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The Grayling Plan - The Death of Pro Bono Work and our Appellate System

Mark Newby writes for The Justice Gap on why The Grayling Plan will seriously curtail pro bono work on miscarriage cases and lead to serious decay in our appellate system .

The proposed plans of Chris Grayling, secretary of state for justice, are causing for the first time in legal history a united front between barristers and solicitors. This united front is fighting against the machinery of the Tory party driving home messages that their legal aid reforms are all about the necessity of having to make cuts. After all, who would have any sympathy for those fat cat lawyers or prisoners living the life of riley behind bars?

Behind that PR message lie disturbing plans that emanate from a lack of understanding about the realities of the criminal justice system – in particular, ending the right of the client to choose their own lawyer. According to the Transforming Legal Aid paper, the number of solicitors’ firms will be slashed from 1,600 to 400. Bids under the model of competitive tendering, which must be 17.5% below existing rates, are expected to be made by the likes of Serco, G4S as well as Eddie Stobart.

Prison law and miscarriage of justice work has been wrapped up into these proposals . None of it has been effectively thought through. So, for example, the Secretary of State has made a great PR initiative over the rehabilitation of prisoners – the so-called rehabilitation revolution - but he is removing the help that prison lawyers give over re-categorisation and sentence planning which actually drives forward progress of inmates on their way towards rehabilitation.

Further his proposed minimum cut of 17.5%, and some of the rates he wants to impose, mean that the contracts themselves will be economically unviable for both large organisation and small organisation alike. There are many commentators who are writing on this subject, as well as blogs from many dedicated lawyers – this article does not need to concentrate on the insanity of the proposals.


Unintended consequences
I want to concentrate on what are perhaps the unintended consequences of these proposals – and the impact on pro bono work and the appellate system. The problem with having a secretary of state who, as a non-lawyer, has no inside knowledge of the criminal justice system is that when cuts are proposed he proceeds on an economic business model without any understanding of the system that we operate under.

Chris Grayling in his rush to introduce competition into the criminal justice system has failed to understand that we have always been in competition with each other driven by clients making choices based on our experience and expertise. That choice is the best market force to deliver a quality justice system.

Everything that is admired about our criminal justice system starts from client choice. Client choice drives skill and competence. If the need to compete is removed from the system because you get the clients in any event then there is no longer any need to differentiate between ‘Lawyer A’ or ‘Lawyer B’.

Minimum standards
All the new contract providers need to do is meet a minimum standard and once that is met it doesn’t matter how good or bad they are, peer review which has been a consistent failure in the past will not help Mr Grayling.

So the skill and expertise which drives lawyers to be great lawyers, to establish particular skills or niches is lost. For the Tory loyalist it also should be remembered that at the Bar those skills and talents might equally be used to defend a case one week and prosecute it the next.

Put even more simply, remove the skill and talent from the system and not only will many people be wrongfully convicted but those who should be convicted will walk free.

Its worth considering to begin with how this current level of dedication, skill and expertise converts itself in practice. At the earliest level, it includes the duty solicitor helping the police out with a bit of advice whilst they are at the police station or assisting the court with for example a mentally disordered offender who isn’t technically entitled to the duty solicitor. Equally taking case papers at the last minute and getting the job sorted so the court can meet its targets to make progress.

It is at the Crown Court that the impact of this loss of this skill and dedication will be the most telling. Day in and day out, trials and cases in preparation run due to the dedication of counsel or High Court advocates who go the extra mile. The Crown Court advocate invariably works long into the night preparing the case for the next day, giving up family events or trips when cases are listed at short notice or need extra preparation.

If the Secretary of State brings in the kind of cuts he he proposes, no bidders will be able to undertake the extra work which is presently undertaken. A great play has been made of the fact that Crown Court advocate fees, the graduated fee scheme, is not being cut. It has already been cut to the bone. Fees for some Crown cases are less than one third than that which they were 10 years ago – there is very little more Crown Court Advocates can give.

The consequences for those suffering a miscarriage of justice are more severe. The system of public funding for miscarriage work has already been severely limited with funding only being available to counsel after conviction to settle grounds if they so advised .

For the vast majority not granted leave to appeal they were left to find a new solicitor to review the case. The idea of choosing a legal aid lawyer by reputation will now be an old fashioned concept.

The funding for this was at the lowest level of funding in the whole criminal justice system – for example, just £300 allowed to investigate a murder conviction. Take off the proposed 17.5% cut guaranteed by the Secretary of State and this leads to a fee for potential review of £247.50.

There has already been an exodus from miscarriage of justice work by many fine lawyers and these level of fees are so unviable that few would be able to continue to do the work.

The reality is also that firms that do successfully undertake miscarriage of justice work can only do so on the basis that they operate a general crime contract. The drastic reduction in the supplier base will inevitably mean that the availability of good quality advice will be further reduced to a critical level beyond which the system will not be able to effectively operate. Any firm that loses its criminal contract will no longer be doing criminal appeal work in any form notwithstanding the talented appeal lawyers it may have.

The problem is worse than that. Those lawyers currently committed to miscarriage of justice work undertake a large amount of pro bono work (work done for free with no charge at all).

In fact, the Court of Appeal operates a system in which (due to restrictions imposed over a number of years) it rarely offers solicitors a representation order to undertake any substantial investigations or work to support an appeal . Similarly if counsel has the commitment to argue a case which the Court of Appeal is against, counsel will often be faced with having to pursue the application on a pro bono basis.

And deeper it goes: valuable organisations such as the Innocence Network UK, where law students assist the victims of wrongful conviction, rely upon supervising solicitors from firms across the UK giving their time and effort to these projects for free. There are also many other national support groups such as Mojo, Innocence and FACT UK to name but a few who will also suffer greatly from the loss of free legal support. Charities such as the newly formed Centre for Criminal Appeals are also going to encounter similar difficulties as the skill and talent disappear from the system.

The final nail in the coffin for those who find themselves on the wrong side of a conviction is the Government’s attempt in the forthcoming Anti-Social Behaviour Bill to change the test for miscarriage of justice compensation to irrevocably ensure that they will not achieve any compensation for what the state has done to them – see HERE.

The Criminal Cases Review Commission will also face problems as they have long recognised the value of legal support to many applicants with that support now being drastically reduced.

The Grayling Plan effectively exponentially increases the prospects of miscarriage of justice and removes from the system those individuals who were dedicated to fighting for justice.

Most of our notorious miscarriages of justice are built upon the appellant having to find a good lawyer, relying on a mixture of limited funding and lots of pro bono work and the support of experienced appeal counsel to deliver a strong appeal before the Court of Appeal Criminal Division.

Cases like the Birmingham Six, Sam Hallam, Ian Lawless, Barry George, Stefan Kiszco, Sean Hodgson and the Cardiff Three are cases built of the platform of a dedicated criminal justice service and one which our secretary of state is about to destroy.

This is all part of the invisible work of a profession which works tirelessly to act in the best interests of those that seek its help. The profession will never be amenable to the model of price competitive tendering. Once expertise is lost from our criminal justice system, it will be damaged beyond repair.

This Article was first published on the Justice Gap on 28th May 2013

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