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Legal aid costs England and Wales around £2 billion ($3.1 billion) a year—a figure that has remained stable for a decade. Last year Chris Grayling, the justice secretary, announced cuts to civil legal aid of £320m to begin in 2014. He now wants to lop £220m a year off the criminal bill. If he gets his way, law firms will have to bid for legal-aid contracts. Defendants will be assigned lawyers. Fees will be cut. Qualifying for legal aid will be harder. Aid for prisoners will be restricted, as will judicial review, in which the courts examine the legality and fairness of government actions.
Cutting the costs of this adversarial system of justice, which expects both sides to be represented and does not encourage judges to be inquisitorial (as in continental Europe) is tricky. And the proposed reforms will push up costs elsewhere, say Mr Grayling’s critics—for example, by encouraging more people to represent themselves, resulting in expensive cases. But there are other ideas.
Richard Monkhouse, deputy chairman of the Magistrates’ Association, suggests that more cases could be heard in magistrates’ courts, which are cheaper than crown courts. An “either-way” case—one that can be heard either in a crown court or in a magistrate’s court—costs on average £3,900 in the former (with a jury) and £900 in the latter. The differential is even bigger if the accused pleads guilty. Magistrates are unpaid, and the preparation for crown-court cases is more complicated and expensive. If magistrates could hand down sentences of up to 12 months for single offences (at present, six months is the maximum) it would save money.
The crown courts could also be more efficient. Michael Turner, chairman of the Criminal Bar Association, says that last year a triple-murder case in Birmingham with eight defendants and an eloquence of lawyers was delayed for days because prisoners were not brought to court on time. That sort of thing is hugely expensive. Mr Turner wants to set up a telephone line for barristers and solicitors to report delays and the reasons behind them, in order to avoid them in future. The Law Society, which represents solicitors in England and Wales, has suggested a “polluter pays” principle. If cases collapse because of failings on the part of the prosecution—when it drops cases at the door of the court, for instance—the Crown Prosecution Service should pay the legal-aid bill.
Better case management would also save money, suggests Lord Falconer, a barrister and former Lord Chancellor. Criminal cases are costly because they take so long. Lord Falconer points to the government’s 26-week limit on public-law children’s cases (local authorities taking children into care), introduced in March, as a template. Judges impose strict time limits on cases; their authority is sufficient to ensure that the people who appear regularly in court—lawyers, expert witnesses and police—comply. That should be implemented for criminal cases, he says. Forced to choose between the proposed cuts and brutal case management, he is confident lawyers would plump for the latter.
The government could also return to the question of whether trial by jury is always best. Some fraud cases could be dealt with by the Financial Services Authority as regulatory matters, suggests Mark Stobbs, the Law Society’s director of legal policy, instead of in court. Alternative punitive measures, such as director disqualification, could be used. The society is also keen on allowing people being prosecuted or investigated for alleged criminal offences to use frozen assets to pay their legal-aid costs. Finally, a few point out that crime is tumbling. Could Mr Grayling save money without doing much at all?
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