The government are planning to make big changes in the legal aid system in this country, but they're having a hard time of it. There is a tremendous and very articulate campaign of protest from lawyers who, presumably, see a gravy-train drying up on the hob.
The Legal Aid, Sentencing and Punishment of Offenders Act has already been defeated 14 times in the House of Lords, and looks like becoming law on a mere technicality. Here are some details pinched from the BBC News website ...
In an effort to cut the £2bn annual legal aid bill in England and Wales by £350m a year, there are soon to be fewer types of civil proceedings for which people can get funding, while changes to funding for criminal cases also looks set to change.
What is legal aid?
Legal aid helps with the costs of legal advice for people who cannot afford it. It funds solicitors and agencies to advise people on their legal problems, such as eviction, debt and family breakdown and, if necessary, represent people in court.
What is changing?
The government says it is targeting resources at those most in need with the changes in the Legal Aid, Sentencing and Punishment of Offenders Act, which comes into force from April 2013. It reverses the position where legal aid has been available for all civil cases except those specifically excluded by the Access to Justice Act 1999. The new act removes some types of case from the scope of legal aid funding, and says other cases will only qualify when they meet certain criteria.
Which cases no longer qualify?
The government is removing funding from entire areas of civil law. They include:
Private family law, such as divorce and custody battles
Personal injury and some clinical negligence cases
Some employment and education law
Immigration where the person is not detained
Some debt, housing and benefit issues
What cases will continue to be funded?
Family law cases involving domestic violence, forced marriage or child abduction
Mental health cases
All asylum cases
Debt and housing matters where someone's home is at immediate risk
What options are available to people ineligible for legal aid?
Many people will have to pay privately for advice or use no-win, no-fee lawyers, seek support from one of a number of charities that offer legal help, or represent themselves in trying to solve their disputes.
Is there opposition to the changes?
The parliamentary passage of the bill saw it defeated 14 times in the House of Lords, and ultimately passed by the narrowest of margins - a tied vote which means a government victory.
There are concerns that the changes will deny justice to the poorest in society. Labour's shadow justice minister Lord Bach said the justice system was based on "equality of law", and the new restrictions were "absolutely scandalous" for "attacking ... the very poorest and the most disadvantaged".
President of the Supreme Court, Lord Neuberger, warned that people who felt they were being denied access to justice could end up "taking the law into their own hands". The changes could also end up costing the government more, he suggested, as increasing numbers of people representing themselves might "mean that court hearings will last longer, the burden on court staff and judges will increase".
What does the government say to that?
The Ministry of Justice says it considers legal aid an "essential part of the justice system, but can never lose sight of the fact it is paid for by taxpayers and resources are not limitless".
A spokesperson said: "Legal aid will continue to be provided to those who most need it, such as where domestic violence is involved, where life or liberty is at stake or people risk losing their home.
"But in cases like divorce, courts should more often be a last resort, not the first. Evidence shows that mediation is often more successful, cheaper and less acrimonious for all involved."
The department also argues there is little evidence to suggest that more people representing themselves will slow up the courts.
How else are costs being cut?
At present, anyone with assets worth less than £8,000 qualifies for legal aid - with those worth up to £3,000 paying nothing and others expected to make a contribution. There will also be a 10% cut in fees paid in civil and family cases.
What about legal aid for criminal cases?
Criminal defence makes up more than half of legal aid expenditure.
The government has previously announced measures to strengthen the Crown Court means-testing scheme, including the seizure of assets of convicted criminals to recoup the cost of a failed defence. This step can be taken from July 2013. Also this year, the government is consulting on proposed further changes, including the possibility of introducing price competition in the criminal legal aid market.
Here is a typical response from a barrister ...
As a practising member of the criminal bar, I am horrified at the proposed changes to the provision of legal aid, currently undergoing a so called "consultation period" by the Ministry of Justice, albeit the justice minister refuses to meet the chairman of the Criminal Bar Association. It is clear that the truncated consultation period is no more than window dressing. Chris Grayling is disinterested in any contribution from the profession. It is beyond doubt that the tendering out of legal aid to private business will herald a decline in standards in a legal system that has been a model of justice for centuries. There is no provision whatsoever in the proposals to ensure standards are maintained when individuals are unable to choose their representation.
Once in possession of a contract, a company's clients will be guaranteed, irrespective of the quality of service. The idea that this service would be properly provided by employees of a profit-driven company, whose lowest bid has rewarded them with the responsibility for the representation of citizens accused of crime by the state, is dubious.
The prospect that the same company could be responsible for housing prisoners, transporting them, and representing them is, frankly, Orwellian.
The following rather alarming story was reprinted by the New Statesman from the Barrister's Wife blog ...
This post is one of a series that seeks to dispel the myth that everyone who ends up in court is a scumbag criminal. It is another example of how easy it is for good guys to end up in court. It is another case that illustrates why everyone should be entitled to independent, quality, legal representation and the chance to go to trial and clear their name.
At the moment your rights are under threat from proposals in the MOJ consultation paper “Transforming legal aid”. I hope that reading this post will help you understand what these proposals will mean for our justice system. I hope that once you understand you will want to sign the Save UK Justice petition to have these proposals debated in parliament.
NB: this is a true story. Certain details that don’t relate to the factual and legal process have been changed to protect those who were involved.
In the beginning
I first heard about Exhibit C over dinner. My husband was complaining about being on another child abuse case. He would love to be able to refuse work like this, but due to the Cab Rank rule he can’t.
From the initial papers it looked obvious that Exhibit C was guilty. This is often the case, that is the purpose of prosecution papers. Over the next few weeks more papers trickled in (the CPS rarely serve everything at once when they can string it out) and the evidence became compelling.
Exhibit C’s 6 year old son had told two of his friends that his daddy had done horrible things to him. The friends told their mums. The mums went round to the little boy’s house to tell his mother. They repeated what their children had said to the mother and her new husband. The husband spent an hour or so talking to the little boy. The husband relayed what the little boy said to the police.
The little boy (my husband would say “the complainant”) had been interviewed by the police and repeated the allegations. There were no inconsistencies.
As the trial date drew nearer my husband set up a meeting with Exhibit C. Often he has to go to prison to meet clients but as Exhibit C had never been in trouble in his life he was out on bail, even though he had been accused of horrible crimes against his own son.
Exhibit C was not who my husband was expecting. I know we are not supposed to stereotype, and paedophiles can be hiding in plain sight and look just like the rest of us. But when you have met as many sex offenders as my husband has, you know that they do tend to be of a certain “type”. Usually a combination of greasy, smelly, creepy, inadequate, waster.
Exhibit C came across as a stable, humorous, articulate grafter. He said he hadn’t done it and would plead not guilty. Clients often say they aren’t guilty. If they say they are not guilty that is the way that my husband will play it. He wasn’t there at the time of the alleged offence, so he doesn’t know if they are guilty or not.
A few of days before the trial was due to start the transcript of the little boy’s 2nd police interview arrived, along with the DVD recordings of the interviews. Another late night watching video nasties for my husband.
The CPS has guidelines for getting good quality evidence from interviews with children. Right at the start of the interview the supposedly specially trained police officer deviated from the established protocol. He denied the little boy the opportunity to give a “free narrative account” of what had happened. Instead he sought to confirm what his mother’s husband had said.
His day in court
The trial began. Three days into the case the little boy gave evidence via video link. As is customary, all the barristers and the judge removed their wigs and gowns. Next it was my husband’s turn to cross examine the little boy. This is a horrible job, one that preys on the lawyer’s mind for weeks before and after the event itself. It is very difficult to find a balance between protecting the interests of the client and being sympathetic to a small child in an alien situation.
During cross examination the little boy kept referring to his step father as “daddy”, then quickly correcting himself and using the step father’s first name. It became clear that there were two “daddies” in the little boy’s life. Both Exhibit C AND his stepfather were “daddy”. The little boy said that he really missed his daddy (that is, Exhibit C). They hadn’t been able to see each other for over a year. Despite all of the horrible things that his father had been accused of doing to him, this was the only time that the little boy cried.
The step father was next to give evidence. His behaviour was distinctly odd, overly dramatic and emotional. His own evidence in chief destroyed his credibility before cross examination started. Remember that he was not in court to hear the little boy’s evidence, so he had no idea that what he was saying appeared to be complete rubbish.
Court broke up for lunchtime. My husband marched out of the building saying to himself “he did it. That b$*&ard bloody well did it”.
After lunch my husband cross examined the step father. He was evasive. He contradicted what the little boy had said. He showed himself to be a wolf in sheep’s clothing.
The Perry Mason moment
You can probably guess what is coming now, it is this blog’s first screenplay:
Barrister (standard court voice): You’re “daddy”, aren’t you?
Stepfather (defiant): No I’m not. I never have been.
Barrister: He calls you daddy all the time.
Stepfather (defiant): No. He doesn’t.
Barrister: You’ve coached him not to call you daddy for this court case.
Stepfather (uncertain): No, I haven’t.
Barrister: When the mums came to the house and told you and your wife that the little boy said “daddy”, you had to come up with a story, didn’t you?
Stepfather (quietly): No, I didn’t.
Barrister: You decided to save yourself by framing Exhibit C
Stepfather: No, I didn’t (begins to cry)
Barrister (raised court voice): Yes you did, and you got the little boy to say it
Stepfather (sobbing whispers): No, no, no
This was my husband’s one and only Perry Mason moment. The only time he has ever been able to point the finger at a witness in a case in court. Never before, never since. After my husband’s closing speech the police officer in charge admitted that it was pretty obvious now that everything had come out in the wash.
Exhibit C was found not guilty of all charges. As the court emptied the police and social services were already rallying their troops to arrest the stepfather and protect the little boy and his siblings from further harm.
Exhibit C had thought that he wouldn’t be able to see his children again, even after being acquitted. He was wrong, this story has a happy ending. The children are now living with him and recovering well. Even though my husband was reluctant to take this case in the beginning, by the time it was over he was very glad he had.
Why this story should matter to you
1. Innocent until proven guilty. Not all defendants are scumbag criminals. Everyone deserves the right to a fair trial. The MOJ wants to deprive you of this right.
2. Targets – if this case had happened under the MOJ proposals, Exhibit C’s inexperienced, target driven lawyer would have encouraged him to plead guilty.
3. Child protection – if Exhibit C had gone straight to jail the little boy and his siblings would have been left in the clutches of an abuser, without the protection of their loving father.
4. Finger pointing – even if you think you have no enemies you are still vulnerable. The MOJ proposals will be a finger pointer’s charter. It will be like going back to the Witch Trials. You’ll either be pressured into pleading guilty or, if you have got the money to pay for your defence, you will not get all your costs back even if you are innocent. You might clear your name only to face financial ruin.
Help save our justice system
As things stand the proposed changes to the criminal justice system are going to be brought in under secondary legislation, without any debate.
Frankly we don't know the answer. Perhaps it depends on whether you think you're likely to be arrested as a paedophile in the near future. But if you think you are, you might do worse than to sign this petition.
The GOS says: Mind you, when you are charged with being a paedophile, which the way things are going at the moment practically every man over 40 will be eventually, you're best off being poor whether the law changes or not. A hell of a lot of us have saved thriftily during our working lives in order to have a little nest-egg saved up for a rainy day, and have more than £8,000 in the building society.
So when some little toerag from your past decides there's a few bob to be made and a little revenge exacted by making false accusations against a strict teacher or a dutiful policeman or a bad-tempered neighbour, that'll be your rainy day: there's nowhere else to turn, and you can watch your hard-earned pennies clinking their way merrily into some lawyer's pocket.
There was a little correspondence in our Guest Book recently about British justice being superior to that in other countries.
I'll let you know when my trial comes up.
either on this site or on the World Wide Web.
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