This is a guest post by Dan Bunting. Dan is a lawyer who blogs at the UK Criminal Law Blog.
A quick game for you, which of the following is not true?
- The police do not always get it 100% right.
- The Crown Prosecution Service does not always act with wisdom and common sense.
- All lawyers are fat-cats, who milk the extremely generous legal aid system.
The last one is of course not true, but it is what the current government would like you to believe. Why? In order that it may decimate the criminal justice system without you so much as murmuring.
What is this about?
This post is about the Government’s current consultation on ‘reforming’ legal aid. The proposal is to introduce Price Competitive Tendering (PCT) (also known as Best Value Tendering (BVT)). As you know, there is a lot of cost-cutting happening in Government at the moment. Efforts are being made to save money where ever possible and the legal profession is certainly no exception.
What is legal aid?
Legal aid is basically state-funded representation. Where a person needs legal advice and representation, the state sets aside a pot of money to pay the bills. Not all areas of law are eligible for legal aid however. We will, as you would expect, focus purely on crime.
What is the current situation?
At the moment, legal aid is currently available to anyone that is arrested and charged with a criminal offence that is heard in the Crown Court. This means that you can go to any solicitors firm with a legal aid contract who will represent you (an overview can be found here). Depending on your earnings, you may have to make a contribution (that will be capped) which will be returned to you if you win.
What are the Government planning?
In short, a “one size fits all, pile ‘em high” legal aid system. The aim is to reduce the fees by at least 20%.
Currently, there are about 1,600 firms doing criminal work. Some are large, covering huge areas of the country, some are small, providing a more niche service. Currently, every firm is assessed as to whether they provide a proper service and, if they do, they are given a contract.
50% of a firms work will be ‘own client’, i.e., repeat business. If they do not give a proper service, they won’t get people coming back to them and they won’t be able to survive financially. Market forces, it’s as simple as that.
Under the new plans, you will have no say in which lawyer you get. The government, (the same government that is prosecuting you as the CPS), will tell you which lawyer you’re getting. If you have a regular lawyer, or someone who
comes highly recommended, well, tough. Client choice is out of the window.
Also, the fees paid to lawyers are being ‘harmonised’. What that means is that, for almost all cases, the amount that the solicitors are paid will be fixed, regardless of how much or how little work is involved.
There are many problems with what the government is planning, but we’ll just be looking at these two.
Who will be eligible for legal aid under the new proposals?
If you have a disposable income of over £36,500, there will be no legal aid for you, you will to pay privately. This is whether you’re caught with a spliff or caught up in a pub fight which ends up in a trial that lasts weeks. Paying for those lawyers privately won’t be cheap and, even if the jury believe you are innocent, you won’t get your money back (other than at the legal aid rates which will be far less than you’ve forked out) Yes, that’s right, you’ll have to pay for the privilege of a prosecution against you even if you are found innocent. A tax on your innocence, if you like.
What will the effect be?
The aim is that the small firms are pushed out (they say it is ‘inefficient’ to deal with many small firms) and big companies take over – so look forward to Tesco Law, Stobart Barristers (yes, the trucking company) and G4S (the same G4S that stuffed up the security at the olympics).
Even if you’re eligible, there remains the question of what sort of service will you get. How will you know that the lawyer you’ve been given is any good? Under the proposed scheme, you might strike lucky, and get someone who stayed
in the game through duty and a love of the job.
Or, you might end up with the short straw – someone who works at the legal equivalent of a sausage factory, who excels turning around the files on his/her desk quickly while maximising profit. Sure, that file might be your life, but to the sausage factory lawyer, you’re a bit of grist in the mill of meeting a target. The proposed system has a lack of quality built into it, it’s evolution in reverse, the worst lawyers survive.
Then there is the incentive for ‘persuading’ you to pleading guilty.
So, you’re innocent, and you want a lawyer who will fight your corner for you? Ask yourself this – which is more
work:
- flicking through the papers on the train on the way to court and telling you to plead guilty or,
- preparing a case for a trial – speaking to you on several occasions, tracking down your witnesses, speaking to them and making sure that they come to court, chasing down the police and prosecution to give over all the
material they have, which will often involve going to Court to force them two or three times, going through all of the witness statements with a fine toothcomb, looking for that one point that may ‘crack’ the case and then being in Court for the first two days of the trial?
It’s a no brainer. Under the new scheme your solicitor (who prepares the case) and advocate (who goes to court and presents your case to the jury) will get paid exactly the same in both those scenarios above.
Even if you withstand the pressure of ‘persuasion’ and insist on having a trial, do you think that the sausage factory lawyer will prepare a case that effectively he/she is not getting paid for as thoroughly as you would hope? Don’t count on it.
So it is about money?
We are not saying that any lawyer is going to set out to do a bad job or deliberately put money over service, but actions have consequences if you took 30% off the NHS budget tomorrow then, with the best will in the world, you can’t expect the same level of service. Individual doctors and nurses will still go on doing the best they can but no-one would believe that the care that they got would be the same as before.
This isn’t a case of lawyers ‘doing you over’ if they are paid badly. The problem is that there are competing interests. When a firm, because of the 20% (minimum) cut in fees, has to perform as much work as it possibly can in order to stay afloat, and the fees are the same for a long trial or a quick guilty plea, then there is a conflict. One might question whether when faced with a decision which has an impact upon the financial health of their firm, a Tesco Law lawyer can truly be independent. You might be lucky, but do you want to take that risk?
Why should I be bothered?
You may not feel too sorry for lawyers, or you may think that this won’t affect you, but you’d be wrong. Anyone can be the subject of a false allegation or even in the heat of the moment just do something the law declares is wrong.
This isn’t about fee cuts to lawyers. Although criminal lawyers do a get a raw deal in the press in relation to the perception of how much money they earn and how they ‘milk’ the legal aid system, these concerns are about quality.
One day, you might need a legal aid lawyer, and even if you are fortunate enough to qualify for legal aid, there is no guarantee that the lawyer will be acting in your best interests alone. They may well just have an eye on the clock and their quarterly targets.
What can I do about it?
If you’re not happy about it, sign the petition to force a debate in the House of Commons about it.
A campaign group, No To PCT, has been set up. You can find them on twitter and facebook. Also, you can respond to the consultation on an easy online survey.
Hynd's Blog 
Good post and obviously right about everything. I just have a small addition as a non-criminal legal aid comrade.
As immigration lawyers the current proposals are very concerning on a number of fronts (particularly in that they coincide with a governmental assault on judicial review, but that is perhaps a topic for another blog), the main one being that they intend to deny legal aid to all foreigners unless they have had at least a year’s worth of lawful residence in the UK, apart from people making initial asylum claims.
Lawful residence means someone who either has a visa to be in the UK or doesn’t need one (on account of being from the EU for example). The previous cuts to civil legal aid removed all mainstream immigration cases from legal aid eligibility, so if you are not rich and have had the nerve to fall in love with someone from outside of the EU, then you can’t get legal assistance in bringing them here to live with you. However, these cuts left asylum claims eligible for legal aid as the government recognised that they shouldn’t be sending people back to their deaths without giving them the benefit of a lawyer first (I paraphrase).
While maintaining this position for people making their first asylum claim, the new proposed cuts will mean that people who are making a fresh claim for asylum (who have already claimed asylum before but been refused and are now having another go through presenting new evidence they didn’t have the first time round) will not be entitled to legal aid assistance.
In the context of consistently appalling decision making by the Home Office on asylum claims, legal aid cuts meaning that more and more claimants go without representation and the unfortunate blight of dodgy lawyers providing shit advice, fresh claims are vitally important. They are also extremely complicated and long-winded processes which claimants regularly have difficulty understanding.
Removal of legal aid for this group will result in people being sent back to persecution who have a right to protection here.
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