Beyond the point of returns

I’ll be up at stupid o’clock tomorrow, to pay stupid amounts of money to catch a train to London just so I can join in the march for justice. Be sure of this: getting up before 6am on a day when I am not getting paid is something I only do in extremis. Especially when it costs me over 150 qua.

My kids are 4 and 5. Whether they grow up to be fine upstanding young men, or black sheep, I don’t want my boys to grow up in a country where they will not get the best possible defence to any crime they may be accused of. I want to be able to continue to teach my boys about the justice system I am proud of and that, in spite of its failings, I believe passionately in. I want to instil that sense of pride and awe in them. Whilst it is inevitable that there are miscarriages in every system (because every system is run by real human beings) ours is a system which includes robust safeguards against such miscarriages of justice – primarily because of the quality legal advice and representation afforded to both defence and prosecution. It is easy to fall for beguiling headlines about criminals benefiting from legal aid, but it isn’t the criminals that the criminal courts are about. Our system does right by us both as victim of crime and as victim of a wrongful accusation  – and we are rightfully fiercely protective of it. We should never take that for granted. It is easy to say that the bar are protecting themselves and perhaps that is right. But what we are also protecting is our clients, and our justice – because it is a precious and a delicate thing.

I am marching because I worry that by the time my kids reach the age of criminal responsibility they will not be so well protected against injustice. I am marching because I am fearful that we are destroying the things that make our justice system safe and fair – and once it’s done, we will never be able to claw that back. I am marching because whilst the criminal justice system crumbles, the family justice system will not be far behind it.

So, the criminal bar will be adopting a policy of no returns from tomorrow. For those of you who don’t know what that means, criminal barristers will only do their own cases – if a barrister is unavailable to represent a client at a particular hearing because of a clash nobody else will pick it up. This seemingly small shift will have a big impact, since the operation of the criminal justice system depends upon barristers flexibly picking up briefs at short notice, for little pay and often no profit, to make sure that defendants do not go unrepresented. No barrister takes lightly any step that leaves a client without representation – this has been years in the making and things have reached a crunch point. So you can read from this that this is a big deal. A big deal for defendants. For victims. For barristers, who run the risk of possible disciplinary proceedings and certain loss of income.

Ever since I started out at the bar some 12 years ago there has been a cut to legal aid just enacted or on the horizon (most of the time both). For 12 years we have been responding to consultations, absorbing another cut, listening to one government or another taking another swipe at the bar, reading another conveniently timed data release about so-called “fat cat” lawyers. This is the start of the endgame in a long, slow, corrosive process. If you are interested, I wrote a bit more about this topic in this blog post: It’s not about the lawyers – it’s about YOU!.

9 thoughts on “Beyond the point of returns

  1. Nick Langford

    I agree with pretty much everything you say, Lucy, but I also recall the reports from the Commons Public Accounts Committee in 2007 and 2009 which showed the extent to which lawyers were abusing the legal aid system, so they have to carry a certain amount of the responsibility for the current situation. As do those litigants who also abused the system. While the fat-cat lawyers may be in a minority, it is characters like Raymond Tooth who get the publicity and thus furnish the public with an image of the typical divorce lawyer. Nor does it help their cause when some blogging lawyers are blind to the obvious failings of the system; as taxpayers, why should we continue to pour money into so flawed a system? The Government’s attempts at reform are inept, but reform is certainly called for.

  2. The criminal bar throwing their toys out the pram.

    Your comment that “our system does right by us . . . . as victim of wrongful accusation” is simply not true. In family law, the misapplication of legal aid has funded countless thousands of wrongful accusations and undermined justice too.

  3. It certainly sticks out like a sore thumb that a litigant who claims to be the victim of DV can and the opponent cannot get legal aid: a declaration of incompatibility with Article 6 just waiting to happen!

    • well yes, but s10 LASPO Act 2012 was specifically designed to prevent such a declaration arising. Not that the LAA are just not granting applications for exceptional funding (last time I checked they’d granted 6 across the whole of civil).

  4. russell Armstrong

    So the barristers have finally realised that they need to fight to keep their right to a fair and reasonable level of remuneration?
    Fairs enuf, however I have another idea.
    Instead of the market force being inflated at public expense via legal aid, let us allow market forces to “regulate” the supply and demand and costs of services available.
    In a commercial world you can only charge what someone is willing to pay, correct?
    Thus, without legal aid, lawyers will have to charge commensurate with the consumers ability to pay
    My word, I’m sure that many lawyers could work for say £200 per day plus expenses, maybe £300, that would equate to £40/hour. Now at that rate I would probably instruct a lawyer to argue my family dispute case, as long as they did what I told them to (and not what they want to do) as long as they agreed with my approach or explained why my approach was not helpful etc…….
    So there you have it, reduce your costs so that people can afford you and you will still have a job, or if your really good you may be able to charge a premium

    • Um, Russell, what exactly do you think legal aid lawyers earn per day? I often earn £200 or £300 per day before expenses, tax etc. I don’t get paid if I take time off for sickness, pregnancy, holiday or bereavement (which I rarely do). I don’t get paid for the days I’m on compulsory training or out of court preparing a case, for days doing admin, for the days when a hearing is cancelled…and nor do I get paid for the days when there is no work. Sometimes of course I earn more than £200-£300 on a given day – sometimes considerably more – but sometimes equally I earn a lot less. My case tomorrow will probably result in a payment of about £170, of which I will take home about half. Recently I represented two children in a case where there were serious head injuries and which involved multiple medical experts. I was paid just under £700 for each day of the hearing but nothing for the days spent preparing the case, which I reckon was about 3 days of my time, including a weekend. That works out at about £300 a day, or £150 in the pocket. I’m not complaining about the amount I get paid, but I don’t think that’s bad value and is certainly less than the £40 p/h you posit. If the Legal Aid Agency had to compete for our services in a market it would have to pay a damn sight more, but it isn’t a market, it’s a monopoly. If you think that the lawyers drive the amount they get paid you are wrong.

  5. What are the various bars’ proposals to overcome the problems of legal aid misuse while meeting the genuine needs of people? I lost my children because of someone’s easy access to unlimited legal aid.

    • Paul, We’ve had this argument before. People often blame the availability of legal aid or lack of legal aid for the outcome in their case, depending on the circumstances. In truth though, the court has heard the evidence and has reached conclusions that one party’s position was the better outcome for the child. It is no doubt easier to make persuasive arguments with a lawyer on board, which is why I would prefer to see both parties represented, but it is not the availability of legal aid which is the problem in the scenario you describe – it is the lack of legal aid (or to be more precise of a lawyer) that is the problem. People do make false allegations, and they run arguments which range from the weak to the bonkers – they do so with or without lawyers. A judge’s role is to sift through and identify the facts and formulate a sound view even where only one party has a lawyer. I don’t say they manage that on every occasion, and I don’t know what the circumstances of your case were, but I think that you are aiming at the wrong target. As a general proposition, the fact that a party has “lost” their case is a reflection of the fact that their case or their arguments were weak – whilst the task of reaching the right decision is harder with one or no lawyers, it is not impossible.

      • And I should have said of course that in any event legal aid is means tested and lawyers are subject to ongoing duties to report if there is a change of circumstances including a change in the merits position. I’ve said it in previous versions of this discussion but omitted it here.

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