A swift and minor change…

With a general election on the horizon, I think it may be a time for a swift and minor change in the law that creates a rebuttable presumption that everything a politician says or does in the next nine months is not to be taken seriously and  be dismissed as “electioneering” without any real basis or foundation or indeed conviction.

That being the case, the comments made by Boris Johnson in his Telegraph column recently should seen for what they actually are; an easy way to garner support as he positions himself for his comeback into mainstream politics and if we believe some, the start of his path to party leadership.   After all, having a national platform to promote your views and your position on issues of importance to your prospective electorate is a useful tool.

“The police can and do interview the returnees, but it is hard to press charges without evidence. The law needs a swift and minor change so that there is a “rebuttable presumption” that all those visiting war areas without notifying the authorities have done so for a terrorist purpose.”

That Mr Johnson believes a change in the law to remove the presumption of innocence until proven guilty for those who travel to “war zones” is a minor change, is not so much evidence of naïvety but simply a way of selling it to those most likely to vote for him.   That the change can be sold to those who support him as a minor one is even more worrying, something that could be achieved with the minimum of fuss on a Thursday afternoon between debates on more pressing matters.

There are of course already some offences that carry a rebuttable presumption of guilt, carrying a knife in public requires the defendant to show that they had a good or lawful purpose, some offences under the Sexual Offences Act require a defendant to prove their innocence and not the prosecution to prove guilt.   These are clearly defined offences, and ones that the evidence supports.   Boris suggests that the problem with “jihadist tourism” is that whilst the police and other less obvious security forces can and do identify and arrest those who take part they find it difficult to prove the person has been involved in something because they lack the evidence.

The need to provide evidence is so very often that tricky little part of the judicial process that gets in the way of the conviction.  How much easier it would be if the actual requirement to provide testable evidence could be dispensed with.  Whilst we are at it, lets set up a secret court and lets not show the defendants the evidence we have.   Why stop with the terrorist cases, lets make justice simple, let us totally cut the cost of implementing justice.  You are guilty of every offence unless you can prove otherwise.  No need for the cost of obtaining evidence, no need to comply with any of the procedural rules, the CPS need not worry about complying with case management (although I am not entirely sure they do now) as there will be nothing they need to serve, the cuts to legal aid means most people could not afford a lawyer and would be more likely to simply roll over and accept their fate.

To an extent Boris is right, it would be a matter of a minor change to the relevant legislation that would make “travelling to a war zone” an offence you were guilty of unless you could prove that their travel was for a legitimate purpose.   The devil as they say is always in the detail and a matter of interpretation.   So what amounts to a war zone and what amounts to legitimate purpose?   Large parts of the countries mentioned in the article are peaceful, large numbers of people travel everyday to those countries should everyone have to declare their intention to travel, should everyone need to account for why they go there.   What if I went to Turkey for a holiday in the sun do I have to declare that as it shares a border with Syria, what is to stop me from popping across and potentially providing aid to a fundamentalist.   What if I went to America?  Although not currently “at war” with anyone on a declared basis, few people would say that they are not at war with very many countries at this time.   Am I travelling for a terrorist purpose if I pop over to Times Square to soak up the atmosphere but haven’t told anyone.   The evidence of my crime is the travel regardless of my intention.

The presumption of innocence is a fundamental of the justice system, one that underpins the court process.  One that takes time, skill and a little something called evidence to disprove.   It is however one that is being slowly eroded in courts up and down the country, and across the front pages of newspapers, in rolling news headlines every hour on the hour.

Look at the way in which the recent search of Cliff Richards home in Berkshire made the news, a man’s house has been searched for evidence of an offence that took place thirty years ago, before the age of the internet, mobile phone or him even owning the property.   Plus he is a man that has never been married, refuses to confirm or deny his sexuality and look here he is in a publicity photo with Jimmy Saville on Top of the Pops many, many years ago.  Clearly he is a man that we should be suspicious of and has probably done something unlawful, it’s up to him now to prove that he hasn’t done anything wrong.   As another example, ask Christopher Jeffries whether he believes in the presumption of innocent until proven guilty and whether he felt that the press understood what it actually means.

There are already processes inbuilt into the court system that seek to take away the presumption.   Anybody that plies their trade in the local courts can tell you of cases that are perhaps evidentially light but the CPS sought to bolster by the introduction of bad character evidence.   The fact that they have committed similar offences in the past and therefore by implication must be guilty of this one.

The use of the Bail Act to remand defendants to court by the police, the remanding of defendants to prison awaiting trial, the continued use of conditional bail often with punitive conditions whilst enquiries are conducted, sometimes for months, and then the case going no further are all attacks on the presumption of innocence.

I’m not a naive liberal and don’t live in a crime-free bubble, I understand the need for bail conditions and remand provisions, for the need to convict the guilty but if these provisions were to be imposed as a blanket policy I think we might all be sitting up and wondering how did we get here.  The corollary of convicting the guilty is ensuring that the innocent are acquitted.      The process in which we do that has been developed and refined over many years based on the fundamental principle of innocent until proven guilty.   It may be expedient to remove that when we don’t like it, it does mean it’s right.

A swift and minor change in the law that makes travel to Iraq or Syria without good reason and without notifying the authorities a terrorist offence is simply too simplistic and an attack on the liberties and freedoms that we abhor when they happen to others.   It is as Downing Street have said in the last twenty four hours a knee-jerk reaction and there is apparently no place for knee-jerk legislation in this Government.  The whole raison d’être of terrorism is for us to fear those amongst us, for us to strip back our rights and freedoms to the point that they no longer exist and we capitulate to the demands of the terrorists.   By taking away the presumption of innocence, no matter how small and limited that change might be is for me a sign that we have started to capitulate.

Atrocities committed in the name of religion, politics, ideology or ambition must be challenged; must be stood up to and must be stopped no matter who commits them or where they are committed.   To stop them without relinquishing the principles we stand for is surely the only way to do it properly.

Saving Justice…

The campaign against the Mininstry of Justice plan to Transform Legal Aid was from the outset opposed by the profession.

They above all understood what there was to lose if the proposals went through as set out in the consultation.

Almost as soon as the consultation was published the movement against it started.  There have been meetings, strikes, marches, an online petition, TV and press interviews and in this increasingly digital age, a concerted campaign on Twitter and by bloggers.

For me, as with so many of my colleagues being a criminal defence solicitor is not so much a job but a way of life.   Countless bank holidays, birthdays, Christmases and days off have been spent looking at the dull,  institutionalised paint scheme of a police custody block rather than at home with family and friends.   Evenings have been spent writing up the days cases, planning for the following days trial or on the phone to a nervous/angry/confused or confusing client.

What we, and our colleagues at the bar do is done not for the money, not for the glamour and certainly not for the job security.  We do it because our clients can’t, we do it because justice is not just a word or a concept but a real and tangible thing.

It was because I do what I do and because I feel it is so important  that I felt that I wanted to do something to help preserve it.

Not being part of a group who could really influence anyone, my contribution to the campaign was to write in my blog and try to raise the public profile of what was happening to access to justice.

A year after the consultation was published my blogs and those of forty eight others have all been collected together by @ilegal, Patrick Torsney into a free ebook
Saving Justice available on iTunes now and other formats soon.

If you have followed and taken part in the campaign then it is pretty much the story of where we are now and where we still need to go.   If you have no idea of what has been happening over the last year please take the time to read at least some of it and join us in saving justice.

A friend in need…

Last May over a thousand members of the profession attended a meeting in London to show just how angry they were at the Ministry of Justice proposals to “reform” legal aid.   At the time I described the proposals as an extinction event for my side of the profession with the prospect of 1300 firms being wiped out overnight, and the position was very little better for the Bar.  Access to justice was seriously threatened, the prospect of legal aid becoming the domain of Tesco Law, Stobarts and the like seemed very real.

I recall going into that meeting thinking that there was very little hope of a sucessful outcome; successive governments had slowly and deliberately reduced the legal aid provision, cut our rates of renumeration and sought to introduce increasingly burdensome layers of bureaucracy.  The Lord Chancellor was clearly a man on a mission.  A man with a serious agenda and a considerable degree of political ambition.  His previous consultations had been very little more than a fig leaf of respectability, pressing ahead with what he deemed was necessary change and there was nothing to suggest this one was anything but the same.

Yet, I came out of that meeting thinking that perhaps there was a chance we could stand up to this. Throughout that meeting there had been applause, cheering, shouts of encouragement and standing ovations. There had been a sense of purpose, fire in bellies and a desire to give the other guy a bloody nose.

Above all there was unity.   A sense of purpose that was shared between both sides of the profession, we had , and still have, a common goal to ensure access to justice and to save legal aid for those we needed it the most.

The meeting took place at Friends House, the name of the venue becoming more appropriate as the afternoon wore on, and perhaps even more so over the past year.   There has been a surprising degree of unity amongst the two sides of the profession, with both sides understanding and perhaps enjoying the symbiotic relationship we have with each other.

 

We refer to each other as “My friend” or “My learned friend”, and this is important to remember.  We are not enemies, we all want to preserve the system of justice we work in, for ourselves, for our friends, for our clients and our future clients. Our objections were once described as “pay negotiations by parties with vested interests”. The great strength of what we have done together and what we have achieved is that if we are honest with ourselves there was a degree of truth to that statement, our opposition was never just about that.

The statement from the CBA yesterday has been received with mixed emotions across the profession. The rank and file believe that they have been sold out, and that a delay in cuts is just a suspended sentence that will inevitably by enacted. Solicitors believe that the Bar have stabbed them in the back and cooked up a deal to sacrifice us to the Ministry of Justice.

My personal view doesn’t really matter, but I think the decision taken was short sighted and may well come back to haunt the CBA.   That said, reality as we all know is about making stark choices, about making difficult choices and no one decision will please everyone.   The very fact that The Lord Chancellor came to the table after a steadfast refusal to accept that there was anything else to be done is telling, he was, perhaps is, desperate not to be given that bloody nose.   Rightl or wrong the Bar has a period of grace to further argue their cause, let us hope that there will still be solicitors left after the pause to brief the barristers the CBA were keen to protect.

One thing remains the same this morning as it did yesterday. I oppose the cuts and reforms to legal aid for all the reasons I have set out over the past year, my friends feel the same, as do my learned friends. We still need each other and whilst our position may have been compromised, nothing the Law Society or the CBA have done in our names have compromised our principles.

Let us continue to show the Ministry how they have got this wrong, how what we do is valued and valuable and deserves to be preserved and cherished now and for the future.

After all justice is only justice if you can access it and there are people willing and able to advance the case for it.   This morning and every morning after today we must fight on to ensure that, and fight together.

 

There is no such thing as cheap justice, there is justice and injustice one is priceless and one costs everything.

I recently spoke with a friend I had not had the chance of catching up with for a while. We studied law at University together, he had gone off to join the family business of being a policeman, I went on to be a solicitor.

Having heard about the recent barristers strike he called wondering what it was all about.

“What’s the problem, you lot get paid loads?”

After a long explanation from me he was less surprised about that so many of us were wondering what we were going to do and considering something else, than why we weren’t all already doing else. He could not understand that so many seemingly talented, clever and committed people didn’t apply their talents elsewhere and make more money.

Yesterday, as I drove thirty five miles from one of the “local courts” having dealt with a regular client who shouted at me, blamed me for his initial remand and then failed to thank me after I had him released. I half wondered the same, I wondered how many of the faces I see on a daily basis, will I see in a years time? Who of us are likely to survive the inevitable cull following the cuts that are just around the corner.

There is a general sense of unease about the place, there are heads close together whispering in the quiet corners, there is a lot of gallows humour and some quietly just getting on. There is talk of merger, withdrawal from the profession, pay cuts and redundancies. We all have financial obligations, we all want to keep our jobs and are concerned as to our futures.  

Over-arching all of that, we understand the role we play and the importance of what we do for others.   We are so very often the first and last line of defence for the vulnerable against the apparartus of the state and an allegation of wrongdoing and what we do goes much further than being a question of pay.

I was apparently about twelve when I came downstairs and told my Mum and Dad that I wanted to be a lawyer.  I can’t remember how or why I had come to that decision but I am told that I had previously told them I wanted to be a pig farmer and later a lorry driver. I know why I wanted to follow those careers, there had been a piggery in the village we lived in when I was six and as a ten year old, I liked the idea of eating Yorkie bars every day.

There was no history of working as a solicitor in the family and as a good little boy I had never had a run in with the local bobby or the court system.  Still, that’s what I had said I wanted to be, and perhaps thinking that a career in law was likely to be more stable than the other options  I was encouraged by my parents.

I was lucky to get a training contract having graduated at the back end of the last big recession and worked for a small, two office firm, the like of which is now seriously threatened by the ever increasing legal aid cuts. My training was pretty much here’s a pile of files, crack on and shout if you need help.   In at the deep end which suited me, I am not one that takes to micro-management, even less being told what and how to do it.

There was no such thing as formal “seats”, we were a small effectively a family firm. The firm did pretty much anything that came through the door; family, crime, probate, conveyancing, civil, employment; the usual work of a small High Street practice. I enjoyed and liked the people I worked with. Frankly, I was happy just to be working and grateful for the chance to do what I wanted to do, working towards becoming a solicitor.   All of it was interesting and rewarding in its own way, but what I really wanted to do was crime.

For a trainee solicitor, crime was where the exciting stuff was happening. It wasn’t just the fact that criminal work was more interesting than the work I was doing with the tweed clad Mr Jenkins in probate, or that I could supplement my income with out of hours payments.  It may seem trite, and something that gets trotted out on a regular basis but the chance of writing wrongs and ensuring justice was done was a big attraction.

Being the subject of a criminal allegation is a life changing experience; whether you say you are guilty or not guilty, whether you are found guilty or not guilty, being part of the process itself has an effect.   The recent high profile trials and subsequent acquittals of Roache, Le Vell and Travis are testament to that but I know that for every high profile defendant who faces an allegation there are countless dozens of normal people go through the process without anyone but them really noticing.

It seems to be a relatively common belief that only criminals appear before criminal courts, that if they didn’t do that offence, they probably did something else and didn’t get caught. Luckily for us all this is very far from the truth. Having enough evidence to charge someone is not the same as having enough to convict. The police sometimes get the wrong man, some people are the victim of false allegations and some may have committed a crime but they have a defence which makes them not guilty under the law.

Looking back there was one particular case and one particular client that cemented my already held view that a life of crime was for me.

Connor was one of those people who never expected to have to rely on a solicitor or the skills of an advocate in court.

I first met him when he came into the office with one of “his boys” who had been arrested for fighting in a pub the previous weekend and needed a solicitor.  He was the lads foreman on the rail gang and he liked to keep an eye out for them. Connor told me in his very softly spoken, gentle Irish accent that this boy was basically a good lad, he just got a bit wayward with the drink in him.

Anyway, his boy got the help he needed and went back to work, supported no doubt by Connor and his soft words of advice.  Every now and then we would see another of his boys, each one having been a bit silly after drink and pointed our way by Connor.   They were always polite, always respectful and always contrite for having let Connor down.

It was early one Thursday morning when we got the call to go to the station for an allegation of child sexual abuse. There was nothing really unusual about the case when I called in to the police station to get the details. What shocked me was that the client was Connor.   Quiet, pleasant Connor who had never been in trouble in his life. Who used to tell me the most important thing in his life was Hannah, who he was caring for by himself after his wife has passed away in a car accident.

I grabbed my jacket and hurried down to the station where a pinched faced detective with a bad smell under her nose gave some disclosure. What I got told was fairly short and lacked much detail, something along the lines of,

The defendant is forty eight years old and a single father to a twelve year old girl, Hannah. Most weekends he had at least two maybe three twelve year old girls in his house under the pretext of a slumber party, he would then have them wear nightclothes whilst they all watched videos and ate pizza and he would touch these children. At least four girls have come forward and said this.

Despite asking she refused and more details, and so I went to speak to Connor. He sat in the corner of the room, head bowed and tears streaming down his face. He couldn’t bring himself to look at me at first, and then raised his head, wiped the tears away from his cheeks and said in his quiet brogue “It’s just not true Mark, I haven’t done this, you have to make them understand that.”

“I will try Connor, that’s what I am here for”

There followed hours of interviews, months of bail, more interviews, charges, Magistrates Court appearances, case conferences, pages of evidence and meetings with Counsel. Hannah was placed into foster care after Social Services considered being at home with Connor was too much of a risk. Connor came close giving up at that point, we spoke about credit for a guilty plea, for him losing Hannah was worse than anything that the court could ever do to him.

The prosecution case looked strong, all of the witnesses corroborated each other, all were consistent. Connor had a simple defence he simply hadn’t done it but we couldn’t find to reason why these four girls might be making it up. We spent a long time going through the various statements, he provided dates and times, comments made by him and to him. It was going to come down to who the court believed the most. Connor thought about it , but not for long. He was not guilty, I believed him, his Barrister believed him, not that matters. If a client professes innocence we fight for them with all the skill and expertise we have.

So a trial was fixed. The trial started on a very hot day in June, in a court without any natural light and oppressively hot. “This is what hell will feel like” Connor whispered to me.

The first of the witnesses was called and under cross examination remained steadfast in her evidence. Unshakeable and adamant that Connor had touched her more than once in places she realised were bad. The jury looked at this little girl; bright and smiling initially, tearful and dark when talking about what Connor had done to her and I could see the verdict being formulated behind their impassive faces. The future looked grim for Connor.

The second girl was less certain. She couldn’t remember some details, she got dates wrong and was vague about things. She wouldn’t look up from her lap and the jury mostly saw the top of her head across the live TV link. Looking across at the jury, it was difficult to judge how they felt about this girl and her evidence but there was obvious concern for her distress.

Then came the third witness. From the outset she was clearly reluctant to be there. Again, she didn’t look up when she was being cross-examined, and very soon after the cross-examination started she began to cry. Quiet sobbing became almost hysterical anguish. Connor’s counsel waited allowed the tears to subside and went on with the examination. A few moments later, “I’m sorry, I’m so sorry Connor, we made it up!”

Stunned silence. A question from the defence about what she meant went unanswered save for more tears. “Perhaps a short break would be appropriate?” ventured the Prosecutor.

Ten minutes, turned to twenty, and on to nearly and hour. A sheepish Prosecutor came back and confirmed that the Crown would not be proceeding. A short while later the Jury were thanked for their time, they would not be needed. Connor was told that he was free to go allowed to leave, an innocent man with no mark against his character. The Crown confirmed that it had all been a lie, made up by the first witness after she had fallen out with Hannah over a boy, the other girls backing her up and tagging along initially because it was a laugh, later through fear of what would then happen to them.

Connor asked what would happen to them, would they be prosecuted? He was told that they might be, a lot of time and money had been spent in prosecuting him, not to mention the impact and consequences on his life. He smiled, “For what it’s worth I don’t want anything to happen to them, they are just young girls, who can say that they have never done anything silly when they were younger.”

In time Hannah was returned to Connor and the last I heard they had moved back to Ireland. I had a card from him a year later on the anniversary of the last day in court, with a picture of Hannah and him smiling and happy, thanking me for all that had been done.

It is these cases that make the difference and cases like these that underline why my colleagues and I do the job we do with its long hours, frustrations and shrinking renumeration.

Those of us who do this job have done so for a long time not knowing what is coming around the corner. Every time there is a consultation, a new idea thought up by people who have never actually done the job, we have rolled with it. We regularly turn up to court with no papers and clients wanting to get on straight away; we cobble together a set from the court, the prosecutor and sometimes the client. We sit and read everything quickly and advise the client. We bang heads with the prosecutor, arguing for bail, a basis of plea, trial issues. We appease the client, the clients girlfriend and his worried looking Mum. We make sure the forms are signed, dates are put in the diary and cases are prepared as best we can. We do this in every case whether we believe the client or not, that is not our job. We do it because everyone is entitled to justice, guilty or innocent, rich or poor.

Justice needs to be available to everyone, in every case and their needs to be people willing and able to try and ensure it is. The cuts to legal aid and “reforms” proposed put this in jeopardy and I have sought to oppose them whenever I can and raise awareness of the issue with whoever is willing to listen. Legal aid and the justice system costs money and those who work within it deserve to be properly paid for the work that we do.

It is for that reason that we are currently engaged in a battle with the Ministry of Justice to oppose these cuts, but it is for Connor and all those like him why I became and continue to be a criminal lawyer.

Transforming Legal Aid – The next step is into the unknown…

When I first started blogging about the legal aid reforms proposed by Chris Grayling I referred to them as an extinction event for the profession. The proposals as they stood at the time were likely to drive all but a very few providers out of business. It was envisaged that the reforms would result in widespread firm closures, job losses and a devastation of the junior Bar. Nearly a year later the situation is no better, and arguably a lot worse.

The Ministry of Justice posited the need for the reforms as being effectively out of their control; like countless others before him Grayling relied on “just following orders” claiming he had to make his books balance after a spending review was imposed on him from above. What he didn’t do was fight his corner and fight the level of cuts required of his department.

After that he went on the offensive, briefing and briefing hard against the profession. Whenever the reforms were discussed by the Ministry the same old phrases were trotted out; most expensive legal aid system in the world, £2 billion of hard earned tax-payers money spent last year, reforms designed to ensure a stable supplier base and protect access to justice for all.

Those reasons have, over the last twelve months been shown to be at best inaccurate, at worst intentionally misleading. Little surprise there, from a Minister who has a track record for being openly dishonest with facts and figures. Both sides of the profession have time and time again highlighted how the Minister has got his figures wrong and why the proposals were not just wrong but incredibly short-sighted and did nothing to enshrine access to justice.

Last Thursday the Ministry of Justice released their response to the last consultation on Legal Aid. Two months later than it had been originally promised and totally ignoring the concerns raised by the varying factions of the profession. It is perhaps a measure of quite how bad the proposals are that there are no winners in these reforms, only losers, some heavy losers and some very heavy losers. There is nothing in the proposals that will give heart to the smaller firms, and very little that give heart to the likes of the Big Firm Group. More worrying to all of us as legal aid lawyers is the fact that access to Justice is the biggest loser.

If we are honest with ourselves, and to be blunt as a profession we rarely are, these cuts were signposted a long time ago and we blindly carried on hoping the day would never come. Lack of leadership from the Law Society, the protection of vested interests and the minutiae of just doing the job meant we carried on regardless.

We showed the Ministry that we could stand together and managed to stage a half day of action, but in the peculiar way that the profession seeks permission for everything we wrote to the courts and the sitting Judiciary and politely asked that our clients cases be adjourned or put back in the list. The courts kept going and there was very little chaos and the wheels of justice simply ground a little slower for three or four hours.

The consultation response was expected in December, the fact it was published over two months was the first example of irony in the document. The Lord Chancellor wants the profession to demonstrate they can work efficiently, quickly and cost effectively; aims he clearly doesn’t expect of his own department. The delay might be excusable if the proposals had genuinely considered and actioned the proposals put before him. What we got was in reality the worst possible compromise.

There are in reality two schools of thought as to what we as a profession, and by we I am talking about solicitors, wanted from the consultation. The big firm group wanted extreme market consolidation which would give increased volume. Although they oppose the cuts in fees they could make them work if the volume was there. The rest, oppose market consolidation and cuts in fees and want a totally open market for own and duty clients. If we fail then we fail because of ourselves and not because of some half-baked attempt to engineer the market. Now many of us will fail because of a way of working has been imposed on us that takes no heed of what we do and why.

The Ministry of Justice smiled, nodded and politely listened to what we had to say. They met with some us, they snuggled up to the Law Society and took large parts of what they had suggested and then added a huge cut in fees. So what we get is market consolidation, dual contracting and a cut in fees that means no one can do the job and work with a guarantee that their future is sustainable. What we have is not enough market consolidation that allows the BFG enough volume to survive fee cuts; too much market consolidation to allow the smaller firms to even open their doors.

The Ministry of Justice has done exactly what it intended to do when it first published the initial consultation document. Client choice is academic if there are no firms able to do the work. The reality is that unless you secure one of the duty contracts then you cannot really open the doors to the own clients. If you don’t have a duty contract then at the end of the day where are your own clients going to come from in the future, what happens when your own clients grow up and stop offending, and most do?

So what do we do now?

There will be no immediate climb down by the Ministry of Justice. Chris Grayling is a man with a mission, and like zealots and missionaries before him he is blinded by the cause he follows. Politics is a cruel mistress, but for politicians it is a mistress that must be followed and appeased. He is well aware that he may be in post for less than another 18 months. If he loses his position after the next election and finds himself in opposition he wants to be able to say to his political masters that it’s not his fault, he made the cuts asked of him, he has shown that he will not bend to whims of this he represents, he did not cave under the pressure.

I was talking the other day to a client who has some extreme and frankly unpleasant views on a lot of political issues. He said “Campaigns for change only work when you can convince those other than the activists to care about what you are campaigning for”

In the context of lawyers fees, legal aid and access to justice this is the key for us. We strike to raise awareness of the issue and protest the cuts. In doing so we must ensure the public know why, and we must gather the momentum of their support, to do anything else it all becomes a pay negotiation and we all know it is so much more than that.

As we stand outside the courts we usually stalk through make sure you tell those who ask why.

It could be you…

When the National Lottery started it’s adverts all carried the tag line “It could be you…” with big finger pointing from the sky towards the lucky winner. I don’t think they still run that tag line as more and more people realise it’s probably not going to be them and less people seem to be taking part. Still if you don’t want to take part in that lottery, then you could always take part in the lottery that is legal aid funding and see whether or not you can get representation.

You could be like Rose. Rose is thirty-two, she has two children, Ellie, a cheeky six year old with a mop of golden curls and Samuel a quiet, reserved four year old. Samuel doesn’t like to talk to people, he has seen and watched the two most important people in his life shout and scream at each other and he doesn’t know why they do it, he just wants them to be happy. He sits between his Mum and her friend Jackie clutching his Buzz Lightyear toy trying to get as close as he can to the protection of her.

They all sit in the institutional, dirty cream coloured waiting area outside of Court Three. The metal benches offering little comfort as Rose waits to. E called into court. They have all been there for the past hour, the usher told them they should be in soon. The case before them has over-run, a tenant trying to avoid being evicted is pleading his case without a lawyer, whilst the landlords solicitor points out just how much he owes in rent and the fact he has contracted pneumonia from the damp in the flat and has not been able to work for six weeks is not an excuse.

The delay is doing nothing to calm John sitting across from them. John has a few sheets of paper clutched in his hand. He keeps riffling through them, every now and then angrily underlining something with a pen he keeps taking in and out of his pocket. He looks up at Rose, in a low voice barely audible to anyone else, “It’s all bollocks you know. I’m going to rip you apart in there!” Rose holds Ellie that little bit tighter, shifting in her seat, looking down at the floor, and tries not to catch his eye.

This scene is played out in one form or another across court waiting rooms on a daily basis in every town in the country. Changes made to civil legal aid over the past couple of years mean Rose cannot get legal aid to employ a lawyer to help her with her situation. All she wants is to get away from John, protect her children and get somewhere to live. He holds the key and the purse strings, his pride and his nature blinds him to what is best for his children and their well-being and so they all end up in court. More and more women, and frequently men seeking to get out of an abusive relationship must appear alone in court, unrepresented to face the very person they are seeking to get away from. Judges not only have to rule on the situation, give redress and protection but manage proceedings where neither party is represented and legal argument gives way to verbal argument and abuse and sometimes physical violence. The reason they are there forgotten in the emotion of a relationship unravelling before them. There are no winners here, no-one gets what they want and problems fester and simply get bigger.

Sadly, it’s not just family law.

It’s housing, employment, welfare benefits, all the areas civil law touches upon and importantly all the areas of law that you might conceivably need to use to resolve a problem at some point in your life. Across the board there have even savage cuts not only in the level of payment made under civil legal aid meaning there are fewer and fewer firms able to carry out the work but also in the areas of law it is available for. If you need to resort to the law to resolve a situation then it is very likely you will go to court alone unless you can afford to pay for a solicitor yourself.

As I write this the Ministry of Justice are preparing to announce the results of the second stage of their consultation on criminal legal aid. Even before the “reforms” are finally announced criminal legal aid has been going the same way as civil legal aid. There are very many offences for which you will simply not get legal aid. Offences where admittedly you cannot go to prison if found guilty, but where a conviction might have a very real impact on your life.

If you face an offence in the magistrates court and there is a prospect that you might conceivably go to prison then you can apply for legal aid. The first stage is that your income is assessed. If you earn at about the living wage or above then you won’t qualify for legal aid, no if’s not buts. You will need to pay for your own solicitor, or represent yourself.

If your case has to go to the Crown Court then you will get legal aid but will have to pay a contribution towards it. If you are fortunate not to need to apply for legal aid, or your barrister and solicitor think they can work for less than the legal aid contribution, you can choose to pay for your defence privately. If your case was one that was charged after October 2012 and you are then found not guilty, then you won’t get any of your costs back, none of them, only out of pocket expenses such as travel costs.

If your case was charged after January 2014, and you pay for your own defence and are found not guilty you can apply for some of your costs back, but this will be limited to the hourly rates your defence lawyers would have been paid under legal aid. This will be a lot less than you had to pay them to do the job. Whatever amount it is you will be left short, funding the gap between legal aid rates and private rates.

How can that ever be fair?

You will have been arrested and prosecuted by the state, found not guilty and still left out of pocket. You may have had to sell your house, take a loan, perhaps even have lost your job in order to fund your case, and certainly I have had clients in this position.

This is the state of affairs before the further cuts and reforms are made. The situation will only get worse after. The rates paid to your solicitor and barrister are to be further cut. This will mean that very many firms will go to the wall. The days of the small friendly one man band are numbered. The talent previously attracted to the criminal bar will go elsewhere. You might think lawyers deserve it, forever bleating about how they can’t afford this, can’t afford that, having to work all hours on their cases. Why should they be immune from the austerity measures? Well clearly we should not, none of us think that we should.

Yet, the cuts to legal aid are not just austerity measures, they go much further than that. They are based on data that is out of date and out of touch with what is happening in the real world. The cuts are not just economic measures they are ideology and the government seeking to engineer the market for their own purposes.

As a result of cuts to the legal aid rates we will see firms go out of business, and these firms will never come back to criminal defence, barristers leave the profession upon whom the state rely to prosecute the cases we are all appalled about and the bright young talent that is needed to preserve that which goes to the heart of the system, a passion for justice and what is right simply be prohibited from entering as they cannot afford to.

We are constantly told that times are hard, that we must make sacrifices and that the books must balance. It is only when it makes political sense to spend money that money is suddenly found down the back of the treasury couch, the recent floods being one such example.

Justice needs to be preserved and it needs to be for all. You simply cannot have it any other way if we are to ensure that Rose and all like her will get what she deserves and not what John thinks she deserves. Those of us who work in criminal defence are not yet in the position of our colleagues in civil legal aid but we are getting there and perhaps very soon.

Finally and this is really my point, if you think that this really doesn’t affect you then consider this

One of the biggest stumbling blocks I and my colleagues across the profession are coming across in trying to highlight are concerns for legal aid is the perhaps understandable attitude of “So what, I am not a criminal! I don’t break the law so why do I need to worry about the possible loss of solicitors and counsel. What does it matter to me that there may be fewer and fewer able defence lawyers to properly represent me, I will never need one.”

I am fairly sure that neither Mr Le Vell, Mr Roache or Mr Griffin thought that they would need a lawyer to advise them in the police station, that they would come to rely on their barrister and solicitor to try and ensure justice was done. I am sure that they never expected to open their front doors in first thing in the morning and find a number of police officers standing outside waiting to arrest them and search their houses.

This is exactly what I and many of my colleagues had and continue to try and warn people about, why we have been so vocal about the changes and reforms to the legal aid system. That without a properly funded system of legal aid, justice for all is something you can hope for but perhaps not receive. There is simply no-one who can say that they will never be arrested, never find themselves having to look in the eyes of a magistrate, a Judge or the jury and seek to persuade them that the allegations made against them are false.

Please, in the next few days, when you see the coverage given to the legal aid reforms and when a Ministry of Justice official tells you how necessary they are and how the legal aid budget is the most expensive in the world; when you see my colleagues and friends standing up for the right to a properly accessible defence and representation don’t think it’s just about us protecting our jobs and our pay. Think rather what if it was me, what if the prosecution finger was pointing at me, without access to legal aid and a properly prepared defence who is going to stand up for me?