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Evan Price: The state should not decide who represents you in court

Price EvanEvan Price is a a barrister and was a Conservative candidate for the European Parliament in 2009

I write as a lawyer who acts very rarely with the benefit and burden of legal aid - I am a lawyer who acts in cases usually involving property, financial and probate disputes, and legal aid is no longer available for almost all of the cases that I act in.  I was uncomfortable with that withdrawal - but I did not see it as an attack on access to justice or on justice itself, and my clients have found methods around the withdrawal of public funding that include the increased use of and resort to insurance policies and the use of other methods of funding such as conditional fee arrangements.

As to the proposed criminal legal aid reforms; it is interesting to note that with earlier reforms, such as the introduction of fixed fees, the fees then introduced have not even kept up with inflation.  As a result, many junior barristers find themselves working very hard (and I know many other people do too) with very little and reducing rewards.  The problem with criminal legal aid appears to be that proportion of legal aid that is taken up by very high costs cases.  These cases involve the most serious criminal cases and very often some of the most serious issues facing our community.

Over the centuries, we have many things as a community to thank lawyers for.  Essentially, it was the lawyers that persuaded Kings and their Councils and Courts to provide for the liberties and freedoms that we all take comfort in.  Many of these triumphs were achieved many years ago, but the essential features of our criminal jurisprudence underpin many of those liberties and freedoms.

More recently, we have found Parliament legislating to deal with perceived wrongs done in difficult criminal cases.  Whether it is the inferences that can be drawn from silence now (criminal justice legislation in the mid 1990s) or the introduction of new criminal offences and the confiscation of assets from criminals who cannot satisfy a court as to the legitimate source of funding of those assets, these developments have almost always increased the costs associated with criminal litigation.

In the eighteenth century, the cross examination of witnesses to test evidence in criminal trials developed.  Today, that cross examination is used to ensure that the evidence is understood with clarity and where that evidence is suspect it has the possibility of being demonstrated to a jury that it is so suspect.

Do we really want to return to a time when evidence was not properly tested?  For those of you who assert that the innocent need fear nothing, I would simply say that this straw man is one that is not worthy as a response.  For under our system of justice every man and woman who is accused of a crime is innocent until proved guilty.  That principle is very ancient indeed - and we should be wary of any argument that seeks to undermine it.

Should the state choose who represents someone in court?  My view is that should not be the case.  In criminal cases, the state is a party, and a party should not have the power to insist on who represents the other side any more than it should be a judge in its own cause.  This latter maxim is the very reason why we have an independent judiciary.  It is the reason why it is very difficult to sack a Judge.  It underpins the very rule of law.  If one understands that Parliament is the ultimate court in the land, it is the very argument that led to the civil war and ultimately to the execution of a King.

The need for properly administered judicial systems is not a matter of defending vested interests - it is defending the very nature of those judicial systems.  Will they continue to be seen as impartial if the economics of representation are placed ahead of the interests of a fair, balanced and blind justice?


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