Access To Justice

Access to justice by David Wells

David Wells believes that the Government has further erased justice and fairness from the political dictionary.

Those readers who in May this year read my article in Inside Time on fair trials will appreciate how distinctly unimpressed I have become with the gradual intrusion into a suspect's civil liberties and the erosion of the principle of fairness during the trial process. The purpose of this article is to highlight a very worrying issue, and that is how the constant reduction in funding in criminal legal aid could affect a defendant’s representation and potentially increase the number of miscarriages of justice.

Access to justice is at present a very hot topic. We have already seen relatively recently the financial eligibility arrangements introduced in the Magistrates Court. This has left a vast increase in the number of Defendants facing criminal charges (often serious) and the prospect of trial and sentence without representation; and often facing the possibility of a prison sentence. There is talk now of introducing such measures in the Crown Court.

The Government believes that the criminal legal aid budget needs to be reduced drastically. The Magistrates Court changes was the just the beginning; next came fixed fees in the Police Station; now, Solicitors' firms are paid a set fee for attending the Police Stations irrespective of the number of times an attendance on the client is required (unless the attendance exceeds a ridiculously high threshold).

The Solicitor is no longer paid an hourly rate. What effect does this have? Well, let me draw an analogy; if you pay a man a £5 fixed fee to clean your car, he is likely to finish the job in 5 minutes. Pay him for the time it actually took to do the job and you will undoubtedly receive a cleaner car. I am sure that the vast majority of Solicitors would provide the very best advice and assistance regardless of the fee involved, but this analogy does raise interesting issues. Certainly Lawyers within my firm would not be in gainful employment if they were seen or heard to be cutting corners. As a firm specialising in criminal law, we recognise that acquittals are often dependant on quality advice being tendered at the detention stage of the trial process.

In the next year or so, Solicitors carrying out criminal law will be required to compete against each other in a bidding process in order to be allocated the ability to conduct criminal defence work under legal aid. Solicitors' firms are being asked to declare what they perceive to be the minimum fixed prices they would require (and be prepared to accept) in order to represent clients at the Police Station and at the Magistrates Court. This is like an auction but where the lowest offer wins. This will mean that firms who are successful will be conducting casework at base rates.

Many law firms will close and of those that survive, financial pressures will increase. Practising criminal law will no longer be based on ability, but on cost. The Government has spent so much time in recent years assessing the quality of Solicitors, and ensuring that those who practice criminal law achieve a certain high standard of compliance, it is difficult to see how such future changes can sit well with achieving quality.

There is a real danger that a Defendant’s right to a fair trial will be curtailed due to the financial pressures forced upon lawyers to do an often tricky and time consuming job for peanuts.

At the moment, lawyers carrying out appeal work remain unaffected by the changes that are expected. For how long is anyone’s guess. Those contemplating and involved with appeals are able to receive access to advice and assistance. Prisoners, however, have not escaped the change. When the Magistrates Court and Police Station changes came into effect, the rise in law firms offering prison law advice and assistance rose significantly. You only have to compare the number of Solicitors' firms advertising now in Inside Time to those advertising a few years ago.

Those firms are doing nothing more than adapting to the changing financial climate. But prison law is a specialist area. It requires an approach entirely different to that of most other areas of criminal law. At the moment, anyone with a criminal legal aid franchise can offer prison law assistance. In the future, that is not likely to be the case. Quality standards will be set and that is a good thing. What is not so good is that of those firms who can demonstrate a set degree of competence within the field of prison law, available funding will be cut. Once again, the effect this will have on prisoners' rights appears to have been ignored, particularly in relation to the issue of effective representation.

The Government’s only consideration is to reduce cost. Justice and fairness yet further erased from the political dictionary. Despite my concerns regarding the inevitable pending changes, lawyers like myself and my colleagues will continue to recognise that access to justice is the key to justice. However, these developments, and the identifiable trend of reducing a person's ability to obtain quality legal advice, in my opinion can only lead to some inevitable cases of wrongful imprisonment and ineffective representation.

My firm, like many others, will adapt to the changes impressed upon on us - we have to. Whilst the current system is by no means perfect, if ever there was a situation where the expression “if it ain’t broke don’t fix it “applies, this is it.

* David Wells is a partner with Wells Burcombe Solicitors