The current attacks upon access to justice and victims of crime are an affront. We must unite and fight to help save the system.
Cross-examination of vulnerable witnesses
Firstly: I will look at the shocking decision to undermine the fee structure of court-appointed lawyers for cross-examination of vulnerable witnesses. The reduction in rates will certainly result in many witnesses having to face questions from the defendant in person or the trial not proceeding. The Ministry of Justice simply does not understand that lawyers regard such court appointments as irksome. They will not volunteer to leave work for which they are remunerated under full legal aid orders to waste a morning or afternoon upon such intermittent grossly underpaid work.
This is such a counterproductive measure from the government’s point of view, which may lead to the abolition of means testing under full representation orders to ensure trial can continue. It is also short sighted as court-appointed lawyers often assist the court (with no client retainer) by pointing out to prosecutors and justices’ clerks where the prosecution are in difficulty sometimes resulting in decisions not to proceed with the trial thus saving time and money. Conversely court-appointed lawyers are often asked by defendants for an informal view of the evidence and this results in a change of plea to guilty, thus avoiding the vulnerable complainant from the ordeal of giving evidence.
Here is the point. Involvement of lawyers at proper rates saves taxpayers money.
Lawyers will now vote with their feet and let the court get on with it. How on earth is this drastic cut consistent with the lord chancellor Liz Truss’s recently expressed concern about the cross-examination of ‘victims’ by their former partners in domestic violence cases? There is no thought or planning here just headline chasing whilst in reality undermining the current method of avoiding direct confrontation in court by a shabby counterproductive cut.
The dishonest assault upon the litigator fees
This is a dishonest assault and risks injustice to defendants and undermines recent proposals to front-load work to avoid delay. See Lord Leveson’s report, welcomed by all, where he said: ‘I would therefore recommend that the Legal Aid Agency look into this redistribution of the money available to them for fees, to support the efforts required for early engagement with clients so as to resolve the case or identify the true issues.’ (5.2 at 99). The cuts will hinder that aim fatally.
The present system is based upon a page-count cap and this is being reduced from 10,000 pages of prosecution pages to a payment for reading only 6,000 pages. Please bear in mind that defence lawyers have no control upon the amount of pages the prosecution serve. So solicitors will be faced with a choice of not reading the extra 4,000, thus being unprofessional in our service or reading them at a financial loss. How is this not a disincentive to the early engagement Lord Leveson recommended?
Why do I describe this assault upon the page count as dishonest? Because the consultation relies upon contrived statistics resulting from a shift from cases formerly classified as very high cost cases (VHCC) (reduced from 80 days to 60 days in range) with a consequential increase to the page-count calculation where these cases now located and taken into account. On the LAA’s own figures this has caused the VHCC spend to reduce massively and the knock-on effect of transference should not be a surprise to them when this results in an increase in the page-count category of Crown court cases.
It is therefore not true that the page-count spend has increased. It has been manipulated.
The overall spend in criminal legal aid is consistently falling and the figures show that since 2010 the fall has been 20%.
Crown court advocacy fees
There is a historic pattern of divide and conquer by the ministry. This may be big versus small firms or counsel versus solicitors. We are then picked off separately. This time it is senior counsel versus junior counsel and higher rights solicitors in relation to Crown court advocacy fees. In a Faustian pact with the senior bar there is proposed a shift in advocacy fees from the junior bar and higher rights advocates. The proposed move of 10% of fees from junior to senior is under the pretence of this being a career incentive. I think many will feel paying the mortgage is incentive enough to work hard, not some hypothetical career advancement to the status of QC that statistically cannot happen to the majority of even highly competent counsel.
It should not be imagined for a second that the profession has not ‘engaged’ with the MoJ with money-saving plans. We have. I have seen the correspondence. What happens is that the suggestions or at least the efforts are often warmly greeted by the MoJ. There are promises to look seriously at the ideas. Then silence. We chase. Then more silence. Then we find the civil servants with whom we built a relationship have moved on. We start again. Then we find the lord chancellor and justice ministers have moved on. There is never any continuity in the MoJ corridors of power. (Such power as they have with the Treasury bearing down upon them all the time.) No one ever comprehensively briefs their successor, be they civil servant or politician.
I have reached the sad conclusion that dialogue with these people is utterly non-productive unless you wish to sell your professional colleagues down the river and gain at their expense as we have experienced in the past.
In the long term the MoJ is not interested in radical reform even where it is proved to be viable. They will always reach for the axe because cutting rates here and there from that group or another will always seem easier than focusing on reform. The Criminal Law Solicitors Association has been working on a plan that will achieve huge money-saving benefits. This plan will free the profession from the bureaucratic nightmare we find ourselves trapped in. That will transform us from a low-paid volume-chasing profession to a relatively fairly-paid-per-case profession.
I express a personal view but I doubt we will want to talk to the elusive MoJ until they agree to a proper review of all these proposed cuts. They have firmly promised in the past not to implement an across-the-board 8.75% cut before a review. This sleight of hand alternative range of cuts is not within the spirit of that promise. That is especially so when the ministry also promised to engage with the profession on the reform of litigator fees. With this pre-emptive strike they have reneged on those promises. As recent history shows the MoJ only really listens when the profession shows fight.
What will happen if we do not show fight? They will cut and cut again. They will never stop. They will regard us with contempt and lacking the will to resist. This present crisis is not about these particular unjustified cuts. It is about all the unjustified cuts we have suffered in the past and those to come. If we fail then one day the nation will wake up to a collapsed criminal justice system, with unrepresented people in court everywhere. It is already happening. There are meetings being held across the UK. We shall see if the profession can fight for its own survival as hard as it can for the public it represents.
We hope the bar will reach out the hand of friendship so together we can force a change in policy toward access to justice.
Robin Murray is senior partner at Robin Murray & Co and former vice-chair of the Criminal Law Solicitors' Association