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Monday Message 12.01.15

CBA Chairman’s Message:
Tony Cross QC 

Monday 12 January 2015


E: [email protected]
T: 07860 692693 

Access to Justice and a 3.1% rise in rail fares 
When will politicians of whatever colour learn the lessons of 1949; that access to justice in no less important than our rights to health and education?  The 1949 Legal Aid and Advice Act was intended to ensure that ‘no one will be financially unable to prosecute a just and reasonable claim or defend a legal right.’  In my view access to justice is no less important than health and education.

On Thursday and Friday this week solicitors’ organisations will renew their challenge to the new tendering process.  We have repeatedly warned the Government that these changes are bad for justice.  As Richard Miller, the Law Society’s head of legal aid, said recently: ‘We remain concerned that the tender for criminal legal aid contracts is unworkable, jeopardising access to justice by risking market failure which would leave people without representation and damage the livelihoods of many of our members.

That is why we sought a judicial review and have supported other groups to seek one too.’

As you will all know the interim hearing caused the tender process to be stayed however the Law Society has advised their members to ‘continue to think about how they might construct any bid they may wish to submit in the event that the process is restarted’.

Worrying signs about political views as to the justice system frequently appear in the national consciousness. From attacks in Court HERE and worrying expressions of further cuts to public services all cause us to question political commitment to effective justice.  And if this article by Jon Robins, editor of The Justice Gap HERE is accurate then the position under any Labour Government will be no different.
The cost of living, rail fares and unnecessary hearings
It now costs on average 3.1% more to travel by train. In just the last three years rail industry commentators say that fares have risen by 9%. These facts don’t mean much to anyone who is able to claim their expenses but to the thousands of barristers who this week will be making their way to courts across the land it makes a huge difference. The cost of a day return for example from Marylebone to Aylsbury is now a huge £31.20. Not too clever when a mention fee is precisely £0. 00!

Perhaps I can remind you of the President of the Queen’s Bench Division, Lord Justice Leveson  in R v Crawley and others:

The criminal justice system in this country requires the highest quality advocates both to prosecute and to defend those accused of crime: in addition, they are the potential judges of the future.  The better the advocates, the easier it is to concentrate on the real issues in the case, the more expeditious the hearing and the better the prospect of true verdicts according to the evidence. Poor quality advocates fail to take points of potential significance, or take them badly, leading to confusion and, in turn, appeals and, even more serious, leading to potential miscarriages of justice. We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work, developing their skills from the straightforward work until they are able to undertake the most complex.

Now between 2007 and 2013 the rates paid to advocates under the Graduated Fee Scheme had been cut by 21% in cash terms, equating to 37% in real terms.  We have often reminded government that as reported crime and the number of cases going to court has fallen so has the cost of legal aid.  There is not only no need for further cuts but a clear need for an increase in fees and proper reimbursement of travel expenses for reasons patently obvious.  
Apart from the direct effects of the cuts in criminal legal aid on barristers’ earnings, the cuts in criminal legal aid have had wider effects on the justice system and the profession. In a 2013 survey of the Bar, barristers were asked about their career intentions. Intentions to change are greatest in criminal practice, where 52 per cent of respondents said they intended to change from their current position in the next two years. 20% said they intended to change within the Bar, and 32% to leave the Bar altogether.
Our young members invariably start their careers with thousands of pounds worth of debt.  Low rates of criminal legal aid mean that in future only those with private means will be able to afford to specialise in areas of work such as crime which is predominantly publicly funded. I regularly receive reports of people of real talent leaving the criminal bar that they love to seek work elsewhere.

Two consequences arise from all this. It simply cannot be right as a base fact that barristers should be treated any differently to civil servants, judges and politicians in terms of travel expenses. Secondly these figures and facts should be very firmly in the minds of those who are responsible for administering the work of the Crown court.  We hope that Leveson LJ’s report will mean the end of unnecessary hearings. In the interim I intend to write to the Lord Chief Justice and each resident Judge reminding them of the true cost of ordering cases into lists and ordering the attendance of counsel. Perhaps the small minority of judges who engage in this unnecessary practice will think again.


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