New legal aid cuts could restrict lawyer-client contact

The government is taking what it calls a "fundamental look" at the legal aid system, and one of the outcomes could be that legal aid solicitors will no longer be paid to visit clients detained at police stations.

Jonathan Djanogly is impressed by a "virtual courts" scheme

But surely there have been endless reviews already? Is it not about time the government actually disclosed its plans for cutting criminal legal aid?

"You're absolutely right," Justice Minister Jonathan Djanogly told me for BBC Radio 4's Law in Action programme this week. "What we don't need now is another review. And that's why we're not calling it a review - it's a policy assessment."

What is the difference? "We are looking at what we have got and then we are going to come up with some proposals," he explained. The government will then put these out to consultation.

Market forces

I tried another approach. Jack Straw, Justice Secretary in the Labour government, had thought there were too many lawyers doing criminal defence work. He wanted to cut the number of suppliers by 75%, leaving no more than about 400 or 500 law firms providing legal aid for the whole of England and Wales.

But that was then and this is now. "We have no target for the number of lawyers that we need," Mr Djanogly said. "The market will set the number."

Surely market forces will drive down quality, as lawyers undercut each other by taking on as many cases as they can manage for the fixed fee on offer?

"That is the risk," the minister frankly admitted. "But I think we can put in place safeguards." He acknowledged that some clients might not be able to find lawyers in rural areas and that solicitors serving ethnic-minority communities in urban areas might find the going tough.

But Mr Djanogly shared the Law Society's view that new ways of working were required.

Virtual courts

Did that mean solicitors would no longer be paid to visit clients being detained in police stations?

The minister responded by telling me how impressed he was with the virtual courts scheme, under which defendants can appeal in court by video link from London police stations. Defence lawyers could be in the police station with the defendant; alternatively, they might be in court.

But if lawyers were in court, they could not be in the police station having a quiet word with the arresting officer. Surely it was essential that defence lawyers should be able to talk to their clients face-to-face, rather than by telephone or on a video link?

Jack Straw had wanted to cut legal aid suppliers by 75%

"I don't believe it is essential in all circumstances," the minister replied bluntly.

So the lawyers we interviewed for Law in Action were right to fear that the government would no longer pay for solicitors to visit clients detained by the police.

"There is always a risk of abuse at the police station," according to Stuart Matthews, co-director of a large criminal legal aid firm in Oxford. "And without people at the police station, that power goes unchecked. When it's abused, you end up with miscarriages of justice."

Laura Janes, a children's solicitor and caseworker at the Howard League for Penal Reform, has seen cases that made her jaw drop.

"I had a terrible case earlier this year which involved a 12-year-old child in a secure children's home," she told me. The boy had been convicted of house burglary.

A first-time offender, he was serving the equivalent of a one-year sentence. Laura Janes did not believe the court had even had the power to pass a sentence of detention in a case of that kind.

"We subsequently went to the crown court and the judge made it very clear that he didn't think that the sentence had been available - and that in any event a court, properly advised, would never have imposed it.

"This is the kind of thing that I think is at risk of happening more and more when we rely on inexperienced staff to carry out potentially complex work."

Even so, solicitors' leaders were refreshingly frank when I suggested that there were more legal aid lawyers than we needed.

"Nobody from the Law Society is suggesting that the government has an obligation to bankroll solicitors," its chief executive, Desmond Hudson, told me firmly. It was right for the government to buy legal services in the most cost-effective and efficient way.

That might mean contracting with just 10 solicitors' firms for the whole of Greater Manchester.

"But those 10 firms will have to have a network of sub-contractors," Mr Hudson added. And those sub-contractors would cost less than if they were running their own firms.

However, Jane Hickman, a solicitor who specialises in miscarriages of justice and criminal appeals, was against the idea that lawyers who lost their contracts as primary suppliers should be guaranteed jobs as secondary contractors.

"The model that we need to leave behind in history is that everybody who wants to work in legal aid is able to do so."

You can hear Joshua Rozenburg's Law in Action programme on the BBC iPlayer.