Friday, 26 August 2011

Legal Aid

“Legal aid is a service which the modern state owes to its citizens as a matter of principal.  It is part of the protection of the citizen’s individuality which, in our modern conception of the relationship between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves.  Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise.  Indeed, the case for such protection is stronger than the case for any other form of protection.  The State is not responsible for the outbreak of epidemics, for old age or economic crises.  But the State is responsible for the law.  That law again is made for the protection of all citizens, poor and rich alike.  It is therefore the duty of the State to make its machinery work alike, for the rich and the poor.”
Dr E. J. Cohn, Legal Aid for the Poor, 1941.

“For half a century the legal aid scheme enabled those without means to sue and defend themselves in the courts.  The scheme was not without faults: it led to the public financing of too many unmeritorious claims, and it bore hardly on privately funded defendants.  But its cost was its undoing.  In the years 1988 to 1996/7 expenditure on civil (and also criminal) legal aid was the fasted rising item of government expenditure overall.  So, perhaps ironically, it fell to the New Labour government to restrain access to civil legal aid, seeking to substitute conditional fee agreement and certain forms of insurance.  Despite determined efforts by Lord Woolf, to reduce the cost of civil litigation, and the introduction of admirable pro bono (gratuitous) scheme by solicitors and barristers, there must be concern that there now exists, once again, a large unmet need.”
Tom Bingham, Baron of Cornhill, former Senior Lord of Appeal in Ordinary, The Rule of Law, 2010

 The cost of legal aid has risen considerably since it was first introduced in Scotland in 1424 and in England 70-years later.  Even since the Legal Aid and Advice Act 1949, which set up what we now recognise as our modern legal aid system, the costs have risen enormously.  It is true that some lawyers were (and still are) greedy - this is nothing peculiar to lawyers, it is a trait found in all walks of humanity.  Costs have risen for two main reasons: first, people have been encouraged by successive governments to view themselves as entitled to things and to stand up for themselves.  I don't suggest that this is a bad thing.  So, people who believe that they have a right to something and are now more likely than ever to take legal action to protect themselves.  Secondly, as the police become more efficient and have more resources at their fingertips so the rates of arrest and trial increase.  It is worth noting that in the 1930s the Met Police followed a policy of refusing to take reports of certain thefts and would instead record missing items as lost.  Also, it is worth noting that by the end of the last Labour government they had created more then 4,300 new criminal offences, according to the Times Online on the 14 March 2010.

We, as a society, have a choice that is similar to the choice facing us over health.  We can protect our health service and ensure that when we are ill it is there to help us.  We can protect legal aid and if we are falsely (or even correctly) accused of a crime or are injured by a negligent medic or run down by a car then when we find ourselves vulnerable there will  be somebody there to help us.  Or, we can simply follow the views of newspapers like the Daily Mail and say that everybody who gets legal aid is a scrounger and the lawyers are all greedy thieves and then when the finger of suspicion or blame points at us we can wake up and realise that there is nobody left to speak for us.

Monday, 22 August 2011

Being the duty solicitor

Last Friday and today (Monday) I am/was the duty solicitor at Stratford Magistrates' Court.  The role of the duty solicitor is to advise and represent people who are appearing at court but who do not have a solicitor; there are a few more rules about who qualifies and who doesn't, but those aren't important right now.

I am currently the custody duty solicitor, which means that I am here to advise and represent anybody arrested by the police and charged over the weekend..  I heard on the news last night that the Metropolitan Police deal with approximately 2,000 offences per day.  Stratford covers the Newham area of east London where I believe I am right in saying that Newham has a higher than average crime rate, although it's not one of the highest crime areas in London.  So, with an average of 4,000 crimes committed over the weekend plus those committed on Friday night that couldn't make it to court on Saturday morning you might expect there to be quite a bit of work waiting for me on Monday morning.

There is no narey duty (who deals with defendant's not in custody) so I am available to cover those as well.  I currently have zero clients.  On Friday I had just one client.

Only two people have been brought to court from police stations, which means that just two people where charged and kept in custody by all of the police in the whole of Newham on Friday evening, Saturday and Sunday.

Just four people have been charged and bailed by the police to attend court today over the last week.

The court staff and other lawyers agree with my observation that the police/CPS seem averse to charging these days.  I can only assume that when the next set of crime figures come out we are going to see a huge drop in crime of all types.

Friday, 19 August 2011

A-Level Results

I'm not one who usually jumps on the band wagon of slagging off modern exams as being too easy, but having just read the reports in the Times of some students results I must confess to being a bit worried.

One young lady and another young man achieved eight A* at A-Level each.  This tells me that at least one of the following things is likely to be true:
  • They have chosen subjects that are very easy;
  • They have chosen difficult subjects that are hard but the content of the syllabus and exams are too easy;
  • They are in desperate need of a life; or
  • They are both geniuses and will one day rule us all... or attend Comic-Con regularly.
I note that the young man's haul includes "critical thinking" and "general studies" both or which are joke qualifications.  In fairness, almost everything else he studied sounds bloody difficult to me: chemistry, maths, further maths, economics and history.  The remaining one is business studies, which could be difficult or not depending on what you are studying I suppose.  I did a GCSE in it and it wasn't that hard.

The paper also reports on one 13-year-old (who co-incidentally goes to my girlfriend's old college) who scored an A* in physics and an A in chemistry but took just a single year rather than two to obtain these grades (presumably an academic year, so about 9 or 10 months instead of a real year).

Like I said at the start, I don't normally join in with this yearly obsession of doing down A-Levels, but when a child can clip through two in half the time it's supposed to take to do one and others are knocking down eight in a stride you have to ask yourself if these exams are still the gold standard in education. When I did mine 3 was standard, although a friend did do 4 proper courses plus general studies, which incidentally he got an A in without ever attending a lecture!  He also barely had a life for two-years and claimed afterwards that it had been a mistake as there simply wasn't enough time to devote to each subject.

Monday, 15 August 2011

Government ordered rioters to be gaoled

I have just read a report that a magistrate claims to have been directed by the Government to imprison all rioters.  Not sure where this was originally reported.

I cannot say whether this is true or not, but if the magistrates at Camberwell Green did accede to such a command then it would seem to be a breach of their oath as JP's as well as a breach of the Rule of Law.

Pay to prove your innocence

The Labour Government sought to introduce plans to prevent acquitted defendants to criminal cases from recovering their costs from the prosecution.  In all cases, whether civil or criminal, it is said that "costs follow the event", which means that the losing side gets to pay the legal costs of the winning side.  In criminal courts up and down the country you will daily see defendants who have been convicted or pleaded guilty being ordered to pay the costs claimed by the prosecution.  Equally, if a defendant chooses to pay for his own defence and is acquitted then the prosecution has to repay him the money he spent defending himself.

So, to be clear what we are talking about are people who have been accused of a crime and found to be not guilty of that crime by either a jury or a bench of magistrates.

The Labour Government was judicially reviewed by those concerned about civil liberties (and no doubt some lawyers concerned about their income - let's not pretend that lawyers don't want to protect their livelihoods).  The Government lost and those proposals never became law.  The newly elected coalition confirmed at that time they would not appeal the High Court's ruling.  However, despite that earlier promise the Coalition Government has now announced that they will in fact prevent the innocent from claiming back money spent proving their innocence.

The Bill will become law around April 2012. I anticipate that the  Defence Cost Order (DCO) proposals will come into force shortly thereafter.

The proposals are:

1. No DCO's in any circumstances for companies/corporate bodies etc - they will have to bear the cost themselves or insure - although I will tell you now that I have tried and failed to find any insurance company willing to provide after the event legal expenses cover for criminal litigation;

2. No DCO's for individuals in the Crown Court as contributory legal aid is available in all case - you therefore take legal aid or nothing; and

3. In the Magistrates' Court DCO's will be available for acquitted individuals, capped at legal aid hourly rates.

Given the current financial mess that the country is in you might be surprised to hear that companies will be forced to pay for their own defence in circumstances where they have done nothing wrong.  This will put practically any small business facing an accusation and in financial difficulties out of business.
The second proposal is also surprising for a majority conservative government in that it seeks to remove freedom of choice from people and requires them to become reliant upon the state... very socialist if you ask me.  It's also worth noting that the contributions can be up to £900 per month and some cases can take more than a year to come to trial.  At least if you pay privately you can have an agreement with your solicitor over how and when you make payments.  I know for a fact that I couldn't afford to pay out an extra £900 p/m... could you?

The effect of point 3 will really be to stop people accused of motoring offences from being represented in court.  Now, this isn't going to stop the rich from being represented because they can afford to absorb the difference between private and legal aid rates (my private hourly rates are pretty average at £180 p/h for a director, £140 for a solicitor and £90 for a trainee - my own solicitor charges me £300+VAT per hour!  Legal aid hourly rates are fixed at £49.70 p/h).  This means that the average man or woman accused of a motoring offence and facing losing their job will have some pretty touch choices to make.

So, let's say you come to me asking that I represent you personally at a trial.  Say the whole case takes about 12 hours to prepare, which is about average for the magistrates court, then you will have a bill of about £2,000 - this is actually the fixed fee we offer for a mags court trial if I represent you personally.  Now, let's say that because you are innocent you are found not guilty by the court.  You can reclaim your costs at the legal aid hourly rate, so you will get back £596.40 leaving you with £1,403.60 to pay.  Remember, criminal proceedings aren't something you can avoid like civil proceedings often are.  You have no choice but to get involved and defend yourself in court if you are accused!

Just to give you an idea, my nearest competitor will do a mags court trial for £1,500 + VAT, so £1,800 all in.  So you can see that my fees are not particularly high - if you read the papers you'll celebs who have paid £29,000 for a mags court trial (in the case of one comedian I read about).

If you agree with me that it is grossly unfair to ask innocent people to pay to prove their innocence then I urge you to sign this e-petition on the Government's petitions website.

Friday, 12 August 2011

Riots, compensation and political nonsense

This week has seen some rioting in the streets.  I am pleased to say that despite smashing up pretty much all of our neighbours my office on Mare Street, Hackney was left untouched.  I can only assume that having the massive words "CRIMINAL DEFENCE SOLICITORS" in the front window helped.  In fact, when I showed up on Tuesday morning the windows looked as though they'd had a good clean over night, which is nice if somewhat strange.  The offices appeared on the news throughout the night and during much of Tuesday - you probably caught a glimpse although there's no reason you would have realised it was a solicitors office from the TV.  If you saw the pictures of Ladbrookes being attacked in Hackney then we are a couple of doors along, mostly just out of shot.  Although, I have been wanting to check out our roof for a while as we have a leak and the HDTV shots gave me a great chance and happily it all looks good.

Having watched the TV coverage on Monday night, I rode my motorbike to work on Tuesday morning expecting to be met with scenes of devastation.  As I went along Cambridge Heath Road and then on to Mare Street I passed groups of people waving brooms and other cleaning equipment.  When I got to Mare Street I thought that they were going to be disappointed as it appeared that the Council had already tidied most damage away. 

Our immediate neighbour, an independent optician, was completely cleaned out.  By which I mean they broke her windows and stole literally everything from the shop.  Unlike the big chains that have already reopened her shop remains closed.  I don't know if she has insurance or not.  But it made me think about what do you do if you couldn't afford to insure the contents of your shop for some reason, which is the position one family I saw on the TV were in.

A quick bit of research and I discovered that the Riot (Damages) Act 1886 allows the victims of riots to recover their losses from the compensation authority of the local police area.  This authority should pay out the costs of repair and loss.  If you have insurance that does not cover the full amount then the compensation authority will still pay out but less any payment made by the insurance company.  I circulated this information around our local press and shops earlier in the week.

It is very important to note; however, that you have just fourteen days to make a claim!  This period can be extended to 42-days if you make an application to the compensation authority within the initial 14-days.

Turning now to the final part of the title, which is political nonsense.  I was going to call this political bollocks but that somehow seemed too rude... I suppose that doesn't matter now I've written the word in the text.

David Cameron PM, decided to come back from his holiday to offer up some criticism of the police, put out some soundbites, ruin all the other MPs holidays and otherwise not do very much to help the situation.  At least Bojo picked up a broom after some face to face heckling.

One thing that Call Me Dave said in Parliament was that police chiefs had admitted to him that there were not enough police on the streets for the first few nights of the rioting.  I agree, there weren't from what I saw.  But lets just recall that Dave's Government has already cut back on police overtime and shed a number of front line police officers, I think it's 1,500 have gone since he became PM and is proposing the loss of many more - I've just read a suggestion that it could be up to 12,000 less officers!  This is a point that I think is lost on some people.  Over the past few days I've seen more police officers on the streets patrolling than I have ever seen in my life - not riot police either.  Hackney has been full of normal police officers in normal uniforms patrolling on foot.  I do not believe for a moment that high levels of policing would not deter crime.  I've been saying for years that having more police on the beat will actually cut crime!  In the past, I've made suggestions such as employing professional civilian gaolers to man the cells thus freeing up police officers and having dedicated trained civilian interviewers to conduct police interviews and thus free up officers.  They did actually introduce this, sort of any way, when they brought in Case Progression Units but they were staffed by police officers, most of whom hated being in the CPU and because it was police officers it didn't free up any officers at all.

Successive Governments have been obsessed with increasing conviction rates, usually by allowing in what has been inadmissible evidence for centuries or by cutting legal aid to prevent people receiving a fair trial.  But, what they don't seem to get is that they can cut the legal aid bill by reducing crime!  They also don't seem to get the point that high conviction rates are not a sign of a Government that is tough on crime.  It is a sign of a Government that allows people to commit far too many crimes!  If we had a high conviction rate coupled with a fair and balanced system (which includes equality of arms) where few crimes were actually committed then I'd say the Government is doing a good job.  But we don't.  We have a system where we have a relatively low conviction rate - depending on offence and the court where the case is heard - coupled with a high crime rate.  Basically the Government has got it all arse about tit.

There endeth the rant.