Articles & Judgments Constitutional Law Access to Justice by Syed Tariq D. Rafique 
| Access to Justice by Syed Tariq D. Rafique |
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| Wednesday, 16 November 2005 05:01pm | |
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ACCESS TO JUSTICE by ©Syed Tariq D. Rafique SYED TARIQ D. RAFIQUE was born in Simla, went to school in Allahabad, India and Karachi, Pakistan and later in London. His father belongs to the Delhi family of Sir Syed Ahmed Khan the founder of Aligarh Muslim University in India. He read for the English Literature and Law tripos at Christs College, Cambridge graduating with B.A. (Hons) in 1959. and was called to the Bar at Lincolns Inn in 1961. He then ran a law office in Pakistan till 1971 when he departed for England where he lived and worked as a barrister, having a general common law and later criminal practise, until 2003 when he decided to retire from the Bar. He is now teaching criminal procedure to young students (most enjoyable) at the IIUM, Gombak and living in Malaysia with his Malaysian wife and child. He sat on Bar Rep: committee of Lincolns Inn, was Vice-Chairman of the Race Relations Committee of the Bar, 1989-1991 (Chairman was Mr. Justice, now Lord Justice Brooke) when he pushed through twinning arrangements between the ethnic and mainstream chambers, member of the International Relations Committee of the Bar and was the founder chairman of CEBA (Commonwealth & Ethnic Barristers Association). For the last 15 years his practice was mostly on the criminal side, both prosecution and defence, dealing with a variety of cases from burglary to murder. INTRODUCTION In presenting this paper on what is, in our current ‘interesting times’ a hackneyed albeit vital topic, the difficulty is to avoid uttering platitudes; it is almost impossible to find anything new to say and certainly impossible to improve on what has been said before. Pungent phrases such as ‘interests of justice’, ‘equality of arms’, ‘human rights’, ‘fundamental freedoms’, ‘due process’, not to mention numerous Latin maxims all dazzle the writer with their dissertational possibilities for an instant - before he sees the libraries bursting with books on the subject and about all manner of providing access to justice. So it is best to acknowledge at once that a large debt is owed to previous authors of every nationality who have been so moved by denials of access to justice as to take up their pens and write. Having thus cleared the way for any amount of flagrant plagiarism, I find it was not altogether necessary as instructions in my brief were to primarily consider the provisions of Legal Aid – my expertise in which has hitherto been spent on devising ways and means to obtain such legal aid payments from it as would secure me a comfortable life- in common might I add, lest I be thought unique, with most of my practicing legal brethren in England & Wales. However I shall comply with my instructions as best I can and try to deal competently with what is really a very important matter in the light of my own research and experience although this would focus largely on criminal legal aid. ACCESS TO JUSTICE as an axiom in jurisprudence must surely excite the attention, if not the commitment, of all practicing lawyers, as well as sincere politicos. For the opposite, that is, denial of justice is unacceptable even in uncivilized societies. It could even be argued that the principle of access to justice is far older than present day notions such as access to medical care, education, welfare, housing and possibly even human rights which really took off and developed over the last 2 centuries or so. We are all familiar with the story of the two mothers in the child custody case before King Solomon J. in biblical times, and the Romans had a workable system of justice where Cicero pleaded so eloquently for his clients; in Islam of course access to the Qadi was open to everyone and sophisticated schools of law developed in the 10th. and 11th. centuries. However those good old days are over. The spread of industrialization and urbanization, the phenomenal growth in population and laws has meant that the average citizen is subject to more legal do’s and don’ts than were ever dreamed of by our early jurists; and of course the Courts are always there to tell him ‘ignorance of the law is no excuse’, and lawyers are there to tell him what the law is on payment of their fees. At about the time the Courts were handing out this charitable bit of advice there was no legal aid whatsoever in England & Wales; other than I suppose the Dock Brief at the Old Bailey, the beneficiary of which was more in need of a miracle than legal aid. It was not until the end of World War Two that a right to legal representation became a reality for most people and the Legal Aid Acts were passed. In this century of course this right is so entrenched that woe betide the Government that seeks to limit it let alone question it. The criminal legal aid bill in England exceeds 800 million sterling, and the civil bill probably tops 600 million. So many of the 10,000 or so practicing barristers are reliant on Legal Aid work as to merit the description ‘civil servants’ – although I fear no pension follows. ENGLAND & WALES. Let us take a look at the current situation there in connection with criminal proceedings. The Legal Aid Act 1988 and the Legal Aid Board and “legal aid” were replaced by the Access to Justice Act 1999, the Legal Services Commission and in the case of criminal proceedings a ‘right to representation’ funded by the Criminal Defence Service - which itself is established, maintained and developed by the Legal Services Commission (the LSC). The LSC came into being on 1st. April 2000. It acquired all the functions, property, rights and liabilities of the now defunct Legal Aid Board. However as a result of various Standing Orders the Legal Aid Act 1988 and the regulations made thereunder continued to apply to criminal proceedings but with the functions of the Legal Aid Board being transferred to the LSC. The burden on the state. Legal Aid costs particularly in criminal proceedings had been rising fast since the 1980’s and there were frequent cries from the wealthier MP’s (mostly Tory) about its cost to the exchequer followed by cries from indigent MPs (mostly Labour) about ‘fat cat’ lawyers ripping off the system. The media would have a field day as they had no love for lawyers particularly those who acted in libel cases (unless it was to represent the newspaper) and it would fall to the Bar Council to try to explain to a disbelieving public that lawyers had huge overheads, expenses and gave a quality service for less than reasonable payments from the State. Of course on this front as always they were fighting a losing battle. The Lord Chancellor’s Department (LCD) decided, after several not too satisfactory talks with Bar Council to take steps to try and reduce the expenditure by devising a method of capping fees but nothing seemed to be able to control the rise. Indeed having succeeded in restraining the criminal legal aid bill they found that costs in family and child matters were shooting up as well. The fact of the matter was litigation itself had burgeoned and not simply in crime and family; asylum and judicial review applications began to number in the thousands and housing cases too, most of which concerned local councils. Members of the Bar and Solicitors in legal aid cases as well as those instructed by the Crown Prosecution Service (CPS) had to work very long hours and under considerable pressure for fees that could not compare with the private sector and yet take flak from the LCD over their claims. Magnitude of the problem. When Tony Blair’s government came to power in 1997 it commissioned a Legal Services Research Centre to gauge the legal needs in England & Wales particularly in the social welfare and family fields. Over 2 ½ million pieces of data were assembled and 5600 respondents questioned. The survey disclosed that there were at least one million problems affecting people for which no answer had ever been sought by them. These are LCD figures. As a result the Community Legal Service partnerships came into being, bringing together local solicitors firms, local authorities, law centers, citizens advice bureaux and many other non-profit agencies with the common aim of ensuring that people can get information and advice about their legal rights and help with enforcing them. The Quality of Legal aid. Organisations offering legal and advice services within the Community Legal Service had to win the right to display a Quality Mark to show that they met the minimum standards of service set by the CLS. Barristers chambers now too have to obtain a BarMark to show that they met the criteria set by the Bar Council for quality work and service and also a Quality Mark from the LSC. The CLS also opened a website at which people could find a quality local legal advisor or solicitor, ask questions, see whether they were eligible for legal aid using the online calculator, and access information leaflets. For the use of all the information was available in English, Arabic, Bengali, Chinese, Gujarati, Hindi, Punjabi, Turkish and Urdu. Free initial advice was given about social benefits and tax credits, debts, education, housing and employment – free to the client but the legal service providers or solicitors were paid by the LSC. In effect what had happened in the couple of years which ushered in a new millennium, the Access to Justice Act had created a community legal service and a criminal defence service (of which more anon). They were both mechanisms by which the State could deliver legal services to the public either by employing lawyers directly to deliver those services or sub-contracting them to the private sector i.e. solicitors and barristers. It is well known that the Bar Council and the Law Society are the professional bodies in England & Wales for barristers and solicitors. Whereas the new contracting or franchise schemes had not gone down too badly with the solicitors, the Bar was never happy with the LCD’s continual efforts to either reduce or limit fees paid for publicly funded work whether in the Crown or Family courts. Lord Irvine of Lairg QC who had declared in 1996, when in opposition, to a Bar conference that the Legal Aid system was “a resounding success”, when his party came to power in 1997, tried to abolish legal aid in ‘money cases’. This was strenuously opposed by the Bar and finally legal aid was only abolished for personal injuries cases (where now conditional fees are allowed). In November 1999 the Lord Chancellor announced that he was considering reducing fees paid to criminal and family practitioners and alleged that there were 102 cases of overclaiming of criminal fees. The Bar Remuneration Committee in response set up a Steering Group to deal with this attack and promised to investigate any complaints by referring the cases to the Professional Conduct Committee. Much negotiation and consultation took place over the matter of fees in the next year and indeed over the plans of the government to set up salaried criminal defenders and run it initially as a pilot project and after the setting up of the LSC in 2000 the Criminal Defence Service was established by the LSC in April 2001 and a fee structure introduced. Legal Aid of course had by now been in existence for many years for criminal (or civil) litigation but the new ‘standard’ and ‘graduated’ fees for criminal work set out in actual figures the amount that legal practitioners could expect to be paid. The purpose of the Criminal Defence Service (CDS) was to secure that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require. Criminal proceedings had a wide definition under Section 12 of the Access to Justice Act 1999 (now brought into force in April 2nd. 2001 by the Commencement No. 7 Transitional Provisions and Savings Order 2001) and included appeals brought after conviction or sentence. Section 13 says, inter alia, that ‘the commission shall fund such advice and assistance as it considers appropriate for individuals who are arrested and held in custody at a police station or other premises”; Section 14 also makes provision for funding an individual “in criminal proceedings”. In both cases the Commission may comply with its duty by entering into contracts with persons or bodies for the provision of representation and make payments to such persons or bodies (i.e. solicitors or barristers). The choice of his representative is left to the individual by Section 15. All these rights and privileges only come into play once the individual is granted a ‘representation order’ which entitles him to Legal Aid but the criteria for obtaining legal aid for criminal proceedings are very generous. They are set out in Schedule 3 paragraph 5 as follows:-
The Lord Chancellor retains the right to add new factors to the above. The Courts have been traditionally indulgent to the grant of legal aid and in R v Gravesend Magistrate Court ex parte Baker 161 JP 765 DC it was held that legal aid should be granted to a defendant who intended to raise as a special reason for non-disqualification from driving, on conviction, the suggestion that his drink had been laced and that it should be extended to the instruction of an expert witness. In my experience such experts usually are adept at saving the client’s licence with juggling statistics and figures of rates of absorption of alcohol by the human body that bemuse the bench. Criminal Defence Service Regulations were subsequently brought into effect as secondary legislation following the above Act and set out in considerable detail rights to legal aid, criteria for aid, financial eligibility, powers of courts to make representation orders giving legal aid to defendants. Regulation 14 also allowed for the services of Queens Counsel where “in the opinion of the Court the case for the assisted person involves substantial novel or complex issues of law or fact which could not be adequately presented except by a Queens Counsel”. I have not mentioned legal aid provisions for what is considered a Very High Cost case. This is regarded as a case which would be likely to last 25 days or more or the defence cost with regard to any one defendant (or group of defendants represented by the same firm of solicitors) are likely to amount Pounds 150,000 or greater. In such cases the LSC can enter into a contract with a representative to provide legal services. In fact both the structure of the contracts and the rates of pay were initially criticized by the Bar as being insufficient and likely to affect the quality of counsel willing to undertake such work. Remuneration. The Criminal Defence Services (Funding) Order 2001 provides for the funding and remuneration of services provided as part of the CDS. It allows for interim payments of disbursements, interim payments of cases awaiting determination, staged payments in long Crown Court cases (where preparation time exceeded 100 hours and the period from committal from the magistrates court to conclusion of the trial is likely to exceed 12 months), interim payments for attendance at trial and refreshers, advance payments for early preparation in Crown Court cases and hardship payments where the legal representative applies for payments 6 months after he was instructed and shows that he is unlikely to receive payment for the 3 months following his hardship application and that he is likely by reason thereof to suffer financial hardship. Provision is also made for appealing the decision of the taxing officer regarding payments to a Costs Judge, and a further appeal to a High Court Judge on a point of principle of general importance. Schedule 2 Part 1 of the Order sets out the fees of solicitors in detail for proceedings in the Crown Court and Court of Appeal. A senior solicitor for example can claim upto Pnds 53 per hour for preparation and attendance in court at Pnds 42.25p per hour. By way of contrast, a privately paid city firm junior partner solicitor can easily charge upto Pnds 250 per hour preparation and Pnds 350 plus for each day in court. Fee Structure. Part 2 of the Schedule sets out Standard fees in the Crown Court and they are by no means generous although the advocate is always met with the swings and roundabouts argument. These fees apply e.g. to committals for trial, appeals against conviction and/or sentence, guilty pleas, and jury trials where the case is listed to last for 2 days or less. As one can see such matters are relatively less serious in nature – but may frequently cause quite as much stress - than other offences where a system of graduated fees is available. For such standard cases, payments are made to the tune of Pnds 110 for guilty pleas, Pnds 68 to Pnds 153 for appeals against conviction, Pnds 179 plus as a brief fee for jury trials with refreshers of Pnds 130 per day. I should clarify that such sums can be revised upwards by the taxing officer provided he is satisfied this should be done upon an application for review being made to him. Graduated fees apply to cases reckoned to last more than two days but not more than 25 days. Other factors such as the number of pages in prosecution evidence (not more than 400), number of prosecution witnesses (not more than 80) are also taken into account. Over and above all this, the case then enters into the territority of a very high cost case and both brief fees and refreshers are then calculated according to a set of instructions issued for the guidance of taxing officers. So far as graduated fees are concerned some idea of what a junior barrister can expect to be paid for let us say a medium heavy trial lasting for 10 days. The formula applied looks like the theory of quantum physics but is actually quite easy. It is, where G is the graduated fee, G = B+ (d x D) + (e x E) + (w x W) + (d x R). There is another formula for trials exceeding 10 days but forgive me if I do not set it out as well. However using this formula in a case of Rape (a Class D offence) where there are 20 prosecution witnesses and 250 pages of prosecution evidence, the payment can be 390 + (9 x 220) + ( 200 x .99p) + ( 10 x 6.57p) x (9 x 146) which comes to Pnds 3557.70p. The letters I have given above are symbols for Basic fee, Days in court, Evidence uplift, Witnesses (prosecution only) and Refreshers. One must add to this claims made for various pre- trial applications and hearings, opinions, conferences, listening to tapes, conferences with expert witnesses and so forth. The actual figure could well be Pnds 5000 plus. These were at least the rates in 2003 but may have increased. The actual cost to the State is much more for in addition to defence cost, one must take into regard the prosecution fees (paid by the Crown Prosecution Service) which are only a little less than the defence, the charges the solicitor makes for his dealings with the client and his attendances at the magistrates court (from where the trial was sent to the Crown Court). In addition to these are the usual jury costs in all jury trials. One can now see why and how the criminal Legal Aid bill tops 800 million sterling. However it is only fair to say the barristers have heavy overheads, work very long hours, pay upto 15 % commission to their clerks and have to provide for their pensions. At the Bar if you fall ill, you have had it unless you also take out expensive insurance. Public Defender. It was probably with these figures in mind that the Government decided to try out a Public Defenders Service (PDS), which was to establish a salaried defence service employed by the LSC itself. A consultation paper was published in this connection and the consultation period concluded in October 2000 and the Government conclusions were published in March 2001. In its summarized Report on this matter, the Government states that it is committed to ensuring that the criminal justice system is fair and efficient and commands people’s confidence. It should be sensitive to the needs of the victims and witnesses, and to the public interest in the speedy and effective administration of justice. For a criminal justice system to be fair, people suspected of a criminal offence or facing criminal proceedings must receive legal advice and assistance in preparation of a case before a court, when the interests of justice criteria require. Defence lawyers, so the Report continues, play an essential part in this process. They have the role of protecting the interests of the suspect or defendant, ensuring that the prosecution proves its case and advising the defendant on the appropriate course of action. The provision of legal advice and assistance should help the defendant secure his rights and ensure that the process is effective and reduces unnecessary delay. All this is music to the ears of every defence counsel and a delight to hear the State sing his praises; but alas, as the saying goes “Let there be no moaning at the Bar when I send in my fees”, each succeeding administration has done its utmost to knock as far back as it can the fees paid for publicly funded work while at the same time trumpeting loudly the high quality representation given to every defendant in the land. Offices of the PDS were opened in initially 4 offices in Birmingham, Liverpool, Middlesborough, and Swansea. 2 other offices were to be added. Each office has a Head who manages his own office with staff and equipment. Each office is also independent of the LSC (except for funding) and must act in accordance with a Code also published, which make it clear that their primary duty lies with the lay client and that services rendered must be of the highest professional calibre. Indeed as they do not have a captive clientele, such offices have to perform well or they would be without a client base as no one would seek their services when they could easily get an independent solicitor to represent them on legal aid. The PDS was to offer a full range of services from Police station representation to representation in court. They could also directly engage the services of independent legal practitioners such as barristers or other solicitors. A solicitor member of the LSC was appointed as overall Head of the Service and the entire pilot project was to be reviewed in 2005 (after 5 years). At the time of writing I regret I am unable to update the reader with the results of this review, being a bit out of touch for the last 24 months or so. Finally on the English aspect I have only to add that it is by far the most comprehensive and most generous provider of free legal services in the world (or at any rate to my knowledge). Certainly the expenditure is such that were the USA to make such provision in its budget per capita then the gross sum paid out would be in excess of 7 billion USD. I do not think the present cost is anywhere near that sum. An equivalent cost to Malaysia on the basis of population would be just under 700 million sterling. Access to justice in our modern age is an idea whose time has come – again and again. In the Western European legal system it has quietly taken deep roots, in the U.S.A. after much razzamatazz over the rights of the individual some States provide legal aid to indigents in certain proceedings, but in most developing countries the concept is just a speck on the horizon. In some cases the courts have tried to help through PIL but this is a drop in the ocean. Courts, particularly criminal courts, are overflowing with cases; grievances over delay by lawyers, judges, court staff, are legion and corruption is inevitable where litigants strive to deal with ‘the insolence of office and the laws delay.’ It is not uncommon for trials to drag on for years only to abort and be followed by further trials. The kind of conditions (and worse) that Charles Dickens portrayed so memorably in his novels are all too prevalent in Asia and Africa. Access to justice which must include a right of access to legal representation is an illusory right since legal representation can neither be found nor funded. Indeed it is given low priority and national budgets are geared towards the development of trade and industry, the armed forces and the needs of the business classes and their supporters. Such States can ‘never afford’ to build proper and enough court houses, appoint and pay judges, acquire or use modern administrative technology, provide staff or increase the police force; they have insufficient funds. On the other hand funds are always available to buy the latest military hardware, construct highways, and oblige foreign investors with tax cuts and remunerative packages. I still remember the shock I had when, on return to England from Pakistan in 1971, I sat in on a Crown Court trial which lasted 2 or 3 days of a minor charge of attempted theft and the facts (as far as I can now remember then) were to my mind trivial. The defendant had been seen in the rear garden of a suburban house by the occupier where her clothes had been hanging on a line. She telephoned the police and the defendant was arrested some distance from the property within minutes. He of course denied everything but he had in his possession a pair of gloves and it was high summer. He was charged and tried. He was given legal aid and a solicitor and barrister. The questioning of the poor lady. the police, the defendant and his witness was meticulous, the prosecution made a speech, the defence made a long speech, the judge took pains to sum up the case to the jury, the jury went out for 2 or 3 hours and finally they acquitted the man. “What”, I asked, with the summary procedure of Karachi cops in mind, “has been the cost of all this?” I was told by the defence lawyer happily that the cost to the State was several thousand pounds; but said he they would not have it any other way. It was a question of priorities. The administration of justice demanded that fair trials take place and the money be found for them. Such expenditure was not regarded as a waste of taxpayer’s money as the taxpayer would ultimately be the beneficiary. Of course sometimes trials were prolonged unnecessarily but it was always up to the judge to control his proceedings and prevent this. Now this may not be the best example of Access to Justice by an accused and certainly most developing countries simply do not have the resources to fund actions such as this one, but the point made then about priorities is still valid. If developing countries want fine roads and buildings, modern hotels and hospitals and houses, why are they content with tatty and outdated legal systems fossilized for the last 70 years and legal services which are mistrusted and regarded poorly by their citizens? It can only be that administration of justice is given very low priority. Disclosure. I cannot leave the topic of Access to Justice without reference to an aspect of criminal trials in the Malaysia which I find baffling. This is the almost total lack of disclosure by the Crown which must hamper any access to justice. It is impossible for defence counsel to comply with their duties and act competently without full and frank disclosure by the Crown of their case. There is no need for the prosecutor to hold his cards close to his chest as this is not a game of poker but the administration of justice. In fact it is always in the interests of the prosecution to disclose the case against the accused as, if it is a reasonably strong one, it will result in defence counsel giving robust advice to their client to either plead guilty or to offer a plea to a lesser charge. Numerous trials which are at present fought tooth and nail unnecessarily will go short, numerous witnesses who are at present pointlessly made to attend hearings (often adjourned) will not have to attend since their statements will be agreed and read. Another useful result is that the prosecutor is made aware early in the case of some weakness in it or some lacuna in evidence simply by astute defence counsel taking the objection in court. He is then able to correct this by additional evidence or better preparation. All this is surely in the interests of the general public and access to justice by both sides. Nowadays we have seen many criminal prosecutions failing for lack of relevant evidence or witnesses. This can be avoided. The Criminal Proceedings and Investigation Act 1996 (CPIA) introduced a novel procedure with regard to disclosure. Before I set it out I should make it very clear that long before the CPIA it was the duty of the Crown to serve upon the defence ALL prosecution witness statements, ALL prosecution exhibits and any other relevant evidence that they intended to rely on in the trial. The question of surprise or ‘ambush’ as it is now referred to simply did not arise. However over the years, the discovery after conviction of evidence that had been suppressed or not disclosed or overlooked by the Crown led to several appeals being allowed and to a demand for far more openness and accessibility to all relevant evidence by the defence. Demands by the Police and others for greater frankness by the defendants led to a change in the Caution and to the CPIA. Briefly, at first primary disclosure is made by the prosecutor of any prosecution material which has not previously been disclosed to the accused and which in the prosecutor’s opinion might undermine the case for the prosecution against the accused and which has come into his possession and he has inspected. E.g. previous convictions of prosecution witnesses, identity of persons who have witnessed an incident giving rise to criminal proceedings and capable of undermining the Crown case, identity of 999 call makers and so on. The Attorney-General has issued guidelines to prosecutors about this in 2000. Under S. 5 CPIA, after this takes place, the accused has to give to the Crown a Defence Statement which sets out in general terms the nature of his defence, indicates the matters on which he takes issue with the prosecution, and why, and if an alibi defence he gives its details. This act by the defence triggers secondary disclosure by the prosecutor who then must disclose any material not so far disclosed and which might reasonably be expected to assist the accused’s defence as disclosed by the Defence Statement. The prosecution duty of disclosure is ongoing throughout the trial. In fact there is mechanism for the appointment of a disclosure officer (not the investigating officer in the case) who is under the duty to prepare a list of disclosure material and hand it to the prosecuting counsel for inspection, (who is always independent and bound only by his duties under the code for Prosecutors). In my experience the present position in English criminal courts is not that there is not enough disclosure but that there is (particularly in fraud cases) too much (usually what is called Unused material) which makes the task of sifting through volumes of paper a daunting one. I recollect one elderly Judge saying in Court, after finishing a lengthy fraud case with thousands of exhibits, “Now for God’s sake give me a good old GBH.” *This paper was delivered at the 13th Malaysian Law Conference.
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