Thursday, 17 November 2011

Legal reform: a report and a rant

Hello hello,

I'm a reporter for Exaro News now - which is brilliant. Here's some work:

Reforms lead to 'financial hardship' for barristers

And here's a supplementary rant ;)

This year has seen a lot of cuts to legal aid (with more to come) but the one most bothering me is a cut that financially penalises lawyers who defend a client that opts for Crown court before pleading guilty.

Late guilty pleas are commonplace - 70% of crown court cases end in a guilty plea, and 95% of Crown court criminal cases are legally aided - so that's quite a lot of Crown Court cases where a lawyer could now lose money, right?

I'm worried by the idea that a lawyer's pay should hinge on how a client pleads at all, as everybody is entitled to a defence, guilty or innocent.

The fixed fee seems punitive. It's just over £200 for advocacy, which barely covers a couple of days work, as chambers rent isn't cheap. Could this be a cynical attempt to stop lawyers working in criminal defence at all? If so, it's working. Criminal barristers are having to diversify.

So, how did this change come about?

The idea was slipped into a green paper (proposals for the reform of legal aid, etc etc), one year ago. Almost everybody objected to it. Judges were unitedly opposed. Young legal aid lawyers feared for the future...

The guilty plea fixed fee was nevertheless implemented last month - £203 for advocacy, £362 for litigation.

A QC told me that thanks to lawyers' and judges' objections having been ignored, he's concluded we live in a 'sham democracy'.

(On the note of sham democracies, I welcome VentnorBlog's report that last week the Isle of Wight Council have lost their High Court case regarding their Adult Social Care policy. I was writing about their failure to engage with service users in 2010).

I've not finished my rant yet. :)

The fixed fee is only waived if the lawyers have considered more than 10,000 pages of evidence.
One barrister told me: "There are up to four appearances in each court before a guilty plea. If you are served with 9,800 pages of evidence you will still be paid just over £200 in all. It's absolutely ludicrous and will kill the bar."

And, I could go on.... But instead of that, will show you the judges' and lawyers' objections for posterity. This cut has been wheeled in, anyhow.

But if you get into trouble and wonder why can't find a criminal barrister who'll go to Crown court with you - this might be why...

Young Legal Aid Lawyers warned:
There are two principal problems with [the fixed 'guilty plea' fee across both courts]. The first is a practical problem. Under the profession's Codes of Conduct and ethics in general, no lawyer should put pressure on their clients to stay in the Magistrates’ Court and to plead guilty early. It would be completely inappropriate if they did: lawyers should not be placing pressure on their clients to plead guilty to further their own financial interests.
The second problem is a constitutional one. Effectively the Government is using legal aid as a means to pressure defendants into choosing a trial in the Magistrates’ Court. However, the right of a person to elect trial by jury in the Crown Court is a fundamental and well-established part of our democracy. The previous Labour government controversially proposed to abolish a defendant's right to choose jury trial in 1998. This was later withdrawn following political opposition.
This government is effectively re-introducing the abolition of the right to choose jury trial by the backdoor, for financial reasons. The proposals disregard this important constitutional principal. If the government wishes to remove the right to trial by jury then this should be done openly after a proper debate rather than discouraging poorer citizens from exercising this right through the manipulation of legal aid funding.
 Council of Her Majesty's Circuit Judges (COCJ) said:

We do not agree with the proposals.
We agree that it is desirable that where possible a case should be dealt with in the Magistrates Courts rather than in the Crown Court. [...] We do not accept, however, that the proposals are based on sound propositions which will provide either a fair or an appropriate level of remuneration.
The proposals proceed upon the basis that the magistrates and lawyers representing an accused have the dominant roles in the decision as to which court will deal with the case. They do not. It must be remembered that the role of the defendant is fundamental to the determination of the venue of the case. The law provides for the defendant to have the right to be tried by a jury. If the Magistrates accept jurisdiction, it is only if he consents that he may be tried by the Magistrates. The accused is also advised of their power of committal for sentence.
[...] the lawyer has to base his advice on the information which is available to him at that time. In many cases this may be very limited. Recent procedures in the Magistrates’ Court system have improved disclosure of the case to be presented by the prosecution but the defendant’s instructions may indicate a clearly triable case. In those circumstances, it is proper to advise of the election for trial: that is the accused's constitutional right. If the government wish to alter that, it should be done openly and after proper consultation.
[...]We further consider that it is unacceptable to link remuneration to an early resolution of the case. We express concern that this may lead to undue pressure being imposed upon an accused person, especially the more vulnerable defendants to plead guilty without proper consideration of the case.

Further the COCJ argued that a guilty plea can result from work on behalf of the lawyers. If you stop remuneration for the work, then the result could be a vicious circle where you see less guilty pleas as lawyers put less effort into preparing a case. More delays; more costs; counterproductive. That's the theory - time will tell:

(BTW: if a client pleads guilty under pressure of Crown evidence, their trial is called a 'cracked trial')
It is often that the reason for the cracked trial is because of the work carried out in the preparation of the case for trial. With that work, it often becomes clear even to the most unwilling defendant, that his defence is flawed. If the value of that work is not properly recognised in the fees payable, there will be a tendency for that preparation not to be carried out or carried out inadequately so that either the trial has to be vacated or worse, a trial is unnecessarily pursued.
The guilty plea often comes as the result of a reassessment of the strengths of the case on both sides. Forensic evidence is often delayed. Transcripts of the recorded evidence of a complainant in a sex case are not prepared until after it becomes known that there is to be a trial. When they are, a proper assessment of the witness’ evidence becomes more readily available. These are examples of the features which may lead to a guilty plea.

*deep breath*...

That is why it worries me.

Over and out.

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