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| The Secret Barrister: 'Without legal aid, the rule of law collapses' | The Secret Barrister: 'Without legal aid, the rule of law collapses' |
| (6 months later) | |
| The Guardian asked the Secret Barrister, author of the bestselling book Stories of the Law and How It’s Broken, to answer candidly some questions on the criminal justice system: how it works and how, all too often, it doesn’t. | The Guardian asked the Secret Barrister, author of the bestselling book Stories of the Law and How It’s Broken, to answer candidly some questions on the criminal justice system: how it works and how, all too often, it doesn’t. |
| How are the cuts in legal aid affecting people? | How are the cuts in legal aid affecting people? |
| In the criminal sphere, which is where I operate, legal aid cuts over the past decade have restricted access to funding in both the magistrates courts (where less serious offences are tried) and the crown court (dealing with serious offences, including those carrying up to life imprisonment). | In the criminal sphere, which is where I operate, legal aid cuts over the past decade have restricted access to funding in both the magistrates courts (where less serious offences are tried) and the crown court (dealing with serious offences, including those carrying up to life imprisonment). |
| ‘It’s completely wrong’: falsely accused Tory MP attacks legal aid cuts | ‘It’s completely wrong’: falsely accused Tory MP attacks legal aid cuts |
| The impact is felt in several ways. Firstly, many people who are far from wealthy are deprived of funding altogether. Anyone with an annual household disposable income of £22,325 is excluded from legal aid in the magistrates courts, with £37,500 the cut-off in the crown court. Up to those figures, you will be eligible for legal aid but may be required to pay “contributions” over the months or years as your case progresses. You will be reimbursed if you are later acquitted, but the sums demanded can be prohibitively high, and I see more and more people deciding to opt out of legal aid altogether as they can’t afford the contributions. | The impact is felt in several ways. Firstly, many people who are far from wealthy are deprived of funding altogether. Anyone with an annual household disposable income of £22,325 is excluded from legal aid in the magistrates courts, with £37,500 the cut-off in the crown court. Up to those figures, you will be eligible for legal aid but may be required to pay “contributions” over the months or years as your case progresses. You will be reimbursed if you are later acquitted, but the sums demanded can be prohibitively high, and I see more and more people deciding to opt out of legal aid altogether as they can’t afford the contributions. |
| But the biggest hit affects those above the threshold. They are forced to either represent themselves in complex criminal proceedings, or to pay privately for legal representation. Private legal rates can run to tens and even hundreds of thousands of pounds if the allegation against you is particularly complicated or serious. If you are acquitted, the government will then only reimburse your legal fees at legal aid rates, meaning you are forced to pay the difference yourself. This “innocence tax”, as it has been dubbed, has seen acquitted defendants forced to sell their homes and exhaust their life savings. It means that the state can falsely accuse you of an offence, and when a court exonerates you, you are nevertheless bankrupted by the cost of defending yourself. | But the biggest hit affects those above the threshold. They are forced to either represent themselves in complex criminal proceedings, or to pay privately for legal representation. Private legal rates can run to tens and even hundreds of thousands of pounds if the allegation against you is particularly complicated or serious. If you are acquitted, the government will then only reimburse your legal fees at legal aid rates, meaning you are forced to pay the difference yourself. This “innocence tax”, as it has been dubbed, has seen acquitted defendants forced to sell their homes and exhaust their life savings. It means that the state can falsely accuse you of an offence, and when a court exonerates you, you are nevertheless bankrupted by the cost of defending yourself. |
| The Legal Aid, Sentencing and Punishment of Offenders (Laspo) Act of 2012 was not just a bureaucratic mouthful: it was a huge piece of austerity that many thousands of people in England and Wales have found hard to swallow. | The Legal Aid, Sentencing and Punishment of Offenders (Laspo) Act of 2012 was not just a bureaucratic mouthful: it was a huge piece of austerity that many thousands of people in England and Wales have found hard to swallow. |
| The cuts in central government funding have amounted to about £950m a year in real terms. As a result, the number of people receiving legal assistance in civil (not criminal) cases has fallen by more than 80%. | The cuts in central government funding have amounted to about £950m a year in real terms. As a result, the number of people receiving legal assistance in civil (not criminal) cases has fallen by more than 80%. |
| As a result half of all law centres and not-for-profit legal advice services in England and Wales have closed over the past six years. In 2013-14 there were 94 local areas with law centres or agencies offering free legal services, the Ministry of Justice has confirmed. By this year, 2019-20, the number had fallen to just 47. | |
| The figures also reveal that, between 2010-11 and 2018-19, MoJ funding for law centres through legal aid contracts dropped from £12.1m to £7.1m. The impact was caused by a double blow because removal of legal aid eligibility for many types of cases coincided with a financial crisis among local authorities, which have been forced to withdraw support for local law centres. | |
| Anyone earning as little as £23,000 a year is no longer entitled to any legal aid in lower court cases. For more serious Crown Court cases, the threshold is £37,000. | Anyone earning as little as £23,000 a year is no longer entitled to any legal aid in lower court cases. For more serious Crown Court cases, the threshold is £37,000. |
| Even if you get legal aid, you may have to pay 'contributions', which can escalate over the course of a case. For those who get no legal aid at all, private legal fees can run to tens or hundreds of thousands of pounds. | Even if you get legal aid, you may have to pay 'contributions', which can escalate over the course of a case. For those who get no legal aid at all, private legal fees can run to tens or hundreds of thousands of pounds. |
| Around 140,000 people received legal aid in 2017/18, compared to 785,000 in 2010/11. | Around 140,000 people received legal aid in 2017/18, compared to 785,000 in 2010/11. |
| More than half of all magistrates courts in England and Wales have closed since 2010, and they are now full of large numbers of people who have to defend themselves. They are known as 'litigants in person' and many find the byzantine system and procedures disconcerting and unfamiliar at best, and impenetrable and stressful at worst. | |
| Some may lose their case because they are inadequately represented. Some may even get longer jail terms because they have no lawyer to advise them how to plea. Antagonists in domestic disputes, divorce or custody battles often have to confront each other directly in court, rather than through their lawyers. | |
| The department suggests that the figures may reflect consolidation where law centres have closed offices but continue to deal with large volumes of legal aid work. | |
| Mark Rice-Oxley and Owen Bowcott | |
| Were the cuts justified – aren’t lawyers overpaid? | Were the cuts justified – aren’t lawyers overpaid? |
| No. Over the past decade, the Ministry of Justice has repeatedly pushed the falsehood that we have “the most expensive legal aid system in the world”. This is quite simply a lie. The statistics that the government used to support this claim related to a tiny handful of countries with completely different legal systems, and where the costs fell on other departmental budgets. | No. Over the past decade, the Ministry of Justice has repeatedly pushed the falsehood that we have “the most expensive legal aid system in the world”. This is quite simply a lie. The statistics that the government used to support this claim related to a tiny handful of countries with completely different legal systems, and where the costs fell on other departmental budgets. |
| Far broader studies showed that England and Wales fell bang on average in its per capita spend on justice. And this was before the 40% cuts were imposed. | Far broader studies showed that England and Wales fell bang on average in its per capita spend on justice. And this was before the 40% cuts were imposed. |
| ‘I couldn’t fight to get my children back’: the impact of legal aid cuts | ‘I couldn’t fight to get my children back’: the impact of legal aid cuts |
| So why was there a belief that ‘fat cat’ lawyers were abusing the system? | So why was there a belief that ‘fat cat’ lawyers were abusing the system? |
| Most people only encounter us at their lowest ebb, and if your experience relates to an expensive divorce or commercial dispute, legal representation will not have come cheap. | Most people only encounter us at their lowest ebb, and if your experience relates to an expensive divorce or commercial dispute, legal representation will not have come cheap. |
| It has been too easy for politicians and tabloids to exploit this and convince the public that “fat cat” legal aid lawyers are raking it in, whereas the truth is that many junior criminal barristers now work at rates often below minimum wage. | It has been too easy for politicians and tabloids to exploit this and convince the public that “fat cat” legal aid lawyers are raking it in, whereas the truth is that many junior criminal barristers now work at rates often below minimum wage. |
| By trumpeting headline legal aid figures paid to firms or to a single-figure minority of barristers earning large sums in a year, the media has been able to paint a deeply misleading impression of what criminal lawyers actually take home. The average take-home pay of a criminal barrister is £27,500. | By trumpeting headline legal aid figures paid to firms or to a single-figure minority of barristers earning large sums in a year, the media has been able to paint a deeply misleading impression of what criminal lawyers actually take home. The average take-home pay of a criminal barrister is £27,500. |
| Are the cuts leading to miscarriages of justice? | Are the cuts leading to miscarriages of justice? |
| Inevitably, there are cases of unqualified defendants, who have been forced to represent themselves, being wrongly convicted because they do not understand the criminal justice system. | Inevitably, there are cases of unqualified defendants, who have been forced to represent themselves, being wrongly convicted because they do not understand the criminal justice system. |
| The Ministry of Justice has resisted releasing its own research on this. But it stands to reason that anybody trying to navigate the legal system without help is at a disadvantage. | The Ministry of Justice has resisted releasing its own research on this. But it stands to reason that anybody trying to navigate the legal system without help is at a disadvantage. |
| There is even the possibility that unrepresented defendants may be in danger of receiving longer sentences because they do not receive advice about when to plead guilty, though in practice judges will make allowances for people who have not properly understood the case against them. | There is even the possibility that unrepresented defendants may be in danger of receiving longer sentences because they do not receive advice about when to plead guilty, though in practice judges will make allowances for people who have not properly understood the case against them. |
| Will cuts drive good lawyers to more lucrative private practice? | Will cuts drive good lawyers to more lucrative private practice? |
| Legal aid: how has it changed in 70 years? | Legal aid: how has it changed in 70 years? |
| It is already happening. Good and dedicated solicitors and barristers are moving to where the working conditions and pay are tolerable and reflect their ability and the hours they work. | It is already happening. Good and dedicated solicitors and barristers are moving to where the working conditions and pay are tolerable and reflect their ability and the hours they work. |
| Retention is a huge problem, particularly with junior female practitioners. The nature of criminal legal aid work, its unpredictable and unsocial hours, make it almost impossible to combine with a family life. This is reflected in a troubling drop-off rate. The average age of criminal practitioners is also increasing, which should worry us all. An ageing profession is only a decade away from becoming a dying profession. | Retention is a huge problem, particularly with junior female practitioners. The nature of criminal legal aid work, its unpredictable and unsocial hours, make it almost impossible to combine with a family life. This is reflected in a troubling drop-off rate. The average age of criminal practitioners is also increasing, which should worry us all. An ageing profession is only a decade away from becoming a dying profession. |
| Is legal aid necessary? | Is legal aid necessary? |
| Legal aid is the baseline for a civilised democracy. Without it, the rule of law collapses. People can only enforce their rights, or defend themselves against the state, if they have access to legal advice and representation. A civilised society considers legal aid akin to free healthcare. You don’t want to have to use it, but it’s there if you need it. | Legal aid is the baseline for a civilised democracy. Without it, the rule of law collapses. People can only enforce their rights, or defend themselves against the state, if they have access to legal advice and representation. A civilised society considers legal aid akin to free healthcare. You don’t want to have to use it, but it’s there if you need it. |
| The Secret Barrister was named legal personality of the year at the Law Society awards 2018, and won the best independent blogger of the year at the Editorial Intelligence comment awards in 2016 and 2017. | The Secret Barrister was named legal personality of the year at the Law Society awards 2018, and won the best independent blogger of the year at the Editorial Intelligence comment awards in 2016 and 2017. |
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