The government’s consultation paper ‘transforming legal aid’ does affect one transformation. It transforms people into mere economic units by denying them the simple human dignity of choice. These Stalinist proposals to require people to abandon their freedom of choice and to force them to be represented by a lawyer allocated by an impersonal call centre are disgusting. Winston Churchill said: ‘The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.’
Clients are people and if they are legally aided when accused of crime they do not cease to be such. The process of arrest and prosecution are demeaning enough without this added humiliation of denial of choice. In contrast, unlike the majority of the community, the political and wealthy elite will of course retain the economic ability to purchase their choice of legal representation. It is a socially divisive and shameful proposal.
Apart from the powerful moral argument against restriction of choice the proposals make no real economic sense to anyone with real knowledge of the criminal justice system. The bean-counter approach to this sector of public expenditure ignores the far worse economic effect it will have on the whole system. The proposals remove the quality of representation as a factor in the instruction of a lawyer. Lower-quality firms will be allocated clients at the same rate and level as the best of us. That will mean less efficient and more costly outcomes.
The government seems to have learned nothing from the interpreter tender debacle. The high number of abandoned hearings at all levels exposed by the justice select committee is a classic example. The government no doubt congratulated itself in obtaining interpreter services on the cheap by tender but failed to take into account the huge expense and inconvenience to the rest of the criminal justice system. This miscalculation will be repeated if it moves efficiency and quality out of the equation in the legal representation of legally aided clients.
Judges and magistrates trust those firms they know and who regularly appear before them. They are influenced by their integrity and quality and submissions made by such firms carry weight and consequently result in cost savings due to sensible outcomes achieved. Break that link with quality by replacing it with instruction by random allocation by a call centre and it will wipe out and eclipse any apparent short-term financial savings achieved. Recently at court an advocate explained to a district judge that his client had no recall of an incident but believed it unlikely that he committed an offence. There was CCTV but it was not available in court to view.
Although an adjournment rather than fixing a trial date is discouraged these days, it was clear that it was sensible to apply to adjourn to view the CCTV rather than launch into an expensive trial process. The district judge said: ‘I do not normally accede to applications to adjourn rather than fix a trial date here and now. However it does to some degree depend upon which firm is making the application. In this case I will adjourn for a week for the CCTV to be viewed.’ The known reputation of the firm secured that sensible result. (Entirely justified by the subsequent outcome and saving of court time.)
The regular competent presence of that firm (and others) was achieved by building up a reputation over many years resulting in regular appearance at court. This proposal throws away reputation as if it means nothing when it in fact means everything, not just to clients but to all involved in the criminal justice system. A tick-box approach is no substitute for a quality-driven track record.
Recently I was instructed by two police officers (the highest compliment an officer can pay to a solicitor one said) and on a separate mater an old friend I had not seen for many years. All intending to fight the allegations and hopeful to have some legal aid help due to their financial commitments. In future I would have to turn them away and ask them to telephone a call centre whilst I turned to my own equally allocated anonymous, sullenly resentful, case load referred to me by that same call centre.
I cannot believe that if a politician, MoJ civil servant or wealthy person were accused of a crime they did not commit that they would be content with being represented by a solicitor randomly allocated by a call centre. But they are content for the ‘little people’ they rule to be denied the same choice even when, as taxpayers, citizens will have paid through taxation for the right to be legally aided.
There are many other serious flaws in these proposals. Having one fixed fee irrespective of whether a client is guilty or innocent may create a perception that (through financial weighting designed to achieve a quick outcome), independent legal advice is compromised in ways that will be difficult to detect resulting in innocent people feeling pressured to plead guilty. The bar will be condemned to conduct unprofitable Crown court trials over days whilst solicitors increasingly reserve for themselves the quick guilty pleas for the same fee as a trial. This is bad for the bar and bad for solicitors with higher rights.
The allocation of work share in local areas in the way envisaged will result not only in the death of the small practitioner but big firms or consortia failing under this design model to achieve even the equivalent of their present market share. The present model without exaggeration is catastrophic in its impact upon the whole profession. If anyone thinks they can make this work then, with respect, in my view they have not understood the proposals.
There is also major frustration when dealing with government when the same tired point is made by every new minister, which is, ‘why haven't you suggested reforms and economies before?'. I find it astonishing that there is so little continuity between administrations on such an important subject that all the incredibly detailed submissions made by the profession seem to disappear into a bureaucratic black hole. Perhaps if they had read our prior submissions they would not keep introducing unworkable competitive tendering schemes which they repeatedly abandon when the true impracticality dawns upon them. The government needs to urgently reconsider and for once listen to the professional bodies with their proposals for reform hopefully leading to workable substantial savings to the taxpayer.
‘The legal system we have and the rule of law are far more responsible for our traditional liberties than any system of one man, one vote. Any country or government which wants to proceed towards tyranny starts to undermine legal rights and undermine the law.’ This is a quote from the late Margaret Thatcher.
The right to choose your lawyer and the right to contest the state’s prosecution of you without fear of compromised legal representation are a test of civilisation that this generation must not fail as both are a safeguard against tyranny.
A meeting to consider the consultation document, open to solicitors and barristers will be held at Friends Meeting House, Euston on 22nd May at 2pm, registration from 1:30pm. The meeting will be addressed by representatives of the CLSA, LCCSA, LAPG, SAHCA, the Law Society and the Criminal Bar Association.
Robin Murray a solicitor with Robin Murray & Co and vice chairman of the Criminal Law Solicitors Association.