The Times, a newspaper with a grand and illustrious history, yesterday printed in the Law section a piece written by a John Wilson, with the headline “Legal aid reform is right, solicitor says.”
If you missed it, you’ll find a screen grab of the article here.
In short, the article castigates criminal defence lawyers as egocentric idiots motivated by greed and unburdened by integrity. It suggests legal aid should be scrapped and all of our work done by other lawyers free of charge.
We, the criminal defence legal aid lawyers, would be extinct.
It is precisely the sort of drivel that Grayling must have rejoiced to read (striding, as it does, down a path so far removed from reality that even our Injustice Secretary has yet to tread it).
I re-read The Times cover to cover looking for a counter-point article – a balancing piece to address the ill-conceived nonsense that Wilson peddled.
I couldn’t find it.
The Times, in its excited pandering to the solitary member of the FailingGrayling Fan Club outside of the employees within the Ministry, must have forgotten.
The alternative, that The Times is now in the pocket of the Government, is surely not right.
I will resist adding my own views about him when others have expressed theirs so well.
I will, however, tell you (and The Times) why Wilson’s proposals are gibberish:
(wherever I am about to write him/his/he, I do of course also include her/hers/she)
(1) Being a criminal defence lawyer is a job.
Some prefer to refer to it as “a vocation,” others as “a calling.”
Those of us who actually are criminal defence barristers or solicitors will at least be unanimous in calling it “a privilege.”
But ultimately, it remains “a job.”
I suspect I am not voicing a lone maverick opinion when I say that when I do “a job,” I expect to be paid.
I should like to be remunerated at a level commensurate with the responsibilities and difficulty of the job that I do, but I gave up that notion many years ago when I came to realise that the fees set in 1997 for a trial would be the same or more than the fees I would receive for a trial in every year since.
Nonetheless, I still expect to be paid something.
Wilson appears to think that my expectations amount to an offensive concept.
He regards my expectation that I should be paid when I go in to battle to right “the most blatant injustice” as lacking in morality and integrity.
Wilson considers my expectation that I should be paid to do my job as “just a massive scam on the public purse…”
I will not apologise for my expectations.
(2) A criminal defence lawyer who does his job properly does much of it for free already.
A criminal defence barrister on a legally aided graduated fee case is not paid for time spent in conference; or the first 4 hearings in the Crown Court; or listening to interview tapes; or the second day of the trial.
He is not paid for the time it takes to prepare the case in advance of the hearings or the trial itself; or for the late nights of preparation during the trial itself after points arise unexpectedly; or for reading any material the prosecution call “unused,” because it doesn’t help them but might actually assist the defence.
In fact, he is generally not paid to read beyond page 10,000 of the prosecution case itself, unless he can convince someone faceless in an office somewhere that to have done so was reasonable, and provide a work log of all of the work he has ever done on the case, so that the “special preparation” provisions apply at an even more paltry rate.
He is invariably not paid for the hours it may take him to travel to and from court. For the graduated fee case, he is not reimbursed his travelling expenses.
Can you imagine, however, a criminal defence barrister telling his clerk, let alone his solicitor (who, incidentally, can claim for the travel time and cost) that he doesn’t fancy a trip to Preston/Cardiff/Leeds/Bournemouth, so perhaps the solicitor might kindly instruct him in a case at Inner London instead? Not if he expects to work again.
It is no better even in the really serious cases.
In the ironically named “Very High Cost Cases,” the criminal defence barrister is paid an hourly rate at a level that most plumbers would consider laughable.
However, the concept of the hourly rate does not mean that the criminal defence barrister then sits back and runs up hundreds of hours to bill with utter impunity.
Instead, he goes cap in hand to a “contract manager”, a person with neither legal qualification (much like Grayling then) nor courtroom experience (ditto) and asks, in advance, for permission to read the papers and prepare the case.
Generally, the conversation goes something like this:
Criminal Defence Barrister: This is a difficult and complex multi-million pound fraud/nasty murder case with thousands of pages of evidence. I wonder if I might have 3 minutes to find, read, cross-reference, schedule, makes notes about and digest each page of the witness statements please? And while we’re at it, perhaps I could have, say, 2 minutes to find, read, cross-reference, schedule, makes notes about and digest each page of the exhibits as well?
Contract Manager: Errr, no. You can have 2 minutes for the witness statements and 30 seconds for the exhibits.
CDB: Sorry, I thought you said I should find, read, cross-reference, schedule, makes notes about and digest a page of exhibited material in 30 seconds. Ha! That’s hilarious!
CM: I did. Except when the prosecution serve more papers, in which case, I’ll give you a block of hours that are the equivalent of 10 to 15 seconds per page, because, you know, you’ll be familiar with the case then, so won’t need to pay as much attention to additional evidence.
CDB: But I can’t properly read this case in that time. This is madness.
CM: Well, I have used all of my experience and wisdom gleaned from never having prepared a case myself, never having defended anyone accused of a crime, never having appeared in a courtroom and never having taken a law exam in my life, and I conclude that you can. So there.
So, what does the criminal defence barrister do then?
Let his solicitor down and return the case, leaving the client in the lurch?
Of course not.
He prepares the case properly and fully so that he can do his unfettered and fearless best in court.
It takes him two or three or four times longer than the time for which he will be remunerated by the contract manager.
But he does it anyway.
Because we criminal defence lawyers think it important to do our job properly.
(3) Criminal defence lawyers are not “so keen to make up so many spurious cases” and we are, in fact, doing the job as efficiently as we can already.
It would be churlish of me to remind Wilson of the SDT’s conclusions as to how he (if indeed it is the same John Wilson) habitually conducted his own legal practice.
If you, dear reader, need reminding, click here.
(4) The job of a criminal defence lawyer is not the legal equivalent of road sweeping. It’s not something to which anyone and everyone who is a lawyer in another discipline can just turn their hand.
Wilson’s suggestion is that every lawyer should do 10% of their work for free. I’m not entirely sure what he means by this; his writing style is conveniently lacking in clarity and exposition.
I assume he means that the contract law specialist should give up 10% of their time to do some criminal defence work for free, thereby reducing the drain on legal aid. Perhaps they could pop along to the police station at 3am to dish out some pre-interview advice.
I assume he means that the chancery barrister should give up 10% of their time to hop over to the Old Bailey and cross-examine a few witnesses in a murder trial for free, thereby reducing the need for legal aid to pay for defence counsel.
He cannot possibly mean that a criminal defence lawyer should commit 10% of their time to working for free….
We all spend at least 50% of our time working for free already.
And the other 50% of our time working for a pittance.
Grayling’s proposed cuts to legal aid rates for criminal defence practitioners are scandalous.
Do not join his Fan Club.
Do not buy into Wilson’s weasel words.