While forthright defendants are not shy to complain about perceived failings by their solicitors and barristers, the most vulnerable clients may lack the wherewithal to recognize incompetent representation. Judges, tasked now with prioritizing ‘outcomes’ – i.e. guilty pleas – ahead of process, are not required, and don’t have the time, to scrutinize the quality of advice or service that a defendant has received. Solicitors may be nervous about reporting a fellow professional. And it would be remiss not to acknowledge our own fault, at the Bar. Too many of us look the other way. Or find excuses. Some prize their income stream over their professional duties. Some, like me, rely on youth and naivety as an excuse. But we should do more. I, personally, should have done more.
It cannot be stated loudly enough that Keres & Co. are in the tiny minority of publicly funded defence solicitors. Most firms are staffed by dedicated professionals who fight unyieldingly to safeguard the interests of their clients in the face of appalling systemic conditions. But the very real risk is that in increasing their workloads and decreasing their derisory fees, the good defence solicitors are going to fall by the wayside. I have seen more solicitors than I can count flee criminal legal aid work for the financial security of wills, probate and private civil law. Some of the best are still clinging on, but only just. If they lose their grip and slip away into the financial abyss, the figures lurking in the shadows will swoop in and sweep up, relying on volume, and not quality or earned reputation. Unless they can afford to pay for private legal representation, those accused of crimes who depend on legal aid, including first-time entrants like you, or your partner, or your child, will be at Keres’ mercy. Presently, I would say unhesitatingly that the best legal aid firms provide, against all odds, a service equal to if not better than that of their higher-remunerated private-client counterparts. But if they fall and the Kereses rise, two-tiered justice will become an embedded, accepted feature of our criminal system.
In fact, speaking of two-tiered justice is not quite right. Because presently there is a third tier, squashed between the legally aided and privately funded, representing one of the greatest hidden scandals of all. This is a stratum of middle-income defendants who do not meet the criteria for legal aid, and who cannot afford to pay privately. And who, as a result of a silent but devastating government reform, find themselves victims of what I call the innocence tax.
7. Legal Aid Myths and the Innocence Tax
‘Upon taking office [in 2010] we had the most generous legal aid system in the world; but even after the spend and scope reductions we still have the most generous system in the world. To give you a comparator, France and Germany spend about £5 per head on legal aid, whilst we were spending £38 per head.’
Jonathan Djanogly MP, former Minister for Legal Aid and Courts,
Address to Cambridge Union, 16 March 20151
Something you may not have ever given any thought to is how you would fund a criminal defence. But you should.
Anyone can be wrongly accused of a criminal offence. You’d be surprised at how error or malice or awful, unthinkable twists of fate can convince the police and the Crown Prosecution Service that you have broken the law.
Perhaps you’re driving home from school having picked the children up one idle Thursday afternoon. It’s late autumn, so the light is already ebbing away at 3.30 p.m. and the conditions are blustery, wet leaves slapping against your windscreen as you crawl through the throng of 4×4s clogging your route. Although strapped in the back with an iPad for distraction, your dynamic duo are squabbling over whose go it is to play Minion Rush. The screams are wholly unbecoming, and so, while stationary, handbrake firmly on, you turn to administer a firm verbal caution, and confiscate the divisive device. Placing the iPad next to you on the front passenger seat, quietly satisfied by your military skills of discipline, you resume.
You notice that although the road ahead is clear, the Range Rover immediately in front has stopped, illegally, and put on its hazards, obviously waiting for somebody. You check your mirrors, indicate and pull out to go around. As you slide into second, the stiff gearstick causes you to reflexively glance down to your left; only for the splittest of seconds, but it’s enough. As the five-year-old boy sprints in front of you, you look up only in time to see the blue flash of his cagoule. Your emergency stop comes precious seconds too late.
The boy’s mother swears that you were fiddling with the iPad that the police find nestled on the seat next to you. Another witness agrees, adding that they recall that your car was still moving as you turned around to admonish your children. A third heard the revving of your vehicle, and assumed that you were impatiently accelerating around the motionless Range Rover. Yes, says the grief-stricken mother. Your burst of speed was wildly dangerous for the location and the conditions. Put together, the police, and the Crown Prosecution Service, are satisfied that there is a case to charge you with causing death by dangerous driving.
They’re wrong, of course. You did nothing that came even close to ‘dangerous’ – defined as driving to a standard ‘far below that of the careful and competent driver’. The traumatized witnesses are, understandably, wrong in their shaken recollections. The unbearable tragedy was caused by the little boy, as little boys are wont to do, darting into the road without looking. There is no moral or legal culpability; but the prosecution want to find some, with a prison sentence of up to fourteen years the potential price for you to pay.
You sensibly assess that you need legal representation for the court proceedings that follow; however there’s a snag. Due to your family income, you are informed that you are not eligible for legal aid. Not a penny. And so you are compelled to beg, borrow and remortgage in order to afford the private fees of a large firm that specializes in these cases, and the private fees of the experienced barrister they recommend to you. Your total bill, at these private commercial rates, runs well into six figures.
The case proceeds to trial eighteen months later, and, thankfully, the jury accepts your evidence, aided by a vehicle accident reconstruction expert who demonstrates that your speed was far lower than the witnesses suggested. You are acquitted. The door to the dock is unlocked, and you step outside the glimmering glass facade of the Crown Court savouring your freedom. Your reputation saved and your liberty spared, you can begin the process of rebuilding your life. Starting with reclaiming the tens or hundreds of thousands of pounds paid out in successfully securing your acquittal.
But there is a postscript. Because, even though you have been found not guilty, and even though you had no choice but to instruct a privately paid legal team, the state refuses to reimburse you. It will give you a modest contribution towards your legal costs, but the rest you will have to foot yourself. Take it out of your pension pot. Or your children’s inheritance. Or sell your house and move into rented accommodation.
You’ve been hit by the Innocence Tax.
It bears repeating. You can be prosecuted by the state. You can be refused legal aid and forced to pay privately. You can be found not guilty of any criminal offence. And the life savings that you have exhausted in the process of defending yourself will not be refunded.
The practical consequence of reforms snuck onto the statute book by stealth in 2012 is to financially punish innocent people for the ‘crime’ of being wrongly accused. When I explain this to non-lawyers, they assume I’m joking, or exaggerating for effect. How, they ask, could such a base affront to fairness come to pass without becoming headline news? Where was the opposition when this came to be? Where was the fourth estate? Where was the hue and cry from those caught in the snare? Even now, why is redressing this wrong not a matter of priority for any political party with a passing respect for the justice system?
To understand how we’ve arrived here, we need to first take a brief stroll through the recent, tarnished history of legal aid and access to justice. Because the way in which the government purchased cover for this reform – and the reason you were probably unaware of it – lay in
a sustained and dishonest public campaign telling the public bare-faced lies about legal aid, who it is for and what it costs. As is encapsulated beautifully in the misleading quote from Jonathan Djangoly MP at the beginning of the chapter.
So let’s deconstruct the myths, piece by piece.2
A Brief History of Legal Aid
As the state prosecution machinery professionalized in the nineteenth and twentieth centuries, and prosecution counsel took over the reins from citizen prosecutors, equality of arms demanded that a defendant be similarly advised and armed for battle. And it still does. Even for a career criminal who has long ago forfeited his right to public sympathy or patience, his right to receive competent legal advice and representation is vital to the system working. A common pub-bore suggestion I hear is that legal aid be allowed ‘only for the first however many offences’, after which these dirty lowlifes should be entitled to suckle on the public teat no longer. Which is all well and good to the Disgusteds of Tunbridge Wells until the state cottons on to how suddenly easy it is to cheaply improve conviction rates by pinning unsolved burglaries capriciously on to known repeat offenders who aren’t protected by those pesky defence lawyers poking around in the prosecution’s business, rather than putting in the investigative graft to track down the real villain who kicked your back door down. Defence legal aid, and the effective adversarialism that it permits, doesn’t simply protect the defendant; it protects the public by keeping the prosecution, and the court system, honest. It also saves money. Any lawyer or judge will attest that the one way to guarantee that a hearing or trial overruns is to take out a lawyer. Special pleading and counter-intuitive though I accept it may sound, lawyers, particularly in crime, keep costs lower. Litigants-in-person (LiPs) – that is, defendants who are representing themselves – are untrained in law and procedure, and will in every single case cause costs to spiral, as witnesses are unnecessarily required to attend court, regular breaks are taken to remind the LiP of the basics and his questioning of witnesses takes ten times longer than would a lawyer’s. Furthermore, legal representation for defendants avoids victims of serious crime being subjected to amateur, degrading questioning in public by their tormentors. Universal criminal legal aid therefore ensures that no one is denied justice – a fair trial and competent legal advice – for lack of means, keeps proceedings shorter and avoids the moral outrage of innocent people being out of pocket for having defended themselves.
Publicly funded legal assistance for people accused of criminal offences is a relatively modern concept. Up until the nineteenth century, whether a defendant was permitted to be represented by counsel at all was a matter within the discretion of the trial judge, and when the right to a defence barrister was enshrined by the Trials for Felony Act 1836, the accused needed either private funds or someone willing to act pro bono. In the early twentieth century, discretionary judicial and statutory schemes provided for payment to solicitors and counsel, but it was the Legal Aid and Advice Act 1949 that formally enshrined civil and criminal legal aid.
We’ll put civil legal aid – which has traditionally covered legal proceedings concerning housing, welfare, debt, family law, clinical negligence, employment, immigration, mental health and public law – to one side for now, and focus on criminal legal aid. When criminal legal aid became commonplace in the 1960s, it was subject to a dual testing system – a means test and a merits-based ‘interests of justice’ test. From the 1970s onwards, the percentage of criminal cases that were publicly funded soared, and the introduction in 1984 and 1986 of statutory duty solicitor schemes for the magistrates’ courts and police stations pushed the criminal legal aid budget even higher.
By the 1990s the issue of the cost of legal aid was squarely on the political map. Fee structures governing the work of solicitors and barristers were revised, tweaked, torn up and re-engineered by successive governments. Alternative models of legal provision were envisaged and consulted upon. In 1999, a statutory cap on total legal aid expenditure was introduced. But still the criminal costs kept creeping upwards, peaking in 2005/6 at just under £1.2 billion, where it hovered until dipping slightly such that, by 2010, the annual cost of criminal legal sat at £1.12 billion, with civil legal aid at a similar figure.
2010 was a significant year. With a new coalition government resolved to address the national deficit through a campaign of austere spending cuts, the Ministry of Justice, and in particular its juicy legal aid budget, was a sitting duck. There was, in the eyes of the government, a mandate for a radical re-imagining of the limits of publicly funded services, starting, uncontroversially, with the legal system. What we have here, the public was solemnly told by ministers, represents the most expensive and generous legal aid system anywhere in the world. And it’s getting more and more expensive. Fat-cat solicitors and swaggering ruddy-nosed barristers are gorging on taxpayer cream, cackling as they speed away from court in their open-top BMWs to quaff legally aided Dom Pérignon 1966 after a half-day spent pulling the wool over a jury’s eyes in the service of some child rapist. And it is only right, the ministers and their tame tabloid nodding lapdogs echoed, that in straitened times, we take sensible steps to address this imbalance by reducing expenditure while ensuring that those who need legal aid still have access to it. This we can achieve by making those fat cats squeal.
In 2011, the Ministry of Justice prepared for battle. Identifying legal aid as a politically vulnerable target for some quick savings, it fumbled in its knapsack and withdrew what would come to be its most potent weapon in keeping the public onside against the inevitable wails from lawyers. From that day forth, every single Ministry of Justice pronouncement was squired by the same mantra: ‘We have the most expensive legal aid system in the world.’ As the title quotation demonstrates, so potent was it that, long after leaving ministerial office, MoJ alumni cannot help themselves from telling anyone who will listen that the per capita cost of legal aid in the UK is the highest in the world.
The only problem is that this claim was entirely, provably untrue.
The Most Expensive Legal Aid System in the World
So where did this claim come from?
It was first made in 2011, following the publication by the Ministry of Justice of a report entitled ‘International comparison of publicly funded legal services and justice systems’.3 This was a broad comparative report, prepared in 2009 from data collated between 2001 and 2007, in which the authors considered the costs of justice systems, with particular focus on legal aid provision, in eight countries – England and Wales, France, Netherlands, Germany, Sweden, Australia, New Zealand and Canada. You may, if counting is your strong suit, have noticed that ‘eight’ falls somewhere short of ‘all the countries in the world’. But in any event, the comparison did indeed show that, per capita, England and Wales spend considerably more on criminal legal aid (€33.50 per capita) than any of the other seven countries.
Delighted at this headline figure, the MoJ proceeded to bury the deeply dull, but vital, explanation behind it: the legal systems of the eight candidate countries differed so vastly, they were almost impossible to directly compare. The selection contained a mix of civil law and common law jurisdictions. Some, such as France and the Netherlands, were inquisitorial systems in which court-based adversarial proceedings were a rarity. Some, such as Sweden and Australia, had an established ‘public defender’ model, in which state-employed lawyers provided criminal defence, leaving limited scope for legal aid payable to private providers. The English and Welsh adversarial common law system results in the bulk of the costs of criminal proceedings being borne by the protagonists – the prosecution and defence – with far lower costs falling on the courts’ budget; in the other jurisdictions, costs which are met here by legal aid are allocated to different departmental accounts. Isolating and comparing legal aid in the UK with legal aid in, say, France, is therefore not only misleading but utterly pointless, for while our legal aid budget may be comparatively high, our courts’ budget is comparatively m
inuscule. The report, or at least the MoJ’s interpretation of it, did not compare like with like.
A true comparison, if a comparison is indeed helpful (and for reasons we’ll come to, I’d suggest it probably isn’t), should therefore consider the overall cost of criminal justice in the comparator nations. This exercise was, as luck would have it, undertaken in a subsequent, but, for the MoJ, far less enthusiastically greeted, report by the National Audit Office in 2012, ‘Comparing International Criminal Justice Systems’,4 which looked at the total annual costs of the criminal justice systems of every country in Europe. The report concluded that the average total annual public budget allocated to all courts, prosecution and legal aid as a percentage of GDP per capita was 0.33 per cent. The figure for England and Wales? 0.33 per cent. Bang on average. More than Lithuania, but less than Monaco.
But in any event, the figures alone only tell a fraction of the story. The per capita cost of criminal proceedings is driven, for example, by the number of per capita prosecutions that a state brings. And if you assumed that this will be broadly similar among developed nations, you would be much mistaken. In that first 2009 report, one of the many statistics suppressed by the MoJ was that per capita, England and Wales brought twice as many prosecutions as any other country.
A further point to note is that the legal aid figures relied upon in both reports, which were cited by the MoJ extensively as recently as 2014, only included data up to 2007 and 2008 respectively. In 2007, there were significant changes to legal aid fees paid to barristers, the effects of which would not have been reflected in those statistics, and as of 2010, the number of prosecutions started to decline. Indeed, by the time the government announced in 2013 that it was introducing further reductions (such as the cuts to solicitors’ fees that we considered earlier) in order to tackle the ‘out of control’ legal aid budget, the spend had dropped by around £200 million, from £1.17 billion in 2010/11 to £975 million in 2012/13, and was forecasted by the MoJ to keep falling, even without further cuts. In the year to March 2017, expenditure was down to £858 million.5 It should also be kept in mind that the Treasury dictates that VAT is chargeable and payable on all legal services, including legal aid. Therefore around one sixth of the headline cost of legal aid is VAT being paid by one branch of government (the MoJ) to another (the Treasury) via solicitors and barristers. The MoJ of course knows this. But it still likes to include VAT in the headline ‘expenditure’ figures to bolster its tutting at how much of YOUR money is pocketed by those vile CRIMINALS.
The Secret Barrister Page 20
