Archive | April 2013

The hidden danger to victims of crime of the proposed Legal Aid cuts.

Last night I was discussing the latest Government proposals regarding legal aid with my mum.  We are at opposite ends of the spectrum when it comes to politics and I expected her to be fully in favour of the planned destruction of criminal legal aid.  But she took a different approach, with the question “so all those years of studying, going out to police stations late at night, traveling around the country to different courts, and all that experience gained is going to go to waste?”

In fact she is right.  I and all of my colleagues, both solicitors and barristers who have been working as criminal lawyers for years have built up a vast wealth of experience and skills.  All of which the Ministry of Justice wants to toss into the trash.  We use our experience to train and mentor those who are coming into the profession, we spend many hours talking to students, telling them why English Criminal Lawyers are admired around the World.  Most of us at the Criminal Bar have also done our bit for the State.  Very few young barristers make it through their first few years of practice without taking on cases for the CPS.  Taking on CPS lists (the court where there can be over 40 cases a day listed- all of which have to be dealt with in some way or another) is well known as a way for young barristers to gain the experience of advocacy while growing a very thick skin.  I spent many years taking on CPS work in my early practice years, and I have to say it made me able to deal with anything.  On some days I would walk away feeling punch drunk from the kicking I had taken from the District Judge in the Magistrates Court due to CPS cases not having been prepared, files not being in court, or charges being incorrect, or witnesses not being warned.  But it made me a much better advocate, able to problem solve and think on my feet.  I only ever made the mistake of saying “I don’t know’ to a judge once.  I certainly learnt my lesson, and in future would always have an answer to whatever question the judge threw at me.

So where am I leading with this?  If the Ministry of Justice has its way with the proposals, there will be no opportunities for the junior end of the Bar to undertake crime in the Magistrates Courts as this will be tied up by the 4 mega firms in each area who are given the contract on the basis that they were the cheapest.  The fiasco that resulted from the court interpreter contract has shown that those who are able to work on the meagre rates these mega firms pay their staff will not be up for the job, and the work will certainly not be outsourced to the junior criminal Bar.  Hence, the junior criminal Bar will no longer be able to support itself and will cease to exist, taking with it all those advocates who are currently mixing criminal defence and prosecution.  It is questionable whether the CPS will be able to support its court commitments without the flexibility of the young criminal bar.  The fact that the CPS  has been told it must take another 23% budget cut in the next 2 years will mean that there will be no scope for the CPS to employ more lawyers (who are currently employed on a salary much higher than any members of the young criminal bar can hope to earn in their first 5 years of practice).

Taking this to the next level, where will the next generation of prosecutors for the Crown Court come from?  Surely the Government doesn’t suggest that barristers undertaking prosecution of serious cases can do so without having gained trial experience in the Magistrates Court.  At the same time, the CPS is downgrading a lot of its Crown Advocates as a way of saving money and also accepting that many of these Crown Advocates have never undertaken a trial in the Crown Court.

Ken McDonald, the previous Director of Public Prosecutions coined the slogan ‘World Class Prosecution Service’.  I wonder if victims of crime who, in a few years, are told that their cases cannot be prosecuted as there are insufficient numbers of prosecutors, will agree that our CPS is worthy of the slogan.  Hence it is not only defendants and those looking to challenge the actions of the state who will suffer from these cuts, the victims of crime could actually be the biggest  loser.

If you have not done so already, please consider signing this epetition Save UK Justice  Write to your MP with your concerns, or email me agurden@1gis.co.uk  I am preparing  dossier of views to include with my response to the consultation.

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Ever been arrested or ended up in court? We need your help to save legal aid..

There has been a lot in the news about ‘Fat Cat’ lawyers and the legal aid system. But in reality most criminal lawyers are not fat cat and they work in this area of law because it interests them and they are interested in the clients….although I accept many people will have heard of a criminal lawyer just in it for the money.

Ignoring the lawyers and the impact the legal aid changes will have on them, I want to focus on the impact it will have on those who end up in the criminal justice system, both in the police station and in court. And I need your help to respond to the Government’s legal aid consultation paper. I want to provide a response which includes the true impact that the legal aid changes will have on people who need to use it.

The main proposed changes to criminal legal aid are:

* Plans to reduce the number of local solicitors on the police station duty solicitor scheme. The scheme to be given to 4 mega firms who will cover the whole county – so far the indication is that at least one of these mega firms will be a non law firm such as StobartLaw or Cooperative or Tescolaw. The impact of this will be that a detainee will probably have to wait longer to see duty representative as there will be fewer of them and they will be traveling the whole county. Also the Government proposed fees for the police station duty scheme will be so low that the firms will not be able to offer an experienced lawyer, but instead someone who is very inexperienced and who is working to targets and budgets.

*Defendants who are charged will not be able to change lawyers after the police station. They will have to stay with the firm that represented them in the police station, even if a defendant isn’t satisfied with the service that they had from the firm, that will not justify a need to change. Likewise there will no longer be the option to find a lawyer who is a specialist in the particular area of criminal law that the defendant is charged, and those defendants who have a preferred lawyer who always represents them – well that will be a thing of the past.

* Most of the so called lawyers who will be turning up to court to represent defendants in the Magistrates Court will be plea only lawyers, and will not be able to represent a defendant with anything other than a guilty plea, and obviously won’t get paid unless they get a guilty plea. So a defendant will be given ‘independent’ legal advice on whether to plead Guilty or Not Guilty from a person who only gets paid if they get a ‘guilty’ plea. And these representatives will be on targets from their employer so their incentive will be to get their defendant to plead guilty.

There are other changes but I don’t want to drag out this post too much..I will write about the prison law changes in another thread as I need your help on that score as well.

So what can you do to help?

Email me any views you have on this, I am particularly interested to hear from anyone who has been through the criminal justice system or who is currently going through the police station or court system. How would these changes affect you if they had already been implemented? agurden@1gis.co.uk

There is an epetition against these cuts,  Save UK Justice petition please click on the link and consider signing.

Please don’t be complacent about this..there is a real danger that this Government is going to destroy your right to a lawyer and legal representation unless we do something about it now. Please don’t also think that the legal profession alone can prevent this from happening, we can’t, it requires a lot of public support as well, and sadly…due to a few ‘fat cat’ lawyers we do not get the support.

We need your help on this…so please take some time to do something about it…just 5 minutes in an email to me and 3 minutes clicking the petition link can make the difference between a future with criminal legal aid and one without.

Alison Gurden, Barrister, 1 Gray’s Inn Square Chambers.  www.alisongurden.com

Football Fans – Actually, someday it might happen to you or your family.

This is my second blog on the legal aid cuts and is aimed at football fans as they are a large part of my everyday work.  In effect I am writing this to tell you of the damage that is being done to the legal system by the Government, and in particular the proposed legal aid changes.  I don’t expect you to have any sympathy with lawyers, and those of you who follow me on twitter will know that I am becoming increasingly frustrated with the way in which a large proportion of criminal lawyers are whinging about the cuts but doing nothing to actually stop it, expecting the few who are working really hard on campaigning against the cuts to do it for them.

For once I say that criminal lawyers are facing the same prejudices as football fans…Yes all right, don’t all shoot me now!  But seriously, criminal lawyers have all been classed as ‘Fat Cats’ due to the very small minority who have lived very nicely off of legal aid.  This is in much the same way as all football fans are classed as hooligans and sadly, so often treated like hooligans, due to the small minority of so called fans who go out of their way to cause trouble at or around a football match.  The so called ‘Fat Cats’ can probably be counted on one hand and most have had a connection to the Government in some way or another.  The majority of criminal lawyers live in the same areas as you, in the same type of houses, drive the same type of cars (or in my case, get the bus and train everywhere) and have the same daily concerns over finance, family etc.

But, that’s enough about the criminal lawyers.  The main injustice that will be caused by these legal cuts is to people like you.  Those, so called regular clients, who have a habit of finding themselves in the police station and court will probably still qualify for legal aid.  The person who has never been in trouble before, who has a mortgage, a family, a partner who also works, and a small amount of savings is the person who will suffer most from these cuts.  By this stage you are probably thinking, but I don’t get into trouble so why should I care?  Well, I care about the rights of fans, and as a fan, you should too.

With the exception of a few football fans, who I can also count on one hand, all of my clients say the same thing “I can’t believe this is happening to me, I have never been in trouble, I did nothing wrong’, and are mostly young lads in the twenties or men in the their forties.   Examples of my recent cases include the 18 year old who was arrested outside the stadium due to having a smoke bomb in his pocket, which he had intended to let off after the match if his team won, and to celebrate his 18th birthday at the same time.  The 35 year old fan who was arrested for allegedly assaulting a steward who grabbed the client’s 8 year old son by the collar and pushed him back to his seat. The father grabbed the steward’s arm to make him release the grip on his son. The son had run to the front of the stands to take a photo of the mascot.  The fan who was woken up at 6am by a police knocking on his door with a search warrant following a complaint by a steward that the fan had assaulted him.  It turned out that the steward had made the complaint because he believed his ex-wife was now in a relationship with the fan.

All of these cases were resolved before they got to the door of the court, and all resolved in favour of the fan, but required a lot of work behind the scenes. This work was done on legal aid.  If the Government’s legal aid plans come into force, none of these clients would be entitled to legal aid, they would have to find a lawyer to take on their case privately, and because the cases never made it to court, the client would not be able to recover their legal costs. In addition ti saved a lot of court time, and CPS and Police costs that would have been incurred had these matters gone to trial.

In addition, at the police station these fans all requested a lawyer.  All were seen quickly by the duty lawyer and arrangements made for them to be released from custody.  Two saw the duty lawyer and one requested to contact a football specialist solicitor.  The two who had the duty lawyer then applied to change to a football specialist lawyer.  It was due to this change that I was instructed and between us we managed to negotiate with the CPS and Police and arrange for the charges to be dropped.  Under the proposed legal aid changes, the lawyer at the police station will be part of a ‘super firm’  which covers much of the county, and which will inevitably cause a delay in the legal representative seeing the client in the police station due to the geographical area  they are covering.  Add to this the fact that the client will have no choice of lawyer from then on, so will not be able to change to a specialist.  In other words, if you compare this to the NHS it is like saying that there will be no more surgeons or specialist doctors, but that GP’s will undertake all operations and treatment.

If you end up in court, having to pay for your own lawyer, and are acquitted, you will only get the costs paid at the legal aid rates.  So if your lawyer has charged you more than the legal aid rate you will not be able to claim it back.  So far, not a problem, why should lawyers get more from private clients than they would get on legal aid?  I wouldn’t have a problem with this if the legal aid rates for court work were not being cut so low that essentially all experienced trial lawyers will be priced out of the market. So even if you can find a lawyer who will be able to survive working on legal aid rates, the chances are they will not be experienced in trial work, and certainly not in the specialist football related law and court procedure.

Let’s say you are lucky enough to still be eligible for legal aid, the Government wants to introduce ‘Plea Only’ advocates.  In other words the lawyer who represents you in court is only able to represent you if you plead guilty as they are not qualified to undertake ‘not guilty’ cases, and also won’t get paid if  you don’t plead guilty.  How can you expect to receive independent advice, which is the best for you, when the person giving you the advice will only get paid if you plead ‘Guilty’.

You are probably still wondering how this affects you….don’t take my word for it, next time you go to a football match, speak to other fans and find out how many have tales such as those above.  It will be more common than you think.  And in the meantime, just incase  you ever find yourself in the position I have described above, please click here http://epetitions.direct.gov.uk/petitions/48628  and sign this e-petition against the legal aid cuts.

If you feel even more strongly about the cuts, write to your MP or write to me at agurden@1gis.co.uk  I am compiling a dossier to put forward as a response to the Government legal aid consultation.  If you have been in a situation such as I have described above, please get in touch and tell me whether legal aid assisted you, or the problems you had because you were not eligible to claim legal aid.  If any supporter networks want more information on the proposed cuts and the likely impact on fans, please feel free to get in touch.

ABOUT ME: I am a criminal lawyer, not a ‘fat cat’.  I already undertake a large amount of work on legal aid and pro bono, and I just about manage to make a living out of it.  I am not fighting this fight for me, or for my fellow criminal lawyers..I will leave them to do that themselves.  I am fighting this because I feel very strongly about the English legal system, which has always been shown as one of the best in the World, and for all my current and future clients who will suffer under these cuts.  You pay your taxes so that you can have these protections should you ever need them.

Saving UK Justice – what does it mean to the person in the street?

Following the Government’s announcement last week that it intends to impose further extensive cuts to legal aid, there has been a lot of discussion on social media about the impact of this on the legal profession, in particular the criminal lawyers.  But the public need to be aware of the devastating  impact that these cuts will have on them.

My main concern in all of these cuts is the impact they will have on clients and potential clients, and the fact that once the cuts are implemented, there will be no going back.  I am under no illusions that a change of Government will reverse the cuts, all that will happen is that the next Government will blame the previous one, but say that there is now no possibility to change the legal funding rules to benefit the client.  The public cannot be complacent in this, and should not believe everything they read in the press about ‘Fat Cat’ lawyers.  This is just the Ministry of Justice’s way of hiding the true damage that lies ahead if the cuts are implemented.

Let me give some examples of what I have seen recently, as a result of the last swathe of legal aid cuts and the changes of procedure for assessing legal aid:

Last week I sat in a court watching a defendant who had to represent himself.  He was a student and had been accused of stealing money from his part time employer.  His legal aid had been denied as the administrators in the Magistrates court office, who have no experience of law and legal argument, had decided that his case did not satisfy the Interest of Justice rules – it would appear that he had not ticked the right box on the form which he had completed himself.    He pleaded guilty, and then when giving his mitigation said that he had collected the money from clients that evening in a bar, and had left the bar a few hours later, possibly having had a few too many beers, leaving he money behind.  When he realised and went back for the money it had gone.    At this stage the legal advisor raised the question as to whether this amounted to theft, but the Magistrates decided that the defendant had entered his plea and so that should stand as he clearly wanted to plead guilty.

The reality is that if the defendant was telling the truth, he was not guilty of theft.  A lawyer would have advised him of this, and would also have advised that theft from an employer is a very serious conviction as most employers will not consider employing someone who may steal from them. As a student, such a conviction could be disastrous for any future career.  The fact this defendant was unrepresented meant that his chances of employment and any other activities which require a Criminal Records Bureau (CRB) check are severely limited.

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An accounts clerk was dismissed from her employer, a solicitors firm, due to making a complaint to them that she believed client funds were being used to pay staff wages.  She had tried to present her case and represent herself as she was unable to get assistance under the Legal Help scheme for preparing her case.  She had to represent herself in court, and during one of the initial hearings had been warned by the judge that she was making a very serious allegation against a law firm and should think very carefully about it, and that if she continued with the claim she could face high costs, and that in any event he couldn’t really understand her claim as she had drafted it herself.  In essence – solicitors firms don’t do that sort of thing, and there must have been another reason for dismissing you, you must have done something wrong.

A few weeks later, the Solicitors Regulatory Authority closed down the Solicitors firm for exactly the reasons she had argued in court.  Had she been able to get legal help in formulating her claim, the tribunal might have taken her more seriously.

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A football fan was charged with pitch invasion. He was denied legal aid due to the fact it was a fine only matter and therefore it was decided (again by the administrators in the Magistrates office) that  there was no legal argument in his case.  His account was that he had been pushed onto the pitch during fan celebrations.  He was an away fan and so had to travel back to court for his case, a journey of over 150 miles round trip.  He attended on the first trial date, but was told that no witnesses were present for the prosecution, the case was adjourned off.  He then attended a second time to be told by the Prosecution that they now had cctv and it showed him clearly entering the pitch area and that he should plead guilty.  He pleaded guilty without watching the cctv  footage, taking the prosecution at their word.  he was fined and received a football banning order with very stringent conditions, such that he could not go into, or travel through his home town on match days for the next 5 years, even though he lived in his home town.  In effect creating house arrest on match days, and adding a football banning order (which is equated with violent offences by many employers) onto his CRB. He was also told to pay prosecution costs of £500 and did not get his travel to court reimbursed.

He contacted a solicitor to see if he could appeal his case.  The solicitor looked at the cctv and realised that it clearly showed him being pushed on to the pitch by others and that meant he had a defence.  He submitted an appeal, and the Prosecution decided not to challenge the appeal, which meant that the conviction and football banning order were void. Had he been entitled to legal representation he probably would have had the case thrown out prior to going to court and not have incurred the stress of the case, costs or travel costs.

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These are just a very small sample of the injustices that are already taking place due to the previous legal aid costs, and changes in procedures, such as giving the power to decide on legal aid to administrators with no legal knowledge.  Things will only get worse with the latest round of intended cuts.

  • Police station duty solicitor work is being tendered, and will be given to the lowest bidders, and only 4 firms in each area will be successful, and it is anticipated that at least one firm in each area will be an Alternative Business Service, so not even a solicitors firm.  The impact of this will be that when a person is arrested and taken to the police station (and lets face it, that can happen to any one of us at any time) they will not be able to choose their solicitor, they will be given the duty solicitor, who may already have a number of clients to see.  That will mean a delay for an arrested person before being seen, and also the fact that they will probably get a quick chat and nothing more, due to the “legal’ representative being overstretched with clients and underfunded.
  • If a person is charged with an offence, unless it is a serious offence, they will usually be bailed to attend court at a date in the future.  For most people this is the time they start asking round for word of mouth recommendations of lawyers.  After all, most people, if they have a choice, do not select the first builder they see advertised in the local newspaper when they want an extension built.  This will no longer be possible, once charged the person will have to stay with the firm representing them at the police station as their representative.  And those will be the, so called, lucky ones, as most defendants will now find that they no longer qualify for legal aid if they are working or members of their household are working.
  • In cases of specialism, having to stay with the firm who attended the police station can have a huge detrimental impact on the case. For example, football offences are quite an unusual area of law, and require specialist legal advice.  I work with such solicitors who pick up clients who have been represented in the police station by a duty solicitor but who then want a football specialist to take on their case.  As specialists we not only have the knowledge of the law, but also the policing tactics of the area, and connections with the football intelligence units and the football clubs and supporters networks.  All of this helps the case to run smoothly, and ensures the best possible representation for the football fan.  The intended cuts will mean that football fans can no longer chose their specialist lawyer, but will have to take pot luck with the lawyer they are given.
  • The tendering doesn’t stop at the police station, but also applies to the work in Magistrates Court.  In effect this will mean that in the small number of cases where a person does qualify for legal aid, they won’t  the defendant necessarily get quality they just get the cheapest.  A bit like the budget food brands, some of the items are reasonable, but most are of poor quality.  No longer will a defendant have the opportunity to meet their solicitor or talk to them on the phone before hand, but will just have to turn up on the day of court and hope for the best.  When a defendant’s livelihood is at stake due to the fact the State (with all it weight and money) is prosecuting, is this fair?
  • For the majority of those arrested and charged, they will now have to pay for their own legal representation, or represent themselves.

These are just some of the likely impact of the cuts, I shall write more in the coming weeks, but I don’t want to overburden my readers in one go.  The Government media spin states that the legal aid system is being abused by criminals who use it time and time again.  But my experience is that most of my clients are working, or have worked, and have paid their taxes and national insurance.  I hear the same thing time and time again..”I never thought this would happen to me’.  With the meagre legal aid system that the Government wants to provide..those ‘I never thought it would happen to me’ people are going to have to face the courts alone, and unprotected, and the consequences will be devastating not just on them but on those around them.

More information can be found on the intended cuts in the blog below this one.

So what can the public do to help?

  • Sign the Save UK Justice epetition Save UK Justice E-Petition
  • Write to your MP stating your concerns
  • Write to me at agurden@1gis.co.uk and I will compile the responses into a dossier to submit with a response to the Ministry of Justice (I will anonymise all responses before submitting)
  • If you have already suffered due to the legal aid cuts, let me know via email agurden@1gis.co.uk.
  • Spread the word to others and encourage them to act.

The consultation period for these intended cuts ends at the beginning of June 2013.  There is a lot of work going on behind the scene by lawyers and their representatives, but we need the help of the public..without you..legal aid is doomed.

ABOUT ME:  I am not a ‘Fat Cat’ lawyer.  Infact in terms of my earnings from legal work I hardly make a living, which is my choice as I undertake  a huge amount of pro bono work as well as doing a large amount of unpaid work on my legal aid cases.  In many cases, when I compare the amount of work I do to the amount I get paid on a legal aid rate, I do not make the minimum wage.

I am not fighting this Save UK Justice fight to protect my income, I am doing so to protect my current and future clients.  I fight fiercely for my clients in court, no matter what the case, or who they are, and I do not see this fight as any different.  However, this time round I need the assistance of those clients and future clients….Remember..one day it could be you..

Legal Aid – some thoughts

Barrister 999

Save legal aid logo

If you venture into the legal blogosphere right now you can see many erudite blogs about the Ministry of Justice’s proposed “reforms” of the legal aid system.

I’m taking to blogging for the first time to add my voice to the dissenters.

This is a difficult exercise. I am so incensed by the proposals and there are so many points to make that it is difficult to distil them down into any sensible article. I suppose the Powers That Be know that, as it helps them. If you can’t write your campaign slogan on a small yellow sticky note it’s going to be hard to win over the public.

The Consultation

In summary, the Ministry of Justice has unveiled a “consultation” on reforming legal aid,  mostly criminal legal aid. Other areas of practice are also hit, and some have already been hit hard in recent months – ask any family…

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