RESPONSE TO CONSULTATION PAPER: TRANSFORMING LEGAL AID (PUBLISHED 9.4.13)
I respond to this Consultation as a criminal practitioner of 19 years call. I am lucky to be a very busy senior junior, working in a wide variety of case, in a wide number of court centres, for a wide variety of professional, solicitor clients. I have witnessed numerous changes to the Criminal Justice System in my 19 years, and I struggle to think of one that has been an improvement or to the advantage of justice and the public, in the long run. There is little in this Consultation, or within the Ministry’s approach to Criminal Justice, with which I can agree or in which I can see any possible improvement for justice in this country.
The very title of the Consultation Paper is, with respect, entirely predicated upon an unevidenced assertion, on the part of the Ministry of Justice, and often repeated, in one form or another by its ministers and indeed its Secretary of State, that “over the past decade, the system has lost much of its credibility with the public.”
It is presented as a key driver for the “reform” proposed within the consultation paper. Without any, or any sufficient, evidence to support such a central proposition, in my view, the very basis of the consultation and key underpinning of the Ministry of Justice’s analysis and consequent proposals are fundamentally undermined.
The Ministry, and indeed the Secretary of State, have been asked on numerous occasions to provide any hint of the basis for the bland assertion, repeated throughout this and other consultations, and continually in tame media outlets. That they have failed so to do – other than a claim “that we have received a number of letters and emails” – speaks volumes as to the credibility and bona fides of this entire consultation process.
The Secretary of State says in the overtly political foreword to the Consultation Paper:
“Access to justice should not be determined by your ability to pay, and I am clear that legal aid is the hallmark of a fair, open justice system. Unfortunately, over the past decade, the system has lost much of its credibility with the public. Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid. Under the previous government, the cost of the system spiralled out of control, and it became one of the most costly in the world.”
With as much respect as I can muster, that is unmitigated and arrant nonsense. Worse however, is the fact that it is palpably misleading.
Breaking down the very basis for this entire consultation, and the concomitant proposals, one finds as follows.
i) Access to justice should not be determined by your ability to pay
However, that is exactly what is occurring. The only “reforms” to the system – be it civil, family or criminal – involve those without funds, without an ability to pay, having their access to justice either removed or drastically circumscribed. The attempted reassurance in the first line of the foreword rings increasingly hollow and untrue when set against the realities of the “reforms” already in place, and those contained within this Consultation Paper. The Home Secretary finds no problem in expending public funds in instructing THREE eminent Queen’s Counsel to attempt to deport Abu Qatada, whereas this Ministry is making it increasingly difficult for someone accused (only accused, mind) of murder to obtain the services of ONE Queen’s Counsel, or a team of TWO counsel.
ii) I am clear that legal aid is the hallmark of a fair, open justice system
I am clear that there are unicorns. My saying that is my view does not in any way mean that it is my true view. Nothing said or done by the Ministry or Ministers gives any confidence that this Government, and this Ministry in particular, view legal aid as anything other than a necessary inconvenience, to be made as cheap and rudimentary as possible. It, of course, may be that the above statement is entirely genuine, and the Ministry has simply no interest in “fair, open justice system”.
More, much more, than simply “having” legal aid, it must be an effective legal aid system. How many senior staff in the Ministry, including ministers and the Secretary himself have any actual experience or knowledge of law and legal aid, as distinct from experience or knowledge of bureaucracy and how to tighten purse strings, and further their own progress up their respective career ladders?
Are they aware of the recent views expressed by the UN Special Rapporteur – someone whose role is expressly to ensure fairness and justice for ALL citizens of the world?
Her title is “United Nations Special Rapporteur on the independence of judges and lawyers” – Gabriela Knaul urged world governments to develop and sustain effective legal aid systems as an essential component of a fair and efficient justice system founded on the rule of law.
“Legal aid is both a right in itself and an essential precondition for the exercise and enjoyment of a number of human rights, including the rights to a fair trial and to an effective remedy,” said Ms. Knaul, presenting her latest report to the UN Human Rights Council. “It represents an important safeguard that contributes to ensuring the fairness and public trust in the administration of justice.”
“Legal aid should be as broad as possible,” she said, stressing that its aim “is to contribute to the elimination of obstacles and barriers that impair or restrict access to justice by providing assistance to people otherwise unable to afford legal representation and access to the court system.”
That is the expression of a considered but heartfelt credo that should be front and centre of any civilized democracy. Unfortunately, this Government’s approach appears to be diametrically opposed to core standards espoused by the UN.
iii) Unfortunately, over the past decade, the system has lost much of its credibility with the public
With respect, this is simply untrue. I wondered whether to characterize this assertion as simply unevidenced, or as inaccurate or as misleading. It is all of these, but more simply and more starkly it is untrue.
Without evidence, it fails to stand up to scrutiny. The only current “evidence” – empirical rather than anecdotal – is the recent survey commissioned by the Bar Council.
The findings of that survey are simple and compelling – and starkly at odds with the propaganda promulgated by the MoJ.
- 83% of the British public believe that people accused of a crime should be treated as innocent until proven guilty. Something that the Minister should bear in mind when providing soundbites to the media.
- 71% are worried that innocent people could be convicted of crimes they did not commit if forced to use the cheapest defence lawyer available.
- 75% say that it will be the poorest members of society that will be most affected if the Government makes cuts to legal aid.
- 67% – so over 2/3 – said that legal aid is a price worth paying to ensure that we have a fair society regardless of its cost.
- 68% also agreed that at less than 0.5% of annual Govt spending, legal aid is a worthwhile investment in our basic freedoms.
- 48% thought that the state should pay the full cost if prosecuting a UK taxpayer, only 28% disagreed.
- 53% – so over ½ – agreed that our justice system is respected around the world because of the quality of our barristers, only 1/5 disagreed.
- 77% – more than ¾ – would expect the same lawyer to handle all parts of a criminal trial, if they were acused of a crime.
How do those very clear findings reflect the claim that “much of [the system’s] credibility” has been lost? How, in fact, does it sit with a claim that ANY of the system’s credibility has been lost? What is clear is that the public, or the majority of the public, fear that it is exactly these proposals in the Consultation Paper that risk the credibility of a system, renowned the world over.
iv) Taxpayers’ money has been used to pay for frivolous claims….
This is not a critique aimed at the Criminal Justice System, however, I will comment briefly upon it. Others have commented, with far more insight and experience, upon the misleading use of statistics by the Government to attempt to justify its attack on the Judicial Review system. I simply say that I am wholly convinced by their responses to the Government’s approach, and can only add my limited voice to the complaint that the statistics are clearly inaccurately deployed – ignoring as they do settlements etc. Lastly, it ill behoves Government to seek so radically to reduce the redress of the common man against the State in this way. Judicial Review is the only available manner for the citizen to force the State to behave in accordance with its legal duties or to force the State to cease acting improperly.
v) to foot the legal bills of wealthy criminals….
And whose fault is that? Government has prevented defendants with personal wealth from using those to fund their “legal bills”. It is staggeringly disingenuous to then criticize the legal aid system for having to foot such legal bills. However, there is of course, a further more stark criticism to be made of this statement – it presupposes, as do practically all ministerial utterances, that a man arrested, is a criminal. A defendant is automatically a criminal. A complainant is automatically a victim. I urge all to read the blogs of A Barrister’s wife, who succinctly presents paradigm examples of people wrongly accused of crime, and justly and rightly acquitted because of a reliance on the legal aid system. The State chooses what to criminalise; the State chooses who to arrest for what alleged crimes; the State chooses when, where and how to try such people. The State is obligated therefore to afford proper and effective representation to these people.
Rather than disincentivising or preventing defendants from using their own or e.g. family funds (defendants’ costs orders etc), the State should allow restrained funds to be so used, should allow “topping-up” etc.
vi) and to cover cases which run on and on
This is simply disingenuous, misleading and offensive. Cases run on and on because the State chooses to prosecute in the manner they do. Cases run on because of the welter of evidence – unheard of, unthought of 20 years ago – now commonplace in nearly all criminal trials.
What has caused trials to run far longer than ever before is that the Crown will now deploy:
- cell-site analyses,
- telecoms data analyses,
- foreign intercepts,
- probe product
- special measures (livelink etc takes far longer….)
- far more extensive bad character evidence
- far more extensive hearsay evidence.
And with this welter of new material comes a welter of new legal submissions and litigation of issues caused by the legislation enacted, not by those arguing the issues at the coalface.
As ever, there is an implicit criticism that cases “run on and on” because of the (defence) advocates. The Ministry knows that this is simply untrue. It is a bald misrepresentation. Their own statistics demonstrate that delays in the system are caused by the bureaucracy, the CPS, the ridiculously inept new Interpreter contract, defendants and witnesses not attending and of course Serco / G4S etc and their appalling custody transport service.
Delays caused by defence advocates or lawyers do not even rate a percentage figure in the statistics provided. That is because we are already very efficient – we have to be on the pay structure in place. The idea that we delay or prolong cases on purpose for fiscal reasons or due to inefficiency is so far from the truth as to be risible and insulting.
We almost all work substantial hours outside certainly the 10 – 4.30 court day, and also the 9 – 5 “normal office day”. Without work carried out during and indeed before trial by the defence representatives, trials would last far longer than in fact they do.
One obvious example is the Operation Somerville / Mirato / Redwing trial in Preston (Dale Cregan and others), in which I am involved. That trial was brought on within custody time limits, despite there being 10 defendants, 4 counts of murder, 4 of attempted murder and associated explosives charges. That occurred only because all defence (and prosecution) barristers worked into the night for weeks on end, ensuring that the trial could start to the very tight timetable put in place by the presiding High Court Judge.
Similarly, because of that tight timeframe, further evidence and unused material (both measured in the thousands of pages) was served as the trial ran. Only because defence advocates, after a full and stressful day in court, dealing with the most serious of cases, and the most difficult of defendants, then worked into the small hours on daily basis, did the trial run relatively smoothly without any hiatus caused by us asking for more time.
If you want to see an inefficiency in the system, if you want to see trials and the system generally grind to an absolute halt, then create a situation where defence or prosecution advocates work 9 – 5. It will be chaos. You have taken us for granted for decades; you have vilified and misrepresented us to and through the media and to the public. Without us your system simply will not work!
vii) racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid
Again where is the evidence for the large fees for a small number of lawyers? There is limited evidence that requires very careful analysis of a VERY small number of lawyers receiving high fees. Certainly nothing anywhere approaching enough numbers for it to warrant the staggeringly emotive phrase “racking up”.
I am a very busy senior junior, only doing serious work – long trials leading and being led. Using the Cregan trial as an example after 40 days – not particularly long when you consider the nature of the case involving 10 defendants, 4 murders etc, thousands of pages of evidence, telecoms, cell-site, CCTV etc – I was paid a daily rate of £221 GROSS before tax, before expenses (travel, chambers) without pension, without health benefits, no sick pay.
In that trial, of all trials, after 19 years in the profession. Working in court 9 – 4.30 or 5, then preparation overnight for several hours – drafting skeleton arguments, and other documents, for “free” to assist the court – £221 per day.
So, as counsel of 19 years call, in that trial, I was earning around £20 per hour GROSS before any expenses etc. Which senior civil servant, or politician for that matter, would get out of bed for that. I shudder to think what the costs of all the security are for that trial!
The disingenuousness of the Minister’s comments, re no publically funded barrister earning more than Mr Cameron, has been demonstrated and excoriated by numerous people. I again lend my meagre voice to their more compelling statements. You are knowingly comparing apples with pears, and painting an intentionally misleading picture for the public. Not what should be expected of public servants. You should know better, we deserve better.
viii) Under the previous government, the cost of the system spiralled out of control….
At the risk of becoming puerile – oh no it didn’t. Anyone with any grasp of statistics and who has seen the published figures, knows that the costs have spiralled out of control DOWNWARDS. There has been virtually no occasion when there has been an increase in the simple figures, let alone in real terms, allowing for i) inflation or ii) the increase of VAT.
To suggest otherwise is, again, misleading, and intended to promulgate misrepresentative propaganda. The Ministry knows full well that in the last 15 years the fees paid to advocates not only did not increase, in or out of line with inflation, but rather fell, and fell drastically, year on year, slash on slash. If one accounts for inflationary effects etc, it has been calculated that fees for some cases have or will have been reduced by 50 to 60% in real terms in that time period.
Tell the truth, subject the truth to scrutiny and see where the reality lies, and see what the public say.
ix) and it became one of the most costly in the world.”
Guess what – yes, this too is simply untrue. And you know it. Our adversarial system, widely regarded over the ages and throughout the 20th century as a safe haven for justice for the citizens of this country and of others, incurs its costs in a wholly different fashion to, say, France, and its Code Napoleon.
The statistics have demonstrated beyond peradventure, and one would hope beyond misrepresentative propaganda, that the average cost of a criminal justice system is 0.33% of either annual Govt spend or GDP (I’m sorry I cannot recall which.)
So guess where on a scale of below, above or right on 0.33% our Criminal Justice System falls. “One of the mostly costly in the world” would be interpreted, and meant to be interpreted, let us not be naïve, to mean in excess, or even well in excess, of 0.33%. However, it actually happens to be 0.33% – exactly average. So mathematically impossible to characterise as “one of the most costly in the world”.
Having indulged myself in a response to the Minister’s political propaganda of a foreword, I turn to the specific questions. However, my overarching response to the questions is that I do not agree that PCT is acceptable, appropriate or workable in any way, shape or form. I echo a colleague’s view in that I consider that this ‘consultation’ is, in fact, a sham.
28th May 2013 Tim Forte
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