By Kalsoom Shah
The new government can expect nothing but challenges in the coming months in terms of immigration, tax, the economy and banking reform. Mr Cameron and Mr Clegg surprisingly appear to have an affinity which bodes well for the idea that they insist is accurate, that they are now thinking in terms of the national interest being of more importance and significance than individual party concerns. In terms of criminal law then what is in the national interest?
The principal issue of concern is legal aid, the financial basis of the majority of a criminal lawyers practice. There are to be changes to legal aid in respect of criminal matters, which could further reduce the fixed fees attached to attendances at police stations and magistrates court for the criminal solicitor. This reduction may be up to 40%.
This will be the case if the Ministry of Justice (MoJ) are allowed control of the financial aspect of criminal law. This would mean that a police station attendance, which at present earns a firm £250 on average depending on the scheme from which the attendance arises, would with the changes currently considered only amount to approximately £150.
An average police station attendance lasts between 2-3 hours. To send a duty solicitor out of the office to a police station would result in an overall loss to a criminal firm in that a duty solicitor can, in London command a salary of around £40,000. It is therefore not in the interests of a firm to send out such a person to represent a detainee through their police station interview.
This course of action will result in two possibly catastrophic outcomes, which should be of concern to the entire profession. The first of these is that in order to recuperate their losses, a firm providing a public service through the representation of defendants through criminal investigations and court processes will make an increased use of Higher Court Advocates (HCA). This is not because law firms wish to displace the usage of barristers with HCA’s but because it is simply not economically viable to use counsel.
The increased use of HCA’s must therefore not be viewed as an attack upon the bar, but a method through which criminal law firms seek to keep afloat. This is not simply an issue of profit but of firms fighting to keep their doors open in light of the reforms, particularly small to medium sized firms.
The second issue is that the proposed reforms could result in a throwback to the pre-PACE era; a time when serious miscarriages of justice were more frequent, such as the Guildford four and the Birmingham six.
The unintended consequence of the MoJ’s proposal is to inevitably compel law firms to give precedence to their economic survival over the protection of a detainee’s legal right. It is simply more financially viable for solicitors to provide telephone advice rather than attend an interview personally.
The fear is that until there are serious miscarriages of justice the MoJ will not consider any other options in respect of funding legal representation for Defendants.