TUESDAY TRUTH – Insecurity in a secure world

PUBLISHED March 15, 2016

CJSM – Insecurity in a secure world

Among the stacked up holiday emails one caught my eye. Shattering a well-established untruth about civil servants never working beyond the 9-5 it was around 22:43 on 9 March.  The issue didn’t surprise me much. Complaints had been growing. The secure email system was regularly failing. Emails were delayed. Logging on and changing screens took forever. The LAA or Ministry were now on the case and along with thousands of others who now use the CJSM (secure email) system I read the following:
The Ministry of Justice would like to apologise to CJSM users accessing the service through the CJSM website for the current poor performance of the service, 
There has been a growth in usage of the service over the pas few months beyond what was expected and over the last couple of months demand has outstripped the capacity of the service.
I skipped the typos, and avoided the itch to Peer Review the email, but not for long.  “Beyond what was expected” is what stood out. “Why?” I thought, and “How?”   and “Really?”
It has taken a little more than five years for CJSM to embed itself into the daily life of criminal defence lawyers but the greatest uptake has taken place over the past year and has been entirely predictable, in the special way that something can be predicted because it is specifically planned for.
Countless events and articles over the years encouraged take up, but for criminal departments of every variety there was little reward for the adding of more technology. The advent of prosecution evidence being served using the CJSM system quickened take up but then came the game changer: the last contracts for all legal aid work made having CJSM a contractual requirement. A deadline was set, and that did it. Now everyone would have secure email. They had finished the job.
Which makes it truly incredible, that somehow, this information did not reach the IT department. All websites can face a spike in traffic but this one was planned for, and it isn’t as if demand could predictably outstrip supply. These aren’t Glastonbury tickets. It’s not Obama Care going live. In the criminal justice system there is a fairly limited pool of potential users of CJSM out there.
I read on.
Please be assured that we are taking steps to remedy the situation. 
 We have plans to provide:

  • a short term solution to increase capacity - this should be in place within the next 2 months

 This didn’t sound totally short-term.  CJSM in boxes contain important case papers. Short term in the CJS means days not weeks, yet here it seemed to suggest it could take longer than 2 months for the short term solution to even start. How much longer could it take?  I realised this couldn’t possibly be answered yet, because there was as yet no identified solution, only an assurance, in an email, that there was a plan to provide one.

  • a medium term plan to significantly increase capacity

This sounded more helpful. True, there is no indication of what ‘medium term’ is but at least     I now know this plan will one day significantly increase capacity.  But then what is      significant? The short term plan didn’t get called “significant” so did this mean the short     term growth was insignificant? Did anyone given any thought as to what these terms  actually mean?
And then came the knock out.

  • a longer term solution to replace the existing service with a completely new service - this is expected to be in place within 18 months.

 Had I ever read a more generalised meaningless explanation of a plan to deal with an immediate problem? Hazy timescales, no actual indication of anything that would be done and the joker played with the offer of yet another shiny new system to replace all the hard work that would go into the medium solution and the short term solution. Normal service would be restored allowing everyone to use the system within, well, hopefully 18 months.  As to how this might impact on the person reading it, their firm, their finances, their technology plan, their systems, not a peep.
In recent years my firm has been required to take many steps towards operating in the digital and virtual criminal justice system. We attend video links in police stations or court at random times that cannot be planned for; we installed a video link facility in the office only to find that prisons all over the country still fail to offer this basic and essential service instead requiring countless hours of wasted travel and delay to the system as a whole. We no longer receive case papers in most cases and print as we need to and for most clients at our own expense before later battling over the absence of much of the digital evidence from the PPE count.  We submit legal aid applications on line.
Notwithstanding the above, so important is the CJSM system in the governments and lAA’s plans that had I failed to have in place a secure email system my firm could not have tendered for the current contracts. This wasn’t some loosely targeted aspiration for better working practices; it was a fundamental requirement. To look at it another way, when we breach a contract requirement sanctions can be swiftly applied against us by the LAA. Preventing us complying with our contractual requirement will we assume attract no penalty whatsoever to our contracting partner, though perhaps the significance of the problem would be recognised by our partners.  The email concluded somewhat cryptically.
 In the meantime we would encourage you to use the POP3 version of the service which will allow you to receive your CJSM email into your normal email client e.g. Outlook, Thunderbird, MacMail, etc.  Instructions on how to do this can be obtained from the CJSM Helpdesk on 0870 0108535 or by email at cjsm.helpdesk@vodafone.com.
                 Apologies again for the poor service you have been receiving and thank you for your  understanding.
                Kind regards
                The MOJ  CJSM team
A further email that followed the next day repeated the last line. The system failure wasn’t affecting all after all - only some; those using the POP3 accounts (etc) system were unaffected and we should all switch to that.  There was nothing there to deal with the reason so many had not opted to use the POP system in the first place instead resorting to accessing secure email via the website – but there was (and is?) a good reason for this. Most of us have emails from work heading to our phones. Iphones (at least the last time I checked) have not been approved yet to receive secure email, so many on secure email have specifically not used the POP3/Outlook type set up for fear of breaching the agreements necessary to be able to sign up to the CJSM Service. Am I wrong on that? Have things moved on? I am very happy to be corrected and updated.
Perhaps part of the problem is the genuine imbalance that runs through the relationship between solicitors and the LAA/MOJ.  For over ten years I have had meetings with staff at the LAA and the MOJ; I have spent more hours of my life than it is healthy to remember wading through contract documentation and proposals for schemes that were ultimately abandoned, usually for reasons defence lawyers had long before predicted.  The two-tier fiasco was only the last in a series of attempts to introduce something similar that we have been seeing off (for good reasons) all the way back to Lord Carter.  I have watched the profession receive the latest demand from the Ministry and collectively jump, as high as our monopoly buyer demands, as high as people can manage.  Many good firms and good lawyers fell along the way.  We now also know that the hours spent as a would-be copy writers, conjuring the management speak most likely to attract the approval of the unknown marker at the LAA (LSC, LAB…) was then placed before the effectively untrained Brook Street temps. These novices were tasked with determining the fate of countless firms, impacting the daily lives and futures of clients and staff alike.
The “victory” over two-tier was therefore a great anti-climax; there were no parties or celebration. The waste of time and energy  was simply too devastating.  The damage done to firms that made decisions one way or another irreparable. The impact on the spirit of solicitors working in the system profound. The strain placed on bodies such as the LCCSA and their officers immense. .
That relationship is exemplified by the ease with which ultimately, a ministerial pen can change the course of all of these plans (despite the mantra of ‘TINA’).  The “secure-email Email” is an example from the other end. An official sending a near meaningless explanation, exhibiting literally no idea of the impact on the recipients of their email.  Absent secure email how will solicitors continue to receive papers from the CPS?  Are they now to be printed again?  Is it now OK for all to move to a POP3 or server connection system even if those emails are automatically forwarded to I-phones? And importantly, what happens when the LAA/MOJ fail in respect of their side of the bargain between us all? Owners of firms take risks with their mortgages and any failure to meet the multiple and over-lapping standards of Peer Review, LAA audit, Lexcel or the contract itself leave the firm exposed to the risk of contract suspension or cancellation.     , There has to be a sense in the MOJ/LAA at all levels, of the importance and consequence of failure but this appears to be entirely.   In the meantime criminal defence lawyers face the prospect of further admonishment in Court. All will have experienced being are lambasted in Court when the Crown has failed to serve evidence (“when did we chase it?, how many times?” “let’s make progress”) or alternatively we are rebuked for listing a case (“couldn’t this have been dealt with in correspondence?”).
What stuck out from this episode was the sheer imbalance in how those in the system experience it. The Ministry (or the LAA) hand out edicts. They set contract terms that none of us would advise a client to sign. We criminal defence lawyers accept a system with serious penalties including the loss of the contract for breaches determined by the LAA, yet when mistakes are made by the MOJ/LAA, even those which prevent that solicitor being able to comply with the contract, what happens? No admission of fault let alone redress. There is little or no reciprocity.
The present Lord Chancellor has won plaudits for undoing the worst of his bewildering inheritance and it is said that he is to break with the top down prescriptive tradition and will create a new committee of solicitors and barristers to help guide the Ministry through the difficult process of saving and then improving the now creaking daily system. They key is that he is said to be listening and is prepared to listen more.  For years defence solicitors have wanted nothing more. We have seen and sensed that the Bar at least has the ear of Government and we have strived to persuade government that if they only listen to defence solicitors they will discover a profession of committed individuals dedicated to providing a system that works for all.  Our experience for years has been that there is a lack of interest and/or trust in all that was said by those representing solicitors. There There is now a chance to correct that longstanding error. Listening and working together will be one part of putting things right. Understanding how the failures of any part of the system (MOJ, LAA, CPS etc) impact on others all impact on the ability of others in the system to do their jobs will be another key part.