Legal Aid

Legal aid cuts: what price justice?

PUBLISHED May 25, 2013

In Sheffield magistrates court, Mr Zahedi has just been bailed; he only speaks Farsi. He is shaking his head as if a terrible mistake has been made, not by the court, not in the charge, but that his standing in this room at all, in his glass cage, is all the result of a factual error. He blows everybody a kiss in thanks. His bail conditions are that he stay away from a particular person; they can't curfew him because he's homeless. Most nights he sleeps behind the police station.

His solicitor, Lucy Hogarth, explains: "It took me and the clerk to persuade the court that they couldn't remand him in custody, because the trial isn't going to result in a custodial sentence. But the prosecutor wanted to lock him up."

Her next client, Mr Oates, is up for benefit fraud, but the Department for Work and Pensions hasn't sent the paperwork for two days, during which time he's been held in a cell. "Without me asking," Hogarth says, "he'd probably still be in there."

Nobody, not even justice secretary Chris Grayling, would dispute the importance of having legal representation when you've been arrested. But the consultation paper from the Ministry of Justice disputes almost everything else about the way the system works. Grayling proposes to remove client choice, and allocate legal representation from a government agency. His rationale runs thus: "I don't believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills. We know the people in our prisons and who come into our courts often come from the most difficult and challenged backgrounds."

It's a densely packed insult, in which Grayling manages not only to elide criminality with stupidity, but also takes a difficult background as a reason to disregard a person's judgment, and most strikingly, uses the fact that someone has been arrested as an indication that they are probably guilty. It swims against the principle of the presumption of innocence; not for nothing do lawyers complain that when you have the first non-lawyer as lord chancellor in modern times, it shows.

The first thing to scotch, though, is not Grayling's fitness for his role, but one of the ideas underpinning his proposals, that somehow £220m can be stripped out of the legal aid bill by denying the accused a choice of representation. The Ministry of Justice hopes to make us think of indolent criminals sitting in their cells and flicking through a brochure of fat cat solicitors and barristers, choosing the Rolls-Royce option because they're worth it. In fact, legal aid is covered by a series of fees. There's a fee for a guilty plea, and a fee for a not-guilty plea, which covers up to five pre-trial hearings and the first two days of a trial; there is a daily rate thereafter. Broadly, it hasn't gone up since 1997, and it's been whittled away by a series of changes (the least technical of which is that solicitors no longer get paid for their travel, which, when you have to make repeated visits to a young offender in a distant YO institute, will bring you well below the minimum wage).

The salaries are pretty modest ? Hogarth would be on £35 to £40k, if she could get full-time work, which she can't. When they're on a rota for arrests, they can work junior doctor hours, finishing at 5pm, going straight to the police station, working most of the night, having an hour or so to sleep before starting again at nine. Lawyer Shazia Parveen says, "When I'm on duty during Ramadan you can hear me on the interview tapes opening a bag of crisps. Just so I've put something on my tongue, to break the fast."

Rebecca Lee, a barrister at the Chambers of Andrew Trollope QC, makes £42,000 a year before tax. Hogarth says: "They seem to think that we work doing mergers and acquisitions in the City four days a week, then we come down in our Learjets to Sheffield magistrates court for the other day." She continues, "I don't know where Chris Grayling thinks we've come from, but a lot of us are from similar backgrounds to our clients, and that's why they'll talk to us."

In the consultation paper there's a curious claim ? that over the past 10 years public confidence in the legal aid system has gone down. Nobody really knows where the MoJ got that from, but it's true that the government constantly trumpets the fact that legal aid is more expensive here than in other countries, so that message may have penetrated. But it's not salaries that make it expensive, so much as the process. Jessica Pemberton, a barrister from St Johns Buildings who specialises in cases involving children, said: "The system is of a very high quality. We should be proud of how rigorous and robust it is, even while that may mean higher costs."

Whether we're proud of it or not, this answer ? to talk up the salaries within the profession in order to whittle them down from a middling start ? isn't going to work. The training, if you did it full time, could take seven or eight years. Who would take that on to enter a profession that might top out, annually, at less than you spent on tuition fees?

But if the system already operates to a flat fee, how would allocating a solicitor be any cheaper? Price competitive tendering, Rebecca Lee explains. "At the moment there are about 1,600 criminal justice firms, and they all have a contract with the lord chancellor. If they do a bad job, he can terminate them with six months' notice. What they're proposing is that, under the new contract with 400 firms, if they have to terminate the contract, they will pay compensation to the firm. One reason could be because they want to attract people who've never done it before, and they want to do it on the cheap."

In the north of England, the proposals would see the current 53 providers of legal aid being reduced to eight. The price is capped at 17.5% lower than the current contracts, and bids are invited below that. It is the same story nationwide and, at the moment, legal firms are saying they won't bid; Stobarts (the haulier), Tesco (the food shop) and Co-op (who should know better) have all thrown their hats into the ring. (Co-op later withdrew, saying they'd wait until the second round of contracts, in three years' time.)

If you want to see the kind of chaos price competitive tendering brings to justice, you only need look at interpreters (one solicitor said she had "your interpreter hasn't arrived" in seven different languages on her phone. "I don't even know if they're right. I got it off Google Translate"). One barrister had spent three days in court, waiting for Serco to deliver a defendant and two interpreters. None of them turned up. There is quite a lot of waste in criminal justice, almost all of it, as far as I can see, generated by the involvement of large private companies bidding for contracts at prices they can't really deliver on.

And that's what they want to roll out for the whole of legal aid. Rebecca Lee says, "What will end up happening is that you'll get allotted a firm of solicitors, and if they're rubbish, there's nothing you can do about it. Quality will become uneconomic and there won't be much incentive for a solicitor to do a decent job." She sees this as no less than a deliberate undervaluing of professional standards. "There's a huge deprofessionalisation of professions going on, teachers and policemen replaced by teaching assistants and PCSOs. It gets rid of skills. It increases inequality."


A couple of weeks ago Lee's client was Anthony, a juvenile accused of a burglary.
He was uncommunicative, the way teenagers are, but quite witty on the subject of Serco and their electronic tag administration. Technically, on his school record, he's one of the people Grayling would class as "no great connoisseur", and yet his easy use of a whole range of legal terms suggested quite an advanced understanding of the process. Sure, in an ideal world, he wouldn't have had so much cause to learn what "mitigate" means. But he didn't lack discernment.

This case offers some insights into the plea process ? one of Grayling's proposals is that the flat fee will in future cover a not-guilty or a guilty plea, so solicitors have more incentive to get their clients to plead guilty (since a not-guilty plea entails more work). At the moment, 73% of people plead guilty; 8% plead not guilty but are then found guilty; and 18% are acquitted. In other words, two-thirds of the people who plead not guilty do so because they're not guilty. We don't need to labour the point that people who aren't guilty deserve proper legal defence. But even on its own terms ? saving money ? this is a stupid idea. Since, ultimately, the decision is the client's, not the solicitor or barrister's, the current, relatively high, proportion of guilty pleas is based on the fact that people trust their lawyers. To replace it with a system in which there is a financial incentive for the solicitor to get the client to plead guilty is very unlikely to actually increase the number of people pleading guilty.

Anyway, to return to Anthony: he would plead guilty to theft but not burglary, and he had a co-defendant who wanted to plead not guilty altogether. In that case, the prosecution would press for burglary, Anthony's willingness to plead guilty to theft would be irrelevant, and the result, if they were convicted, would be custody for both of them. Anthony, despite a chequered relationship with the police, has never been in prison before; it would be disastrous for him. So a huge amount depended on Anthony trusting his barrister and his co-defendant trusting his. But leaving aside the issue of trust, a guilty plea would be plain wrong ? it would consign two people to prison who, by their account, do not belong in prison. It would ruin this young man's life and it would cost us all a fortune. In the event, no plea could be entered: the co-defendant didn't arrive, because of a mistake by the (private) prison transport provider.

Back in Sheffield, Chris Peace, who works at Howells with Lucy Hogarth, says the issue of client choice is particularly important here. He specialises in youth work, and his clients have often been in care; their solicitor might be the first person they've ever met who has to take their instruction rather than make decisions for them. "When they're going through proceedings, we're probably the one constant person they see," Hogarth says. "We don't just know them, we know what happened to them when they were 10 or 11. We know their dad, we know their GP."

I see this in action later, with the Ahmed siblings. Bas is up for common assault; Farah, his sister, is 25 years old and has 26 charges of assault against her. They're being represented by Andrew Swaby, who has acted for Farah many times. She is a charismatic, vivid young woman who obviously has a terrible temper. "He'll be all right," she says of her brother. "He hasn't got a record. If I was in court for what he's in, I'd be going down for sure." She says, if she couldn't get Swaby, she wouldn't want a solicitor, and not having a solicitor would ? she knows from experience ? considerably damage her case.

"I chat gibberish, me. Without a solicitor, I'll just go along with whatever the police are saying." It is quite touching, the loyalty everyone has to their legal representative. James Brown, who has Hogarth acting for him, says: "Until I met her, I thought all the people who were meant to be helping you, advising you, just wanted you to plead guilty. I think I'd represent myself rather than work with another person who wasn't her."

As we leave the court at 5pm, Mr Zahedi is still there, sitting on a chair, waiting to be kicked out. He is accused of harassing a woman who worked at a shelter for the homeless, following her and telling her he loved her. "It was probably pretty unpleasant for her," Hogarth says. "But it's also probably true. He's got no one. And they're really nice, the people who work in those places." Like that of so many people, his arrival in court was the end of a story that started off desperate and just got worse. Restricting their access to justice, on the basis that they're probably guilty, and probably thick, will result in more custodial sentences, which would inevitably cost more money. The logic behind it is so undeveloped as to be baffling. "I might put in a freedom of information request," muses Rebecca Lee, "to see if Chris Grayling has ever been in a courtroom."

Some names have been changed.