would have wanted, but nonetheless. It looks set to continue.

This is a win. 

 

We’re Here, Because We’re Here, Because We’re Here

Peter Jackson’s film They Shall Not Grow Old plunges the audience into the filth and violence of the Western Front. The 3-D format puts the viewer right into the trenches alongside the men. It blends colourised and enhanced film footage with audio recordings of the memories of the veterans who fought there, both from from the Imperial War Museum’s archives. The film also does something extraordinary: a team of professional lip-readers worked out what the soldiers were saying in the silent footage, and we hear them speaking, often accompanied by artillery barrages and the noise of mechanised warfare. The veterans say it was a great experience to have served; they put up with the death of friends, the threat of their own imminent extinction or mutilation, and the ordure and the rotting corpses all around them. They muddled through. They believed in what they were doing. One man says he would do it all over again. Most of the voices in the audio material belonged to private soldiers or NCOs. The only literary voice was that of Lt. Edmund Blunden (whose ‘Undertones of War’ is one of the classics of Great War writing). The film is free of the ‘lions-led-by-donkeys’ narrative that has influenced the view that succeeding generations have had of the conflict. In fact, the film is free of narrative altogether. There is no attempt to set things in context, and some historical events are jumbled together: tanks were not used at the start of Battle of the Somme in July 1916, footage of which is the centrepiece of the film (there was apparently no filming of the front line before the ‘Big Push’). This might be confusing if the film was presented as a stand-alone account of the fighting, but it is intended to accompany a teaching pack for schools which would give the historical context. The point is not to be didactic, but immersive. Inexplicably, the BritishBoard of Film Classification has certified the film as 15. In a speech on 1 October 2018 the Prime Minister looked forward to the time after the UK leaves the European Union and related it to what she thinks happened here a hundred years ago: ‘we must recapture that spirit of common purpose because the lesson of that remarkable generation is clear: if we come together there is no limit to what we can achieve’. At the end of the film, we hear veterans say they could not find work, as many employers refused to hire ex-servicemen. One can only guess whether it occurred to Mrs May that she was comparing the global catastrophe of 1914-18 with Brexit.  But she may have touched on a deeper truth: that swathes of people, like the soldiers in the film, will put up with almost any amount of misery if they think it is worthwhile, even if it is not obviously in their interests (as being blown to bits by shellfire while standing in a rat-infested open drain isn’t). They will be sardonic, and humorous, and brave, and comradely, and will mock the pretensions of their leaders: but they will accept their fate. This willingness to muddle through is both admirable and depressing. We put up with too much and make too few effective complaints. It is also dangerous because it gives leaders scope to inflict great damage with virtual impunity. We’re here because we’re here.

Footnote

This week I have had two articles published: one in the Times, about the Kavanaugh nomination and the unreliability of evidence of ‘demeanour’; the other in the London Review of Books – a review of the Secret Barrister and an account of the deplorable state of our criminal courts and publicly funded justice in general. The LRB piece originally had a section about Sarah Langford’s marvellous In Your Defence, for which there was not enough space, so here is what I wrote about it:

Sarah Langford writes in her own name, and describes in detail eleven anonymised cases in which she has appeared – three in family law, the rest in crime. She describes how she has advocated for her clients, but she also steps back to give a more complete account of the all-too-human stories that lie, for example, behind a bitter fight over who gets the children in a divorce, or what drives a young man to admit an offence he has not committed. Langford speaks of her own occasional misgivings about her role and the function she fulfils in a compromised system of justice – her candour and the depth of her humanity are unusual in a profession in which few of us have the time or inclination to reflect before the next case comes along. Her book is not confessional, but it gives an intimate and true account of the challenges that a thoughtful and sensitive person faces in her line of work.

 Each of these books ought to shock those who know little of our system of criminal and family justice. They might end up agreeing with Robert Conquest that to understand how an institution works, you should assume that it is run by a cabal of its enemies. These books show where things have gone wrong, but they also show something of the calibre of the people who keep it going by refusing to let its enemies triumph.

 

RAPE TRIALS & JURIES

Jolyon Maugham QC, the well-known Remain campaigner and tax law specialist, writes in the New Statesman of the ‘impunity’ that he believes the legal system grants to men who commit rape. He is shocked by the ‘attrition rate’ between the number of sexual offences of rape and the number of convictions in Court. He cites figures from the Office for National Statistics that suggest that in 2013 ‘there were an estimated 60,000-95,000 victims of rape in a year, there were only 1,070 convictions.’ He believes ‘the solution can only be to change the law’, and questions whether juries should try rape cases at all.

Whether juries are fit to try many kinds of case is a question that is never long out of public discussion. There are those like the outgoing director of the Serious Fraud Office who thinks juries should not try serious frauds, because they are too complicated; others say the same about cases with difficult scientific issues; and many in the senior judiciary think that defendants should lose the right to choose jury trials in cases that are too simple, such as shoplifting (not so simple if you wrongfully acquire a conviction for dishonesty and cannot get a job). In short, the jury has many enemies.

But the jury is you and me and our neighbours. Young and old, wise and foolish, all made of the same crooked timber of humanity as the judge, the police officer and the defendant on trial. The genius of this accidentally arrived at way of doing justice is that twelve turns out to be the right number to even out the differences. In her seminal 2010 study Are Juries Fair?, Professor Cheryl Thomas was permitted to speak to hundreds of jurors about their deliberations. The answer to her was Yes, with caveats including the need to give more help, such as written directions on the law and a list of the questions jurors should ask themselves on the ‘route to verdict’. The Courts have adopted most of her recommendations.

Professor Thomas corrected one of the ‘Misconceptions about jury verdicts in rape cases’: ‘contrary to popular belief and previous government reports, juries actually convict more often than they acquit in rape cases (55% jury conviction rate)’. That figure was consistent with the general run of cases, and does not suggest that there is anything peculiar about rape trials that sets them apart from others. The hallmark of many rape trials is that the jury have to decide between two contradictory accounts – complainant v defendant – with little or no supporting evidence on either side. Trials like that are not exclusive to cases of rape. With the prosecution having the burden of proving their case so that the jury are sure, the decision for the jury in any such case can be hard.

The prevalence of sexual offending is a great social evil, but the legal system and the alleged weakness of jury trials in particular can’t be held responsible for men committing rape, any more than they can for the upsurge in knife crime or burglary. Myths still abound about disrespectful treatment of women complainants by the police and in Court. Police officers, prosecutors and judges receive specialist training in sex offence work; abusive cross-examination by defenders is rare and judges do not tolerate it. That may not make the prospect of reporting a rape to the police and following it through to trial much less daunting, but perpetuating myths may contribute to the ‘attrition rate’. We can surely improve the support given to victims of sexual abuse, but changing the rules is not the way forward.

 

A Hero of our Times?

It’s not every day that one’s client is a legendary figure – as mine was, in the shape of Vladimir Bukovsky. It turned out that he was far too ill to be tried on the charges that he faced, of having indecent images of children, which he denied. At 75, his body was giving out, and the Judge at Cambridge Crown Court found his cluster of illnesses meant he could not effectively participate in the trial, even via a videolink from his home. The prosecution was stayed and remains in suspense until, perhaps, he is well enough again. This was a man who took on the Soviet state as a boy – he was expelled from school and then from university in 1961 for ‘lacking the character of a Soviet citizen’, and he spent the next 12 years in and out of prisons, labour camps and psychiatric wards – for the offence of ‘hooliganism’ – or as we would say, for telling the truth about the state’s systematic abuse of human rights. In 1971 he smuggled documents out of Russia that showed how political prisoners were treated as insane – and was promptly locked up again.  Recognised by now across the world as a prisoner of conscience, in 1973 he won his freedom, albeit in exile, by being exchanged like Cold War chess pieces for the leader of the Chilean Communist Party, Luis Corvalan, whom the Pinochet regime had imprisoned after the military coup. Bukovsky settled in the UK, and became a figurehead for the pro-democracy Russian diaspora all over the world. The Yeltsin government eventually restored his citizenship that the Soviets had removed, but Putin stripped him of it again when he had the temerity to stand against him in the 2008 presidential election. A man of extraordinary courage, but what a dismal last chapter to a heroic life.

John Plumstead

Yesterday I attended the memorial service at the Temple Church for His Honour Judge Plumstead, who died aged 64 in September. The church was packed: family, friends, colleagues from Bench and Bar, and members of the Court staff at St Albans, where he sat. The service was both grand and intimate, with personal reminiscences, a poem read by his daughter, hymns for the congregation and pieces for the superb Temple choir, and the stirring words of comfort that the Church is so good at providing on occasions like this. John Plumstead was a rarity among judges – many are respected, some are liked, but almost none are loved. He was.

Are Juries Unfit to Try Rape Cases?

Julie Bindel (Guardian 12 August 2016) thinks it’s wrong for juries to try rape cases because they lack expertise and don’t find enough defendants guilty. If lack of specialist expertise barred randomly selected members of the public from being jurors, there would not be many jury trials left. Citizens, in committees of 12, are remarkably good at dealing with complex cases of all kinds, and at doing justice. Judges generally agree. Trial by one’s peers is not something to toss away lightly on the basis of stereotypes and misconceptions. Working out who is telling the truth is not a matter for experts in any type of criminal case. Our fellow citizens are good at it, whichever segment of society they come from. Yes, they can sometimes produce results that the powerful dislike: stand up Clive Ponting. It’s sad that a brave campaigner for the powerless like Julie Bindel comes out with the same sort of thing. Juries have far more legitimacy in trying serious crime than a case-hardened panel of ‘experts’ ever would.

In rape cases juries are not less likely to convict: according to Professor Cheryl Thomas’s 201o study ‘Are Juries Fair?’ (answer: yes), in the 2-year period she studied juries, they convicted more readily in rape trials than in comparable cases of serious violence, at 55%. In the larger Court centres across England and Wales, the overall conviction rate ranged from 69% to 53%. The reasons for the differential were unclear but may be due to uneven distribution of different kinds of cases between the Courts. So rape convictions are not out of line with the general pattern.

Very few rapes are stranger rapes; in many cases, the accused and the accuser know one another and are the only significant witnesses. Where the issue is consent, the fact that ‘penetration’ has occurred is admitted and needs no scientific proof. The jury invariably decide the case by weighing one person’s word against another. That is seldom an easy task, in Court or outside, when judging an accusation of rape or anything else. The law demands –rightly – that no one may be convicted of an offence unless the jury are sure of guilt. They may think the evidence proves the accused is probably or possibly guilty – there may be strong suspicions – but still not enough to get over the line into being sure. That high standard protects the innocent from false or mistaken accusations – a protection of great value for which we should all be thankful.

Juries in rapes now receive explicit legal directions from the judge that are designed to dispel myths about complaints of rape. There are statutory restrictions on evidence about an accuser’s ‘sexual history’, which are rigorously applied. Juries hear about it only if it would cause serious unfairness to the defence if it was withheld. Judges have to strike a balance.

Prosecutors and Judges have specialist training before they can take on rape and serious sexual offence cases. Prosecutors are required to inform witnesses of the type of questioning they may face from the defence. In cases involving vulnerable witnesses, the Judge now receives the questions to be asked in cross-examination in advance, and may disallow inappropriate ones.

We could do more. A compulsory programme of vulnerable witness training for all advocates is coming. We could make the Court experience better for witnesses– by for example restoring the canteens that went in a recent mean-spirited round of cuts, so people at least can get a cup of tea while waiting. The MOJ could see to it that trials come on quicker.

What Julie Bindel proposes is to strip away a vital civil liberty because she thinks too many guilty men walk free. Perhaps some do: it may be a high price for our freedom, but it’s still worth paying.

An Open Letter to Jeremy Corbyn

Dear Mr Corbyn

I write to you as my constituency MP, to urge you to use your vote in the House of Commons to block the invocation of Article 50 of the Lisbon Treaty, and so prevent the disaster that Brexit will surely bring upon this country. You are widely respected for your work in North Islington, one of the most deprived constituencies in the UK, where you have stood up for the poor and dispossessed whose interests you have at heart. The most vulnerable will go the wall first.

The referendum result should not be seen as an unambiguous statement of the electorate’s settled will to leave the EU: it is too narrow for that interpretation; and the Leave campaign was a farrago of half-truths and downright lies, which will have deceived a fair number of voters about what Brexit would mean. If anything, the so-called ‘Project Fear’ by Remain underestimated the damage. The poorest will suffer the most. We can already see that the collapse of the currency and the stock market is sending the economy into a state of shock, perhaps recession. Investments are being suspended or stopped. Pension funds are worth less. Employers will make redundancies, and cut wages. There won’t be enough tax revenue for benefits or basic services.

Democracy is not served when the dice are loaded, as they were here, by a feral press, and by self-serving mendacious leaders. Accepting the result just because it’s a vote is not good enough in these circumstances, when so much is at stake. Your vote against Brexit in Parliament, and your ability to explain your vote, could save the country from the disaster it faces. It will save the very people who are closest to your heart, and their children and grandchildren, from years of intense uncertainty (at best) – and maybe it will even save Parliamentary democracy itself. Ask yourself this: if the Tories had offered a referendum on the death penalty, and 51.9% of the electorate voted for it, would you just accept it?

It’s not too late, even now. Please don’t let them have their way. Vote Brexit down.

 

Yours sincerely

 

Francis FitzGibbon

 

 

An Open Letter to Michael Gove & Boris Johnson

Dear Mr Gove and Mr Johnson

I won’t question your motives: I accept you thought that Brexit was genuinely in the United Kingdom’s best interests, long and short-term.

Please look around you today: the markets here and across the world have fallen, because of Brexit, wiping billions off the value of pensions and businesses. Our international credit rating has slipped. The City is preparing for an exodus – of people and their tax revenues. The Bank of England is preparing to put £250 billion into the economy – some one will have to pay that back, one day. We have lost a Prime Minister. We have lost our EU Commissioner. The peace in Northern Ireland is at risk. Scotland may secede. The young see their horizons and opportunities closing. We are losing friends around the world.

These losses, and others we don’t yet know about, may continue, indefinitely. You cannot have wanted any of this.

The result was close – 51.9% is hardly overwhelming, not in a vote about the nation’s future, for generations to come.

Think again. It’s not too late. The protest voters have made their protest, and many are regretting it. The minority of out-and-out racists must not be allowed to dictate to the nation. We know now that you will not have £350 million per week to spend on the NHS, or anything else; we know that immigration will continue. While the exit process and the redrafting of myriad laws is underway, ordinary government will be hobbled, for years to come. The control you take back will be control of a poorer, unhappier, smaller, lonelier country.

None of this is in the national interest. Show wisdom and courage. Admit the mistake, measure the EU’s faults against the greater dangers that are already beginning to hurt us. It’s not too late. Re-engage with the EU and the member states. ‘One more such victory, and we are undone.’

Yours sincerely

 

Francis FitzGibbon

Do You Believe Me?

The Metropolitan Police Commissioner has announced that officers investigating alleged sex offences will no longer be expected to presume that the complaints are true. That does not mean they should presume they are untrue – rather, that the officers should remain open-minded while ensuring that complainants get the police’s full support in order to give their accounts without undue stress.

‘Do you believe me?’ is the perfectly reasonable question that clients ask advocates, and which advocates dread. Answer ‘no’, and trust is gone for ever; answer ‘yes’, and you have become partisan and may find yourself seriously embarrassed later. The proper response has to be along the lines of ‘I mean no disrespect, but whether I believe you or not has nothing to do with my ability to represent you and put your case before the court as strongly as possible’. A respectful distance is essential.

What should happen – and it takes a while to learn how to do it – is suspension of one’s everyday inclination either to believe or disbelieve what some one says. The advocate should neither believe nor disbelieve; instead, you assess the account, put it in context with other evidence in the case, and look for its strengths and weaknesses. You may give your opinion on whether the tribunal will accept it, on the applicable standard of proof. Your own view of whether the account is true or not is unlikely to be a reliable guide to how others will receive it. If you form a view either way, you must put it aside. Advocates should never forget the wise words of Megarry J in John v Rees [1970] 1 Ch 345

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not: of unanswerable charges which, in the event, were completely answered; with inexplicable conduct which was fully explained…