Legal Aid

A huge step backwards

PUBLISHED September 25, 2013

Opposing criminal legal aid cuts is a hard sell. Lawyers representing those accused of crimes do not enjoy popular support (the presumption of innocence is strangely absent in such debates) and the rights of those they represent even less so. Add to this a climate of austerity, and the argument may seem almost unwinnable.

However, decades of research and numerous miscarriages of justice should leave us in no doubt about the value of effective legal assistance. Even countries that have traditionally preferred pre-trial judicial supervision to the active involvement of a defence lawyer, now recognise the essential role of the defence in ensuring the fair trial of the accused and the production of reliable evidence. (For an account of changes to the French system, see

A question of rights

The European Court of Human Rights has set out in the clearest of terms the importance of legal assistance from the first police interrogation (beginning with Salduz v Turkey 2008), and the European Union has now agreed a Directive that should strengthen the uniform application of this right across the EU.

In all of this, England and Wales is often held up as the model of good practice. Yet, our own government is seeking to dismantle the provision of legal assistance in a crude attempt at cost-cutting. Despite the Minister?s claim that "access to justice should not be determined by your ability to pay?, this is precisely what these planned changes will achieve. This is not about "fat cat lawyers? or the tiny minority of cases that attract very high fees. This is about ordinary cases and ordinary people.

Lawyers and clients

We are not uncritical supporters of the legal profession. Jackie Hodgson?s research has highlighted deficiencies in criminal defence work: of the widespread delegation to unqualified and untrained staff in the 1980s and 1990s, and of the poor standards of representation in some criminal legal aid firms at that time. However, this (and other) research also demonstrates the necessity of effective legal advice, assistance and representation in the protection of the rights of the accused and in ensuring that only the guilty are convicted. Recognising the key role played by defence lawyers in ensuring a fair trial, Ed Cape has spent many years supporting defence lawyers in delivering services of the highest quality. The lawyer-client relationship is at the heart of effective legal representation. It ensures the necessary degree of trust required for the client to make full disclosure and for the lawyer to advise. This is especially important for the large number of children, and vulnerable suspects and accused persons, who appear before the courts. A prior relationship with the client also enables criminal proceedings to run more smoothly ? lawyers can pre- empt difficult issues and unpalatable advice can be given and accepted more easily.

Under current proposals, all of this will go, as the criminally accused are simply allocated a legal adviser at random from within a large geographical area. The removal of choice runs counter to reforms in other public sector areas. It is ineffective and inefficient.

Just as we would not expect to go to a different GP practice every time we have a health concern, so it makes sense to return to the same legal practice.

Specialism and quality

The proposals are also likely to lead to the loss of important specialist legal expertise, acquired over many years of working in complex and highly technical areas such as terrorism or carousel fraud. The random allocation of lawyers to accused persons will take no account of providers? specialisms and both the courts and accused persons will lose out.

The Legal Services Commission (as it then was) devoted considerable resources to bringing about improvements to the quality of legal services over recent decades. Although painful for the profession, underpinned by independent research and evaluation, it has ultimately been successful ? benefiting the courts as well as suspects and defendants. All of this is now under threat. Without client choice, the market will no longer be any regulator of quality; providers will receive a guaranteed share of the work, however well or badly they represent their clients.

Neither will quality form any part of the allocation of contracts, which will be awarded to the lowest bidder starting at 17.5%, at least, below current average costs. With a requirement for only baseline quality standards to be met, decades of work embedding improved standards into training and practice is disregarded and the quality of legal representation will decline. Suppliers will have a strong financial imperative to do as little work as possible, and to persuade clients to plead guilty irrespective of the merits of their case.

The management of criminal cases is currently designed to encourage guilty pleas and make the contested trial the exception. In another victory for efficiency over justice, the tapering of fee structures will also place strong financial incentives on lawyers to press defendants into pleading guilty.

Government in a hurry

But perhaps the most worrying aspect of these proposals is their implementation. These reforms will threaten the continued existence of parts of the criminal legal profession, as well as their ability to provide a personal and professional service. The number of criminal legal practices will reduce by at least 75%. Given the difficulties in merging to create the much larger firms needed under this model, the reduction will in all likelihood be much greater.

Yet, after only a two-month consultation period, the government proposes to move to implementation without any pilot study or evaluation of the impact of the reforms. Previous changes of less consequence, such as the move to criminal contracting, were first piloted and evaluated, ensuring a smooth transition. As Lord Woolf has said, the long-term effects will be devastating and, once the damage has been done, it will be extremely hard to put right. Defendants, the police and the courts ? and ultimately the taxpayer ? will pay the price.

? Professor Jacqueline Hodgson (University of Warwick) and Professor Ed Cape (University of West of England)