An open email to the Law Society

The general view amongst criminal lawyers is that we’re facing the fight of our lives, and the Government has something of a head start and numerous advantages (our money, power, access to media…)

The lawyers are represented by a number of different organisations. Some, like the Criminal Bar Association, are right at the sharp end of the campaign. Similarly with solicitor organisations like the London Criminal Courts Solicitors Association and the Criminal Law Solicitors Association.

However, barristers and solicitors are primarily represented by two national bodies, the Bar Council, and the Law Society.

The response from those more official bodies has been far more muted, rather to the frustration of many of us.

This is an open email I have sent to the President of the Law Society, along with the Vice President (who happens to be the Council Member for one of the counties my firm is in), and Council Members representing criminal law and the other relevant county.

Any response will be published, if suitable.

I regard the comments as equally applicable to the Bar Council, and will forward to the Chair. It is also my answer to those who despondently say that we have to agree to the proposals once we’ve amended the terms, and those who start with the basic idea that there must be cuts and maybe even tendering has a place. With much regret, that criticism has to be levelled at the Legal Action Group.

Don’t misunderstand me. I accept that we’re in austere times. But the Goverment chooses its own priorities, when there is wastage throughout the system. Parliament and Government itself costs an eyewatering amount of money, much of which could be saved, and much of which is less obviously of value to any of us. The legal aid bill is miniscule relative to much Government expenditure but huge in the eyes of the public because of negative publicity. The difference is that they are in control. 

They have chosen to destroy respect for our professions and the rule of law, and now pick on the justice system using the public disquiet they created as justification.

We do not have to accept this. We do not have to agree with their terms of reference. We live in a democracy and I believe the future is, at least in part, what we make it. We have a responsibility to make the entire argument, not just the bits they want us to make.

Dear Sirs,

I am not a member of the Law Society, but I write to you as a fellow concerned lawyer, employed in a solicitors’ practice. I have chosen to write to you in particular because you are the President, Criminal Law Representative, and constituency members for Nottinghamshire and Lincolnshire respectively. My firm’s practice is over one third criminal law and its offices are divided between Lincolnshire and Nottinghamshire.

I will write in similar terms to the Chair of the Bar. Indeed, my comments apply equally to all those who say that we must accept cuts.

I have seen your recently released consultation paper and I will respond to that in due course.

I mean no disrespect. I am sure you all work very hard and have our interests at heart. I have seen the statements released and they are a start. However, I wish to express my concern at the basic stance adopted by the Law Society. I believe most criminal lawyers working at the coalface share similar views, but I don’t claim any right to speak on behalf of others. They will have to speak for themselves. I hope they do so.

The Government, and previous governments of other shades before it, have systematically denigrated lawyers, law, the decisions of the courts, and legal aid, for many years. Respect for the rule of law must be at an all time low. We are faced with repeated criticism and misinformation about every aspect of our work and every area of practice. These criticisms have not been effectively countered by the professions. As a result many areas of practice have been attacked, and access to justice has been chipped away.

The result is that the Secretary of State for Justice can say with a degree of truth that the criminal legal aid system has lost credibility with the public. It has lost credibility as a result of years of negative briefing and the result that the public wrongly believe that we are all, without exception, fat-cat lawyers with our tongues in the feline milk dish of taxpayer-funded legal aid. Every day, it is thought, we play a game of cat and mouse with justice, in which we use every underhanded trick in the book to get our guilty clients off.

We all know that this is untrue. We play a vital role in an important system which upholds democracy and the rule of law. We spend much of our time advising our vulnerable clients that it is in their interests to (in effect) save taxpayers’ money by pleading guilty. We assist the Courts in finding the right outcome for all concerned. We deal with victims and witnesses in a professional and, I hope, generally compassionate manner. We deal with some of the most difficult and unpleasant individuals society has created, some of the most harrowing events known to humanity, and we often do so in the middle of the night. Solicitors and counsel alike work many more hours than they are paid for. They get the job done because it has to be done.

For all that valuable work, there is no reward in society. Lawyers are not respected. People assume we earn a great deal when many of us do not. At every social gathering we ever go to we have to explain why we defend the guilty. Basic constitutional principles which have existed for centuries are not accepted as a given by society – the idea that the prosecution have to prove their case is thought to be an alien European concept, when it is totally home-grown and a gift we gave to the World, rather than the other way round.

Legal aid lawyers are not paid a great deal, payments have been reducing steadily, and the majority work in this field out of love or duty, not for the rewards. The rewards would be greater elsewhere and we choose not to take them. Our offices are run-down, the paint is peeling, and our carpets threadbare. Yet we still come to work, and work hard, for the interests of our clients and because we believe in the adversarial equally-balanced justice system.

We live in times of austerity and I appreciate that our clients and members of the public are suffering. I hope I can be forgiven a little cynicism when I observe that it sometimes seems that the only people in today’s society who are not suffering are Members of Parliament and the current Executive. I accept that as responsible members of society we must bear our fair share of difficulties.

However, the question must be, what is that fair share? Indeed, are we presently already bearing it after years of cuts and an ever-increasing workload?

I am concerned that in prefacing all the Law Society’s comments on this issue with the premise that we accept that cuts must be made, and Government will not listen to us if we suggest otherwise, we start on the wrong foot, going in the wrong direction, and we fail to make our case.

The Government does not come to the Law Society to talk, in good faith, about what the right way through this is. Mr Grayling does not, in my opinion and with all due respect, speak truthfully when he says that he is interested in finding a way to avoid price competitive tendering. If that were the case it would have been easy indeed to launch an open consultation with a number of different options, or simply solicit suggestions from those working in the system as to what should be done. With thousands of intelligent and able lawyers, all well acquainted with the system and its failings, I am sure there could have been many suggestions.

That is not what was done. We are told there is to be no debate about price competitive tendering. The questions are just about the details. It is assumed that savings must come from legal aid and not elsewhere. Not ensuring that only the right cases are prosecuted. Not dealing with expensive fraud cases in a different way or requiring the banks who authored all our misfortune to pay their fair share of the costs of cases emanating from their system. Not stopping Government meddling with the law relating to sentencing and therefore increasing the burden on lawyers and courts of all levels as we work out what yet another set of laws mean. Not ending the repeated invention of new offences for political ends. Not preventing wastage in the court system, cracked trials which could have cracked earlier, unnecessary adjournments.

And all that is only the small list which springs to mind now, and does not even begin to consider what happens in the rest of public life.

The consensus view amongst both solicitors and barristers, so far as I can see, is that the proposals, if implemented, will destroy both professions. Thousands of firms will close. Thousands will be made redundant. The Bar will collapse. Justice will be gone forever.

There are two possibilities in what the MOJ are doing. Either they mean to implement the proposals, in which case we are fighting for our lives and everything we hold dear about the system, or they have no serious intent to implement and use this as a negotiation tool.

If it is the latter it is an astonishingly dirty trick right out of the North Korean School of Diplomacy. They’re threatening to press the nuclear button so that we concede to them. We’re being threatened with a painful execution in the hope that we’ll agree to cut our own limbs off to avoid it.

After so much criticism in the press, most of it untrue, this is bullying of the worst kind.

We spend our working lives defending the vulnerable, and giving them a voice which would otherwise not be heard. It’s time we did it for ourselves and our system.

The Law Society should be standing up for all lawyers, for the rule of law, for the decisions of our judges applying that law in our historic and World-respected courts. The Law Society should be screaming from the rooftops that the services of our lawyers are infinitely more valuable than the figures paid in legal aid. The Law Society should be presenting the counter-argument loudly in every forum it can possibly reach. The Law Society should be convening emergency general national meetings to ballot the profession on what should be done, and hear from us as to what should be conceded, and where the line is drawn in the sand. Leaving it until May or later and making concessions which have not been mandated is not enough.

What the Law Society should not be doing, with the greatest of respect, is starting off with a quiet whimper of, “They won’t listen to us if we say there shouldn’t be cuts.” If that is your first bullet-point this is not a strong skeleton argument in our favour.

This is not about cuts. This is about everything we hold dear. Everything we studied and thought amounted to our system.

It should matter to all lawyers. Not just criminal defence. It should matter to every citizen.

It is the job of the Law Society to convey that message. Action is required. Many of us have started a grassroots campaign. We need you behind us every step of the way.

Fight for us.

With very best wishes,

Barrister999

PS. I will publicise the content of this email on my blog, which has been seen 7,100 views in the 48 hours since it was launched. That should give you some idea of the strength of feeling.

https://barrister999.wordpress.com/2013/04/16/legal-aid-some-thoughts/

As a start might I suggest the following:

a) Publicise this issue more. Blogs like mine, but there are many others, convey our message. Crimeline’s Twitterfeed is a good place to start.

b) Email all solicitors to ask that they respond to the MOJ Consultation and don’t accept the basic premise that PCT is required.

c) Ask everyone to sign the petition. http://epetitions.direct.gov.uk/petitions/48628 11,150 signatures in a little over a week, with no official sanction. How many solicitors are there? This should be so many more.

d) Your statements on this issue and a link to the petition should be a massive banner at the top of your website, above the fold. At present no-one will find what you say unless they specifically look for it.

Why you need Legal Aid

You might think that legal aid is a wasteful expense, used to prevent those who should rightfully be convicted and sent to prison from getting their just deserts. It’s just to benefit the criminals and their fat cat lawyers, right?

Well, quite possibly you won’t ever need legal aid or criminal defence. Hopefully not. But can you say for sure that you won’t ever need it, and neither will anyone you know or care about? Will your children or grandchildren ever need it?

Strangely, at the same time as holding the above or similar beliefs, millions of people were hooked in and transfixed by the recent storyline in Coronation Street, with the totally innocent Tyrone Dobbs being unfairly accused of domestic violence assaults by his dishonest and manipulative ex-fiancee, Kirsty Soames. Obviously that’s a fantasy (and lawyers watching TV often find themselves shouting corrections at the box, but that’s for another day) however it had enough credibility to it that people could believe in it. “Hell hath no fury…” perhaps. You can imagine such a thing happening, can’t you?

If you need proof that they do, how about a story from today’s papers: here’s one from this morning reporting that a woman made up a false allegation of rape because she was fascinated with fiction novels featuring violent rapes. You’d want to be defended if you were in that situation wouldn’t you? How about if it happened to your son?

It’s fair to say that such cases are rare, but false or exaggerated allegations which defendants need defending from are to be found in all courts, every day of the week. Most of them don’t get reported in the media. The papers tend only to report convictions. There is not such a good story in “Jury finds that defendant didn’t do what the witnesses said he did.”

The Prosecutor’s opening speech gets the front page, the Complainant’s evidence page 2, the acquittal is usually one paragraph on page 17!

The thing is that if you’re unlucky, if you cross the wrong people, you could find yourself on the receiving end.

And at that point every one of you would be saying that you want the best solicitor and the best barrister to deal with your case. Your life is on the line. You know you didn’t do it. You want to be defended. You don’t want to be told that the only representation you can have is a budget service from a lawyer you have foisted on you, who has no regard for quality.

You might feel the same if you end up in court inadvertently. Maybe you make a mistake while driving, or maybe you’re just in the wrong place at the wrong time. Maybe someone you care about, perhaps a teenage child, goes off the rails for a time and breaks the law. Obviously their behaviour should be punished, but you see the other side of them and care about them. As a parent you want them to be defended, don’t you?

I can give some examples of people who I have directly dealt with in the criminal system, and who required legal advice and representation. Some of them did not receive legal aid because they were not financially eligible, but that’s not the point. Most did, and there is an injustice for those who didn’t get help where they were in that posiion through no fault of their own.

Not all defendants are guilty, and everyone is entitled to a fair trial and a proper defence. That a defendant is innocent until the allegation is proven, on the evidence, such that the jury are sure that they are guilty is an essential protection of our liberties. And it’s an old idea, not some new European idea – a case as long ago as 1935 held that the requirement for the prosecution to prove its case was a “golden thread” running through the history of English law.

Legal aid is an essential part of preserving the right to a fair trial. It ensures that the vulnerable and those who can’t afford to pay for representation get the same standard of representation as those who are more wealthy.

Justice should be impartial, blind some say. She should not have one eye craftily open gazing on the net worth of the defendant. If Lady Justice has one hand on her Sword of Reason and Justice, and the other on the Balance Scales, she doesn’t have a spare hand to clutch the purse strings too.

So here are some examples from my own career. The details are vague enough that my clients will not be recognised. I will not enter into discussion about who they were, but they were all real people. All criminal lawyers will have their own tales. If they want to add them, suitably anonymised, to the comments, I’m sure we’d all be interested.

Can you say, for sure, that no-one you know or care about will ever be in the same or a similar situation?

Case 1

Businessman dismissed an employee. Ex-employee went to the police and alleged an assault. It turned out this was not the first time the employee had made false allegations. Trial heard and jury returned Not Guilty verdict. A guilty verdict would have led to a prison sentence and the loss of the business. Entitled to be defended?

Case 2

Car driver misjudged a turning and failed to see approaching motorbike. It was a relatively small error of momentary carelessness, something probably all of us have done without any ill effects at least once, but the motorbike collided with the car and, tragically, the rider was killed instantly. The driver was prosecuted for careless driving. There would be a risk of prison for this tragic but unintended accident.  Entitled to have the mitigation fairly put before the court?

Case 3

Client got into a dispute with their private landlord. Issues over repairs not being carried out. Client moved out. The landlord did not return the deposit so client took some property from the house to the value of the deposit, thinking this was allowed.  Landlord made allegation of theft. Lacking dishonesty, so entitled to a trial? This case can apply to many other scenarios in which one party honestly believes they are owed something by someone else, or there is a difference of opinion about ownership. Such allegations are easily made in acrimonious divorces or separations.

Case 4

A student, away from home for first time, was a regular in the student nightclubs. Stupidly bought a number of Ecstasy tablets for self and friends.  Searched, arrested, charged and taken to court for possession of a class A drug with intent to supply. Faced a lengthy custodial sentence. Do you think their parents wanted them to be properly represented, or did they just say they were a criminal and shouldn’t be helped?

Case 5

Taxi driver. Picked up lone female late at night. She didn’t have the money to pay her fare. She made a false allegation of indecent assault to cover this. Later transpired she had a history of making similar, even identical, false allegations. Anyone who works alone with the public is at risk of such a problem (and this is not the only taxi driver false allegation case I’ve dealt with).

Case 6

Man bought an expensive landrover from an advert in a well-known auto sales magazine. Paid many thousands of pounds. Pulled over by police and arrested when it transpires said landrover had been stolen. Ultimately released without charge, but needed advice in police station first.

This is just a small sample of cases which I particularly remember from my own career. I could cite others, and there will be some I’ve forgotten about. If you take 6,000 other criminal lawyers, there must be thousands more tales.

Teachers facing false allegations from errant pupils. Foster carers dealing with vulnerable children who face falsities because they try to impose discipline for the first time. Office workers who find themselves in the frame because a colleague had their hand in the till. Separating couples who make allegations of theft or assault. Separated couples who make similar allegations in support of child contact proceedings in the civil courts. Then what about the respectable people who suffer a nervous breakdown and end up offending? The cancer-suffering pensioners who use cannabis to ease their pain? Even perhaps the otherwise respectable people who after a particularly heavy night, a birthday perhaps, end up in a drunken brawl; disgraceful certainly, but maybe a one-off aberration which can be mitigated?

All lives potentially turned upside down or ruined by their dealings with the criminal justice system. Sometimes blameworthy, sometimes not. But all entitled to a fair and equal hearing. You would expect it for yourself or your children.

Legal aid and the criminal justice system are here for all of us. For defendants, both innocent and guilty. For witnesses, who would rather be cross-examined by a competent lawyer than by the defendant themselves. For victims, who want cases dealt with properly and with the minimum of stress and inconvenience. For society, in preserving the rule of law and our hard-won freedoms.

You don’t know whether you might need legal aid sometime. You don’t know whether your family or friends might need it eventually.

Protect it before it is gone forever.

Sign the petition.

Crimeline protest information

Legal Aid – some thoughts

Save legal aid logo

If you venture into the legal blogosphere right now you can see many erudite blogs about the Ministry of Justice’s proposed “reforms” of the legal aid system.

I’m taking to blogging for the first time to add my voice to the dissenters.

This is a difficult exercise. I am so incensed by the proposals and there are so many points to make that it is difficult to distil them down into any sensible article. I suppose the Powers That Be know that, as it helps them. If you can’t write your campaign slogan on a small yellow sticky note it’s going to be hard to win over the public.

The Consultation

In summary, the Ministry of Justice has unveiled a “consultation” on reforming legal aid,  mostly criminal legal aid. Other areas of practice are also hit, and some have already been hit hard in recent months – ask any family lawyer. The current consultation can be seen here. Responses are due by 4 June – every interested citizen, and certainly every criminal lawyer, should respond, and not feel limited by the questions. At the bottom of this article is a link to the petition, which everyone should sign.

In short form, which is not easy, the current proposals are as follows:

  1. Legally-aided criminal defendants will be deprived of the ability to choose their own solicitor. A defence representative will be allocated to them.
  2. Only providers (like solicitors’ firms, or more likely large corporations: Serco, G4S, Capita etc) who successfully bid for contracts, which run for three years initially, will be able to provide legal aid criminal advice and representation. They will succeed if, having satisfied pretty basic quality and delivery criteria, they bid the lowest price per unit of work.
  3. The majority of work would be paid per unit, i.e. one case. Bidding providers will set their own price in the auction, but the ceiling for such prices is a deduction of 17.5% from current average costs. The reality is that to be ensured of victory the bids will be much lower than this.
  4. In any given Criminal Justice System area (basically the counties, with some exceptions) the number of providers will be limited. In Nottinghamshire 6, in Lincolnshire 4, in Manchester 37, etc. Each provider gets an equal share of the available work, fixed and immovable. The number of providers (ie. firms) drops from 1,600 to a maximum of 400 but in reality more like 40 or so nationwide.
  5. The proposals cover all legal aid litigation work (i.e. the solicitor side of things) including in the Crown Court.
  6. There are significant cuts for other fees too, most notably advocacy fees in the Crown Court, and fees in Very High Cost Criminal Cases (VHCCs). These escape contracting, for the time being at least.

There is no discussion in the paper as to whether this model is the best way of going forward, or whether it is necessary at all. That has led me to put “consultation” in inverted commas because it seems to me that MOJ is not really interested in the answers.

If you want further confirmation of that, note that Chris Grayling, Secretary of State for Justice, has recently pronounced that the time for such exercises would be reduced, so instead of three months we get eight weeks. That might be fine if details were known in advance and only a small number of organisations needed to respond. It’s not adequate when the proposals were veiled until they were revealed to the press on the morning of the launch at the start of the consultation period. It’s not adequate when the proposals are so complex and need very careful analysis. It’s not adequate when it must be known to MOJ that many of the stakeholders who need to respond will need to analyse and convene special meetings with a number of very busy people in order to agree a corporate position.

Add to that that the questions asked in the consultation document don’t go to the heart of the issue:

  • Is there any other area in which MOJ spends money and in which it could be saved?
  • Is price competitive tendering going to save money, bearing in mind the cost of bringing it in?
  • What will the plans do to the justice system as a whole?
  • What are the costs associated with the plans which are not directly accountable to the MOJ departmental budget, e.g. miscarriages of justice, delays in the court system, redundancies in the legal sector, the closure of firms which were supported by crime but offered other services?
  • And the most basic question of all, namely do you agree that price competitive tendering is a suitable mechanism for rationing legal aid expenditure?

MOJ does not ask those questions. It would rather that people find it difficult or impossible to respond, and so fail to do so, and it doesn’t ask the above questions because it will not like, and therefore does not care about, the answers. (That doesn’t mean that you can’t give them the answers – if you do respond then feel free to object, and you should say so as often and in as many ways as possible.)

Be under no illusions. This is not an exercise in Government reaching out to citizens and asking for suggestions as to the best way forward. This is a rubber stamping exercise on decisions which have already been taken.

So what we have here is a failure to ask the basic questions, and instead asking about the details. To draw a rather bleak analogy (because that’s how I feel right now), this is the hangman asking the condemned as he steps onto the trapdoor not, “Would you prefer it if I don’t pull this lever?” but:

“Would Sir prefer a blue hood over his head, or maybe this nice yellow one?”

What will be the effects of these changes?

The proposals will all but destroy UK justice. Although our justice system is often criticised in the press, it should be remembered that our courts and our lawyers are regarded as some of the best in the World. We are an exemplar of how justice should be done. Our Government should be proud of the courts and what they achieve.

Unfortunately, if these proposals go through, that will no longer be the case.

Quality will no longer have a place

At present, the market regulates quality. In general, solicitors who provide a good service tend to be instructed more regularly by clients, and grow as a result. Barristers are equally market regulated. “You’re only as good as your last case” as the old adage goes.

The new system removes that. Quality is considered at a preliminary stage in the tendering process, and is likely to be largely a tick box exercise which the majority can comply with.

However, quality has no impact in the final bid round and the decision as to who gets the contract. Only the lowest bidders will succeed. A bid could be ten times the quality but if it is £1 too much the bid may fail.

It’s worse than that. Once the contracts are in place the market share is fixed and the volume of work will never exceed the allocated portion, so in an area with four providers they will each get one quarter of the cases. No more. No less. No matter what happens (pretty much). So there is no incentive at all to provide a good service. A Gold Standard of service, or a plastic toilet brush standard of service, will equate to the same thing. No provider will benefit from providing a great service, and no provider will be punished in the market for providing a poor service.

The only commercial necessity will be to provide a cheap service. That is inevitable when only the lowest bidders will succeed and there are built in cost ceilings but no floor, leading to deep cuts in what can realistically be provided. Quality for its own sake has no value.

As far as clients are concerned, this will manifest itself in a number of ways:

  • Face to face meetings with the lawyers involved will end, except perhaps at court. There will be no time to dedicate to discussing the case, ironing out the problems, or winning trust.
  • Preparation will be limited to the minimum. Material may not be read properly, videos may not be watched, experts may not be instructed.
  • Clients will ever increasingly be represented by in-house advocates. That’s the only way to make this profitable. This is not always a bad thing (I am such a person) but it is the death knell for the independent Bar, and with it all the skills necessary for the prosecution and defence of the most serious cases.

You might wonder why you should care. The answer is that the above issues have a knock-on effect at court. Cases which are not properly prepared have a way of going wrong. People are wrongly convicted, trials are lengthened or adjourned because it becomes apparent that there have been issues overlooked, cases which should have pleaded or cracked don’t do so because the discussions haven’t taken place or there is a lack of trust between lawyer and client. In the worst cases juries may have to be discharged, or convictions may be quashed because there is a doubt as to whether they were safe.

All of that adds up to wasted court time, and lives ruined. Victims have to undergo the ordeal of a trial more than once if the jury is discharged and the prosecution have to have a second go. They may be distressed by that, or may not turn up the second time leading to a potentially unjust acquittal. On the other side of the card, innocent people find themselves in prison, away from their families, with no job. Their families may end up having to claim benefits, or be made homeless. They may not be able to get a job on release, even if exonerated on appeal. They may develop depression and other disorders. Some may even commit suicide. There are huge costs whenever these sorts of things happen. These costs and wider impacts have not been taken into account.

And if the independent bar fails, our court system will be much the poorer and very serious criminals may escape justice.

The End of the High Street Solicitor

In towns up and down the country there are small or medium firms of solicitors which undertake a mix of work. In recent years they’ve been squeezed from all sides: increased regulation, competition from banks and large insurance firms, online competition, the collapse of the housing market.

All of those firms are small businesses employing a number of people. Even the very smallest usually involves at least one or two solicitors and an administrator or secretary.

For many these High Street firms are the face of the law in their local area. They provide face to face advice on all manner of issues, from divorces to conveyancing, boundary disputes to wills.

Many of these firms do criminal law too. Their specialists know the local area, know the police officers and courts (or at least they did before the local court was closed by MOJ last year), and above all know the client base.

All that knowledge is useful, as it means discussions with clients and others are informed. A witness cannot pull the wool over the lawyer’s eyes because of that knowledge, and neither can a client. A client can’t say “in that previous burglary I was only a lookout” because the solicitor knows otherwise from the last case. A client can’t say “I’ve never had a drug problem” because the solicitor knows about that too. The regular MO is known, as are their associates and hangouts. It all helps to smooth the path of justice and avoid problems which stem from a lack of knowledge.

That’s not all.

The steady flow of criminal work subsidises the other services offered. It is not necessarily the case that a firm can keep running with crime stripped out, especially with the other savage cuts elsewhere in the legal aid system.

These small to medium firms have next to no chance of successfully winning a contract. They can’t afford the expansion which may be required, or to operate with the low prices necessitated by the new arrangements.

If they don’t win a contract, they may have to make their criminal lawyers redundant. It doesn’t end there. The criminal secretaries and junior clerks also have to go. The agency which helps them with police stations goes as well. So do the numerous experts, enquiry agents and other providers.

Then the firm has to ask if the family lawyers who’d been just about hanging on after April’s cuts remain worthwhile. Probably not, so they and their team lose their jobs.

The personal injury lawyers have had a difficult time as well, with reductions in recoverable fees, and they may not be viable.

The conveyancing partner, struggling in a weak housing market, also faces difficulties.

Before long, the entire firm is not economically viable and the entire business folds. All its staff, lawyers and non-lawyers, lose their jobs and there is nowhere else for them to go because the majority of other local firms are in the same position. Their offices are vacated and become empty eyesores on the High Street.

For the client wanting a will drawn up or a house sold, they have no choice. Where previously they might have obtained an online quote but gone to their local solicitor who they can trust and visit face to face, they no longer have that option. It’s the large online company or nothing.

That lack of competition has an impact. Online providers can put their prices up because they no longer have effective competition on the High Street. Inevitably the few High Street firms remaining put their prices up too – with less income from other sources they have to pay their leases somehow.

If these changes come in you can expect to see the effective end of the High Street solicitor within two years or so.

This is not me being paranoid. The Government in its paper recognises that the minimum level of firms leaving the criminal sector is 1,200. That level assumes that there are no new entrants to the market, and no bidder makes a play for more than one area.

The reality of these plans is that upwards of 1,500 firms will leave that market, and many or even most will close their doors for the last time.

The End of the Criminal Bar

Meanwhile, the barristers suffer too. The High Street solicitors who sent their work have gone, so Chambers – already faced with increased volumes of work being covered in house – have to go cap in hand to the new contract providers.

Those providers have to be merciless to make their low bid worthwhile. They drive a hard bargain and counsel find themselves working as agents on fixed fees for a fraction of the actual cost. The work which went to local chambers goes to different, cheaper, sets. Quality is driven down and counsel also find it impossible to survive.

With the solicitors’ profession weakened after the divide and rule approach taken by the Government succeeded, the Bar is in a weak position to resist the onward extension of price competitive tendering. The Bar ends up having to scrape the barrel for the fees available once advocacy services have been put out to tender, or more likely subsumed into the litigator fee as part of a “one case one fee” arrangement.

The Government is clearly trying to divide the professions so that it isn’t faced with unified solicitors and barristers. That’s why Crown Court advocacy is presently excluded from contracting.

That’s not how it’ll stay. It will only be a short time before a one case one fee (OCOF, or presumably in this case Criminal One Case One Fee, er… COCOF!) arrangement comes in. The Bar would have no power to resist, the criminal solicitors would not assist because they’d all be redundant, and the final nail in the coffin of the independent Bar would be hammered home. Its loss would be mourned only by those few who still believe in the luxury of justice.

This would suit the large corporations who would now be running all aspects of the justice system. After all, at that stage you could be investigated by a G4S contractor, held in police cells and looked after by a G4S Civilian Detention Officer, conveyed to the Court cells and detained there by GeoAmey or G4S staff, defended by a corporate representative from SercoLegal or similar, and remanded or held after conviction in a prison run by Serco or G4S. If you’re released subject to an electronically monitored (tagged) curfew at any stage they’ll be monitoring that, and prosecute any breaches.

This is not good for justice. It is arguably not that great for shareholders of those big companies, until you realise that once the traditional supplier base of independent solicitors and barristers has been destroyed, they can put their prices up.

Victims and defendants, the Court and Judges, and society as a whole would be poorly served. The expertise of the solicitors, and of the Bar – particularly at the senior end – would be lost, and gone forever. The pool of advocates who make up the majority of our criminal judges would also be drained.

Within a few years our legal system would be but a pale shadow of its former self.

The End of Client Choice

Removing client choice is essential to the operation of the plans. Equal market share cannot be guaranteed if clients can choose where to go. We end up with a system of allocated lawyers foisted on unwilling clients.

This is a major constitutional change. It brings us closer to the system in some other jurisdictions, most notably the US, where lawyers are allocated to defendants. You need only read some of the harrowing tales about poorly defended cases in the US courts to know how well that works.

I have already referred to some of the advantages of a lawyer – client relationship, and the lack of any quality incentive.

With the end of client choice, work with the established criminals who make up a large proportion of the work of the courts will be much harder. At present an experienced and familiar lawyer, or even an unfamiliar one from a trusted firm, can make things run much more smoothly because the relationship enables often unpalatable advice to be given and accepted much more easily.

It is perhaps not appreciated by the majority that what happens in a criminal case is in the hands of the defendant. Criminal defendants are usually disadvantaged, they may not understand everything that happens, they may not necessarily want to co-operate with the process. They probably didn’t get into that situation by being sensible and right-thinking members of the public. Left to their own devices many will simply plead not guilty and deny everything even if the evidence is totally against them. Others may need a trial but have difficulty conveying their case to the court, or even to their lawyer. Some will refuse to talk or discuss at all until they can trust their team.

In the hands of good, trusted (chosen) lawyers, the number of trials is reduced because those who ought to plead guilty can do so trusting that it is the best thing to do, those for whom there is a sensible compromise plea can get into that situation as a result of the lawyers negotiating, and the trials are sharply focused on the right areas of dispute and therefore kept as short and easily manageable as possible.

These changes will lead to an increase in the number of trials, and an increase in the number of applications to vacate guilty pleas. That’s expensive but again has not been factored in.

The proposals give no credence to the advantages of the current system and do not recognise its benefits.

The End of Justice

Make no mistake, these proposals are not about getting a better deal for the taxpayer.

If this was an open debate about how to save money in the public interest the MOJ could have come to those who work in the system – from the police all the way through the CPS, Probation, the Courts, and defence solicitors and barristers, and asked what the way forward should be. With a good faith approach there would have been a good faith response and many good suggestions would have been made.

There has been no such approach, and the matter is apparently not up for debate now.

Instead, MOJ has spent taxpayers’ money negatively briefing the media about “fat cat lawyers”, knowing that these claims are untrue or misleading, and has come up with proposals which will destroy the present justice system, lead to many delays in the court system and will fail victims, defendants, witnesses and their families, and will destroy both sides of the legal professions. Many thousands of hardworking people will lose their jobs, and valuable local businesses will shut down.

I know that it’s hard to inspire any sympathy for legal aid lawyers, or lawyers of any kind. The Secretary of State for Justice pretty much says so in his recent consultation paper when he observes that the system has lost much of its credibility with the public. But of course the only reason the system lacks credibility is because elected politicians have failed to accept the responsibility for defending this valuable system and confronting misunderstandings and misinformation. They have instead compounded those issues.

This is, of course, deeply ironic, because neither politicians nor the more popular press are renowned either for their morals or integrity, nor are they known in some cases for a  lack of a tendency to line their own pockets at public expense (and indeed to use the services of criminal lawyers), yet for some reason much of the population are prepared to trust their judgement on this issue.

This is deeply worrying. The rule of law is a fundamental feature of a democratic society; the courts, and those who work in or serving them, should be respected.

It is a basic responsibility, indeed duty, of any sensible elected politician, and particularly a Lord Chancellor with the role of Secretary of State for Justice, to properly educate the public about the importance of the legal system, and to respect and uphold its traditions.

What we have, however, is repeated denigration of the system and its practioners. We have respect for human rights undermined by elected politicians misrepresenting decisions of the courts (see Catgate for example), we have elected politicians using criminal cases in support of wholly different policy agendas without regard for what the courts actually said (the recent Philpott case), we have lawyers repeatedly portrayed as “fat cats” when the statistics themselves are misleading and in any event the small sample used is not in any way representative.

All of this is calculated to make it more difficult for lawyers who work within the system to win the public over. It is calculated to make sure that justice is understood only as “criminals going to prison” and never “person falsely accused acquitted”, or even that most unpalatable “the Prosecution failed to prove their case so the right verdict was not guilty, whatever anyone suspected”. Defence lawyers are those who sponge off the system being paid extortionate amounts of money to get people off on technicalities.

This forgets that legal aid is important because it ensures that the most vulnerable in society are legally represented. It contributes to the rule of law and the right of everyone to have a fair trial. Even those technical points taken by the lawyers have a social and legal utility – they develop and clarify the law and ensure that justice is done within the law and not outside its confines.

The fairness of a country’s justice system is a good barometer for the freedom of that society. Democracy is founded on the rule of law. Without the rule of law it becomes rule of the powerful and unscrupulous. The kinds of societies in which people can be imprisoned without fair trials and without evidence being required are not the sorts of societies in which most of us want to live.

For a justice system based on adversarial trials, where each side presents its case and tests that of the other in order to provide the court with an opportunity to find the truth, you need both sides to be roughly equally balanced. Both sides need to be competent and able to operate.

Once you have a situation in which one side is more powerful than the other, or one side is better represented than the other, or even in which one side is somehow regarded as less worthy than the other, the adversarial system no longer works properly.

And that is a tragedy for us all.

What can be done?

For a start, don’t accept everything you read in the newspapers about this. Much of it may be wrong.

If you disagree with the plans, write to your MP and tell them. You can find out who your MP is here.

Sign the petition: Save UK Justice.

Respond to the consultation and tell them you fundamentally disagree. Answer the unasked questions.

Welcome

Welcome to my new blog.

I’m not historically a blogger. I greatly admire all those who regularly produce posts touching on all areas of society, and in my own field, law.

Quite how people manage it when they also have busy careers to manage I just don’t know. I’ve never managed to find the time. I probably have to learn a little about blogging. Please bear with me.

I’ve taken to this because my profession is under threat, and with it the jobs and livelihoods of everyone I have ever worked with. All those dedicated professionals, serving the public for usually modest rewards, are endangered.

So I am driven to write. I can only try.

I hope ultimately that the last post I have to write on this blog is one celebrating victory for justice.