Just a quick one. A number of people online were yesterday disturbed by this tweet from court reporting Twitter account @CourtNewsUK, relating to Michael Adebolajo, one of the two murderers of Drummer Lee Rigby:
Senior judge says it will be a ‘great pity’ if Lee Rigby’s killer isn’t given taxpayers’ cash to help him sue the government.
— CourtNewsUK (@CourtNewsUK) October 31, 2017
The story has been picked up by The Mirror, which gasped with similar horror that a “top judge” has “insisted [Adebolajo] should be given taxpayer cash to pay for his court fight against the Ministry of Justice.”
The anger has burned through the night and looks set to smoulder for the rest of the day, Radio 4’s Today programme finding space for a mention among its bulletins. And I understand why. On its face, this appears an instinctively unjust state of affairs. A High Court Judge loftily calling for yet more taxpayers’ hard-earned money to be poured into the pockets of a man guilty of unspeakable savagery.
But scratch beneath the surface, and you quickly see that there’s more to this story than the tweet suggests. For a start, no decision has been made to grant Adebolajo legal aid for his personal injury claim against the Ministry of Justice, which arises out of injuries he sustained while being restrained by prison officers. Indeed, personal injury practitioners will correct me if I’m wrong, but I understand that legal aid for claims of this type is vanishingly rare. And proceedings are still at an early stage; today’s hearing at which the judge’s comments were made was a preliminary hearing. Details are scant. It is not clear whether the claim has any merit at all; whether it will run to trial, or whether it will be struck out as entirely frivolous.
But let’s suppose that the claim is heading for a trial. And let’s suppose the judge’s comments above were fairly and accurately reported in their full context [SPOILER – they were not, and we’ll come to that]. Here, resuscitating a thread I posted yesterday, are my thoughts on why legal representation should be made available to Michael Adebolajo, at taxpayer cost if need be:
- Any trial will take far longer if he is not legally represented. The conclusive experience of the courts is that legal proceedings involving unrepresented parties take far, far longer than when lawyers are instructed. The reason is simple – law and court procedure is hideously complicated. It cannot be – despite what some DIY law websites will tell you – be mastered through Google. Unrepresented litigants, even those who are impressive experts in their own professional fields, will make errors and cause delays. Lawyers are trained to hone in on the issues of law and fact that best support their case. Litigants-in-person may not appreciate their best points, or how to concisely argue them, or how to apply the law. Judges loyal to their judicial oaths are required to assist litigants as best they can to ensure fairness, but this all takes time. The experience of the family courts, in which 34% of cases now involve unrepresented litigants on both sides since legal aid cuts in 2012, bears witness to this.
- Any trial will be far more expensive if he’s not represented. This follows logically from 1. The more court time that is taken up dealing with a case, the greater the cost to the court, and ultimately, if the money can’t be recouped from the losing party, the taxpayer. Providing legal aid will usually save money in the long run, as lawyers will (a) advise the client robustly if the claim is devoid of merit, potentially avoiding the need for any further hearings; and (b) ensure that any trial is conducted much quicker, and therefore much cheaper, than if the individual was self-representing.
- The experience for the witnesses will be much more unpleasant if he’s not represented. Have you ever watched a sadistic criminal cross-examine a witness in court? Put another way, would you like to be cross-examined by a wild-eyed terrorist blundering his way through a series of irrelevant and potentially abusive questioning over several hours, punctuated by interruptions from the judge shepherding the questioner back on track? Or would you rather be cross-examined for 20 minutes, politely (and slightly ineffectually) by me, with my natty court dress and solemn demeanour? The prison officers who are the subject of the allegations by Adebolajo will have to give evidence and be cross-examined by someone. For their own comfort and dignity, I’d be prepared to chip in for this to be done professionally. Which brings us to the next point.
- The allegations are serious. Adebolajo claims that the prison officers held him by the head and arms in such a manner that he lost two teeth. If he is right, the truth is far more likely to emerge if his case is presented, and the questions are asked, by a trained professional.
- Convicted murderers have rights. Our darker selves might secretly welcome the news that a convicted murderer has had a good roughing up. No more than he deserves, right? But the mark of our civilisation is that we hold ourselves up as better than the people who harm us. We do not descend to vengeance, much less vigilantism. For what he has done, Adebolajo will be imprisoned for the rest of his life. That is his punishment. It does not follow that public servants have carte blanche to use unlawful violence against him. As despicable as we may find him, we cannot let his actions degrade our basic standards of justice. If we do, he has won. Therefore if his rights are breached, he is entitled to a remedy. It may not taste nice. But the rule of law does not require that justice be dispensed only to people we like.
- There is a wider issue of public safety if he is being truthful. Aside from Adebolajo’s rights, there are also the rights of other prisoners to consider. If he is truthful, and prison officers have used unlawful force against him, this needs addressing. Because prison officers are not just in charge of the Adebolajos of this world, but many other prisoners who, by nature or circumstance, are inherently vulnerable to abuses of power. And some of these prisoners will be remand prisoners awaiting criminal trial. They have not yet been convicted of an offence, and some will never be. There are innocent people in the charge of the state in our prisons. They deserve an environment where they are not subject to gratuitous state-sanctioned violence.
- Adebolajo will not be “given taxpayer cash” whatever happens. The beloved tabloid trope envisages giant, Wheel of Fortune-style novelty cheques being proudly handed over, or oodles of cash being ladled into wheelbarrows and delivered to Adebolajo in prison, for him to fritter as he sees fit. This is a nonsense. Any legal aid granted would be paid – at modest rates – directly to regulated solicitors and barristers. There is no financial benefit to Adebolajo at all. If we start from the premise that he has no money, and so will not be able to pay for legal representation come what way, the options are stark: either he doesn’t pay and is unrepresented, with the consequences above; or he doesn’t pay and is represented in some form, whether under a conditional fee agreement (“no win, no fee”), by lawyers acting for free (pro bono) or through legal aid. We don’t know the details, but the judge who does appears to think that only the latter is a viable option at this time.
- The law is for the benefit of us all. As the Supreme Court was at pains to point out to the oblivious Ministry of Justice when recently ruling employment tribunal fees to be unlawful, court cases do not only matter to the parties involved. I’ll leave the articulation of this point to Lord Reed:
- The outrage isn’t that Adebolajo might be granted legal aid, but that so many others are denied the legal aid and help they need. This is borrowed in its pithy entirety from a tweet by barrister Douglas Lloyd (@DouglasLloydUK). There is certaintly an argument of disparity and unfairness here; but not the one upon which most are alighting. The devastation of legal aid and soaring increase in court and tribunal fees over the past decade have served to exclude vast swathes of mostly poor and desperate people from the justice system. This case raises questions – but distracted by our own uncritical rage, we are asking the wrong ones.
Putting the above together, I think there’s a compelling case for saying that justice – to all involved – is best served by having this man legally represented. Legal aid may or may not be granted; I do not know enough about this field to opine. But if it is, it will not be a taxpayer-funded privilege lavished on an ungrateful terrorist; it will be a sensible and restrained direction of public funds towards ensuring that justice is served to all involved – government, claimant, prison staff, prisoners and taxpayers. Which, when one looks at the judge’s comments in context, is exactly what he was saying:
Re the legal aid point, This sort of claim would be eligible for legal aid. He is alleging a deliberate assault by agents of the state which falls squarely within scope as an abuse of a position or powers within the meaning of Sch1 Para 21 of LASPO. Legal aid for prisoners allegedly assaulted by prison staff is actually fairly common.
Its only personal injury caused negligently by agents of the state which don’t fall within this definition – hence if a police officer deliberately drives his car at you, you can get legal aid, if he drives carelessly and runs your over accidentally, you can’t get legal aid.
On a general point, it’s rather depressing how many people in this country seem to actually have no belief in the rule of law. The outrage against Adebolajo receiving legal aid is essentially based on the view that, because of his crimes, he should not have the same access to the law as the rest of us and that extra legal punishments (being beaten up by prison officers) are fine.
Its indicative of the wholesale destruction of our values in the UK by the neoliberal establishment. The same depressing lack of belief in the rule of law has been bedfellows with the lack belief in a fair and equitable society. That is why there is no outcry about the chronicles of destitution and death brought about by the state persecution of the sick and disabled. Prisoners, the unemployed, and increasingly the elderly have also been skillfully woven into the subclass of those who are outside “productive” society, ie those who toil for neoliberal profit for the few. The knee jerk reaction produced by the “nudge” trigger phrase of “tax payers money” is the desired reaction of the subliminally conditioned minds that this person/ class / cause is the enemy.
One thing the “nudgers” don’t know is that the human mind is more complex and less degraded than their theories allow. Hence there are still these blogs like yours, Beast, and Mikes, and AAV, the Canary, and all the way up of course to the biggie – Jeremy Corbyn. Their simple message of a better way, bringing hope to millions, is something the nudgers can’t counter, because the human spirit is capable of having hope in the worst of times. My anger is also righteous, anger at the loss of life and hope and dignity of those crushed by this society that starts with a lack of belief in the rule of law which began under Thatcher with her denial of Society, to the state dictated deaths we know will be the result of UC. This is the ultimate destination of an outlaw government, outside the UN treaties on Human Rights. Destination – death of many by the state. It actually takes my breath away to see how the welfare state has become perverted into an instrument of death hovering over millions,including 4 million children. This may start with one notorious individual and Legal Aid. But it reaches down into the dark sickness at the heart of this government and its ideology.
Even in countries where the Rule of Law is as generally respected as it is in the UK, there has always been tension between on the one hand the need for process and respect for order, and on the other hand visceral satisfaction in seeing the paedophile getting a bit of a kicking. As a reader of SB’s brilliant blog and as a sitting magistrate it’s clear where I stand, but the baying mob is built into everyone’s DNA. I try as hard as I can to ensure that anyone up before me understands the issues of the case and the process by which it is being decided. No defendant or witness should leave a court baffled, and without every effort having been made to allow them to have their say. However bonkers. However, in the days when I played contact sports I was occasionally not above summary justice of a more direct nature. The satisfaction of “that’s sorted you out, mate” lurks in most breasts whether it’s following a sly poke in the kidneys or the most hideous of crimes.
It’s hard to find evidence of there being any historical point where the rule of law was universally accepted and respected – let alone observed in practice. In Britain we can take pride in a history where the rule of law has had more traction than in many other places. Like democracy, though, its price is constant vigilance and constant active support.
Much of our print and online media veers between culpable oversimplification (laziness) and downright deception (lying). If we don’t want to live in Trumptown we have to follow SB’s determination to challenge misrepresentation and ignorance. And those of us in a position to do so must continue to preside over fair trials and to resist the constant pressure to prioritise expediency and economy – both of them so often chimerical.
Agreed. I think what I was referring to is a notion of “fairness” and “justice” which are not always the same as the law. Misrepresentation and ignorance (ably aided by propaganda) is the enemy of us all. That is one area, addressed by Steve’s blog here, and a very good blog too.
However, in the UK we have seen an increase in contempt for the law from the govt – be it in the election expenses (non) scandals, where years after the event, a few slapped wrists and small fines have allowed the elected status quo to carry on regardless. Then there are the constant breaking if law by the DWP, where the worst example was “fixed” by retrospective law, the refuge of rogue government. So there is also no recognition of the seriousness of the UN investigating and damning the abuse of the human rights of disabled and ill, which has undoubtedly killed people. So when I speak of the loss of the rule of law I actually mean a government that is now comfortable, no longer bothered about being bound by
law and the constitution.
I disagree that being part of the baying mob is part of our DNA, though undoubtedly there are a large number for whom civilised behaviour is barely skin deep. These are the base material for the lawlessness of the establishment, and agreed it is up to all of us to be vigilant and constantly challenge misrepresentation and ignorance.
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Thank you. Explained in language easily understood. I wonder if the tabloids might publish it? Suspect not. Will definitely be looking for your book in 2018.
Whilst I agree that this man should have publicly funded legal representation, I would suggest that your observation that “Providing legal aid will usually save money in the long run, as lawyers will (a) advise the client robustly if the claim is devoid of merit, potentially avoiding the need for any further hearings; ” is demonstrably wrong if a firm like Public Interest Lawyers becomes involved, or, alternatively, human error (as in the recent Leigh Day review) could result in the accidental destruction of relevant documents. Just saying.
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