I write as a lawyer who
acts very rarely with the benefit and burden of legal aid – I am a lawyer who
acts in cases usually involving property, financial and probate disputes, and
legal aid is no longer available for almost all of the cases that I act
in. I was uncomfortable with that withdrawal – but I did not see it as an
attack on access to justice or on justice itself, and my clients have found
methods around the withdrawal of public funding that include the increased use
of and resort to insurance policies and the use of other methods of funding
such as conditional fee arrangements.
As to the proposed criminal
legal aid reforms; it is interesting to note that with earlier reforms, such as
the introduction of fixed fees, the fees then introduced have not even kept up
with inflation. As a result, many junior barristers find themselves
working very hard (and I know many other people do too) with very little and
reducing rewards. The problem with criminal legal aid appears to be that
proportion of legal aid that is taken up by very high costs cases. These
cases involve the most serious criminal cases and very often some of the most
serious issues facing our community.
Over the centuries, we have
many things as a community to thank lawyers for. Essentially, it was the
lawyers that persuaded Kings and their Councils and Courts to provide for the
liberties and freedoms that we all take comfort in. Many of these
triumphs were achieved many years ago, but the essential features of our
criminal jurisprudence underpin many of those liberties and freedoms.
More recently, we have
found Parliament legislating to deal with perceived wrongs done in difficult
criminal cases. Whether it is the inferences that can be drawn from
silence now (criminal justice legislation in the mid 1990s) or the introduction
of new criminal offences and the confiscation of assets from criminals who
cannot satisfy a court as to the legitimate source of funding of those assets,
these developments have almost always increased the costs associated with
In the eighteenth century,
the cross examination of witnesses to test evidence in criminal trials
developed. Today, that cross examination is used to ensure that the
evidence is understood with clarity and where that evidence is suspect it has
the possibility of being demonstrated to a jury that it is so suspect.
Do we really want to return
to a time when evidence was not properly tested? For those of you who
assert that the innocent need fear nothing, I would simply say that this straw
man is one that is not worthy as a response. For under our system of
justice every man and woman who is accused of a crime is innocent until proved
guilty. That principle is very ancient indeed – and we should be wary of
any argument that seeks to undermine it.
Should the state choose who
represents someone in court? My view is that should not be the
case. In criminal cases, the state is a party, and a party should not have
the power to insist on who represents the other side any more than it should be
a judge in its own cause. This latter maxim is the very reason why we
have an independent judiciary. It is the reason why it is very difficult
to sack a Judge. It underpins the very rule of law. If one
understands that Parliament is the ultimate court in the land, it is the very
argument that led to the civil war and ultimately to the execution of a King.
The need for properly administered judicial
systems is not a matter of defending vested interests – it is defending the
very nature of those judicial systems.
Will they continue to be seen as impartial if the economics of representation
are placed ahead of the interests of a fair, balanced and blind justice?