31 January 2024 , 15:57
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Lawyers have won a bitter legal battle with the Government over funding for the "terminally broken" criminal justice system.
Judges said the legal aid system “is slowly coming apart at the seams” as it criticised decisions made by Dominic Raab during his time as Justice Secretary. Solicitors fear there could be other miscarriages of justice like the Post Office scandal if people do not have access to legal representation, as lawyers leave in their droves due to a lack of funding.
In a ruling on Wednesday, judges said Mr Raab's failure to obtain evidence to back up his decision not to increase fees for criminal defence solicitors was unlawful. The Ministry of Justice chose to up funding by 9%, despite the independent Bellamy review recommending a 15% uplift.
The court said officials did not breach their duty to provide a criminal defence service in failing to increase the fees to 15%, but that it was unlawful not to obtain further financial evidence about the impact of increasing fees less than the recommendation. It also found the Government unlawfully failed to ask whether lower fee increases "would, or might, still deliver the aims and objectives" of the independent report.
Dominic Raab's decision was called 'irrational' by lawyers (Getty Images)A three-day-hearing in December was told there is a risk the legal aid system, which pays for representation during police investigations and in court for suspects who cannot afford it, "will fail to meet basic needs of representation" and is "terminally broken". The number of duty solicitors providing representation at police stations has fallen by more than a quarter since 2017, according to the Law Society.
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Those remaining are in “thankless” work, with 24-hour on-call shifts that include long journeys to police stations in the middle of the night to provide legal representation to those arrested. Duty solicitors speaking to the Mirror emphasised the vital role they play in ensuring the justice system is fair, ranging from rooting out police corruption to checking breathalysers are properly calibrated after they've found someone over the limit.
Solicitor Nama Zarroug, who is based in Liverpool, emphasised justice cannot be served unless everyone plays their part. "The big thing really is the court itself could not function without us," she said. "Because you cannot bring a distressed person into the dock from the cells who hasn't got a clue what's going on. The court cannot make progress." She said duty solicitors deal with many people who are distressed but also vulnerable in terms of having mental health issues, learning disabilities, sometimes severe addiction issues or are youths.
Ms Zarroug added: "I think what's really important is that it is a basic human right in this country to have the benefit of a solicitor at the point of investigation. So, as you can see, with everything that's happened with the Post Office scandal, [there is a need] to be properly advised by your solicitor, not just about the allegations, but the conduct of the people that are investigating you. Bully tactics, lies, and - of course I mean, they say it doesn't happen - but corruption in police forces is not unheard of."
Justice Secretary Alex Chalk's department said it 'will consider the judgment carefully' (PA)Emphasising the importance of people having access to legal representation, she said she has seen people be charged with drink driving and only after the duty solicitor has investigated has it been found out the police's breathalyser was not properly calibrated. More generally she said she has "massive" concerns about artificial intelligence (AI) and an overreliance on technology within the police, from CCTV to facial recognition.
Solicitor Chloe Jay, from Winchester, also highlighted the importance of duty solicitors. “When you’re arrested and thrown into the criminal justice system, it sort of happens to you, nobody chooses that," she said.
"The Post Office scandal has been a fantastic reminder for everybody that people being in the criminal justice system doesn’t mean you’re guilty or that you’ve done anything wrong. You can just find yourself at the mercy of it - and it’s a huge machine, the criminal justice system.
“You have the might of the constabulary, with multiple detectives and administrative people, the powers that they have over CCTV and witnesses, they have all of that against you. The only person you will see in that process who is there to look after you and give you advice and remind you of your rights is the duty solicitor."
Solicitor Katy Hanson, who is based in south-west Wales, emphasised that anyone can end up in the criminal justice system. “People think it will never happen to them, that they will never be in the wrong place at the wrong time or their son will never be involved in a fight on a Saturday night and end up in the Crown court as a result," she said. "Anyone can end up in the system and if you are, you want it to be fair and you want it to be right."
She said access to legal representation is a “fundamental” right, adding: “There are cases now that are coming to light where there are significant miscarriages of justice. I fear there will be more because if you don't have an effective defence or you have people that are under huge pressure and dealing with too many cases, then things inevitably are going to be missed.
"If you have a police force that is improperly staffed, that isn't given the resources that it should be, then they're going to make mistakes. I think all aspects of the system are in deep trouble and I don't think the public realises it. I think they think that just the system will be there for them."
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Nick Emmerson, president of the Law Society, which brought the judicial review against the Ministry of Justice, called on the Government to implement the full recommendations of Lord Bellamy's report.
He said: "We are delighted the High Court has recognised that then Lord Chancellor Dominic Raab's decision was irrational. We may have won the court battle but it's the public who will lose out in custody suites and courtrooms across the country unless the Government takes immediate action to stop the exodus of duty solicitors from the profession.
"We are already seeing that there simply aren't enough solicitors to represent suspects at police stations and magistrates' courts day and night across the country. This situation will only get worse, with potentially dangerous consequences for society."
A Ministry of Justice spokesman said: "While the claimants were successful on specific narrow grounds, the majority of their arguments were rejected by the court. We will consider the judgment carefully.
"Just this week we announced a consultation that would lead to £21million being invested in criminal legal aid solicitors. We expect our existing reforms to increase spending on criminal legal aid by up to £141million a year."