Yes I know it’s been awhile since I’ve done one of these, a long while, and looking back at the last post way back in 2017, it was about tiredness
At the risk of going over old ground, it’s still a serious issue, probably more now than it was then
Why?
Well I guess it’s pretty obvious - less criminal lawyers in the system now, as the older (and wiser) ones get out whether by retirement or otherwise, and the young are increasingly wise enough not to come into criminal law.
Add in cuts to fees over the last few years, and you have an ageing population of the CJS, having to work more hours but being paid less.
It is quite simply unsustainable, and it’s not now a question of if the system fails, just when that happens.
And it’s not just the lawyers suffering in this way, look at the state and decay of the court estate. It’s probably a race as to which collapses first, the people or the buildings

Friday musings on tiredness and the CJS

I am lucky enough to get to travel around and go to different courts (criminal ones) and meet lots of different people.

Previously the commonality amongst the lawyers was their desire to fight their cases to the best of their ability, and whilst that is still there, I have noticed a new commonality, tiredness. In fact its more than that, it exhaustion, and it struck me as symptomatic of the problems in the CJS – its just exhausted.

Exhaustion of the lawyers has two meanings – the current ones are exhausted, and when they are gone, so too will the supply of lawyers be exhausted. The time to act is therefore now.

What worries me – other than for the health of my fellow lawyers – is what this bodes for the future, and none of it is good.

A profession that is increasingly worn out is not going to encourage new members – I don’t know of any Duty Solicitors in Lincolnshire for example who are under 30. Why would anyone want to join the criminal bar for rates of pay that don’t even cover travel costs sometimes, and which are going to eat into your weekends, family time and simply wear you out?

It means that those of us already here continue, and that number is itself decreasing, as people leave the profession for a myriad of reasons, but many I suspect, for a better quality of life.

Many would say that all lawyers just want to make loads of money, and why should I complain if there are less lawyers as those that are left will make more? It is of course not that simple, as there are only so many hours in the day and only so much work you can do in that time. And anyway, if that was the case, then people would be coming into the professions to work in CJS if there was money to be made, the fact that they are not tells you everything.

We therefore face a looming crisis, not today, not tomorrow, not even next year, but perhaps in 5 – 10 years time there is a real risk that there will simply not be the people not just to defend, but to prosecute. The effects of that will be far-reaching – the pool of people to be Judges will decrease, the delay in cases being dealt with due to a lack of people to act in them will increase, witnesses will move on with their lives and cases may be dropped as a result, and all in all, the criminal justice system will be in a genuine state of crisis.

Governments tend to look at issues of today and tomorrow, and perhaps care less for problems that will arise when they are not likely to be in power. But the looming crisis in the CJS is one that cannot be simply ignored as it consequences will have national effects.

What is needed is therefore a pause. A break in the constant round of changes or “innovations”, a ending of the cuts not just to fees, but to the MOJ budget as a whole (so that the court estate can be allowed to be repaired and recover) and a pause so that all those who are involved in the CJS can look and see what can be done to solve the problems that all of see every day.

A break of say two years, so that all parties can catch their breath, consider together not just what the problems are, but the solutions too, and maybe, just maybe, that looming crisis can be averted.

I have been thinking about writing a blog for a while, and by a circuitous route I found this account, linked to my firm, and set up by my late colleague, John Storer.
Before I take over then - and write things that would make John roll his eyes at me (it was a talent I had!), I think a few words about my late colleague are very much in order.
Some of you who follow me knew John, and so when I say he was unique, you will smile, when I say he was everyone's best friend, you'll smile even more
He was my friend
But he was even more than that, he was one of the most committed criminal lawyers and supporter of legal aid that there could ever be. He was passionate about what we did and quietly proud of what we at CDA achieved.
Taking up his blog is therefore both a privilege and a great responsibility, and John, I hope in the coming weeks and months, that I'll do you proud, just as all of us who knew you were proud to call you, our friend

Transforming Legal Aid ... a dash of sarcasm

Question 18 of the consultation on “Transforming Legal Aid” asks:

Which of the following police station case allocation methods should feature in the competition model?

 

·         1(a) – cases allocated on a case by case basis

·         1(b) – cases allocated based on the client’s day of month of birth

·         1(c) – cases allocated based on the client’s surname initial

·         2 – cases allocated to the provider on duty

·         Other

Give the reasons for your choice

 

This has been a question that I was really looking forward to answering, for no other reason that I can be a bit of a geek when it comes to statistics.  I have replied as follows:

"It makes one despair to realise that the level of thought that has gone into the above question is almost certainly indicative of the level of thought that has gone into the consultation as a whole. The sheer impracticality of the suggestions beggars belief

Let me show you how foolish these proposals are...

1(a) - allocation on a case by case basis:  This will result in numerous instances of one client having several providers representing him.  It is not unusual for suspects to be arrested for a number of offences over a number of occasions, as evidence comes to light. Repeat offenders, particularly for minor offences, are commonplace.  Even in areas with only four providers, the risks of two providers representing the same client on similar charges are high. The more providers per area, the greater the problems will be

1(b) - cases allocated by day of month of birth. I am simply astonished at this proposal, clearly drawn up by someone with little knowledge of basic mathematics, let alone statistics.

Four months have 30 days in them - thus equal amounts of work for clients born in such months can only be given to areas with 5, 6, 10, or 15 providers

Seven months have 31 days - 31 is a prime number. That means it can only be divided equally by itself or 1. Thus work can only be equally divided amongst 31 providers. There are no areas with 31 providers

February has 28 days. 28 can only be fairly divided between 4, 7 and 14

You will note, I am sure, that there are actually no areas where work can be allocated equally based upon the date of birth of the client and thus this suggestion cannot work.

1(c) - cases allocated on client's surname initial. Again, anyone with a basic grasp of statistics will tell you this is also unworkable in giving an equal share of the work to all providers

There are 26 letters of the alphabet. 26 is divisible only by 2 and 13.  There are no areas with 2 or 13 providers

Further, the authors seem not to realise that

a) there is no equal spread of surname initial letters – many are more common than others

b) some surnames are considerably more common than others, and

c) there is a geographical spread of surnames around the country, with some far more prevalent in one area than others.

For example, over 25% of the 25 most common surnames in the UK start with the letter W.  Accordingly, a provider assigned the letter W will receive an exponentially higher number of cases than other providers.

10 letters of the alphabet - almost 40% - do not feature in the 25 most common surnames in the UK.  For example, you have to go down the list to 46 to find the first A in Adams

The person with the letter S is fortunate because you are 5 times more likely to get a Smith arrested than you are a Lee, yet Lee is the 25th most common surname in the UK!

The most common name across most of England is Smith, or a derivative of it, such as Smyth.  However, the most common name in Greater London is Patel. The most common name in Wales is Jones. 

An aside, albeit quite an important one – the surname Smith is not the most common name in the North East or Cumbria. The surname Wilson takes those honours.

2 - Allocated to the provider on duty. This brings me back full circle to the point I made at 1(a).  It will become very common to have more than one provider representing the same client

Can I suggest a fair way of allocating cases? Of course I can ... it is called client choice"

“Please Be Quiet” … The MOJ / ALS / Interpreters Saga!

This is the unabridged version of John Storer's article that appeared here on The Justice Gap.

I live and work in Boston, Lincolnshire … a fairly small market town, some 125 miles due north of London.  A town that has seen dramatic changes in the last ten years.  In 2001, the population was around 35,000. It is now around the 45,000 mark. The massive increase in population is almost exclusively down to the influx of migrant workers that have come here from other EU countries to work on the land or in the many food factories that provide most of the work in this part of the world.

Initially, the influx came from Portugal but once Poland, Lithuania and Latvia joined the EU, the whole nature of the town started to change. Shops and other businesses started up, and soon our eastern European friends were a major contribution to the financial well-being of the town and surrounding areas.

Of course, as in any society, some of our new residents were not as well-behaved as others! Pretty soon, we started to see some unpronounceable names on the court lists and interpreters became an important part of my daily life as a criminal defence lawyer. Today, some 20%-25% of our client base is non-English speaking and pretty much every court sitting has at least three interpreters present.

Over the years, we have got to know and, much more importantly, trust the interpreters we come across every day.  They play a vital role in the proper administration of justice – not just for the defence but for the police and prosecution also.  Many victims of crime, and many witnesses to crime, do not have a sufficient grasp of English to make a complaint of a crime, or give a full account of what they have seen.

Interpreters are involved at the outset – from taking complaints and witness statements, through to acting as translators during interviews with suspects, and then to assisting the court in making sure the defendant or witness understands and is understood.  They assist both prosecution and defence in statement taking and statement translation. It would be no exaggeration to say that, without them, the entire criminal justice system in our area would be in deep trouble.

So it was with some misgivings that I read a press release (ignored by most at the time) of the intention of the Ministry of Justice to contract out interpreting and translation requirements across the criminal justice network.  I started to pick up gossip from the interpreters I know that they were concerned also.

My concerns increased when it was announced that the contract had been awarded and that pretty much every interpreter I knew was refusing to sign up.  The warning signs were there at the outset; the contract was originally due to start in October last year but for some unannounced reason was postponed to 2012.

We had experienced problems before – Lincolnshire Police had entered into a contract several years ago with a company called CINTRA to provide interpreters at police stations.  There were “teething problems” at first; many of the initial interpreters sent were simply not up to the job.  This caused extra public expense, because defence solicitors had to employ their own interpreters to accompany them to the police station and the cost was borne directly by the Legal Services Commission because all police station advice is funded by them. 

However, over time the “wheat” was sorted from the “chaff” – the poor ones dropped out and we were seeing interpreters of quality and, more importantly perhaps, a working knowledge of the criminal justice system.  We started to have enough trust in them that the need for our own translators diminished to the point that we trusted the CINTRA interpreters entirely and began using them for defence work as well.

The figures are quite astonishing – in 2011, the police made 2,200 requests for interpreters, the overwhelming majority of them being for Russian, Polish and Lithuanian speakers. Perhaps I should mention here that many Latvians, although the country has its own language, have Russian as their first language

It was on 1^st February that the Ministry of Justice announced that the contract had been given to a company called Applied Language Solutions (ALS), a company formed in 2003 with (it has to be said) considerable experience worldwide of supplying such services. A quick look at their website showed that, pretty much straight after the award of the contract, the company had been bought by Capita Group PLC – the UK’s largest provider of “business process outsourcing”!

So, on the face of it, the contract was in good hands. However, it soon became clear that many of the interpreters we knew and trusted had not signed up to work for ALS. This was because the “contract for services” meant that many of them would be simply unable to work for the money being offered for their services. Previously, they had been paid for a minimum of 3 hours’ work with travelling and expenses. Not overly generous when one considers that would probably be their only job of the day with no guarantee of work the following day or days.  The new contract is for an hour minimum with usually no travelling.

Anthony Walker, a spokesman for ALS is quoted as saying “The rates are fixed and non-negotiable for everyone. This rate of pay is £22 an hour for a Tier 1 linguist and £20 per hour for a Tier 2 linguist.

“These two categories being the ones that will be required to deliver the great bulk of all the work done by linguists in criminal justice settings. A very small portion of criminal justice work will fall in to the Tier 3 category at £16.”

There are few of us who can afford to work full-time with the possibility of only earning £22 in a day, let alone £16!

The contract, worth £300M over five years, is supposed to save the nation £18M a year. Quite how this adds up, when the MoJ have previously said they already spend £60M a year on interpreters / translators, is beyond me.  What is clear, however, is that Capita obviously thought this was a company well worth snapping up and clearly saw huge profits.

Anyway, there I was at Boston Magistrates Court on the second or third day of the new system. I was court duty solicitor, and was told there was a young Rumanian lad in custody. He’d been charged with (and admitted when interviewed by the police) a very large shop theft. He’d never been in court before.  I was told an interpreter had been booked for 9.30am.

By 11.00am, and no interpreter had arrived, I started to make enquiries. The police confirmed they had booked one, but then rang me back to tell me they had been told by ALS that “no one had picked up the job”.  I could not even explain to my client (who had not had the benefit of legal advice whilst at the police station – his own choosing, I hasten to add) why there was a delay.

Several phone calls later, I was told an interpreter would be with me for 1.00pm. She arrived at 1.35pm, having driven many miles from another county.  I was pleased to see she was nationally-registered.

Let me explain, or let me let the National Register of Public Service Interpreters explain;

“The National Register of Public Service Interpreters (NRPSI) maintains a register of professional, qualified and accountable public service interpreters. Using the National Register to find an interpreter ensures that you not only employ a qualified practitioner but that the interpreter can be held accountable should their conduct or competence fall below the high standards expected of a Registered Public Service Interpreter”

So I was sure she would know what she was doing. And she did.  We dealt with the case very swiftly after her arrival.  She then began to tell me some real horror stories about the quality of some of her “colleagues” who had joined ALS and who held no qualifications at all.  For instance, she told me that she had heard a custody sergeant refuse a detainee bail because he was “a flight risk”. Anyone in the criminal justice system would know that this meant he might abscond and fail to surrender to his bail at court. However, this was translated by the “interpreter” into “You must stay here to stop you catching a plane”

Still, I was hopeful. Here was an interpreter who knew her stuff. Perhaps there would be others like her?  I have not yet found out; she is the only interpreter who has turned up for any of my cases.  So far, I am personally aware of sixteen cases where the interpreter has simply failed to attend.  Many of these have been for defendants in custody; one was charged with murder!

ALS have confirmed that “some” cases have been cancelled because the firm was unable to provide interpreters.

"Unfortunately that has been true in some cases which is something that we are working extremely hard to resolve," an ALS spokesperson said. Actually, Mr or Ms “ALS spokesperson”, this has been true in the majority of cases in our area and it is clear that the same thing has happened in courts up and down the country.

Another (or possibly the same) spokesperson acknowledged that there have been circumstances where it had not been possible to fulfill a booking at short notice.

She added: ‘Prior to rollout there was limited accurate management information available regarding the expected daily volumes of short notice interpreter requests.

Hello!  You’ve just entered into a 5 year, £300M contract!  Are you seriously saying you did not actually know what was expected of you to fulfill that contract?

Social media networks, such as Twitter, soon started to highlight the problems courts were facing. This was picked up by more traditional media outlets and articles have appeared in The Guardian, The Lawyer, The Law Society Gazette, and the BBC website. Basically, (and interpreters must be given credit for running a publicity campaign that puts us lawyers to shame), a fuss was made. The fuss got attention

So much so, in fact, that Her Majesty’s Courts & Tribunal Service (HMCTS) issued a press release last week.

"With immediate effect HMCTS will revert to the previous arrangements for all bookings due within 24 hours at the magistrates' courts … we will revert to previous arrangements for urgent bookings required for bail applications, deports and fast track applications in the first tier tribunal immigration and asylum and urgent bookings in the asylum support tribunal."

"We understand that some staff and judiciary have sympathy with existing interpreters. We must however do all we can to encourage sign-up to the new arrangements – the new contract has the potential to bring significant benefits to both interpreters and the justice system as a whole."

Not surprisingly, the vast majority of NRPSI-registered interpreters see no reason to help the MoJ out of a mess wholly of its own making and are not cooperating with this relaxation of the contract. 

Things will only improve when ALS increase the rates of pay it is offering, thus tempting qualified, highly-skilled, interpreters to sign up with them. However, their new masters at Capita are unlikely to be happy with the profits from the contract being reduced – probably substantially reduced.

In the meantime, public money and court time is being wasted by delayed or aborted hearings.  One suspects there is “limited accurate management information available” to determine the actual cost but it is increasing by the day.

I cannot end this article without commenting on my concerns about the quality of those interpreters so far signed up with ALS.  I have received anecdotal evidence (which I have no reason to doubt) of a lack of experience, knowledge of procedure, and even the language they are supposed to be translating.

The figures do tend to suggest that there will be a diminution of quality.  ALS claims that they have signed 3,000 interpreters to run this contract. There are not 3,000 nationally-registered interpreters (the NRPSI website says there are “over 2,000”).  Of those members, at least 50% - and probably more than 60% - have refused to enrol with ALS.  I would be greatly surprised if even 30% of the 3,000 interpreters have the necessary qualifications and experience to work in the criminal justice system

I headed this article “Please be quiet”.  Some explanation is required.  Probably the most important thing that is said to a detainee when in custody at a police station is the caution.  It’s complicated for most lay persons in English, so its careful and accurate translation is crucial to the course of justice. Every day, what is said after that caution is administered impacts on just about every trial in every criminal court.

The caution starts “You do not have to say anything …” reminding the interviewee of his or her right to remain silent and not answer questions. A basic right at the heart of criminal justice – the right not to self-incriminate. The caution then goes on to say “… but it may harm your defence if you do not mention, when questioned, something you later rely on in court”.  This reminds the detainee that remaining silent may impact upon his trial and that the court can draw a conclusion that his remaining silent was because he had no defence to offer, or that a subsequent explanation at trial may not be believed.

It is therefore extremely worrying that an interpreter of my acquaintance, one of the most experienced (and trusted) in the area, recounts an interview where “You do not have to say anything” was translated by the interpreter as “Please be quiet”

I imagine that the knock-on effects of this contract will be occupying the Court of Appeal in the months to come!

Can I end by thanking Yelena McCAFFERTY at Talk Russian for assistance with some statistics

Footnote: Since John wrote this - a week ago, now - nothing has changed. Today, up and down the country, courts will be without interpreters, the administration of criminal justice grinds ever slower, and more and more public money is being wasted. The interpreters (the proper ones, that is) remain solid. An impasse has been reached. Someone will have to back down, and I doubt very much that it will be the interpreters!

MoJ interpreting hub a ‘false economy’

Our most recent blog post on the MOJ contract with ALS appears to have attracted a lot of attention not only amongst readers of the blog but also in the media. We understand that BBC News will be running an article soon and the following article has appeared in this week's Law Society Gazette

MoJ interpreting hub a ‘false economy’

MOJ Framework Contract with ALS - There may be trouble ahead ...

I make no secret of our firms' very real concerns about the MOJ contract with Applied Language Solutions and are thus pleased to give this letter, from the Professional Interpreters' Alliance some wider publicity

Already, we have experienced a problem with a client - a man making his first ever appearance in a court -  being kept for several hours in a court cell with no way of explaining the delay to him. The police had booked an interpreter for 9.30am. ALS forgot to send someone. An interpreter eventually arrived at 1.35pm

I would urge everyone to make sure that any problems are reported to the MOJ at the email address or telephone number contained in the letter

Dear Sir or Madam,

Ministry of Justice Framework Contract with AppliedLanguage Solutions

We are writing to you on behalf of the Professional Interpreters’ Alliance, concerning the Ministry ofJustice’s decision to move to a commercial Framework Agreement for the deliveryof language services in the Criminal Justice System.

The Framework Agreement with Applied Language Solutions Ltd (ALS, now part of Capita PLC) has become operational and extends across HMCTS, CPS, NOMS and a small number of police forces. Consequently, we would like to make you aware of some surrounding issues.

The Ministry of Justice’s Framework Agreement with ALS represents turning back the clock on decades of policy development. The National Agreement on Arrangements for the use of Interpreters, Translators and Language Service Professionals in Investigations and Proceedings within the Criminal Justice System, as revised 2007, is now defunct.

It was introduced to address concerns raised by Lord Runciman about the difficulty of obtaining goodq uality interpreters in his Report of the Royal Commission on Criminal Justice in July 1993, and in Lord Justice Auld’s Review of Criminal Justice in 2001.

In 2006 a Home Office Circular (17/2006) reinforced the importance of the National Agreement and the quality ofinterpreting services, and subsequent amendments were made to strengthen the National Agreement, ensuring only registered and qualified interpreters could practise in the Criminal Justice System.

Under the previous arrangements, spoken-language interpreters were primarily drawn from the National Register of Public Service Interpreters (NRPSI). These interpreters are formally qualified, experienced and CRB-checked as a minimum (many also have higher levels of vetting such at Counter Terrorist Check and Security Check),and are registered professionals who are accountable through a professional code of conduct and an independent complaints and disciplinary procedure.

Registered Public Service Interpreters (RPSIs) and their membership organisations opposed the Applied Language Solutions contract from the outset. The refusal by the majority of RPSIs to provide their services through ALS received media coverage and has caused certain parliamentary questions to be asked.

To quantify this opposition,NRPSI registered interpreters started a list of those refusing to work forjustice organisations through Applied Language Solutions Ltd. So far, 60% haveregistered and in some areas, 3 out of every 4. A summary of the current listentries showing national refusal rates by language and by area can be seen here

The Professional Interpreters’ Alliance is concerned that many legal professionals working in HM Courts and Tribunals Service seem to be unaware of the type of person now delivering these services on behalf of Applied Language Solutions Ltd whenR PSIs are no longer being engaged.

We are extremely fearful of the consequences of this national contract for Equal Access to Justice for non-English speakers. A defendant, complainant or witness is now sometimes being provided with the assistance of a person with scant knowledge of one or both languages, no formal interpreting qualifications, no prior court or police interpreting experience and potentially no personal vetting.

You can appreciate the inherent dangers to the delivery of justice that arises out of inadequate interpreting. The cost to the judiciary of adjournments, mis-trials, appeals and failed prosecutions as a result of inadequate interpreters is already rising by the day.

Justice cannot be done without experienced, professionally qualified and vetted registered interpreters.

We trust this information will be of assistance to your understanding of the present situation and urge you to be observant, vigilant and critical with regard to the quality of interpreting you receive and witness. PIA understands that all complaints arising from the new arrangements for booking interpreters and commissioning translations through Applied Language Solutions are to be referred to Louisa Carrad at the Ministry of Justice: louisa.carrad@cjs.gsi.gov.uk; telephone 07775816972.

Independent freelance interpreters with extensive professional experience in CJS can be engaged directly via the National Register of Public Service Interpreters

The Professional Interpreters’ Alliance welcomes every opportunity for dialogue with interpreting service users so please don’t hesitate to contact us should you wish to receive more information about the matters raised in this letter.

Yours faithfully

 Madeleine Lee, Director
John Podvoiskis, Director

Professional Interpreters'Alliance