The Case for the Defence

There is much current debate about the size of the Legal Aid bill footed by the taxpayer. In an episode of typical disingenuity the Lord Chancellor has recently expressly stated that the public have the choice between Legal Aid and the NHS, that the £220 million that he looks to save would be spent protecting the spend on healthcare.

Now the point could be made that the Legal Aid budget has already contributed much by way of cuts with £200 million already disappearing from last year’s spend in this year’s projected budget. Or that slashing 20% of the criminal Legal Aid spend would not even cover one day of the nation’s spend on the NHS. Or that if we were to cut money to the NHS you would cut the spend on non-essential workers (lets say money spent on actors, hairdressers and leadership training courses) before you cut the income of the doctors and nurses who provide the quality of service at the coal face.

However I would suggest that Legal Aid is as important to the provision of welfare in this country as the NHS is. It is about time that the Lord Chancellor recognised this. Until he does he cannot perform the key function of his office. The provision of welfare is all about the provision of a safety net in times of need. Criminal Legal Aid falls exactly in to this category. People are provided with Legal Aid in criminal cases when the State chooses to prosecute them. Anyone provided with criminal Legal Aid would prefer not to have to need it, in so much as they would rather not have been arrested in this first place. So in criminal cases it is not the accused who goes out seeking Legal Aid,it comes to him.

One of the problems that the legal profession face in firmly establishing the credibility of Legal Aid as part of the safety net provided to all taxpayers is the notion that it is only criminals, often repeat offenders, who benefit from its provision. I for one would hesitate to introduce blameworthiness into the provision of welfare. Should a smoker be provided with free cancer treatment? The obese with diabetic assistance? Of course they should. One of the difficulties is persuading the public that prosecution, like ill health, is something that could befall them as much as those who very obviously are the authors of their own misfortune.

Let me give you some examples of the way in which it is not just the guilty that find themselves in need of Legal Aid. These are actual cases that came before the courts in Manchester in recent times. The first was well publicised at the time (see here). I know the defence advocate in the case. A woman in Greater Manchester was subjected to the horrific ordeal of rape. This involved her being raped as she walked home by a man unknown to her. The police collected samples from her that could be tested for DNA in a hope to identify a suspect. A positive result came back. A man in the South West was identified. He was arrested, denied the offence and denied he had ever even been in the area. He was charged with rape and remanded in to custody. He was provided with the assistance of a solicitor and a barrister. There was no other evidence against him but it would be presented to the jury by the prosecution that the presence of his DNA in intimate samples taken from the victim could mean only one thing – his guilt.

The case was prepared for trial. Other evidence obtained showed that the defendant was in the South West the morning following the offence but such as still gave him a window of opportunity to commit the offence. A combination of enquiries made by the defence and the officer in the case being concerned by this aspect of the case led to a re-examination of the scientific evidence in the case. It transpired there had been a huge error. A tray used in the laboratory that tested the sample had been previously used in a DNA test that related to a relatively minor offence of violence in which the defendant was a suspect. This led to his DNA remaining in the tray and contaminating the sample from the victim. His innocence was only discovered days before his trial was due to start. He was an innocent man who needed Legal Aid.

A further example happened in the case load of the same defence advocate. A woman worked in an office. One of her colleagues got married and went on her honeymoon. Sadly whilst she was away the colleague’s house was burgled. A games console was stolen in the course of that burglary. The games console had been in its original box but the burglar had removed it and left the box behind. A scene of crime officer provided a statement that stated the box had been tested for fingerprints and a print matched the fingerprint of the defendant, the woman who worked in the office of the bride.

This came to light because the woman in the office had, when she was much younger, been involved in an argument in the street which had led to her arrest and caution for a public order offence. Her life therefore had not been completely blameless but that was the only transgression. That meant that the police therefore had her fingerprints on record and the match was made. She denied the offence, denied that she had ever been to her colleague’s house, had never handled the cardboard box and could not account for the presence of her fingerprint.

Once again this case came to the Crown Court. One can easily imagine that everyone involved, her lawyers and the CPS, thought that there might be a guilty plea. Fingerprints are unique. The presence of a fingerprint in a dwelling with no innocent explanation is clear evidence of the person’s involvement in the burglary. However she pleaded not guilty and the case was adjourned for trial. Legal Aid provided her with lawyers and with funding to have the exhibit examined to double check it was her fingerprint (such mistakes being unheard of but it required independently verifying). Those investigations discovered that when the test for fingerprints was undertaken a number of items were examined under the same reference number. So whilst that reference number did relate to the console box it also related to a good luck card that the victim had received from her colleagues at work….

Those two cases are examples where the independent scientific evidence pointed strongly at the guilt of someone entirely innocent of the charge. As an aside it must be a worry what may happen in such cases in the future if the advocate is under financial pressure from an employer to deliver the more lucrative guilty plea. However the vast majority of taxpayers would be comforted by the fact that their DNA would not be floating around labs or that youthful indiscretions had led to their fingerprints being on a police database.

So let me move on to the next illustration. A hard working man of entirely good character worked as a satellite television engineer. He installed a new box in the house of an elderly couple. He asked to use their toilet. When he had left the woman of the household discovered that a valuable necklace was missing from the top of her bedroom cabinet where she had left it that morning. The police were called. A thorough search did not turn up the necklace. Both husband and wife gave statements that the necklace was on the cabinet moments before the satellite engineer arrived. The door to the bathroom was next to the door of the bedroom. Moments after he left they discovered it was missing. The man was arrested. He denied the offence but was charged with theft. Again he was provided with Legal Aid for representation at the Crown Court. No doubt he was relieved to be provided with such assistance. And that was assistance provided to an entirely innocent man. Decorators found the necklace behind a radiator in the elderly couple’s bedroom a few weeks before the trial. A man who had never been in trouble had simple been in the wrong place at the wrong time. Circumstances conspired against him. Should he have faced those circumstances alone? Should he have paid for his own defence? Should he have had a lawyer assigned to him by the state of only “acceptable” quality?

My final example is a man I represented. He was a retired engineer. Later in life he and his wife had a daughter. It would be fair to say she was the apple of his eye. She went to university. Whilst away from home she met and fell in love with a man. Sadly he was entirely unsuitable. Not just in the way that many parents may find a child’s choice of partner not what they had hoped for. This man was just bad news. He introduced the daughter to drug use. He assaulted her. After many anxious months the daughter had the sense to leave the boyfriend and return home. The parents were overjoyed to have their daughter back and set about repairing the damage.

The boyfriend would not give up. He tried contacting the daughter. He began turning up at the family home. The father would bar his way and, after often heated discussions, would send him on his way. On one such occasion the father pushed the boyfriend. The boyfriend produced a knife. A tussle ensued. The father disarmed the boyfriend but the boyfriend kept on coming. In the doorway to his house and fearful of what may be about to happen the father jabbed the knife in to the thigh of the boyfriend. No doubt surprised by the level of resistance the boyfriend hobbled away. Straight to the police. He made a malicious statement that told of how the father had pulled a knife on him and stabbed him. The police visited the house and discovered a knife with the boyfriend’s blood on it. Remarkably the father was charged. He had a trial. He was acquitted. All due to the safety net provided by Legal Aid.

So whether it be by scientific negligence or paperwork error, whether it be by a genuine and honest belief mistakenly held or malicious falsehood innocent people can find themselves facing a criminal court. It matters not whether they have never been in trouble before. Of course such examples are at the extreme end of the spectrum. For every one like that I have witnessed I have represented dozens of repeat offenders who are guilty. And there are those in between. People who would never have thought they would be before the courts but end up there because of a combination of circumstances, sometimes because they are guilty, sometimes because they have done something wrong but not what they are charged with or sometimes because they are unfortunate to find themselves wrongly accused of crime.

The point is that democracy requires the efficient and proper prosecution of those guilty of crime and protection for those falsely accused. The method of determining which category an accused falls in to requires them to be represented. It is not possible before the process commences to determine those who are deserving of assistance because they are innocent and those that are not because they are guilty. That is why we all have an interest in maintaining an effective provision of criminal Legal Aid. Like all safety nets you hope you never fall in to it. Should the unexpected happen you would have every reason to be grateful that it catches you. The professions can work with the Lord Chancellor to provide further savings. But he has to place the preservation of this vital aspect of society at the forefront of his approach. Not the current attitude of seeking to turn public opinion against the system and those toiling within it. Legal Aid is something which the nation should be rightly proud of. I believe that they are.

If you agree that criminal Legal Aid is a vital component of a civilised democratic society please sign the e-petition here. Thank you.

3 thoughts on “The Case for the Defence

  1. Pingback: Save UK justice: the blogs | ilegality

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