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Legal Aid – A Line in the Sand

Image © PA
Silk Star Maxine Peake joins protestors.

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

In January I wrote an article on the unprecedented step taken by barristers and solicitors in staging a half-day of action to oppose the government’s cuts to legal aid. Since then there have been repeated attempts by criminal practitioners, both barristers and solicitors, to engage with the Ministry of Justice and change their minds. However, on 27th January the government issued their formal response to the consultation on legal aid and although there were some very minor concessions, most of our worst fears were realised.

The actual changes

The cuts and reform of the criminal legal aid work proposed by the Ministry of Justice will have a profound effect on the legal landscape and upon the quality of representation available to those who cannot pay for representation. There are three major features of the proposals exclusively regarding criminal legal aid.

Firstly, the number of duty contracts available to solicitors firms is to be substantially reduced. Duty contracts form a large part of the revenue stream of criminal firms, these are contracts issued by the Legal Aid Agency which allow firms to send solicitors to represent those arrested and held at police stations. Currently there are around 1700 such contracts across England and Wales but the plan is to cut this to just 400. For example, under current plans there will only be 4 contracts issued for the entire county of Gloucestershire, an area of 1225 miles2. The reduction will mean that the majority of criminal firms will have to close down as a large portion of their work will simply disappear overnight. The plan is also extremely controversial because the government had to abandon a previous plan to reduce choice in criminal legal aid services through Price Competitive Tendering. The consultation response that details the proposals also specifically states that the Ministry of Justice “will not limit the types of organisation that may bid for the contract”. Will this mean that in a few years’ time we will see G4S or Tesco Lawyers being the only ones providing criminal legal aid?

The second major feature of the reforms is the reduction in almost all fees for solicitors and barristers and a reclassification of the payment structure for some cases. The fee for a duty solicitor to conduct an entire case from the first police station interview through to trial will be cut to just £206. Such cases may include several police interviews late into the night or in the early morning and extensive preparation. A report commissioned by the Law Society and Ministry of Justice highlighted that currently profit margins for legal aid firms in rural areas currently stand at -9% so the notion that any of the current firms could survive after these cuts is a fallacy. KPMG stated that they had “grave doubts” over the viability of the cuts and predicted that the duty contract system would collapse in London.

Almost every firm across the country will be majorly affected by these changes, even the biggest criminal defence firm in the country, Tuckers, has come out in opposition to the proposals, who had previously supported a reduction in the number of firms operating. Their boss Franklin Sinclair said that the response marked a “sad day and carnage will follow. Awful for all firms.” In addition to magistrates and crown court fees, there is a 30% reduction to fees for VHCC (Very High Cost Cases). The most staggering statistic that really makes apparent the fallacy of the government proposal is that under the proposed fee structure a junior barrister prosecuting a rape or serious child abuse will be paid just £14 per day.

The third part of the proposals by the government is the removal of legal aid for many members of the public. The LASPO Act removed many cases from the scope of legal aid including most of family law, but these changes will go much further to include a residency criteria and the removal from scope of prisoners. This is an extremely troubling change as some of the most vulnerable people, including those facing deportation or enduring isolation in prisons will not be able to have legal representation at hearings and will most likely lose their case as a result. This should be looked at in conjunction with the restriction of legal aid for judicial review, which I have written an article on previously.

The Response

There has been uproar from much of the legal community, including civil practitioners but the lack of media coverage or explanation has meant that many of the developments I have previously mentioned have gone unreported. After the consultation response there was a meeting in Lincoln’s Inn named aptly ‘One Bar, One Voice’ which enjoyed limited media coverage but the focus remained staunchly upon the payment of lawyers rather than the wider issue of civil liberties. At the meeting itself, anger and frustration of criminal practitioners was evident and one lawyer even suggested that there should be a privately funded prosecution of the Lord Chancellor for fraud and misconduct in public office.

A week later the Criminal Bar Association and other organisations announced a three-stage process of action. The CBA, led by Nigel Lithman QC, proposed that all members no longer accept ‘returns’, they withdraw labour on Friday 5 March and a further review of action to take place afterwards. A ‘return’ is a case that was previously assigned to another lawyer but he or she is no longer able to attend court due to another trial running late or being adjourned when they are already booked for trial. The barrister or solicitor that takes the ‘return’ will often conduct the trial for a substantially reduced fee or even for no payment at all. It is this policy of returns that keeps the criminal justice system going on a daily basis and it relies upon the good-will of criminal practitioners. But as stated in one of Nigel’s ‘Monday Messages’ the good will has run out, it is time to take a stand.

The Day of Action

Friday 7th March was the first full day that barristers and solicitors have withdrawn their labour from the courts and the march can only be described as a success. As many remarked during the speeches outside Westminster, it is a major achievement by the Lord Chancellor to unite both professions in a common cause, the only issue is that the common cause is fighting his policies. There were very powerful speeches from lawyers but the most rousing contributions were from non-lawyers who had first-hand experience of the need for good representation. There were contributions from Julie Sharp, mother of Neil Kinnock, and Paddy Craig, one of the Birmingham Six amongst others. As stated by Paddy Craig, were it not for legal aid he would be rotting in prison for a crime he did not commit. Several other speakers during the day of action highlighted how many people legal aid helps to protect and also how people can unwittingly end up being drawn into the criminal justice system and the real possibility that they will be treated unfairly by the police and prosecutors looking to secure a conviction. The rally outside Westminster and subsequent march were reported by the mainstream media but often in the middle pages of the paper format or some way down the websites. Since Friday there have been some editorials that hint at a realisation that there is more at stake than just the livelihood of criminal practitioners, but there is still a long way to go.

Where next?

The current events are building up a feeling amongst criminal practitioners, and others with an active interest in criminal justice, that we are in a ‘now or never’ situation. The campaign against these cuts is about a lot more than fees for lawyers; it is about protecting access to justice for the ordinary member of the public. As Julie Sharpe stated, when these cuts take hold, the average person on the street will not be able to seek advice from their local high street solicitor as they will no longer exist. Instead, there will only be a handful of providers who will have to cut costs significantly in order to be viable. If these companies are not able to spend the money on lawyers, quality will most certainly be affected and they will instead only be able to offer the most basic service possible. A gap will emerge between those who can pay for representation and those who cannot. As Dave Rowntree, drummer of the band Blur and a criminal solicitor, put it, “Justice for the rich, McJustice for the poor.”

There are some major dates coming up in the campaign against legal aid cuts. A preliminary reduction in fees of 8.25% for criminal solicitors will come into effect on 20th March and duty contracts will need to be applied for in April. The proposed privatisation of probation has roused NAPO (the National Association of Probation Officers) to organise a 2-day strike on 31st March and 1st April. This strike coincides with the birthday of our Lord Chancellor Chris Grayling on 1st April, no jokes about fools please. There have been suggestions that a judicial review of the actual proposals may be launched in light of the comments of Simon Hughes, Justice minister, that “99% of the government policy was settled” by time he came to office in December despite the fact that consultation responses had not even been considered by this time.

In relation to the reduction in fees for VHCC cases, there have been none conducted since the reduction came into effect on 31st December 2013. The fraud trial that came as a result of Operation Cotton has been delayed twice but the trial judge has determined that it will go ahead in 8 weeks’ time and has asked for the Attorney General to intervene as amicus curiae. An ‘amicus curiae’ which roughly translates as ‘litigation friend’ is a party who intervenes to represent an individual and help to defend them when they are unable to do so themselves. This is a major embarrassment for the government as the costs incurred by the Attorney General and the Ministry of Justice would be far higher than what it would have cost to keep the same VHCC rates.

The government’s approach does not seem to have changed as a result of the pressure. Indeed, on the eve of the march the justice minister conducted an interview in which he stated that the cuts were set in stone and the protest would make no difference. There is undoubtedly much more to come in this saga over cuts and the provision of legal aid. The major issue that the ‘Save UK Justice’ campaign has at the moment is that this is considered to be a protest solely by lawyers, but there is far more at stake here than fees. This is a protest against the gradual erosion of our civil liberties through stealth. Lawyers will always be an easy target; even Shakespeare was prone to criticising them. But what many do not appreciate when they watch Henry VI is that the carnage that ensues during the civil war and the complete breakdown of social order is a direct consequence of the undermining of the rule of law.

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Tagged: Justice, Legal Aid, Legal Business

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