GRAYLING WRECKS JUSTICE SYSTEM. A DAMNING INDICTMENT FROM PETER COOPER

Peter is a strong and active voice in St Ives Chambers in Birmingham.

This is a comprehensive analysis of PCT, its shortcomings, the potential disaster it poses for our Criminal Justice System, and what YOU, yes, YOU can do to prevent it.

What is happening?

Devastating changes to our criminal justice system are being planned by the so called “Justice Secretary” and Lord Chancellor, Chris Grayling. A thousand years in the making, and yet fundamental freedoms will be destroyed at a stroke, without even a vote in Parliament, if he gets his way. Mr Grayling is the first holder of his office in modern times not to have a legal qualification, and it shows. His proposals will have profound effects upon any citizens who find themselves wrongly accused of an offence. The criminal justice system will never be the same again if these proposals become law, and they must be stopped. An executive summary follows. For those with more time there is additional information, with real life examples, on succeeding pages. Please do not leave this page without following the two attached links. The first enables you to sign a government e-petition: 100,000 signatures will ensure a debate in parliament. The second will take you to a campaign page hosted by campaigning consumer group 38 Degrees. Signatures to both will take you only a few minutes and will show the government that a fair legal system is widely supported and valued.

https://submissions.epetitions.direct.gov.uk/petitions/48628/signature/new

http://you.38degrees.org.uk/petitions/save-legal-aid-say-no-to-cut-price-justice

The Executive Summary

No choice of lawyer for persons accused of crime (or, as Grayling has publicly described them, “criminals”). Criminal defence franchises to be allocated to the lowest bidder in a ‘race to the bottom’. All bids must be at least 17.5% less than existing solicitors’ rates (already slashed in recent years) but the lowest bid will win. Individual accused to be allocated to one of these “lowest bidder” franchises according to name, or date of birth, or perhaps postcode. No change of representative allowed save in exceptional circumstances. No incentive to do a good job: the contracts will guarantee the successful “lowest bidder” franchise a specified share of the work for 3 to 5 years. No opportunity for an accused to use a trusted family solicitor with a good track record. No access to legal aid for anyone with a combined household income of more than about £37,000 a year. Note that anyone who pays for proper representation and is acquitted after trial cannot recover their actual legal expenses, but only the derisory equivalent of legal aid rates. Advocates fees (already slashed for those doing the most serious work by about 40% from their 1997 levels: yes, 1997, a full 16 years ago!) to be slashed again, by about 30% in many cases. Any advocate acting for a defendant in a long trial to be, in effect, ‘punished’ by reducing their daily fee to a figure which can be as low as £14 a day.

No-one of ability or experience could do a proper job and make a living on these terms. Shysters will flood in and deliver a “go through the motions” service: minimal ability, minimal effort, minimal cost. A sham of a justice system. Grayling’s own staff, at an embarrassing “road show” in Reading on 7th May 2013, were quite unable to point to any provisions in these proposals which were capable of ensuring quality of representation. See the excellent Guardian article by veteran legal commentator Joshua Rozenberg at:

http://www.guardian.co.uk/law/2013/may/08/legal-aid-tendering-moj?mobile-redirect=false

So please follow the above links and sign both the above petitions. If you want to know more, please feel free to read on.

Basic British freedoms

Our legal system has long been the envy of the world. It has, in fact, been the model for many of the best modern legal systems across the globe. It is easy to forget that the freedoms which we take for granted rest principally upon five things: our right to vote; free universal education; the NHS; freedom of speech; and our legal system. Take any one of those away and the country would never be the same again. Only a man with no knowledge or understanding of our legal system could dream of wrecking it in this way. Chris Grayling is just such a man. If he is not stopped, he will do untold damage, which will potentially affect each one of us.

Dodgy courts abroad

We regularly read of troubling miscarriages of justice in foreign courts. Some involve British citizens. Many countries have few or none of the safeguards we take for granted. People are locked up without trial (even in the United States: Guantanamo Bay). Confessions made under torture or duress are admitted in evidence. Judges bend to political influence or bribery. Unreliable witnesses are not properly challenged. Lying or corrupt police officers are routinely believed. Robust and independent lawyers are rare, and are themselves at risk of intimidation, imprisonment or violence. Legal aid is non-existent. Where there is a form of legal aid, officials can decide which lawyer will represent an accused. Those lawyers can be at best complacent, and at worst, corrupt and complicit. Unsafe convictions are met with barbaric sentences.

It is the constant vigilance of criminal lawyers over many years which has slowly eradicated most of these abuses from our own criminal justice system. Our system is not perfect, and can get things wrong, but those cases are a tiny minority. Recent savage cuts in criminal legal aid fees have been damaging, and have driven many talented lawyers away from criminal work, but in the midst of our financial crisis most legal aid lawyers accepted that some cuts were inevitable. We have now borne more than our share. Quality of representation has already been put at risk, but even now an innocent person wrongly accused in a British court can choose their own lawyer and will usually receive proper representation. Corrupt or tainted evidence will usually be challenged, exposed and discredited. Governments cannot foist a particular lawyer on an accused, and have no say in the outcome of criminal trials. All this is put at risk by Grayling.

Shyster & Co: the lowest bidder

Mr Grayling, without any legal background, training or understanding, now proposes to remove an individual’s right to choose who represents him or her in criminal proceedings. A representative of sorts will be provided: but the government will decide who that is. Accused persons will not be able to choose their own solicitor. Instead, they will be forced to use ‘Eddie Stobart Law’, or ‘Tesco Law’, or ‘Co-op Law’ or ‘Shyster & Co’: in short, whichever concern has successfully bid a lower sum than all their competitors to run the local legal aid franchise. This is nothing less than a “race to the bottom” in terms of quality. There will be no incentive to provide a quality service: quite the opposite. Only by operating in a superficial and impersonal way, using cheap, poorly qualified or unqualified staff, with the briefest of client consultations, could these concerns make a profit. There will be no incentive to do a good job, to win repeat business: repeat business will be guaranteed, because all competition will have been removed. “Do it on the cheap” will be the only motto, and any other approach would be financial suicide.

It is not just in law that this would be a disaster. Imagine the principle being applied to other areas of vital public service. What would happen if your own GP’s surgery was to be run by the company which bid the lowest sum for the local contract, and if you could not then choose to go elsewhere? What if the local police force was to be franchised out in the same way? Or your local primary or secondary school? There would be public outrage. Yet why, if the government succeed in bringing the principle into effect in one area of public service, would they not eventually look to apply it elsewhere? The principle is exactly the same.

Fat cat lawyers

Some of the proposed changes in fees are laughable. Some long criminal trials heard in this country came about because the prosecution chose to group together more defendants or more charges than was sensible. Defendants cannot choose to be tried separately, and large numbers of defendants in a given case will inevitably result in a long, unwieldy trial. It is now proposed that those defending in such cases should be ‘punished’ by being paid less with each passing day of the trial. In some cases, that would result in a daily fee of just £14 a day (before tax and expenses!) when a trial has lasted 8 weeks. This, for qualified lawyers, would be a fraction of the minimum wage for an unqualified teenage employee. It is nothing less than a government-led attempt to “starve out” criminal advocates. “Oh, you want to do a proper job? Fine. We will stop paying you.” Many weeks into a criminal trial in which I defended in 2011, a young complainant finally admitted having manufactured a false allegation against Mr X, the man whom I represented. She lied, she told the jury, to protect the true culprit. The true culprit is now serving many years in prison. On the latest proposals, someone caught up in a long trial like Mr X would only be represented if a barrister was willing to act for next to nothing.

Grayling is already bending the truth to get his way. Anticipating attacks on his proposals, he has begun recycling the usual tired old headlines about fat cat lawyers. Those headlines are living in the past. Grayling lists a handful of barristers who have made huge sums from legal aid in the past. They are few, and becoming fewer. Often they have appeared in one wholly exceptional case, which they worked on for years, and then waited years more to be paid for it. Grayling’s own figures show that the majority of criminal advocates (65%) earn less than £50,000 in a year from legal aid, before expenses and tax. After expenses, such figures represent a pre-tax income of perhaps £30,000 to £35,000. No holiday pay, no pension. No tax avoidance (cf Starbucks, N-Power or Google). It is time to forget the stereotypes. Are there rich barristers? Yes. They do other sorts of work. Planning work. Corporate work. Or perhaps being privately paid to represent a John Terry or a Chris Huhne. The average criminal barrister works all hours to make ends meet, drives a Skoda not a Jaguar, and takes two or three weeks holiday a year. Grayling might argue, correctly, that the recent exposure of a few MP’s as corrupt criminals does not mean that every MP is a corrupt criminal. High earnings in the past by a tiny minority of criminal barristers cannot alter the fact that most now make modest incomes by working punishingly long hours.

The real Fat Cats

Of course, it goes without saying that if Mr Grayling ever finds himself accused of a criminal offence, he will be able to pay privately for the very best lawyers, just as Chris Huhne did. The right to choose an independent, properly qualified lawyer, will exist only for the rich and privileged few, like Grayling. Small wonder that he is untroubled. “Let them use Eddie Stobart”.

Will it affect you?

It might. It is tempting, as law abiding citizens, to think that we and those close to us won’t find ourselves before a court. Yet there are many ways in which it can happen. Anyone who drives a car is just one serious accident away from the possibility of being charged with causing death by dangerous driving. People convicted of the latter almost invariably go to prison for years, however blameless their past. Professional criminals use false number plates, carefully matched to the make, model and colour of a car which they have seen in their own area: that car could be yours or mine. In offences of street violence, naïve youngsters can find themselves on the fringe of offending by others, and mistakenly identified as being involved, when they were innocent bystanders. Heavy handed police officers can drag the wrong man out of a football crowd. Identity theft can leave any of us falsely accused of fraud or financial crimes, when someone else gave our details. Jilted lovers cry rape. Individuals find themselves in the dock through taking desperate measures to defend themselves and their family against intruders. The list goes on.

Grayling will not be troubled by these examples, nor by the true cases set out below. He has publicly referred to accused individuals as “Criminals”. It is not that he forgot the central, sacrosanct principle of British Justice (“innocent until proved guilty”): he never learned it in the first place. That crass slip of the tongue was more than just a schoolboy howler by a minister promoted beyond his abilities. Rather, it revealed his true attitude to criminal proceedings, and shows why the proposals of such a dangerous, prejudiced man, must be rejected.

Real life examples

A year or two ago I represented D, a man who had suffered terrible injuries in a car accident on a rural road. The man in the other vehicle died in the accident. D was knocked unconscious in the accident and had no memory of the final seconds before impact. An apparently “independent” witness in a third vehicle blamed D, who was charged with causing death by dangerous driving. D was a man of good character, who had never been convicted of even a speeding offence before. He was now facing a prison sentence of perhaps three or four years. A previous lawyer had told D that he had no chance of being acquitted and should plead guilty. Under Grayling’s proposals, he would have no choice of representation. It was clear, however, to his chosen legal representative that something was not right. That representative instructed me to represent D at trial. The case was properly investigated, expert evidence was obtained, and the “independent” witness and her son were cross-examined. D was acquitted, and, in the words of the trial judge, was proved not to have been at fault. All the indications were that the person really responsible was the “independent” witness, who had performed a dangerous overtaking manoeuvre.

Another example was K, aged 17. This young man was out with friends on a Saturday night when some of his companions were drawn into an argument with a second group of lads. Tempers flared. A lad from the second group spat at a girl. Two of K’s friends struck that lad, knocking him to the ground. They both kicked him to the head and he suffered a fractured skull and brain damage. K was on the fringe of the group and had never swung a blow or kicked anybody. Friends of the injured man however remembered his distinctive clothing. He was pointed out to a policeman and arrested. He ended up charged with causing grievous bodily harm with intent. He had never been in trouble, was a high achiever at school, and was expected to go to university the following year. His caring parents, not wealthy people, were appalled to learn that he faced 7 or 8 years in prison if convicted. He was properly represented, and independent witnesses were traced. The flawed identification was exposed and he was acquitted.

Of course, as a criminal barrister, I represent many individuals who are neither pleasant nor very deserving. Even they need proper representation. They are, for example, at risk of being accused of things which they have not done. People with criminal records sometimes fall under suspicion precisely because of their past, and not because there is proper evidence against them. In this country we spend far more on housing prisoners than we do on paying lawyers to represent them. It is worthwhile, in all our interests, to ensure that we imprison guilty people, but only guilty people.

What can you do?

Sign the two e-petitions

https://submissions.epetitions.direct.gov.uk/petitions/48628/signature/new

and

http://you.38degrees.org.uk/petitions/save-legal-aid-say-no-to-cut-price-justice

Make an appointment to see your MP. If you are unsure what to say, use the points in this article. If MP’s get visits from even a few different constituents, they get cold feet and look into things properly. If you can’t see your MP, write to him/her. Don’t sit back and do nothing. If the government get away with the ‘Eddie Stobart’ model of providing legal services, one of our most priceless national assets will be lost forever. Eddie Stobart Healthcare or the Eddie Stobart High School may be next, coming to a neighbourhood near you. If they apply for a franchise, would Eddie Stobart be a fit and proper company to do this kind of work? By all means read the following link, http://www.guardian.co.uk/business/2013/apr/11/stobart-lorry-chief-contempt-trial , but please bear in mind what Chris Grayling would not: everyone is innocent until proved guilty.

Peter Cooper

May 2013