The Network for Police Monitoring (“Netpol”) seeks to monitor public order, protest and street policing, and to challenge and resist policing which is excessive, discriminatory or threatens civil rights. This article summarises the submission made by the Netpol Lawyers Group (“NLG”), a collective of solicitors and barristers who specialise in representing protesters, to Ministry of Justice (MOJ’s) consultation paper “Transforming Legal Aid.”
Judicial Review (JR) – holding the state to account
JR is an important mechanism by which public decision-makers are held accountable and made to comply with the law. If the MOJ’s proposal, to cut funding for cases that are not successful at the first stage of the court procedure (including cases that are agreed before this stage), is enacted then firms will be far less likely to take forward JR challenges. There have been a number of highly important JRs arising from protests in the last 15 years. For example, the case of the Fairford coaches (the false imprisonment of 159 protesters who had not committed any offence) may not have been fought, and won, without the benefit of legal aid at an early stage because of the cost of taking instructions from so many clients. The effect of these proposals will mean that those seeking to express their democratic rights will be less able to hold Government departments accountable.
Price Competitive Tendering in criminal law – why are independent lawyers important?
Recent years have seen an increased criminalisation of protest, from the mass prosecutions after the Student protests in 2010 to the arrest of 182 cyclists at the Critical Mass bicycle ride which coincided with the Olympic opening ceremony.
Under the current system an activist facing the huge stress of arrest and / or prosecution has, at least, the right to instruct choose legal aid lawyers with commitment to and specialist expertise in protest law. To defend these cases effectively a lawyer must understand the police chain of command and operational tactics, and have detailed knowledge of specific police powers that are rarely encountered outside the public order context.
Of the student protestors who contested public order charges before a jury in the Crown Court, the overwhelming majority, like Alfie Meadows and Zak King, were found not guilty, but this was only after dedicated defence lawyers had trawled through hundreds of hours of video footage of the protests, tracked down and interviewed numerous witnesses, and pressed the prosecution for disclosure.
In 2011, prosecutions were dropped against 6 activists after the work of specialist lawyers with a track record of dealing with the campaigners led to the discovery that the group had been infiltrated by undercover police officer Mark Kennedy. Shortly afterwards 20 related convictions were successfully appealed. The result could have been very different had the suspects been randomly allocated between suppliers in the surrounding area, lacking specialist knowledge of protest law, a relationship of trust with the group or an understanding of the background to the protest. If these suppliers were also forced to provide a service at the lowest price possible, it is doubtful that Mark Kennedy’s identity would have been uncovered or the charges successfully defended.
The PCT proposals, if introduced, will mean block contracts for criminal legal aid services are awarded to firms agreeing to conduct large volumes of work at the lowest price. Flat fees will mean a lawyer is paid the same on a case involving a guilty plea as for a trial lasting three days or less, incentivising firms to process cases as quickly as possible. Lawyers will be prevented from acting outside their bid area. Defendants will be randomly allocated to lawyers. The lack of client choice removes any economic incentive to maintain quality representation as firms carrying out poor work will continue to be allocated clients under the block contract. Survival will depend on processing cases at as high a rate as possible, with successful bidders relying mainly on cheap, unqualified and inexperienced staff conducting high volumes of work in a “factory” type environment.
Most providers, including those specialising in niche areas like protest and appeals work, will be forced to close, and even larger existing firms are likely to struggle at the reduced rates of pay. The only providers likely to be able to survive are large companies, including notorious “outsourcing” specialists (Capita, Serco, G4S), who are already profiting from the privatisation of public services.
As noted by the Legal Services Consumer Panel, confidence in the justice system will be “undermined in a system where people accused of a crime are allocated a legal representative by an agency of the state which is seeking to convict them.” Worse still, the representative is likely to be employee of a faceless corporation which may also own and run prisons, supervise offenders on probation or even conduct investigative duties “outsourced” from the police service.
The proposals will also mean that a person who cannot show they have been resident in the UK for at least a year will not be entitled to legal aid. Protesters from abroad who demonstrate at international summits in the UK, such as the G20 in 2009 or the G8 this year, would not be eligible for legal aid to bring a case against the police if they had been unlawfully arrested or assaulted.
An attack on our fundamental rights
Legal aid is not just a “service” to be provided by the lowest bidder, but a crucial protection against the wrongful and unjust use of the state’s power to deprive its citizens of their liberty. As well as innocent people being convicted, if these proposals are implemented, police wrongdoing will go unchallenged as the power of the state is increased at the expense of its citizens. The continued slashing of resources for legal aid is both part of an ideologically driven attack on the welfare system and an attack on human rights with far reaching consequences for us all.