A sense of justice: The devastating impact of legal aid reforms

Daniel Breger
169231440 300x188 A sense of justice: The devastating impact of legal aid reforms

(Getty Images)

Earlier this week the Justice Select Committee heard evidence on the Government’s consultation paper Transforming Legal Aid, and there was no shortage of individuals arguing that the plans to reform legal aid are wrong-headed.

Only last week, a senior judge described the proposals as “costly and potentially disastrous”. QCs have lined up to state that those who came up with the reforms, Justice Secretary Chris Grayling included, “ought to be ashamed of themselves”. At the heart of the concern is the proposal that, if you receive legal aid, you will be allocated a lawyer rather being able to choose one yourself. This concern may be well founded.

When a similar scheme of ‘direction’ was piloted in Scotland in 1998, independent research showed that 54 per cent of defendants administratively allocated public defenders were dissatisfied with their representation. This was compared to the 17 per cent who had chosen their own lawyer. That element of the pilot was subsequently scrapped.

Many would argue that satisfied or not, at least these defendants still had access to a lawyer. But we should be careful not to dismiss dissatisfaction so lightly. It could produce what would be to Mr Grayling a presumably unintended consequence— it may cause further crime. There is a significant and growing body of evidence that a defendant’s sense of the fairness of the justice system directly impacts on their likelihood of compliance with authority and committing further offences.

Studies by the Centre for Court Innovation, a New York-based not-for-profit, indicate that “when defendants perceive their treatment to be fair, they are more likely to accept the decisions of the court, comply with court-imposed sanctions, and obey the law in the future.” What this means is that Mr Grayling’s proposal to remove choice may not only infringe a defendant’s fundamental fair trial rights but it may also lead to more offending.

This should not come as news to Mr Grayling. Indeed his own department’s research report, titled Attitudes to Sentencing and Trust in Justice, states that fairness “may actually be a precondition for an effective justice system – as people’s cooperation and compliance is at least in part dependent on their perceptions of the system’s legitimacy. Fair and respectful treatment of the public helps to secure commitment to the rule of law.” If there is a perception that the court process does not treat people fairly, it can eat away at the legitimacy of the justice system.

Of course, a defendant’s choice of representation is only one factor that forms their experience of the justice system. The worry is that the removal of the choice to select your own lawyer could set the tone for the rest of their journey into the criminal justice system. As the ‘Council of Her Majesty’s Circuit Judges’ (who sit on criminal cases day in and day out) succinctly put it in their response to Grayling’s proposals, “a defendant who is dissatisfied at the beginning remains dissatisfied if convicted.”

The Justice Select Committee heard an abundance of evidence yesterday of why these reforms are devastating for the legal profession and defendants’ basic due process rights. They and Mr Grayling, should also reflect on whether the reforms may also have far-reaching consequences for the safety of our communities and the legitimacy of our justice institutions.

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  • Newsbot9

    I read your post, and you’re demanding just that. And you haven’t even bothered removing it from your post…

  • Had enough of morons

    You have again failed to answer my simple question. If I were prosecuting you I’d sit down now.

    Instead of an answer you give us a further demonstration of Daily-Mail-journalism-standard claptrap such as ‘we all know’ this and ‘you will also know full well’ that. Assertions based not on any objective facts – nor, apparently, on any personal experience – but on some utterly uninformed, pantomime-villain view of what barristers and solicitors do, what they are paid and what their motives and ethics are.

    You appear wilfully to persist in misunderstanding the role of lawyers in the criminal justice system. You play to the gallery worse than any white-wig wannabe.

    You accuse legal aid lawyers of earning ‘fat fees’ by defending those they ‘know’ are guilty. You are wrong and when confronted with explanations and facts and reasoned
    argument as to why you are wrong you respond by regurgitating more right-wing tabloid disinformation and lies.

    I am challenging your views because this mindless re-tweeting of MoJ propaganda needs to be challenged at every turn before this country sleepwalks its way into a criminal justice system which would shame the Middle Ages.

    However, if – as appears to be the case – you are so blinded by your prejudice against the legal professions and the criminal justice system in general that you are incapable of persuasion, it is clearly a waste of time trying to enlighten you.

    I hope, however, that others may have read what I have written with a more open mind.

  • martin31

    From the intemperate tone of your posts can I suggest you hold up a mirror before accusing others of Daily Mail claptrap. If you do not like “we all know” I’m happy to change it to “I know several barristers who are happy to defend those guilty of the most heinous crimes – knowing them likely guilty”. As you know it is counsels job under our system to defend their client and it’s only if their client directly admits the crime they must withdraw. As you also know there are many ways to ensure a client does not get to the point where they feel the need to make such an admission as the question is never asked.

    Your own view is made clear with the somewhat partial statement “The UK legal system is a SHAM designed for protecting the police and their cover-ups; which only encourages them to keep tampering with evidence and fabricating cases (which the Courts usually assist with).”

    I disagree and have set out my position. It is for others to judge who has the “blind prejudice” and the value of what you modestly describe as the “enlightenment” you offer.

  • Had enough of morons

    ‘Your own view is made clear with the somewhat partial statement “The UK legal system is a SHAM designed for protecting the police and their cover-ups; which only encourages them to keep tampering with evidence and fabricating cases (which the Courts usually assist with).”‘

    I fail to see how my own view is made clear by somebody else’s statement. May I suggest that you stick to reading my posts when trying to understand my view.

    You still haven’t answered my question by the way – the one which I have asked you twice – about what knowledge or experience you possess which entitles you to tell a barrister of fifteen years’ call that he has been inculcated into an incorrect view of the system, that the system is all about making my profession a fat fee, that I have no problem defending people I know are guilty of the worst of murders, etc., etc.

    Do you really know ’several barristers’? Who are they, perhaps I know them too?

    Do you have an alternative model for a criminal justice system to the one we have in which if you tell your barrister you are not guilty he/she can’t just ignore you but is bound by your instructions?

  • martin31

    Again you seek to paint a caricature of the views I put forward which have little to do with what was said.

    If you feel it wrong of me to question your views simply becasue your job is that of a barrister and I choose not to advise what knowledge I have that is your choice. You have already said if you were prosecuting you would have sat down by now. Maybe it’s time to do so.

    I choose not to advise what experiencing I have that allows me to reach my views but do assure you I would not be responding to your request I put into writing the specific names of any barrister who is happy to defend those who they know may be guilty. In answer to your other questions yes several barristers and no I have no idea if you know them.

    You will also note I did not say you had an incorrect view of the system but I did suggest you have been inculcated into an incorrect view of why the system is wrong. Those are two different points as you know.

  • Had enough of morons

    ‘I choose not to advise what experiencing I have that allows me to reach my views’

    Your silence is far more eloquent than your posts. Perhaps you should exercise it more often.

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