England’s 800-year-old tradition of fair and open access to justice for all will be destroyed by sweeping Government plans to reform criminal legal aid, senior judges and magistrates warn today.
In an attempt to save £200 million by 2018, the Justice Secretary Chris Grayling plans to stop paying solicitors for the work they do – and instead give them a fixed fee for each case they represent.
Lawyers will be incentivised to recommend guilty pleas to their clients, a coalition of judges, magistrates and civil liberties groups warns. Their fears are backed by the Criminal Cases Review Commission, which investigates miscarriages of justice on behalf of the Government.
Criminal suspects will lose their rights to choose or dismiss a solicitor, and the number of accredited legal aid firms will drop from 1,600 to less than 400 – raising the possibility that hundreds of small high street firms could be replaced by huge contractors like G4S.
“The Government is creating a system where potentially the same company could defend you, lock you up in prison and then rehabilitate you when you come out,” said one judicial source.
“It is the complete privatisation of justice.”
The current President of the Supreme Court, Lord Neuberger of Abbotsbury, is understood to have deep reservations about Mr Grayling’s plan. Sources suggest that he believes it undermines the right – first enshrined in the Magna Carta – that “to no man shall we deny justice”.
The former Lord Chief Justice Lord Woolf told The Independent on Sunday that the proposals would lead to a “factory of mass-produced justice” and miscarriages of justice.
“There have never been votes in crusading on behalf of people who are maybe guilty,” he said.
“But the principle of fair justice must be important to us as a society. The rule of law and our system of justice is one of the areas where up until now we have still been able to look with pride.
“The long-term effects of this will be very serious and once the damage is done it will be very, very hard to put right.”
The plans would eradicate small firms of lawyers who understood the needs and problems of their clients, warned John Fassenfelt, chairman of the Magistrates Association, which represents 28,000 voluntary justices who see the bulk of criminal cases before the courts.
“These changes will mean we will see larger firms like G4S come in and gobble up the smaller firms,” he said. “That will not be good for community justice.
“Often legal aid is looked at in the context of big serious cases at the Crown Court and not looked at the 95 per cent of the cases which come before us.
“But we see cases of solicitors representing individuals time and time again and who know about their individual problems and circumstances. That will fade away and I don’t think defendants will get the representation they deserve.”
Mr Grayling’s controversial measures are contained in a document quietly released on the day of Baroness Thatcher’s death and do not require a vote in Parliament.
Under the plans which are due to come into effect next year:
* Criminal legal fees will be cut across the board by nearly 20 per cent.
* Fixed fees for handling cases will replace graduated fees that depend on how far the case progresses.
* Companies will be invited to bid for around 400 legal aid contracts split up around the country – replacing the 1,600 firms accredited at present. Big firms will be able to bid for multiple contacts, making money through economies of scale.
* Clients will no longer be able to choose who represents them – instead being allocated a firm from those accredited. They will only be able to request another solicitor in “exceptional circumstances” and will not be entitled to have the same representation that they may have done in the past.
* Barristers will be paid the same Crown Court rates irrespective of whether there is an early or a late guilty plea or a short trial.
The Ministry of Justice admits in its own small print that the Grayling plans will lead to less effective representation.
“We anticipate the proposed competition model may have an adverse impact on clients,” the MoJ consultation states, “because they would no longer have the choice of selecting any provider to deliver criminal legal aid services.”
The MoJ adds: “Fee schemes that are largely based on fixed fees mean that providers might make a profit on the fixed fee because relatively little work was required on the case. However, in other cases which required more work, they could make a loss.”
Lucy Scott-Moncrieff, President of the Law Society, warned that the Government’s “destructive” plan would create a rift between clients and lawyers. “The idea that you’ll get the paid the same fee for a guilty plea as you will for a two-day hearing puts the interest of the defendant and the lawyer in conflict with each other, which hardly seems healthy,” she said.
“We are willing to work with the Ministry of Justice to get costs down but what is being proposed here could lead to collapse of justice.”
Others plan to object. The Criminal Cases Review Commission, a public body set up by the Government to investigate possible miscarriages of justice, is drawing up its response.
“It stands to reason that if you deplete the availability of good advice at important stages in a prosecution you increase the risk that something will go wrong,” said one source.
“There are already incentives within the criminal justice system for people to plead guilty – without making it in the financial interests of a defendant’s lawyers to encourage them not to defend themselves.”
The Justice Secretary Chris Grayling said: “We cannot close our eyes to the fact legal aid is still costing too much. It is not free money… we must ensure we get the very best value for every penny spent.”
An MoJ spokesman added: “Decisions on the question of plea are ultimately for the individual defendant. We do not believe that lawyers will abandon their professional obligations to clients.”
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