Defendants held in custody as no solicitor available to seek bail

Royal Courts of (in)Justice

On the 1^st July 2015, the government introduced a cut to solicitors legal aid fees, this was about a 9.51% cut from the rate applicable on the 30^th June 2015 (nb at the same time the head of the Legal Aid Agency was awarded a 10% pay rise) and is part of an overall 17.5% cut in fees since the March 2014.  In reality, the cut is far more than a mere 17.5% because fees have been changed in other ways that need not concern us here, suffice to say that some of the cuts to fees are as high as 50% reductions!

Since the 1^st July 2015, a very large number of criminal legal aid solicitors have been refusing to work for the new fees.  I am not surprised by this; I began handing back my legal aid contract in 2011 and ceased all legal aid work in June 2012 partly because the rates then were so low that I could not earn a living and simultaneous provide clients with the level of service that a) they deserved; and b) my obligations as a solicitor required.

The Ministry of Justice has claimed that the action is having no impact whatsoever; however, the police clearly do not agree with the Guardian reporting that “South Yorkshire police and other forces have confirmed that cases are backing up in custody suites and interview rooms”.  My own experience has been witnessing row upon row of unrepresented defendants in court waiting areas looking on, somewhat jealously, at those who can afford to pay privately for a solicitor to defend them.  I appeared at Uxbridge magistrates’ court earlier this week.  I asked court staff how things were going and was told it was a nightmare.  No defendants were ready and the court was preparing to sit at least two-hours late to 6.30pm and possibly beyond – this was at 11am!

Anyway, the point of this blog is really to discuss a point I saw made in the Guardian newspaper this morning.  They say that the protest has resulted “… in many defendants being remanded in custody because there is no solicitor available to apply for bail on their behalf.”

With no solicitors, will you be relying
on the court cat to represent you?

Section 4(1) of the Bail Act 1976 couldn’t get much clearer, “A person to whom this section applies shall be granted bail …” it goes on to set out a number of exceptions, such as after convictions, but none of the exceptions includes “when there is no solicitor available to make an application”.

The court is obliged, by section 4(2)(a) to consider whether a defendant should be released on bail when “he appears or is brought before a magistrates’ court or the Crown Court in the course of or in connection with proceedings for the offence.”  Thus it is not sufficient for a court to say that they are going to refuse bail because there is no solicitor present to apply for bail.

Part of the point of this action, as I see it, is to show government, the courts and the public what life would be like without defence solicitors in court to assist all those involved.  

What have we learnt from the action so far?  Clearly that without defence solicitors the courts struggle to deal with unrepresented defendants.  More worrying is that without defence solicitors present to remind the courts of their obligations, the courts seem happy to ride roughshod over the rights of defendants appearing before them.

So, next time you are complaining about defence solicitors just remember that they are the ones who ensure that the power of the courts and the executive are kept in check!