Opinion: Save criminal legal aid

Having just savaged civil Legal Aid, the Ministry of Justice has launched a consultation paper containing proposals that would do the same in crime. I declare an interest (I am a barrister practising in cases of serious fraud) but I hope that this at least qualifies me to highlight the devastating impact these proposals would have.

The Importance of the right Verdict

For those accused of a crime, representation by a tenacious, high quality lawyer of your choice, as provided currently, is fundamental. Even minor convictions can cost someone their good character and livelihood. A prison sentence can cost them everything.

Getting the right verdict is a moral imperative. Miscarriages of justice happen and people can spend years in prison until the truth comes out. That comes at great cost to taxpayer, defendant, victims and witnesses alike. Lives ruined and our system of justice demeaned. The stakes are therefore very high. Change must be approached cautiously.

The Consultation

The consultation suggests reckless and far-reaching changes including,

  1. The removal of the right for legally-aided defendants to choose their lawyer.
  2. No legal aid at all for those with a disposable income of over £37,500 subject to hardship.
  3. Contracts for criminal defence services in nearly all cases (bar Crown Court advocacy for now) being auctioned off to the lowest bidder at a maximum of 82.5% of current rates; probably much lower.
  4. Fees would be weighted heavily towards guilty plea cases and short trials with overall cuts of 20%-30%.

The Effects of the Proposals

These proposals will destroy the present market and compromise our system of justice.

The removal of client choice is a seismic constitutional shift. A defendant investigated by a state agency (the police) and prosecuted by another state agency (the C.P.S.), would in future be allocated a lawyer chosen by the state solely because they are the cheapest. Worse still, that lawyer would be given a financial incentive (by the state) for their client to plead guilty. If that client had the temerity to plead not guilty, then the lawyer has a financial incentive for the trial to be short (which could mean the evidence not being challenged properly). The perception of unfairness is obvious especially when it does not apply to rich privately paying clients. No liberal should allow to this to go unchallenged.

Price competitive tendering is the wrong way to procure vital services. Quality does not get a mention; only price. No-one suggests that the right to investigate and prosecute cases should be auctioned off in this way. It has a bad history. The last tendering process run by the Ministry of Justice was condemned by the Justice Select Committee, as,

nothing short of shambolic. [The Department] did not have an adequate understanding of the needs of courts, it failed to heed warnings from the professionals concerned, and it did not put sufficient safeguards in place…

We will see if the warnings of professionals are heeded this time. However, the lack of any consultation on the principle of competitive tendering and the dramatically shortened response period speaks for itself.

These proposals would destroy the present market of providers, which is diverse and where quality is driven by client choice. 1,200 solicitors firms, mainly local SMEs, would go out of business along with barristers chambers which, faced with a 25%-30% cut, would no longer be viable. Small, locally and diversely-owned enterprises should be supported by Liberal Democrats. Instead large, faceless providers (like G4S) would dominate under these proposals.

The new payment rates will be so uneconomic as to render corner-cutting and consequent miscarriages of justice inevitable. Lawyers with too many cases, evidence not reviewed, defence witnesses not contacted, expert witnesses not instructed and matters not ready for court. The tenacity of independent lawyers now guards against wrongful convictions; it is most unlikely that spirit would survive.

Costs

The proposals will waste money and the basis for projected savings is nowhere set out. There are costs in running tenders and clearing up the mess caused by shoddy preparation, needless adjournments and miscarriages of justice. Present efficiencies would be lost because client choice saves money. If a defendant trusts their lawyer, they are more likely to accept unpalatable advice and not take hopeless cases to trial. Conversely, a defendant with no choice of lawyer might opt to represent themselves, usually leading to a longer trial and greater cost.

Savings

Criminal Legal Aid has already played a big part in reducing spending with real terms decreases in rates every year for more than a decade and a recent cut of 13.5%.

There are better areas to target. We could stop forcing wealthy defendants with assets under restraint into dependence on legal aid. We could insist that company directors obtain insurance to pay their legal costs in fraud cases. We could reduce the prison budget with a real rehabilitation revolution. We could even have an enlightened debate about the government’s wasteful drugs policy.

As they stand, these proposals would engineer U.S. Public Defender-style system with no client choice and rates so uneconomic that the provision of a proper defence to the accused (innocent until proven guilty) would be impossible. That is, unless they are rich enough to pay for it. Miscarriages of justice will surely follow.

I urge anyone who is concerned about this to respond to the consultation.

* Geoff Payne represents the English Party on the Federal Policy Committee. He is also one of the Vice-Chairs of Federal Conference Committee. He chaired the Criminal Justice Working Group.

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35 Comments

  • Its Not the restricting of legal aid that need doing everytime its cut to save money what needs cutting is outragouse fee that are charged be legal teams you take right away to legal aid you are taking justice away from the poor in the country typical tory kick the poor every which way DONT SUPPORT IT NICK

  • Alistair Webster 8th May '13 - 10:54am

    The party’s policy on legal aid and access to justice is quite clear. It was hugely disappointing to see every facet of it ignored when the government forced through the changes to civil legal aid last year.
    These proposals are desperately dangerous. They are ill thought out, incompetent and likely to do irreperable damage.
    Why?
    1. Rather than looking for alternative means of funding, the government proposes a huge set of changes, with fundamental consequences for the provision of services, without either modelling or trialling. This is directly in breach of the party policy and a pledge given by the Attorney-General.
    2. The government has no idea whether its ideas are sustainable. It is the view of every solicitor and barrister who has considered it so far ( as far as I am aware ) that the proposals are not. They should be seen in the context of cuts of 38% and more over the last 8 years.
    3. The proposals are predicated upon removing all choice of lawyer under legal aid. This is a fundamental change of constitutional significance. Does the government propose even to have a debate? No. It intends to push this through as secondary legislation and hopes to avoid even a vote.
    4. The Ministry of Justice, and its various bodies, have been criticised, time and time again, for failure to trial and model proposed “reforms” ( i.e. cuts ). The conspicuous incompetence in the tendering process for translation services for the courts, which has been an unmitigated disaster and attracted strong criticism from the Select Committee, shouts out a strong warning as to the dangers posed.
    Providing a strong Criminal Justice System is one of the most basic duties of the state. As pointed out by leading academics in The Times yesterday, these proposals threaten to do real and lasting damage. Any member who cares about justice should fight them, and should make it clear to Nick Clegg and Tom McNally that these proposals MUST be abandoned and sensible suggestions for alternative funding, rather than unsustainable cuts, must be sought.

  • Russel McPhate 8th May '13 - 10:56am

    ” A defendant investigated by a state agency (the police) and prosecuted by another state agency (the C.P.S.), would in future be allocated a lawyer chosen by the state solely because they are the cheapest. Worse still, that lawyer would be given a financial incentive (by the state) for their client to plead guilty.”

    These two sentences alone should stop ANY Liberal supporting these proposals. If money requires to be saved it should not be at the expense of the Individual whose life and liberty is at issue.

  • Melanie Harvey 8th May '13 - 11:40am

    “These proposals will destroy the present market and compromise our system of justice.”
    Our justice system is compromised, has been for years and nor should it be seen as a “market”.. Were it to be fair, when the defendant is given automatic right to legal reps then so should the victim. They are not. and if the police are not actively doing anything and putting said crime in the “statistic bin” for victims to get any help is, needle in haystack syndrome unless said victim is a big dosh carrier of course.. The police and CPS are impartial or should be, victims should not be subject to poor or shoddy work by either agency either, but they are. So it seems to me its a fight for inequality in the first instance , the right to legal rep should be on a level playing field available equally to all, it is not and in fact far from it.

  • These proposals, like the ones proposed for Civil Legal Aid, are woefully ill-considered and leave a bad taste in the mouth. Many people do not seem to care because ‘it is just kicking lawyers and I hate lawyers’; too many seem to fail too appreciate that it is not just going to be the lawyers who get kicked by this; it is some of societies most vulnerable who will be affected. Already, several Legal Aid firms in Nottingham have had to close down; far from them being evil money grabbing solicitors, these were people providing legal advice to those on benefits, those with mental health issues, students, the retired and other vulnerable groups. Now these firms are gone, these groups have no one providing them with free/affordable legal advice, and as such their access to justice is greatly undermined.

    When people do not have access to justice, they lose their belief that they have a stake in society and this only weakens and breaks social cohesion.

    With Criminal law, this is only yet more concerning because those who find themselves in the Criminal docks are generally the people who need the most support reintegrating into society, otherwise they will just reoffend and breed a stronger culture of crime which only serves to make yet more social unrest, weaken the economy and generally leads to a worse country to live in.

  • Melanie Harvey 8th May '13 - 11:55am

    Alistair Webster “Providing a strong Criminal Justice System is one of the most basic duties of the state.” Incorrect wording.. Strong should be replaced with “fair”.. we do not have a fair (and/or impartial, for that matter), justice system.

  • Legal aid on the present generous scale is a luxury we cannot afford. However these proposals as they stand would seem to be the right idea matched by the wrong way of going about it.

  • Greg Foxsmith 8th May '13 - 7:23pm

    Well said Geoff!
    in addition to responding to the consultation , could I invite everyone to sign and circulate this petition http://epetitions.direct.gov.uk/petitions/48628
    One of the sad and bad aspects of this is that once the (possibly sham) consultation is over, the changes will be passed by Statutory Instrument WITHOUT PARLIAMENTARY DEBATE. So we are reduced to scrabbling around for 100ksignatures just to get a mention in the House.
    This conveniently means that Lib Dem MPs won’t have to vote for this rubbish, but inconveniently makes it harder to defeat. We should therefore also lobby LibDem Leadership as soon as possible, to avoid the Party being allied with Failing Grayling and Eddie Stobart Law. If you think Secret Courts was a toxic issue, just wait and see what happens if this ill-judged illiberal uneconomic nonsense goes through….

  • Eddie Sammon 8th May '13 - 7:55pm

    Signed. I’m sick of the government balancing the deficit on the backs of the poor whilst they hand out billions in corporate welfare and the Queen sits there with a giant crown on her head.

  • Anthony – is it to be made under the affirmative resolution or negative resoution procedure?

  • Eddie Sammon 8th May '13 - 8:44pm

    Having read more about it I’m even more annoyed. Awarding contracts automatically based on the lowest bidder is completely unfair to both defendant and barrister. Barristers are not a commodity like Gold where standards can be set and all produced to the same specification. It’s entirely unfair to award the work to the cheapest barristers. They wouldn’t use the cheapest barristers themselves would they.

  • ” It is clear that the current position of administratively set and unnecessarily complex fees, with over 1600 organisations delivering those services is far from being the most efficient way of procuring services. Our proposed model would result in consolidation of the market, making it easier to access greater volumes of work and allowing control of the case from end to end.”

    This part of the consultation sums up the Government’s position and its dedication to their mega-corporation masters.

  • I agree with Antony, there is a case (and in Criminal cases, it is just a case because a criminal defendant has no choice but to go to court if he is innocence) for a threshold, but a ‘household’ threshold of just £37,500 is far too low. That means a family where you have one parent just earning £20,000 and another earning £17,500 would have to cover all their legal costs to defend themselves. This could easily drive innocent families into poverty and I can only see further expense down the road as those proven innocent begin to try and reclaim their costs from the state in whatever manner they can.

  • Geoff Peters 9th May '13 - 6:17pm

    Actually Anthony, the threshold is an £37,500 of annual “household disposable income”. Disposable income is the sum of wages and salaries, mixed income, net property income, net current transfers and social benefits other than social transfers in kind, less taxes on income and wealth and social security contributions paid by employees, the self-employed and the unemployed.

    So, roughly speaking, a household would have to be earning £52,500 to not qualify.

  • Geoff Payne 10th May '13 - 9:32am

    Thanks for all of the comments. As Greg has correctly said, one of the most frustrating things about the proposals is that they can be enacted without any Parliamentary debate at all. That, coupled with the fact that there is no piloting proposed, no consultation on the principle of competitive tendering, a shortened response period, and almost unanimous warnings that all of this will end in tears, makes the whole thing very dangerous. I agree with Antony about the problem with the threshold and Alistair is absolutely right about the contempt for party policy that has been demonstrated in the legal aid changes this Parliament.

    Mike C – I would not say that Legal Aid is generous at present. It is a fight to get the Legal Aid Authority to agree to any expenditure no matter how important to the defence case. There has been nothing but rate cuts over the past ten years,. Do not believe comparisons made with other jurisdictions, many of which are inquisitorial in nature and spread the costs differently.

    Liberal Al sets out a powerful liberal response to the proposals which Tom McNally and Nick Clegg would do well to note. Taking matters forward, a motion on this subject needs to go to FCC for Autumn Conference, please do sign the petition (http://epetitions.direct.gov.uk/petitions/48628) and come on the March, 30/06/13, 1pm, at the Royal Courts of Justice.

  • Anthony you say there is to be a protest march on the 30th of June. You do realise that the consultation period is coming to an end in June . Do you have any numbers as of yet? What do you hope to achieve by doing this after the consultation period has come to an end?

    I have former colleagues in the Leicester area who have had meetings and we have meetings coming up in Lancashire next week. But looking at previous meetings that Solicitors had in Manchester and the strike the Barristers had on the 22nd of April, we don’t seem to be getting anywhere.

    What are Mr Clegg’s views on this? Surely as deputy PM he has some leverage here. Is Mr Clegg not aware of the article in the Law Society Gazzette from a few weeks back, when Mr Grayling was telling the Independant Bar how he is trying to protect them, and would like them to bid for contracts. He also told them, that if they do not co-operate then he will bring PCT in to the Crown Court arena. Surely conduct unbefitting that of a secretary of state.

  • Well said Geoff, that is exactly the point that is being missed. Mr Grayling never mentions any of the cuts in rates that we have had to endure over the last 10 years. I have been making my clients aware of what is coming up and asked them to sign the petition and family and friends. Put the link up on Facebook, on numerous occassions. But again my question is why have the march at the end of the consultation period.

    I could talk quiet a few of my cases, where there would have been miscarriages of justice due to the police hiding vital evidence , or the incompetence of certain CPS lawyers on very basic issues. What the general public does not realise, is that we are the people who protect them from the state. Once we go and the proposals come in, then you can wave goodbye to liberty and democracy.

  • Legal aid is the sort of thing that LibDems should be defending tooth and nail, even threatening to withdraw from the government.
    Do you want to do well in 2015? Then stand up for justice!

  • Imran Majid 10th May '13 - 2:13pm

    Well the Law Society have said that we should co-operate during the consultation period. If the government are still going ahead post consultation then they will decide what to do. So clearly fight does go on post consultation. From our point of view we need to know what’s happening as even though we are evil rich fat cats , we still have families to support. I know Jack Straw once famously said he is not in the business of helping lawyers run successful businesses. But surely if you do not encourage enterprise that has an impact on economic growth and also lawyers failing in their businesses will lead to gaps in the market, which of course the current proposals will lead to gaping holes in the market.

  • @Imran: Well, the fact is that Jack Straw is little more than a failed barrister who, in my experience, has little respect from most quarters of the Bar.

  • Melanie Harvey 11th May '13 - 12:23pm

    If there is desperate need for legal aid surely the court themselves are so remote from society that is the place that needs addressing most ? Reductions in legal aid should, dictate the court themselves will need an overhaul and most certainly LiP treated correctly/fairly in the first instance by judges and the court.. Legal aid or not this should be on the cards in anycase as, as much as crime is a problem so are incorrect judgements costing more.. It seems it is not so much complexity of law that is a problem but how the system is in the first place which, makes vast amounts of legal aid a necessity!! However the main problem with legal aid it would seem is, if the client isn’t picking up the tab, others use said problem for financial gain and client doesnt complain as he is not picking up said tab.

  • Imran Majid 11th May '13 - 3:18pm

    Melanie, clearly you have no experience of the criminal justice system and how things work. It is simply because of the danger of bad judgements i.e. miscarriages of justice that legal aid and the protection of the citizen fom the state is vital.

  • Peter Cooper 12th May '13 - 8:12pm

    These must be the most illiberal proposals concerning Criminal Justice for over a century. Please oppose them by signing these two e-petitions:
    https://submissions.epetitions.direct.gov.uk/petitions/48628/signature/new
    and:
    http://you.38degrees.org.uk/petitions/save-legal-aid-say-no-to-cut-price-justice
    This is a cause worth fighting for. If someone tried to apply the “cheapest bid” approach to GP’s surgeries, schools, or Police forces, the nation would be in uproar. Criminal Justice is not the same as a contract to supply photocopy paper!

  • I completely agree, Peter. There is everything for the Party to fight for here. These proposals are,
    (a) not party policy,
    (b) not in the coalition agreement,
    (c) not compatible with the beliefs of a party that calls for a free, fair and open society and which seeks to balance the fundamental values of liberty, equality and community,
    (d) Illiberal and wrong.
    Let’s get out there and fight them!

  • Greg Foxsmith 18th May '13 - 10:21am

    Some good comments about the March in June being too late.
    There is a demo outside Westminster this Wednesday at 1030 (Par.iament in recess but doesn’t matter as they are not being asked to debate or vote on these slash and burn proposals anyway)
    Detail here http://www.lccsa.org.uk/assets/documents/Misc/LCCSA_flyer_A5.pdf
    We are expecting a good crowd, have good press interest , and good speakers.
    I have yet to find a Lib Dem to speak at the demo- can anyone help?
    Greg Foxsmith , committee member LCCSA
    http://www.lccsa.org.uk/events.asp?mid=93&ItemID=415
    [email protected]

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