01:03, May 11 258 0 theguardian.com

2018-05-11 01:03:04
You might not care about striking lawyers – but you should

There is a strike under way that you’ve probably barely heard about, although its implications are as grave as any that make the headlines. This one doesn’t involve train drivers, enraging as those stoppages are for stranded commuters. It doesn’t involve university lecturers, diverting as those have been for students, or even junior doctors. It involves criminal barristers from 100 chambers who, in protest against government reforms of legal aid fees, are refusing to take on new publicly funded cases – or in other words, defences of people who can’t afford their own lawyers.

The courts haven’t ground to a halt, so defendants are still ending up in the dock. It’s just that more of them are now attempting to represent themselves, often with only the vaguest idea of what they’re doing, on charges ranging all the way up to murder. The risk of miscarriages of justice is screamingly obvious, especially when it comes to disclosure of evidence – how are complete amateurs to know what useful material the prosecution could be hanging on to? – but defendants are not the only potential victims here. If it’s hard enough for witnesses to relive distressing experiences with the accused glowering silently at them from the dock, then imagine what it’s like when he or she’s the one conducting the cross-examination.

This week the website BuzzFeed obtained a study of judicial views on unrepresented defendants, which was commissioned by the Ministry of Justice long before the current dispute, amid concerns about the consequences of earlier cuts in legal aid entitlement. It offers a rough guide to what we can now expect. Unsurprisingly, the gist was that hearings both take longer and cost more when everyone has to keep stopping to explain things to the accused. Some “just sit there like a rabbit in the headlights and haven’t got a clue what’s going on”, as one judge put it; others interrupt constantly even when it’s not their turn to talk, or veer off at wild tangents. Either way it doesn’t sound terribly conducive to getting at the facts.

The Law Society Gazette recently highlighted a troubling family court case in Middlesbrough involving a father accused of raping his ex-wife and assaulting her son from a previous relationship; neither parent was granted legal aid but neither could afford their own lawyer, so the judge ended up attempting to cross-examine them himself while court officials compiled makeshift bundles of evidence. When the distressed mother said she simply couldn’t face going through it all again, the judge ended up finding most of her allegations unproven while noting in his judgment: “I am in little doubt that had one or both of these parents been represented, the fact-finding process and probably the outcome would have been very different.” And on these impossibly shifting sands now rests a decision about whether the father should see their daughter. Yet all this has barely registered in the public consciousness, even though things are only likely to get worse later this month, when barristers are being urged to up the ante by instigating a policy of “no returns” (refusing to take on cases that another barrister has had to drop due to an unexpected diary clash).

The shadow justice secretary, Richard Burgon, led a debate on criminal legal aid in parliament this week, and stories are bubbling up from courtrooms via social media, too: the South Wales Evening Post’s crime reporter, Jason Evans, tweeted earlier this week that in the space of just one morning in court he’d seen unrepresented defendants appear on charges ranging from fraud to GBH with intent and murder. But not many local papers have enough staff now to cover courts day in and day out. And, to be blunt, it’s likely too few readers care.

Defendants are infinitely less sympathetic victims than maddened commuters, and lawyers aren’t like junior doctors, whose action over weekend working drew widespread support from patients. Barristers tend not to have legions of grateful customers, proud to go public about that time they got off by the skin of their teeth, and the widespread presumption is that lawyers don’t deserve pity; that they all earn a fortune anyway, that legal aid is just a gravy train and anyway it’s too often awarded to the undeserving.

Yet even if that were true over a decade ago, when the Labour government first launched a crackdown on legal aid with tabloid-friendly stories about bumper payouts to fatcat QCs, it isn’t so true now. The government’s reforms to legal aid fees are meant to shift more money down to junior barristers, widely seen as struggling. (Those just starting out in criminal work can earn as little as £12,000 per year, less than the minimum wage, to which they’re not entitled because they’re deemed self-employed; the Tory MP Bob Stewart admitted during this week’s debate that of the five junior barristers who had contacted him about the strike, none were earning enough even to start repaying their student debt.) But those reforms do so in some cases by taking money from those not all that far above them. There is an emerging consensus that however imaginatively it’s distributed, there simply isn’t enough money to go around, given the Ministry of Justice has taken some of the deepest budget cuts in government. Even the former Conservative justice minister Jonathan Djanogly, who defended the government’s new fee arrangement this week from the backbenches, admitted to “some sympathy with those who complain that the criminal justice system is creaking at the seams” even if his solutions would be radically different from Burgon’s.

Meanwhile the fear is all this will hurt initiatives to get more working-class children to go into the law; even if their long-term earning prospects are good, it’s tough for barristers just starting out in expensive cities such as London to survive if they can’t be bailed out by their parents, when the fee for a short court appearance can be less than the train fare to reach it.

Something, in short, has gone very wrong. But it’s gone wrong in a part of the public sector that, unlike schools or hospitals, we don’t normally regard as public, that doesn’t tug at the heartstrings, that for most of us remains completely invisible – all of which encourages ministers to think they can ride this one out. Few strikes are solved by giving one side everything it wants. But even fewer are solved by hoping nobody notices.

Gaby Hinsliff is a Guardian columnist