Monday Message 25.01.16
Mark Fenhalls QC
Everyone is having the expected teething problems. As far as the Bar is concerned the majority of these revolve around late invitations from instructing solicitors on both sides as everyone learns their way around the system. Some unexpected hitches emerge too – including tales of Wi-Fi not working well in some places because of the levels of asbestos in the building. But at the heart of it all the technicians and managers in and out of court buildings are working incredibly hard to make sure staff are properly trained and can fix the problems that arise. When people write to us with concrete examples we have generally found that by passing them on to the right people that the problems get fixed.
And if you remain sceptical as things creak a little, please note the experience of those Leeds practitioners (where DCS has been running since July) who have told me how great it is to have the digital access to papers and how it has significantly improved their working lives.
For those of you who are troubled by access to clients in prison, I am assured that NOMS is trying hard to improve access to prisoners in London (where anecdote suggests the problem may be most acute) and across the country. We are in constant dialogue with the senior Judiciary and the responsible civil servants, so whether you are a barrister or solicitor or legal exec, if you have had a particular problem, please write to me, setting out full details and I will make sure the appropriate people deal with it.
The rumour mill continues to whirl and some will have seen the piece in the Independent on Friday. I do not know what the truth is, but the uncertainty does not help anyone and the sooner we find out the better. If the MoJ has the courage to say that the current proposals are fatally flawed (for whatever reason or combination of reasons) then such a stance should be applauded. As a society we often engage in post mortems and it is commonplace to hear that the problem being examined would never have arisen if the difficulties had been identified to the decision makers at an early stage. There is nothing wrong with accepting that something has gone wrong and needs to be looked at again. It takes courage to do that and I wish it was an attitude more prevalent in Government. For decades we have been discovering too late about procurement failures in NHS and defence spending. The fabric and structure of the CJS is too important to be the subject of political point scoring. There will of course always be many who only ever see an issue through the tint of their political spectacles. The rest of us just want things to work efficiently and to be left in peace to get on with the day job.
Scarcely a day goes by without me posing the question of the many honourable solicitors I meet “if TT goes, what do you think should replace it?” The answers of course vary, and with so many different shapes and sizes of firms and geographical variations that is no surprise.
I think we all suspect that the most successful reform tends to be incremental. Does anyone have any appetite left for “big bang” type reform? I have no new model in mind and would want whatever comes next to have the widest possible support amongst the professions. Ideally of course the rules of the litigators’ market should allow all kinds of firms to survive so long as they meet real quality standards and provide the public with the justice system it ought to have.
I imagine we would all agree that firms must have the appropriate kite mark and have up to date IT that is compatible with the common platform and LAA systems. Does anyone not think that firms doing duty work should have to certify that their solicitors / agents comply with the mandated requirements and meet their obligations to do a certain number of police station and court appearances each year? Presumably everyone also agrees that the hitherto widely tolerated practice of “ghosts” must end? In the unlikely event that there are any readers still with me, who are not legal aid practitioners, the phrase “ghost” is used to describe those qualified solicitors (and some barristers) who hold duty slots but do not regularly appear at police stations. Some, it is said, are paid a few thousand pounds for their place on the rota (which generates cases), even though they live overseas.
I am yet to find anyone who has a kind word for this scheme or who thinks it is fair to the majority of hard working solicitors. Most seem to think it distorts behaviour and undermines the objectives of Better Case Management. The Bar has sought to design a replacement for AGFS that is cost neutral for the MoJ and the Treasury but that more fairly rewards the hard work that trial advocates perform. Surely there are solicitors out there with an appetite to design a replacement for LGFS? Surely the Law Society (with its colossal resources from 160,000+ members) should see it as priority to help design something for its criminal specialists?
The powers that be are serious about trying to bring about the end of the age of paper. We are at the start of a colossal change of culture in criminal litigation and the opportunity arises for significant, but relatively simple systemic reform. Such an opportunity may not come again for a very long time.
We all know that the Magistrates Court and Youth Court are badly underpaid. We also all know how large the litigation fee may be in a (relatively) small number of Crown Court cases. The consequence, as many solicitors have so eloquently spelt out, is that these cases end up cross subsidising all the other vital but uneconomic work they do to keep the CJS turning. Isn’t this insane? Isn’t the answer obvious?
Let’s say there are 10 beans paid by way of LGFS for a paper heavy crown court trial. Would it not be better if, say, 3 beans were payable for the completion of the proof and defence statement in time for an effective PTPH and the 6 beans were spread across all magistrates’ court and youth court cases? The final bean might be payable to those litigators who attend trials and do any necessary work during them. Overall costs do not change, but the perverse incentive that leads to bigger cases becoming valuable commodities if they go to trial would disappear. So much of the anecdotal evidence about unethical behaviour surrounds these big cases. If the same money is spread amongst all the smaller (and usually equally important) cases, then these damaging distortions would disappear.
Of course I may be entirely wrong. But that illustrates why it is so important for solicitors to actually work out where they do most of their hard work, so that they design a scheme that makes sure they are properly rewarded for that work. The really hard bit of course is to try and ignore the reality of one’s own business model. But this is what the public (and its purse) deserve and what we all ought to attempt to achieve. The replacement for AGFS aspires to fit in with the principles of BCM. LGFS as presently arranged is directly contrary to the principles of BCM. Surely we can do better than this.
David Penry-Davey who died in the Autumn made a massive contribution to our profession, not least as Leader of the SE Circuit (1992), Chairman of the Bar (1996), as a High Court Judge and Presiding Judge of the Northern Circuit (2000). The Temple Church has dedicated a choral evensong in his memory this coming Wednesday 27th January at 5:30pm and it would a lovely occasion for us all to remember him.