Opinion: Why I am against Grayling over Criminal Legal Aid

As a candidate for the European Parliament my focus is on EU-related issues: trade, climate change and cross-border crime. But some national issues are, in my view, so pressing that I cannot ignore them.  Among these are Chris Grayling’s proposed cuts to criminal legal aid, so severe they threaten whether defendants will have proper representation at all.

On 6 January, I was in Oxford to support a protest against these cuts.  Concurrent protests happened at courts all over England & Wales. The campaign aims to raise public awareness and persuade parliament to say ‘no’ to Grayling, as Parliament did over Price Competitive Tendering (taking away the right to choose your own lawyer).

I write to encourage all Liberal Democrats to oppose Chris Grayling’s plans because this is a real fight for the future of criminal justice.

It has been a well spring of pride that, subject to a degree of means testing, anyone accused of a crime serious enough to go the Crown Court will be well advised and represented by a lawyer specialising in advocacy (i.e. a barrister or solicitor with equivalent qualification). Crown Court cases are those where the maximum sentence is greater than 6 months, for example all cases of murder, rape, arson and grievous bodily harm; many cases of theft, burglary and actual bodily harm.

The advocate makes a difference, first by advising the defendant on the evidence. This achieves pleas from many guilty defendants, reducing delay and aggravation for victims and witnesses. If the defendant says he is not guilty the advocate’s role is to present his case by asking questions of the prosecution witnesses, calling defence witnesses, addressing the jury on the evidence and pointing out if the prosecution have the law wrong. I do not believe that even well educated and articulate citizens could do this as well as counsel. Certainly, the average citizen could not.

It is in everyone’s interests that defendants are well advised and represented. The social and economic cost of a wrongful conviction is huge. You have an innocent person removed from the workforce and from the role of parent or spouse. A real criminal may be left free to do more harm.

Grayling proposes to cut advocates’ fees to a point that will destroy the profession. Labour cut criminal barristers’ income in real terms by 40%. According to HM Revenue & Customs’ records the average criminal barristers’ income now is about £37,000. That is modest when you consider that job requires 4-5 years of university and offers 60-90 hour work weeks, no pension, no sick pay, no maternity leave, no paid holiday. Entry level pay is as low as around £12,000.

Much higher figures published by the Ministry of Justice included VAT and insurance costs and even Grayling pathetically abandoned them as “not my figures” when challenged by Andrew Neil. A minister who blames his civil servants should not be a minister.

Grayling proposes a further cut of 17.5%, and 30% from the very complex cases. Cuts of that order will be the end.

The Bar’s suggestions for alternative savings have generally been ignored, leading many to suspect that ideology more than austerity is at work. There has always been a strain of conservativism that has never really accepted civil liberties or, as one member of the House of Lords put it, “they think nice conservative people don’t need legal protection and other people don’t deserve it.”

I urge every Liberal Democrat MP to oppose in Parliament Grayling’s plans and all party supporters to back this campaign.

* Antony Hook is a Liberal Democrat MEP for South East England and has practised as a barrister since 2003.

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14 Comments

  • “It is in everyone’s interests that defendants are well advised and represented. The social and economic cost of a wrongful conviction is huge.”

    I think this aspect needs to be developed further. Whilst Anthony, gives the “normal justification” for legal aid, I suggest that perhaps we should modify our take on this. The major role of the courts is to ensure the ‘right’ people actually get convicted ie. test the evidence provided by the police and prosecution, and that those found guilty also receive the appropriate sentence for their crime. I suggest that as a society, given the costs that will be incurred with custodial sentences (even electronic tagging is not free) , we need to take reasonable measures to ensure that we are only incurring such costs as are necessary to deal with the deserving cases. Hence part of the justification for legal aid isn’t so much it’s cost but the savings that will be made by not having the prison system cluttered with people who shouldn’t or don’t need to be there, or should be there but are serving an inappropriate sentence.

    Obviously, what is needed is some real data to start to put some meat on the bones so that we can then start to quantify the benefits and the level of legal that gives the greatest benefit.

  • Melanie Harvey 21st Jan '14 - 8:44pm

    If legal aid is available for the criminal so should it be for the victim given the police have time and time again shown their negligence etc. If legal aid was for victims too there would be no need for a large IPCC/victim support dept, as the victim would be legal ly represented for themselves alone. No one can then use them for their own agenda including the police.

  • Robert Wootton 21st Jan '14 - 11:41pm

    I do not know anything about the legal and legal aid system. All I know is hearsay evidence. So I was surprised at the low incomes given in the post. My hearsay evidence is that barristers charge £90 per hour. If they are working 60 to 90 hours a week, that is a lot of money. And working all the time, not much time to spend it..
    Solicitors charging £50 to answer a client’s phone call.

    Perhaps Grayling’s proposals are based on similar hearsay evidence; I don’t know.

    However, I totally support the need for professional representation of people charged with committing a crime.
    Cuts in legal aid should not preclude representation in a court of law.
    I would go further. A National Law Service, free at the point of use for all citizens. Failing that all solicitors and barristers should give all clients a price list of charges or better still, a fixed total price for a service provided.

  • Melanie Harvey 22nd Jan '14 - 12:39am

    Robert, 90 an hour for a barrister? and the rest !!!

  • Tony Dawson 22nd Jan '14 - 7:34am

    The state needed to look at what it was shelling out in legal fees. However, government appears to be hitting the clients rather than the lawyers (though some lawyers will suffer). There are not enough solicitors (like doctors) trained so there is no real price competition in many areas. Profession (sic) appears to control entry numbers to maintain supplier dominance of market. Offices used are sometimes too posh, receptionists filing nails etc which client has to pay for. As with doctors, most of those receiving the service are supplicants, afraid to offend the person providing the ‘service’ however good or bad, efficient or inefficient it is, so bills are rarely challenged, nor is inefficiency and waste, and even more rarely are these challenged successfully. There are no easy answers to this conundrum.

  • It is a pity that certain fundamental myths still have to be dispelled. We are dealing here with legal aid criminal fees.
    Barristers do not “charge” fees. Our fees are set by the Government at a rate they choose to pay us. I have no idea where the £90 per hour figure came from. It is simply not true in terms of Graduated Fee legal aid crime
    If I am prosecuting an average burglary trial lasting two days, I am paid a fixed fee, no matter how many hours I work. Including necessary preparation and hours in court, I will be very lucky if it exceeds £20 per hour. How much do you pay your plumber, or your motor engineer?
    If I am defending it could be much less. Very often cases are listed for admin reasons prior to trial. I am paid NOTHING extra for these hearings, they come out of my basic fee.
    If the defendant is convicted, I will go to court on another day to deal with sentence. Again, I am paid NOTHING extra for this.
    If someone else goes in my place because I am double booked, I have to pay them £90 out my own pocket.
    If, as sometimes happens, say an interpreter does not turn up for the sentence hearing, or the court does not have time to hear it, I will have to go back again on another day. For NOTHING
    There is no control of entry numbers over and above the number of available spaces in chambers.
    We do not present bills to clients, so there is no question of their being challenged.
    It is the Bar that is trying desperately to get the MoJ to address waste. They refuse to listen to us.

  • James Sandbach 22nd Jan '14 - 12:52pm

    Ministry of Justice have misrepresented earnings figures by not making it clear that they are gross – up to two thirds deducted via expenses, administration and clerical support, VAT, chambers rent – Junior barristers in particular aren’t left with much to live on now so cutting 17-30% will leave them very poorly remunerated compared to other public service professionals; the same goes for Solicitors and their overheads and expenses and legal aid transfers to lawyers are further eroded by inefficiencies in the court system and CPS .

    Are there ways of reducing these management costs through better systems (?) – I think yes, but MoJ doesn’t have the first clue about how do do this or how to work co-operatively with the legal professions, judiciary and Court systems to achieve this – instead they just want a punch up with the lawyers by cutting fees by such huge percentages.

    But the argument shouldn’t be about fees at all (framing it in this way looses public sympathy – and sometimes leaders of the Bar fall into this trap by banging on about their fees all the time rather than justice), but rather whether criminal defence services are sustainable and appropriate quality to prevent injustice; we can all find ourselves at the wrong side of the criminal law at sometime in our lives and often through no fault of our own …the Government’s criminal legal aid reform package is taking things to a situation in which the whole system may collapse because it it becomes so unsustainable; poor people will not be able to access decent advice and representation on criminal law issues if these reforms are implemented..there won’t be enough supply and they are trying to re-engineer the system so that all lawyers do is help clients plead guilty rather than mounting robust defences.

  • Alexander Matthews 22nd Jan '14 - 2:20pm

    Disclaimer: I am a BPTC student. (This basically means that I am studying to be a barrister. I potentially plan to specialise in Criminal Law.)

    “This achieves pleas from many guilty defendants, reducing delay and aggravation for victims and witnesses.”

    I agree with basically everything Antony has put, but I just wished to focus on this point.

    Whenever someone hears that I wish to work in Criminal Law, I almost always get the age old question:

    “How could you defend a rapist or murder?”

    Well, there are two points to be considered in this question:

    1 – If I do not ‘know’ one’s guilt, then that person, like everyone, has a right to a presumption of innocence until a fair hearing has been held and his guilt determined by 12 of his/her peers (or a bench of magistrates). The only way for one’s trial to ever be fair is if he has access to advice and advocacy from one who actually understands both the nature of his/her trial and the gravity of his/her situation.

    2 – This gravity point leads quite nicely on to my next point. If I do know – or I deem the evidence the guilty to be such that it is heavily against my client – then I have to advise him/her of the consequences of their actions, particularly in relation to how their plea will affect their sentencing, but also in relation to how it will affect my role as their advocate. I cannot lie to the court, so I know incriminating evidence or the client has admitted their guilt to me, then my ability to act in their court is severely restricted. When many clients learn this, they plead guilty, unless they honestly believe they are innocent. This is good not only for society (for obvious reasons), but also for the client. Judges are far more likely to put a client on a rehabilitation scheme that can actually be conducive towards moving him/her away from a life of crime, if that individual shows both the responsibility and remorse required for them to plead guilty.

    Organisations, such as the Howard of Reform, are what inspire my passion for Criminal Law, not because of the ‘excitement’ of getting ‘him off’, but because of the chance to make a real difference to an individual’s life by working with him/her to get their life back on track.

    As for pay, I am happy to take a pay-cut to do this kind of work (and I will be); however, I do not think it wrong for me to ask for enough to feed my partner and I. I have paid for all my course fees, living expenses and unpaid internships myself; never once have I asked my parents to support me. Neither I nor many of classmates are rich Eton students wanting the easy life.

    In fact, my BPTC fees are between £17,000 to £18,000 per year; even if there are any Chambers left to give me a pupillage once my course finishes, I am likely to be earning around half of that in real terms for at least the foreseeable future. (Note, this is the fees for one year and does not include living expenses, extra-curricular expenses, unpaid interns/mini-pupillages or my undergraduate course. All of which I have to pay for myself. I receive no government support for any of this, other than my undergraduate course fees, which I am paying for through the student loans scheme.)

    This is not Criminal Barristers demanding more money, right now, this is them saying the Criminal Justice Service, as a whole, needs to actually be able to effectively provide justice for society.

    So, though many people do see me as a money sucking demon, the truth is, I am the son of an administrative NHS worker, the brother of a nurse and the grandson of a cleaner in the NHS. They are joined the NHS to help society; their ideals have been passed on to me.

    In my eyes, the only difference between me and my family is this; I dream of helping society in a slightly different way to them; however, their ideals of helping society is still the core part of my dream.

  • Antony Hook 22nd Jan '14 - 4:35pm

    Alexander,

    You are exactly the sort of person with a passion for justice and from ‘an ordinary background’ (if you excuse that expression) we need to encourage into the law.

    Like your mum, mine was an NHS administrator (a retired doctors’ receptionist, now retired, to be precise).

    Good luck with the bar course and I hope we can save the profession for people like you and the vulnerable people who need clearly passionate and articulate people like you to represent them.

  • I agree with the main thrust of this argument. However as one employed by a prosecuting agency, it is equally important to ensure that the guilty are convicted and victims are given a voice. Sadly in the current cuts led climate, there are also real resource issues affecting investigation and prosecution of cases.

  • Completely agree, people don’t stand a chance in court without proper representation and the stripping away of Legal Aid ensures that only the rich can afford justice.

  • Alexander Matthews 28th Jan '14 - 2:04pm

    I completely agree with ChrisB, as well.

    Antony, thank you for your kind words. Though I do not know if I will be a position to help save the profession anything soon; there is a big pile of pupillage and mini-pupillage applications waiting for me, first. Haha.

    More seriously though, as someone with an interest in both the Law and Politics, I have noticed that there is a worrying level of distrust between the two professions, with certain Chambers voicing their concerns about my commitment to the Bar because I have interned in politicians’ offices. I guess this may be in direct response to the tensions that have risen between the two institutions, following the raise of judicial intervention in the administrative in the last ten years (following the Human Rights Act) and the Government’s seemingly reactive attempts to curtail legal interventions in the political/administrative process. However, I find this concerning because if the profession is to maintain its position as an institution for justice that holds organisations, such as public bodies, to account, then it needs to work with the Government out of Court (by providing, objective, independent advice… etc) as much as it can ‘sometimes’ work against the Government’s proposals in court. Allowing the profession seem adversarial in this area will not help these aims. Though, I may be bias in this issue.

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