Report on Legal Aid by Greg Powell


LEGAL AID

The Legal Advice and Assistance Act 1949 was a part of the post Second World War Welfare State settlement and the start of an attempt to provide State funding for both criminal and civil cases to ensure that people who could not afford to pay privately could enforce their rights, defend actions and especially in the Criminal Justice system be represented.

There has never been a universal provision and Means Testing has become a mechanism for limiting the population of those eligible for assistance.

Major reform was necessary in the 1980’s to deal with widespread police corruption, beatings, planted evidence, false confessions and racism.

Through the Police and Criminal Evidence Act 1984, Legal Aid funding was established for solicitors to attend police stations during the post arrest interrogation process which coupled to protocols which delivered rights to legal access and the introduction of tape recording very substantially ameliorated previous malpractice.

Better training and professionalization of both police officers and other parties in the Criminal Justice system, including magistrates’, solicitors and the development of an independent Crown Prosecution Service have also contributed greatly to a rise in standards

The budget for Criminal Legal Aid grew over the next two decades driven in part by this increased access to representation and by the growth of volume in cases and their complexity. Whilst access and volume have been the key cost drivers what should also not be underestimated has been the impact of technology on the prosecution,in particular mobile telephone evidence, DNA and other forensic investigation as well as very large increases in expenditure on policing and prosecution. This has been accompanied by government policy setting targets for bringing “more people to justice” and these trends in turn have fuelled enormous increases in the prison population.

The Legal Aid budget issue is being resolved by a ruthless attack on the rates of payment to solicitors involved in criminal defence. This has proceeded from a decade long freeze on Legal Aid rates (allowing them to be eroded by inflation) to even more severe cuts by the implementation of fixed fees for police station work, cuts in the rate of pay for Very High Cost Cases and removing the link between effort and price in Crown Court cases by creating a mathematical formula for each case which determines remuneration. These fee changes have displaced the tension in the system on to solicitors who now face daily invidious choices between the economics of each case and the quality of the work that should be done.

The government now proposes the implementation in England and Wales of a policy of Best Value Tendering (see link to consultation paper), in summary this would involve every supplier who wishes to undertake publicly funded police station work bidding in an auction process to do the work at the lowest prices. It is an enormously complex and bizarre scheme likely to have disastrous consequences for the supplier base and for client choice. Legal Aid had established a national network of firms, competing by reputation and often supplying both criminal and civil Legal Aid services at single points of contact. That increasingly fragile network of supply is now to be the subject of a “market experiment” without precedent in publicly funded services.