Guest Post by CrimeGirl: The fallacy of the fat cat legal aid lawyer

In the coming months, the tabloid “fat cat legal aid lawyer” staples are likely to re-emerge and recur with a vengeance, following the Ministry of Justice’s plans to slash legal aid fees paid to criminal law solicitors. In the din of misinformation that will be honked out by the MoJ to distract from the legal profession’s concerns, the truth may become estranged. This could have devastating consequences. If you are wrongly accused of a crime, your guiding light will most likely be a legal aid solicitor. Their importance to the functioning of our justice system is shamefully overlooked and underreported.

The Secret Barrister is proud to publish this exclusive guest post by barrister, former duty solicitor and fellow anonymous legal commentator, CrimeGirl (formerly DefenceGirl), who explains the reality of life for solicitors on legal aid.

 

@DefenceGirl

@CrimeGirl

One of the basic tenets of the Criminal Justice System in England and Wales is that every person being interviewed under caution by the police, no matter how rich or poor, is entitled to free and impartial legal advice.  As I used to tell my clients, even Richard Branson is entitled to free representation in the police station.

For each case the Legal Aid Agency pays the lawyer a fixed fee.  Those fees vary for some nonsensical reason depending on the location of the police station (or nearest police station).   When cases are not prosecuted, the case ends there, with that fixed fee.   On average it is circa £170.  That is all the firm receives for the totality of the work they put in.  For every police station lawyer working today, there will be numerous cases every week that are resolved by way of an ‘out of Court disposal’ such as a caution, or are dropped altogether.  Preventing charge in an appropriate way is an extremely positive result for the client and something that I took great delight in achieving.

Year on year, the number of arrests has dropped.  You will see this spun in the news as “crime falling”.  Be assured that crime is certainly not falling.  The number of individual criminal acts is not accurately reflected by the way those acts are recorded.  Custody stations across the country have seen greater than 30% reductions in footfall following a concerted effort by forces to achieve fixed targets.  The knock-on effect of this alone has been devastating for Solicitors and Barristers alike.

On top of that, a sizeable chunk of cases end at the police station.  Each case that resolves without charge culminates after its own hefty workload.  Children falsely accused of serious offences, removed from school, where Solicitors have intervened with the investigation on numerous occasions.  Countless vulnerable adults arrested for offences never capable of being made out on the available evidence, necessitating solicitors to attend the police station on multiple occasions, and who call their solicitors no less than thirty times over the months their cases go on.  Lengthy letters to custody sergeants and inspectors protesting length of bail and onerous bail conditions, threatening more formal legal action if they are not amended or relaxed.

Some of those files will comprise detailed reviews of statute and Court of Appeal or Supreme Court cases, lengthy letters to senior officers raising complaints, representations on points of law, or letters to other Solicitors requesting assistance in ancillary legal challenges.  Others will contain identity procedure attendance notes, multiple pages of written disclosure, defence witness statements and documents provided by the client to assist in preparing their defence.  They will include correspondence from employers, divorce paperwork and screenshots or emails from former partners, all of which need to be considered in detail so that the client can be advised whether or not the contents needed to be disclosed to the police in order to bring about a faster resolution to the investigation.

How much are Solicitors paid for all of this work?

Having worked for or on behalf of many differently sized firms with legal aid contracts, I can confidently say that all clients are defended robustly with a view to fending off a potential prosecution.  Every file attracts that paltry £170 I referred to above.  That £170* covers at best two hours of work, three letters and four or five phone calls.  It is the norm however for it to become a huge financial hole, representing a considerable overall loss in terms of spent fee earner’s working hours, calls and correspondence.

It bears repeating.  Every police station attendance is now considered a ‘loss leader’.  It is hoped  that remuneration may  occur in the future, either the client will be charged or if the best possible result happens and charge is avoided, one hopes, a word of mouth recommendation through excellent client care will materialise.

How can criminal defence solicitors survive in these circumstances?

The only way that firms or criminal departments have stayed solvent without taking on privately paid work is due to larger Crown Court litigator fees.  Each case that results in charge attracts funding under a representation order payable on a fixed fee basis, and when those cases are larger and more complex, (such as cases with lots of defendants at the Crown Court) that fixed fee rises.  When there is a huge amount of evidence for lawyers to read (more than 10,000 pages) the fee rises significantly.  That does not mean that those cases are ‘well paid’.  Let us not become distracted by the fallacy that any publicly funded criminal work is properly remunerated.  It is not an argument that is worth repeating here.  Larger litigator fee cases come closer to properly remunerating those who conduct them, than the smaller cases do, while remaining in stark and depressing contrast to remuneration available in any other area of law involving the same volume of work.

Those large cases are rare.  They come around infrequently and when they do arrive, Crown Court Judges have become accustomed to splitting large groups of defendants into smaller cases and putting pressure on defendants to plead guilty early, before evidence is served, with promises of sentence discounts. That cutting, pressure and re-organising reduces the financial value of the cases significantly.

The government is now proposing to reduce the amount of money it is willing to pay Solicitors and Barristers for those higher page count, more complicated cases.  No proper justification has been offered for doing this.  Lawyers still need to read every page of evidence in every case.  Failing to do so is negligent.  Relying on automatic computer processes to read evidence ignores the fact that documents are frequently hand-written and scanned, and omits the chance for human error in typing the evidence prior to service.  I say it again, failing to read every page is negligent.

The losses sustained by Solicitors at the police station and in the Magistrates’ Courts, and by Barristers  who fall into a loss by properly preparing poorly paid Crown Court cases are not properly balanced by the larger cases.  All cases should be remunerated fairly.  However, those larger cases go a way towards keeping firms and Barristers afloat financially.  The criminal justice system has already been slashed to the bone.  Police station fees have been reduced.  Magistrates’ Court fees have been cut.  Crown Court fees have been lowered.  Less people are being arrested.  All this after no rise in almost two decades, despite vastly increased living and business costs.  So many individual cases are routinely being driven into losses that criminal lawyers’ (particularly at the more junior end) are now very poorly remunerated.

Trainee Solicitors in crime can expect to earn between minimum wage and £18,000 a year.  When they qualify they can expect little over £24,000 nationwide.  Solicitors with up to seven years post qualification experience can expect to earn up to £32,000 a year, and all this comes bearing huge student debt and bank loans to fund their qualifications.  Paralegals are routinely paid between £13,000 and £20,000.  Even the most passionate believers in justice are deterred.

Great people are leaving the profession and almost no one is choosing to join it, which is a problem for the future.  It is our children and the most vulnerable people in our communities who will suffer.  With any further cuts whatsoever, we can be satisfied that the criminal justice system will collapse entirely.

As a law abiding tax payer you might think legal aid is an unnecessary expenditure, you never know when you might need it. No one plans to be falsely accused of a crime – just as no one plans to be a victim.

*Save for those that attract the “escape fee”.  Escape fees require many hours of attendance at the police station by the Solicitor in interview and equate to circa 4 x the standard fee.  These are rare, occurring only in complex and serious indictable only offences and almost always result in a positive charging decision. (I think it requires more than twelve hours and remember that you still aren’t remunerated for every hour you spend there).

You can (and should) follow CrimeGirl on Twitter at @CrimeGirl. 

Why we need legal aid for the worst people in society

As the digital revolution in the criminal courts affords all stakeholders (as we must now refer to ourselves) the bonus of many accumulated hours of waiting patiently for online forms to load and Wi-Fi signals to fade in and out of range, so I find myself with expanded time to ponder the weightier philosophical concerns of our age. By which I mean idly engage in Twitter debates with strangers.

In particular, I’ve noticed an increase in the number of people getting cross about legal aid. I don’t know whether this can be causally linked to the backing tracks expertly laid down by our new Lord Chancellor, adopting the smooth jazzy beats of her pre-predecessor Chris Grayling to create a steady percussive “legal-aid-bad, legal-aid-bad” filtering through her more recent public pronouncements. Or whether it is linked to the influx of legal aid scare stories pumped out of the Ministry of Justice’s favourite tabloid antagonists. Or whether, like the tide, anger over legal aid is perennial, dipping out of eyeline only temporarily before its inevitable resurgence in deference to the gravitational pull of the moon. Or, for those of the Douglas Carswell Academy of Astronomy, the sun.

But whatever the cause, it’s always dispiriting to see the Legal Aid Monster rear its mythical head, not simply because the call for its restriction threatens my narrow self-interest (DECLARATION: I have fed and clothed myself thanks to legal aid), but because it again reinforces how poor a job we in the system are doing in explaining to people why legal aid matters.

The Legal Aid Monster. Or Honey Monster. I forget which.

The Legal Aid Monster. Or Honey Monster. I forget which.

This morning I have enjoyed a spirited exchange of views with a Twitter user who I understand to be involved with or linked to the police, whose views on criminal justice I always enjoy hearing (particularly the anonymised Tweeters with the liberty to speak freely about the chaos in which they are forced to operate, such as @InspGadgetBlogs and @ConstableChaos). Quite often, we echo each other’s despair at the non-workings of the system; sometimes, police officers offer an insight into problems that barristers don’t see first-hand, but which inform the issues that we deal with in court. Today, by contrast, my partner and I came at the issue of criminal legal aid from the polar extremes. I think there’s not enough of it, and that people are often left without adequate (or any) representation; he thinks that there is far too much, and that it should be removed entirely from repeat offenders.

His view, I speculate, is one that might prove popular with people fortunate enough to have avoided the criminal courts. He is certainly not the first person to have expressed it to me. But it’s a view which, with respect, is based on a fundamental misunderstanding of the purpose and function of criminal legal aid.

 

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Let’s start with the proposition that legal aid should be “for the needy”. A lot turns on that definition, but it is employed above in contradistinction to “career criminals with multiple convictions”. So I infer that by “needy”, the writer means “not guilty”. Or at least, “not guilty very often”. Which is problematic. For me, legal aid should be available to anyone whom the state accuses of a criminal offence. Like healthcare or education, it should be a universal civil right. You don’t choose to get ill or be born, so healthcare and education are provided by the state. You don’t choose to be accused of a criminal offence, so you should have the right to properly funded legal advice and representation when the state engages you in criminal litigation. Of course, some people invite criminal proceedings by committing the offence, but we only know that once proceedings have started and guilt has been admitted or established. I have no problem in principle with recovering the cost of legal aid and/or criminal proceedings from convicted defendants who have the means, but the flaw in the “legal aid for the innocent” argument is that you need the former before you can determine the latter.

Why do I say that? Surely, channelling the mantra of the magistrates’ court, a defendant knows whether he’s done it? Well, he may know that he’s done something. But knowing whether he’s committed the specific criminal act alleged by the state is something else entirely. He may know, for example, that he pushed past the shop assistant, nipped behind the counter, tried to grab money from the till but in fact grabbed a tenner that (unbeknownst to him) a customer had just put on the counter to pay for some cigs, and then grabbed the cigs and threw them to his mate (unwittingly striking him in the  eye and blinding him) before running off and accidentally knocking over a wonky display of uber-breakable glasses on his way out. But, as law undergraduates would be asked in this funhouse of an exam question, who is guilty of what? Is the first defendant guilty of theft? Burglary? Robbery? An attempt at one of those? If so, who is the victim? What level of assault is he guilty of, if any? Is he guilty of criminal damage if he didn’t mean to knock over the display? What of his mate? Is he guilty as a joint principal or an accessory? Or is he guilty simply of handling stolen goods? Or receiving criminal property? And what difference would the various permutations of charges make to his sentence?

My adversary suggested that a career criminal would know just as well as a lawyer which offence he has committed. My response was that his having attending a dentist once a year for 50 years does not qualify him to conduct root canal surgery. If I’d had more than 140 characters, I’d have posted the paragraph above. Criminal law is complex. It’s not something that can be absorbed by proximity. And it matters that it’s done right.

It matters because, whether you’re a nice or a nasty person, you should not be convicted of an offence that you have not committed. Not only because it offends fundamental notions of fairness and justice, but because once we accept wrongful convictions as an acceptable bargain in a cost/benefit trade-off, we endanger not just the individual but wider society.

If, as the commentator suggests, we remove legal aid from repeat offenders, we put them at the mercy of the prosecution agencies. It will not simply be a case of a defendant mistakenly pleading guilty to robbery (maximum sentence life imprisonment) when he is in law only guilty of theft (maximum sentence 7 years), but of defendants, unqualified and unable to present their own defence, being convicted of offences of which they are wholly innocent. Because the police do arrest entirely innocent people. And the CPS charge them with the wrong offences. And the only obstacle to a lengthy, undeserved prison sentence is a defence solicitor or barrister, challenging the prosecution case, testing the factual and legal correctness of the allegations and fighting their client’s corner. Without a lawyer, a defendant is often a sitting duck.

And if there were a system where the police, under pressure (as they are) to improve clean-up rates and buff their statistics, knew that charging repeat offender Big Dave with a burglary would see him being denied legal aid, whereas charging first-time offender Small Steve for the same offence would result in a defence lawyer fighting his case, there is a mighty incentive in place to pin the crime on the man with two arms tied behind his back, irrespective of the evidence. While most police would not, some would bend to the  temptation. Some already do. I see it every day.

We would thus roll into a system that encouraged prosecutorial malpractice. The wrong people being convicted, and the even wronger people – the real burglars, thugs, rapists – getting away with it.

Legal aid for career criminals isn’t a treat or privilege to personally enrich them. It is a safeguard that ensures, as best we can, that when the cell door slams shut, society has satisfied itself that the person inside is the person who is guilty of the offence. Removing legal aid in such cases may satisfy some primal urge to vengeance, or natural hostility towards those who repeatedly breach our social and criminal codes, but it makes us no safer, saves us no money, and, in the long run, would make our streets a far more dangerous place.

It’s official: the Criminal Justice System is broken, and no-one seems to care

Friday 27 May 2016. The day on which the following events were deemed worthy of historical record on the front pages of the English press:

dailystar independentexpress ft guardian mail metro mirror telegraph thesun times

It is also the day, you may be interested to know, that the criminal justice system was officially declared “close to breaking point”. Not by me or my kindred professional complainers, but by Parliament. The House of Commons Public Accounts Committee today published a report, “Efficiency in the Criminal Justice System”, in which the very first line is:

“The criminal justice system is close to breaking point.”

Easy pickings, one might think, for magpie subs struggling to summon a splash on a topic of public interest beyond facile comments by a fame-chasing wannabe TV bimbo, or something that happened on Britain’s Got Talent. [If that sentence had been pasted closer to the first two front pages above, that joke might have worked. As it is, we’ll move on and pretend nothing happened. But just so you know, that could have been something really special.]

But no-one took the bait. Notwithstanding that the facts of the report would have been available, and known, prior to last night’s print deadlines, the tumbling of justice was apparently considered not of general interest. Let alone worthy of usurping Johnny Depp’s divorce.

In truth, much of what’s in the PAC report is drawn from other non-reported reports, and there is nothing new to surprise those stuck festering in the system. The procession of complaints can be recited rote by anyone involved with criminal justice, like a contestant trapped in a Groundhog Day version of the Generation Game conveyor belt:

  • Unacceptable delays – months, years – in cases getting to trial;
  • A consequent enormous backlog of serious criminal cases;
  • Gross inefficiencies in preparing and reviewing prosecutions;
  • An overall system that is both underfunded and overstretched;
  • A lack of accountability;
  • “Cost savings” which simply shunt costs from one part of the system to another;
  • Callous treatment of witnesses and victims;
  • Insufficient judges, CPS staff and court sitting days to manage the caseload;
  • No credible plan by the Ministry of Justice to use its court buildings efficiently – e.g. £100,000 was recently spent on installing new windows at Torquay magistrates’ court even though the MoJ intended to close the building down;
  • No thought given to how defendants, jurors and witnesses might physically get to court once the MoJ has closed down all the smaller rural courts, and they have to travel 100 miles without access to regular public transport.

Those familiar friends all feature for express criticism in the report, to which I might add, for completeness, the mischief caused by interpreters not turning up, prisoners not being brought to court, legal aid being removed from middle-class defendants, the disastrous privatisation of the Probation Service and the omnipresent shadow of CPS disclosure failings. And of course many, many other prizes, none of which present as novelty to lawyers, defendants, victims or witnesses.

But to those fortunate enough to currently find themselves outside the criminal process, who may one day, through the vagaries of fate or circumstance find themselves dragged screaming into the system, either as the victim of a crime or accused of one, this surely has to be big news? It cannot be a story that peaks at item 3 on the Today programme 7am bulletin, before being folded and put away in a drawer until the next revolution of this relentless cycle of despair.

It deserves more. It deserves anger. Passion. Rage. Frustration. Umbrage. Indignation. Shock, awe, outrage, hysteria – everything that social media is accused of being, and often is, our entire society should be right now. Because a functioning justice system is vital to a functioning society. It is as crucial as health. Education. Economic policy. Because without proper justice, the social contract by which we all live crumbles. I cringe as I write this because of its sixth-form general studies simplicity, but plainly somewhere in our society there is a blockage. And people have stopped caring, beguiled by an implicit cocksure certainty that the courts – and crime in particular – is something that only affects Other People.

Early on in my career, due to CPS failings, a defendant got bail. He went on to kill. I have seen – we have all seen – provably guilty people walk free, and not-guilty people locked up. There’s no use in squealing for extra bobbies on the beat if nearly 40% of the wrong-uns they catch don’t have their cases reviewed by the CPS, and as a consequence don’t get justice. There’s no point in reporting an assault where you’re going to be cross-examined on the minutiae of that day two years after the event, with the inevitable gaps and inconsistencies in your truthful account providing the key to your tormentor’s acquittal. And if you are accused of something you didn’t do, for which you could lose your job, your home and your liberty, it’s too late at that point bemoaning the delay in your case being heard, the failure of the CPS to disclose crucial material that would secure your acquittal, or the injustice of a third, fourth or fifth adjournment of your trial because the MoJ refuses to keep open enough courtrooms.

Criminal justice matters. If the House of Commons had published a report that opened with the conclusion, “The NHS is close to breaking point”, that would be headline news. Editorials would be screaming for ministerial accountability. If the report concluded that the Department for Health had “overstretched” hospitals and “exhausted the scope to make further cuts” – and yet the DoH insisted that a further 15% would be cut from the budget by 2019/20, no-one would believe it. The injustice – the human casualties of this macabre, sadistic approach to administering a fundamental pillar of developed nationhood – would be the headlines. Their stories, their misery, their pain.

Not Alesha fucking Dixon.

Ok BBC, so what SHOULD we spend defending criminals?

I shall be brief and to the point. I had not planned on blogging today, in light of a fairly anodyne episode of The Prosecutors last night in which, aside from the Chief Prosecutor mis-stating the legal definition of murder, nothing arose to add to last week’s general complaints. I was therefore looking forward to a day off.

Enter the BBC. With this:

Now, this kind of “story” I’ve come to expect from certain news-peddlers. The Mail, the Telegraph, the Mirror, The Sun – they kneel, supine and obedient, mouths agape and greedily trembling with the anticipation of swallowing whatever foul excretion the Ministry of Justice cocks pump in, which they will then dutifully spit out on demand like mendacious pez dispensers.

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But the BBC? Come on, chaps. Where the flip are your news values? Just what is the story here? If it’s the sheer horror of bad people “getting” taxpayer’s money to spend on defence lawyers, then you’re missing an awful lot of stories. 600,000 per year or so, in fact. But assuming the BBC hasn’t gone all Chris Grayling on us and developed a reflexive aversion to the concept of legal aid – of people prosecuted by the state being entitled to competent legal representation – then their “angle” must be the tried n tested bait of, “Isn’t it terrible how much money these bad people are entitled to”. Like £400,000 was wired to their bank accounts for them to wantonly fritter away on Marlboros and Special Brew and Sky TV and quadbikes and all those other things that this government assumes welfare benefits really goes on.

Well if that is your angle, Daily BBC, then you’re going to need to provide some context for this story to have any meaning. In particular, I’d suggest you need to be prepared to answer these:

1) How many hours did the defence solicitors spend preparing the case? I’m talking hours at the police station, hours of conferences with the client taking instructions, hours taking witness statements, instructing experts, drafting defence statements and proofs of evidence, attending on the barrister at court, photocopying, reading the (no doubt for a murder of this size) considerable volume of papers.

2) How much money did the defence solicitors spend preparing the case? That nice juicy figure is gross. Out of that, the firm will have to pay staff wages, holiday pay, pensions, sick pay, building rent, professional indemnity insurance, admin such as photocopying and printing (as the CPS no longer serve physical paper cases), experts’ fees, travel to court, travel to prison. If you’re not including those, it’s akin to saying that a builder who charges you £500 for materials and £100 labour is creaming in £600 an hour.

3) How long did the barrister spend preparing the case? How many barristers were there? How many hundreds of hours went into preparing this murder? How many pages of evidence were there? Hundreds? Thousands? How many boxes of unpaginated disclosure did the barrister(s) have to trawl through?

4) How long was the trial, and how many hours each day was the barrister (a) in court; and (b) preparing in the evening for the following day? How many complex legal applications required lengthy skeleton argument and extensive legal research?

5) Are you aware that the figure of £400k includes VAT? How does that affect your scoop?

6) That all worked out, what was the actual net hourly rate of these professionals, who, let us not forget, will be among the very finest in their field?

7) Is that net figure too high? How does it compare to other professions? To other areas of law? To medicine? To accountants? Architects? Fluffers? Zookeepers?

8) Returning to your headline, if £400,000 is too much for society to spend on defending the most serious offence in English law, let’s have a comparison – how much was spent by the police on investigating, and by the CPS on their caseworkers, in-house lawyers and instructed Q.C.? Was it more or less than £400,000?

9) What figure would you say is reasonable, BBC, for a civilised society to spend on safeguarding the rights of two people accused of a crime carrying mandatory life imprisonment? If not £400,000, then what? Give us a figure. Show us how and why it should be less.

I do not have the answers to the above. I wasn’t in the case and haven’t done the research. But I don’t have to, because I’m not the one presenting this out-of-context figure as somehow imparting a greater meaning. If the BBC considers itself a serious bastion of fair and impartial journalism, it needs to do better than recycling MoJ press releases aimed at no higher cause than fomenting a public association between “legal aid”, “fat cat lawyers” and “undeserving child murderers”.

Shame on you, BBC.

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.

Michael Gove is a sincere, intelligent man who is doing the right thing. And we trust him at our peril.

Gawd bless that nice Mr Gove!

Why, in only a few months he has already been fulsomely complimentary about how smashing we barristers are, has made some tremendously liberal squeaks about rehabilitating prisoners, and successfully squared up to Foreign Secretary Philip Hammond on how it’s a rum idea to offer to teach the Saudis how to dismember their own prisoners. And now, for his greatest trick – his Statue-of-Liberty-moment – he is going to make the Criminal Courts Charge disappear!

I use the word trick advisedly. Because, if we accept newspaper reports, there’s a rather pernicious small print, rendering the spectacle less David Copperfield and more Penn Jillette firing a nail gun into Teller’s crotch, only with real nails.

There's some clever metaphor here, I'm sure.

There’s some clever metaphor here, I’m sure.

The trade-off, we are told, for Mr Gove mercifully scrapping the Criminal Courts Charge – the mandatory fixed financial penalty of up to £1,200 imposed upon every convicted person regardless of their ability to pay – is a Robin Hood tax on the big swinging City Dicks, Toms and Harrys raking in oodles from their commercial law practices. A one per cent levy on the turnover of the top 100 corporate firms, raising an estimated £190 million, is what Mr Gove will be forced to implement. Reason being, The Times informs us, those meanies at the Treasury, who are insisting that the financial hole of between £65m and £90m caused by abolishing the Criminal Courts Charge be plugged.

So a poll tax on the poorest is being replaced with a one per cent levy on city law firms grossing in excess of £19bn. What’s not to like about that?

Pretty much everything.

Put aside the question of whether it is fair to impose additional taxes upon a specific sector of the workforce for the purpose of funding a public service. Those paid far more than I am can argue their own corner, or at least should be capable of doing so given their hourly rates. My fear, the terror lurking at the heart of Mr Gove’s proposals, is what this represents.

Let’s dispel one myth – Mr Gove does not need to find money to bin the Criminal Charge. The Times rehashes the figures waved about in the MoJ’s laughable impact assessment, which optimistically opines that by 2017/2018 the Charge might generate a net £85m per year. The assumptions lying behind this figure are legion and unsustainable: that the number of defendants appearing before the courts will remain static (it has been falling year on year); that the collection success rate will be broadly similar to the collection success rate for collecting fines (fines are means tested and imposed on only those who can afford to pay; axiomatically there will be far more defaulters on an arbitrary penalty imposed irrespective of means); that it will cost nothing to enforce the Criminal Courts Charge (it costs £20m per year to enforce fines, and it is a safe assumption that enforcing the CCC will be at at least the same level, if not significantly greater). Indeed, when the impact assessment factors in a modest estimation of enforcement costs, it concedes that the Charge could cost the taxpayer £20m this year (2014/15) and £15m next year (2015/16).

The CCC could be scrapped immediately. The Treasury knows it is a non-starter. It was never designed to generate income – it was a blood sacrifice on the altar of the putative leadership campaign that Chris Grayling’s ego convinced him was his destiny.

No, the reason Mr Gove is happy to abandon the Charge is that it provides cover for him to do something he has wanted to do since arriving in post. Something he set out in his inaugural address to the Legatum Institute. And that is to remove the criminal justice system from the ambit of public funding altogether.

In Mr Gove’s vision, funding shortfalls in the criminal justice system – the courts, the Crown Prosecution Service, legal aid – should be remedied not by an increase in public funding, but by lawyers, whether through further, directed taxation on city firms, or by the extension of pro bono work. And the message this sends is deeply troubling. It reinforces the notion that a functioning and fair criminal justice system is a luxury not worthy of funding through general taxation. If we must have it, we’ll have a whip-round among the rich kids and see if we can scrape enough together to keep it going. Perhaps ask them to do a bit for free. Have a raffle and get an unlucky competition law associate to knock out a rape trial for a couple of days to satisfy Clifford Chance’s pro bono quota for the month.

And once something is established as a luxury, we can afford to lose it. Or at least stop caring how well it is administered.

The British criminal justice system should be, and believe it or not was once considered to be, the standard to which other jurisdictions aspire. The public should be as proud of our courts as they are of our hospitals. It should be explained, to counteract decades of false reporting and mendacious Grayling-sponsored spinning, that spending public money on ensuring despicable people have a fair trial is as worthy as spending public money on ensuring despicable people have access to medical treatment. That legal aid is not a dirty word, any more than “free healthcare” is a luxury hogged by the undesirable underclasses. That a fair criminal justice system is not the zenith but the baseline of a civilised democracy.

Michael Gove is a very clever man. He is also a proven ideologue. No doubt he sincerely recognises the justice of revoking the Criminal Courts Charge, and this, when it comes to pass, is to be welcomed. But if this does transpire to be a Trojan horse ushering a remodelled narrative of criminal justice as an added bonus to the legal system – as something that need not concern most of us in our content, suburban lives – we should be very afraid indeed.

This article first appeared in Solicitors Journal last week.