Comment: Legal aid reforms are not the justice intended in Magna Carta

By Jon Black

A day of reckoning is upon us. Today sees the battle for the true legacy of Magna Carta, that medieval document which sowed the seeds of civil liberties and democracy. On the one side: corporate Britain PLC extolling the virtuous marketability of our proud history of the rule of law, our fine courts and justice system – and the joys of free enterprise. On the other side, a mere stone's throw from the official Global Law Summit, also in Westminster: the anti-event Not the Global Law Summit. Dissenting justice campaigners, legal aid lawyers and those who've witnessed the rot setting in (from swingeing legal aid cuts, curbs to judicial review, an interpreting service in freefall, probation chaos and threats to withdraw Britain from the Human Rights Act) will be highlighting the urgent need to halt the destruction of our justice system and abide by the principles of the medieval charter.     

The protest has been made all the more urgent following the disappointing ruling against our legal challenge. Sadly, two high court judges took the view that there was nothing illegal about the contracts for emergency solicitors in police stations and magistrates' courts and that it isn't their job to interfere with government policy. It’s not my place to criticise and comment on the content of the judges’ decision but suffice to say, we're doing everything we can to appeal the ruling. The prospects for justice if these cuts and contracts go through are so bleak that cutting through the hype and largesse of the global law summit, I have to spell out the future.

Let's shine a light on the effect at grass roots level. Imagine yourself at a police station in rural Wales. Wales will be one of the worst hit areas if the new legal aid solicitor contracts are pushed through. There simply won't be enough legal aid solicitors still in business able to cover the emergency police station duties.  That's what a legal advice desert looks like – three people are arrested on related charges, they each need a lawyer. But thanks to this government's vision of a 'transformed legal aid system' in Norfolk, Wales and parts of London there won't be a publicly funded lawyer around to give critical advice at a critical time. 

One option is for the defendants to settle for a quick fix guilty plea in the absence of any advice. Alternatively, they can buy in a private lawyer. This is not feasible for your average defendant of limited means. Is this really the place to cut corners when what is said or not said in police interview can be the difference between a guilty and not guilty verdict? Where the ancient principle of a fair defence is critical to maintain the cherished assumption that the accused is innocent until proven guilty?

You don’t need to be a lawyer to see that, with so many cracks built into the bleak justice of the future, a sharp increase of miscarriages of justice, costly appeals, unrepresented defendants in our courts will become commonplace.

At every opportunity an MoJ spokesperson repeats the hollow mantra that anyone who needs access to justice will get it. And yet in a jaw-dropping moment in the high court the lord chancellor’s own QC admitted that the government's masterplan for legal advice could go very wrong in some places. When questioned about whether a contingency plan existed, the embarrassed admission came that it wasn't yet known. A case of Plan A, Plan A and there can never be a Plan B.

And yet there is a threatening Plan B – albeit unformed. It's the dirty word of the criminal defence community – the controversial Public Defender Service – paid for and run by the Ministry of Justice. The ultimate weapon but one not to be laughed off. We all know that the CPS is state run, as of course is the police. 

The PDS was introduced in 2001 when there was a big shake-up of legal aid defence and was in the background in case of market failure. Ironically, the PDS itself has been found to be unprofitable and is now propped up by taxpayers' money, waiting in the sidelines to be rapidly scaled up if things go embarrassingly wrong with this latest cost-saving legal aid brainwave. 

The veiled threat of the state both prosecuting and defending – US style – is a menacing threat. I shudder to think of the harms and injustices.

It's such images of the rubble of justice left in the wake of the dangerous slash and burn approach to a cornerstone of our justice system which fuels two rival celebrations of Magna Carta. When the barons squeezed concessions out of a reluctant King John back in 1215, out popped the foundations of justice as it’s supposed to be- the right to a fair defence and a fair trial. 

As Mr Cameron and Mr Grayling glad-hand and grandstand at their international legal business fair, remember the real meaning of Magna Carta's lines 'To no one will we sell, to no one deny or delay right or justice'. Remember the defendants in the police stations in a legal advice desert who can't afford to buy themselves a defence. Remember the rubble of injustice that has been created by misinformed 'transformation' after transformation within our now fragile justice system.    

Jon Black is president of the London Criminal Courts Solicitors' Association. He is a senior criminal defence lawyer and solicitor advocate and partner at BSB solicitor firm in London.

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