Tuesday, 21 June 2011

Are further restrictions on your rights coming?

The new Legal Aid, Sentencing and Punishment of Offenders Bill has been published.

Clause 12 allows for suspects in police custody to be represented.  This is good as the right to free legal advice has been with us for a long time now.  A lack of legal advice has also led to convictions being overturned by the appeal courts for various reasons that would not have occurred had a solicitor been present.

However, clause 12 appears to be slightly different to the current position, which allows for representation to be provided quickly for most detainees.  Clause 12(6) is concerned with regulations that a civil servant (probably the head of the Legal Services Commission) will be able to make regarding the hoops that must be jumped through before you can receive advice from your police cell.  It reads:
Regulations under subsection (5) may, in particular, include——
      ....
      (b) provision permitting or requiring applications and determinations to
           be made and withdrawn in writing, by telephone or by other
            prescribed means,
Does Parliament seriously intend that somebody arrested and sitting in a police cell should be required to fill in a form, submit it to a solicitor who will then pass it to the LSC who will consider the application, make a decision and return the completed application?  Bear in mind that the LSC is the organisation that said legal aid applications at their new central processing unit would take just three-days and are now running with a four-week backlog, which is looking like it could become a 6-week backlog very soon as application processing is way behind applications being submitted!

What happens if John is arrested in the middle of the night?  Will the LSC be working 24-hours a day?  To be frank you're lucky if you get an answer from them before 9.30am or after 4pm at the moment.

Call me cynical, but I happen to believe that this type of policy has two purposes a) to reduce the legal aid bill by making it harder to solicitors to claim; and b) to increase the conviction rate by reducing the level of representation suspects receive.

What is more likely to happen though is that it will simply push up the administrative costs of funding legal aid, which are already very high.  It will also lead to more lengthy legal arguments at court to the effect that interviews should be excluded for various reasons.  So, in the end it will push up the overall cost of legal aid by simply transferring the payments from solicitors to Counsel with an uplift as Counsel's daily fee is higher than a single police station attendance and increasing the admin costs.  There probably won't be much of an increase in conviction rates either as a lot of interviews will simply be excluded.  And, I bet there will be a few challenges to this policy through the European Courts at some point, which the Government will have to defend at huge public expense.

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