As the Government attempts to reduce the UK’s budget deficit during this prolonged period of economic austerity, it was perhaps inevitable that the criminal legal aid budget would eventually come under scrutiny.
The Consultation Paper Transforming Legal Aid: Delivering a More Credible and Efficient System published in April 2013 has caused uproar from the legal community, as arguably the manner in which taxpayers’ money is to be saved not only reduces the legal aid budget but threatens the integrity and legitimacy of legal aid funded cases in the UK. Furthermore the Government is attempting to implement change at pace through secondary legislation which would not require a vote in the House of Commons. Any attempt to restrict the operations of justice without proper democratic accountability should raise a degree of outrage, and may go some way to explain the strength of feeling against these reforms, which can be perceived to be an attempt to sneak far reaching reform through Parliament. Unfortunately for the Government it has rather backfired.
The Ministerial Statement by Chris Grayling (Lord Chancellor and Secretary of State for Justice) at the beginning of the consultation paper argues that the legal aid system has lost credibility with the public, thus introducing the proposed changes will restore the public’s confidence in the system as well as reducing the cost of legal aid. The portrayal of wealthy criminal lawyers benefiting from taxpayers’ money while helping to keep offenders from justice is an image clearly designed to provoke public outrage in support of reform.
A more realistic take, as suggested by Sadiq Khan (Shadow Justice Secretary) during a House of Commons debate on the 27th June (columns 560 & 561), is that the Government is aware that the legal profession has a problem with its public image and this is being shamelessly exploited, when in fact criminal legal aid lawyers are, on the whole, not exceedingly well paid for their work. Furthermore the assertion that the taxpayer is funding the defences of criminals strikes a conflict at the very heart of the criminal justice system, that being that these people are innocent until proven guilty (at least of the crimes of which they are accused for those proceedings) and thus not criminals at the point at which legal aid is provided.
The Government claims that it can save £220 million a year through a series of reform covering prison law, judicial review, and criminal legal aid. I want to focus on two troubling aspects of the proposed reform, the limit on earnings to be eligible to receive legal aid in the Crown Court, and price competitive tendering.
If the proposals are made law defendants earning over £37,500 a year in disposable income will no longer be eligible to receive legal aid for Crown Court proceedings (with the exception of appeals from the Magistrates’ Court, or onward appeals to the Court of Appeal or Supreme Court). On the one hand it may be acceptable to ask those who can afford it to pay for their own legal representation, on the other there are concerns that this may not happen. The potential for defendants to represent themselves rather than pay thousands of pounds in legal fees, is one which may have unintended consequences in terms of finances and justice. The lack of legal expertise is likely to elongate cases thus increasing the cost of court proceedings, but it also runs the risk of defendants being wrongly convicted because they lack the necessary skills to challenge the prosecution’s evidence, and may not present themselves to a jury as convincingly as a professional advocate.
The introduction of price competitive tendering would fundamentally change the legal profession in the UK. There are currently approximately 1,600 providers of criminal legal aid services in the UK, the Government proposes to reduce this to 400 contracts which would be tendered for by law firms, with the contracts being awarded based solely on who offers the lowest cost to conduct the work. The implications of this are profound, first
and foremost it risks putting large numbers of small law firms out of business, as they will be unable to compete on a costs basis for large contracts, nor would they have the resources to carry them out. They would thus cease to exist and after the three year contracts expire would not be able to tender during the following cycle. Given its potential for damaging competition and small businesses this is arguably a rather un-Conservative policy, and would result in a lost generation of legal expertise which would be irreplaceable.
The reduction in the number of firms also raises the possibility of so called ‘advice deserts’ given the large areas each firm will have to cover. However, of most concern is the omission of quality from the tendering process, if only the lowest paying firms are awarded contracts then the quality of representation will diminish, the practice of criminal law will be a reserve for those to whom money is not an object, a hobby for the wealthy, and the profession will fail to attract the brightest candidates. Looking ahead one could certainly argue that the implications are as far reaching as the future judiciary, whose quality may be affected by a significantly reduced number of candidates.
Defendants would also be unable to choose their lawyer under the new scheme with one being assigned to them. This proposal does not make sense practically as many repeat offenders would have built a relationship of trust with their lawyers over a series of cases, and equally the lawyer would be aware of the client’s circumstances, by changing lawyer this relationship is lost and with it a degree of efficiency disappears from the system. One must remember in this circumstance that being guilty of a previous offence does not necessarily mean that the defendant is guilty of the offence with which they are presently
charged. The presumption of innocence should not be lost upon the commission of a first offence, and such people are still vulnerable to miscarriages of justice.
Aside from the practical argument, there is a concern that a defendant has a right to choose who they wish to represent them against the State, whereas a conflict of interest surely exists if the state appoints the lawyer charged with your defence. The issue of conflict runs much deeper; no assurances have been made that contracts will not be awarded to private companies who already have a stake in the overall operation of justice.
A hypothetical situation may arise in which the same company is responsible for: the client’s defence in court; their transportation to and from prison to court; their imprisonment (if held in a private prison); and their electronic tagging (surveillance) upon release on licence. To place peoples’ liberty in the hands of those who have an interest in their prosecution can under no circumstances be considered justice, and all necessary measures must be taken to ensure that this situation does not, and cannot arise.
One final issue of great concern is the fee structure outlined in the Consultation Paper. Under the proposed scheme defence lawyers will receive the same fee for a guilty plea as they would for conducting a trial. This indicates a grave misunderstanding of the criminal process, and of the additional work necessary to prepare for a trial. More troubling is that it means that a guilty plea becomes in the interest of the lawyer representing the client. Innocent defendants may feel pressure to plead guilty, given that a guilty plea will often result in a more lenient sentence and the change in fee structure suggests the system would no longer support the presumption of innocence. If this occurs the credibility of the legal system will be diminished by a lack of trust in the system, not increased through lower costs as the Government hopes.
I am not suggesting that legal professionals would place undue pressure on clients to plead guilty, but do we want a system which is built on a presumption of innocence, or as the proposals imply, one in which defendants are presumed guilty. The legal system should not be immune to Government savings, but to fundamentally alter a system which will have a negative impact on the commission of justice, in order to make comparatively small savings, is a mistake that must not be allowed to be made.