LEGAL AID CAMPAIGN:THE STORY SO FAR AND HOW THE FIGHT MUST CONTINUE

 Introduction

On 5^th September 2013 the MOJ issued a second consultation on Criminal Legal Aid, effectively in conjunction with the Law Society. I have been heavily involved in the legal aid campaign on behalf of the London Criminal Courts Solicitors Association and have sat on the Law Society Criminal Practitioner groups sub committee. As well as various Law Society representatives the meetings are attended by the Criminal Law Solicitors Association, the Big Firm group, the Society of Asian Lawyers, London Criminal Courts Solicitors Association, the Criminal Bar Association and the Bar Council.

The purpose of this report is to set out the history of the campaign, discussions and negotiations as they have progressed. I am keen to be open and transparent about what has occurred. For my part I am a partner in a medium sized firm and like everyone I want my firm to survive, I have no desire to see hundreds of firms go out of business and no desire to see the independent bar decimated. I supported the Law Society version of consolidation, not because I am ideologically in favour of consolidation, but because it seemed the gentlest form of consolidation which would allow firms effected time to restructure. Additionally, the extent of restructuring needed was substantially less than in other models. It seemed a far cry from the PCT plan. I opposed the severing of the link between duty solicitors and slots.

The campaign pre close of Consultation on June 4^th 2013

On May 22^nd 2013 at Friends House, at an event hosted and arranged by the Criminal Law Solicitors Association, the audience voted not to negotiate with the MOJ until PCT had been removed and client choice retained.

The venue of Friends House was full of angry, determined lawyers, united against the MOJ proposals.

In the morning there had been a demonstration organised by the London Criminal Courts Solicitors Association opposite the House of Commons. Many attended and the demonstration captured national press interest with high profile speakers and a coffin carrying away our justice system. We all appeared to stand united against these proposals

On 4^th June 2013 the consultation concluded with a huge demo organised by Save UK justice outside the Ministry of Justice. There was considerable press interest, roads were closed and many attended to express their opposition to this assault on our Justice system.

At this point there was a huge momentum against these proposals, which were criticised by many MPs, judiciary and other agencies within criminal justice.

The MOJ were continuing to get criticism in respect of other contracts they had agreed, such as the interpreters. There were 16000 responses to the consultation; an incredible amount.  Large sections of the press gave sympathetic press coverage.

The Justice Select Committee were hearing evidence on the proposals. Grayling seemed to be in trouble, he frequently delivered clumsy interviews to assist our campaign, such as “not bright enough to choose your lawyer” (too thick to pick), ridiculous comparisons with NHS. We were even finally dispelling the myth of the fat cat lawyer.

After the consultation closed:

The Big Firm Group submitted an alternative proposal shortly after the consultation concluded. As far as I am aware, whilst other firms or individuals may have submitted alternatives when responding to the consultation, this was the first time a body /group representing the interests of any part of the defence community submitted an alternative proposal to this consultation. I have not been shown the proposal despite requests but understand that the proposal opposes PCT and removal of client choice. Its premise was that for firms to absorb cuts there had to be substantial consolidation, the extent of which should be linked to the level of cuts. I understand no figures were mentioned but one member suggested there should be a maximum number of contracts per area.

Of course it is right and proper that any group representing any interested party in these proceedings is entitled to submit an alternative proposal. The Big Firm Group (set up to protect the rights of large firms) appears committed to a substantial reduction in the number of firms or entities delivering criminal legal aid. Their paper states (as I understand it) that any reduction of prices must be linked to substantial increases in volume of work (economies of scale) but that means far less suppliers. Bearing in mind where the campaign was at that point I felt  that it was a mistake to be offering compromises or alternatives , effectively acknowledging that there would be cuts and that there was a need for consolidation.  Arguably no such campaign before in terms of legal aid had been that successful, there seemed to be unity, the MOJ road shows had been a PR disaster for them, we were winning.

The BFG were open with the Law Society and the practitioners groups that the proposal had been submitted although only a privileged few were privy to the details. The Law Society, for good  reason, was committed to maintaining unity and also felt there was urgency in submitting their own alternative so that the MOJ had more than one alternative to consider. It is probable that the Law Society would have felt it appropriate to submit an alternative regardless.

The terms of the alternative was discussed at practitioner group meetings. There was not agreement on all matters. There was detailed discussion re timing of the submission as Grayling was due to appear before the Justice Select Committee the following week. The Law Society were keen to go ahead as soon as possible and submitted their alternative proposal. Grayling used the submission and his appearance before the Justice Select Committee to announce that client choice will be retained and to praise the Law Society for their engagement and criticise the Bar for their non -engagement.

The Law Society took a battering from many solicitors and barristers. Of course at that time little mention was made of the Big Firm Group submission which was of course a relevant factor in their submission. There is no doubt that the Law Society alternative supported consolidation, but on a fairly gentle and slow basis, which was a far cry from the effects of PCT ie a maximum of 400 firms.

The Law Society had conducted a survey of its members which was poorly responded to.

We were effectively at the beginning of the summer and meetings went on throughout the summer between the Law Society and the MOJ and the Law Society and the Practitioner groups listed above. It became clear that the MOJ were interested in a 2 tier approach, ie an own client contract and a duty solicitor contract. This was opposed by all practitioner groups. It is hard in fact to recall an issue where there was such consensus over all the meetings.

The Law Society made it clear that they felt the MOJ was heading in the above direction but appreciated that it was opposed.

The last practitioners meeting on 29^th August 2013 was cancelled. It is likely at that point the Law Society were in discussions with the MOJ about the new proposal.

Then of course last week on 5^th September came the joint MOJ  and Law Society announcement about the new consolidation.

The Law Society clearly felt that the agreed proposal was the best that could be achieved and that PCT was still on the table. This was a legitimate view and many people at the Law Society have worked hard to do their best for the profession and have not deserved the criticism they have got and will continue to get.

However it seems to me that the starting point is the CLSA conference on 22^nd May when it was agreed that we would not negotiate until PCT was off the table. There were 1000 people in that room all of whom agreed with the resolutions passed.

What would have happened if all groups/Law Society etc had maintained the above line and said we want to engage on alternatives, we want to improve the criminal justice system but only when PCT and abolition of client choice are removed.

In my view Grayling had no choice but to reverse his policy on client choice. Leading members of the coalition both Tories and Lib Dems were coming out against the proposal. Politically it was becoming a non starter.

What about PCT? Having completed an about turn on client choice PCT was in trouble. However the Law Society at the very least still believed it was on the table and that he might still have gone ahead with it regardless. They felt the above deal was the best alternative that they could achieve in order to avoid tendering. They objected to the level of cuts.

Had the Law Society maintained their objection to the two tier system and refused to be party to a joint agreement in announcing and promoting this consultation what could have happened? Grayling could still have gone ahead with the two tier system. He did not need the Law Society approval.  In fact, it was my understanding from the Practitioners meeting that he planned to do that anyway regardless of Law Society endorsement.

He could have pursued PCT, but he could not afford another disaster such as the interpreters or G4s etc in a build up to an election. All he wants are cuts, he said at the very beginning, give me an alternative.

What would the members have said if the Law Society had objected to the two tier proposal and any revised proposal on PCT? Would they have preferred that the Law Society maintained their opposition even though PCT was still in theory on the table as opposed to doing the deal which appears to have been done? As the Law Society have worked with the MOJ on this proposal are they now limited in voicing proper objections through responding to the consultation other than in relation to the level of cuts and number of duty solicitor contracts?

Where would we be if everyone and I mean everyone, had stuck to the resolution voiced by Robin Murray on 22^nd May 2013? Did we have the initiative and throw it away?

Perhaps the BFG proposal is very similar to the duty solicitor contract; increased share of duty solicitor work to compensate for cuts. Would many firms survive without a duty solicitor contract and if so is client choice being limited through the back door?

One influential member of the BFG group stated that the maximum 570 duty solicitor contracts proposed in the new consultation was too many and there should be greater restrictions on firms obtaining own client contracts. In other words the MOJ have not gone far enough in terms of consolidation.  Additionally, the cuts come before the consolidation so perhaps the new consultation is a long way from satisfying the BFG.

Where now?

There is still much can be achieved by unity and open and sensible communications. Although the Law Society have said that they object to the cuts, most people are reading and seeing that the Society supports the MOJ consultation.

They need to shout from the rooftops about their opposition to the cuts and work with the practitioner organisations in preparing detailed responses on the cuts issues. There is still much to argue. Every day we read about the courts being in crisis, the CPS being in chaos, cases collapsing, and interpreters not attending court as required. This is the result of the cuts by the MOJ, the cuts which are eroding our justice system. The legal aid spend is shrinking, arguably the amount Grayling wants to save would be saved if he did nothing.  The Law Society needs to argue for greater transparency over figures and projections.

If a maximum of 570 duty solicitor contracts are awarded this will decimate firms, the Law Society state they will argue for more and they are jointly instructing economists with the MOJ to advise on this issue. This may not be enough; they need to work with the practitioner organisations in looking in more detail at what happens at the coalface and how a greater number of contracts should and must be awarded. If most firms who do not get duty solicitor contracts go out of business then client choice will go indirectly. Consortium and mergers may be a viable option but not if it leads to the removal of the high street firm serving its community. The MOJ have constantly shifted their position on figures, policies etc, perhaps the Law Society may have to announce an about turn on the extent of their support for this new consultation.

Many lawyers are disappointed understandably and with justification about the representation they have received. If many firms are wiped out then winning the PCT battle is not really a victory. There is still time but really only one last chance to get it right.

An exciting week in Criminal Justice

AN EXCITING WEEK IN CRIMINAL JUSTICE

It has been a busy week for Criminal Justice in the news!

Firstly we had the announcement by HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate that cases were being delayed because police officers were not providing the right material to the prosecution in terms of disclosure. What a surprise! After all the training and various initiatives including Nareys, Speedy Summary Justice and Stop Delaying Justice, one would have hoped that this fundamental part of the process would be in place to assist the Crown, defence and the courts. Of course this government has savaged the police budget and one suspects that part of the problem is probably resources. By the way, and please do not tell anyone, I hear there is a new initiative on the way called the J.P.G. (Just Plead Guilty scheme). You will not even have to be arrested, the police will stop you because they do not like your car and fine you there and then and impose points. Where a trial is needed a van will be provided with windows to ensure the process is transparent.

This development was followed by conclusion of the consultation on Legal Aid. Mr Grayling, who has clearly been allocated an adviser as opposed to choosing one, rolled out the fat cat lawyer figures again. Additionally he then stated that it’s either a good health system or the justice system. This seems incredible bearing in mind that the £220 million the government seek to save on legal aid would not maintain the NHS for a day. Mr Grayling is in charge of the Justice budget not Health. Did Mr Osborne ring him and say unless you can get me £220 million I will be kicking people out of hospital beds (for less than a day)? Perhaps it is just the comment of a desperate politician shocked by the strength of reaction to this ill considered and rushed consultation.

We are entitled to, and should expect, a proper health and justice system. Mr Grayling’s ill advised comment about the health service follows on the back of his comments about individuals not being able to choose their own lawyers. Prior to this we had the consultation which on occasions refers to offenders and criminals as opposed to suspects, defendants and individuals. Bye-bye presumption of innocence and welcome to the J.P.G. (Just Plead Guilty scheme)

Of course, regardless of the MOJ offensive on lawyers, it is difficult to avoid the opposition of the judiciary to these proposals. They have responded to this paper by condemning the proposals. Sir Anthony Hooper, a now retired and hugely respect Court of Appeal judge, has also spoken out publicly against these plans.

The DPP has announced that victims can now challenge the decision not to prosecute the case in which they have made allegations. Whilst I applaud the sentiment of this idea, when one considers how under resourced the CPS are how will they cope with this additional burden? Most solicitors report great difficulties in obtaining disclosure on time or even obtaining a response from the CPS. Many summary cases are delayed or disclosure is late. This is also at a time when there are far fewer cases being prosecuted, not because crime is substantially down but because less matters are reaching the courts. So the numbers of prosecutions have been significantly reduced. The CPS struggle to effectively prosecute even that reduced workload. Now further resources will now be diverted away from the front line to consider reviews from complainants as to why their case is not being prosecuted. These reviews will probably have to be considered by a senior lawyer. So at court you will have designated case workers who cannot make decisions on cases and are not lawyers, whilst the senior lawyers will be back at the office considering cases when a decision has been made not to prosecute. You could not make it up.

In The Times there is an article about protecting the interests of young complainants giving evidence, which can lead to long term distress and trauma particularly as a consequence of protracted cross examination. Obviously defendants denying offences are entitled to their advocates robustly cross examining and testing the evidence against them. However the skilled and expert advocate should be able to meet that aim and be sensitive to any vulnerabilities issues that may exist around the prosecution witness. Will there be many left if the government proposals on legal aid are introduced?

This brings me to the conclusion of this piece. The government proposals in relation to the whole of criminal justice are frightening. Selling off the courts, probation, the prisons and the defence risks a loss of independence, transparency and fairness. Perhaps it is not about money, perhaps it about reducing state accountability. They have mismanaged the budget to such an extent that one wonders if the current team are qualified enough to manage this department and budget. The average combined fee for Magistrates and Police station representation is approximately £550. The approximate cost of delivering defendants in custody to court per year is £85,213,700 If 25% of cases in the Magistrates Court involve custody cases (this may be a substantial overestimate) then the cost of bringing a defendant to court for a hearing is just under £400. If of course the number of cases is nearer 12.5% then in fact the cost per hearing is just under £800. When you consider that the police station representation can involve several attendances and the court fee can involve a number of appearances the representation costs appear very good value. The transport costs seem very expensive. How can the MOJ have reached a contract on these terms with G4s? How reckless are they with tax payer’s money? I also understand that the MOJ are urgently reviewing what could be a massive overpayment on the provision of tagging contract. Are they paying more for the tagging device than the legal representation?

An independent justice system needs a properly funded prosecution, police, probation, court service and defence. All of these bodies must be independent, they are not economic units, and they represent the vital elements of an independent justice system; a vital part of a proper democracy. Mr Grayling, crime is down, you are saving money, stop what you are doing and proper engage with those at the coalface across the board of Criminal Justice.

ASSAULT ON JUSTICE

Do you know what criminal defence will look like if the government’s legal aid proposals are introduced?

Most members of the public simply have no idea. Why should they? Many will never be troubled by the Criminal Justice system. But if they are, or their relative or friend should inadvertently get caught up in something that leads to criminal charges, they should know the following:

1)      The state that chooses to prosecute them will also choose their lawyer. Individuals will have no choice whatsoever in who represents them, if they seek legal aid. Although the government encourages us to choose which hospital or school we use, when our liberty is at stake, choice is denied. The state will allocate the lawyer.

2)      The lawyer allocated will have obtained his/her contract to do the work by bidding at the cheapest price.

3)      If your case is a short trial in the crown court you should know that your advocate is paid the same whether you plead guilty or there is a short trial,( the latter of course involving much more work).

4)      If your household disposable income is over £37,500 you will no longer be eligible for legal aid.

5)      If, for any of the reasons above, you choose to instruct a lawyer privately and you are acquitted, you will only be reimbursed from the state by a fraction of the costs.

6)      Please sign a petition to avoid the above at epetitions.direct.gov.uk/petitions/48628