Legal aid cuts: A fair price for a fair trial?

Back in January, barristers across the country refused to attend court over cuts to legal aid. The Government says they can afford to defend citizens for less. Laurence Dodds looks into the issue

Sean Dempsey/PA Wire Actress Maxine Peake (centre) with protesters outside Westminster in London campaigning against legal aid cuts
Actress Maxine Peake (centre) with protesters outside Westminster in London campaigning against legal aid cuts

The client has a drinking problem and visits a community psychiatrist. She was abused as a child, and again by her partners as an adult; she lost her children to the care system. Sometimes she punches the windows out from local pubs or gets into fights in the street. She doesn’t trust officials, especially male ones, but she trusts her lawyer, and that’s for the best – because she needs one pretty often.

“On the face of it she appears to be, in layman’s terms, a wrong ‘un,” said Mark Harrison, a Wallsend solicitor who gets 90% of his business through legal aid. “But the story behind that is a tragic one. She is a huge casualty, incredibly vulnerable, and very much deserving of proper help. You wouldn’t cut her medication or her access to the psychiatric services, and it’s a huge anomaly to me to cut her access to legal services.”

The coming cuts to legal aid incited perhaps the best-dressed protest in living memory as criminal barristers across the North East – and the country – staged an unprecedented half-day walkout.

North Eastern Circuit leader John Elvidge QC told The Journal the reforms would “bring shame to our legal system” and “increase the likelihood of miscarriages of justice occurring” as young lawyers abandon the criminal courts for the bright lights of corporate law.

At issue is the rate paid to lawyers defending ordinary people who cannot pay for the fair trial even hardened criminals deserve. The Government wants to save £220m by cutting complex, high-cost cases by 30% and other Crown Court work by up to 18%. Combined with cuts started by the last government in 2007, that would mean real-terms cuts of anything between 20% and 50%.

The Ministry of Justice said this was a fair rate; that the UK’s spend of £2bn a year makes it “one of the most expensive legal aid systems in the world” and that “it would remain very generous after reform.” It released an “ad hoc” statistics bulletin – coyly pitched “to address the public interest in the area” - which broke down who had received what in the last financial year. The figures make easy ‘fat cat’ headlines: 1,200 barristers received £100,000 each, six of whom got more than £500,000.

But the legal aid data comes with a long list of disclaimers. Its numbers aren’t wages, but fees, from which expenses and VAT must be taken. Some might be huge lump payments at the end of long, torturous cases lasting months or years; others could be paid to multiple barristers through one senior colleague. From these fees each barrister must pay chambers’ rent, clerks’ fees, tax and VAT; liability insurance, software, data protection fees and database subscription fees. Because they are self employed, there is no sick pay, no employer pension, no maternity leave or holiday pay and certainly no expenses. Don’t forget your wig - £425 from legal outfitters Stanley Ley. In short, the figures are useless for telling you how much criminal barristers actually earn.

“If you break it down to what you’re earning per hour, it’s pathetic – less than the minimum wage,” said Rachel Hedworth, a criminal barrister and Geordie native who works at Trinity Chambers on Quayside. “Anyone now who is doing criminal law is doing it because they’re bothered. Anybody who’s in it for the money has long gone, because there’s no money to be made from it. What’s being proposed now is quite frankly an insult.”

She cited the case of a colleague at other chambers who joined as a junior one year ago and is still having trouble paying rent.

If that seems unbelievable, she is not alone: an anonymous junior criminal barrister last May said she ended up with just £10,000 once she’d paid her expenses (and before tax), while Caroline Goodwin, a colleague of Ms Hedworth and local Criminal Bar Association representative, said it wasn’t unusual for young criminal barristers to earn £10,000 to £15,000 per year.

Mr Elvidge said even some senior barristers ended up with only £15,000 after expenses, and in London, Michael Turner QC claimed he knows some who cannot admit to their colleagues they are on income support. Even an amount paid by the public to a criminal barrister last year – £56,000 – is less than the salary of an MP or senior Crown prosecutor, and must cover for back-office expenses they take for granted.

For high-flying corporate lawyers, this isn’t a problem; for criminal lawyers, who defend vulnerable people on legal aid, it bites much harder.

That is why Newcastle barristers are warning of a brain drain. “The fact of the matter is that people are not now joining chambers to do criminal work,” said Ms Goodwin. “Criminal pupillages are not being offered. Even looking at the people in these chambers, there is nobody now of just a few years’ call doing crime, because it’s not economically feasible to maintain the level of hours which are required to invest in the proper preparation of a case. It’s not reasonable remuneration that’s being offered by the Government.”

Julian Smith, a criminal barrister who joined Baltic Chambers on Broad Chare back in 1992, agreed: “There’s no question of us avoiding the impact of these times of austerity,” he said. “I didn’t come to the bar to make lots of money. I always understood that I would make far less money doing crime than if I chose a more commercial field. But it becomes more difficult to see the future business case for holding oneself out as a specialist publicly funded criminal advocate, both on a personal level and from a chambers point of view. The inevitable consequence of these reductions will be that criminal barristers will turn away from crime to seek income elsewhere, and if they’ve gone, they’ve gone.”

Mark Harrison said he loves the job, but tells students and trainees to avoid the whole area of criminal law if they want to make any money. He said: “The majority of legal aid lawyers would only turn their back on legal aid work if it absolutely became financially catastrophic to do anything other. We’re not driven by excesses of monetary riches because we’d be business lawyers, we’d be medical negligence lawyers, we’d be commercial conveyancing lawyers.

“But like every business there is a threshold at which the business isn’t worth doing. And it’s not a case of we’re going to take our ball and disappear off in a huff. It’s a case of this business cannot survive, so we won’t do it.”

That threatens not only the clutch of barristers housed around the Crown Courts on Quayside but the small solicitors who sometimes handle generations of the same family’s business. Mr Harrison said: “The Northumbria area is unique in that there isn’t a single huge firm which has with it a massive number of fee earners and a massive percentage of the marketplace. There is a large number of relatively small firms which are servicing the areas from Bedlington to Byker and the areas in between. There will be without any doubt a number of them for whom legal aid work ceases to be financially viable.”

Kieran O’Neill’s is one of them. The father-of-two – his younger daughter is 16 – runs a sole practice on Grey Street serving families in the west and east ends of the city. He said that about 95% of his business is through legal aid, and that if the cuts go through it will be “impossible” to keep going. He said: “I’ve got a hard core of regular customers. They are most certainly people who cannot afford to pay for a lawyer. But it’s not just career criminals: it’s people who come on hard times, and that is something that is happening more and more.

“Over the past three years I’ve laid off three members of staff and only one of them has found alternative employment. They have families, and they’ve now gone into the benefits system.

“So it’s not just solicitors being put out of work. It’s the solicitors’ employees and their families who are suffering from a very short-sighted Lord Chancellor who hasn’t a clue what he’s doing and doesn’t listen.”

Charities and non-profits also feel the pinch. In January last year the Newcastle Law Centre pulled out of all its legal aid work when the government cut support for the employment and immigration cases which were its bread and butter. Clare Hurst, a senior solicitor there, said the centre could never have made up its income with private work and had no choice but to become a grant-funded charity giving free legal advice.

For Mr O’Neill, the threat to justice, and to the country’s pool of competent criminal lawyers, was serious. He claimed “I would estimate 75% or 80% of people who are charged by the CPS are guilty. If the 20 or 25% who are not guilty have to represent themselves in court, the chances are they won’t be able to do so. They will do it very ineffectively, they will be up against qualified lawyers from the CPS, and we’ll end up with people being wrongly convicted.”

A spokeswoman for the MoJ said: “While we absolutely agree that everyone’s right to a fair trial must be upheld, it is not the government’s duty to ensure X number of barristers or solicitors are able to work. That’s the duty of the profession to structure itself correctly.”

She said there were “too many lawyers chasing too little work” due to a reduction in crime.

Still, criminal barristers say they have no shortage of work; their schedules are packed. Both Julian Smith and Caroline Goodwin said they worked long hours to defend clients who may come to them at the worst time of their lives – even though they could make more money elsewhere.

Ms Goodwin said: “Those vulnerable who need representing are not going to be afforded quality representation by qualified and experienced barristers. But it also means cases are not going to be prosecuted by those who either have the experience or the expertise, because those who defend prosecute as well.”

“We prosecute to a rightful conviction and we defend to a proper acquittal. And we keep the streets safe by doing our job. And if our job is not done properly, there is a real risk that there will be rapists and paedophiles walking the streets.”

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