Transforming Legal Aid: Next Steps – Consultation Response by Garden Court Chambers

Garden Court Chambers have formulated the below response to the Ministry of Justice consultation document ‘Transforming Legal Aid: Next Steps.” The response reiterates Chambers’ strong opposition to the cuts to legal aid.

Introduction

Garden Court Chambers is one of the largest barristers’ chambers in England and Wales.  We have recently welcomed to Chambers a number of barristers from Tooks Chambers and, considering that Tooks closed as direct result of the existing cuts to legal aid, we have direct experience of the profound effect that the cuts have already had on barristers carrying out publicly funded work.

Legal Aid is one of the cornerstones of a civilised society as rights are worthless if they cannot be enforced.  The law is our system for doing this and it is universally recognised that, where the state intervenes in our lives, we must be able to assert our rights and this almost always requires the help of lawyers.

The very credibility of this pillar of our society is now under threat.  We note that in the introduction to the consultation, the claim that our legal aid system is the most expensive in the world is repeated.  This claim is utterly false. If the Government truly believes this claim, and if it underpins their processes, then they are actively misleading themselves in a crucially important factor in their deliberations.

Moreover, there is no acknowledgment of the effect of the existing cuts to legal aid.  These cuts have already led to dramatic reductions in the legal aid budget.  It might be expected that the government would be extremely pleased about this and might trumpet it as a success of their policy, given that it was the stated goal.  We are concerned that the actual government agenda is to destroy whole sections of the publicly funded legal profession knowing that once it has gone it will be difficult, if not impossible, to rebuild.

Nowhere is the damage to our current framework going to felt more seriously than to Black and Minority Ethnic (BME) legal practices, due to the potential increase in the difficulty of attracting BME people to join the profession.  Great strides have been taken to make the legal profession more representative of the community that we serve, and Garden Court Chambers has been at the forefront of this fight for decades.  However, the cuts will, without doubt, disproportionately affect these areas by hammering the smallest legal practices. Considering that a disproportionate number of BME practices are small firms, they will no doubt feel the effects most strongly, due to the fact that entry into the professions will become more elitist and expensive.  Failure to acknowledge and to take into account these factors is a serious omission in the proposals as they currently stand.

We remain unconvinced, therefore, that this consultation is a true procedure.  It is claimed that the Government has listened to the unprecedented 16,000 responses to the first draft of these proposals. It is simply not accepted that any significant part of these responses favoured the proposals now being consulted upon.  The overwhelming number of these responses have, consequently, been largely ignored.  We hope the responses to this new consultation will not similarly be ignored.

1.  Do you agree with the modified model described?

No

Please give your reasons.

These proposals mainly affect contracts for solicitors and our colleagues in the Criminal Law Solicitors Association and the London Criminal Courts Solicitors’ Association (LCCSA) have drafted the clearest responses yet. The responses demonstrate that these proposals are a plan for the catastrophic attack upon most small high street firms.  We make some specific comments below.

The modified proposals will result in the devastation of high street solicitors.  All the alternatives to such a provision are untested and will not carry the confidence of service users, who include both the lay clients and all who they come into contact with: police, courts, and probation services.  Local high street solicitors are a proven success and ensure high levels of competition, low costs, high service levels and access to high-quality advocacy.  The present system, which incorporates previous cuts, is already leading to many firms closing down (if they are exclusive crime firms) or to the closing down of their criminal departments.  All the figures demonstrate that the current procurement regime is resulting in much greater cuts to expenditure than were originally forecast.  Current costs have been cut to the bone.  Few existing providers will be able to survive the further cuts. The procurement proposals will lead to the demise of the current provisions with no idea about what will replace it.

2.  Do you agree with the proposed procurement areas under the modified model?

No

 Please give your reasons:

These procurement areas affect solicitors and the Criminal Law Solicitors Association and LCCSA have responded fully by pointing out the problems with the proposals.

We believe that these proposals are part of a wider plan to squeeze out the only reliable and cheap providers of legal services, i.e. local solicitors’ firms.  Many, therefore, will not be able to merge and participate at all in the procurement process.  They have already cut their costs drastically and will be unable to sustain the cuts which are being proposed.

3. Do you agree with the proposed methodology (including the factors outlined) for determining the number of contracts for Duty Provider Work?

No

Please give reasons.

The reasons for our opposition are set out in the responses by the Criminal Law Solicitors Association and the LCCSA which we adopt.

4. Do you agree with the proposed remuneration mechanisms under the modified model (as described at paragraphs 3.52 to 3.73)?

No

Please give reasons.

The modified model (see paragraph 3.52) proposes a total reduction in fees of 17.5% by Spring 2015. This is to be carried out by a 8.75% fee reduction in early 2014, followed by a second reduction of 8.75% in Spring 2015.

The paper fails to set out how firms, who are already under immense pressures to stay afloat, will be able to absorb the above price cuts.

‘Capacity to deliver services at the right quality,’ simply cannot occur with the level of suggested cuts suggested above. The concern is that, yet again these proposals fail to consider why quality of service, representation and advocacy, within both the magistrates’ and crown courts, is such a fundamental tenet of a democratic society.

The view taken by the paper is that the above reductions would encourage providers to explore options of market consolidation. There is no explanation or justification as to why consolidation would, in fact, result in economies of scale to the level of reduction suggested, nor are there any sound economic arguments as to why firms would consider criminal law to be sustainable thereafter (regardless of size).

To reiterate, Garden Court Chambers is concerned about the hugely detrimental impact these ‘price cuts’ would have upon small high street firms, many of which are BME firms who have worked tirelessly for the protection of the rights of their local communities.

The example of proposed fixed fee for police station work given would be £192.54 (inclusive of VAT). The proposed fixed fee for magistrates’ court work would be £310.45 (inclusive of VAT). It is odd that the Government chooses to ‘inflate’ its figures through the inclusion of VAT.

Quality representation at police station interviews is key to assisting all agencies in the administration of justice. It cannot be ignored that the proposed reduction in the fixed fee in London would in fact be higher than the national rate, some 34.4%. No consideration is given as to whether or not an interview might take 10 hours, or one hour; neither is consideration given to the number of interviews that are held. Individual rights are at stake, for the input of resources at the stage of police station interview is vital, particularly if the accused is vulnerable. The content of a police station interview is fundamental to enhancing the overall efficiency of the entire process, from the quality of charging decisions, to decisions about investigation and to narrowing the issues for trial.

Furthermore, it is difficult to understand why, given the context of non-increases in payments for more than the last decade, how a reduction of 17.5% can be justified.

The view taken appears to be that complexity equates to page count and at paragraph 3.69, the current proposal is for cases where the pages of prosecution evidence (PPE) is over 500 pages in length.

The calculation of complexity according to page count ignores the varying levels of complexity of cases, particularly in those involving clients of vulnerable backgrounds, such as those who suffer with mental health difficulties. The stance of the Government is to ignore the need for the highest quality representation for those that fall within these categories.

The true ‘market worth’ of an efficient and effective criminal justice system is a system that is protecting the fundamental rights of all, including defendants and complainants. This is not merely measured by rudimentary and unworkable cuts of 17.5%. Quality advocacy is needed not simply to defend those accused of crimes, but to ensure that complainants are questioned appropriately and sensitively as well.

Further to the above, Garden Court Chambers supports the reasons set out by the Criminal Law Solicitors Association and the LCCSA, which we adopt.

5.  Do you agree with the proposed interim fee reduction (as described at paragraphs 3.52 to 3.55) for all classes of work in scope of the 2010 Standard Crime Contract (except associated Civil Work)?

No

Please give reasons.

The reductions of 8.5% followed by a further 8.5% are simply unworkable, unsustainable and unjustified.

Access both to justice and to the highest quality of representation for the most disadvantaged in our society are tenets to uphold and to support. We at the heart of criminal legal aid support efficiency, but not at the cost of losing the quality of something so vital and so fundamental.

It is odd that no Government department has been asked to implement wholesale reductions of 17.5% and we ask both where such reductions are meant to evolve from, and how this figure has been calculated as offering a sustainable solution. No consideration has been given to the long-term costs of job losses from firms shutting, or to miscarriages of justice that may ensue.

Instead, firms will shut, vital organs of the local community, such as local high street criminal defence firms, will no longer be in place and protection for BOTH complainants and defendants in trials will be lost.

In addition, the long-term impact upon the profession will be devastating. As a chambers, we are committed to the provision of the highest quality advocacy right from the magistrates’ court to the crown court, regardless of page count.

The junior members of the profession, particularly in the first four years of their careers, will be the hardest hit and driven away from the profession.

This chambers does not wish to see a return to the lack of social mobility and the lack of representation of ethnic minorities that was prevalent at the Bar many decades ago. Key to the success of any proposals is the true understanding of why a long-term solution is required, not a bludgeoned cull in the artificial guise of market efficiency.

Further reasons for our opposition are set out in the responses by the Criminal Law Solicitors Association and the LCCSA, which we adopt.

6.  Do you prefer the approach in:
• Option 1 (revised harmonization and tapering proposal); or,

  • Option 2 (the modified CPS advocacy fee scheme model)?

Neither

Please give reasons.

This is a false choice. Both proposed schemes fail to adequately remunerate criminal barristers for the preparation required for a trial or for the complex advocacy that is involved. Moreover, the harmonisation between the fees for an effective trial and for a guilty plea provide a perverse financial incentive to pressurise a defendant into pleading guilty. This has the obvious potential to corrupt the administration of justice.

Criminal barristers have been subjected to especially deep cuts over the last 10 years and more. It is important to note that no other workers in the public sector have received anything like the levels of cuts levied at the criminal bar. These proposed cuts are the final nail in the coffin and will lead to the extinction of the criminal bar and of quality advocacy in the criminal courts: whether or not that is the government’s aim, that will be the end result.

Proper representation for defendants in criminal trials is not a luxury item of expenditure for the government. It is essential for a number of reasons, not least that it saves costs elsewhere. Professional representation means that trials are more focussed on the real issues, that appropriate admissions are made and that complex matters are scheduled with care: this saves time and money. Further, vulnerable complainants are cross-examined professionally but efficiently and with respect. Because trials are dealt with properly at first instance there are remarkably few miscarriages of justice in this country, again saving time, money and also agony for complainants and defendants alike.

Option 1 involves a tapering system that will penalise counsel for being instructed in a long-running trial. This makes no sense whatsoever. The taper does not even come into effect after the trial estimate has been exceeded, it comes into effect on Day 3 of the trial.

The Government cites no evidence that defence advocates are responsible for delay in the conduct of trials. In fact, the Government should take heed of significant recent judicial comment on the huge problems caused to the justice system by those forced to self-represent in the civil courts because of a denial of legal aid: delays and inefficiencies are rife, taking up much more of the court staff’s time and of the judge’s time in and out of court. In the absence of any evidence that defence counsel are responsible for delays, we submit that in fact the opposite is true: proper representation saves time, leads to shorter, more focussed trials and saves money.

Penalising counsel for delays caused by others is also unfair and illogical: it is common ground that significant and substantial delays are caused in the Crown Courts by all sorts of third parties and are completely out of the control of the barristers in the case. For instance, delays are routinely caused by the government’s private sector friends such as Serco bringing prisoners to court late; by jurors being ill; by witnesses failing to attend on time; by defendants failing to attend on time; and by public transport delays impacting on everyone through from the Judge to the members of the jury. The situation has been further exacerbated by problems with interpreters failing to attend due to inefficiencies within Capita, another private-sector ally of the Government. None of the above delays have anything to do with counsel, yet all are regular occurrences in the criminal courts.

Option 2 simply involves a significant across-the-board cut to trial fees. This is on top of the significant across-the-board cuts that have been imposed on the bar over the last few years. It is completely unsustainable.

Any enhancement in rates for guilty pleas will be of little consolation as such cases are likely to be “hoovered up” by in-house advocates inside solicitors’ firms, with the more poorly remunerated trials being briefed to the independent bar. This is not a scheme which rewards excellence, hard work or preparation.

Additionally, it is wrong to equate the work that goes into preparing for a guilty plea at the first instance with the work that goes into preparing a case for trial (even if it ends up as a “cracked trial” later in the proceedings). Careful preparation for an early guilty plea is of course necessary, even in circumstances when the defendant has always admitted culpability, but the nature and extent of that preparation is significantly different to what is needed if a defendant pleads not guilty and the case is prepared for trial. The proposed rates do not properly take this into account at all.

Much criticism is made of managers in the NHS and in other public sector areas, some of which might be valid. However, at least the majority of such managers are based inside hospitals and healthcare centres. In the legal profession it seems that there is a huge void between those of us who spend our working lives in the courts and those who seek to manage the legal aid budget, who appear to have little or no experience of the court system and of the skill set and effort needed to provide excellent representation. It seems to us that the Government would benefit from exposing members of the Ministry of Justice legal aid group to the realities of legal aid practice, as if this was to happen many of the misconceptions contained inside these proposals might be avoided.

One of the greatest tragedies of these cuts will be the loss of experienced and specialist criminal barristers on whom the criminal justice system so heavily relies. There will also be the equally devastating loss of talented new entrants to the criminal bar. The Government should be under no illusion: these cuts will make it completely uneconomic to practise at the publicly-funded criminal bar. Before misleading figures about “fat cats” are promulgated by the government, it should be borne in mind that unlike almost any other public sector employees, criminal barristers are self-employed and do not receive any benefits such as pensions, sick pay, holiday pay or overtime and they must meet their own expenses.

These impacts may be irreversible, or will take many years to reverse. The effects for vulnerable defendants and complainants would be considerable. Standards of advocacy will drop and will lead to more delay, more appeals, more inappropriate cross-examination of the vulnerable and, perhaps worst of all, more injustice to both sides caused by poor quality representation.

The answer to the question is that we prefer neither approach as both will inevitably lead to the decimation of the independent publicly-funded bar and will mean significantly decreased access to excellent representation for the poor and vulnerable.

Impact of these proposals – General observations

Due to a combination of previous reductions and delays in the payment of fees, following the (unnecessary and costly) reform of the payment of Crown Court fees, considerable hardship has been caused to practitioners. This has resulted in barristers being unable to meet personal daily living expenses and the cost of travel to and from court. The Ministry of Justice must be aware of the hardships caused to practitioners and the concomitant stress placed on them.  None of this is recognized.

This has resulted in an exodus of both junior and highly experienced practitioners from the profession into working for the civil service, third sector and education.  Similarly others have moved to working in more lucrative areas.

Unfortunately it is rarely possible to successfully combine publicly-funded work with more lucrative work as appears to have been suggested by the Secretary of State.

This is particularly so in criminal law where the comparative absence of fixed dates for trials renders it nearly impossible to adequately manage diaries to allow for undertaking such work. It is also extremely difficult to combine a practice in criminal law with another area of law (even within the publicly-funded sphere such as family or immigration).

The warned list system operates to ensure that courts operate at maximum capacity and to the detriment of the instructed advocate, who cannot even depend upon a case being heard in the allocated warned list.

Whereas in the past cases of a serious nature or complexity would be fixed for trial on a specific date and for a specific period, this is increasingly rare for the typical Crown Court trial.  Even serious cases of rape, sexual assaults and violence involving vulnerable victims are placed into the warned list in some courts.  This is highly dependent upon the court in which the case is heard.

Ironically, and this is an impact that appears to have been missed, the system is highly dependent upon a level of flexibility in the system to ensure representation at trial and at all hearings listed in the Crown Court.  This in essence relates to having sufficient advocates to cover both trials and all of the other routine and non-routine hearings which take place in the Crown Court. The simple fact is that an advocate can only be in one place at any one time. In addition it is not possible to assert that a reduction in barristers will assist in reducing the level of fees. Payment is on a per case basis and therefore the costs remain the same.

Furthermore, the concept of subsidisation by other types of work is an affront to those undertaking publicly-funded work. It is objectionable to implicitly accept that the fees are woefully inadequate and require ‘topping up’.  This relies upon the (thus far demonstrated) good will of practitioners and their desire to continue doing publicly-funded work.  All that practitioners ask for is that their fees reflect the level of skill, education and value attributed to such work and present a ‘living wage’.

It is fair to say that no barrister entering the profession expects to earn an income equivalent to others in ‘city’ professions; however, these proposals suggest that they be remunerated at rates which would be not be acceptable to those in the civil service, tradesmen and public authorities. The good will of the Bar has however been pushed to the brink. The reality is that members of the Criminal Bar are at the tipping point of being unable to continue in practice owing to the large scale fee cuts over past years.

There is an irony to be found in the fact that the Secretary of State’s secretary is paid more and receives benefits (pension, holiday entitlement etc.) far in excess of the majority of practitioners at the criminal bar.  This is particularly so in light of the high level qualifications required for practice at the Bar and levels of responsibility involved in the work. Whilst it is accepted that the burdens of practice/diary management may be great along with anti-social hours, it is like comparing apples and oranges.

Further cuts would make financial concern an even greater worry for practitioners and there is likely to be a need to take on a greater caseload to make the profession viable. Financial worries for representatives, the overstretching of energy and time and, quite possibly, a mass exodus of very capable members of the Bar will have an adverse effect on the quality of advice and interests of justice.

Q7. Do you agree that we have correctly identified the range of impacts under the proposals set out in this consultation paper?

No.

Please give reasons.

The impact assessments are superficial and cursory in their approach.  There does not appear to have been any consideration of the evidence submitted in the prior consultation or empirical research informing the identified impacts.  As a consequence, the impacts identified are nothing more than headline banners and lack any real depth of analysis.

The impacts identified also proceed on a number of assumptions, which again ignore the wealth of evidence and expertise of opinion submitted on the previous consultation.

Worryingly, the impacts identified cannot take into account the pending advocacy review.

There is little or no reference to the impact that the proposals will have upon the administration of justice, the interests of justice or the impact on the quality of representation and advice to be given.

As Lord Carter identified in his relatively recent review of Criminal Legal Aid (which appears to have been disregarded by the recent consultation), “Clients need to have confidence in their legal representative in order for justice to be fair and effective.”

It may be trite, but it is not only important for justice to be done, but justice must be seen to be done.

Q8. Do you agree that we have correctly identified the extent of impacts under these proposals?

No

Please give reasons.

See above.  Examples are given below.

Diversity

One impact which has not adequately been addressed is that on the diversification and representative nature of the Bar.

We are committed to equality and diversity and our tenants and pupils come from a wide range of backgrounds. We believe that the same opportunities, including the ability to qualify and practice as a barrister, should be available to all – regardless of background, income, ethnic group, gender or sexuality.

The Bar has hugely diversified over the last couple of decades; however there is still quite some way to go. The overwhelming image of the Bar is that of white publicly-schooled male barristers.

Garden Court Chambers is a diverse set attracting the very best applicants.  From a socio-economic perspective, it is notable that a number of members were the first in their families to attend university and/or to forge a career in law.  Chambers has one of the largest groups of women barristers specialising in crime and is ethnically diverse.

The cuts will have a significant impact upon people from these backgrounds both entering the profession and remaining in the profession.  It will simply not be viable without a private income.

One only has to look at the expense of training to be a member of the Bar to see the real risk of disenfranchisement from the profession. With fees and costs calculated by the Young Barristers’ Committee to be in excess of £75,000 excellent applicants will seek out opportunities, which pay for their education and training and offer a wage far in excess of that which publicly-funded sets can offer by way of a pupillage award. Few without substantial parental assistance will be able to afford to choose publicly funded work. This will inevitably have a disproportionate adverse effect on those from non-privileged and BME backgrounds and the most talented will no longer choose to practice criminal law.

The proposals are said to target those at the top of the profession earning significant sums of money; however, an analysis of the fee cuts demonstrate that this is simply untrue. Those at the junior end will also find the rates of pay for their bread and butter work slashed with that type of work being covered in-house in any event. The junior end is struggling now; the proposals will cripple them.  This is the view of all junior members at Garden Court.  Many are considering alternative careers. The consultation is foolish in the extreme to assume that there will be enough advocates to pick the work up following any attrition.

Parents, whether male or female, are also adversely affected by these proposals.  It is accepted that in the main this relates to women.  It is very difficult to manage a period of maternity/paternity with practice at the criminal bar.  Child care is expensive and owing to the warned list system is unable to be managed efficiently.  The work involves significant amounts of travel and work outside of court sitting hours (unpaid) when in a trial.  At six years call, barristers pay tax on income billed but not received.  This has a huge impact upon those not currently earning and therefore have no regular income.  There is no maternity/paternity pay unlike in other professions. Unsurprisingly, there is a significant attrition rate at this level. The proposals will further exacerbate the ability to return to work at the criminal bar.

It was not that long ago that criminal law was seen as something of a hobby, to be undertaken when one had a private income.  There is a real concern that the criminal bar will return to those days when only the wealthy or frankly, the not very good and poorly qualified, will practice in the area.

Judiciary

This in turn will have an impact on the judiciary that cannot be understated.  Both the quality of the judiciary and the diversity of the judiciary will suffer.  Even at this stage, diversity remains an issue with comparatively few women and ethnic minorities moving to the Bench and progressing to its highest echelons. This impact will be seen across all branches of the judiciary and not just within the criminal justice system.

Such regression impacts upon not only those directly affected, such as defendants and complainants but society at large and the rule of law.  The long-term impact on public confidence in the criminal justice system and more widely the justice system, along with the associated costs has not been considered at all.

Rule of Law and Global Business

Furthermore, the Lord Chancellor lauds the UK justice system as a place for legal expertise, litigation and integrity in the justice system. As expressed by many lawyers working in these areas (and with no vested interest in legal aid) this is because of the strength of the criminal justice system and the rule of law. The impact upon the UK’s position in global legal affairs and as a place to conduct business has not even been considered.

A number of our members of Chambers practise internationally and are involved in training, evaluative work, consultancy work in various jurisdictions.  The UK is rightly seen as a centre of excellence; however, this is at risk.

Quality

With regard to quality, the impact of the proposals is seen to be almost negligible; however one only has to attend a Crown Court at the present time to see that quality of representation has diminished over time as a direct response to the cuts the criminal bar and solicitors have sustained. We no longer have a Rolls Royce legal system.  It is one teetering on the edge of collapse.  The CPS is woefully under resourced.

The rise of in-house advocates is also indicative of this.  That is not to say that some are not very good; some are.  However a large number are very junior, inexperienced and notably have failed to either obtain a pupillage or a tenancy at the Bar.  The impact on the quality of advocate is not surprising; given that the sums paid are often derisory to enable a profit to be made.

There is, however, a quality cost to this.  Whereas, if in chambers, these advocates would cut their teeth on less serious matters, the need to capitalise on fees means that often such advocates appear in cases way in excess of their experience.  Because fees are frontloaded for pleas of guilty, these are typically the cases kept in house, regardless of the gravity of the offence.  Sentences in such cases are often briefed out to counsel in circumstances where it was felt appropriate for the in-house advocate to take the plea (and therefore the larger pot of money) but not to deal with the complicated and poorly remunerated sentence hearing.

Furthermore, those advocates do not necessarily benefit from the in-depth training of a pupillage nor from the experiences of more senior counsel in chambers to whom they can turn to for advice.  The concern is that the proposals will increase pressure on solicitors to capitalise on all income streams and lead to the carrying out of all advocacy services.  As set out above, to enable what will be at most a modest profit to be made, the firm will need to employ not necessarily the best; but someone who is willing to work for the least money.

Multiple Advocates

Turning to the issue of multiple advocates; such certificates are granted relatively rarely.  This is not necessarily a good thing and the impact of reducing such cases has not been considered at all.  The use of multiple advocates often ultimately saves money.  It saves money in the preparation of the case, in the management of the case whilst in trial and ultimately it saves costs within the Court system.

One aspect often neglected is the situation where, in a long trial, the lead advocate falls ill or is unable to attend court (this very rarely happens owing to the dedication and ethos of those at the independent bar – entirely unquantifiable but hugely valuable).  Junior counsel in such cases ought to be able to take the case on and step in to continue the case.  This avoids jury discharges and huge wastage of court sitting time.  For example, fifteen years ago, it was not unusual to see Queen’s Counsel with a junior prosecuting and defending in cases of rape.  The quality of advocacy far exceeded that of today where such cases are rare and ordinarily involve junior counsel, or in-house advocate alone.

Deskilling of the Profession and Quality

Additionally, one can see already the deskilling of the profession. Paralegals are used more and more.  One can readily see that, owing to financial pressures, the incentive will be to take on large numbers of paralegals supervised by at most one or two solicitors with court experience in an effort to drive costs down.  Oversight will be scant and the expertise in criminal law lost.  This will cause delays as matters of significance are missed and adjournments sought and place far greater pressures on counsel to pick up the pieces at Court (if there are any left).

The proposals will lead to a reduction in quality of service.

‘Prompt Resolution of Cases

It is concerning that this is all in aid of the stated policy objective to “encourage the prompt resolution of cases” (i.e early guilty plea).  This is presumed to be a good thing and a primary aim. We dispute this.

Setting aside the very real issues as to conflict of interest arising as a result of the proposals (it is offensive to be given an incentive to get your client to plead guilty); justice is not something that can necessarily be administered speedily for a host of reasons; primarily those outside of the control of the defendant or his advocate.  It also ignores the realities of criminal practice.  One needs to consider the evidence to advise on plea.  It is not good enough to baldly assert that the defendant knows whether he did it or not; the complexities of the criminal law are such that they are beyond most non-lawyer’s knowledge or skill set.  It is also highly reliant upon the defendant taking said advice.

One only has to look at the Court of Appeal to see most recently the overturning of a conviction following a rushed guilty plea (as part of the early guilty plea scheme) to an offence that could not have been committed.

Miscarriages of Justice

The potential for miscarriages of justice will increase exponentially at a huge cost to society with the undermining of the rule of law and loss of public confidence in the criminal justice system.  Other costs include the loss to society of a contributing member, the costs of incarceration, the costs of the CCRC, Court of Appeal and the public purse of rectifying the situation as well as the human cost.  One only has to look at the not so recent past and the public defender system in the USA to see examples of this.

Goodwill and Impact of its Loss

Tuning to goodwill, this is hard to quantify; however it is clearly very valuable.  It is what ensures that trials commence on time, that court use is efficient, that work is done.  The loss of such good will (and effective free work) is exponential.

By way of anecdote, during the snow, members of the independent bar were often the only advocates to be found at Courts.  Rarely do members of the Bar not attend Court through sickness or other matters.  This can be compared to sickness rates within other professions and the civil service including the CPS.  The loss of the independent Bar will have a huge impact upon such incidents.  The cost (both financial and otherwise) of adjourning trials or other hearings in such circumstances is huge.

The Loss of Small Businesses

The majority of criminal legal aid providers are small businesses. Every barrister is a small business.  There has been no consideration of the impact of the revenue that will be lost through the implementation of these proposals (tax, national insurance, employment of solicitors, support staff, paralegals etc.).

Impacts on other areas of the CJS and other Departments

Invariably, these proposals will result in the rise of additional expenditure in other areas.  Courts may have to contend with litigants in person as defendants lose faith in their representation or are unable to find people they trust to represent them – easy examples include that given by Dan Bunting, a criminal barrister, where a two-day trial became 12 days because the defendant was self-representing.  The costs to the Court rose exponentially.

The trust in advice will diminish as defendants become aware of the financial incentive to plead guilty.  More trials may be a consequence.

When sections of society feel disenfranchised, unrest and an increase in crime is likely to follow. Among the myriad causes of the 2011 riots was a feeling among members of society that they were viewed as second-class citizens, that they were treated unfairly by the State. In the aftermath of the riots, the importance of having defence solicitors and counsel who were trusted and independent dealing with the court proceedings which followed was crucial in ensuring justice for all.

The Bar is good value and cheap.

Q9. Are there forms of mitigation in relation to impacts that we have not considered?

Put simply, no.  A proper impact assessment must be conducted.  The complete failure to do so renders any suggestion meaningless and this cannot be rectified by asking this question.

Garden Court Chambers                                         1st November 2013

57-60 Lincoln’s Inn Fields

London

WC2A 3LJ

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