Is the governmentâ€™s determination to apply its ever tightening ratchet to the legal aid budget a good idea at any level? It certainly doesnâ€™t look like a brainwave at the top end of the scale.
Consider Thursdayâ€™s debacle when a crown court judge halted a serious fraud trial because the defendants could not get adequate representation following cuts to legal aid. A scandal but not a surprise, perhaps because it is known that barristers in England and Wales are refusing to take on complex cases because of 30% cuts to their fees.
None of this happened on a whim. Judge Anthony Leonard told Southwark crown court that â€œvery substantial â€¦ but unsuccessfulâ€ efforts had been made to find barristers to fight the case. They tried 70 in fact. But it was a complicated case requiring the sort of time and expertise that goes unrewarded as the ratchet closes tighter.
There were eight defendants and serious charges brought by the Financial Conduct Authority. Thus, a public body charged with protecting the integrity of the financial markets and the interests of the public has been stopped in its attempts to do just that so that the parsimonious justice secretary Chris Grayling can collect a pat on the head from the even more parsimonious chancellor.
Like all good farce, this one has an element of comedy. Working hard to get the case stopped, citing the financial strictures imposed by the government, was Alexander Cameron QC, the prime ministerâ€™s brother, but there was no money even for him. Persuaded of the view â€“ eventually accepted by the judge â€“ that to proceed would be a â€œviolationâ€ of the legal process, he was working free of charge.
So there is serious damage being inflicted at the top end, but letâ€™s consider the impact at the bottom. This week I stumbled across the case of someone we will call Ben. He is a professional without a stain on his character, but a few weeks ago he got involved in a spot of bother; low-level stuff that on a football pitch a referee might have sorted out. But the other protagonist made a formal complaint and Ben was charged with a minor offence.
He was offered a caution but couldnâ€™t take it, firstly because he didnâ€™t think he deserved it; secondly, because a criminal record would make his job very difficult; and thirdly, because he has some witnesses. And here the problem begins. It is taking an age to obtain legal aid. He has a solicitor, but the solicitor wonâ€™t do anything much until the legal aid is rubber stamped â€“ there is no great incentive to go above and beyond. Under the fixed-rate legal aid payment system the case is worth chicken feed anyway. And in the meantime, Ben worries that his witnesses will go cold and without them he might be convicted. His agenda is not being convicted; by contrast the solicitorâ€™s priority has to be using time and resources to keep the practice afloat as the legal aid ratchet closes tighter. A drowning manâ€™s priority is not to drown.
So this is where we are, and where we are headed. The government said the target was fat cat lawyers, and their friends in the press spread that gospel â€“ but if that was the target they arenâ€™t very good shots. What we see is chaos and confusion, distortion and hardship. What weâ€™ll see henceforth will be the real fruits of this harvest: a broken judicial system and miscarriages of justice.
There were fat cats, but there were many more lawyers working long hours and straining every sinew for their clients. They warned that the ratchet would over tighten. We see they were right. Recently, one of them tweeted about his day: â€œI secured the acquittal of an innocent man following 8 hearings (including 3 full days) in the Crown Court. My fee? Â£176. Cheers.â€
From the Guardian