Over the past few years, more innocent people are being convicted and more guilty people have walked free because the criminal justice system is broke, following years of underfunding
Therefore, with the criminal justice system as it is, if you have not got the money to pay for your defence, you may well struggle to get justice.
The difficulty is, the resources are no longer there for the majority of cases.
I am contacted on a regular basis by family and friends or people who have been convicted of sexual offences only to hear that they believe that they have been wrongly convicted.
These comments are usually accompanied by ones to the effect that solicitor(s) or Counsel (barrister) have not done what they should have done in order to project a proper defence. Inevitably, such would-be Appellants had the benefit of Legal Aid for the purposes of the trial preparation and advocacy.
I also often hear the comment,
“We wish we had paid for the Defence”
Of course, paying for a Defence does not guarantee success, but hopefully it guarantees a much better service and therefore a greater chance of success.
The rates of pay for Legal Aid work are atrocious and nothing like the private hourly rates or fixed fees charged by the paying clients.
I used to work within one of the largest criminal Legal Aid firms in the country and I have seen the pressures that working in the Legal Aid arena can bring/
The MoJ has suffered the largest cuts of any Government Department. This means that Legal Aid defence solicitors are put under a great deal of pressure. Although not reliant on the MoJ, the Crown Prosecution Service and police are also under pressures of their own. If you mix that with an element of incompetence on some occasions, across the board, you face the perfect storm. There are yet more cuts to come.
Legal Aid lawyers get a small fixed fee regardless of how long they attend upon someone at a Police Station, whereas if you pay privately, not only do you get a choice of solicitor, but the solicitor can stay with you as long as is necessary, free from the constraints of Legal Aid.
If someone is arrested, what they say to the police in their first interview is one of the most important parts of the entire sequence of events.
If you can afford it, you can have the lawyer of your choice who is likely to speak to the police, get to the bottom of the facts with you and be provocative.
I specialise in representation for people accused of sexual offences which is a complex area of law.
You may well appreciate there are many and various offences that one can commit of a sexual nature.
If one then looks at the state of public opinion, people would prioritise the NHS and education over whether or not a distant “so called” criminal receives proper legal advice. However, if that “criminal” is you, who is accused of something that you have not done, what would you prioritise then?
One of the fundamental principles in the law in England and Wales, that our forefathers fought for, in the Second World War, was that of justice. Remember, the war was not fought about the NHS or about education, but for the principles of justice and fairness.
There have been no increases in Legal Aid rates for about 20 years, yet there have been huge cuts across the board in the amount that is paid to defending criminal cases, both in percentage terms and in real terms.
Therefore, if you take the money away, there would inevitably be a price to be paid and that price is often a miscarriage of justice.
This seeps into the Crown Prosecution Service. Sometimes the CPS reviewing lawyers have only an hour to make a decision as to whether someone is charged. Imagine if they have to make 7 of those decisions a day. Inevitably, some people will be charged that should not be and people will be the subject of no further action that should be charged. I am very fortunate in my practice as I defend people who are usually well resourced which means that when defending in such cases, the barrister and I are at a significant advantage to the Prosecution.
In recent times there have been many rape cases where no one has looked at the evidence in advance of the trial where it has been available on mobile phones. This is often the best source of evidence because of the over usage of social media these days. All the Prosecution have looked at the material and not disclosed it to the Defence. Often there is evidence to show that the allegation that is before the Court should not be so, or at least show that the allegations before the Court should not be so or, at least, the information shows that matters happened in a different way to that suggested by the Complainant.
We can spend hours and weeks preparing the case for trial so, if you find yourself arrested and you have little or no money, what do you do?
Try to find some money. If you cannot, then you just have to hope that you are able to find a lawyer who has the resources to look after you properly. You have to accept that you will have to play a bigger part in your own case and be more proactive because it is unlikely that the lawyer will have sufficient time or indeed resources to chase witnesses, take statements, take photographs of scenes and so on.
As of the 1st April 2019, there was a new system that once again cut the already low cut fees for Legal Aid lawyers, particularly for the most serious and difficult cases.
I only deal with allegations of sexual offences and Appeals when people have been convicted of such offences.
More often than not, the Trial Advocate has given an Advice to the convicted person to say that there were no grounds to Appeal the conviction. By the time I get the papers for the Appeal, the Trial Advocate has given that advice.
When that happens, Legal Aid ceases. Even if the barrister says that there are grounds for Appeal, the Appellant and his family feel let down by the trial lawyers so do not want to continue with them even where grounds of Appeal may exist.
Therefore, without grounds of Appeal, or without wishing to use the same lawyers that they believe had not done well for them, the Appellant and his family and friends have to find money to pay new lawyers to re-visit the paperwork, to ascertain if grounds of Appeal may exist.
This can cost thousands of pounds. I accept that the cost is not as much as the fee would have been for a trial and all the preparation relating thereto if one were paying privately, however, it is still expensive and people at that point are starting to spend their life savings, re-mortgaging houses, selling cars and so on to pay for the fees.
This is done from the starting point of the Appellant being in prison, leaving me, and those like me, to try to unravel anything that went on previously, which is extremely difficult.
One cannot Appeal just because once does not like the outcome.
There are four main reasons why the Court of Appeal will allow an Appeal to be heard. They are:-
- Where the Judge has made an error as regards the summing up and/or law when addressing the jury in relation to their pathway to a verdict. It is rare that Judges make such mistakes these days. They have learned well from the past mistakes of their predecessors and they more often than not give all the Advocates prior notice of what they intend to say to the jury in case there are any objections.
- The jury come to a perverse decision. Again, this is rare, it does happen, but juries weigh up the evidence and more often than not, come to a perfectly right and proper decision, but it does happen when the jury clearly refuses to follow the direction or instructions of the Trial Court upon a point of law where the verdict reflects highly emotional, inflammatory or immaterial considerations under an obvious pre-judgement with no attempt to be fair.
- The advancement of the “new” evidence. This does not mean that something has to “appear from nowhere” however any “new” evidence must be sufficient to persuade the Court that it would have made “a material” difference to the jury’s findings. Of course, this is difficult to do.
- The incompetence of the representing lawyers.
The latter is the most likely form of Appeal. It is still difficult to succeed unless you can persuade the Court that there has been a matter of such incompetence by those who represented the Defendant that he would not have been represented by any other competent lawyers in that way.
In the past, the Court of Appeal would only intervene when the conduct of the lawyers had been “flagrantly incompetent”. However, in relation to tactical decisions, intervention only appeared possible if it could be shown that the decision complained of was taken without proper instructions. Later tests for establishing incompetence were approached on the “when the decision was one that no reasonable Counsel would have taken in the circumstances”.
The Court take into account “the safety” of the conviction rather than attempting to blame the lawyers. Of course, there could be a conflict of interest if the Appellant is complaining about his lawyers, yet wishing to continue to instruct them because he can continue with his Legal Aid in those circumstances (if granted by the Court of Appeal). This can push the Appellant towards paying privately for further and/or alternative advice.
One wonders sometimes therefore why in those circumstances a Defendant did not find the money to defend himself as opposed to waiting to see whether or not he is convicted and then spending a similar amount of money on his Appeal.
One has to remember that if the Appeal is successful, then although Legal Aid is then available, dependent upon means, for any re-trial, the fact is that the Defendant is then going back to the Legal Aid system which he found so difficult to trust in the first instance and therefore may have to pay for representation at the re-trial and effectively he is paying something close to double what he would have paid in the first instance.
However, the Court do recognise that sometimes legal teams make errors that result in convictions that make them unsafe. Therefore, hope exists for those people in that position.
With that said, there have been four recent cases in the Court of Appeal (not all dealing with sexual matters) which have, once again, steered away from suggesting that incompetence by lawyers is a sufficient ground for Appeal.
Do to get me wrong, the Court of Appeal exists of a reason and it is part of a criminal justice system that is envied the whole world over. People are successful on Appeal but the point is, it is often that they have paid out far more money to have all the papers read, re-read, statements taken, transcripts of the proceedings obtained and read and Advices given before a Notice and Grounds form is lodged at the Court of Appeal. Then, if Leave for an Appeal is granted, there is the process of trying to get the original conviction quashed and then, draw from that a re-trial (see what I have said above).
The reason why I have entitled this article “Legal Aid or not Legal Aid, that is the question” is because had the now Appellant paid for his legal services in the first place, he could have expected to have had far more time and attention paid to his case because the solicitors and barristers are paid to engage such time and energy in their clients, whereas Legal Aid is restrained in this respect.
For those of you who are reading this article who are unfortunate enough to be facing allegations of sexual misconduct that you believe you are not guilty of, bear in mind the pressure the Legal Aid lawyers are under and think about how much it will cost you if you are convicted, not only in financial, but also emotional terms and not only for yourself, but for your family who go through not only the Appeal system and is successful, then the re-trial and consider paying privately right from the start.
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