What Mr Grayling doesn’t want you to know…


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As the e-petition started by Rachel Bentley reached 60,000 signatures over the weekend, the Ministry of Justice posted a response to it as they are apparently entitled to. Clearly written by a member of staff in a hurry, “pubic” rather than “public” creating a few laughs, the response does little more than re-hash the information and the arguments put forward by the Ministry and Grayling over the past few weeks.

The same arguments that Ministry staff were unable to answer when questioned by lawyers all over the country in the recent engagement meetings (if this is engagement, the wedding is going to be fun). The same arguments that Grayling has trotted out to the press and which some of the press have simply lapped up and printed verbatim and in particular the Express and Daily Mail. The same arguments that have been forensically dismantled by a great number of lawyers, blogging, speaking and engaging with the public.

The reality is Grayling has decided that he will make cuts, he has decided how he will make those cuts and even agreed the amount of cuts he will make with Osborne, if yesterday’s headlines are to be believed. The consultation is, as I said in my first blog on this subject, a sham, fig-leaf of respectability. The Lord Chancellor has said over and over again that PCT will come in, and with PCT comes the removal of choice, the dumbing down of the profession, the greater risk of miscarriage of justice and the loss of most of the independent bar.

If the proposals are beyond reproach, beyond criticism and are so very necessary then The Lord Chancellor need have no worry about a debate as he would be able to show to us all and his colleagues how well reasoned they are, where we who actually do the job and appreciate the realities of it are wrong. As it stands there will be no debate, the proposals will never be subject to scrutiny and more importantly for us all as lawyers, no-one will test the evidence.

Let us for a moment then consider what the Ministry have said on the petition.

Mr Grayling tells us that we have the most expensive legal aid system in the world, with over £1billion pounds of tax-payers money spent on criminal legal aid. Both facts are untrue.

In comparing legal aid systems the Government fail to account for the fact that we have an adversarial system, pitting one view of the evidence against the other. Other legal systems use the inquisitorial system, evidence based but by a tribunal seeking the answers. Both have their advantages and both have their disadvantages, an adversarial system costs more for lawyers, an inquisitorial system costs more for investigation and judges/courts. If this is taken into account the net effect is that we spend on average the same as most other criminal justice systems in the world.

Mr Grayling doesn’t want you to know that.

The £1billion plus figure is an old figure. The figure for last year is less than £950 million, for the next year likely to be less than £900 million. In fact the criminal legal aid budget has been reducing for some time. Cuts already imposed, the lessening of work through the courts, the introduction, removal and then re-introduction of means testing in both the Magistrates and Crown Court have all seen the figures reduce. Fees in the Magistrates and Crown Court have not increased in over ten plus years, and many have been reduced already or removed all together.

Mr Grayling doesn’t want you to know that.

The proposals seek to remove the right to legal aid from prisoners that want to complain about conditions, categorisation and the like. This is an easy target for the Ministry and sure to gain support from the members of the general public. Why, after all should the people who have committed a crime be allowed to complain about the conditions they are held in?

As Grayling said in an interview with Catherine Baksi reporting in the Law Society Gazette that “We know the people in our prisons and who come into our courts come from the most difficult and challenged backgrounds.” If we accept at face value this comment, and see it as recognition of the problems in prison rather than a perjorative description then that the fact that is recognised and yet the government still seek to limit access to justice is very worrying.

Surely, it is for this very reason that those serving a prison sentence who have issues as to their conditions, sentence and categorisation should be allowed access to legal aid to challenge these decisions. The fact that they need to seek legal advice is indicative that the complaints system has either not been working for them or simply doesn’t address the needs of the prisoner. Why would a person imprisoned by the State feel that the very system that they are complaining about would take their complaints seriously?

Mr Grayling doesn’t want you to know that.

High value cases swallow up millions in tax-payers money. Really? Bears relieve themselves in woods, and the Pope is Catholic. This is hardly news. Difficult cases mean lengthy prosecutions, which means in many cases lengthy and complicated defences. Is it right that a complicated case should have legal aid restricted, refused because it costs too much money? Should the right to properly test a case and explore a legitimate defence be compromised because it swallows up money.

What Mr Grayling wants you to believe is that lawyers have been wasting your money on cases that you might find morally or ethically repugnant, cases like Abu Qatada who has spent over £500,000 of your hard earned tax on legal aid defending deportation over the last ten years. Yes, that is a lot of money, no it’s a huge sum of money. Whatever you might think of Qatada, his views and his politics he faced extradition and was entitled to contest it, within the law and using the law. The Government were entitled to try and extradite him, they lost not because of the legal aid being spent, but because the law was against them. It’s not, contrary to what Mr Grayling would have you believe, the defence lawyers that bring these cases. It’s the Government, it’s the prosecution of offences committed when someone allegedly breaks one of the laws that the Government have passed.

If Mr Grayling really wants to cut the legal aid budget simply make nothing illegal, no crimes, no criminals and no need for lawyers. Now that’s something I don’t want Mr Grayling to know.

Legal aid and the access to justice it allows is not something we can choose to give to one because we sympathise with their views and actions and refuse to others because of their views and actions. Justice is only justice when it is applied in an even handed way.

Mr Grayling doesn’t want you to know that.

Mr Grayling also targets high paid counsel, who shock horror were paid more money than the Prime Minister and some senior civil servants, and of course more than him. Some were paid nearly £500,000 in one year! This is clearly designed to offend the readers of the Mail and Express who all pay their taxes and contribute to society. How dare someone be paid well for a job of work.

Except the headline figure does not explain the detail of where that money may have come from, how many cases, how many years those cases ran on before conclusion. It also fails to say that counsel are self-employed. That figure if £500,000, and only a very very few earn at that level in any one year and virtually none consistently is not money in the bank. From that money, tax will have had to be paid, National Insurance, VAT, Chambers rents, clerks fees, travel costs, books and materials to allow the work to be done in the first place. There will have been no holiday pay, no sick pay available.

Mr Grayling doesn’t want you to know that.

Under the reforms those who do not have a strong link to the UK will not qualify for legal aid. Essentially those that have been in the UK for less than a year will not be eligible to legal aid. This will mean that those who seek asylum will be unable to access legal aid for the first year they are in the UK, after which they will likely not be in the UK. Those that have been trafficked into the UK by criminal gangs cannot access legal aid to ensure and preserve their rights. Perhaps an extreme example but if applied, the baby who is the subject of care proceedings cannot have a lawyer to represent their rights, because they haven’t been in the UK for a year. So it may save some money, but where is the justice?

Mr Grayling doesn’t want you to know that.

Under the proposals Mr Grayling tells us that you will still have access to quality duty solicitors and lawyers. He doesn’t tell you that three in four current firms are likely to disappear over-night. He doesn’t tell you that the firms that will take your case will be allocated to you and you will not be able to choose the lawyer you trust or want. He doesn’t tell you that you will not have the right to change the lawyer allocated to you if they don’t provide you an acceptable service.

He doesn’t tell you that the fees he will be prepared to pay give the lawyer an incentive to settle a case early, and in criminal cases that means pleading guilty. He doesn’t tell you that firms like G4S, Stobarts and Tesco have all indicated that they would consider bidding for a contract. These are all companies who are listed on the stock market; all companies who are accountable to share holders and not you, the public or their clients.

The fact a lawyer will be available to you is not Mr Graylings choice, a couple of years ago the Government seriously considered the possibility of removing face to face access to a solicitor in the police station if you were arrested. It’s only a matter of time before Mr Grayling thinks about this again, before he thinks of another way to “save” your tax and without a committed and broad base of defence lawyers available, who will stop him then?

Mr Grayling doesn’t want you to know that.

The petition needs 100,000 signatures for the issue to be considered for a debate in Parliament. Mr Grayling doesn’t want that to happen, as he knows he cannot fudge and bluster his way through the questions that have and need to be asked as he and his Ministry have done so far.

If you value justice, if you value accountability, if you believe that spending on criminal legal aid a sum equal to less than 0.5% of all the money the Government spends annually is a price worth paying for a fair and just legal system then please sign the petition to help ensure a debate.

Over the past few weeks many people have written so many very good reasons why the reforms are fundamentally wrong and why they need opposing, and should not be imposed. You can, and please should read them here. and Mr Grayling really doesn’t want you to know that…

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Author: crimsolicitor

I am a Criminal Defence Lawyer, committed to providing the best defence I can for those who need it, regardless of their ability to pay...

5 thoughts on “What Mr Grayling doesn’t want you to know…”

  1. I totally agree. Just one minor point (and it’s totally off point but I like accuracy), Abu Qatada is being deported, not extradited.

  2. I am perhaps less converted to the cause, but good article.
    Here is a paper I have come across for those like myself who feel the legal aid budget is excessive, but fear the damage it is doing to our justice system:
    http://www.conservativelawyers.com/assets/uploads/publications/pdf/SCL_Affording_Justice_310513.pdf

    I’d be interested to know your thoughts on some of these proposals, many quite different from Grayling’s reforms, and thought through by practicing lawyers.

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