Category Archives: UK criminal justice
Letters: ‘Orwellian’ changes to legal aid provision
As a practising member of the criminal bar, I am horrified at the proposed changes to the provision of legal aid, currently undergoing a so called “consultation period” by the Ministry of Justice (Editorial, 22 May), albeit the justice minister refuses to meet the chairman of the Criminal Bar Association. It is clear that the truncated consultation period is no more than window dressing. Chris Grayling is disinterested in any contribution from the profession. It is beyond doubt that the tendering out of legal aid to private business will herald a decline in standards in a legal system that has been a model of justice for centuries. There is no provision whatsoever in the proposals to ensure standards are maintained when individuals are unable to choose their representation. Once in possession of a contract, a company’s clients will be guaranteed, irrespective of the quality of service. The idea that this service would be properly provided by employees of a profit-driven company, whose lowest bid has rewarded them with the responsibility for the representation of citizens accused of crime by the state, is dubious. The prospect that the same company could be responsible for housing prisoners, transporting them, and representing them is, frankly, Orwellian.
Rebecca Herbert
East Langton, Leicestershire
• You report dissidents in Iran “have been denied adequate legal representation” (22 May). In the UK we are a long way from Iran’s repressive regime, but the present government’s proposals on reforming legal aid to allow Eddie Stobart and the like to turn a profit by supplying third-rate representation to people who are (to use Grayling’s analysis) “too thick to know better”, will have us catching up with the regime in Tehran in no time. Whatever one’s view of defence lawyers, the importance of ensuring that only those proved to the satisfaction of their peers are found guilty, is a matter of social, democratic and constitutional importance to us all.
Ben Summers
Legal aid barrister, London
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Lawyers protest outside parliament against legal aid cuts
Hundreds, some wearing wigs and gowns, demonstrate against justice secretary’s plans, which they say undermine UK justice
Standing in front of a coffin marked: “RIP legal aid,” hundreds of lawyers – many in wigs and gowns – demonstrated outside parliament on Wednesday.
The protesters oppose government plans to cut £220m from the annual budget for criminal legal aid and remove defendants’ rights to choose their solicitor.
Sadiq Khan, a former solicitor and Labour’s justice spokesman, accused the justice secretary, Chris Grayling, of destroying legal aid.
He said Grayling’s “obsession with throwing red meat to Tory backbenchers and appearing on the front page of the Mail on Sunday” would undermine British justice.
Among others supporting the protest were the Blur drummer David Rowntree, Lady Kennedy, the legal campaigner Clive Stafford-Smith and Gerry Conlon, who was one of the Guildford Four. As many as 500 solicitors and barristers took part in the protest.
Opponents of Grayling’s proposals say that cutting legal aid will lead to more miscarriages of justice.
Kennedy said the reforms would result in the “Americanisation” of the system.
“This plan is about creating public defenders who will be chosen by the state to represent you,” she said. “This is disgraceful. How much money is being spent from the public purse on defending this government? How much money was Jonathan Sumption QC paid to represent Tony Blair at the Hutton inquiry? These changes will mean many more miscarriages of justice.”
Jonathan Cooper QC said people did not realise they needed legal aid until they become involved in a case. “Everyone understands that they may need the NHS at some point but people don’t believe they may need legal aid.”
The former Conservative MP Jerry Hayes condemned Grayling’s statement that those arrested were too poorly informed to choose their criminal defence lawyer. He said the justice secretary was implying they were “too thick to pick”.
“Independent lawyers will disappear within two years. High street solicitors will close down and the British justice system will be handed over to corporate bloodsuckers,” Hayes said.
Many of the placards referred to the legal subsidiary of the haulage firm Eddie Stobart, the only firm that has expressed an interest in the proposed legal contracts.
“Truck Off Stobart,” declared several placards. Lawyers wore T-shirts declaring: “Truck off Grayling, Save UK justice.”
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Child killer can be named, high court rules
Judges revoke ‘mistaken’ gagging order about coverage of long-serving UK prisoner’s parole application
An anonymity order preventing the naming of one of Britain’s most notorious child killers as David McGreavy has been lifted by the high court.
McGreavy, now 62, has spent the past 40 years in prison after being jailed in 1973 for the murders of three infant children in Worcester.
He killed four-year-old Paul Ralph, and his sisters Dawn, aged two, and nine-month-old Samantha, while he was babysitting when he was a lodger at the house. He left their bodies impaled on the iron railings of a neighbour’s fence. The only explanation he gave for the murders was that Samantha would not stop crying.
The anonymity order was lifted after a concerted press challenge by the Daily Mail, the Mirror and the Sun, after being alerted by the Press Association, and which had the backing of the justice secretary, Chris Grayling.
The news blackout on naming McGreavy was first imposed in 2009 when a parole board decision not to recommend his transfer to an open prison was challenged in the high court.
At the time, the then justice secretary supported the ban, which was imposed because of fears that publicity about the “monster of Worcester” would put him in danger from other prisoners and disrupt the parole process.
But Lord Justice Pitchford and Mr Justice Simon have ruled that the gagging order should now be discharged. They said in their ruling that while renewed hostility from other prisoners was likely to follow fresh media reporting, there was no real and immediate threat to his life. McGreavy is currently segregated in a vulnerable prisoners’ unit where he is closely monitored. He has spent much of his sentence in such units because of the danger to his safety on ordinary prison wings.
McGreavy was given multiple life sentences with a minimum term of 20 years. He has been repeatedly attacked and threatened with violence in prison. In 1991, at Channings Wood prison in Devon his bed was soaked in urine and his cell and property smeared with excrement after only four days on a general wing.
In 1996, he was assaulted by prisoners after a Daily Mirror article about him. In December 2005, efforts to resettle him in a bail hostel supported by the then justice secretary were brought to an immediate halt after a frontpage article in the Sun.
McGreavy was first considered suitable for an open prison 23 years ago. He has fully co-operated with the rehabilitation process and spent much of his time as an artist. The high court ruling states that he has shown a fine ability as an artist.
The challenge to the gagging order by the media, supported by the justice secretary, argued it was legally flawed and wrongly prevented the public from knowing the full facts of the case. The Press Association had previously warned the high court that allowing anonymity in this case would set a precedent for other high-profile prisoners to seek similar orders.
Guy Vassall-Adams, counsel for the press, told the court that full facts of the case were exceptionally horrific even by the standards of murders, yet the order restricted the media from stating that there were three sadistic murders. “That doesn’t even give you the half of it,” said Vassall-Adams.
He told the judges that arguments about whether the media should be allowed to endanger his life or imperil his chances of rehabilitation did not apply. He said such considerations only applied in cases such as that of Jon Venables and Robert Thompson, who were given new identities after being convicted of murdering James Bulger.
In this case not only had McGreavy’s identity been public until 2009 but had been given massive publicity in the past.
The justice secretary welcomed the ruling, saying: “This is a clear victory for open justice. The public has every right to know when serious offenders are taking legal action on matters which relate to their imprisonment.”
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Catholic church says legal aid cuts will harm human trafficking victims
Letter sent to justice secretary by senior Catholic officials warns that residency test for legal aid will harm vulnerable people
Victims of human trafficking and domestic abuse will be deprived of courtroom support under government proposals to make further cuts in legal aid, the Catholic church has warned the justice secretary.
Chris Grayling has been sent a letter signed by senior Catholic officials and charities condemning his proposals for introducing a dual residency test on the grounds that it will harm the most vulnerable who have recently arrived in the United Kingdom.
The letter, seen by the Guardian, has been released on the day that lawyers in London stage protests against the Ministry of Justice’s consultation, Transforming Legal Aid, which is aimed at slicing at least £220m out of the annual legal aid budget.
The MoJ consultation, reflecting political concerns about immigration, declares that “individuals with little or no connection to this country are currently able to claim legal aid to bring civil legal actions at UK taxpayers’ expense”.
It proposes that legal aid should be available only for people lawfully resident in the UK who have lived in the country for at least 12 months. Members of the armed forces and asylum seekers, however, would be exempt from this two-stage residence test.
The letter from representatives of the Catholic church calls for similar exemptions to be given to victims of human trafficking and domestic violence.
It is signed by Bishop Patrick Lynch, chair of the Catholic Bishops’ Conference for Migration Policy, Helen O’Brien, chief executive of Caritas Social Action Network, Sister Lynda Dearlove, founder of Women@theWell, which supports street-based prostitutes and rough sleepers, Cathy Corcoran, chief executive of the Cardinal Hume Centre, and Louise Zanre, director of the Jesuit Refugee Service.
“We are extremely concerned that no equivalent exemptions are planned for cases involving victims of human trafficking or domestic violence,” they warn, “undermining protections in the Legal Aid, Sentencing and Punishment of Offenders Act.
“During [that] act’s passage through parliament last year, the government acknowledged that ‘trafficking is a heinous, cynical crime’ and made specific amendments to maintain legal aid for compensation and immigration matters regarding trafficking victims, given their ‘particular vulnerabilities’.
“Failing to replicate [these protections] under the new system will mean that victims of these appalling crimes, who are already reticent about speaking out, will either be deprived of the legal support they need or forced to wait up to 12 months with significant consequences for their safety and wellbeing.
“We sincerely hope that current proposals may be amended to ensure that these most vulnerable people are protected.”
O’Brien added: “These proposals are deeply concerning and if they go ahead in their current form we have real concerns that vulnerable individuals, including overseas residents trapped in relationships with violent partners and victims of human trafficking, could be left unable to access any legal representation.
“Human trafficking and domestic abuse are truly horrific crimes. We have genuine concerns that any restriction of legal aid in such cases may mean that these abuses will go unreported and that perpetrators of these crimes will not be brought to justice.”
Last month the justice secretary told the Telegraph: “There have been examples of people who have come to the country for extraordinarily short periods of time who have had a relationship breakdown and then they end up in our courts at our expense to determine custody of the children.
“This will exclude people who enter the country illegally, who up to now have been able to access our legal aid system in a way I don’t think should ever have happened.”
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Legal aid protest: objection sustained
If the law is to apply to the mighty and the meek in the same way, the real question is what weapons ordinary people can call on to fight their corner
When Jonathan Sumption QC was persuading Lord Hutton that Tony Blair and Alastair Campbell had done nothing wrong, he was employed using public funds, although certainly not on the cut-price fees of legal aid. The same was true when James Eadie QC secured David Cameron early access to all those embarrassing witness statements at Leveson. Those in power know the importance of good legal representation all right; and they have no compunction in asking the taxpayer to foot the bill, where they are the ones that need representing. But if the law is to apply to the mighty and the meek in the same way, as every ideal of democratic civilisation insists that it must, then the real question is what weapons ordinary people, down on their luck, can call on to fight their corner.
The Transforming Legal Aid consultation provides the coalition’s contemptuous answer. The plans would: pare back provision for experts to be called in evidence; mandate justice that gets arbitrarily more cut-price as a case drags on; and make pesky judicial reviews of bad administrative decisions too financially risky to take on, for any lawyer who is not both saintly and well-heeled. Perhaps most bizarrely, it proposes to do away with client choice in favour of allocation by diktat.
It is bizarre because this is the very antithesis of the standard sermon about public sector reform, which ministers have routinely read out, over a quarter of a century. From John Major’s “citizen’s charter” to Tony Blair’s “enabling state” and David Cameron’s “open services”, the aim has been to force failing schools and hospitals to raise their game by creating “empowered consumers” who can vote with their feet when standards slip. Any suggestion that the vulnerable could not assume sovereignty over health or education was dismissed as patronising waffle, and the frontiers of choose-your-own welfare was pushed so far as to encompass direct payments of individual budgets for community care. Frail and mentally ill people are one thing, but – at least in the mind of Chris Grayling – anyone accused of a criminal offence is another. He envisages landing the accused with a lawyer it is convenient to summons, and telling them to lump it. Forget the presumption of innocence – the justice secretary sneers that those “who find themselves in our criminal justice system” are not “great connoisseurs of legal skills”, adding that they come from “difficult and challenged backgrounds”, presumably rendering them too poor and stupid to have a view on whether a lawyer is working hard for them.
There is of course a trade union element to Wednesday’s bewigged protest of legal aid lawyers outside parliament. While other public servants rage against pay freezes, legal aid lawyers have reached a pass where a freeze would be a delight; an outright 10% reduction in fees in 2011 is now to be compounded by even sharper cuts. But difficult as it undoubtedly is for the junior end of the publicly paid profession to make a living, there are still many at the other end of the scale doing very nicely, and the lawyers will err if they imagine that pleading on fees will win sympathy in a cash-strapped country. The more persuasive point is that rushed justice easily slides into no justice at all – and injustice costs everyone in the end. England’s top judge, Lord Neuberger, warns that savings for the Legal Services Commission will be paid in costs to courts clogged up by clueless citizens forced to represent themselves, while the Criminal Cases Review Commission does not disguise its expectation that it will soon have more messes to clean up.
There must, for sure, be savings to the way that the law is run, just as there have to be savings to everywhere else. Radical options which could be painful to lawyers cannot be ruled out – for example, Britain’s unusual and antiquated distinction between barristers and solicitors ought not be sacrosanct. The principled route to reform, however, would affect all parts of the profession – and not merely punish those who answer the noble call of representing those without the means to pay.
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Leslie Thomas: a voice for the dead
Witnessing blatant police cruelty convinced the award-winning lawyer to make deaths in custody his life’s work
Leslie Thomas has worked on a prodigious number of high-profile cases of deaths in custody during his 25-year career as a human rights barrister. But there is one that affected him more than most. “Christopher Alder was the black paratrooper who died on camera, captured on CCTV, in [a] Hull police station. I think it was the first time I actually shed tears, when I saw the inhumanity of man towards man,” he recalls.
“You see as clear as day Christopher on the police station floor grunting and groaning and struggling for breath. He [was] exposed from the waist down, with police officers literally stepping over him. You actually hear his last breath before the police officers bother to look at him. That’s when they panic. That was a turning point for me. I had not seen anything as shocking as that at that time.”
In August 2000, Alder’s death was declared unlawful by the coroner’s court. Thomas did not think he would ever again witness such blatant police brutality, but last year he represented the family of Sean Rigg who had a cardiac arrest and died in Brixton police station in August 2008 after being pinned down and restrained. An independent inquiry, led by criminologist Silvia Casale, last week castigated an Independent Police Complaints Commission (IPCC) investigation into how Rigg was treated by police.
Failed investigations
“It is a damning indictment of the way the police watchdog has failed in its investigation of the deaths in police custody,” Thomas says. “[It] has shown just how poor too many IPCC investigations have been,” and, he adds, why reform is necessary.
Rigg had a diagnosis of schizophrenia. An independent commission on mental health and policing, chaired by Lord Victor Adebowale earlier this month, documented a litany of failures in policing.
The report, says Thomas, “made it plain that the police most urgently need to change their practices to significantly reduce the risks of killing or seriously injuring mentally ill people when detaining them”.
Thomas, 47, won legal aid barrister of the year in 2012. The judges concluded he had “done more for the families of those who die in custody or at the hands of the police than any other single lawyer”. This year, he has yet more high-profile cases . At inquests he is representing the families of Mark Duggan, whose death after being shot by police in Tottenham, north London, sparked the 2011 riots, and the reggae star Smiley Culture, who police claim fatally stabbed himself during a drugs raid on his Surrey home in March 2011.
It is clear Thomas has chosen to put deaths in custody at the centre of his work. His legal practice spans a range of human rights areas including wrongful arrest, harassment and malicious prosecutions, but it is for his advocacy in inquests that he is best known.
While he has had numerous legal triumphs over the years, he seems more interested in talking about the repeated injustices experienced by the defendants and families he represents – and the wider lessons to be learned from their cases. Whether a suspicious death occurs “in a police station, a prison, a hospital or on the street”, he says, it is vital that people get justice. He stresses that while there have been some improvements over the years, including access to legal aid for families at inquests, the coroners’ system often feels weighted in favour of the state.
“It’s becoming cliched – but you are the voice for the dead,” he says of how he views his role. “Where somebody dies in the hands of the state, the only [people] likely to probe and get to the bottom are the family and those who represent the family.”
Building up a body of expertise – particularly on positional asphyxia, which caused Alder’s death – has ensured he is equipped to take on some of the most controversial cases, he suggests.
As a black man, Thomas says he is cognisant of the fact that many deaths in custody are men of African Caribbean descent, but he stresses that his concerns are for anyone “who has no voice”.
Thomas’s route to the bar was far from conventional. The reason that he chose to focus on human rights is perhaps a sense of social justice cultivated in boyhood. Brought up in a “humble” household on a council estate in south London and educated at a local comprehensive, he recalls “a burning desire” to help people who were “different” or marginalised. At 13, inexplicably, he says, he set his heart on becoming a lawyer. He says he was politicised “very, very early” due in part to exposure to racism when growing up. “It was a pretty scary time for a young black kid growing up in inner London in those days,” he says. “You couldn’t walk along the street without being hassled by the police.”
After graduating from university, Thomas practised commercial law for a year, where he says he received “great training”. But he much preferred the pro bono work he did in the evenings for local law centres. I was helping people at the centres who were “completely without a voice, who were being walked all over and nobody cared,” he recalls. A chance meeting with the barrister Lord Anthony Gifford, who had been working on watershed miscarriage-of-justice cases, including the Guildford Four, led to him working for a while at Gifford’s chambers where he set about “doing anything civil liberties-based”. He has been with Garden Court Chambers in London since 1990.
Along the way, Thomas says he encountered challenges most colleagues couldn’t conceive of. “There were times when I experienced quite open hostility and bigotry and racism within the court system. Whenever I went to court in those early days I would always be anybody other than the barrister,” he says. And he remembers listening to colleagues talking about people who did legal aid work with disdain as if they were representing the worst of the worst. “It got to the stage where I was thinking, ‘Well the people you are talking about are people who come from the same background, class, race as I do. So if you are talking about them like that what do you think about me?’”
Public awareness
Thomas wishes he could be more optimistic about deaths in custody becoming a thing of the past. He is pleased, nevertheless, that some things have altered for the better such as the public having a greater awareness that state agents don’t necessarily tell the truth. “Twenty years ago, the general attitude was that the police could do no wrong,” he explains. He is also thankful that police officers have “heard about the concept of positional asphyxia”, but says he despairs of the fact that deaths in custody are still occurring regardless. “Sean Rigg was still left in the ‘prone’ position despite the fact that [the] officers said they knew and understood the concept,” Thomas points out.
He is currently awaiting the chair’s report from a public inquiry into the death of Azelle Rodney, a 24-year-old man from London shot six times by police at point-blank range in 2005, whose family Thomas represented at the inquiry.
While inquests are shielded from legal aid cuts, for now at least, he says funding cuts represent “one of the biggest threats” to access to justice that he can think of. Of his future work, he says: “Each year there are big public interest deaths in custody. I see myself right at the forefront fighting those cases.”
• This article was amended on 21 May 2013. The phrase “unlawful killing” was removed in relation to the death of Azelle Rodney to remove any suggestion that these were Leslie Thomas’s words.
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Dominic Grieve: I do everything to explain benefits of Human Rights Act | Richard Norton-Taylor
Liberty’s AGM debate the HRA and European arrest warrants. They should be subject to serious debate, not party politics
Given the increasing Eurosceptic rhetoric from his Tory colleagues, one sometimes wonders, how long the attorney general, Dominic Grieve, is going to be with us. He was at it once more on Saturday at the AGM of Liberty, the civil rights campaigning organisation.
He does everything he can, he said, to explain the “benefits” of the Human Rights Act (HRA) and ensure that it was understood.
“It is misrepresented frequently”, he added, with “sensational headlines” in the media. He gave as an example the thoroughly misleading claim that the HRA prevented prisoners from being deprived of pornography.
(The attorney was also reminded how the HRA was wrongly blamed for the fatal hit and run accident which led to the death of that 12 year-old Amy Houston. The driver of the car was an Iraqi Kurd and failed asylum seeker. Her father described in an article for the Guardian how the fact that he was still in the UK was the result of Home Office errors — it did not try to deport him).
The shadow attorney general, Emily Thornberry, told the AGM that Labour was “completely committed to the Human Rights Act”. Simon Hughes, for the Lib Dems, said there was “no more important issue” over the coming few years than to protect the act.
One other Europe-related issue was the subject of an emergency motion: extradition reform. The motion, passed nem con, noted that “those resident in the UK can be extradited to foreign jurisdictions without a basic case first being made in a UK court”, and that “British judges have been unable to bar extradition on the grounds of ‘forum’ where allegedly activity has taken place in whole, or in substantial part, in the UK”.
The motion also referred to government amendments included in the Crime and Courts Act 2013 which removed the home secretary’s obligation to bar extradition where it would breach human rights after legal appeals had been exhausted, and also to clauses in the anti-social behaviour, crime, and policing bill that would remove appeal rights in extradition cases.
To many, the controversy over extradition means the US above all. To others, it means the European arrest warrant.
That warrant is widely praised when British criminals who have escaped are arrested in Spain. It is questioned when it leads to individuals being held for long period in poor conditions in continental jails for relatively trivial offences.
But the warrant is caught up in a wholly party political dispute — with the Tory Eurosceptic right wanting to abandon it as part of the series of EU “opt outs”, and the Lib Dems eager to retain it.
The European arrest warrant — which requires a member state to transfer its citizens without trial where there are claims that a crime has been committed elsewhere in the EU — should be the subject of a serious debate, uncluttered by partisan dogma.
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Public fear legal aid cuts will lead to wrongful convictions, poll finds
Bar Council survey shows 71% fear innocent defendants will be found guilty if forced to choose cheapest lawyer
More than 70% of the public fear that further cuts to legal aid could result in innocent people being convicted of crimes they did not commit, according to an opinion poll released by the Bar Council.
The survey, commissioned by the organisation which represents barristers in England and Wales, found that those most likely to be affected and most at risk were the poorest.
The research was carried out in response to proposals from the justice secretary, Chris Grayling, to reduce the annual criminal legal aid budget by £220m. Under the plans, the cost of judicial reviews will rise steeply, lawyers’ fees will be slashed and criminal legal aid contracts awarded through competitive tendering. The consultation closes on 4 June.
An early day motion in the Commons condemning the plans has been signed by 60 MPs so far, mostly Labour. It deplores the abolition of defendants’ right to choose their solicitor and warns that the changes will “reduce the quality of legal representation to the lowest standard possible”.
The Bar Council opinion poll, carried out by ComRes, found that seven in 10 (71%) respondents were concerned that cuts to legal aid could lead to innocent people being convicted of crimes they did not commit if forced to use the cheapest defence lawyer available.
It also found that two-thirds (67%) agreed that legal aid was a price worth paying for living in a fair society. The poorest would be hit hardest by the proposed changes, according to 75% of those polled.
More than two-thirds (68%) of those questioned agreed with the proposition that at less than 0.5% of annual government spending, “legal aid is a worthwhile investment in our basic freedoms”.
Maura McGowan QC, chairman of the bar, said: “Successive governments have failed in their efforts to undermine public confidence in legal aid. In fact, most people think it is a good investment in a fair society. This poll provides the evidence which the government has failed to gather. The public hugely values our legal aid system and it is concerned about the consequences of the government’s proposals.
“The Ministry of Justice should listen to what people are saying and the strong messages delivered by this poll. The public thinks a properly funded legal aid system is a price worth paying for living in a fair society; this is not just the view of groups of lawyers.”
She added: “Too often lazy stereotypes are used to describe our justice system. An independent legal profession, which operates to the highest standards and competes on quality, is fundamental to a fair and democratic society. The government seems to have relied too heavily on those stereotypes when formulating these proposals, but it is desperately out of touch with voters. People do not want to see a further reduction of their defence against big government.”
In an interview with the Law Society Gazette this week, Grayling defended the removal of client choice, saying: “I don’t believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills. We know the people in our prisons and who come into our courts often come from the most difficult and challenged backgrounds.”
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Legal aid cuts will lead to state-sponsored miscarriages of justice | Sadiq Khan
Chris Grayling’s ill-thought-out plans could devastate confidence in our legal system
In these straitened times, the legal system is not exempt from the need to find savings, but we all have a duty to achieve that in ways that do not put at risk the integrity of our justice system. Because it involves lawyers, cuts to legal aid do not often generate the same level of public anxiety as cuts to other types of public services.
But they way the government is going about this should worry us all. Legal aid is crucial in ensuring those truly guilty of crimes are convicted, after due process, and those innocent are able to clear their names, by ensuring that access to legal representation is available for everyone, regardless of ability to pay. Tinkering with this system should be only done with great care as the removal of an individual’s liberty is one of the state’s most important powers.
Major miscarriages of justice have occurred because of the absence of proper legal representation. These have happened within living memory, but Chris Grayling either doesn’t know this or has forgotten. We cannot afford to have the confidence of the public, victims and witnesses in our justice system undermined because the wrong people are being found guilty and the real criminals are wandering the streets.
Being reliant on legal aid is probably inconceivable to most of us. But this is no different from other branches of the welfare state established at the same time as our legal aid system – being diagnosed with a major illness and needing the NHS, or losing a job and needing the support of social security. If you were arrested on suspicion of committing a criminal offence or facing a trial, you would not want a second-rate system, or be forced to accept whatever representation you are given regardless of quality.
The current justice secretary likes to have us believe that this is about a lot of ambulance-chasing overpaid lawyers, milking the taxpayer. But for many of those working in this area, it couldn’t be further from the truth. They don’t go into this bit of the legal profession to make their millions, instead work in an unglamorous yet rewarding area. The reality is that Grayling is making the most of exploiting the legal profession’s image problem as cover for his real priority – demonstrating to his own backbenchers his credentials as a budget-slasher.
But his proposals aren’t simply a win-win for his budget-cutting aims. I have seen no sensible attempt to quantify the displacement of costs on to other parts of the legal system that will probably occur due to, say, more miscarriages of justice. Nor has he made any case for why a competitive landscape of local providers replaced with a small number of centrally commissioned monopoly providers is a good thing. The expertise and strong working relationships that exist between lawyers, the CPS, police and the courts in local areas would be a loss that the Ministry of Justice has simply ignored. And I admit that the prospect of the same companies delivering legal representation that run probation, prisons and prisoner transfer fills me with horror at the serious conflicts of interest that would arise.
Legal aid is one arm of our welfare system, and as such it should be concentrated on those who really need it the most. Those who can pay their legal fees should do so, and wealthy criminals should fund legal bills from their frozen assets. But salami-slicing cuts of the nature proposed by the government risks the integrity of our justice system. Quality of provision will be replaced by quantity of cases delivered. Increased pressure to plead guilty – even if the individual is innocent – will be the outcome, with the risk that a system of state-sponsored miscarriages of justice could devastate confidence in our legal system.
Savings must be found in our justice system, as with elsewhere across government. But these proposals have not been properly thought through, risking the integrity of our justice system. This risk has led to hundreds of publicly funded solicitors and barristers descending on Westminster this Wednesday to protest at the government’s reforms. We’ve even seen strikes in a sector not famed for its militancy – a demonstration of the depth of anger in the legal profession.
Instead of their proposals, the government should be undertaking a root-and-branch review of our courts, prosecution systems and judiciary to cut out inefficiency and bureaucracy, which anyone who works in this area knows exists. But by not going for this option, the it has chosen a route with scant regard for the consequences.
And with Grayling, we have a justice secretary with form – he moved on from Work and Pensions before his work programme unravelled. Anyone who knows our justice system agrees these are ill-thought-through plans that will also fail. Grayling may well have left his current job if and when they do fail, but the consequence would be the undermining of confidence in our justice system. And this would be disastrous for us all.
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Flaws in fraud case show worrying lapses by judges and lawyers | Joshua Rozenberg
Anthony White admitted fraud over mortgages, but analysis seems to show problems that senior judges failed to spot
Two years ago, a man named Anthony Alan White pleaded guilty at Southwark crown court to two counts of fraud. He also admitted two charges under the Theft Act 1968. According to the editor of Archbold, the criminal lawyers’ bible, none of the four charges held water.
White had obtained four successive mortgages in order to buy his elderly parents a flat in Clerkenwell, central London. On each occasion, he gave false details of his income. In fact he had no income. Each mortgage was used to pay off the previous one.
All this eventually came to light. The flat was repossessed and the lenders got all their money back. White was sentenced to 30 months’ imprisonment on the basis that the amount obtained from the lenders was £660,000. But since the subsequent loans were used to pay off the earlier loans, the actual amount he obtained from the finance company was £265,000. That, said the court of appeal, meant the sentence should have been 24 months.
In due course, a transcript of the judgment reached James Richardson QC, who edits Criminal Law Week as well as Archbold. Though the transcript was short on detail, he immediately spotted something wrong. He obtained a copy of the original indictment, which contains six charges. The first two accuse White of “obtaining a pecuniary advantage by deception” under section 16 of the Theft Act 1968. The remaining four accuse him of offences under the Fraud Act 2006.
That act came into force in January 2007. Two of the charges against White relate to false representations he is said to have made in November 2006. Those actions cannot have been offences under an act that was not in force at the time.
The other two charges under the Fraud Act were also bad law, according to Richardson. That’s because applying for a mortgage cannot amount to a false representation that one is “entitled to a loan”, as the charge alleged. And Richardson says that White was not under a “legal duty” to disclose that he was unemployed.
The two charges under the Theft Act were also defective, Richardson explains, because of the way “pecuniary advantage” is defined by section 16. It covers overdrafts but not mortgages.
Someone seems to have spotted the most obvious of these six errors. Richardson’s researches turned up a five-count indictment in which the two allegations dating from 2006 have been charged as a single offence under the Theft Act instead. But that charge would also have been bad. It’s not clear how six or five charges had become four by the time the case reached the court of appeal.
“The upshot is that a court of three senior judges failed to notice that, far from being in prison, the defendant should have been set free,” Richardson told me. But it was not just the court of appeal that was to blame. “The Crown Prosecution Service was responsible for an indictment that was defective in at least four distinct respects. And there were the advocates on both sides and two judges in the crown court.”
Writing about the case in the latest edition of Criminal Law Week, Richardson says it illustrates the depths to which the court of appeal has sunk. The appeal court should be setting the standard, he maintains. “If this is the standard to be expected, then it is no wonder that things are going wrong on a massive scale lower down in the hierarchy.”
One of his suggested improvements is appointing a few academic lawyers to the court of appeal. The other is more fundamental. Nowadays, he argues, the court of appeal is more interested in outcomes than procedure.
“Procedural lapses are indulged by the courts,” Richardson writes. “The more they are indulged, the more they occur; the more they occur, the more they need to be indulged.”
He continues: “This downward spiral has culminated in Anthony White’s case passing through the hands of five judges and at least as many lawyers without any of them noticing it was devoid of legal foundation; or if they did, without seeking to have it put on a proper legal foundation.”
What should happen now? On one view, no injustice was done. White admitted acting fraudulently. He deliberately deceived a finance company on four occasions. True, the company got all its money back – but only because White’s fraud was discovered before the housing market collapsed. He deserved to go to prison. Legal technicalities such as these should not stand in the way of justice.
On another view, this is a scandal that needs to be rectified. White should be granted legal aid so that he can bring an appeal out of time. If Richardson’s comments turn out to be accurate – and those approached by him have not claimed otherwise – then White’s appeal should be allowed.
Since 2004, a compromise has been possible. Section 3A of the Criminal Appeal Act 1968 deals with cases such as this. It applies to an appellant who has been convicted of an offence after a plea of guilty and it appears to the court of appeal that he has admitted facts which prove him guilty of some other offence.
In such cases, the court of appeal – instead of allowing or dismissing the appeal – may substitute a plea of guilty to the other offence for his original plea. It can then pass a sentence for the other offence of no greater severity than the original sentence.
It seems to me that this is what should happen in White’s case. I understand he has received advice on his rights since his release from prison. But his solicitors, Saunders Law Ltd, told me this week that they had no comment to make on the case.
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