In an adversarial criminal justice system like the one we have in England and Wales, access to justice depends on access to lawyers. The court system is complicated and confusing, a heady mix of archaic language, convoluted conventions and specialist hearings; any ordinary person drawn into it as a suspect or a defendant requires an expert who can guide them through and act as a translator. Most people experience the criminal process as a client, and justice is mediated through lawyers. Of course, lawyers’ fees are generally beyond the means of those who most need them – meaning they often need financial assistance from the state.
Providing the public with legally aided criminal defence lawyers upholds a fundamental component of our democracy: the “equality of arms” ensures citizens can compete with the might of the state, as representation is provided on both sides of the equation. This is a basic human right. Awareness of the challenges that would come from Europe should this principle be eroded has meant that criminal legal aid escaped relatively unscathed from the swingeing public sector cuts that have already decimated civil legal aid.
That is, until now. With markedly less regard for the Human Rights Act than his predecessor Kenneth Clarke, the justice secretary, Chris Grayling, is keen to make significant changes to the funding of criminal lawyers, following the closing of the Transforming Legal Aid consultation. The most significant element of that process has been the government’s agreement with the Law Society to enact an average cut of 17.5% to criminal legal aid fees. The aim is to shave some £220m off the legal aid budget.
The Law Society agreed to these cuts as the least worst option, preferable to reverse auction tendering or ending defendant choice of law firms. Member lawyers, though, are up in arms about the damage this will do to the profession and last Tuesday passed a motion of no confidence in their leadership for making the deal.
The cuts might reduce the 1,600 criminal legal aid firms to a rump of just 300. Closing down so many legal firms, or forcing smaller firms to merge, will create advice deserts -– whole tracts of the country lacking access to lawyers.
The loss of the local law firm has serious implications for procedural justice, and for the dignity with which people who pass through the criminal justice system are treated. As things currently stand, most lawyers have regular clients, whose often complex needs (educational difficulties, mental health problems, substance addictions) they understand and can accommodate. At the very least, local lawyers know the communities from which the clients are drawn, and so can understand the cultural and environmental conditions that shape them.
For those defendants who still have access to lawyers, the service they receive will likely be of a diminished quality. My own research on the lawyer-client relationship in firms that rely on criminal legal aid suggests that this may be a perilous situation for the principle of justice and for all those entering the justice system who must rely on state funding. Even before any cuts were made, it was already apparent that lawyers felt themselves pressured into delivering a substandard service.
A major feature of current practice, for example, is lawyers’ tendency to assume their clients’ factual guilt). While this to some degree reflects regular clients’ bad reputations, it is also the effect of economics: in a fixed-fee system, the quicker a client’s case is terminated, the more efficient it is for the firm. With firms worried about earning enough to maintain themselves, these financial imperatives become internalised as motivating factors, and can see clients persuaded or nudged into early guilty pleas for extraneous reasons.
The degradation of criminal defence has been facilitated by a prevailing ideology of consumerism, with the pillars of the welfare state subjected to the venality of the profit motive. State services are increasingly commodified, reduced to mere matters of consumption. The state’s obligation to care for the common good is corrupted when exposed to market imperatives – rather than protecting citizens, the aim is increasingly to reduce prices by delivering standardised products that can be quickly, cheaply and routinely dispensed.
Put simply, legal practice has become standardised; like some neo-Fordist assembly line, it has been reduced to a sausage factory. Sausage factories reduce their diverse raw materials into cheap, uniform, easy-to-manage products, making them suitable for standard packing, storage and display in the marketplace – and criminal defendants have become similarly homogenised.
More and more, law firms favour high turnover and swift throughput of clients, with little individual contact and fragmented representation. Clients are reduced to offal, the bits that nobody really wants – at least not in non-standard, awkward shapes and sizes. They assume the status of a product. Once we think of the criminal process as a production line, the details of the Ministry of Justice’s proposed cuts start to make internal sense.
Alongside the overall fee cut, the changes will also implement a system of perverse financial incentives. For example, a simple guilty plea in the Magistrates’ Court (such as common assault) will reward lawyers with a 17% pay rise, while a client pleading guilty to a standard actual bodily harm charge in a Crown Court can earn their lawyer a 20% fee increase.
This means lawyers will be given financial encouragement to persuade clients to plead guilty early on, but will lose money if cases go to trial. The risk is that guilty defendants become products to be churned out rather than human beings whose rights need be upheld. This is a perversion of justice and should not be allowed, let alone encouraged, in a democratic society.