A row has been brewing in Northern Ireland over the last 6 months or so, embroiling David Ford – the first Minister for Justice here – in his first major row. The dispute concerns the provision of legal aid to persons accused of crimes who cannot afford legal representation. In April of this year new rules on the payment of legal aid introduced a 25% cut in payments for solicitors, senior and junior counsel in both trials and guilty plea cases.
[Criminal legal aid is available to anyone accused of a crime where a judge determines that it is the interests of justice for legal aid to be granted (merits test) and where the judge concludes that the accused person does not have sufficient means to pay for their own legal defence (means test).]
The cuts have provoked outrage among members of the legal profession Many solicitors have withdrawn their services in criminal cases where payment is by legal aid. On 15 June it was reported by the Belfast Telegraph that out of 500 firms contacted by the Department of Justice just 14 are willing to operate under the new regulations and fee structure. On that date 236 defendants were without representation.
The legal aid row touches on a whole spectrum of issues. Firstly the level of the cuts: according to the Criminal Justice Inspectorate £50.8 million was paid out in legal aid in 2010/11. In the previous three years, £155 million was paid in criminal legal aid, with an additional £105.9 paid to the Public Prosecution Service. David Ford has set out that he wishes to achieve a 25% reduction in the payment of legal aid over a two year period. One must wonder where this figure of 25% came from: it feels somewhat arbitrary. It’s hard to imagine that when costing the necessary savings the figure which emerged was 25%. Further, if we look to the Northern Ireland Audit Office Report on Managing Legal Aid it is plainly stated that in 09/10 criminal legal aid payments totalled £60 million, meaning that in the last year payments have fallen by £9 million or 15%.
The Audit Office report points to what might be more central issues: in Northern Ireland two counsel are allocated in 55% of cases, compared to just 5% of cases in England and Wales. Further, legal defence were permitted over the last decade to request an ‘uplift’, or increase, in fees payable. This was done in half of cases heard in the Magistrate’s Court and accounted for three-quarters of legal aid payments. So it may be that reductions are not needed/necessary, rather the set levels should be paid.
Or it might be that inefficiencies in the system have developed more broadly which are slowing things down and making legal defence more expensive. Last year the Criminal Justice Inspectorate published a report on Avoidable Delay in the criminal justice system. In 2009/10 it took 176 days for a case to progress through the pre-committal stage (i.e. from the moment the file is sent to the PPS to the conviction or otherwise of the individual). It is 148 days for a youth offender and 283 days for youth offender summons case. In England and Wales in 2008/09 the figures were 48 days for adults and 38 for a youth. In the main, this is put down to inefficient practices within and between the range of organisations involved in processing a case through the criminal justice system.
There are systemic problems in the system if it takes so much longer to hear a case in Northern Ireland. Defendants already wait inordinate lengths to have their cases heard and the current row over legal aid only adds to this. Defendants are faced with the choice requesting an adjournment to their case, with the result that the matter hangs over their head even longer, or representing themselves, pitting themselves against the trained and experienced lawyers of the Public Prosecution Service (the costs for whom, by the way, were reported to have mulitplied by five in 2007). The European Court of Human Rights has clearly established that the right to a fair trial enshrined by the Convention in Article 6 involves both the conduct of the trial in a reasonable time and a right to equality of arms. The present row raises questions as to whether these obligations are being met. The system is potentially breaching a fundamental human right, and which taken to extremity may increase the risk of miscarriages of justice; though the potential Article 6 infringement alone should be a serious concern.
The difficulties are clear: fees need to be set at a level which will ensure justice and a fair trial for a defendant, while adequately remunerating lawyers and being within the economic reality of Northern Ireland’s budget. But the current row is just one side of proposed changes to legal aid. What has hit the headlines a little bit less are the amendments made to legal aid via the Justice Act 2011, David Ford’s first piece of legislation. Part 7 of the Act makes a number of changes quite separate to the reductions which have been made to the fees payable. S.80 of the Act provides for the passing of rules on means testing for legal aid, which the explanatory note tells us have “the potential to decrease legal aid costs by decreasing the number of defendants financially eligible for criminal legal aid.” These rules have not been published and are due to be subject to public consultation. This constitutes a dual attack on legal aid as the Government is both limiting eligibility and decreasing fee amounts. Eugene Grant QC has told the Detail that
Despite the headlines, this dispute is not about money – it is about the survival of an independent system of justice available to the general public equally regardless of currency, class or creed.
This move is worrying. Given the powers and resources of the State at every stage of the criminal justice system (and the levels of payments and apparent lack of accounting for payments made to the PPS) it is imperative that individuals, who are innocent until proven guilty, are afforded an adequate defence. And why rush to make such changes when clear deficiencies have been identified both by the Audit Office and the Criminal Justice Inspectorate? It would seem more appropriate to address those issues and then see how the finances are balancing. Defendants should not be penalised in the mean time.