Worrying trends - No. 5 ~ The attack on access to justice ~ a rich man's world and to the devil with the have-nots

Access to justice requires that each party to any form of litigation is able to properly put their case.  The modern legal system is complex and the law exceptionally so.  Even finding out the latest text of an Act of Parliament is very difficult since publicly funded legislation websites frequently lag well behind numerous amendments.  To understand how the courts have interpreted (or may interpret) an Act requires deep legal knowledge and experience.  True access to justice therefore demands professional legal representation of a standard appropriate to the difficulty of the case.  Clearly, the most complex cases require none but the very best lawyers.

Legal Aid:

In recent years, government has borne down on legal aid.  For criminal cases
in Magistrates' Courts, the individual seeking legal aid must pass BOTH a merits test and a means test.  In the Crown Court, means testing applies and many defendants may have to fund a contribution to their legal costs.  See Gov.uk Legal Aid and Ministry of Justice Legal Aid.  In civil cases, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will, from 1st April 2013, remove legal aid from many areas and limit it severely in others - LASPO Part 1 - The detail.   The paucity of legal aid in civil cases is one of Kenneth Clarke's two principal legacies to the legal system.  (The Justice and Security Bill seems set to be the other).

Not to be outdone by Clarke, Chris Grayling intends to bear down further on legal aid in criminal cases.   Grayling has now announced an accelerated timetable for the Ministry of Justice’s plans to introduce price-competitive tendering for criminal defence services.  There is to be an 8 week consultation on the government’s plans for change, with the proposal for price-competitive tendering as the main event.  Firms will have to bid against each other for large block contracts of cases.   As the Law Society Gazette indicates, this move will have potentially devastating ramifications for many criminal firms and for the independent criminal bar.

Recovery of costs in criminal cases:

The rule used to be essentially simple: costs followed the event.  Thus, the acquitted defendant could recover his costs fully.  Since October 2012, this is not the situation - see this post on The Justice Gap blog   This major change came about under the Costs in Criminal Cases (General)(Amendment) Regulations 2012.  As The Justice Gap argues: 'The Government brings the case and it is for them to prove your guilt. How can it be right that you have to pay for something they cannot prove? The risk here is clear, that the rich will be able to pay for the defence they choose and that the rest will not. It must be unfair that a wide proportion of people will have to think about cost rather than access to justice.'

Representation by QCs:

It was only a few weeks ago that Grayling also attacked the use of Queen's Counsel in many criminal cases.  The Lord Chief Justice recently spoke to Parliament about the benefits of QCs in certain appeals involving new legislation.  On 4th March, the Criminal Bar Association published an item about the The Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013.   These regulations seriously erode representation rights for defendants in the Crown Court.   The Association argues:

'You soon will only be able to instruct a silk in a murder if the case is in some way exceptional or if the CPS choose to instruct a silk.

You do not need much imagination to see how these rules could be manipulated to deny defendants the representation they deserve in serious cases. There is also a strong rumour being spread by those in power that the next move will be to remove the financial distinction between silk and leading junior.  The sugar coated pill that goes with this is they will re-distribute the saving to the junior Bar.  Believe that if you want, but know it will in fact destroy the Bar at the most junior level. As we have pointed out before the market place will be skewed, the silks will take the leading junior work, they will move down a level and so on and the real will be the most junior at the Bar. Both this and proposed Statutory instrument are real threats to the future and stability of the Criminal Bar. There is no consultation, no dialogue and no principled approach underpinning these measures. We are making our best efforts in trying to inform Parliament of the counter arguments and how ultimately this is not the right course.'

See also The Defence Brief 7th March 2013 - Huhne, Pryce and Grayling

Problems with legal aid:

One of the problems being encountered with legal aid arises in certain cases involving seemingly very rich individuals who have had their assets frozen.  The Lord Chief Justice referred to this in his appearance before the House of Lords Constitution Committee.   Lord Judge indicated that it would be worth considering whether some of their assets might be allowed for legal representation purposes.

Also, a number of cases such as Asil Nadir have coloured the public view of the whole legal aid system.

Inquests - The Royal Hoax case:

What of Inquests?  The Ministry of Justice has announced plans to improve inquests before Coroner's Courts.  This is to be welcomed but don't hold your breath about legal aid.  The family of Jacintha Saldhana have been refused legal aid for the inquest into their daughter's death - The Independent 7th March.  Jacintha was the nurse who dealt with the hoax call relating to the Duchess of Cambridge - The Guardian 7th December 2012.   No legal action is to be taken against Mel Greig and Michael Christian, the Australian radio presenters who made the hoax call - Daily Mail 28th December 2012

As Law and Lawyers pointed out - 18th September 2012 - legal aid is not generally available for representation at inquests because, the government argues, an inquest is a fact-finding process  - (see para. 21 of the Inquest Guide). Unlike other proceedings for which Legal Aid might be available, there are no parties in inquests, only the properly interested persons, and witnesses are not expected to present legal arguments. The coroner ensures that the process is impartial and thorough, and he or she should assist families to ensure that their relevant questions are answered.  This argument is unsatisfactory given that state agencies such as the NHS or the police will always have extensive legal representation at an inquest.   In some instances and subject to means testing, legal aid can be provided to an individual for inquests into the death of a member of the individual's family - see Legal Aid, Sentencing and Punishment of Offenders Act 2012 Schedule 1 Part 1 para 41.  In some instances, exceptional funding may apply.  A lawyer experienced in inquest work should always be consulted about legal aid.

The bleak and forbidding future?

For all the talk of 'fat cat lawyers' (e.g. The Sun), the reality is that legally-aided work is becoming an area in which many lawyers cannot afford to work if they are to make a reasonable living - see Left Foot Forward (25th March 2012) and Francis Fitzgibbon QC's Nothing Like the Sun blog..  This is particularly true for younger lawyers who have yet to build their legal practises.  None of this augers well for the longer term future of access to justice and the rule of law in our country - see the views expressed recently by Lord Neuberger.   In the fullness of time, it is also likely to lead to economic losses due to eventual diminution of that legal excellence which attracts litigants into England and Wales because of the high quality of representation available here.  In a word, the future is BLEAK:  a rich man's world and to the devil with the have-nots.

Yes, there are some problem areas and the earnings of a relatively small number of particularly capable lawyers have been high but the constant attack on access to justice must not be allowed to continue.  It is no use saying this is someone else's problem since none of us can know when we may need it and, if and when that happens, why should the best representation - (if any is left)- only be possible for the wealthy?

A particularly good post on the cuts is Karl Turner MP - Criminal Bar Association.  This is a MUST read on this subject.

ooo ----- ooo

Worrying trends No. 1 ~ Lawyers as Gate keepers

Worrying trends No. 2 ~ Open Justice Assailed

Worrying trends No. 3 ~ Upholding the Queen's Peace

Worrying trends No. 4 ~ Strip searches of the young

The Competitive tendering timetable:

April 2013 - 8 week consultation on further reforms to legal aid - including price competition in criminal legal aid

Tender opens in competition areas: Autumn 2013

First contracts go live: Autumn 2014

Further items:

The cuts to legal aid are also impacting adversely on the general availability of advice - The Guardian 11th March 2013.  Cuts to legal aid are forcing the closure of almost a third of Shelter's housing advice centres and compelling the Red Cross to abandon its assistance for family reunions, the organisations claim.  The decision to close down nine Shelter offices across England this month, with the loss of 80 to 100 jobs, is blamed on the withdrawal of funding for legal advice and representation for routine housing claims from 1 April this year.  The British Red Cross says the cuts will force it to withdraw expert help to those trying to bring their children into the United Kingdom to escape violence or persecution abroad and has condemned the government's economies as an assault on "family life". Citizen Advice Bureaux are also sending out redundancy notices.