Lord McNally, who as justice minister in the coalition government helped steer the Legal Aid, Sentencing and Punishment of Offenders Act 2012 [LASPO] through the House of Lords, wants lawyers to stop whingeing about cuts to legal aid. He thinks that lawyers “bandying about access to justice, it’s really quite fraudulent.” I’m sure Lord McNally is well versed in access to justice. After all no single measure has cut access to justice to so many people in one go as LASPO which took whole areas of law outside the scope of the legal aid scheme. At a single stroke thousands of citizens were denied access to justice simply because they cannot afford to pay themselves.
At the same time as denying legal aid to thousands, the government of which Lord McNally was a member, presided over further cuts to the fees paid under the criminal legal aid scheme to solicitors and barristers who represent those unable to afford a lawyer from their own means. This matters because the more that fees paid under legal aid are cut the more good lawyers are put off from doing such work. If the good lawyers desert legal aid we will be left with a rump of dedicated but mainly incompetent lawyers who would only do the work because they are not good enough to work in more lucrative areas. That would be a disaster for the millions of people who cannot afford a lawyer even when they need one. And people accused of crime need a good lawyer. Lord McNally talks about opposition to cuts being fraudulent. Well, read on Lord McNally and let’s see where the fraudulent behaviour arises shall we?
Four of my colleagues in chambers were recently involved in a case in the crown court. The accused was charged with theft from his employer to the value of over £1,500, not an insignificant sum if he had been convicted. As was his right he had elected trial by jury. The first hearing was in July 2014. In September that year a PCMH was held. This is a substantial hearing for which the advocate has to prepare to deal with all matters relating to the preparation and readiness of the case for trial, such as which witnesses will be required, how long the case will last, what the defence will be and a number of other matters. The case was then listed for a three-day trial in December 2014.
The barrister prepared the case for the trial. On the day of trial there was no court available to deal with the case so it was adjourned. After defence representations that the prosecution case was hopeless and that there was no realistic prospect of a conviction the judge, who seems to have been sympathetic to this submission, told the CPS to review the case. It appears that they did not do so. That is not uncommon.
In April 2015 the case was listed for a mention and a new trial date was identified in May 2015. Since the original advocate was not available the case was passed to a second barrister. He prepared the case fully for trial. On the afternoon before the trial was due to begin the court pulled the case from the list and it was adjourned. Six months later in November the case was again listed for trial. The second barrister prepared the case again for trial and this time it was adjourned on the day of trial.
A third barrister was briefed for another mention hearing and the case was listed again for trial in January 2016. As none of the previous barristers was available a fourth barrister was brought in to take over the case. That barrister had a conference with the client and prepared the case for trial, the fourth occasion on which it had been prepared for trial. On the afternoon before the trial was due to begin the court decided the trial could not go ahead and the hearing became a mention instead of a trial.
Finally the case came on in June 2016, nearly two years after it had first been listed. This was the fifth time the case had been listed for trial and the fifth time counsel had prepared the case for a trial. Remarkably after all this time it seems that finally the CPS had got the measure of the case and the prospects of a conviction and they offered no evidence and the defendant was formally acquitted.
So after many hours of hard work by four different barristers preparing the case for trial on five separate occasions how many thousands of pounds of tax payers money do you think was wasted in paying the defence barristers on this utterly pointless venture? Don’t forget that the government love to quote how expensive the legal aid scheme is and newspapers love to talk about “fat cat lawyers” getting rich at public expense. So what do you think? Remember that the trial had to be prepared five times. The barristers had to attend the hearings on numerous occasions. Do you suspect the figure will be at least say, five thousand pounds, maybe more? The answer? £194! Yes one hundred and ninety four pounds all in, to cover the fees of all four barristers. Out of that the four barristers had to pay their travel costs, in this case typically more than £20 on each occasion and 20% of their share of the £194 fees to Chambers to cover the costs of the staff and general administration of Chambers. If you work out the hours of work done, the days in court and the time for travelling to court it means the lawyers were working for a few pounds an hour. Once travel costs are taken into consideration the barristers were actually losing money by doing this case at all. If Mike Ashley paid these rates there would be an outcry.
The justification for such derisory fees is said to be to ensure that defence lawyers don’t allow their clients to “play the system” by electing trial in the crown court to spin things out only to plead guilty at the last moment. It is suggested that threatening to pay so little will act as an incentive to the lawyers to ensure the case is dealt with “expeditiously” and that those who are guilty own up at the earliest stage. Except that this man was innocent, a fact finally recognised by the CPS only after two years and five listings for trial. The CPS lawyers don’t care. They are employed and their wages, poor though they, are not dependent on the result of the case. So what has happened is that the defence lawyers get penalised because the prosecution case was so weak that the defendant rightly decided he would fight the case until the prosecution saw sense and gave in.
I’m not suggesting that such fees are representative of the scheme as a whole. Thankfully that is not the case but there is no justification for such pathetically low fees in any circumstances. Nor is it likely that any one barrister will find themselves in this situation every other week but I suspect most junior barristers will have had to put up with this at some point in the last few years.
I can’t imagine any other profession putting up with this. This is little short of scandalous. It shows how pathetic the leadership of the Bar who purport to represent barristers has been over the years that they have been prepared to tolerate this state of affairs. But the Ministry of Justice is also to blame. The current fees scheme has not been revised for almost ten years and all we have had in that time have been further rounds of cuts to already low rates of pay.
Last October the Bar Council did in fact put to the government a revised scheme for payment of fees in criminal cases. As devised this scheme would apparently involve no new money but by revising various fees within the scheme it was said that the fees would more readily reflect the actual work done and as a result would be fairer all round. To my mind this scheme is inadequate because we should be demanding that fees are increased rather than reshuffling the current “envelope” but in the absence of a grassroots demand by the criminal Bar for a rise in fees this scheme is the only show in town. However since October last year the government has sat on the Bar Council’s proposals. Various excuses about being engaged in other things such as the EU Referendum have been offered. Meanwhile, barristers and solicitor-advocates continue to have to put up with fees of this sort.
Lord McNally adds insult to injury by suggesting there is anything fraudulent about trying to protect access to justice. Lawyers are entitled to speak out about the denial of access to justice to the public. They are also entitled to speak out about continual cuts to their rates of pay. And when Lord McNally urges lawyers to shut up and stop whingeing he would do well to bear in mind that our patience is not infinite. The criminal Bar flexed its muscles in 2014 by taking direct action in an ultimately successful bid to prevent further cuts. The government should not think they can simply fob us off with continual reference to the need for austerity. It is high time the MoJ stopped prevaricating and implemented a scheme for the proper payment of criminal advocates including a mechanism for regular review to ensure fees at least retain their value.