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"Good morning ladies and gentlemen. Minister."  When I was first asked to contribute to this conference, with a criminal lawyer's perspective on legal aid cuts, I was wondering how to begin my talk. I then looked at the title of the conference “what price justice?” and this brought to mind, particularly in the context of criminal law, a recent quote that I had seen from Lord Neuberger on a talk on legal aid when he referred to the question "what price liberty..?" He quoted the adage that “the price of liberty is eternal vigilance”. And I must say, with the policy of this administration in attacking legal aid we must all be vigilant, very vigilant indeed. For make no mistake, the cuts that have been carried out to the legal aid system so far, and those that are proposed by this administration, are a fundamental attack on our entire justice system, in which justice is being sacrificed at the altar of austerity.  I have been asked to address in particular how the proposed cuts to legal aid will affect those lawyers and clients involved in criminal law. It is worth, I think, at this stage to look at the recent history of legal aid in criminal law. The 3 main areas of criminal legal aid relate to advice in the police station, appearing in the Magistrates Court and appearing in the Crown Court. The legal aid payments for attending at a police station, whether it be in the day time or in the middle of the night, haven’t increased since 1993. There is currently a proposal for a very modest increase in those rates, but those have not been enacted yet. The current proposals regarding Magistrates Court involve removal of what are known as guilty plea 2’s and the removal of VHCC’s in the Magistrates Court, both of which are substantial reductions in fees paid, and as recently as 2011 the Courts Service imposed an actual 54% cut in the fees payable in Crown Court cases. Now, 2 years later, and after promises have been given that the Crown Court will no longer be susceptible to the butchers knife, the Courts Service now propose a further 45% reduction in fees payable for work done in the Crown Court. I think it is worth repeating - a further 45% reduction in crown court fees.
There is no allegation that the work isn’t being done, nor that the work isn’t being done properly and to a very high standard. The only allegations made against criminal lawyers are that: -
If we look at the first of those allegations, that we are paid somehow better than the Solicitors in England & Wales does this statement really stand up to scrutiny? It is quite clear to criminal practitioners, that we are not comparing like with like. Our Crown Court deals with only the most serious offences in the criminal calendar, with our Magistrates Court dealing with many more serious charges than the magistrates court in England. Many of our magistrates cases would be Crown Court cases in England & Wales. The Crown Court in England therefore has a much greater volume of work than our Crown Court. The sentencing powers in our Crown Court is substantially greater than those in England & Wales. There are greater delays in this jurisdiction in bringing a defendant to trial which requires more time to be spent by the team preparing the defence. Further, a significant amount of work must take place in this jurisdiction in coaxing disclosure from the PPS and this results in the defence having spent a disproportionate amount of time seeking disclosure and constantly having to seek Orders from the Court to obtain this from the PPS, who are responsible for a great amount of the aforementioned delay. Yes, and one other thing about this comparison of jurisdictions, the system in England & Wales isn’t working. It is quite clear from many recent Judgements that the Court of Appeal in England, and quite clear from reading the commentaries from the law journals that the current Crown Court system in England is subject to severe criticism mainly due to lack of resources. As recently as last month, 500 Solicitors in the greater London area voted to take industrial action due to the lack of funding in the criminal legal services in England and a number of QC’s, including a former Law Lord, have indicated that they feel the current attack on criminal legal aid in England & Wales will substantially undermine the justice system. In this jurisdiction we don’t have the same history of miscarriages of justice or the same volume of cases going to the Criminal Cases Review Commission as they do in England & Wales and this is because, up to now, we have been able to provide an excellent, professional and thorough defence system. If the current proposed cuts by the Department of Justice proceed, then the provision of that excellent defence service will no longer be possible. Some critics may say well why do we need to have an excellent defence service and I have a very simple answer for that. The mark of any civilised democratic society is how it treats those who find themselves at the wrong end of the powers of the state. No matter how heinous the alleged offences are, a civilised society will allow that person to have a professional, properly funded, defence and in doing so, the quality of justice will always be improved. In a society such as ours, where justice has only recently been devolved to our local politicians, one would have thought that the provisions of such a defence service would be paramount rather than being undermined. I will return to the second allegation against lawyers with regard to the budget in due course. I now turn to address what the out workings of the proposed cuts would be, in relation to those involved in the criminal justice system. It is no exaggeration to say that, should these cuts proceed, then it will be impossible to provide a proper defence to those charged with very serious offences and, further, it will mean that a defendant’s right to a fair trial will be severely undermined. There will be no equality of arms between the defence and those preparing the prosecution for the state, as they have at their disposal, the resources of the police, Forensic Science Agency and the Solicitors and Barristers employed by the PPS. It will inevitably lead to miscarriages of justice. Further consequences of the proposed cuts will be that the Solicitors profession, and those involved in criminal work in particular, will be severely undermined. Even as it stands at present, who here would recommend to any young student involved in law that they move into the field of legal aid? Very few I suspect. We already have a demoralisation of those involved in legal aid work, and we are already seeing the out workings of the previous cuts to criminal legal aid. Solicitors are not being replaced within firms and perhaps more importantly those leaving law school are finding it impossible to obtain apprenticeships. Of the 148 places available for apprenticeships this year only 108 were taken up, and I suspect that a large number of those where taken up on the basis of some form of nepotistic favour rather than based on merit. Is this the way the department wishes our profession to go? Is this the future for the legal profession? Legal aid lawyers are already seen as the underclass of the legal profession, despite the fact that they provide an essential service to those in society who are in need of assistance and help. Any further reduction in the level of remuneration will mean that none of those apprentices who do obtain a place in our Institute initially –will want to practice legal aid law. This means that the best and the brightest won't come into legal aid law, and this will have the consequence of damaging the quality of the justice system. As has been addressed by previous speakers, one other out working of these proposed cuts will be that the network of solicitors firms in this jurisdiction will not be able to provide the same employment levels as they do at the present time, nor pay for all the service providers who currently supply to firms. This will have a damaging effect on the economy of local areas where these firms are based and those economic losses may well outweigh any gains made by these savage cuts. Therefore what can be seen is that the proposed cuts will have a negative economic impact on the societies in which solicitors firms are based, will have a negative impact upon the solicitors profession and those wishing to practice legally aided criminal law within that profession, and most importantly will have a negative impact upon the quality of justice provided in society. The Department of Justice says that there is something wrong with legal aid, there is a need for reform, there is a need for vast cost saving in legal aid and I ask a rhetorical question, what is wrong with legal aid? I say that what’s wrong with legal aid is that:
The work done by legal aid solicitors in working with those in society who feel that they have no stake in society cannot be overstated. In criminal law, family law and even in civil law the frustration and anger felt by those who don’t feel that they have any voice in this society can often be allayed by the solicitors acting on their behalf. We act like a safety valve to stop those outside the mainstream of society taking out their frustration in some other form. I said earlier that the second charge against criminal lawyers in particular was that our fees don’t meet the budget. Even ignoring the fact that the legal aid budget has been set at the wrong level, ever since legal aid was introduced, the concept of bringing legal aid fees within the budget is the wrong concept to take. The rational of this administration seems to be that we must make legal aid fit the budget, this is not what is needed. What is needed, is for the Department of Justice to take a comprehensive look at the legal aid system, to make rational policy decisions on what areas should be properly funded by legal aid based upon the needs of society and then a budget should be set on that basis. What is not needed, and what is taking place at present, is that the Department of Justice is setting a budget and then trying to shoe horn in the provision of the Legal Services within that budget- that simply won’t work. It is also worth mentioning at this point the actual level of the legal aid budget is a very small amount within the terms of the entire Department of Justice budget and it is a very small price to pay for an efficient, professional and accessible system of justice. It seems to be that this executive is prepared to pay out money hand over fist for unrealistic projects, to consultants for unused reports and to compensate farmers every time it rains, but are not yet prepared to set a realistic budget for the provision of legal services in this community. If I could now turn and address the minister directly, and when I say the minister I don’t meant this in any personal manner whatsoever. I am addressing the minister, in his capacity as a member of the executive. I am addressing the minister, his advisers and anyone in the executive who cares to listen. Minister, you have choices to make. You, minister, can choose whether you want to live in a society that allows access to lawyers and to the courts for all in society, including those vulnerable and damaged or whether you want access to lawyers to be the sole privilege of those well off and those who can afford to pay lawyers. You can choose whether the criminal justice system you want is one that provides for equality of arms within the system, provides for a defence service that fights hard on behalf of all defendants, or one in which only the well healed can afford to obtain a proper defence. You can choose whether you want a system where students coming in to practice criminal law are the most talent and outstanding, or whether, due to lack of funding, there is an inevitable dip in the quality of those attracted to this area of law. You can choose whether the system of justice you oversee is fair, protects individuals and is the envy of other countries or whether it becomes merely a system designed to convict those charged, irrespective of the quality of the evidence against them. You can choose minister whether to stand over and be proud of our system of criminal justice or stand over the destruction of the criminal justice system. If your administration wants to consciously prevent access to justice for the vulnerable, the poor and the needy, to stop them from getting free access to lawyers and courts then fine, do so. But do so as a conscious policy decision and don’t tart it up as some kind of attack on fat cat lawyers, as this is not the case. But also understand this minister, those of us at the coal face of this front line service to the community won’t stand by and let your administration destroy the system of justice. We certainly won’t stand back and let it be destroyed without fighting back on behalf of all of those who, in any civilised society, should be entitled to basic access to justice. I had previously referred to the last round of cuts leading to some form of yellow pack justice. In light of the current proposals I feel that I have now done a great dis-service to yellow pack goods. What is abundantly clear, is that, if the proposed reductions to legal aid go through, then this administration will have achieved a system which is not yellow pack justice but a system where there is no justice at all.
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