Why should the British public care about how much money is paid to lawyers? The campaign to save legal aid is about battling some entrenched perceptions.
Recent media offensives have had a go at the generally held prejudice that lawyers are “fat cats”. A little headway has been made: the quality newspapers, at least, have run some pieces on (usually female) baby barristers doing tough jobs for surprisingly little money.
But, as the public may begin to be persuaded that, give or take the odd expensive handbag, lawyers are not such fat cats after all, what, in any event, do these people do? In tabloid parlance, don’t they spend public money looking after “benefit scroungers”?
As every legal aid lawyer knows, this perception is not true either. Of course, there are many vulnerable clients and the campaign has been right to inform the public about these cases. But, to persist with the tabloid language, the truth is that legal aid lawyers, often enough, use their expertise to represent the interests of “hardworking families.”
Fred Nicholls is as far from a “benefit scrounger” as a man could be. Born in 1939, he left school at the age of 15. “I left on the Friday and started work the following Monday,” he says. “I worked in a garage that stripped down car engines, cleaned them up and rebuilt them. I was the ‘wash monkey’: I had to wash the engines with a paraffin and water mixture.” His next job was as a warehouse boy with Johnny King greengrocers in Greenford. “I stayed there till a month before my 18th birthday, when I joined the British army.”
These were the last days of National Service and Fred trained in Wales and Germany before sailing for Hong Kong, where he served until 1960.
When he came out of the army, Fred’s ambition was to be a lorry driver. “I came out of the army on my 21st birthday. You had to be 21 to drive lorries. As soon as I was 21, I got my licence.” And so began a career as a driver that lasted from 1961 until Fred turned 73. And it was in the course of his work as a driver that Fred, whose record was without blemish, found himself in need of a legal aid lawyer.
Death by careless
Beginning with the job of collecting fruit and veg from the old Covent Garden, Fred worked for various enterprises, including Babycham and Londis, and his longest spell of unemployment – in a working life of over 50 years – was three weeks. Eventually, he was taken on as a driver for the London borough of Brent. Among his many jobs (which included a three- year stint as the mayor’s chauffeur) was the task of taking disabled children to and from school.
It was the afternoon of 12 June 2009. As he did every day, Fred was dropping learning-disabled children off at their homes in Kilburn. Twice a day, he carried out the same manoeuvre: two children were dropped off in a cul-de-sac, with cars parked on either side. It was impossibly difficult to perform a three- point turn here and so Fred had formed the habit of reversing down the road, dropping off the children and driving the vehicle forwards on his way out.
On this day, as he was reversing into the street, a minicab nipped into the cul-de-sac, swerving round the bus before stopping. Fred brought the bus to a halt and then saw the minicab drive off through his rear window. He slowly continued reversing, checking his mirrors and with the hazard lights flashing and beeper sounding. He had moved only a very few inches backwards when the children’s escort, sitting in the back of the bus, called out to him. There had been a passenger in the minicab, returning home from the pub. The minicab driver, clearly in a hurry, had dropped this person in the middle of the road.
Now the passenger was under the bus.
“I don’t need a lawyer”
It was after midnight when Fred left the police station. His wife, Carol, though she was suffering from a fractured spine at the time, had prevailed upon a neighbour to drive her to the station to give her husband the medication that he needed. Apart from two sips of water to wash his pills down, Fred (70 at the time) was not given anything to eat or drink throughout his time in the cells.
He was interviewed by the police. “I was offered a solicitor. I declined the offer, “ he said. “As far as I was concerned, I was innocent and I wanted to get it over with.”
Before his next visit to the station to answer his bail, the police advised Fred that he should have a solicitor and so he was represented by the duty solicitor who was there that day: Zaki Hashmi. Fred Nicholls was now, courtesy of legal aid, in the care of Aston Clark Solicitors.
Legal aid lawyers
The CPS decided to charge Fred with death by careless driving. He agreed with his solicitors’ advice that he would prefer to be tried by judge and jury, rather than magistrates. Aston Clark attended court with their client at his first appearance (when the magistrates accepted jurisdiction but Fred elected jury trial) and then at his committal.
But these formal appearances represent a fraction of the work. Between the accident in June and his being charged in December, for no more than the fixed fee paid for representation at the police station, Claire Hewitt of Aston Clark met Fred on a number of occasions. “He came into the office a good two or three times; obviously we did not get paid for that,” she says. “He would just call up and say he was really worried and could I explain it again. He would often come with his wife. Because she was in a wheelchair and we’re on the second floor, I once took them to Morrisons for a cup of tea.”
The police station fee at the time was £270.64p. Now, it is £220. The Ministry of Justice says this fee should be cut to £200.
Scene visits and other investigations
Zaki Hashmi took on the role of trial advocate, while Claire prepared the case. “From the point of charge,” says Claire, “Zaki and I started considering his defence. Fred had made the decision to reverse down the road and we had to work out whether that decision amounted to careless driving and in order to do that, we both visited the scene.”
Claire took her car to the cul-de-sac: “I did a three- point turn; it was difficult in my car and there was no way you could do it in a bus.” It took Claire half a day to drive over to Kilburn, perform car manoeuvres and take photographs – which she subsequently discussed with Fred.
As trial advocate, Zaki also attended the scene, in his own time on a Saturday.
But the major strand in Fred’s defence was the design of the minibus. There were just two small rear windows and a massive blind-spot for the driver because of the distance between the window and the edge of the bus. From the start, Fred had insisted that the minibus design was a major factor in the incident. “It would have needed to be made of glass,” he said, “all the way to the bottom of the door, before I could see someone in that position.”
Trial by jury
Zaki took great pains to explain this part of the case to the jury. In his closing speech, he said: “It was Mr Nicholls’ job to drive these children around in what you may consider to be a poorly designed minibus, with no reversing cameras, with inadequate back windows which were too high up, with a converse lens which, according to the council accident investigator, had ‘known limitations’ and with thick rubber rims around both of the windows.”
In addition, Zaki was also able to present evidence of Mr Nicholls’s character and impeccable history as a driver. In cross-examination, he revealed the slowness of Fred’s reversing manoeuvre and the crucial fact that he only backed a few inches. And, of course, he took Fred through his evidence so that the jury could make their assessment of the case.
The trial took six days. The jury were out for four hours and fifty five minutes. After a direction from the judge on a majority verdict, it took a further eight minutes for them to return to court with a verdict of “Not guilty.”
“He bought us chocolates and flowers,” says Claire. “There was lots of hugging and tea. Obviously, it was a good result but it was also the right result. It would have been devastating if he had been convicted.”
Conviction might well have come with a prison sentence. Zaki had warned his client that this might happen. “I wasn’t looking forward to it,” said Fred, with wry understatement. Before these events, as far as he was concerned, prison – and the courts themselves – were “places for criminals – I hadn’t really thought about it.”
In addition to the police station fee, Aston Clark earned £1,075 for their work in the magistrates’ court. For preparing the case, Claire earned her firm £3,061, while, for representing him in the Crown Court, Zaki earned £4,256.33 (minus a fee to the barrister who represented Fred during the plea and case management hearing).
The MoJ says the fee in the magistrates’ court will now be cut to zero. Claire’s fee as litigator in the Crown Court will be cut to £2,181.36p. Zaki’s advocate’ s fee will be cut to £3,128.32p.
This is a reduction in fees, from 2010, of £3,153.29 – a drop of 36.4%.
“In future, it would not be cost-effective for our firm to provide this sort of service for Mr Nicholls,” says Claire. “We pride ourselves on quality of service because, long-term, that is how you get return clients.
In a case like this, there is the humanitarian aspect of it: he is elderly. We are defence lawyers and we have fire in our belly to fight for those who are innocent.”
Legal aid lawyers, it would seem, have the same imperative as doctors: just as a good doctor cannot stand by and see a patient suffer, so a good lawyer wants to serve the cause of justice. The provision of legal aid is not just for vulnerable clients; it is not analogous to the provision of a food bank. It is more like the NHS: working people, who have always kept clear of the law, may, one day, need a legal aid lawyer to look after their interests.