All about the money?

The “mass walkout' that was staged today as part of a half-day protest across the country by solicitors and barristers comes as a culmination of efforts by the criminal legal community to resist the reforms proposed by Chris Grayling. This protest is a reaction to the proposed further cuts (of up to 30%) to criminal cases. The walkout is an unprecedented move with it being the first time that barristers have not provided services. Additionally it is the first time that both solicitors and barristers, have worked together in a national action of this kind. The Courts service has referred to today as a normal working day and Lord Thomas stated that as the judiciary are “constitutionally independent” and that that the business of the court will go ahead as normal¹.

Those taking part in the walkout are angry over the way in which figures released by the Ministry of Justice misrepresent the actual earnings of criminal barristers.

Nigel Lithman, the chair of the Criminal Bar Association, stated that Ministry of Justice was wrong to release figures concerning the wages of 1,200 criminal barristers fees because the figures for their income last year was misleading. The figures released stated that a full-time barrister on taxpayer-funded criminal work earned £100,000. However, this sum did not take into consideration VAT and other expenses and that the more realistic figure was £36,000 but that this figure would be further reduced by the proposed cuts. The proposals by Chris Grayling seek to save £220M a year. However, these proposals are part of a whole host of cuts since 1997 which have resulted in 40% cuts in criminal cases. The main allegations against these proposed cuts are that it will lower the quality of legal representation, miscarriages of justice and more criminals walking free.

Over the last year barristers and solicitors have tried several tactics to get the attention of the MoJ; 120 charities signed a letter in November which was hand delivered to the Lib Dem MP Simon Hughes this letter urged the LibDems to stay legal aid proposals². Matt Foot, founder of the Justice Alliance stated in November that there was great opposition to the Ministry of Justice proposals and that there was great discontent amongst the profession. A series of rallies were staged outside of the Ministry of Justice with high profile barristers, media personalities and those who would have been victims of the grave injustices if it were not for the provision of legal aid. Embarrassingly for the Law Society its members passed a vote of “no-confidence” in the leadership and negotiations tactics which the Society was using with the Ministry of Justice over legal aid contracts and policy.³

The academic world also waded into the debate with Professor Michael Zander and Michael Mansfield QC clashing over the issues of legal aid funding. I highly recommend listening to the debate in full here . Both great minds agreed upon the necessity of legal aid but fiercely disagreed upon the fall out of the proposed reforms. Zander argued that the English legal aid system was amazing and from an international perspective unique in that both junior and senior barristers engaged in criminal legal aid work. He further argued that even with the cuts England would still have one of the best systems and that the taxpayers money was still there to support the defendant. Mansfield QC hotly disputed this stating that England is committed to publicly funded the lawyers but the situation was being made untenable for barristers to continue working and still pay the bills. He went further to state that any publicly funded system is dependent upon having the necessary personnel to run it and that this was in serious decline in that solicitors offices and citizen advice bureau's were closing up and down the country.

An area where both gentlemen further disagreed (and this goes to the heart of the debate, which is shrouded in myths and misdirections as well as misinformation) is the status of the English legal aid system. Mansfield QC quoted a European Commissions report which was tasked with examining the best legal systems in Europe. Austria and Denmark both ranked higher than England which came in at 10th place. Now 10th place is not bad but it goes to show that the 'myth' of England being the best in the world is simply not true. In closing Mansfield QC stated that we, “do have the money if they have the will but don't have the will because they don't want it to succeed.” I found Zander's comment the most troubling when in response to the question posed of what will the effects of the legal aid cuts have upon the criminal representation be he remarked that for sure there will be consequences for the quality and quantity and sometimes defendants will be very well represented. Is sometimes setting the bar too low?

Are we creating a two-tiered system whereby the poor will be left to be represented by the inexperienced and poorly paid lawyers and the rich will be able to buy their justice? These question as of now still remain unanswered but today's protest offers us perhaps a glimpse into what are criminal system could look like. As Nicola Hill, president of the London Criminal Courts Solicitors Association (LCCSA) was quoted as saying in The Guardian that:

"Monday will be a demonstration of how courts will look if these devastating proposals are implemented. It will be a glimpse into the future for both the government and the public where there'll be a pitiful lack of criminal defence solicitors who can offer rigorous, high-standard representation.” ⁴

However, it should be acknowledged that this debate is more than just about the money. In the midst of all of the numbers and corners that are being cut what is really being lost is the principle of due process and access to justice for all. If these proposals are allowed we will be setting into motion a mechanism by which we will create a host of forgotten people. Those most effected by these reforms will be the indigent in our society creating an outclass of those unable to access justice. As in the words of Justice Hugo Black:

“There can be no equal justice where the kind of trial a man gets depends upon the amount of money he has.”