Mr Gove must now hammer the final nail into Grayling’s legacy – and abolish the Innocence Tax

Last week, David Cameron offered a masterclass in how to employ a dead cat to maximum effect. A political tactic chiselled from the wisdom of Lynton Crosby – the Snarf to Cameron’s Liono, to maintain the theme – the Dead Cat postulates that, when events are going against you, you throw a dead cat on the table. All of a sudden the only thing people are saying is, “Holy moly, there’s a dead cat on the table”, and whatever was previously under discussion is quickly forgotten.


Very much alive cats

At PMQs last Wednesday, Mr Cameron caved in Kitty’s skull and tossed her lifeless form onto the front pages with the three little words: Bunch. Of. Migrants. Mr Corbyn’s crack team of student unionists took the bait, and suddenly no-one was really talking much about how the Bedroom Tax (or Under-Occupancy Penalty, to use its legislative name) was declared unlawful by the Court of Appeal, or, pootering slowly towards my real point, how Justice Secretary Michael Gove reversed yet another part of his predecessor, Chris Grayling’s, chimp-brained test-to-destruction vivisection on criminal justice.

The details of what Grayling proposed, and Gove has now abolished, are dealt with elsewhere with far more skill and aplomb than I can pretend to, but suffice to say that letting Grayling play with reforming criminal defence solicitors is the legal equivalent of letting Kanye play with Twitter.

It is to Mr Gove’s credit that he recognises this, and has added the Two-Tier contracting jiminy to an ever-growing list of smackdowns he has performed on Grayling policies – the prison book ban; teaching the Saudis the art of prisoner dismemberment; the Criminal Courts Charge; the human rights-busting Just Solutions International; the white elephant £100m “child prison”. But one policy that remains untouched, and which gains nowhere near the publicity that its abhorrence merits, is what from hereon I declare, in the argot du jour, to be called The Innocence Tax.

This is the Grayling-sponsored policy that means that you can be wrongly accused by the state of a serious crime, refused a penny of legal aid, and, when acquitted, find yourself bankrupted by legal fees that the state won’t pay. It has been mentioned in dispatches at the times of certain celebrity acquittals (such as, deliciously, when Tory deputy speaker Nigel Evans was acquitted in 2014 and raged against The Innocence Tax that his own party introduced), but is otherwise forgotten, until it bites.

Essentially, legal aid in Crown Court proceedings used to be available for all defendants. Depending on your income you might be asked to contribute towards the cost, which you would receive back in full if you were found not guilty. For those who wished to pay privately for legal representation – to secure a fancy schmancy barrister, rather than a hack like me – they would, if acquitted, be entitled to apply for a Defendant’s Costs Order, which would (subject to a costs assessment) reimburse them in full. In 2012, the government sought to make a quick saving by abolishing Defendant’s Costs Orders in the Crown Court. The rationale was that, as legal aid is available for all, if you go private, that’s up to you but the taxpayer ain’t paying for it. Like healthcare, the argument ran. You’re not obliged to use the NHS, but if you snub it for Bupa, you foot the giant bill.

The objection, of course, is that the state by and large doesn’t intentionally hospitalise you. Many felt that if the state chooses to engage you in litigation, it’s a bit rum for it to start circumscribing your choice of defence reps. In civil terms, it’s a bit like suing someone, but telling them that, unless they pick a lawyer of your choosing, you won’t pay a penny of their costs if they win. But, as this only really affected well-off folk, this little reform squeaked through, crushing the dreams and bank accounts of criminal practitioners into the bargain. Whatever the complaints, though, the main thing was that no-one would be left without legal aid if they wanted it.

We then move to January 2014, by which time Grayling was in full swing, slaughtering sacred cows left, right and centre and jumping hobnailed up and down on the genitals of justice. And so it was, on the 27th day of that month, the Innocence Tax was born. From that date, legal aid was removed in Crown Court proceedings for any defendant who had a “disposable household income” of £37,500 or more. They would have to pay privately. If acquitted, they would be entitled to a reimbursement, but here’s the kicker – the state would only pay up to legal aid rates.

Now legal aid rates are really not very much. Legal aid lawyers work at those rates, but often at a loss, and many barristers only remain financially viable due to the fact that they occasionally do privately-paying work, for which they can charge something closer to their market value. So now, if you are a defendant accused of something you didn’t do, and the joint disposable income of you and your partner is £37,500, even if you are acquitted you will have to fund the difference between the legal aid rates (that the state wouldn’t let you have) and the private rates that you actually paid. The only alternative is that you represent yourself in legal proceedings that could see you lose your liberty.

Retreating to my favoured health analogy, this is the government deliberately breaking your legs, and telling you that you have to go private, but that they will only contribute NHS rates. Or, otherwise, you feel free to treat yourself. See how that works for you, pal.

It is morally and philosophically indefensible.

And the consequences, as we practitioners see daily, can be life-changing. £37,500 may sound a fair wodge, but if you and your partner are both teachers, odds are that you will be caught. And if, heaven forfend, you find yourself accused of being part of a complex fraud conspiracy, which requires the expert assistance of a top barrister and a six-week trial, your private bill will run to tens, if not hundreds, of thousands of pounds. And you may be lucky enough to find yourself acquitted, penniless and homeless.

The Innocence Tax is a disgrace to civilised democracy. Its philosophical underpinning can only be that the accused is always in some way responsible for his being corralled into the justice system; or alternatively that so little does the average voter understand or care about the criminal courts, it is possible to butcher unscrutinised in satisfaction of Treasury diktat.

Such violent cynicism was the guiding principle of the previous Justice Secretary. If Mr Gove wishes to prove he is serious about disavowing Grayling’s reign of shame, the Innocent Tax should be the subject of his next public beatdown. He’ll at least have Nigel Evans in his corner.

One thought on “Mr Gove must now hammer the final nail into Grayling’s legacy – and abolish the Innocence Tax

  1. Pingback: It’s official: the Criminal Justice System is broken, and no-one seems to care | The Secret Barrister

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