Tuesday, April 02, 2013

The Bar Looks Ahead

With the drastic erosion of legal aid the courts, both civil and criminal, are going to see a rapid increase in the number of people who represent themselves. Most practitioners including magistrates know that an ordinary honest citizen who is totally unfamiliar with the law and its ways can rapidly find himself out of his depth. Of course the court will do its best to explain procedures, but cannot assist the person with his case. Unrepresented defendants can slow the court down woefully, and some of the more assertive, who think that arguing in front of a bench requires the same skill set and approach as a saloon bar discussion  can require careful handling.

Now the Bar Council has published a very useful Guide written by people who know what they are talking about, and carefully reviewed to avoid any possibility of misleading the lay person.

I have only had a quick skip through it so far, but it can only be helpful in keeping courts working to deliver justice, with far less money than was previously the case. 

17 comments:

  1. I must say this is very public spirited of them. I cannot imagine many professions producing a guide that does away with their services. If it helps unrepresented defendants to present their case coherently then I am all for it.

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  2. I really enjoyed giving my police evidence and being cross examined by the defendant as she was not represented. She didn't have a clue. The magistrates were very kind to her and led her through the process.
    She bascially talked me through the fact that i had seen her assulting the victim and that she had admitted it to me when i arrested her. She didn't raise any kind of defence, just seemed to be hoping the court would find her not guilty because the victim owed her money. Needless to say it didn't work and the finecompensation she had to pay neatly cancelled out the existing debt.

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  3. Hopefully it is very useful, however someone should have told them that the font they are using makes it extremely difficult to read!

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  4. I had a case yesterday which on the face of it would never pass the merits test for LA which had indeed been refused. However the defence would require a back calculation of alcohol and an experts report. How on earth is an unrepresented defendant supposed to know how to access one?? I congratulate the Bar Council for this initiative...it is at least a step in the right direction...

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  5. Thank you for passing on this useful information.

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  6. Hmm no mention of criminal cases.

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  7. I skipped through the first dozen pages or so and was puzzled that it was all abouut civil cases. Back to the beginning, it says the guide will "....only give you an overview of what you need to do if you have a civil law legal problem."

    Tough luck on criminal matters then

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  8. I hope the guide helps, and the drafters have clearly given very careful thought to what to advise and how to word it. Even so, will it really help a defendant to distinguish what is relevant from what is not, or how to avoid leading one's own witness? Will it help someone who has pleaded guilty to frame the best plea in mitigation? Will it assist a parent in a private law case to put forward their case clearly, cogently and comprehensively? Because these are only some of the ways in which those who lack substantial means are going to be denied justice henceforth.

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  9. I dipped into it but found this bit very interesting in the ‘Directions’, including disclosure section:-

    The court will set out the steps that each party (the
    claimant and the defendant) needs to take in an ‘Order’,
    which are also known as ‘directions’. Orders and
    directions are, quite simply, what the court tells you to do.
    They are mandatory and you should always follow them.

    Maybe someone should send this guide to the CPS who increasingly ignore directions and as a result we are back in court having to make the same direction a second or even a third time.

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    1. I do hope the rest of the guide isn't as sloppily written as that excerpt.

      Many people (I used to work with one) will interpret the last sentence as if the "and you should always follow them" qualifies the "They are mandatory", to give the impression that there is an unstated subtext of "just occasionally, you needn't if it doesn't suit".

      The intended meaning is, or ought to be, "They are mandatory and you must follow them" - which emphasises by repetition and removes any ambiguity.

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    2. Twaddle. The original wording is much clearer, allowing of no ambiguity, especially by the insertion of the word 'always'.

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  10. Amazing!

    No strategic discussions, just tactical and sparse at that.

    The courts will spend more time on cases and more cases will go to court .... There will be pressure to increase penalties, to prevent this. Justice? If the defendant had known how to sue for the debt in the case cited above, there might not have been an assault, get the picture yet? More self help on debt recovery, more TRAGEDY!

    The English system.....

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  11. South London JP

    One of the tests under the merits test for legal aid is whether or not witnesses need to be called on a defendants behalf. In such circumstances as you describe where it is an expert witness the merits test should be passed and the only issue should be whether his means are within the limit.

    Another test is whether expert cross examination of witnesses would be required. In this case you can say properly apply on the basis that it would as the crown would be likely to get their own expert in rebuttal and there is no way a layman can be expected to cross examine a forensic toxicologist.

    It is not just a question of whether custody is likely.

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    1. @Silverfox - yes indeed...my story left certain bits out to ensure anonymity as this is a fairly unusual case. Legal Aid had been refused administratively (a simple drink drive at that stage) and those advising the defendant chose not to appeal the decision. That left Def high and dry until he got 'a friend' to look at the papers and suggest a further application which was indeed then granted on merits. But without the friend, def would have been well and truly stuffed. I make no obervation about the quality of legal advice originally given...make up your own minds on that!!

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  12. Bowstreetrunner5 April 2013 at 14:53

    Hitting decent people by knocking off legal aid maybe is not the best way forward, though I can understand why the government was worried by the spiralling costs. Part of the problem hads been the way lawyers charged for their work. The Co-op law experiment will show whether other methods work.

    However, if the govt wants to cut legal aid the place to start is in the criminal courts and keep more work in the lower court- Mags. I'm not talking about anyone wanting to pleas NG and have a trial, but rather routine cases which are inevitably going to lead to a plea. There is a huge number- something like 30% of cases that go to the CC that are dealt with by a sentence that is lowere than what the mags would normally impose. If that is right then why waste money on the CC. Yes, there are arguments about what do you do about orders breached but that can be easily addressed by changing the rules.
    If the country is in the 'shit' as we are constantly being told here is a way to reduce costs all round with no degradation of justice and in fact might speed things up so the CC can concentrate on the really serious and NG pleas.

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  13. "the way the lawyers charged for their work"


    criminal lawyers have been receiving fixed fees for cases for the last 20 years. Those fees have not risen (even in line with inflation) in over 10 years.

    The amount of work we do on a case on leagl aid is (virtually) irrelevant : we get paid the same for a case which takes an hours work as we do for one which takes 9 hours.

    a public defender scheme was piloted about 10 years ago. It proved that that system cost nearly twice as much as the one that we have at the moment.

    If the cost of legal aid is too great, its certainly not the lawyers that are to blame.

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