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?