The criminal lawyers’ strike and justice cuts: the wrong reforms

This blog was written in 2015 during my time as a guest contributor at the (now defunct) Orator online magazine.

The big-ticket news item of last month was industrial action. Notwithstanding the tube strikes, which my fellow Brummies might dismiss as metropolitan grief, frustrated criminal defence solicitors throughout the country have stopped accepting new cases. They were joined by criminal barristers a fortnight later. The tale is a familiar one; like the National Union of Teachers a year ago, the representative organisations of criminal lawyers protest changes presided over by the injudicious Michael Gove. 

The Ministry of Justice is currently rolling out three controversial projects. An efficiency-driven reorganisation of the criminal legal market, a cut to the pot of money that provides legal advice for the poor, and fees for criminal defendants form a triple-headed assault on the justice system. Though spun as nominal, these changes gamble with the fundamental values of the right to a fair trial and the rule of law. They undermine the ability of solicitors to represent their clients, and most importantly will see innocents convicted of crimes they did not commit. 

Regrettably, the wholesale re-organisation of the criminal legal market was done in spite of clear warnings by the Law Society, and 100,000 signatories to an online petition. The first proposal splits criminal defence solicitors’ work into two tiers. Over 1,000 criminal solicitor firms have lost their regular work, and a third of the market, 527 firms, are to provide duty attendance at police stations under new government contracts. I have previously written that where key interest groups are ignored, disastrous unintended consequences often result, and this strike is no exception. 

A government that purports to champion SMEs has created a fractured, impromptu market that ironically threatens the viability of small firms; it is thought that a reduced number of large firms will be given the new contracts to bear the burden of the market as a whole. 60% of firms have been completely uprooted and will compete on a level footing with less established practitioners for self-referrals from clients. This self-referral element represents the second “tier” of the new contracts. With a political point to prove, Sadiq Khan called this an “absurdity.” Though the Shadow Justice Secretary produced no clear alternative, he is correct. 

I invite you to picture the scene. 

A stressed suspect is asked which firm they would like to advise them before questioning. The suspect, who might suffer learning difficulties, mental health concerns or else be under gang-influenced duress, is eager to talk to ANYONE about their situation. Their mind races before reaching the name of a firm. They choose one next to their local pub, the firm that their cousin interned at, or perhaps a name offered by the police themselves, who know particular solicitors to be prone to intimidation from prior encounters. Instant decision making in the apprehensive environment of the police station will result in experienced duty solicitors being called upon less often. In the early stages of this proposal, there was a regrettable recommendation that the government select suspects’ solicitors, but this was fortunately dismissed.  

The second affront to justice that we are already witnessing relates to the widely publicised cut to the funding of legal representation to the poor, legal aid. It is crucial to the operating costs of firms. Turnover in the publicly funded world of criminal law has always been very tight, with many firms running to a marginal profit or a loss, and the headline figure of a year-on-year 8.75% cut scales every £100 fee in 2013 to an £83 fee in 2015. 

Forget the gilded attorneys of Netflix. Criminal defence solicitors are not self-employed professionals and are fee-earners; that £83 pays for the operation of their firm. Their fees pay for research, inducting trainees, maintenance and rent of offices, human resources, and the exacting cost of several journeys to-and-from the police station. 17.5% is catastrophic. Firms foresee redundancies, smaller caseloads and more over-the-phone service. Many will take a more realistic assessment of the situation and close their businesses. 

From the perspective of the individual, this is equally dire. Criminal defence solicitors are often paid below the national average for state-funded work. Their clients are the middling, the impoverished and the destitute. It is not inconceivable that criminal firms will struggle to attract talent in this context. Law graduates that beamed whilst reading ‘To Kill a Mockingbird’ will be put off by the ever-decreasing size of the breadcrumbs that such a sector can pay them. 

The third issue stems from The Criminal Justice and Courts Act 2015, which imposes costs upon individuals in criminal cases, rising where they claim innocence and contest their trials rather than pleading guilty immediately. At first, this might seem a useful way of drawing out full confessions earlier on, saving significant court costs, but a coalition of criminal justice organisations called the Justice Alliance believe this will encourage kangaroo justice. 

The justice system is not scientifically perfect (one of the successful arguments deployed against the death penalty) and this provides a perverse incentive to further distort it. Sanders and Young note that criminal adjudication is saturated with false guilty pleas where defendants seek mitigation of sentences believing they will be convicted regardless. I extrapolate this fear to previously convicted suspects pleading guilty to escape the compulsory charges, as opposed to admitting genuine guilt. Where an innocent person is convicted, three wrongs have been done: oppression of an individual, degradation of society and a failure to protect the victims of crime. 

The fine is, in many cases, unrealistic, disproportionate and socially crippling. Judge Alan Strange was forced by the legislation to hand a homeless shoplifter a £900 fine for stealing goods that did not amount to that value. In his closing remarks, he questioned the prospects of payment where the defendant owns nothing. The Howard League for Penal Reform is heavily opposed to the non-discretionary nature of the charge; the fee must be awarded in many cases against serial offenders for relatively minor offences, where the focus of sentencing should clearly be on rehabilitation of these marginalised sections of society. 

There are some highly laudable aspects of the government’s justice policy. The Serious Crime Act 2015 created a specific offence of revenge porn that has convicted several abusive former partners. It cast an extra-territorial jurisdiction over the offence of Female Genital Mutilation so that women and girls taken abroad for such procedures are still protected by law. The proceeds of financial crimes must now be paid back in a shorter timeframe, giving fraudsters less scope to further transgress post-conviction. All of that fails to make any difference, however, if the very foundations of the justice system are cracking. 

Prior to Cameron’s recent appointments of Chris Grayling and Michael Gove, all Lord Chancellors since the 17th century have been barristers, solicitors, judges or legal academics. The pre-2012 post-holders thus devoted their lives to the development of the profession. The status quo belies any such respect. Pre-cut funding for legal aid stood at around £2 billion a year, with the reduction taking it to £1.5 billion. In relative terms, this saving is equivalent to the cost of running the NHS for a few days. The last two Lord Chancellors have allowed this drop in the ocean of public spending to drown us all in a constitutional clash of politicians and lawyers, left suspects charged with rape and murder without representation during police questioning, and a strain on the government’s tiny pool of lawyers being forced to work in all corners of the country. 

The real budgetary issue at the Ministry of Justice is penal reform, which has been largely ignored in this disorder. It costs around £22,000 to keep an inmate in a category C jail for a year. England and Wales have the most saturated prison population in Western Europe. This represents a clear opportunity for increased community sentencing, redefinition of indictable criminal offences and the Law Society’s proposed efficiencies to mitigate the social costs of the criminal lawyer strikes. We might not have seen so many draconian punishments and miscarriages of justice if the savings had been more creative, and magistrates may not have resigned over the fees they must impose on the impecunious. Gove has an opportunity to make things right by negotiating with criminal barristers and solicitors at this juncture. They refuse to compromise on these fundamentals, and neither must he. The scales of justice tip at his whim. 

Published by abiodunolatokun

I am a campaigner, academic and lawyer. I run a number of projects which I hope will make the world a better place. Find out more and engage with them at abiodunolatokun.com.

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