A sense of justice: The devastating impact of legal aid reforms
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.Tagged in: Chris Grayling, Legal Aid, legal aid reforms
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