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A Reflection on the Cutting of Legal Aid and its Effect on the Criminal Court

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


Access to Justice is a fundamental democratic right and ensured through legal aid which was introduced along with the rest of the welfare state in the 1940s by Clement Attlee’s Labour government, post-WWII. It has been described by Jeremy Hutchinson as the NHS of the legal system. Legal Aid itself lacks a constitutional underpinning as seen in the US where a defendant’s entitlement to a lawyer in a criminal case is enshrined in the Sixth Amendment to the Constitution. In its current state, the right to legal representation is covered in Article 6 of the European Convention of Human Rights and receives protection under the rule of law. However, this fundamental right has arguably been undermined since the coalition government’s reforms.



The protests about cuts on legal aid have arguably received an undeservingly inadequate amount of attention. The cuts to legal aid, and on a wider scope the budgetary cuts to the Ministry of Justice have proven to be the largest budget cuts on any government department in the years 2010-11 and again in 2019-20. These cuts were initially made as part of the government’s austerity measures in the face of the 2008 financial crisis. Tom McNally was the Liberal Democrat responsible for implementing the Legal Aid Sentencing and Punishment of Offender’s (LASPO) Act and pushing these cuts through Parliament. McNally has since expressed some regret regarding the Act including the far reaching and unprecedented effect the cuts have had in the family courts.[1]However, in the aftermath of these reforms the post-implementation review by the government on LASPO concluded that the Act has been ‘partially successful’, but this is an over-exaggeration and the reforms introduced during the coalition era have proved to be unsustainable.


The effect of the Act can be seen in family courts and criminal courts. One of the sole aims of the LASPO Act was to reduce criminal legal aid since at its time of implementation, legal aid had reached £2.1bn, and half of this amount was infiltrated into the criminal division.


The Ministry of Justice initially defended the legislation, stating that it would keep legal aid-

"where legal help is most needed, where people's life or liberty is at stake or they are at risk of serious physical harm, face immediate loss of their home or their children may be taken into care…”.

They further added that legal aid will always be available in “criminal… proceedings”, however, the LASPO reforms have had destructive effects in the criminal courts. [2] This can be seen where defence lawyers must fulfil their professional obligations without remuneration and this is ‘prejudicial to the defendant’.[3]Other indignities inflicted by the financial cuts have been seen wherevictims of domestic violence are subject to cross-examination by ex-partners (despite government pledges to end the practice) due to their lack of legal representation (the number of unrepresented defendants at any stage of their trial was 1% in 2019)[4]. Such a practice seems abhorrent to the nature of criminal proceedings involving survivors of domestic violence and sexual assault, since these trials are already painful[5].


Further the means testing introduced in the LASPO Act for assessing eligibility, has proven to be inadequate since it has not been adjusted in line with the cost of living since 2010. Thus, the recent failure to update financial eligibility thresholds, lawyers say, has resulted in few defendants in work being able to claim legal aid in criminal cases and consequently raised fears of miscarriages of justice. Legal aid has failed to grasp national attention since the dominance of Brexit and the NHS and issues concerning Defence seem to take priority over the problems in the Justice system.


Kate Maier

Feature Writer

Criminal Law


SOURCES


[1]Owen Bowcott ‘Lord McNally: ‘We had to cut legal aid. It’s not a bottomless pit’ The Guardian (London, January 30 2019)

[2] Owen Bowcott, “Labour peer condemns legal aid cuts” The Guardian (London. 2 May 2012) [3] Lizzie Dearden Government legal aid cuts undermine right to criminal defence, MPs warn Independent (London, 26 July 2018)

[4] Owen Bowcott “Jump in unrepresented defendants as legal aid cuts continue to bite” The Guardian (London, 24 November 2019)

[5] Jennifer Tempkin, Barbara Krahé, “Sexual Assault and the Justice Gap: A Question of Attitude” [Bloomsbury publishing 15.04.2008]

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