For want of a fee, justice was lost

For want of a nail the shoe was lost…

The Ministry of Justice could learn something from this nursery rhyme as it continues slashing the criminal legal aid rates.

A current version might be:

For want of a fee the advocate was lost.
For want of an advocate the case was lost.
For want of a case, justice was lost.
For want of justice, civilisation was lost.
And all for the want of a fee.

The fee cuts of up to 30% on lawyers whose fees have already been reduced by more than 30% over the past six years have pushed lawyers beyond their limit of quiet acceptance. The start of the new legal year witnessed unprecedented protests by the combined legal profession.

Here, it is worth digressing to note the absence of that consummate politician that is the justice secretary Chris (I want to be prime minister) Grayling from the column inches reporting the action. Instead the newly appointed and poorly briefed minister Shailesh Vara was rolled out to incant the ministry’s lines.

The justice secretary clearly had more important things to do than deal with a situation that could bring the criminal justice system to knees.

More action seems likely as the government appears resolute in its desire to cut the criminal legal aid budget further in order to make its questionable savings.

The 30% fee cuts already introduced for advocates taking on the most serious and complex cases could be about to blow up in the ministry’s face.

Advocates have mostly refused to undertake very high cost cases (VHCCs) since the fee cuts came in, in December, and the ministry appears entirely without a plan to deal with it.

Asked on several occasions what they are going to do to ensure cases are prosecuted, ministers - most recently (in a display that made all present wince in embarrassment), Shailesh Vara at the All Party Parliamentary Group on legal aid - repeatedly say they will cross that bridge when they come to it.

The first boards of that bridge have surely been reached. Solicitors in an eight-handed £4.5m fraud trial have been unable to find advocates to represent the defendants, despite contacting over 60 chambers.

So far the ministry’s only response involves attempting to beef up the Public Defender Service – which costs twice as much as private practice lawyers - and civil servants at the Legal Aid Agency downgrading the case so it is no longer a VHCC, and contacting chambers directly to see if their counsel will do the work. They will not.

The trial judge, His Honour Judge Leonard, will find himself in the unenviable position of having to stay the case or dismiss any abuse of process argument. Neither is an attractive prospect. 

This will certainly not be the only trial in this position and it will not play well for the ministry with the red tops (not to mention its secretary of state’s prime ministerial ambitions) if murderers and child abusers go unprosecuted.

The ministry needs to come up with a plan sharpish, as the bar is showing every sign that its unity of purpose will remain.

It appears a false economy to allow trials and the justice system to collapse for want of paying advocates an appropriate fee. Grayling would do well to go back to the nursery and reflect on the little rhyme.

Catherine Baksi is a Gazette reporter