Skip to main content

Legal aid rules offer modern equivalent of Schrodinger's cat

Sometimes you have to really think about a blog post, other times kind colleagues in other firms helpfully do it for you.  Today, I am shamelessly copying the words of Andrew Port who is a partner at Dexter & Port Solicitors in Reading.  The text below is from his letter to the Law Society Gazette that was published in the 27th October 2011 edition; both he and the Law Society have kindly given permission for me to reproduce the letter here.

"Now that there is no payment under legal aid for magistrates' court work which is committed to the Crown Court, I find myself in a practical equivalent of the paradox described by Schrodinger and his dead or alive moggy.
I have a representation order for a youth charged with two robberies.  The details of the allegation are such that representations have been made to the prosecution that alternatives of assault and handling would be more appropriate.  The court clerk has already made her view clear that, if the charge remains as robbery, she will strongly advise on committal as a grave crime.  If my representations are accepted the case will stay in the Youth Court.
So at this moment in time I am both funded and not funded.  I am certainly legally aided.  But where is the incentive to waste time actually bothering to represent this youth with no previous convictions?  If I attend court, secure an adjournment, make representation and attend court again, only to find I have been unsuccessful, I will be paid not a single penny for the work (not even the travel costs of getting to the court).  If I succeed, I will be paid a lower category 1 fee [DB note: in London this is £284, outside of London I think it is approximately £230].  Where is the incentive to take the risk of non-payment when the interests of justice clearly demand that this individual should have representation?
And when the Legal Services Commission comes to audit me and demands the instant creation of a work-in-progress figure should I refer them to the paradox of Schrodinger's car or just pluck a figure out of thin air?"

Mr Port makes an excellent point.  Aside from professional integrity and the milk of human kindness, why would a solicitor take the time and trouble to undertake potentially complicated pleadings and court hearings to the prosecution where there is a risk that if he fails he will not be paid, which is the current situation!

Before you think that the answer is that you shouldn't try to have a case dropped unless you know it will be dropped, I invite you to think that thought through properly and ask yourself whether if such a case was so appalling the prosecution might never have been brought?

Defence solicitors regularly come into possession of evidence or information that is not available to the police or CPS.  They then present that information to the prosecution along with arguments as to why a case should be discontinued.  Nobody can be certain that they will win (even if they have right, truth, justice and all that jazz on their side).

I'd also point out that this is not like "no win, no fee" litigation in personal injury cases.  In those cases, solicitors are entitled to charge a success fee of up to 100% of their fee on cases that they win.  Here it's a case of win and get paid, lose and don't.


  1. Indeed, another substantial case with the potential to be pro bono!


Post a Comment

Popular posts from this blog

Ched Evans

Before I begin, I will say that at around 4,500 words this is probably the longest blog I’ve ever posted but I think it’s all necessary to set the scene for this case and explain the background that has been largely ignored or airbrushed in the press. Despite its length, I have not attempted to include every little detail of either fact or law but have done my best to provide a balanced picture of the Ched Evans case, what happened and why the courts reached the decisions they did. There has been so much written about the Ched Evans case over the past weekend, much of it based on a very shaky grasp of the facts and law, that I decided I would read up about the case and weigh in (hopefully on a slightly firmer footing than most of the articles I’ve read so far).

Broadly speaking there seem to be three groups who have opinions on the case:
1.Sexual violence groups (including people describing themselves as “radical feminists”) who appear to take the view that the case is awful, the Court o…

How do the police decide whether to charge a suspect?

A question I’m often asked by clients (and in a roundabout way by people arriving at this blog using searches that ask the question in a variety of ways), is “how do the police decide whether to charge or take no further action (NFA)?”
What are the options?
Let’s have a quick think about what options are available to the police at the end of an investigation.
First, they can charge or report you for summons to attend court.  Charging means that you are given police bail and are required to attend court in person.  A summons is an order from the court for you to attend or for you to send a solicitor on your behalf.  In many cases where a person is summonsed, the court will allow you the option of entering a plea by post.
Second, you may be given a caution.  These can be a simple caution, which on the face of it is a warning not to be naughty in future, or it can be a conditional caution.  Conditions could include a requirement to pay for the cost of damage or compensation, etc.  Either…

Bid to prevent defendants knowing who accuses them of a crime

When I read The Trial by Kafka and Nineteen Eighty-Four by Orwell, I took them as warnings of how a bad justice system wrecks lives of those caught up in it. Sadly, some Members of Parliament and the House of Lords seem to view the books more as a guide to how they would like our Criminal Justice System to run. Today, I read of plans to hide the names of accusers and witnesses from defendants in a large number of cases. Victims of sexual offences, such as rape, have had the right to lifelong anonymity for many years now. This means that it is a criminal offence to publish information that will lead to a complainant being identified. A Bill currently being considered by Parliament would extend that anonymity to bar defendants and their lawyers knowing the name of the person accusing them. This would apply not only in sexual offences, as has been reported in the press, but also in violent offences.
The anonymity currently offered to victims of sexual offences is not total, the complainant…