Written by: Simon Pottinger
What Grayling should have said about Abu Hamza
‘Taxpayers’ money’, ‘greedy lawyers and a ‘hook-handed extremist’, with ingredients such as these the tabloid story writes itself. And so it did, in the Daily Mail, concerning the ‘nearly £680K’ spent defending Abu Hamza.
When asked to comment, one might have hoped for a measured and reassuring response from the Justice Secretary, Chris Grayling. Perhaps something on the lines of:
‘This is a highly unusual case which is entirely unrepresentative of how we spend criminal legal aid and represents ‘drop in the ocean’. It exemplifies only one thing: our fundamental commitment to justice and the right of the individual to a fair trial, with equality of arms, against a powerful state. We have the best legal aid system in the world populated by the most capable and committed defence lawyers.’
Parliamentary press secretaries, seemingly, work in a different way. The chance to be seen as ‘strong’, in a confrontation with the twin evils of ‘extremists’ and ‘fat cat lawyers’, is clearly an opportunity too good to miss. There is probably even a PR term for such a strategy. So rather than a measured and reassuring response we are promised an ‘immediate examination’. Not quite a judge-led inquiry but the best that could be conjured up, in a fit of faux outrage, at short notice.
Such an examination should not, of course, prove difficult. Should Grayling be able to find someone at the Legal Services Commission (LSC) who’s employment dates back to the days of the Legal Aid Board, he will be able to conclude it swiftly.
The current fee schemes were, by-and-large, framed following a similar response to the case of the Maxwell Bros. in the 90s. This resulted in ‘taxpayers’ interests being protected in a number of ways.
Potential High Cost cases have to be reported to the LSC at an early stage and are then subject to prescriptive case plans. An LSC employee manages such plans and costs can only get to the levels in the Hamza case with their prior authorisation. Alternatively the Graduated Fee schemes, which cover mainstream Crown Court trials, pay solicitors and advocates primarily on the basis of prosecution served paperwork. Finally those which slip through these nets and are paid on an old-fashioned ‘hourly rate’ basis, but no longer in guineas, are always subject to detailed final assessment.
Costs in superficially expensive looking cases have therefore, most likely, been thoroughly considered, and expressly approved, in advance, by a Civil Servant. Almost all other cases costs are calculated against a rigid set of objective proxies, deliberately designed to control them and are beyond the influence of the Defence lawyer. The only opportunity the legal aid lawyer gets to ‘over-egg the pudding’, on the hourly rate cases, are increasingly rare and always subject to penny pinching line-by-line assessment.
The vast bulk of claims in the criminal legal aid system are however made for attendance at the Police Station and for representation in the Magistrates Court. Here you have an even more restrictive regime. On Teesside, a Police Station attendance nets you £149 however long this takes and regardless of the time of day – would you get a plumber to turn out for that in the middle of the night? Magistrates Court Standard Fees hardly pay any better and have been reduced in actual and real terms in recent years, by up to 25% in London. Essentially this work has the lowest underlying rates of pay received for any professional legal service in the UK.
An executive summary to his ‘immediate examination’ might therefore read:
‘Over the last 15 years a range of measures have been introduced which rigidly restrict almost all legal fees in the Criminal Justice System to a fixed of graduated fee. The level of these fees, expressly designed to bring greater efficiency, have been administratively set for each job by, err the Government.’
In calling for this ‘immediate examination’, Grayling gives credence to the lie that criminal legal aid is somehow out of control and does not offer ‘value for money’. He, or those advising, him know this not to be the case. In fact, nothing could be further from the truth.