The decision by lawyers to announce further protests on Friday March 7th follows months of attempted engagement with the Ministry of Justice (MoJ).
This is not about the cuts, it’s about a government embarking on a programme of eroding state accountability and reducing safeguards for individuals investigated and prosecuted by the state.
Lawyers will not stand by and watch a robust and transparent justice system destroyed. This is why action has to be taken.
The reforms introduced so far by the MoJ have had a devastating effect on the administration of justice and access to proper legal advice. The family courts are grinding to a halt because cases are being conducted by litigants in person. Up and down the country women trying to get out of abusive relationships appear unrepresented in court to be faced by their partner. Children in custody are not entitled to any legal representation when trying to obtain housing upon release. Some might say why should they get any help but the reality is that these young people (many of have been in care most of their lives) have little chance of emerging from a life of criminality unless they are given the chance of stability and a proper home.
The restrictions now being proposed for bringing judicial review will constrain the ability of the individual to challenge unlawful state decision making.
Criminal defence lawyers, as the senior judiciary point out, protect individuals against the most coercive powers of the state to curtail liberty. These proposals are fatal to a properly functioning justice system which has been experiencing a steady decline in quality as the cuts already imposed have taken hold. We are moving towards the two tier system beloved of markets, you pay more you get more justice. Those with deep pockets will be able to buy themselves a better verdict.
The proposed fee under the new proposals to be paid for police station advice is £160, not per hour, not per attendance, but for the entire matter. That is whether it takes 2 hours, 2 days or - as is often the case in murder cases - two or three interviews and identification procedures spread out over many months. The police increasingly rely on sophisticated electronic surveillance methods whilst the defence lawyers become increasingly deskilled and degraded. Frequently you are dealing with vulnerable people with learning or mental health difficulties. What the legal representative does at the police station may expedite and shorten the investigation and can determine whether charges are brought.
Fees are at their irreducible minimum now before further cuts. The proposed fee for cases in the Magistrates Court will be £258 for the whole case; 3 or 4 court appearances, attending the client in prison and interviewing witness all for £258, the same fee whether you plead guilty or not guilty. In 1978 the same sort of case prepared for trial would have resulted in a fee of £448.
The proposals for payment of crown court fees for solicitors show the cynical direction of travel. Lawyers will be incentivised to encourage clients to plead guilty. Under the new proposals in many cases solicitors will receive an increase on current fees if the defendant pleads guilty but a substantial reduction if the defendant pleads not guilty.
The Ministry of Justice will trot out their usual rhetoric that lawyers have a professional duty when advising their clients but if you introduce a cut price, those who are committed to robust, rigorous, fearless defence will go bust, and the many hours they spend doing the job properly will go unpaid. The vocational model of criminal defence will be a relic of a bygone age.
These fee schemes present an obvious conflict of interest between the lawyer and his client; surely we have to tell our client after advising on the evidence that we have an economic interest in them pleading guilty?
The system cannot absorb any more cuts; justice on the cheap is not justice. Criminal solicitors have seen what has happened to access to justice after the introduction of the 2012 reforms to Legal Aid; the government seems intent on returning us to a pre-Second World War legal landscape of justice for the few not the many. It has happened in welfare law, housing, family, immigration and prison law - we cannot allow it to happen in criminal law. This is why we have no choice but to take action.
This article was first published by Paul Harris in The Independent