In the shadow of the death of Margaret Thatcher the Government quietly announced its latest consultation paper on the future of legal aid. It has largely passed by unnoticed. The argument surely is won. There must be public service cuts. The country is bankrupt and we have to save money somewhere.
Where better than from legal aid where greedy fat cat lawyers leech of the worst excesses of humanity and grow fat on the proceeds?
The usual pattern when the government are after criminal lawyers is that sometime around the announcement the best paid legal aid lawyer list will come out, naming the six best paid lawyers who have raked up massive bills. These sums are usually vast. They are usually the kind of sums that 98% of the profession will never get close to earning. The public is outraged, assumes we all earn the same and if the government is lucky there will be a case that acts as a lightening rod. This time they were very lucky. The Philpot trial was nearing its conclusion and his QC Anthony Orchard came in for real abuse on the comments section of the Daily Mail for his efforts on Mr. Philpot’s behalf. There was no mention that for most of his career Anthony Orchard QC has prosecuted at the very highest level. Mainly murder and terrorist cases. ‘Leading prosecution barrister defends guilty man’ doesn’t quite have the same ring.
Let me here confess to a vested interest. I am a criminal barrister. I have been doing the job for 16 years. I am involved in mainly serious cases. Very often, but not always sexual offences. I prosecute as well as defend. In the course of my job I have cross examined the very young (4), and the very old (98). I have prosecuted people in their 90’s for grave offending, people with Alzheimer’s, teachers, priests, doctors and mothers. I have also defended the most unlikely people, for example on more than one occasion consultant surgeons. I defend women and children. They are always in serious trouble. They are not always guilty.
However, this is not just about money. Not this time. It is about ideology.
This time under the guise of legal aid cuts the Government is in fact undertaking a radical overhaul of the criminal justice system. But no one has grasped this fact and when they do realise what has happened it will be too late. The scheme proposed is deeply flawed. Often illogical and in the long term unlikely to lead to the savings it seeks, but in the process decimating the criminal justice system.
A criminal Justice system says a great deal about a country. It speaks volumes about how a society treats its victims, those who through no fault of their own find themselves face to face with the state possibly at one of the most traumatic times in their lives. It also tells us a great deal about how a society treats those who trespass against the laws that impose order on our sense of what is right and wrong. Britain’s legal system has always had an outstanding international reputation. But It is this that system Grayling, an ex TV producer, seeks to dismantle reducing it to little more than a poor imitation of the American system. Of note, evidence shows that the American system has resulted in appalling representation with large cartels forming to force up the price of legal representation.
Legal aid cuts need to be made. I also accept that there are a small minority who have done very well out of the legal aid system. Most of us are as irritated by this as the public. But you might be surprised to know that more than 90 per cent of the legal aid budget is spent on just one per cent of cases, usually complicated bank fraud cases. The banks don’t prosecute, the state does. They the banks use the conviction for their own purposes. Interestingly the government are not going after these cases in any meaningful sense. The bar has argued a levy should be imposed on the banks. To date this has not happened.
But Rape, child abuse, domestic violence burglary and homicide cases which in fact attract less than 10% of the budget are again at the cutting edge of Government attacks.
The Government want to introduce a scheme called best value tendering. You remember that? Works really well in the provision of care of the elderly and those with dementia. Liverpool pathway ring bells? In 2012 it was revealed that just over half of the total of NHS trusts have received or are due to receive financial rewards to hit targets associated with the use of the care pathway. These payments are made under a system known as ‘commissioning for quality and innovation’ (CQUIN) with local NHS commissioners paying trusts for meeting targets to reward ‘excellence’ in care. In effect the system rewards speedy death. There is no financial reward for care, compassion, skill and nurturing.
Best value tendering (BVT) was also responsible for the G4S fiasco at the Olympics and at present it is causing chaos in the criminal courts where interpreters who cannot interpret are provided by Capita. The House of Commons Justice committee described this outsourcing as ‘nothing short of shambolic’ and they questioned whether the deal was ‘financially sustainable’. My own experience involved a horrible Robbery trial which was abandoned midway through as the interpreter was so bad that no one knew what was being said by the victim. Straight away the costs doubled.
So to criminal legal aid. The government want to reduce the 1600 firms that provide legal aid for criminal cases to 400. The contracts will be tendered for and the lowest bid will win. Those in the running include G4S, Tesco and the haulier Eddie Stobart. A lack of Legal training or knowledge is no bar to running one of these contracts. The government is opening these contracts out to alternative business structures (ABS) who it is unlikely are motivated by the same idealism that still drives most lawyers.
Under these plans the defendant who can no longer afford to pay for their legal advice will be assigned an advocate. Quality of representation does not matter, just who can do it cheapest. They have no choice who will represent them. Therefore if Mr. Smith is caught for shoplifting, charged and bailed, then goes out and does the same thing the next day. He cannot say I will have my usual solicitor. If he did that solicitor would attend the police station, do the work and the whole thing would be billed as one case. Under the new scheme another solicitor would be called attracting a whole new and separate fee thereby doubling the cost in one stroke. In theory when the case went to court there would be two advocates there doing the one job.
The dangers are obvious. It means that G4S and Eddie Stobart will be running crown court trials. In order to maximise profit you will be provided with a cheap advocate who will do the job cheaply and quickly and the profit will make its way into the G4S CEO’s bonus.
What might that mean for you? Well the government via the Daily Mail has done a brilliant PR job. People assume that it’s about a small minority of recidivist criminals and it has nothing to do with them.
But imagine you are in your car. Something distracts you. Maybe the children are fighting or you are changing the radio station. You may be distracted for 10 seconds. No more. In that short time you hit someone on a bike who dies. You are charged with death by careless driving. That is all it takes. If convicted you will go to prison. Who would you want to represent you? Someone who knew what they were doing or someone who did it on the cheap?
Even worse it is your husband, your child who is killed in such circumstances. The case goes to trial. As things stand you can expect that the case will be dealt with people with the skill and experience to deal with such a case with care and thought. A prosecutor who will do the job well. Will be conscious of the huge emotional investment people have in this trial. These fundamental rights and expectations are at stake.
If the system is flooded with inexperienced advocates just out of law school who will do the job for peanuts there will be no work for the independent criminal bar. They would be no financial incentive for the large conglomerates to use them when their fees will cut into the CEO’s bonus.
But the bar also provides the prosecution teams in this country.
Consider this example. Your teenage son is accused of raping his eight year old step sister. It does happen and it happens in regular middle class homes. What quality of representation might you want for your son? Perhaps most importantly you would want a child to be cross examined with care, skill, judgement and compassion. These things take years to learn. A colleague of mine recently cross examined a child in seven minutes. The inexperienced higher court advocate co-defending with him took an hour.
But say you were unhappy with the representation you were given at the magistrates’ court you could pay privately. This new regime is likely to lead to justice for those who can pay and little or no justice for those who can’t. But the irony is that If you did pay privately you are unlikely to get any of your money back if found not guilty. So in effect you will pay for the state to prosecute you even if you are not guilty.
You might get your legal aid contributions back but again only if found not guilty. You may assume that would be the cheaper route. But legal aid contributions can be vast. I know of one case where an elderly man of good character is paying £6,000 a month. It is something of a game of Russian roulette.
What the government fail to understand is that he pool of advocates who prosecute and who are committed to prosecuting well, will go. Experience tell us that victims of crime find the experience of going to court very distressing and poor advocacy can only exacerbate these problems.
The prosecution of sexual offences and domestic violence cases rely heavily on the bar as the police and the CPS are so under resourced. Lawyers often do work for which they are not paid and which in theory does not come under their remit. But in order that a case is done properly we do the work that is necessary.
These cases are enormously hard to prosecute to conviction as jurors still bring huge myths about rape into court. The government’s new system rewards speed. But some cases just cannot be done quickly. Years of sexual abuse cannot be reduced to an hour. There are people who think it can. Judges routinely tell advocates to chop at the evidence of rape victims and child sex abuse victims down to an hour notwithstanding that it means detail is eviscerated in the process.
There is also talk that if this Government gets a second term they are going to turn their attention to restricting the right to Jury trial. Martin Niemoller’s famous verse ‘first they came…’ resonates here. It has been used widely in articles about the Communist government in China who have embarked on an open season on lawyers who are engaged in human rights reforms. Prosecution. Imprisonment and being held incommunicado are rife. But it is worth recalling how Niemoller’s verse concludes:
‘Then they came for me, and there was no one left to speak for me’.
If this government has its way this could become a reality here.