SchNEWS puts the McDonaldization of criminal justice in the dock.

Justice Secretary Chris “Failing” Grayling claims criminals are not connoisseurs of legal services. Ignoring the obvious point that they are in fact the people most likely to be in the know, he goes on to assert that most of those who find themselves in our criminal justice system are too poor and uneducated to know whether they’re being well represented or not: “too thick to pick”. Interestingly he hasn’t yet proposed IQ testing for Tory voters.

As a result he's proposed a massive overhaul of the legal aid system. The proposals would see the current 1600 criminal legal aid firms cut to just 400 contracts across the country with just four contracts in most regions. Contracts would be awarded for three to five years, to the lowest bidders, with clients allocated on a no-choice basis on arbitrary criteria – your initial, your day of birth, star sign, so that each provider is guaranteed enough business.

The lowest bidders will be big companies that can run massive warehouse operations of low paid and minimally qualified paralegals supervised by a few overstretched solicitors and, since experience in providing legal services is not going to be an essential criteria, the expected winners are Tesco, G4S and Eddie Stobart. Yes, Eddie Stobart. Cheap justice off the back of a lorry.

Inevitably the quality of legal services will go down because everyone (however poor or uneducated) knows whether or not a lawyer is working hard for them. A lazy or incompetent lawyer just doesn’t get any more clients. Under Grayling’s scheme they would have another 3-5 years’ worth of clients on tap. They'll get the same - win lose or draw and it'll be you looking at the wrong end of a stretch.

The proposals attack the very concept of offering a fair defence. Your brief should be there to argue the case as you would yourself if you had the relevant expertise and education. Being able to pick your own representative is fundamental to justice, after all you're up in the dock you're up against a highly trained prosecutor with the full resources of police and state behind them – and they have an incentive to win.

Of course there isn’t as big a difference between “criminals” and “the public” as Grayling would have us believe. All sorts of people end up in court and of course when they have a chance to put their case (by proxy) in front of a jury they are acquitted. Many of us have been arrested on legitimate protests that the state doesn’t approve of and anyone can find themselves falsely accused at any time and in need of a skilful and hardworking legal aid lawyer.

Grayling also intends to taper the fees paid to lawyers as the trial goes on. By the 40th day of a long running trial the defence barrister would be paid just £14. That this might be less than the fare to court is immaterial; that it is well below the minimum wage is also irrelevant. Grayling thinks it will shorten trials, despite the lack of any evidence that defence lawyers are elongating trials. Needless to say the taper is not to be applied to prosecutors.

ATTORNEY, ATTORNEY - WE ALL FALL DOWN

SchNEWS spoke to a criminal defence barrister G.T “For those who are inclined to feel no sympathy for the barrister paid only £14, firstly junior barristers are not paid a vast fortune. Many have to borrow the money to get to court, several I know have quit the profession because they can’t even pay what they owe to their Chambers each month, let alone their mortgages or rent. Second, since the ones who qualify and get into practice as barristers have faced massive competition to get there, the consequences a few years down the line are easy to see: back to the days of only rich kids being able to qualify and practise as lawyers and an inevitable drop in quality and availability of lawyers.”

Clive Stafford Smith, founder of Reprieve and representative of many of the Guantanamo detainees, describes it as an Americanisation of the system, replacing the Defendant’s choice of lawyer with a system like the US Public Defender system, an underpaid, overstretched and often inexperienced lawyer providing a third class service for those who can’t afford the huge cost of representation; massive inequality between the resources of the state and the defence.

The proposals for civil legal aid cuts are as bad, if not as obviously ridiculous because they don’t involve lorry drivers and supermarkets – at least not yet.

Prisoners will no longer qualify for legal aid, however appalling the circumstances, however arbitrary the conduct against them, however serious the abuse, even if it amounts to cruel, inhuman or degrading treatment or punishment – which is all the more alarming given the rise in private prisons (run by the same companies that provided the defence “lawyers” -sweet!)

Grayling proposes that judicial reviews won’t be funded at all until they have been granted permission. Judicial review is the only way in which citizens can challenge unlawful, unreasonable or unfair decisions by government and public bodies (like the funding of the Ilisu Dam and the stopping of the investigation of arms sales to Saudi Arabia).

The process, in a nutshell, is this: assess the facts and law to see if there is a case; write a pre-action letter to the public body concerned, presenting the facts and law and asking them to take the appropriate action; if there is no reply or the decision is maintained then draft grounds for permission to proceed to judicial review. The defendant public body then files an acknowledgement of service and a defence.

A judge will consider the case on the papers, without a hearing, and may grant permission then. If not, the application is renewed for an oral hearing of the application for permission. If permission is granted, either on the papers or after a hearing, then the case is listed for a full hearing.

Grayling thinks his proposals will discourage “unmeritorious” applications for judicial review, citing the “statistic” that of 11,359 judicial reviews lodged in 2011 only 144 were successful. This is disingenuous in the extreme.In fact 144 succeeded at final hearing. The vast majority of those lodged are concluded without ever having a final hearing.

G.T “Of my own judicial review cases, probably about half settle before they are even considered by a judge, when the papers are passed to a lawyer for the government to draft a defence and it is clear that there is no defence. They file an acknowledgement of service and propose terms of consent at the same time. In others, once permission is refused on the papers, the case is settled in our favour outside the courtroom on the day of the hearing between me and the lawyer for the other side. Once permission is granted the case invariably settles in our favour.

“Only twice have I been refused permission and failed to get what we asked for. Never yet in six years have I had to argue the case at a full hearing. I’m far from unique, which gives a different meaning to the numbers Grayling cites.” (They also appear to overstate the number of applications made, possibly by double counting those refused on the papers and renewed to an oral hearing.)

HOLY GRAYLING!!

Grayling also proposes, playing the usual anti-immigrant card, that no legal aid at all will be granted to those who haven’t been lawfully resident for at least 12 months.That takes out all fresh asylum claims, where someone had bad representations the first time they claimed asylum, or has obtained further evidence to prove their case, or where circumstances have got worse in their country of origin. It takes out all challenges to rejection of the validity of an application, where the Home Office wrongly asserts that they applied on the wrong form or filled in the payment details wrong, unless the person has already been lawfully resident for 12 months – even if they’ve been lawfully resident for 9 months and were making a proper application to extend that lawful residence. It takes out challenges to negative decisions in trafficking claims, which will put the UK in breach of its obligations under international trafficking conventions. It will also take out funding for inquests and challenges to the conduct of racist detention centre guards, like the ongoing inquest into the death of Jimmy Mubenga during removal from the UK, creating an underclass of people who have only theoretical access to justice.

Addressing the first Save Legal Aid demonstration, Gerry Conlon, jailed for 15 years as one of the Guildford Four, said “We only get what we fight for.” If we don’t fight for legal aid we’ll lose not only access to justice but also the right to a fair trial, the ability to demand our liberty through the courts and the possibility of challenging unlawful government decisions. If you’ve ever benefitted from legal aid, if you think you ever might, now is the time to fight for it.

http://www.savelegalaid.co.uk/

http://savelegalaid.wordpress.com/ - you can post your own experiences of receiving legal aid here. The more posts the better and it’s really easy to do in 2 minutes through a short form.

http://epetitions.direct.gov.uk/petitions/48628 - this one potentially gets the proposals debated in Parliament rather than going through by statutory instrument

http://you.38degrees.org.uk/petitions/save-legal-aid-say-no-to-cut-price-justice

http://www.womensaid.org.uk/page.asp?section=0001000100100020§ionTitle=Save+legal+aid

http://www.younglegalaidlawyers.org/TLA_exp_note

http://www.lccsa.org.uk/blog.asp?mid=83&ItemID=113

http://www.guardian.co.uk/law/2013/may/24/legal-aid-cost-justice