The Legal Aid for Crown Court Proceedings Rules 2015

On the 5th of May 2015 The Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules (Northern Ireland) 2015 came into operation.

These rules are a direct attack on the capacity of legal defence practitioners to exercise their proper function both to their clients and to wider society.

When these rules were first introduced in 2005, rules which have been amended yet again, without the real impact of previous cuts being allowed to work through the system, the profession agreed to a system of “swings and roundabouts”. Simply put, the standard fee available in complex and difficult cases could be acceptable in the context of the same fee being available in less complex and involved cases. Accordingly, the less complex cases would compensate within that scheme for working on the more complex cases.

Repeated cuts since 2005 have confirmed the suspicions of some practitioners in 2005 that this scheme would result in the death of criminal defence services by a thousand paper cuts. The DoJ have taken considerably less time to effect those feared cuts than anyone could have anticipated.

It is not for defence lawyers to offer a minimum acceptable standard of defence representation, as suggested by some of our local representatives. That is not the professional standard expected of us by either the Law Society or our clients. To work to that standard is a breach of our rules of professional conduct. Defence solicitors should never countenance being placed in such a position.

Wider society demands that the innocent are acquitted and that convictions are safe. What the DOJ propose in terms of resources can deliver neither.

In the same way as we expect education and health provision to aspire to more than just the provision of a minimum acceptable standard, we should have the same expectations of the criminal justice system, asking it to aspire to more than a minimum standard of service provision.

This boils down to resources. These cuts, which are without a doubt an undisguised attack on defence lawyers, will lead to the inevitable result of defence lawyers not being able to properly resource the defence of those accused of the most serious crimes in the criminal calendar. The seriousness of these crimes is reflected in the decision to prosecute these cases in the Crown Court in the first place.

Those of us within the legal profession who work in the field of publicly funded criminal defence services do not work for the fees available to lawyers in civil litigation, commercial law or banking law.

But we deal with a more precious commodity.

We deal with the lives and liberty of individuals who could be our family, friends and neighbours, with the hopes and aspirations of families, with the poor and the vulnerable, with the disabled and those with profound emotional problems, with the troubled children of our society who are so sensitive to the wider failure of our politicians to deal with poverty and deprivation of opportunity, all who need strong and fearless protection.

We bring our expertise to bear on the lives of those accused of serious assault and murder, sexual crimes, offending that impacts on individuals and society like car crime, highly visible crime that makes the public feel unsafe.

Criminal defence lawyers, bringing their expertise to bear, work to avoid unnecessary trials by doing their very best to assist the guilty to come to the most important and difficult decision they will ever make, accepting when they have committed a serious wrong which will result in a sentence of imprisonment. That service to our clients and wider society is never drawn to the attention of the public but if not exercised with discretion and expertise would result in our courts crawling to a halt and victims being brought to court to provide evidence, with all that that entails.

Criminal defence lawyers simply ask for the proper resources so that we can provide the service we know we must. We know what defending our clients entails. We know how difficult this work is and how involved it has become. We have wages to pay, offices to run and an overwhelming imperative to exercise our professional obligations and provide our service to our client. If the resources are not available then the work cannot be done or in doing so law firms will be bankrupted.

Further, lawyers have a fundamentally important role to play in a properly functioning democracy. They hold public authorities, civil servants, individual government ministers and on occasion the Government to account. They are, on behalf of the public, a necessary inconvenience against the excesses of those in power.

There has never been a formal acknowledgement by the DoJ and its predecessor of the expertise and value brought to the justice system by criminal defence lawyers, not only in the recent past but extending back to the darkest days of the conflict.

Instead, since devolution there has been a process of demonisation of lawyers masking the reality that a top class service has been provided over many difficult years.

The thanks the profession has received is to suffer the cynical and vicious onslaught from the DoJ intended to out criminal defence lawyers out of business which only serves to prejudice wider society.

It is frightening to realise that certain players in government would prefer to see an end of to a confident and robust independent legal profession.

For all the reasons set out KRW Law Advocates shall be withdrawing from the provision of crown court criminal defence services until the High Court has ruled on the Judicial Review which is to be lodged by the Law Society. It is done with a heavy heart and a real sense of despair for the future of criminal defence representation.

We suspect the Court of Appeal will become increasingly choked up as a result of these new Rules.