Open and shrewd

Read our Chief Ombudsman, Adam Sampson's blog.

What might have been

13 January 2011

A day of meetings in London, book ended by two biggies: the Justice Minister Jonathan Djanogly and then a meeting with the Lord Chief Justice, Igor Judge.

Two key stakeholders, but very different agendas. With the Minister, the purpose was to update him on the experience of the last three months following his visit for our opening in October 2010: close to 20,000 contacts, some 2,000 investigations begun, etc. Our draft business plan for the coming financial year was also an obvious topic for discussion, as was our preparations for taking over responsibility for winding down the function of the Legal Services Ombudsman (one of the predecessor bodies of LeO) after Zahida Manzoor leaves on 2 March this year. Having a direct responsibility to the MoJ for our budget and, via the LSB, for our performance, there is a clear need to ensure that Ministers are kept up to date about how we are doing.

The meeting with Igor Judge was different. Clearly, as a new actor on the legal stage, it is important at least to have spent some time with the Lord Chief Justice. However, the issues we are dealing with are relatively minor; those responsible for the strategic direction of the judicial system will not have as their top priority the sort of small service failures that form the vast majority of our workload.

But if most of our work would never raise issues for the Lord Chief Justice, some cases might. When we met, I told Igor Judge of one which I had discussed with an investigator two days before. A man had complained to us about having been convicted of domestic burglary. He did not dispute having been in the property nor having left with a mobile phone. His case was that, contrary to what had been claimed in court, it had been his home and he had simply borrowed his partner's phone after a row. After the intervention of our investigator, the lawyer conceded that he had not followed up two potential witnesses and the barrister that he should have had the case adjourned so this could be done. The case was set up for an agreed resolution.

But what should the remedy be? As I have written before, the key purpose of all our remedies is to put the complainant back in the position they should have been, had the service failure not occurred. But where that failure raises questions about the outcome of a court case, turning the clock back by reopening the hearing is beyond our power to achieve. In the case of our convicted burglar, the key decision lies in the hands of the Court of Appeal.

And that is where the Lord Chief Justice comes in. Not that he will ever have anything to do with an individual case, that is. And, in this instance, there is still a way to go yet before the case ever gets as far as an appeal: the barrister and solicitor having agreed to work on the preparation of a possible appeal pro bono but, just to be on the safe side, we have passed it on to the Criminal Cases Review Commission as well. There is nothing to stop our complainant going straight for an appeal out of time but, given that there is no formal Ombudsman's decision (this one was informally resolved, don't forget) the endorsement of the body specialising in such cases will aid his chances immeasurably.

The key question, though, is how our findings will influence the chances of a court decision being reversed? In most cases, this is, after all, the outcome the complainant is seeking. But herein lies the difficulty. Just because the initial legal service was inadequate, that does not mean that the court decision was wrong. In the case of our burglar, the evidence of his witnesses could have been sought and heard and the jury might still have decided he was guilty. We are in the business of determining what was. We can never know what might have been.



Getting Defensive

10 January 2011

Back from leave (yes, I had a really nice break, thank you – how about you?) and straight into a speaking engagement with a local Law Society in Manchester.

The few minutes before any gig are always a bit tentative. I pretty much know what I am going to say, of course. Admittedly, I don't do written speeches and try to avoid PowerPoint whenever possible. But the illusion that I am making it up as I go along is generally just that – an illusion; like any experienced speaker, most of my ad libs come pre-prepared. Before I launch into my routine, though, I like to get the feel of the event, the venue and the audience. What are their expectations? How are they likely to react? What do they know already, what do they want to discuss, and what are the danger points?

And having done a few dozen similar events in the 18 months I have been in post, I had developed a pretty fair idea of the answers to most of those questions. But this one was different. When I asked how many of the 20 or 30 people at the meeting had had some contact with us, for the first time, there were more than a few hands raised. Up to now, all my speeches had been phrased in the future tense: what we were planning to do; what their experience is likely to be; what the pinch point may be. Now, for the first time, I was speaking to people who had real experience of what we were doing. What was going well and what was going badly. People who could tell me perhaps more than I knew about the reality of how my organisation was actually working.

Which changes the dynamic. Now, instead of me just standing there and telling, I spent much of the hour and three quarters before I had to rush off and get my train standing there and listening. And it was very valuable. Some was good: praise for the attempt at informal resolution being undertaken by an investigator in one case. Some was useful pointers for the future: a plea for us to work far more through firms' complaints handling partners rather than just talking to the individual lawyer who provided the service complained about, for example.

And, of course, some was critical: stories about inconsistency or mistakes. In spite of spending the past 18 months saying that we will be a start-up and will therefore not be perfect when we get going, it's always difficult to hear such stories without getting defensive. But defensiveness is exactly what I must avoid. If one of my key messages to the profession is that mistakes are inevitable and valuable learning opportunities (although if you ever hear me actually using the term 'learning opportunity', you are welcome to howl with justified derision), I have to heed my own words. We are a start-up. We will make mistakes. We, like the lawyers we are here to work with, need to be humble enough to recognise that and use the feedback to help us improve.