Over the past few years, more innocent people have been convicted and more guilty people have walked free because the criminal justice system is broken following years of underfunding.
Therefore, with the criminal justice system as it is, if you have not got money to pay for your defence, you may well really 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 the family and friends of people who have been convicted of sexual offences only to hear that they believe that have been wrongly convicted.
These comments are usually accompanied by ones to the effect that the solicitor(s) or Counsel (barrister) have not done what they should have done in order to project a proper a defence. Inevitably, such would be Appellants had the benefit of Legal Aid for the purposes of trial preparation and advocacy.
I so often hear the comment,
“We wish we had paid for the defence”.
The rates of pay for Legal Aid work are atrocious and nothing like the private hourly fees, or fixed fees, charged to private paying clients.
The MoJ has suffered the largest cuts of any Government department. This means that Legal Aid defence solicitors put under a great deal of pressure. Although not reliant on the MoJ, the CPS 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 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 proactive.
I specialise in representation for sexual offences which is a complex area of law.
If one looks at the state of public opinion, people would prioritise the NHS and education over whether or not a distant 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 of English law, 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 has been no increase in Legal Aid fees for about 20 years, yet there have been huge cuts across the board in the amount that is paid defend in criminal cases, both in percentage and in real terms.
So, if you take the money away, then there will be a price to be paid and that price is often a miscarriage of justice.
This seeps into the Crown Prosecution Service. Sometimes the Crown Prosecution Service reviewing lawyers have only an hour to make a decision as to whether somebody is charged. Imagine if they have to make 7 of those decisions a day. Inevitably people will be charged that should not be and people will be the subject of no further action who should be charged. I am very fortunate that in my practice, 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 had 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. Or 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 the allegation 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 you are able to find a lawyer who has the resources to look after you properly. You have to accept 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 photograph of scenes and so on.
As of the 1st April, there is a new system that will once again cut the already well cut fees for the Legal Aid lawyer, 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 are no grounds to Appeal the conviction. By the time I get the papers for the Appeal, the Trial Advocate has given an Advice to say that there are no grounds to Appeal the conviction.
When that happens, Legal Aid ceases. Even if the barrister says 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 all 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-mortgage houses, sell cars and so on to pay these fees.
This is done from the starting point of the Appellant being in prison, leaving me and those like me to try to unravel everything that went on previously, which is extremely difficult.
One cannot Appeal just because one does not like the result.
There are four main reasons why the Court of Appeal will allow an Appeal to be heard.
- 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 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 or where the verdict reflects highly emotional, inflammatory or immaterial considerations or an obvious pre-judgement with no attempt to be fair.
- The advancement of “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.
- Incompetence of the representative lawyers.
This 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 that those who represented the Defendant 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 when 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 with them (if granted for the Court of Appeal). This can push the Appellant towards paying privately for further and/or alternative advice.
However, the Court do recognise that sometimes legal teams make errors that result in convictions and 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 was a sufficient ground for Appeal.
Do not get me wrong, the Court of Appeal exists for a reason and 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 after they have paid out far more money to have all the papers 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 and then, if Leave for an Appeal is granted, there is the process of trying to get the original conviction quashed and then, more often than not, the re-trial.
The reason why I have entitled my article “After the Horse has Bolted” 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 for their clients, where the Legal Aid lawyer 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 that Legal Aid lawyers are under, and think about how much it will cost if you are convicted, not only in financial but also emotional terms, yourself and your family to go through not only the Appeal system and if successful, then a re-trial, and consider paying privately right from the start.
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