Fighting for the rights of those accused of crime is never a popular cause. Legal aid clients are vilified by the Tory press as ‘spongers’, their lawyers as ‘greedy fat cats’. So it is no surprise that the government sees legal aid as a soft target. This week’s consultation paper Transforming Legal Aid: Delivering a More Efficient and Credible System proposes cuts of 20-30 per cent to funding for criminal trials, but it is plans for competitive tendering that really threaten to undermine our entire criminal justice system.
The detail is a little technical, but it comes down to this: starting from this autumn, most criminal legal aid contracts will be awarded to the lowest bidder. This may sound fine in theory, but I believe that in practice it will be a disaster. The fundamental problem is that, while, in a normal market, a consumer makes choices based on both price and quality, here there is a divide between the state, which pays for the service, and the defendant who receives it. Naturally, the defendant wants the best quality lawyer, but the state wants to pay for the cheapest.
How this contradiction plays out in practice can be seen in America, where many states operate this type of system. Pay for defence lawyers has been depressed to the point where the only way they can make a living is by taking on an impossibly large caseload. In Laurence A Benner’s 2009 study The Presumption of Guilt: Systemic Factors That Contribute Towards The Ineffective Assistance of Counsel in California one lawyer explains that he was able to handle a high volume of cases because 70 per cent of his clients pleaded guilty at the first appearance, after he had spent 30 seconds explaining the prosecutor’s plea offer to them. Another Californian lawyer managed to retain his contract to provide representation by constantly reducing costs to fight off low bidders. His budget fell from 41 per cent of the prosecutor’s budget in 2000, to 27 per cent in 2005, but in 2006 he was undercut by a bid from a firm employing even fewer lawyers and spending even less time on each case.
The inevitable result is that expert evidence, potential witnesses and even basic disclosure are not pursued, leading to vital evidence being missed. In Missouri, the director of the state Public Defender Commission commented in 2011 that ‘triage has replaced justice in Missouri’s courts’ with attorneys forced to ‘take shortcuts that lead to wrongful convictions’. In Minnesota, in 2010, a judge remarked that the courts were ‘fast becoming the courts of McJustice’ because ‘quality is sacrificed for efficiency’. These problems were demonstrated in the 2012 case of Shanna Shackelford. Despite her protestations of innocence, her public defenders urged her to accept a plea offer that would lead to a 15-year sentence. She refused. Because of the arson charges she lost her job and home and ended up sleeping in her car and not eating for days. Eventually, a pro bono lawyer took on her case and won.
So this, I fear, is where we in Britain are heading. Under government plans lawyers won’t attract work on the basis of quality at all: the paper states ‘a client would generally have no choice in the provider allocated to them’ (p56). Price alone will be key. And though justice secretary Chris Grayling has excluded crown court advocacy from this scheme, the report makes clear this is temporary. Competitive tendering for all cases is on its way.
Yet to truly understand what lies ahead you need to look at the Legal Services Act 2011. This opens up the law to non-lawyers, with the likes of G4S (the firm that bungled the Olympic security arrangements so badly that the army had to be called in) and Eddie Stobart (better known for running lorries) now entering the market. The consultation paper plans for fewer providers with ‘greater volumes of work’ (p14). High street firms will be driven out and the guiding principle for criminal representation will be ‘pile ’em high, sell ’em cheap’. I fear we will end up with a two tier system, in which middle class fraudsters or drink drivers can pay for a decent lawyer privately, but for those on a low income justice is something they can’t afford.
Legal aid was a Labour invention, created in 1948. The country was on its knees, crippled by the war effort and heavily in debt, yet Clement Attlee saw that providing access to legal representation was as much part of Labour’s crusade for social justice as providing access to healthcare or decent housing. Saving that system is a cause Labour must urgently take up again. Fighting these changes does not mean opposing all reforms, or any cuts. It does mean standing up for those with no money to stand up for themselves. The future of British justice is at stake.
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Tim Starkey is a criminal barrister and Progress member. He has worked both as a prosecutor and defence lawyer and was Labour’s candidate for police and crime commissioner in Thames Valley in 2012
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