For want of a fee, justice was lost

Topics: The Bar

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  • Catherine Baksi

Collapsing trials will show the MoJ’s fee cuts are a false economy.

For want of a nail the shoe was lost…

The Ministry of Justice could learn something from this nursery rhyme as it continues slashing the criminal legal aid rates.

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A current version might be:

For want of a fee the advocate was lost.
For want of an advocate the case was lost.
For want of a case, justice was lost.
For want of justice, civilisation was lost.
And all for the want of a fee.

The fee cuts of up to 30% on lawyers whose fees have already been reduced by more than 30% over the past six years have pushed lawyers beyond their limit of quiet acceptance. The start of the new legal year witnessed unprecedented protests by the combined legal profession.

Here, it is worth digressing to note the absence of that consummate politician that is the justice secretary Chris (I want to be prime minister) Grayling from the column inches reporting the action. Instead the newly appointed and poorly briefed minister Shailesh Vara was rolled out to incant the ministry’s lines.

The justice secretary clearly had more important things to do than deal with a situation that could bring the criminal justice system to knees.

More action seems likely as the government appears resolute in its desire to cut the criminal legal aid budget further in order to make its questionable savings.

The 30% fee cuts already introduced for advocates taking on the most serious and complex cases could be about to blow up in the ministry’s face.

Advocates have mostly refused to undertake very high cost cases (VHCCs) since the fee cuts came in, in December, and the ministry appears entirely without a plan to deal with it.

Asked on several occasions what they are going to do to ensure cases are prosecuted, ministers - most recently (in a display that made all present wince in embarrassment), Shailesh Vara at the All Party Parliamentary Group on legal aid - repeatedly say they will cross that bridge when they come to it.

The first boards of that bridge have surely been reached. Solicitors in an eight-handed £4.5m fraud trial have been unable to find advocates to represent the defendants, despite contacting over 60 chambers.

So far the ministry’s only response involves attempting to beef up the Public Defender Service – which costs twice as much as private practice lawyers - and civil servants at the Legal Aid Agency downgrading the case so it is no longer a VHCC, and contacting chambers directly to see if their counsel will do the work. They will not.

The trial judge, His Honour Judge Leonard, will find himself in the unenviable position of having to stay the case or dismiss any abuse of process argument. Neither is an attractive prospect. 

This will certainly not be the only trial in this position and it will not play well for the ministry with the red tops (not to mention its secretary of state’s prime ministerial ambitions) if murderers and child abusers go unprosecuted.

The ministry needs to come up with a plan sharpish, as the bar is showing every sign that its unity of purpose will remain.

It appears a false economy to allow trials and the justice system to collapse for want of paying advocates an appropriate fee. Grayling would do well to go back to the nursery and reflect on the little rhyme.

Catherine Baksi is a Gazette reporter

Readers' comments (13)

  • Your case was a CIVIL litigation, this article is about CRIMINAL trials - not monetary disputes or business but about civil (and individual) liberties and charges brought by the State against the individual. Legal Aid (or fees) for Criminal cases bear no resemblance to fees in civil or commercial cases whether legally aided or private.

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  • Telling this nursery rhyme to an elected politician is, as they say, like playing chess with a pigeon*

    An elected politician's event horizon is never more than five years' hence - the date of the next election - and Mr Grayling is presently working to a date of May 2015. He will still be an MP after then, but he's most unlikely to be Justice Secretary, either because he'll be in opposition, or he'll have succeeded in moving on to higher things. Consequently, there's no point in telling him that saving a ha'porth of tar now will cost more in the long run. He's only interested in now. That's why the reasoned arguments of the representative bodies in consultation responses is of no interest to him, and the only thing that will bring him to the negotiating table is hurting him NOW - by not doing the cases.

    The days when the Lord Chancellor was an eminent lawyer, and given a seat in the Lords - i.e. it was the pinnacle of a career, not as it is for Grayling, a stepping-stone - have gone. legal aid lawyers need to be as hard-nosed as he is.

    * a pigeon doesn't know how to play chess. It will sh*t on the board, knock all the pieces over and then strut around as if it beat you anyway.

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  • Colin has a point. Quite often counsel will obfuscate and confuse thus hindering justice and increasing costs. So the guilty escape unpunished and the victims are left to mourn. Seriously, why did the Woolwich killers need representation which put forward their untenable cases that murder was justified? Why did the Bar Council not take action against these barristers. They failed in their duty to the Court and the defendants when they put forward a hopeless case funded by legal aid.

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  • The barristers presumably acted in accordance with their instructions. If a defendant insists in the teeth of all the evidence that he is not guilty that is an end of it , and as legal professionals they are required to do their best for their clients and take whatever points a capable defendant could make for himself if he had the skill and knowledge. In my experience judges will not tolerate for very long inappropriate conduct on the part of advocates. More generally it is in the public interest that even the most unpopular defendants have capable representation because it tends to reassure the public that a verdict is fair and hence that they can have faith in the justice system. Otherwise people will tend to take matters into their own hands. On balance it has long been considered that this is not a price worth paying - even if it means letting a defendant waste time and money on what may appear to be a hopeless attempt to evade responsibility. And sometimes it turns out that an obviously guility person is actually innocent. I still remember the Guildford Four and Birmingham Six even if Anonymous doesn't.

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  • Stuart: unfortunately memories are short there will always be many people like Anonymous-at-8 am to tell us that if you didn't do anything wrong then you have nothing to worry about. Of course the Woolwich case is an extreme one in every sense, including the point being argued here, but leaving aside those cases where the offenders are caught on film and there really is little doubt as to what was done, Anonymous does not make it clear who he thinks should be deciding when someone should not have legal representation because the case is "clear cut": presumably people like himself, whoever he is! Or perhaps the prosecution should decide! Of course were he to be charged with an offence he would certainly be entitled to legal representation because he would be "innocent". Pray for his sake he doesn't have someone like him deciding if he should have the right to representation.

    Interesting that comparatively few Norwegians thought that Anders Breivik should not be entitled to legal representation, despite the heinousness of his crimes. Is that not the mark of a civilised country?

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  • Good on them for sticking to their guns, it is a pity that the family lawyers/barristers did not do the same in relation to the cuts in civil. We have seen the disastrous results of those cuts first hand, not only vulnerable clients unable to obtain representation thus tying up Court time, raising the heat in the relationships and thus creating distress for any children, but also the number of LiPs who now threaten our lawyers, death threats (one had a custodial sentence as a result of such a threat), physical abuse, one of our lawyers attacked by a LiP, the threat to our receptionist and other staff when abusive and threatening opponents have every right to contact us with no lawyer keeping them under control. Still this government is doing a grand job of bringing this once great Country to its knees in so many ways - this is just the tip of the iceberg. They should hang their heads in shame

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  • I don't think you have got that right actually. I don't see why counsel should have put forward a positive not guilty plea when it was obvious that the defence case had no prospect of success as a matter of law. Now I hear one of them is appealing-another waste of public funds. No doubt these comments will now be deleted!

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  • Anonymous Anonymous,
    I can't believe anyone competent enough to make a comment here can believe that politicians, least of all those who climb (you don't simply rise) beyond just being an MP, have any shame.

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  • What's shameful about trying to cut the exorbitant legal aid bill? It is those defending the woolwich murderers in this way who should be ashamed. It is acceptable to raise a genuine defence but not one that has no basis in law. This is much like a burglar arguing that there is no such thing as private property and so there is no theft.

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  • Now this is amazing!
    Someone has seen fit to delete my comment regarding Legal Aid gained by fraud and deception whilst allowing 2 anonymous comments which reference what I had to say on the matter.
    The first one points out that the subject matter concerned legal aid in criminal cases whilst my own case had been processed through a civil court.
    My answer to this is yes, it was a civil case which in a criminal court would have been conducted on a charge of Obtaining Goods and Services by Deception.
    This same charge could also apply to the manner in which my former client gained his legal aid certificates.
    The proof of this is in the fact that all of the claims which gained him the benefit of legal aid certificates were later rejected by, or/and conceded to, the court.
    He had no right whatsoever to those certificates and the legal aid system, and public funds, were abused unmercifully.
    I thank the second Anonymous poster for confirming that the actions of barristers can hinder justice.
    This was the situation in my case.

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