18.01.15 Justice Rough Justice

Magistrates in new legal aid warning to Grayling as survey shows growing fears over justice system

Published January 18 2015

Magistrates and senior lawyers are increasingly concerned that cuts to legal aid and an increase in defendants representing themselves in criminal trials are a “serious” threat to the justice system, according to new research from the Bureau.

In the first survey of magistrates since the cuts to criminal legal fees took hold last March, and using a detailed analysis of new government data, the Bureau found:

more than 70% of magistrates questioned now have serious concerns about the impact on their courts of defendants representing themselves
the number of legal aid funded criminal trials at magistrates’ courts has fallen by 6% between 2013 and 2014
one in five of the defendants seen by the magistrates in the survey had been representing themselves
one magistrate so concerned about the cuts they warned: “Justice is something that is increasingly only available to the wealthy.”

The survey comes as Justice Secretary Chris Grayling faces the last day of another judicial review tomorrow (Monday, January 19), brought by solicitors who are questioning government proposals for further cuts in legal aid in criminal cases.

The Bureau’s snapshot survey was conducted in conjunction with the Magistrates’ Association during a number of days last November. Some 258 magistrates recorded what type of hearings they had seen on a particular day and made notes about their observations.

The results were then compared with a previous survey from last February, a month before the cuts to fees in criminal cases.

In February 47% of magistrates who had seen defendants representing themselves against criminal charges said there was a negative impact on proceedings all or most of the time.

That figure has now risen to 71%. The latest research also found that 21% of all defendants seen by magistrates on the day of their survey had been representing themselves against criminal charges.

Richard Monkhouse, Chairman of the Magistrates’ Association, said: “We’re concerned that the proportion of members expressing concern about unrepresented defendants in criminal proceedings increased in the period between surveys and the impact this may be having on the delivery of criminal justice in the magistrates’ courts.” The organisation is now calling on the government to undertake a review into the situation.

“Experts and professionals all made very clear that slashing legal aid would create more litigants in person, lumbering our courts with extra costs and slowing down the legal system. This evidence shows that is precisely what has happened.”
Sadiq Khan MP

Shadow Justice Secretary Sadiq Khan reacted to the Bureau’s findings, saying: “The government were warned their cuts to legal aid were a false economy but they just stuck their fingers in their ears. Experts and professionals all made very clear that slashing legal aid would create more litigants in person, lumbering our courts with extra costs and slowing down the legal system. This evidence shows that is precisely what has happened. The wheels of our justice system are grinding to a halt.”

The impact is also hitting the family courts, the survey found.

In one family court case earlier this month, a judge had to seek advice from the Lord Chancellor’s office after becoming concerned that a man who was just over the financial threshold for legal aid, and so representing himself, would be forced to cross-examine a teenager he had allegedly sexually abused.

“An unrepresented defendant, often with little or no legal experience, will be facing professionals who do. This is not right and is against the fundamental need for full and fair access to justice.”
Andrew Caplen, Law Society

Cuts to criminal funding

In March 2014 criminal legal aid fees were cut by 8.75%, effectively reducing the number of solicitors that could work on criminal cases. The new rules come in after the Ministry of Justice’s “Transforming Legal Aid” reforms. Another 8.75% of spending cuts are planned this year.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 also introduced the Legal Aid Agency, which some lawyers complain makes processing legal aid applications a much more arduous process.

According to the MoJ’s latest statistics, the number of cases where legal aid has funded representation in criminal trials at magistrates’ courts fell 6% between the period January-September 2013 and the same period in 2014, or by 18,228 cases. Although applications for legal aid also fell in this time, the total number of trials listed in the magistrates’ courts has increased.

Other legally aided criminal work has also dropped, according to the government’s data. The number of cases where advice was given to charged defendants before a trial dropped 27% between the two years.

Chris Grayling, Lord Chancellor and Secretary of State for Justice (Image: Cabinet Office)

Tomorrow (Monday, January 19), solicitors will conclude a three-day judicial review into cuts to criminal legal aid work. The London Criminal Courts Solicitors’ Association (LCCSA), the Criminal Law Solicitors’ Association and the Law Society had pushed for a judicial review of government proposals to reduce duty solicitor contracts from 1,600 to 527 along with further cuts to criminal fees. Findings on the review will be handed down in three weeks’ time.

Andrew Caplen, president of the Law Society, said: “If you face serious charges, and you have no legal representation to help with your defence, then this is not a level playing field. Such an unrepresented defendant, often with little or no legal experience, will be facing professionals who do. This is not right and is against the fundamental need for full and fair access to justice.”

“We’ve definitely seen an increase in the numbers of self represented defendants, that creates a very unfair playing field and there’s a real risk of miscarriages of justice”
Greg Foxsmith, LCCSA

The Ministry of Justice denies that criminal cases have been affected. A spokesperson said: “People accused of a crime have exactly the same access to their choice of a legally-aided lawyer now as they did before our reforms. The proportion of applications granted for legal aid for magistrates’ court hearings actually rose last year. This government inherited an unprecedented financial crisis and we had no choice but to find significant savings as a result.”

However, data from the ministry shows that ineffective trials are on the rise in the magistrates’ courts, up from 16.7% in 2012 to 17.9% last year. In the first three quarters of 2014, 8,694 trials were declared ineffective because of problems from the defence, such as the defence was “not ready”.

Greg Foxsmith from the London Criminal Courts Solicitors’ Association (LCCSA) told the Bureau a large number of solicitors shared the magistrates’ concerns.

He said: “We’ve definitely seen an increase in the numbers of self-represented defendants. That creates a very unfair playing field and there’s a real risk of miscarriages of justice. The vast majority of those are happening in magistrates’ courts, which really are the coalface of the British justice system.”

Just last week Foxsmith had to turn down a 45-year-old, self-employed man of previous good character who was facing assault charges and was not eligible for legal aid. Because he cannot afford to pay for legal representation he will now plead not guilty and represent himself in court.

Foxsmith is pessimistic about his chances. He said: “The trial will take longer as a result, costing more money in court time. He will not know rules relating to evidence, bad character of the other party, or how to decide which witnesses to call and what statements to agree. He will not know how to obtain CCTV footage which may assist his case, or how to summons witnesses. With no previous court experience, he has to cross-examine the other party, and present his own case. The Crown by contrast have police officers investigating,and a fully funded Crown prosecutor.”

Michael (not his real name) is a solicitor based in London who works on criminal cases. Just last week he was unable to represent clients on assault and burglary charges because applications for legal aid placed with the Nottingham Legal Aid Agency on December 27 had still not been processed five working days after they were submitted.

Remand and bail

The Bureau’s survey noted a rise in concerns about self-representation in remand and bail hearings, up to 59% of all magistrates from 41% between the two studies. The rate at which people were representing themselves during sentencing had increased from 15% to 23%.

One magistrate said: “The unrepresented defendant did not give any explanation or mitigation [of their guilty plea] despite the seriousness of the charge (possession of a bladed article). We sent to Crown for sentencing where he will get representation.”

“There is no longer a level playing field, defendants in-person are at a constant disadvantage and justice is often not done as a result. Trials take longer and often prove to have been unnecessary… As such there is a waste of court time and costs.”

Greg Foxsmith said: “We see people pleading guilty when they could have a real defence, for example many in assault cases don’t understand that if they were acting in self-defence they would not be guilty of assault. But then we also see many pleading not guilty but without the skills to defend themselves, and even those pleading not guilty who go on to argue what would be mitigating circumstances for guilt, instead of a defence.”

Family courts

Magistrates questioned also found the number of litigants representing themselves in private proceedings in family courts had risen between the two surveys.

In February nearly 46% of litigants seen by magistrates in family courts were litigants in person. By November that had risen to 60%.

Indeed, the rise is mirrored in Ministry of Justice statistics analysed by the Bureau. Those figures show that the number of cases where neither party has legal representation in disposals under the Children’s Act (private) has risen sharply, from 12% in the first three quarters of 2012 to 28% in the same period in 2014.

The average duration of Children Act (private) hearings is also on the rise, from 15.2 weeks in 2012, up to 17.3 weeks last year.

The survey found that 58% of magistrates are concerned litigants in person in family courts negatively impact hearings all or most of the time.

One magistrate surveyed said: “Often they say too little for fear of saying the wrong thing.”

Another said: “They are undoubtedly at a disadvantage and the whole process takes longer”.

Grayling called on to clarify on complicated cross-examinations

The potential consequences of the legal aid cuts were grappled with in a family court in Leicester earlier this month when a judge called on representatives of Chris Grayling, in his role as Lord Chancellor, to explore how to proceed in an incredibly delicate child custody case.

The case involved a father, who cannot be named for legal reasons, who has been fighting for custody rights to his two young children, a girl aged five and a boy aged four. However his former partner’s 17-year-old daughter from a previous relationship had alleged that the man had sexually abused her, a charge he denies.

Criminal charges were dropped, but the family court wanted to explore the claim before deciding on custody of the younger children.

Complications arose because the father was outside of the scope of the legal aid guidelines. He was over the “disposable income” bracket by just £227 a month. As Judge Clifford Bellamy explained, the man fell on the “wrong side of the divide so far as financial eligibility for legal aid is concerned…. [however he] does not have the resources to pay privately for legal representation”.

The Bar Pro Bono Unit was approached but could find no one to represent him, leaving the father to represent himself at the hearing.

This meant he would be cross-examining the teenage girl about the alleged sexual abuse. A report from child protection organisation Cafcass warned that the man might be “extremely abusive…and may cause [the girl] emotional harm.”

Lawyers for the Lord Chancellor’s office argued it was the man’s own responsibility to pay for a lawyer if he wanted one. They also suggested the cross examination could go ahead through intermediaries, or that the man and the alleged victim be separated by a screen during cross-examination.

However, Judge Bellamy rejected the arguments and ruled that despite being outside the guidelines, the man should be provided with legal representation–paid for by the court service.

Domestic violence

The Bureau analysed the most recent Ministry of Justice figures on work in family courts and found that the number of times where neither side is represented in domestic violence disposals has risen from 14% in 2012 to 18% last year. The number of completed domestic violence cases has dropped by 25% in that time.

A spokesperson from the Ministry of Justice said: “Self-represented people are not new to family courts. We are providing them with better advice and information and judges are also used to helping them where needed. Recent figures showed no strong evidence that cases involving litigants in person take longer to progress. Millions of pounds is also being made available for family mediation, which is far less stressful and less expensive than going to court.”

This research was reported on by the Independent newspaper.

See a breakdown of the survey results here.