Enter By The Front Door: Door To Be Kept Open At All Times
In 1961, the then Lord Chief Justice, Lord Parker of Waddington, passed a sentence of 42 years' imprisonment on George Blake. Blake had been convicted on five counts of espionage. In a sense it was a single offence of spying, but it took place on discrete occasions over an extensive period, and each occasion formed the basis for a separate charge. The statutory maximum sentence was 14 years' in jail, so the Judge passed a sentence of 14 years for each offence, then, by making some concurrent and some consecutive, he came up with the eye-watering figure of 42 years.
Unsurprisingly, the sentence drew "gasps from the public gallery". It would have drawn something more than gasps, certainly from the lawyers, if it had been known that, prior to passing sentence, the Lord Chief had consulted with the Prime Minister, Harold Macmillan, about what the sentence should be. Macmillan's Government was embroiled in public criticism over spies in the security services, and it's fair to say the sentence had more than an element of "pour encourager les autres" about it.
Fast forward 60 odd years, and it's inconceivable that a Judge would behave in this way. New members of the criminal judiciary are warned, almost on pain of death, of the risks of seeing Counsel in their private rooms, and if they do so all parties to the case must be represented. A member of Court staff must be present to take a note. Our system of justice must be unbiased and open, and justice behind closed doors is not.
My point is to highlight how much the relationship between Government and the legal profession has changed since those long-ago days. In fact, one might almost say that now there's a state of undeclared war between the two. One sees ongoing attempts to restrict the right of judicial review, the key procedure whereby the Court can review the exercise by Government of the powers which it gives itself via Parliament. Then there's been the steady reduction, almost to the point of extinction, of publicly funded civil litigation and massive reductions in the legal aid budget for criminal work. Although the messianic zeal of Chris Grayling, the previous Justice Secretary, to reduce cost has been somewhat tempered by his successor, Michael Gove, no-one involved in the public side of justice can be in doubt that there are further cuts to come.
Many people lay the blame for this breakdown of trust at the lawyers' door, and point to the compensation industry which they say the incorporation of Human Rights law into the English legal system has spawned.
Such people will be heartened by the Government's decision to find ways of curbing legal attacks on service personnel for actions committed in the field, notably Afghanistan and Iraq, where alleged victims of military wrongdoing claim infringement of their human rights and sue accordingly. Various routes are under consideration, including making conditional fee agreements for such cases illegal and imposing statutory time limits on such claims, making them all effectively time-barred. One of the law firms which undertakes this type of work has been referred to the Solicitors' Disciplinary Tribunal, following the collapse of claims made by a number of Iraqis to the Al Sweady Inquiry following disclosure of a document showing that some of the Iraqis were members of the rebel Mahdi Army militia, rather than civilians.
I have a real concern that all this goes against the spirit of the Jackson Reforms, with their underlying objective of access to justice. I'm not troubled by the fact that the liquidators' carve out from the non-recoverability from Defendants of CFA uplifts and ATE premiums which the Reforms introduced, is coming to an end on 31 March. But I am concerned that it's a short step from making CFAs illegal in an area where such a move may well be justified to thinking about making them illegal in other areas where they are doing what they are meant to – facilitating access to justice.
In the final analysis, the system depends on the integrity of those that use it. As a third party funder, the last thing I want is a perpetuation of the idea that funders don't really believe in access to justice, but are simply interested in profiting from litigation.
There's a well-resourced defendant Bar out there which would I'm sure be delighted to see CFAs and third party funding curtailed. There may be a Government cadre which would like to see the same thing. Let's make sure that legitimate concerns about possibly unmeritorious claims against ex-servicemen are not converted into specious concerns about the CFA and third party funding regimes which are, as far as I'm aware, working well. To quote the US politician Bert Lance, "if it ain't broke, don't fix it".
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