Monday, 10 August 2015

British justice's darkest hour looms?

More cuts to Britain's legal aid budget due to come into force next January paint a bleak picture for the principle of affordable access to justice for all, which has been the envy of the world, so what can and should be done to meet the challenge effectively to prevent what Lord Justice Neuberger fears could lead to defendants "taking the law into their own hands," and is the legal profession partly to blame for its parlous prospects?

The Government's additional cut of 8.75% to the amount paid to litigators in legal aid services, as well as a cut in advocacy fees of £10 million per year will mean that over the past two years legal aid solicitors representing people accused of crimes have seen their fees cut by 17.5%. According, however, to solicitors specialising in criminal legal aid cases, in some areas fees will fall a further 25-30% next year, with rates for some categories dropping by more than half. The Government also intends to press ahead with the new duty solicitor contracts due to begin on January 11, 2016 which will see a reduction in the number of law firms providing 24-hr cover at police stations from 1,600 to 527. By any measure these are draconian cuts. It will also mean that accused defenders would lose the right t choose the solicitors they want to represent them in legal aid cases.

The apparent perception among much of the public that lawyers do protest too much because, like insurance companies, there are no poor ones, has undoubtedly been fanned by a sensationalist Press highlighting the very costly, but relatively few, cases where fees for solicitors and advocates have been seemingly astronomic. Such recent cases include the collapsed trial of a vicar and six co-defendants accused of conveyor belt sham marriages that left the taxpayer with an immediate £600,000 bill that is likely to run into millions and the child killers, Mick and Mairead Philpott, racking up a £350,000 legal aid bill. In the former case prosecution barristers netted £76,834 and lead counsel £44,469, while in the latter each of the lead barristers earned over £55,000. In short, it could be said that the few notoriously costly cases give the whole legal profession an odious name in the public's eye.

                                           Fat Cat myths

The reality for most lawyers and advocates, however, is far from the image of widespread fat catery. To give a recent example take the case of young Mr X who pleaded guilty at his first court appearance on advice from his lawyers which meant the offender had to sign the Sex Offender's Register. The case involved a young couple in an online, consensual relationship that turned sour after several years, in which there were explicit pictures of his ex-girlfriend found on his mobile phone. He was charged with possession of indecent images of a child because she was under 18 at the time the pictures were sent. Worried at the prospect of listing on the Register he than approached the law firm of Bindmans, who engaged Sara Williams from Doughty Street Chambers. She returned to the magistrates' court, arguing that the guilty plea should be withdrawn and a not guilty plea entered. She succeeded and the trial date was set in the Crown Court. Bindmans quickly requested that the Crown Prosecution Service (CPS) review their decision to prosecute but it was six months after taking on the case and almost 11 months since the charge before the CPS finally did so, citing that it was not in the public interest to continue. Now here is a clear case where the defendant's lawyers saved the taxpayers relatively considerable sums because no 'trial fee' was incurred, and Bindman's earnings for all this? A derisory £4.66 per hour and the barrister only £1.50 per hour, hardly fat cat earnings.

Now it is true that Britain's legal aid bill dwarfs that of every other country in Europe -- or is it? At £2 billion a year it is 20 times the European average and more than seven times the amount spent by France and Germany, yet in the National Audit Office Report of 2012 the UK was exactly average in comparison with world-wide spend on the criminal justice system (0.33%). But to what extent does this apparent great disparity in UK and European spend on criminal legal aid reflect a difference in legal systems? The British legal system is an adversarial one in which the State must prove the accused's guilt beyond all reasonable doubt but most other criminal justice systems work on an investigative basis where investigating magistrates do not limit themselves to deciding upon the evidence presented to them. They go forth and seek as much information about the case as they can. It is this that leads to the UK having a higher legal aid bill. It is not so much that defence in a criminal trial costs more in the UK system but rather it is that these costs are differently apportioned. Far more of crimes in the UK system turn up on a specific citizen's account for his defence rather than in the general running costs of the courts as a whole.

Rather crassly, it appears, "asylum" seekers are to be excluded from the proposed cuts of £350 million, despite the legal aid bill for asylum seekers between 2003 and 2010 totalling £824 million, and that does not include the cost of manning the immigration courts. In the light of the current European migrant crisis that bill could soar unless firm measures are taken, like refusing any appeals after appellants have failed a fair immigration hearing. This could be part of a wider approach to the problems of legal aid cutbacks, which risks throwing the baby (justice) out with the bath water. What is needed is an honest debate about legal aid. One option would be to develop a system where legal aid is given as a loan payable only on conviction of the guilty and recovered through existing tax and benefit systems. Another mooted solution is to ask the City to pay for the cost of fraud trials that result from negligence on its watch because fraud trials consume a large amount of the legal aid bill.

Time is running out for many lawyers and public justice because any more cuts will force lawyers to abandon worthy cases as they become financially worthless causes. The legal profession must now show stiffened, united, national and sustained resolve by withdrawing their services until the Government has been persuaded to change tack.


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