Like the Ritz the Lord Chancellor makes justice open to all

The new statutory instrument concerning the funding of criminal cases will make it much harder for individuals to discover the truth in their own criminal cases

Justice for all?
Julian Hunt
On 15 October 2012 10:43

The unmasking of the deceit over the Hillsborough disaster after more than two decades of campaigning by the victims’ families amplifies the need to maintain the culture of accountability and transparency that has slowly developed in assessing the actions of the state and its various emanations.

Although Tony Blair in his autobiography declared the Freedom of Information Act one of his greatest legislative mistakes this is one key way in which the machinations of the authorities have been opened up for public scrutiny.

Recently though a statutory instrument has been passed concerning the funding of criminal cases which will make it much harder for individuals to discover the truth in their own criminal cases. The timing of this legislation could not be more inauspicious, occurring as the Hillsborough families are asking the Attorney General and Director of Public Prosecutions to reopen proceedings into the deaths of those at Hillsborough in 1989 with the contemplation of possible criminal cases against some of the participants still alive who allowed this vile scandal to happen.

At the moment if you win your criminal case you are generally entitled to your legal costs. This will come out of the public purse and must be right and fair. You’ve been accused of a criminal offence by the police. You have fought and won. You now want your costs back and should, by right, get them back.

Under these changes if you pay privately for a lawyer in the Crown Court (in other words you want someone who won’t do the case on legal aid rates) you will only get your costs back at a rate to be assessed by the Lord Chancellor. In plain English this means that you will receive a fraction of your costs in fighting the charge that could conceivably mean you lose your job, reputation, and liberty should you be convicted.

The rates to be assessed by the Lord Chancellor which you’ll be able to get back will be – and I have no doubt about this - legal aid rates. The entire deplorable policy is aimed both at the saving of funds but in a more sinister fashion at hoping those who can’t get legal aid (or who have to pay contributions towards legal aid due to their means) just give up, plead guilty, save the police some work and go home quietly.

That’s just what all governments have wanted the Hillsborough families to do ever since the early 1990s no matter what the former Home Secretary Jack Straw may say now with red-tinted crocodile tears.

It is horribly ironic that with the reams of inquiries, inquests, and safeguards set up to protect the rights of the common citizen, the legal means by which we are able to access those rights (to put it bluntly a good lawyer funded by the state) have been utterly abrogated on the altar of saving some money.

Why fight it (I accept you may decide not to anyway for various non-financial related reasons) when you won’t get all your costs back from the public purse and copping a plea might be an easier road to travel down even if there is evidence to exonerate you? Why bother with the coroner’s inquest and the questioning of witnesses when you’re extremely unlikely to get legal aid and it will cost you too much money from your stretched household budget? 

Professor Niall Ferguson in his recent Reith lectures on the BBC, using his normal rhetorical flourish, said we are under the rule of lawyers not law. This is not true.

With Chris Grayling as the Lord High Chancellor of England, with the lack of costs recovered under the changes if you’re acquitted, and with the aim of the system increasingly being the pushing through of cases, lawyer or no lawyer, with as much speed as possible jettisoning the idea of fairness, Niall simply had too many blue smarties in Harvard Square if he thinks the lawyers, via a fully transparent legal system, rule.  

Julian Hunt is a barrister and has been practicing law since 2005. He was a Crown Prosecutor and Senior Crown Prosecutor for the Crown Prosecution Service between 2008 and 2011 but now defends. He lives in South London

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