Not a funny link. Just an important petition.
Sorry to be that guy but you should really sign this. Detail on the proposed changes can be found here:
barrister999.wordpress.com/2013/04/16/legal-aid-some-thoughts/
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WormuIus, Sat 1 Jun 2013, 13:23,
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i have only given the petition a brief read though, and a few things jumped out at me, this one in particular.
does this mean what i think it does?
"and those who do not have a strong connection to this country qualifying for legal aid."
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miss fortunate last posted ages ago, Sat 1 Jun 2013, 14:50,
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I think it does, johnny foreigner who gets in to trouble in the UK will get some legal aid.
The sort of thing that the Daily Mail gets high blood pressure over. I wonder if the government should consider making the legal profession charge less than they do, lawyers charge a fucking fortune to do anything!
(, Sat 1 Jun 2013, 14:59, Share, Reply)
that is what i thought...
so it is suggesting only her majesties loyal subjects have the right to council then, every one else can be locked up and throw away the key regardless of guilt? nice.
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miss fortunate last posted ages ago, Sat 1 Jun 2013, 15:05,
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No, it doesn't.
It only seeks to prevent legal aid for such litigants in *civil* cases. Such defendants in criminal cases will continue to qualify for legal aid (but they will also be affected by the other proposals).
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Ghoti Fingers, Sat 1 Jun 2013, 15:18,
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This is the language used to describe forrins, including those from elsewhere in the EU
So if it was enacted as written then the rules would probably be unlawful under European Law. So no change there.
Frankly, this lot seem quite incompetent in their ability to correctly draft legislation which actually complies with other legislation.
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Ghoti Fingers, Sat 1 Jun 2013, 15:04,
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well i would hope it would be unlawful under your own laws, not just the EU.
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miss fortunate last posted ages ago, Sat 1 Jun 2013, 15:06,
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That's the beauty of their incompetence
European law *is* our law, but they seem too short-sighted to actually realise it, and then huff and puff when the ECJ actually picks them up on it.
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Ghoti Fingers, Sat 1 Jun 2013, 15:08,
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as an outsider looking in,
it does hurt my brain a bit.
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miss fortunate last posted ages ago, Sat 1 Jun 2013, 15:13,
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I've tried to summarise the changes as best I can here
Declaration of Interest:
I am someone who is set to be financially less well off as a result of the changes.
I do not hold myself out to be an expert in this area, however, I do consider myself to be well placed to comment on the impact that the proposals will have, and have done my best to refer you to any sources of information prepared by people more learned than I.
The Present Situation
Before being able to explain the impact that the proposals will have on criminal justice in the United Kingdom, it is worth outlining the present system for the purposes of comparison.
At the moment, anybody accused of a criminal offence in the United Kingdom is entitled to instruct a solicitor of their choice to represent their interests during, and prior to their appearance in court. Often this involves a solicitor attending the client in their initial interview with the police and providing general advice in relation to their plea, gathering evidence, contacting witnesses, and normally (but by no means invariably given the growing number of solicitor advocates) instructing a barrister to represent their client at court.
At present, if such a person is unable to pay for a lawyer (this determination is based on a financial assessment made by the Legal Aid Agency on application) and it is deemed to be in the interests of justice that they should be represented, rather than represent themselves (almost an inevitability in anything but the least serious and most straightforward cases) then Legal Aid is available to cover the cost of providing that person with a lawyer.
The fees paid to lawyers instructed by means of Legal Aid are fixed fees (I am often surprised by how many members of the public think that Legally Aided lawyers in criminal cases bill by the hour!), on a sliding scale according to the overall difficulty and seriousness of the trial. Consequently a case which is heard in the Crown Court and lasts for several days has a higher fixed fee than a case heard in the Magistrates' Court in an afternoon.
At present, a client has a choice as to which solicitor represents them, provided that the chosen solicitor holds a contract to undertake Legally Aided criminal work. This is an attractive proposition to many people, particularly those with complex or special needs, or those who regularly find themselves in need of a criminal lawyer. Many Firms, including the one at which I work are able to secure a steady stream of cases from clients who return to them, after a positive experience, or on the strength of a recommendation. It is often the case that a solicitor will come to know the ins and outs of a particular client's lifestyle and will be much better placed to advise them, given that awareness.
As such the market for Legally Aided work is regulated by quality. Whilst there are some firms large enough to guarantee themselves a steady stream of work, the majority of solicitors build a practice over the years by offering a better service than their competitors. After all, clients are free to instruct whoever they like.
The Proposals
Recently the Ministry of Justice (MOJ) has produced a consultation paper regarding changing the landscape of Legally Aided criminal work. Whilst the paper describes itself as a consultation, it takes the form of a fully developed proposal for replacing the existing system. The deadline for the consultation period is the 4th June. The total consultation period given being one of 8 weeks. I express no view as to why this length of time was chosen by the MOJ, however, it is worth noting that the details of the proposals were not known until the paper was published. This has meant that lawyers have had great difficulty in mounting any effective opposition to the paper, and perhaps more importantly have been denied the opportunity to arrange any effective consultation (used here in the true sense of the word).
It is very difficult to summarise the changes in outline, however, in the broadest terms the most significant changes are (in my view) as follows:
1. 'Price Competitive Tendering' will be introduced, and contracts for Legal Aid will be awarded via a tendering process. The tenders will run initially for 3 years and will be awarded to bidders on a price basis (as the name suggests), provided that certain criteria are met;
2. Legally Aided defendants will no longer be entitled to chose their solicitor. Instead they will be randomly assigned to one of the providers that have bid successfully under the tendering process;
3. The number of providers of Legal Aid will be reduced from approximately 1,600 to a maximum of 400. It is anticipated that the only entities capable of successfully bidding will be large companies which specialise in undertaking public-service contracts (Serco, G4S, Capita etc. Even Eddie Stobart have been mooted as a potential candidate);
4. England & Wales will be divided into a number of areas with a limited number of providers operating within them. (A large city like Manchester will have just under 40 providers, whilst a less densely populated County might have around 10);
5. The providers within each area will be guaranteed an equal share of the work available;
6. Fees for Legally Aided criminal work will be cut dramatically; and
7. The availability for Legal Aid in 'prison law' cases will be severely curtailed.
The Impact of the Changes
1. Quality of Representation
The consultation paper (some may say astonishingly) accepts that one of the results of the changes will be a decrease in the overall quality of service provided to defendants who cannot afford to pay for a lawyer of their own choosing. I refer you to the words of the accompanying impact assessment1:
‘23. Client choice may in certain circumstances (where quality is easy to measure and clients have good information about the relative effectiveness of different providers) give an incentive to provide a legal aid service of a level of quality above the acceptable level specified by the LAA, as firms effectively compete on quality rather than price. The removal of choice may reduce the extent to which firms offer services above acceptable levels.’ [emphasis added]
The MOJ seem content to accept that providers will not provide a service beyond an 'acceptable level'. Why should providers? After all, they will all be guaranteed an equal share of the work. This has led many to opine that perhaps the Government does not want state funded prosecutions to face opposition of any real quality.2
With providers focusing on cost, rather than quality (it is worth remembering that the quality requirement is made at the initial tendering stage; the contracts will be awarded on a price competitive tender) this is likely to result in a end to solicitors meeting with clients prior to the hearing of their case (expect of course at court!), especially those clients unfortunate enough to be assigned a provider that is not located near to them.
The effectiveness of the preparation of a case will also be impacted upon. Gone will be the days when you could expect your lawyers to trawl through schedules of unused evidence, let alone actually listen to the audio-tapes of your interview, or watch the CCTV footage upon which the Crown rely (I would also invite the reader to consider the kind of companies that have contracts for the provision of CCTV. Might these also be the same companies competing for the tenders?). Inevitably things will be missed, resulting in unsafe convictions.
Incidentally, it will also mean that in-house advocates rather than independent barristers will be instructed to provide advocacy services at court. This is not a bad thing per-Se but will make it incredibly difficulty for the criminal bar to continue to exist independently, which brings its own problems.
If defendants no longer chose their solicitor there is a real risk (particularly in the immediate aftermath of the changes) of this putting them at risk. A client who has little confidence in his randomly appointed lawyer, as opposed to the solicitor he wanted to instruct may well not heed their advice (even when it is of good quality) causing delays in court and potentially extending the period which a defendant may stay in custody.
An in house advocate has produced a blog-piece which considers these issues in great depth and frankly I cannot improve upon it:
“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."3
2. Conflicts of Interest
The reader may already feel slightly uneasy about allowing large companies to bid on the proposed tendering process, or indeed may not feel that a tendering process is at all appropriate in this context.
I personally am not, in principle, opposed to allowing supermarkets, public-service contractors, haulage companies, or for that matter zoos, hotel-chains or fast-food providers to compete against high street solicitors for work, provided that the market is regulated by quality. I doubt very much that even the most obstinate and eccentric defendant would chose Eddie Stobart ahead of a high street solicitor with a half-decent reputation, but in any event that would be his or her prerogative.
The tendering process is off-limits to all but the largest firms of solicitors. The rapid expansion required to take on an inflexible share of the market (imagine an average high-street solicitor bidding for a quarter of all the work in Halifax) is totally impractical. I express no view as to whether Mr Grayling or his colleagues at the MOJ have considered this. As such, the only entities capable of winning the tender and of meeting the minimum reduction in price per unit (in effect around a 20% reduction on present fees) are large public-service contractors.
Many of the contractors that will be bidding already have contracts to run other parts of the criminal justice system. Serco for example run prisons, and provide outsourced services to the probation service, the court service, and of course, the police. I would certainly not criticise a company such as Serco for bidding, or for trying to make a profit for its shareholders, however, there is the potential for conflicts of interest here that appear to simply have been ignored by the MOJ.
2. Impact on Prisoners
The proposals intend to restrict the entitlement of serving prisoners to Legal Aid, meaning that they will not be able to instruct a lawyer to help them challenge decisions made regarding their conditions and other issues not directly relating to their length of imprisonment.
Some lawyers have pointed out that this distinction does not work in practice, as many of the internal decisions made against certain prisoners (including the categorisation of the prison they are held in, and their entitlement to a better regime under the IEP scheme) impact directly on Parole Board decisions concerning their release. 4
Prisoners who would previously have been able to seek assistance from a solicitor would instead have recourse only to the internal complaints procedures available to them within the prisons themselves. The consultation paper (at page 145) considers the likely impact of this:
“5.1.1 Impact on prisoners:
The impact of this proposal is that affected prisoners will no longer receive criminal legal aid for some claims. This may be adverse in some instances, however, we consider that many such claims are capable of efficient and effective resolution through the internal prisoner complaints system and prisoner discipline procedures. “
As Daniel Guedalla of Birnberg Peirce and Partners pointed out in a recent letter to the Guardian, this is a little misleading:
“Prisoners already have to exhaust internal complaints remedies before they can apply for a court to review the legality of a Prison Service decision, and the courts regularly find such decisions to have been unlawful despite them having been maintained by the complaints procedures. “5
The MOJ do not appear to have considered whether prisons are even equipped to deal with the increasing demands placed upon them. Given that the paper does not propose to provide more resources to prisons, one can only assume that the MOJ know full well that this will result in prisoners being unable to hold the prison authorities to account. This is entirely at odds with the United Kingdom's proud commitment to upholding the rule of law.
Consider the prisoner, represented by Serco, in a Serco prison, attempting to challenge a decision made by Serco staff to not provide him with something expensive that he is entitled to (a thinking skills or drug treatment course perhaps?). The implications are truly chilling.
What Can be Done?
What is needed is an actual consultation and I suspect that the response of criminal lawyers would have been one of concerned engagement, had the MOJ actually sought their views before drafting these proposals. Sadly this has not happened, and given the very short window in which to respond to the consultation, it will be very difficult to do anything other than simply oppose the proposals.
A useful summary of available methods of protest has been prepared by CrimeLine and can be found here:
www.crimeline.info/news/pct-protest-information
People are encouraged to respond directly to the consultation paper. This can be done through the MOJ's website:
https://consult.justice.gov.uk/digital-communications/transforming-legal-aid
It is hoped that the MOJ will consider all the responses. For people looking for inspiration about what to write, the Law Society has produced a campaign brief, which includes suggested areas of concern.
www.clsa.co.uk/assets/files/general/CLSA%20Briefing%20240413.pdf
Post-Script
There is so much more that I could write about these proposals and the very real dangers they pose to the fairness and effectiveness of criminal justice in the United Kingdom.
I have not even touched on the fact that the proposals will not save any money (imagine the cost of implementing the changes and consider what happens when the initial three year contracts end. Will the providers keep their prices down once they have a monopoly?)
Criminal lawyers are united in condemning them, and (I am prepared to be corrected) for the first time in legal history barristers are going on strike. This is really very serious stuff, and the public ought to be made aware.
If these proposals come into force, The United Kingdom will no longer be able to consider itself a leading light in terms of democracy, freedom and justice. Hundreds of years of privilege and excellence will be abandoned for the sake of short-term profiteering.
It is heartbreaking. It cannot be allowed to happen.
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WormuIus, Sat 1 Jun 2013, 15:58,
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TL;DR
Chris Grayling wants to dismantle the criminal justice system and replace it with something resembling the American system except with Eddie Stobart providing defence lawyers.
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WormuIus, Sat 1 Jun 2013, 16:06,
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That's a lot of words
Do you understand the word "summarise"?
(, Sat 1 Jun 2013, 16:06, Share, Reply)
The proposals are so far-reaching that I don't think I can explain them adequately in fewer words.
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WormuIus, Sat 1 Jun 2013, 16:11,
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i think i need to put another pot of coffee on,
to have a read through that. but will do in a bit.
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miss fortunate last posted ages ago, Sat 1 Jun 2013, 16:13,
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It's ok, nowadays no-one cares if your parents were married
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TownsendsPublisher is all gravy baby, Sat 1 Jun 2013, 16:26,
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"parents"?
I just assumed he was shat out of Satan's arse.
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Tab Hunter Make this useless process end and so, begin again, Sat 1 Jun 2013, 19:13,
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NO, YOUR WRONG!!1!
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Dawn Of The Bread $$$$ E-THUG 4 LIFE - THAT'S HOW I SCROLL $$$$, Sat 1 Jun 2013, 16:23,
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No i isn't
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Dawn Of The Bread $$$$ E-THUG 4 LIFE - THAT'S HOW I SCROLL $$$$, Sat 1 Jun 2013, 17:14,
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lets give this an angle
www.guardian.co.uk/law/2013/may/08/eddie-stobart-legal-aid
(, Sat 1 Jun 2013, 22:19, Share, Reply)