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.

Crystal_Canyon1

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.

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Official: If you are accused of a crime, the government will pay more for someone to photocopy your case than for someone to defend you

This is not a complaint about what criminal barristers get paid.

Honestly.

There are plenty of such grizzlings on other posts over these pages. But this is not one of them. No siree.

Well not really.

Admittedly pay rates are a feature of this contemplation, but only as an adjunct to a broader, more depressing principle. And it all stems from this pretty picture:

A not-so-secret document

What we have here is a Freedom of Information Act disclosure from the Crown Prosecution Service. It’s a document that I’ve had knocking about my electronic armoury for a few years now. In it, the CPS respond to various FOI requests made in 2009 regarding prosecution costs applications in the criminal courts, including the question: On what basis are applications for prosecution costs against defendants calculated?

In response, the document refers to “a published scale of guidance for use by CPS staff, called Application for Costs against Convicted Defendants: Scale of Costs”. This scale is duly appended, and reproduced above. In short, the CPS will use a rough and ready estimate of the average costs incurred based on the stage at which the proceedings conclude – for example a guilty plea at the first opportunity before the magistrates’ court attracts a costs application of £85, whereas a Crown Court trial can attract up to £4,200 (and, in high cost cases where the CPS sniff that a defendant may be wealthy, often far far more).

This little chart has therefore served me well in adjudging, when prosecuting, where to pitch any costs application (assuming it is just to make the application at all). But despite this pretty picture peeking coyly at me day after day from behind the cracked confines of my iPad, it is only today that its real significance struck me, violently, like a bristlenose catfish across the chops.

Because paragraph 5 offers, for illustrative purposes, “average hourly rates appropriate to CPS staff”, as follows:

Lawyers – £69 per hour

Paralegals – £51 per hour

Support staff – £44 per hour

Now let’s be clear – these are not the values paid to CPS staff. Far from it. But they represent, by the state’s own admission, the value that the state attaches to the respective functions carried out by these employees. A fun exercise, and by “fun” I mean “simultaneously gauche and heartbreaking”, is to compare the value the state attaches to prosecution employees with the value it attaches to those representing the defence. Equality of arms, and all that.

Defence advocates are, in the majority of cases, not paid on an hourly rate. A convoluted Graduated Fees Scheme operates in the Crown Court, which ascribes fixed values to criminal cases based on the category of offence, with adjustments made depending on, among other factors, the pages of prosecution evidence (i.e. the witness statements, documentary exhibits, photographs, Records of Interview etc). Boiled down, the Advocates Graduated Fee Scheme will pay a set fee designed to encompass all or most of the work involved in the case – namely all preparation, three conferences (meetings) with the client, five court hearings prior to trial, and a two-day trial. (It is out of this fixed fee that barristers have to pay colleagues if we are unable to attend a hearing and someone covers it for us.)

To illustrate, the basic fee for a two-day burglary trial with 8 witnesses and 40 pages of evidence in the Crown Court is £653. If, as can happen, there end up being 5 hearings prior to trial – for example Plea and Case Management Hearings repeatedly adjourned because the CPS haven’t served the evidence on time or applications for disclosure – that might be another five days on which I have to attend court for this case. Or, alternatively, pay a colleague £87 to attend for me. Add in a couple of conferences in prison, which themselves each take half a day out of my diary, and it’s feasible that my fee will represent 8 working days. And this is excluding time taken to actually prepare the trial – read the papers, consider cross-examination of witnesses, draft Defence Statements, edit the police interviews, write my closing speech etc. So a pessimistic calculation might read as follows:

8 days in court/conference at 6 hours per day plus 6 hours to prepare the trial = 54 hours = £12.09 per hour. That is the gross rate that the state deems reasonable for a barrister defending a burglary trial, which could conclude in a prison sentence of up to 14 years.

A burglar

£6 net an hour to defend this fellow

Now that, I accept, is a particularly upsetting example. And the Legal Aid Agency would no doubt retort that I am mischievously throwing a giant tarpaulin over the swings, roundabouts and other playground paraphernalia comprising the bedrock of legal aid work, and ignoring the fact that there will be cases where significantly less work is required, and which result in a comparatively healthy fee.

So perhaps the most objective judge of the value that the state attaches to defence lawyers can be found in the few instances where hourly rates are paid. The table of fixed fees can be found here, at Part 2 reg. 24. As can be seen, hourly rates are rare – but they do feature, for example, in “wasted preparation” and “special preparation”. “Wasted preparation” relates to cases where the advocate has done significant preparation on a usually-complex matter, and for reasons outside their control cannot attend the trial. These types of payments are very rare – normally such time wasted is simply an occupational hazard carrying nil compensation. But where the strict criteria are met, an hourly fee can be claimed. “Special preparation” can be claimed where it has been necessary for the advocate to undertake preparation “substantially in excess of the amount normally done for cases of the same type”. Again, the Legal Aid Agency will channel the bonhomie and fair-mindedness of an insurance company when such a claim is submitted, but, theoretically, this work is payable at an hourly rate.

 For a “junior alone” – that is a run-of-the-mill barrister (not a Queen’s Counsel) with anything from 6 months’ to 40 years’ experience, the gross hourly rate that is deemed appropriate, in each instance, is £39. Thirty nine pounds.

Now return to the above chart.

That is £30 an hour less than the state bills for CPS lawyers. £12 an hour less than the state bills for paralegals. And £5 an hour less than the state bills for administrative support.

It’s worth repeating. If you are accused by the state of a serious criminal offence, the state values your defence lawyer at £5 an hour less than the prosecution office staff. The state, if you are convicted, will charge you more per hour for the person who does their photocopying than they are willing to pay for your barrister.

Again, I am not suggesting for a moment that CPS admin staff receive anything like £44 per hour. And I accept that many criminal barristers take home per annum significantly more than administrators. But there is an important principle at play here. This is not, for once, about what we criminal barristers earn, but what value the state attaches to effective legal representation. For every time a government minister, such as the charmless Shailesh Vara MP, bleats to the Daily Mail about the burden that legal aid rates place upon the hard-working taxpayer, someone should ask him whether he considers it reasonable to value legal aid lawyers at at least the equivalent of prosecution office support staff. And if he agrees, point out that he owes defence lawyers a £5 per hour raise.