Under the Legal Aid, Sentencing and Punishment of Offenders Act, 2013, approximately £320m was cut from the annual budget. These cuts, exclusively affected criminal and civil cases, which involve various specialist areas of law, with the facts of the cases in question often being traumatic and complex.
Lord Bingham, former president of the Supreme Court of the United Kingdom, said, “…justice is open to all, like the Ritz hotel”, essentially open to all, who can afford it.
Justice Secretary, Chris Grayling, was responsible for this onslaught to the Civil and Criminal Justice System. Graylings reforms to legal aid have had a damaging and unfair impact concerning the basic principle of law, derived originally from the Magna Carta which is all people have equal access to justice, a document originally written by the Archbishop of Canterbury in 1215, in order to make peace between the king and the people. After Grayling decided to cut legal aid, more than a 1000 lawyers in early 2014 publicly demonstrated outside of parliament in rage. Shortly after that, lawyers were walking out of court and raging against Grayling due to reduction in fees.
Protect the citizen
The very reason why the United Kingdom has an independent judiciary is for the purpose of protecting its citizens against the arbitrary use of power by other individuals, organizations and the State itself. Legal Aid is essentially awarded to individuals who simply cannot afford legal advice, representation and other relevant fees. When parties have equal access to justice, the legal principle deamnding there is equality between both parties has the real potential of being satisfied.
Since the reforms, many law firms have had to close their doors and many barristers, solicitors and chartered legal executives have been forced out of a career in law and not to mention the dreams of many law students being extinguished due to high supply of talent and low demand from chambers and firms across the country during this dark time for the legal profession and the rule of law itself.
The Civil Justice Council have recently called for an internet based dispute resolution system as opposed to Court for claims under £25,000. Bold and robust moves such as these, in combination with reforms to legal aid, have a high potential to cause greater infringement on the concept of equal access to justice. The concept of settling disputes over the internet as opposed to going to court with lawyers may appear less intimidating from the point of view of a litigant in person, however, only the judge throughout the entire process will need to be legally qualified. This means that without obtaining proper legal advice, the litigant in person is at a clear disadvantage due to being inexperienced in a matter which calls for skilled and trained lawyers. The council’s proposal is to call for a process which would be largely lawyer free and, therefore, the legal interests of many may prove to be in serious jeopardy without the help of a qualified legal professional, especially if the opposition has game changing finances. The process would involve parties making electronic submissions to a qualified judge. This means an argument backed with the authority obtained through legal research is more persuasive than an argument without that backed authority. This will put greater strain on the judiciary and undoubtedly again, the legal profession itself. This new system would undoubtedly lead to miscarriages of justice if the proposals go ahead.
In relation to criminal cases, the consequences of not having adequate representation can be dire, potentially costing a person their liberty and freedoms. In 2015, the Ministry of Justice had mistakenly reversed the burden of proof on one of their easy read leaflets. The leaflet read, “if you say that you did not commit a crime, you may have to go back to court on a different day, to show the Court that you did not commit the crime. This is called a trial.” In reality the onus is on the Crown to prove beyond reasonable doubt the defendant is guilty of the offence in question. Though to many this leaflet may have made a few lawyers and academics chuckle at the MoJ’s expense, there is indeed a sinister message that can be drawn from the alleged mistake when contemplating the cuts to legal aid and the need for equal access to justice. If people are without equal access to justice and proper legal advice, then all they have to rely on is publications like these. A litigant in person who has nowhere to turn, may look to unreliable advice which may be detrimental to them.
This particular publication in question could have influenced a defendant to plead guilty because they couldn’t face the intimidating situation of having to prove to a court that they did not do the crime that they have been accused of by the prosecution. It is therefore necessary to have lawyers who can advise a client on the correct position of the law. With these considerations in mind, it is highly likely that miscarriages of justice will naturally occur with such a restricted system.
A miscarriage of justice is only recognised as a miscarriage of justice on appeal. Therefore, if the cuts affect access to lawyers then the quality of representation will also likely be affected. In a financially crippled profession, lawyers may advise clients to not plead guilty to charges on the basis that it would pay more, rather than because it was in the client’s best interest to do so, defying the whole point of having an independent judiciary in the first place.
If one party is acting as a litigant in person, and the other is represented by a qualified legal professional, then it is apparent that the party without legal representation is at a clear disadvantage. In cases involving family law, often involving traumatic and distressing elements where victims may have suffered domestic violence, they may have to face their ex-partner in the court arena alone. In cases involving welfare law and civil liberties, many people have faced the prospect of having to fight Government lawyers alone in the court arena, without legal advice or a trained advocate. Therefore, justice would only be open to those who can afford it? Or would it become open to any that can afford it, just like Lord Bingham’s statement about the Ritz Hotel. In light of the cuts to legal aid and the concept of equal access to justice, his statement couldn’t be any closer to the truth.
It would appear that the concept of having equal access to justice truly means everyone having equal access to qualified legal professionals and advocates, as they are a means to an end, the end being justice itself.
What do you think? Have your say in the comments below.