A plea to politicians

The Coalition Government have launched a consultation on 9th April 2013 to last until 4th June 2013 entitled “Transforming Legal Aid”. The document makes it clear that the purpose of the consultation is to consider the shape of a procurement scheme based on Price Competitive Tendering for criminal Legal Aid. It makes it clear that the principle of PCT is not for debate, simply how to implement it. The stated intention is to save £220 million. The document indicates that the intention is to reduce the current number of providers of criminal representation from 1600 to 400. The right of an individual to chose their representation will cease. Clients will be allocated to the lowest bidder for the contract for legal services with scant regard to competence or dedication to quality advice.

The document also introduces proposals to alter the fee scheme for advocacy in the Crown Court. The current rates payable for advocacy in the Crown Court were set by an independent review (The Carter Review) in 2006/7. Since that time the level of remuneration has been reduced by something approaching 25%. The current proposals seek to reduce the levels of remuneration by a further 20%. There are a number of detailed proposals but some of the more noteworthy suggestions are that fees are tapered to reduce the daily attendance fee on trials. This is based on the unfounded idea that it is the advocates who make trials overrun rather than competent advocates in fact ensuring the process is efficient. This tapering of fees means that counsel will be expected to attend court for £14 on day 40 of certain trials. We see no profession in the country who face such a disproportionate cut in income due to the austerity measures applied by government.

This is an important issue in which politicians have to take the lead. One can readily understand that there is little electoral currency in being seen to be on the side of criminals. However the dismantling of the criminal justice system is of great social significance. The electorate as a whole would wish to see dangerous criminals safely convicted. The latest proposals will drive talented lawyers and advocates away from the field of crime. This diminishes the pool of skilled advocates in a position to prosecute cases such as Shipman, the Wests and the current case of Cregan. The safety of those convictions rely upon them being the result of a trial which is an equal contest between well prepared and highly competent advocates. The lessons of America where there are scores of appeals based on inadequate representation must show us that the costs caused by such appeals can only escalate where the state provides such a base level of defence representation.

There are many reasons why this is an issue which will affect the citizens of this country beyond the impact upon them as potential victims of crime. By way of example, if the current proposals are adopted there will be 37 contracts for the Greater Manchester area. The consultation document hopes that the economies of scale produced by reducing the number of providers will lead to cost savings. There is no evidence to support the view that this will ultimately save the Government money. This means that those which are successful in securing such contracts will not have local offices. Should the solicitors currently providing criminal representation on the high streets of the towns and villages in Greater Manchester not succeed in securing a contract then anyone looking for such advice will have to travel to the office of those that do. It is highly unlikely that such contract holders will open satellite offices as this extends their overheads. High street solicitors losing their ability to undertake publicly funded criminal work will significantly impact upon their viability. It may well be the case that a firm of solicitors will undertake a wide range of work in the community ie Family Law advice, advice as to wills, conveyancing, employment advice and personal injury claims as well as criminal advice. It is often the case that these areas mutually support one another and that the removal of one source of income will adversely affect the overall economic sustainability of the particular firm. There will be redundancies and there will be firms that close. Some high streets will become deserts for legal advice with no local access to justice or any assistance.

One of the things that surprised me when I entered the profession was the number of people of good character that we represent. These are often people who are hard working, decent individuals who would never have imagined they would be before a criminal court. Some of them have made errors in their life which lead them to appearing in court. Others are there by a coincidence of circumstance. Some may be there as a result developing mental health issues. Some may be entirely innocent of all wrongdoing. One thing is clear, ask them if they had ever imagined in the past that the would require the safety net provided by publicly funded criminal defence then they would have said “no”. Ask them the further question whether they are glad they did and we are sure they would be eternally grateful.

It is not far fetched that one of your constituents could within the next twelve months have every cause to be so grateful. On their journey home from work one night they may be travelling at 37mph in a 30 zone. They may not realise it is a 30. They may just be speeding, as many otherwise law abiding people do. In addition to their slight misdemeanour of speeding they may be momentarily distracted by thoughts of work that day. In that split moment someone walks in front of their car without looking. Tragically the pedestrian, albeit substantially at fault, dies. After many months of considering expert reconstruction of the accident including calculations as to speed the Crown Prosecution Service decide to charge that motorist with death by careless driving. Your constituent, finding themselves in that position would positively demand that he has a free choice of lawyer to represent him/her. He would not want a lawyer allocated to him based on a roster. He would not want that lawyer to have their advice coloured by the fee that is being paid. He could not afford to pay for the costs of a Crown Court trial including the instruction of experts from his disposable income. However the State are proceeding against him and seek to secure a conviction which may lead to his disqualification from driving and, more devastatingly, his imprisonment. Such a scenario is not fanciful. Legal Aid is not the same widespread safety net as the NHS or benefits, it only costs a fraction of those services, but it is one of the vital safety nets which provides valuable assistance to members of the electorate who may not appreciate they will ever have to rely upon it.

This is why it is an area where politicians have to take the lead. It should not be a debate clouded with rhetoric about fat cats or human rights lawyers complaining that prisoners should have softer mattresses. Members of Parliament should do all they can to protect one of the cornerstones of our democracy. It would be a national disgrace if we were to allow the criminal justice system to disintegrate before our very eyes.

The proposals concerning fees will drive people away from criminal advocacy. These are highly skilled practitioners with skills which transfer readily in to other areas of law. The Government needs to be very wary of the talent drain that these proposals will produce. Additionally the Bar has strived for many years to attract candidates from a variety of backgrounds. There was a time when the Bar and therefore the judiciary was populated by white public school educated males. These proposals will impact adversely on the diversity of both professions.

The introduction of PCT will have a devastating effect on access to justice. Not just for criminals but for those wrongly accused of crime and those seeking assistance in other disciplines. It will produce individuals and corporate entities who are only involved in the administration of justice in order to maximise their profit. The reduction of the number of providers will simply place certain organisations in a position of dominance in the market place which will only serve to provide difficulties in controlling costs for future generations.

These fundamental changes can be introduced without the need for primary legislation and a debate in Parliament. No one should stand by and let this happen to a justice system of which we are rightly proud.

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