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Commentary: reducing access to lawyers is wrong

Proposed reforms to legal aid would put Britain back three decades, argues peer

A single moment of reflection leaves one open-mouthed at the absurdity of this proposal

Much of the bill before the House of Lords to reform legal aid is controversial. But few of its provisions match clause 12 in the scale of that controversy.

The Legal Aid, Sentencing and Punishment of Offenders Bill is founded upon the perceived need to hack many millions from the bill that pays to provide people with legal advice.

Exaro last month highlighted the clause that would allow the government to carry out ‘merit-testing’ and ‘means testing’ to decide whether a person arrested and taken into police custody should have access to a lawyer on legal aid. Civil-rights groups and lawyers are alarmed by the government’s intentions, but an attempt in the House of Commons to remove the clause failed.

Clause 12 limits the right to advice for individuals under arrest and held in custody by the police. Fair trials are predicated on the ready availability of speedy legal advice from solicitors, face-to-face or on the telephone as circumstances require.

The current arrangements, designed around provisions in the custodial code under the Police and Criminal Evidence Act 1984 (PACE), ensure that anybody accused of a serious criminal offence has quick access to good advice.

Having access without delay means that interviews under caution can be conducted at a time when the material events are fresh in everybody’s memory. This provides good evidence for the courts, and cuts down the number of ‘no comment’ interviews.

Clause 12 proposes to change the arrangements. The director of legal-aid casework, an employee of the Ministry of Justice, with no apparent independence – appointed by the government – would be required to make a determination in each case as to whether the individual qualifies for legal aid, on financial and other criteria.

A single moment of reflection leaves one open-mouthed at the absurdity of this proposal. The director him/herself cannot sit up all day and night, dealing with the thousands of cases arising in every police station. Nor is the government going to provide a large cadre of legal-aid sheriffs around the country to deal with all incidents.

If a judgement is to be made on a case-by-case basis, there will have to be an appeal process working in real time – plainly an impossibility. Nor will it be possible for any system that one can reasonably envisage to meet the ‘interests of justice’ test set out in clause 12.

In a word, the proposal is a mess. It must have been dreamt up by someone with no experience of the reality of practice in police stations. It is astonishing that it passed through the House of Commons, given that most MPs take the trouble to visit their local police stations from time to time, so as to be properly informed of the pressures under which the police operate.

The influential House of Lords constitutional committee has roundly criticised the proposal. It suggested in a report three weeks ago that the House of Lords will need to consider whether the director’s post is sufficiently independent from government, and whether an appeals system must be established.

The Lords on the committee were concerned that the clause may conflict with the right, under PACE, to advice for a person held at a police station. They suggested that the clause be amended so that the right to advice is not undermined in practice. That committee’s important report should influence the government to abandon its damaging proposal.

If there is not a meaningful amendment, we shall return to an almost forgotten position, remembered only by those of us in legal practice before PACE 1984. There will be a huge increase in challenges to comments made in police stations in the absence of accredited defence representatives.

The physical presence of duty solicitors in police stations has led to a large increase in guilty pleas at an early stage. It also means that there are almost no accusations of ‘verballing’ by the police, or falsely attributing damaging statements to suspects. Turning the clock back would be expensive in terms of trial time, and damaging to the interests of justice. We should not do it.

There have been discussions about this issue within parliamentary and government circles. I believe that Kenneth Clarke QC, the justice secretary, understands the issues very well, having himself been a highly regarded criminal practitioner earlier in his career. It is to be hoped that what is an extremely infelicitous proposal will be removed before more parliamentary time is wasted upon it.

Alex Carlile, a practising barrister, is a former MP who became a Liberal Democrat peer in 1999. He was the government-appointed independent reviewer of terrorism legislation for nearly 10 years from 2001. He is one of four members of the House of Lords seeking to delete clause 12 from the Legal Aid, Sentencing and Punishment of Offenders Bill.

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