Sitting in his lab in Petty France, #FailingGrayling is planning his experiment in criminal justice. It’s simple. Save money. How? Reduce the number of criminal defence legal aid contracts. Take away the choice a Defendant has. Make it a race to provide the cheapest service possible.
Why this is an experiment
Let’s face it, the Government has always contracted out legal defence work. The English and Welsh legal system, minus a very small (and costly) attempt at a public defender system has always relied on the private sector to provide defence services to individuals facing prosecution.
What is being suggested has never been done before in England and Wales. (Nor, for reasons I explain below is it done in America – contrary to some comments that it exists in the US already).
I also want to say at this stage, the Americans write scholarly articles, study (!) our legal aid system in their jurisprudence classes as the model example – soon they won’t.
What is being suggested
Effectively, the Government want to contract out to fewer providers who compete to provide criminal defence over large areas. The Defendant (if entitled to legal aid) does not get a choice of provider, he is allotted a criminal firm who represent him from interview thru trial.
The contracts will be provided to those ‘firms’ (which can include people like Tescos, Eddie Stobart, G4S) who offer to fulfil the contracts for the cheapest price in the tender.
How it works at the moment
If you’re charged with a criminal offence you have three choices. (1) You pick a criminal defence firm with a legal aid contract, if entitled to legal aid, they represent you. (2) You choose a criminal defence firm and you pay them out of your own pocket (or in very few cases your professional body/ trade union/insurer pays.) (3) You represent yourself.
So, like the NHS choices policy, you can shop around, decide which lawyer you want and providing they do legal aid work you can pick them. Or, you can pick a legal provider depending on what you can afford. Or, you go without.
How it will work
If you’ve got a job you’re unlikely to get legal aid. If you’ve got a mortgage it seems nigh on impossible.
If you’re lucky enough to get legal aid, you get Eddie Stobart allotted to you.
It’s important for the public to understand what #FailingGrayling is doing. There’s a few things which you need to know.
1) Choice. If you’re lucky enough to never come into the criminal justice system then you probably think, why should I care whether a criminal, or an accused person properly, can choose their lawyer. Well, the first thing you should be concerned about is, ironically, cost. There are families, individuals, who I have been representing since I’ve been in Barristerial nappies. They choose X as their solicitor and I am their barrister. The relationship that we have means that they trust my advice and they consider it and follow it. That relationship avoids trials when they are not needed and means that time (and such cost) can be saved within the system.
If you are lucky enough to get legal aid then you’d be sensible to shop around and choose a specialist solicitor to deal with your problem. A doctor is a doctor. They receive the same training.
The same goes for lawyers. A lawyer is a lawyer. However, we have layered training on top. So, I am a lawyer. I am a barrister. As a barrister I am a specialist Court litigator.
I am a criminal justice barrister. So, I am experienced in a wide spectrum of law related to the criminal justice system.
I am a criminal defence barrister. In terms of criminal law, I have specialised from day dot in criminal defence. I was taught by defence barristers.
I have various areas of defence specialism, for example, I have specialist knowledge in protest law, various aspects of aggressive trading practices, etc etc.
It is wrong to think that my instructing solicitors are like GPs. They are not. They too have specialist experience. For example, there’s a small cadre of solicitors with protest law experience, there’s a small cadre of solicitor who specialise in different types of business crime and so on.
Grayling’s plan takes away choice. That has certain implications in terms of public funded criminal defence work.
The most obvious is that public funded defenders will have to be more general. More general they are, less specialist knowledge they will have, less specialist knowledge then weaker the defence a Defendant will receive.
It also results in a bit of a lottery in terms of representation. The bigger contracts will probably be more lucrative, so G4S may get South West London. Comparatively, a smaller more traditional firm may get Cornwall. Post code justice will set in.
You’ve also got the horrible dilemma, is it right that some people can pay for an expert in a certain area can have ‘em, if you’re on the legal aid, then you get what you’re given. Justice?
So the experiment will be, with no relationship with their lawyers how much money will be wasted through dithering/disagreement, how much court time will be wasted because a general criminal lawyer doesn’t know the detail in a specialist area and how many people will be convicted because their lawyer doesn’t have the necessary speciality.
One of the great problems when this was attempted with family law was that highly specialised family law firms, i.e experts in childcare couldn’t get contracts despite their very high quality, why? Because for example they didn’t do legal aid divorce!
The Magic Circle law firms are of such a high quality because their partners and associates specialise in very narrow areas of law.
You’ll notice from the above that quality is at risk in terms of what a client receives.
The risk is wider though.
The experiment will have this effect: each solicitor will be faced with a choice, generally whether they stay in crime or leave it. If they stay, do they stay in a legal aid provider or do they switch to a private provider.
Quite frankly, some solicitors (especially the experienced ones) are not going to put on a Serco Defender uniform and compromise quality. Those more experienced solicitors will bugger off, be it into retirement, private firms, whatever.
Younger lawyers will retrain and go into other areas.
The death of so many firms of solicitors will send entire Barrister chambers into meltdown.
The impact of that is two fold:
a) The expertise will be lost over night. Justice is at risk because of this.
b) This is not an experiment, it’s a point of no return
Point of no return
Despite the fact that the public defender service in the pilot areas is more expensive than the local bar and local solicitors firms (proved), they are to be retained under the new system. Why? Because, the MoJ realise and recognise that the grand experiment might fail.
The problem is if it fails, that experience and expertise is gone. It can’t be got back over night. You can’t over night retrain a load of people up to be experts in the criminal law.
The other point, put well to me by my housemate is that, this will only save money over a short period. Why?
He’s an NHS manager. His trust contracts out cleaning for example. There are thousands of cleaning companies, if BigCorp gets the contract, they can be undercut in the next tender by OtherBigCorp. Why? Because there is a large quantity of work, individuals can easily be trained to do the job etc etc, market forces can be easily applied.
The problem with legal services is, once you knock out all the small firms and small chambers they’re gone, they’re not going to be able to compete with the big boys.
So, BigCorp can price out all the smaller traditional providers in the first tender. In that three years, people will all go their separate ways. You won’t get anybody back with the necessary size to compete with BigCorp. As such, BigCorp will have no competition. Once BigCorp have no competition what will they do? They’ll put up their prices.
So, you give a monopoly to a private company who are providing less of a service than what existed previously.
But it wasn’t Armageddon in America
Comments in robing rooms and in some quarters of the legal press is that Grayling is proposing a switch to a public defender type system, like America.
I have worked in an American public defender office, can I briefly explain why the American system is totally different and wouldn’t work here:
Simple principle there, can’t afford a lawyer, one will be appointed for you.
i) They don’t contract out work in bulk. Rarely in some cities and counties, you still have a panel of attorneys, who are given a case on a rota almost and they defend you. These are mostly used in very rural areas.
ii) A lot of the better public defenders have to run on a mix of public funds and charitable donations. In particular the Death Penalty Defenders. This really is how the legal team at the Howard League and the Prisoners’ Advice Service work in this country.
iii) Public defenders proper. They are public appointed, Government employees who are contracted full time as civil servants if you like, to defend people.
So Grayling is not switching to the American system. If somebody suggests that to you, they are wrong. The catering in a hospital or a school isn’t the same as the entire criminal defence system!
This is, an experiment. And what has to be realised is that some experiments go wrong. The Government and tabloid press might see criminal lawyers as rats, but they’re wrong to think that you can experiment on us without a consequence.
Unlike rats, there are a finite number of us.
But like rats, we know when there’s a sinking ship.
I implore anyone in politics to challenge this experiment, the consequences of it going wrong will be dire for criminal justice.