Whatever the principled objections one might throw at this arrangement, however, it at least had the advantage of ensuring that all those accused of serious offences in the Crown Court had access to legal aid. Even if you were rightly fearful that your quality of representation might be outmuscled by the prosecution’s, you had the security of knowing that there was a lawyer available to you, and that if your innocence was not impeached, it would not cost you a thing.
Then, in January 2014, the government turned the screw. Determined to squeeze every drop of blood from the budget, it introduced a means test in the Crown Court. If you had a disposable household income – your partner’s means were taken into account – of £37,500 or more, you were excluded from legal aid. As a ‘balance’, it relaxed the ban on Defendant’s Costs Orders in the Crown Court for people who applied for but were refused legal aid and were subsequently acquitted. However, there was a kicker: a Defendant’s Costs Order could only be claimed up to legal aid rates. This aligned Crown Court proceedings with the regime that had operated in the magistrates’ courts since 2012, where a disposable household income of £22,325 shut you out of legal aid. So now, if you qualified for legal aid, you would get it. But if you were above the threshold, you were left at the mercy of the market, with the state making only a token contribution to your costs if you were acquitted.17
As we have already seen, legal aid rates are significantly lower than market rates, sometimes to the extent that the lawyers involved are operating at a loss. So paying on the open market, at the rate that you once would have claimed in full under a Defendant’s Costs Order, will invariably cost you more than you can ever hope to recover. Private fees can be as much as ten times legal aid rates, leaving an acquitted defendant tens, even hundreds, of thousands of pounds out of pocket. And before claims of extortion are levelled at the lawyers, it is worth remembering what the fees payable from Central Funds under an old-school DCO actually represented. These were not blank cheques. They provided for fees proximate to market rates for legal professionals, but were still the subject of close scrutiny by costs assessors. The test that was applied by the Legal Services Commission and costs judges was whether the fees claimed under a DCO were ‘reasonably sufficient’ and ‘properly incurred’. By cutting DCOs, by definition the government has deemed that ‘reasonably sufficient’ and ‘properly incurred’ legal expenses sustained by a formally not guilty citizen should not be paid.
At this point, it should also be pointed out that legal aid fees are officially considered to be not a ‘proper professional fee’ by the Bar Council. According to the Bar Code of Conduct, one of the limited occasions on which barristers can ignore the ‘cab rank’ rule and refuse a case is where there is no ‘proper’ fee. So low has the rate fallen through cuts and inflation, that criminal legal aid cases have, since 2003, been expressly identified by the Bar Council as ones where a barrister can refuse to act.18
Tying this together, we now have a situation where the government has abolished legal aid for those with a notimmodest joint disposable annual income of £37,500, and deemed that if you, the innocent, incur proper and reasonable private costs in securing your acquittal, the state will only contribute at a rate which by definition is not a ‘proper professional fee’.
In June 2010, the High Court responded to the previous Labour government’s attempt to introduce a similar cap to DCOs:
. . . A defendant ought not to have to pay towards the cost of defending himself against what might in some cases be wholly false accusations, provided he incurs no greater expenditure than is reasonable and proper to secure his defence. Any change in that principle is one of some constitutional moment. It means that a defendant falsely accused by the state will have to pay from his own pocket to establish his innocence.19
Ruling the government’s regulations unlawful, the High Court was highly critical of the attempt to achieve such a ‘decisive departure from past principles’ through unscrutinized secondary legislation. The coalition government in 2012 and 2014 learned from this and, by smuggling the Innocence Tax into an Act of Parliament, ensured that when a legal challenge inevitably came, parliamentary supremacy meant that the Innocence Tax could not be said to be unlawful.20
It may be lawful. But it is abhorrent. Retreating to my favoured health analogy, this is the government deliberately breaking your legs, and telling you that you must go private, but that they will only contribute NHS rates. Or, otherwise, you feel free to treat yourself. See how that works for you, pal.
For those who can afford the financial hit, the position is repellent enough; but the greater peril faces those who can’t – the families who meet the government’s threshold for cutting off legal aid, but who have no means to pay up-front for private solicitors, private barristers and private expert witnesses. For these innocents, the Innocence Tax inflicts a Sophie’s Choice between their family’s financial security and their liberty. Some will be compelled to gamble on the latter. I cast my mind back to the acquittals I secured on legal aid pre-2014 for defendants from middle-income families, and wonder for their fates in these new times. What on earth would they have done?
As a final, desultory boot in the genitals of justice, it is illuminating to consider private prosecution fees. Because the imperative to find ‘efficiencies’ in criminal justice has not extended to private prosecutors. While CPS prosecutions are funded from CPS coffers, private prosecutors have the right to apply to Central Funds for the costs of bringing a prosecution, even where the prosecution loses.21 And the fees claimable are significantly higher than legal aid rates. The test, in fact, is evocative. The court may ‘order the payment out of Central Funds of such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses reasonably incurred by him in the proceedings’. The Lord Chief Justice has gone so far as to suggest that there should be a presumption in favour of awarding these prosecution costs, unless there is ‘good reason for not doing so, for example, where proceedings have been instituted or continued without good cause’.22
We thus have the theoretical pantomime of a private prosecutor falsely accusing an innocent person of a crime, bringing a case to trial, losing and walking away financially restituted, while the innocent, victorious defendant is forced to sell his home to pay the costs of his acquittal.
It is morally and philosophically indefensible that we have allowed our justice system to degrade such that this scenario is possible. We have a system which forces a wrongly accused person from a middle-class family to choose between financial destitution and the fool’s gamble of self-representing in criminal proceedings. The Innocence Tax’s philosophical underpinning can only be read one of two ways: either as an inversion of the presumption of innocence, a sly wink to our worse selves that an accused is always in some way responsible for his being corralled into the justice system. Or it is a concession that though accused people may well be genuinely innocent, so little does the average voter understand or care about the criminal courts that rampant butchery of the rule of law can be gotten away with unscrutinized.
The consequences of the Innocence Tax are exhaustively threefold: the cost of justice will fall; more innocent people will be financially ruined; more innocent people, forced to self-represent, will be convicted. There is nothing else. These reforms, like so many others, care nothing for quality. There is no pretence that this will improve the standard of justice; to the contrary, its diminution is tacitly accepted as a price worth paying for knocking a few million off the legal aid bill.
We could – no, we should – have legal aid available to everyone accused of a criminal offence; repayable by the convicted who have the means; for those without, it should be written off as the baseline cost of a civilized society that prizes the value of justice done properly. But through our silence, we accept the government’s lesser alternative, and the perverse, grotesque results that follow. The numbers of self-representing defendants are rising. I see it in the Crown Courts. The go
vernment has conducted research on the number of self-representing defendants, but has refused to publish the results, no doubt through shame of what they will show.23 Although no official figures are kept in the magistrates’ court, anecdotal evidence and common reason holds that unrepresented defendants are more common there too. Ordinary people are expected to do courtroom combat with seasoned legal professionals, without knowing the first thing about the law. People stepping onto the battlefield armed with a paper hat and a wooden spoon.
We see, on a daily basis, the appalling spectacle of
. . . unrepresented defendants not understanding what they were charged with, pleading guilty when they would have been advised not to, and vice versa, messing up the cross-examination of witnesses, and getting tougher sentences because they did not know how to mitigate.24
As previously discussed, and as every lawyer will tell you, it is the falsest of economies. A litigant-in-person, unacquainted with the rules of evidence or procedure, is guaranteed to lengthen proceedings, add layers of confusion and complexity and run up far higher costs in added court time than would ever be expended on having a hack like me defend him on legal aid rates. But it sounds cheaper. So it ticks the ministry’s box.
A grim report by charity Transform Justice included a case study in which a man wrongly accused of an offence of criminal damage ended up paying more to be acquitted than he would have paid by way of a fine had he simply pleaded guilty.25 Again, such instances are not accidents, they are designs of our system. And they exist because no one gets elected promising a better justice system. Just a cheaper one. Other things matter more.
On 19 March 2014, two months after the Innocence Tax took its current form, the government in the Budget proudly announced a 1p cut to duty on a pint of beer, and a freeze to duty on cider and spirits. The cost to the taxpayer of this largesse was estimated at £300 million per year.26 The figure that had to be cut from criminal legal aid, that could not be avoided, that meant it was necessary to punish the wrongly accused and increase the risk of innocent people going to prison, was £220 million per year.
As I say, it’s a matter of priorities.
8. Trial on Trial: Part I – The Case Against
‘An advocate, by the sacred duty which he owes his clients, knows in the discharge of that office but one person in the world, that client and none other. To save that client by all expedient means, to protect that client at all hazards and costs, to all others, and among others to himself, it is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other.’
Henry Brougham, defence counsel at the trial before parliament of Queen Caroline, 1820
There is a near-tangible buzz that descends upon the courtroom and reverberates off the walls as the panel of prospective jurors files into court. It fizzes as the final twelve are randomly selected, sworn and formally welcomed by a judge exuding something on the scale between grandfatherly bonhomie and bubbling misanthropy. And, as the prosecutor at the judge’s invitation takes to their feet to deliver the opening speech, the buzz soars, whizzes furiously and then, as the first word falls, it drops and settles, but never disappears. It gently underscores everything that follows; a steady, incidental hum unobtrusively heightening the significance of each spoken word, each nervous pause and each fidgety physical tell. For it is from this, the oral presentation of evidence and its professional, adversarial deconstruction, that the jury will divine their verdict, and justice will be delivered.
And so we return to the illustration, first sketched with Mr Tuttle, which perhaps best depicts our conception of criminal justice. In reality, it displays only the tip of the iceberg, the less than 1 per cent of criminal prosecutions that are determined by Crown Court trial, but the image remains totemic. And its familiarity subtly reinforces our faith in its worth. There is an instinctive cultural trust in the adversarial trial process as a guarantor of justice; a true belief that the denouement of each trial will match the justice of the final act of Twelve Angry Men.
That, after all, is the premise on which I base the observations and criticisms in the preceding chapters. In the opening pages, I boldly proclaimed that ‘our adversarial system, when it works, is the greatest guarantor of individual liberty there is.’ The problem, as I characterize it, is the acts or omissions by others – normally the state – which by negligence, recklessness or specific intent impede the smooth running of an intrinsically good system. If the case has negotiated its way successfully through the pre-trial labyrinth to the swearing of a jury – if the evidence has been gathered and not lost, if the witnesses have attended, if the interpreter is present, if the defendant has been produced from custody, if the court can actually accommodate a trial – the hard part, surely, is over? The trial itself will by mere virtue of its internationally celebrated configuration – part evolution, part intelligent design – give the ‘right’ result. The prosecution will deliver a fair and balanced opening speech. Its witnesses will each give oral evidence of what they know; initially prompted by non-leading, open questioning from the prosecution advocate, before being tested by closed, leading questions in cross-examination from the defence. Following the prosecution case, assuming the judge is satisfied that there is sufficient evidence for the matter to continue, the defence will have its turn, calling the defendant to give evidence (if he so chooses) and any defence witnesses. The advocates will then with equal aplomb each present their closing arguments to the jury, before the judge fairly sums up the evidence and directs the jury on the applicable law. When the jury returns, it will present us with a neatly wrapped verdict of no more than two words, which, whatever it may be, we can be satisfied represents Justice.
And it is that faith in process as justice that explains and justifies my role as an advocate. It is what permits me to bat away with ease the inevitable dinner party questions – How do you defend someone you believe is guilty? Have you ever prosecuted someone you think is innocent? – with a nonchalance that belies the gravity of the argument. I am just a cog in the machine. Impersonally carrying out my role is key to ensuring that the delicate justice ecosystem remains in symbiosis. Once the advocate allows personal sentiment to usurp cold professional judgment, the whole adversarial system is jolted out of whack. I would be trespassing on the role of the jury. I am not here to form views or share feelings. I am here to promote my client’s cause, without fear or favour, to the best of my ability. That is my function; a footsoldier for justice, marching to the adversarial beat.
If in so doing, I help to secure the acquittal of someone who is in fact guilty, or the conviction of someone who may be innocent, that is frankly not my professional concern. The jury had the evidence, fairly and lawfully presented and scrutinized. It was for those twelve neutrals, not me, to decide whether the state had made them sure of guilt. I am but a vessel.
If, in order to secure that result for my client, it was necessary to persuade the judge, properly and lawfully, to hide some relevant evidence from the jury, for fear that it was unduly prejudicial, or because of its dubious probity, or the unfair circumstances in which the police obtained it, that would have been not only within the rules of the game, but my duty as his counsel.
If, as a consequence of my fierce cross-examination and scornful, blustering closing speech, a genuine victim of an unspeakable crime has – to channel Lord Brougham – their suffering, their torment, their destruction multiplied, that must regrettably be filed under ‘collateral damage’ in the noble battle to protect individual liberty, and to ensure that only where the state’s evidence proves guilt beyond doubt will a man’s freedom be curtailed. As I haughtily declared earlier when considering the clash between the rights of victims and the rights of defendants, the former just have to accept that they will ultimately be subjugated to the latter, because the proper functioning of adversarialism requires it.
But such glib, smug homilies, delivered with the
self-assured and clinical complacency of someone who has had such lofty abstract ideals implanted since the first year of law school, allow me to avoid critical examination of the awkward, deeper assumptions that underlie not only our mode of justice, but my very (professional) existence. Such as whether adversarial criminal justice is all it is cracked up to be. Whether too much – truth, dignity – is sacrificed on its altar. Whether a system that does not have as its stated aim the pursuit of truth, but instead rewards the best game player in a winner-takes-all contest, can really be said to deliver ‘justice’ in a sense understood by anyone outside of legal circles. And whether, if we have abandoned – or never even prized – truth as a guiding principle of our trials, we are doing gross injury to Enlightenment principles, with the result that all of us – defendant, victim and society – are wronged.
I try to avoid those questions. Because more inevitably follow.
Am I a morally neutral officer of justice, faithfully playing my allocated role in the production line? Or am I, and thousands like me, complicit in a warped, harmful model of criminal inquiry, only semi-conscious of the real, irremediable devastation that we wreak? When I mount my high horse and decry government violence to fundamental pillars of justice, am I a first-class passenger complaining about the limited buffet options on the Titanic? Is the lesson that I should be taking from the things that I see in the courtroom not that our criminal justice system is broken for the trivial reasons upon which I and my colleagues fixate, but that its very premise is inherently, immorally flawed?
We need to talk about adversarialism.
The Secret Barrister Page 22
