Dec 2

What’s it all about?


This week the Ministry of Justice announced further cuts to Legal Aid. It has not significantly amended its original proposals to the number of duty solicitor contracts to be awarded (up from 525 to 527, meaning two thirds of criminal duty solicitor firms will be unable to continue in business).

It still intends to implement further cuts of 8.5% to solicitors’ fees. The Ministry’s original decision on these topics was judicially reviewed. (The Ministry’s approach might be illustrated by the fact that it tried to hide two of the reports it commissioned, which said that the cuts and changes make the sector unviable. The High Court found that the Ministry had acted illegally in doing so. The Ministry of Justice called this finding “a technicality”).

Recently the Ministry of Justice also announced the end of police cautions: alternative methods of case disposal are to be preferred, including attaching requirements to orders the police impose (even if they have no forensic controls).

Amongst all this news is the confirmation that the police are succumbing to the pressure they are under to reduce crime figures. Which they do by “no-criming” offences. This means crimes are not
reported and do not go through the courts.

There has also been an announcement, barely noticed, that the Offences Against the Person Act 1861 is to be reviewed. It is after all very old. It governs ABH, GBH and such offences, ones with which the public as well as lawyers are well familiar. One of the criticisms of the current Act is that too many minor offences of violence are dealt with in the (relatively expensive) Crown Court.

All of which could be read as necessary reform of the criminal legal aid sector, a government reducing crime, and positive changes to old laws.

In reality all of the above changes are about cost. Reducing representation, reducing cases going to court, and reducing cases going to the Crown court (where juries sit and where you or I might want to be tried if we were to be accused of a crime, that is according to the evidence, by our peers). Our system states there should be fairness for all before the law, however poor the background of the person or uneducated they may be. But it is no good pretending we have a Rolls Royce criminal justice system when it is in fact a clapped-out Reliant Robin. And saying again and again it is a Rolls Royce doesn’t make it so.

In 2012 the cost of our criminal justice system was in fact equal to spending in other EU countries. So say the National Audit Office. Since then there have been enormous cuts. The Ministry of Justice has already met the savings it sought to make by 2018. It is now making more cuts. It is likely that those who work in the system will find that the cuts have gone too far. Eventually the reality will hit so many people it will hit the headlines again – when too many victims have crimes “no-crimed”, too many witnesses have to attend court several times due to double and triple listing of cases in the same courts, when too many defendants have been wrongly convicted, too many criminals wrongly acquitted, or perhaps most significant of all when too many of the wealthy have a brush with the criminal courts and are acquitted (due to their highly paid legal teams) but then still have to pay the bill – because in this country even acquitted defendants have to pay their private legal fees (courtesy of the Legal Aid and Sentencing Punishment of Offenders Act 2012).

With many legal aid providers driven out of business and only a wealthy few remaining who can afford private legal fees, the criminal justice system will become increasingly unbalanced, against the poorest and the most vulnerable in society. It is said that crime only matters to people when it affects them. Witness, juror, defendant, victim and the families that know them is nonetheless a large group: it could be you. Just hope rather than expect the system to work for you when you are affected by it: Reliant Robins are not renowned for their reliability after all.

It was said of Rufus Choate, a famous American trial attorney, that he always seemed to get the best cases. Increasingly those with the most resources will find they have better outcomes at court. Hardly fairness for all. Hardly fair at all. Yet one of the first casualties for people who become involved in the criminal justice system is their detached objectivity – strangely I have yet to be asked by a client to do my job worse so it is fairer to the other side, however bad they may be. But then you get what you pay for.