Anonymous author explains why legal aid is so vital and how cuts threaten its future
The Guardian asked the Secret Barrister, author of the bestselling book Stories of the Law and How It’s Broken, to answer candidly some questions on the criminal justice system: how it works and how, all too often, it doesn’t.
How are the cuts in legal aid affecting people?
In the criminal sphere, which is where I operate, legal aid cutsover the past decade have restricted access to funding in both the magistrates courts (where less serious offences are tried) and the crown court (dealing with serious offences, including those carrying up to life imprisonment).
The impact is felt in several ways. Firstly, many people who are far from wealthy are deprived of funding altogether. Anyone with an annual household disposable income of £22,325 is excluded from legal aid in the magistrates courts, with £37,500 the cut-off in the crown court. Up to those figures, you will be eligible for legal aid but may be required to pay “contributions” over the months or years as your case progresses. You will be reimbursed if you are later acquitted, but the sums demanded can be prohibitively high, and I see more and more people deciding to opt out of legal aid altogether as they can’t afford the contributions.
But the biggest hit affects those above the threshold. They are forced to either represent themselves in complex criminal proceedings, or to pay privately for legal representation. Private legal rates can run to tens and even hundreds of thousands of pounds if the allegation against you is particularly complicated or serious. If you are acquitted, the government will then only reimburse your legal fees at legal aid rates, meaning you are forced to pay the difference yourself. This “innocence tax”, as it has been dubbed, has seen acquitted defendants forced to sell their homes and exhaust their life savings. It means that the state can falsely accuse you of an offence, and when a court exonerates you, you are nevertheless bankrupted by the cost of defending yourself.
Were the cuts justified – aren’t lawyers overpaid?
No. Over the past decade, the Ministry of Justice has repeatedly pushed the falsehood that we have “the most expensive legal aid system in the world”. This is quite simply a lie. The statistics that the government used to support this claim related to a tiny handful of countries with completely different legal systems, and where the costs fell on other departmental budgets.
Far broader studies showed that England and Wales fell bang on average in its per capita spend on justice. And this was before the 40% cuts were imposed.
‘I couldn’t fight to get my children back’: the impact of legal aid cuts
So why was there a belief that ‘fat cat’ lawyers were abusing the system?
Most people only encounter us at their lowest ebb, and if your experience relates to an expensive divorce or commercial dispute, legal representation will not have come cheap.
It has been too easy for politicians and tabloids to exploit this and convince the public that “fat cat” legal aid lawyers are raking it in, whereas the truth is that many junior criminal barristers now work at rates often below minimum wage.
By trumpeting headline legal aid figures paid to firms or to a single-figure minority of barristers earning large sums in a year, the media has been able to paint a deeply misleading impression of what criminal lawyers actually take home. The average take-home pay of a criminal barrister is £27,500.
Are the cuts leading to miscarriages of justice?
Inevitably, there are cases of unqualified defendants, who have been forced to represent themselves, being wrongly convicted because they do not understand the criminal justice system.
The Ministry of Justice has resisted releasing its own research on this. But it stands to reason that anybody trying to navigate the legal system without help is at a disadvantage.
There is even the possibility that unrepresented defendants may be in danger of receiving longer sentences because they do not receive advice about when to plead guilty, though in practice judges will make allowances for people who have not properly understood the case against them.
Will cuts drive good lawyers to more lucrative private practice?
Legal aid: how has it changed in 70 years?
It is already happening. Good and dedicated solicitors and barristers are moving to where the working conditions and pay are tolerable and reflect their ability and the hours they work.
Retention is a huge problem, particularly with junior female practitioners. The nature of criminal legal aid work, its unpredictable and unsocial hours, make it almost impossible to combine with a family life. This is reflected in a troubling drop-off rate. The average age of criminal practitioners is also increasing, which should worry us all. An ageing profession is only a decade away from becoming a dying profession.
Is legal aid necessary?
Legal aidis the baseline for a civilised democracy. Without it, the rule of law collapses. People can only enforce their rights, or defend themselves against the state, if they have access to legal advice and representation. A civilised society considers legal aid akin to free healthcare. You don’t want to have to use it, but it’s there if you need it.
The Secret Barrister was named legal personality of the year at the Law Society awards 2018, and won the best independent blogger of the year at the Editorial Intelligence comment awards in 2016 and 2017.