Criminal Legal Aid (Remuneration etc.) (Amendment) Regulations 2015

Lord Carlile of Berriew Excerpts

Monday 7th September 2015 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I congratulate my noble friend on moving this Regret Motion. I sit as a magistrate in London in the family courts, the youth courts and adult criminal courts and I frequently hear cases where the defendant or applicant is a litigant in person. From the court’s perspective, some litigants in person represent themselves very well. They understand the advice that they receive from the clerks and manage both the legal process and the practical aspects of navigating the court system through to a conclusion that they believe is satisfactory. However, some—I would say many—litigants in person have difficulty understanding the guidance that they are given when in court. They struggle with the whole procedure and, at the end, do not feel that they have been treated justly by the system that they have grappled with.

I want to tell noble Lords an anecdote from about a year ago. It concerns a woman who turned up in court charged with fraud against her employer. She was a litigant in person. She came into court and was correctly identified. The clerk then asked her whether she was guilty or not guilty. Her reply was, “I am guilty but I want to plead not guilty”. When asked to explain herself, she did indeed have a rationale for saying that. She was imminently due to have a medical operation. If she had pleaded guilty she would lose her employment and not be able to have the operation, so she was going to delay the finding of guilt until a trial.

It could be argued that the defendant had told us that she was guilty and that she was planning to commit a further fraud on her employer. But as a court we were limited in the advice that we could give to her other than to advise her of the benefits of a guilty plea. We had 30 other cases to deal with that day. We filled in the necessary forms and the matter was indeed put off for trial. If that lady had had some robust defence advice, she may have decided to plead guilty as she had indeed told us she was guilty. But her right to plead not guilty trumped everything else, resulting in the additional cost of the trial.

The overwhelming point that I want to make is that we see many vulnerable people in courts—people who are not able to represent themselves. There is a concern. The Magistrates’ Association, together with other interested bodies, has tried to judge whether the justice system is functioning properly with this increase in litigants in person. I draw the House’s attention to a survey of magistrates published on 13 January this year. Views were taken before costs came in in February 2014 and again in November 2014 after the increase in litigants in person. The survey shows a noticeable increase in the dissatisfaction expressed by magistrates because they felt that the system was not being as just as it should be.

I understand that there are a lot of surveys, but the current chair of the Magistrates’ Association, Richard Monkhouse, was a statistician in a former life and this is a robust piece of work. I have looked at it myself and I have a scientific background. I hope that the Government will look at these figures carefully because they raise a worrying growth in uncertainty and dissatisfaction with the increase in the number of litigants in person.

A wider point should be made. Other aspects of the legal and court system also feed into the general sense of dissatisfaction and the feeling that the court system as a whole is not properly offering justice to people. We have heard from my noble friend about the imposition of the criminal courts charge. In the family courts, we have had cuts to legal aid and an increase in the costs of drug and alcohol testing, which reduces access to fairness for people. We have had the increase in tribunal fees and cuts to CABs. These are off-topic for the purposes of this debate, but they add to the sense of many vulnerable people feeling that the court system as a whole is not open to them as it should be.

[Lord Carlile of Berriew (LD)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Ponsonby, who brings a rich vein of evidence from his experience as a lay magistrate to your Lordships’ deliberations. I declare the interests of having been a barrister practising criminal law for 45 years and having spent 28 years, until I retired from these roles at the end of last year, as a part-time judge at various levels and, particularly for this debate, as a former president of the Howard League for Penal Reform.

In a few moments, I shall talk about prison law specifically, but I wanted to address some issues about the generality of this debate, if I may. I agree with the broad thrust of what has been said about the effect of the regulations. However, I want to commend the Lord Chancellor for his willingness to engage with the legal profession, both the Bar and the solicitors, during recent weeks and months. This has been appreciated. Other things could be done than cutting criminal legal aid in the way which has been described.