The proposals put forward by this consultation are a disgrace and all those involved should be thoroughly ashamed of this attempt to destroy a criminal justice system which is the envy of the world. To do so by secondary legislation, without daring to put the matter before Parliament, is craven cowardice. To do so within a ridiculously short timetable, having only allowed interested parties eight weeks to respond, indicates that this consultation paper is a sham designed to add a veneer of respectability to what, in reality, amounts to the looting and pillaging of a national asset. If these proposals are implemented then neither the Ministry of Justice nor the Lord Chancellor deserve their titles.
These proposals threaten the independence of our system of justice and open the door to serious conflicts of interest between those needing representation and those who are meant to protect their interests. Garden Court Chambers will continue to fight against this concerted attack on the Rule of Law, and the principles of equality of arms and justice for all, until they are defeated.
We adopt and endorse the thorough, detailed and persuasive submissions made by the Criminal Bar Association (‘CBA’). Our response should be taken in addition to their criticisms and challenges.
The entire consultation is flawed and misleading, beginning with its title. The title suggests that the proposals are designed to increase credibility in the legal aid system. In the Ministerial Foreword, Mr Grayling states:
"Unfortunately, over the past decade, the system has lost much of its credibility with the public."
In an interview with the Law Society Gazette, Mr Grayling failed to produce any empirical evidence to support the claim of a loss in credibility, referring instead to having received "lots of letters and e-mails" from people concerned about legal aid entitlement. It is not made clear whether or not these ‘letters’ relate to criminal legal aid - or whether they are written by people fully informed of the relevant facts.
Contrary to Mr Grayling’s assertion, a recent poll demonstrated that seven out of ten members of the public feared that the legal aid cuts proposed in this consultation would lead to miscarriages of justice.
If there are complaints about legal aid they are undoubtedly provoked in part by the Ministry of Justice’s cynical trick of compiling figures for the ‘highest earners from legal aid’ and releasing this information to the press. These figures ignore or bury the true position:– that these fees accumulate for many years work, carried out late into the night and over weekends, by highly skilled individuals dealing with the most complex cases; that the figures include VAT and take no account of the overhead expenses of the self-employed practitioner, including the need to make their own pension provision, and that those entering the provision have to incur significant qualification costs on top of the now astronomical tuition fees. The reality is that the vast majority of those working for legal aid rates struggle to earn a modest living.
Any comparison with commercial Legal Aid incomes would show a vast differential and it would be foolish not to recognise that creating such huge disparity will in future discourage many of the brightest and best from practising in the Legal Aid system.
The Ministry of Justice fails to explain to the public that legal aid spending on criminal cases has already dramatically fallen from £1.34 billion in 2003/2004 to £1.08bn in 2011/2012, despite a growing population and the creation of a vast number of new criminal offences. The Legal Aid Agency’s business plan for 2013/2014 indicates that the cost by that stage will be £941m. Given the inevitable delay in any savings working their way through the system, further savings are already likely. By arbitrarily imposing further reductions the Ministry will push the system past its breaking point.
The suggestion that these cuts would lead to increased efficiency is also wrong and, at best, fundamentally naive. Criminal defence solicitors and barristers already provide extremely good value for money to the tax payer.
The only reason the criminal justice system does not collapse entirely is down to the goodwill and hard work of the defence community who chase the Crown Prosecution Service to carry out their duties, who work through the night to draft crucial documents and who prepare cases thoroughly to avoid delays and unnecessary appeals.
The savings to the tax-payer suggested by the consultation paper take no account of the cost of an increased number of wrongful convictions and an increased number of people sent to prison unnecessarily. As well as the cost of keeping a person in prison, the price includes the cost of removing a potentially productive member of society to a place where they can no longer contribute to the economy, the cost of tearing apart families and increasing their reliance on the State for support and the cost to society of further offences being committed by the true culprits or by minor offenders dragged unnecessarily into the prison system and further away from rehabilitation.
The real reason for these proposals is nothing to do with ‘efficiency’ or ‘credibility’. The real reason is to cut public spending regardless of the consequences on society or individuals. An indication of the Lord Chancellor’s thought process is given by his response to a question in the House of Commons on 21 May 2013. When asked about these proposals he responded:
"I am trying to take those decisions in the way that provides the best balance between justice and value for the taxpayer."
We do not believe that any taxpayer, if asked, wants a justice system that is unfair and benefits only those with a high enough income to pay for justice. Furthermore, justice is not a commodity to be stacked up and weighed in the balance like a tin of beans. It is an aim in itself, to be striven for - not to be parcelled up and divided amongst the rich.
Finally, what is most striking about the proposals is their economic illiteracy. Even under the pretext of the need to cut public spending, the proposals amount to a false economy. The damage which is likely to be done to the fabric of the criminal justice system will prove far more expensive to repair than the savings which the proposals intend to achieve. The effective working of the criminal justice system depends on the good-will of thousands of hard-working professionals. The relentless dumbing-down of the system destroys that good will and will lead to an error prone, second rate criminal justice system.
This leads to the conclusion that these proposals are more driven by a blind adherence to the philosophy of privatisation than by a rational analysis of their cost/benefit. Ironically, measures which appear to be designed to place legal services in the hands of large commercial corporations can only be achieved by eliminating competition for the provision of a quality service.
The underlying philosophy appears to be that those who find themselves in contact with the criminal justice system are not deserving of a high quality service and are no more than fodder for the generation of corporate profit. That aim is not compatible with the interests of justice.
“Justice is itself the great standing policy of civil society; and any eminent departure from it, under any circumstances, lies under the suspicion of being no policy at all.” Edmund Burke
These are the opening observations of the Garden Court Chambers Crime Team's Response to the Ministry of Justice Consultation Paper: ‘Transforming Legal Aid: delivering a more credible and efficient system.’ The Response can be read in full here.
The Crime Team has a particular history and expertise in representing defendants in public order and terrorism trials. Members of Chambers have been instructed in miscarriage of justice cases including the Guildford Four, Birmingham Six, Derek Bentley and Sam Hallam.