Ruth Mullen explores & explains the tortuous rules which govern the lives of migrants wishing to live permanently in the UK
What happens after a No Deal Brexit? Michael Zander QC reviews the Institute for Government’s assessment
Barrister & journalist
The conviction of former nurse and inspector for the Care Quality Commission, Carl Beech, for perverting the course of justice, and fraud goes some way to assuaging the pain he has caused to those whose reputations he so outrageously traduced. But it also exposes the ease with which the Criminal Injuries Compensation Authority (CICA) can be defrauded, triggering a media backlash. The Ministry of Justice body was set up to provide awards to blameless victims of violent crime, but Matthew Scott, a criminal law barrister at Pump Court Chambers, describes it as ‘a fickle and imperfect quango which awards or refuses government compensation to the victims of crime. It almost always gets it wrong: it pays far too little to those genuinely injured, it often refuses to pay anything at all for quixotic reasons, and it sometimes fails to identify fraudsters.’
A Ministry of Justice spokesman for the CICA said: ‘False claims are rare but if they occur we work closely with the relevant authorities to seek prosecution of perpetrators and recover any funds paid out. We prevented over £700,000 worth of fraud in 2018/19.’ However, it fell for Beech’s audacious scam, which followed Wiltshire Police’s dropping its enquiry into his uncorroborated claims of abuse by his deceased stepfather, and Jimmy Saville. The jury at his trial was told that he had previously stored a document on his computer which gave information on how to apply to the CICA. This explained that, for an application to be successful, the claimant had to report the matter to the police. A few months after giving his interview to Wiltshire Police, Beech contacted the investigating officer to get a crime reference number, which he used to fraudulently apply to the CICA, netting £22,000, despite the lack of evidence.
The Ministry spokesperson explained: ‘Sometimes an award is given even if police haven’t been able to find or charge a culprit, but only when there is a police report and sufficient evidence that shows on balance a crime took place.’ The police provided the relevant confirmation to the CICA, but a spokesperson for the National Police Chiefs’ Council declined to comment, observing: ‘This is one for the Ministry of Justice and for CICA themselves to respond to. It would not be appropriate for us to comment on a decision-making process by a separate body, or on the circumstances of an individual claim and how it was assessed.’
Those involved with attempts to obtain compensation for claimants who have suffered grievously at the hands of a criminal must wonder whether this case will make it more difficult for some to be believed. But Neil Sugarman, former managing partner of GLP Solicitors, and now a consultant to the firm, comments: ‘A percentage of people are dishonest. It is a consequence of human nature and should not penalise others and does not mean tear it [the Scheme] up.’ Last September, ministers ordered a review of the scheme, to improve access to compensation, and to consider how it might better serve victims, especially of child sexual abuse and terrorism. It is expected to report later this year, and has committed to considering recommendations of the former Victims’ Commissioner, Baroness Newlove, who said in her final report, in May, that many victims feel re-traumatised by the process of seeking compensation, are baffled by the scheme’s complexity and frustrated by its lack of communication.
She said patchy support from local victim services meant victims resorted to lawyers to make their claims, with most taking 25% of the final award as their fee. Newlove called for victims to have free legal support if the complexity of their case or severity of their injuries warrants it. She also said that other aspects of the rules which should be reviewed include the handling of cases where the compensation is held in trust, and the exclusion of victims or reduction of awards on grounds of conduct or unspent convictions—the scheme automatically excludes an award if the applicant has an unspent conviction which resulted in a custodial sentence, community order or youth rehabilitation order. It is suggested the rules disproportionately impact on vulnerable victims of child sex abuse who may have offended in response to being abused, exploited or groomed.
Sugarman, who has a special interest in claims on behalf of shaken babies who have suffered catastrophic brain damage, notes that the scheme changed in 1996, and a key factor was setting the maximum award at £500,000 irrespective of the severity of the injuries sustained. ‘It has never gone up, no matter what is wrong with [the claimant]. It is under-resourced with not enough staff and some cases can take four to five years to complete’. He adds that ‘compensation for some less serious injuries have been removed; amounts for loss of earnings were cut and it is now limited to statutory sick pay. It is untenable; inadequate and dysfunctional, and if a criminal court imposes a fine on the perpetrator, that is deducted from the award’.
A Ministry spokesman reports that the Scheme provided £130m in taxpayer-funded awards last year. Decisions are based on information provided by applicants, the police, courts and medical professionals, and CICA has a 95% satisfaction rate with only a tiny fraction of its decisions overturned at tribunal.
Veronica Cowan is a barrister.
‘I am Secret Barrister,’ went the cry. The anonymous blogger seemed to speak for the entire beleaguered criminal defence profession. SB’s book was a message that all lawyers could rally behind to protest the government’s wrecking ball.
One book might well prove more effective at explaining the depth of the crisis of our broken justice system than the combined efforts of all the profession’s representative groups in the last 20 years. But because it is very effective public relations doesn’t mean it’s an entirely comfortable read for lawyers.
SB shone an unforgiving light on the dark underbelly of modern legal practice. Not every defence lawyer is a plucky defender of the vulnerable against the overbearing might of the state; not everyone is a legal aid hero. Some are hopeless and others are downright dangerous. Meet Keres & Co: Secret Barrister’s savage depiction of a defence firm whose solicitors (‘amoral charlatans...’) milk the system, pocket the fees without a care for the clients leaving at least one in prison who should never have been there. If successive governments freeze legal aid rates for 20 years and pay lawyers peanuts, then no great surprise at what comes, to quote the anonymous blogger, ‘swinging through the branches to defend you’.
This is the side of the legal aid debate you rarely hear about. It was the theme of a 2013 Justice Gap publication: ‘No defence: lawyers and miscarriages of justice.’ Contributors were given a commissioning brief including a typically uncompromising quote from the human rights lawyer Gareth Peirce. ‘Lawyers are at the heart of many cases of the wrongly accused and wrongly convicted: wrong, shoddy, lazy representation. It is a recurrent theme,’ she said. ‘It should haunt us.’
The legal charity Transform Justice has performed a valuable service in its new report which seeks to identify the factors in a dysfunctional defence market that allow such firms to prosper (see ‘Criminal defence in an age of austerity: Zealous advocate or cog in a machine?’ July, 2019, (www.transformjustice.org.uk)).‘Most lawyers agree lousy firms like Keres & Co exist,’ the group argues. ‘What is less clear is how many firms like Keres & Co there are and how to stop defendants using such firms.’
What is blindingly obvious is why they exist. Yearly spend on legal aid for criminal law has collapsed from around £1.2bn to £890m since 2010. Legal aid rates have been frozen for so long and volumes of work have been dropping for a decade now. Defence firms bear the brunt of this and, according to a 2014 Law Society report, their average profit margin is just 5% (and that’s without the 8.75% fee cut introduced that year).
Decent firms end up cross-subsidising publicly funded work. ‘Our criminal department cost us £100,000 last year to stay open,’ one lawyer told Transform Justice. The rest of the departments were ‘sucking up our losses. I’m not too sure how long we’re going to be able to sustain that.’
What’s the appropriate ethical response? ‘We remain determined to provide access to justice to our clients,’ wrote one firm on giving notice on its contract to the Legal Aid Agency (LAA). ‘[But] we can no longer tolerate or support a system that excludes so many of them from the legal aid scheme and which provides rates of remuneration that are so low that that legal aid work has to be subsidised...’ The letter goes on to attack, with feeling, the ‘numbingly awful and time consuming bureaucracy’ of the Legal Aid Agency.
The long-term trend away from lawyers being paid by the hour to fixed fees has created, to quote Transform Justice, ‘perverse incentives’ to cut corners, take the easy money and dump the client. As I reported last month, Dr Jo Wilding’s report into the immigration and asylum market makes exactly the same point (see ‘Justice in a time of austerity’ (Pt 5)' NLJ 5 July 2019, p7). Solicitors reported that the average asylum case cost twice as much as the fixed fee. Firms were forced to make what Wilding called ‘financially rationale’ choices, ie take the easy cases, but some simply fleece the system.
Barely sustainable fixed fees have led to a commodification of the defence process. ‘We can only survive by taking a factory approach… we just churn out case after case,’ one lawyer told Transform Justice. I suspect the sharp end of this crisis is the collapse of quality in advice at the police station. More research needs to be done into this vital work, which has long been regarded among lawyers as, to quote Dr Hannah Quirk, ‘low status or distasteful work…mundane and lacking in intellectual challenge’.
The fixed fee for a duty case is about £150 and could involve six hours down the station in the middle of a night. That fee is, according to Transform Justice, ‘too low and too fixed’. Over the years, police station work has increasingly been farmed out to accredited reps (often former police officers). ‘I would rather not use agents, to be honest with you, but I’ve got no choice because sometimes I can’t find any [solicitor] who will go out in the middle of the night for very poor pay,’ one lawyer said.
SB admits to being complicit with ‘the conspiracy of silence’ that allows Keres of this world to thrive. The author puts that down to naivety and, to my mind, should be commended for being so frank. I took part in a roundtable discussion earlier in the year which looked at an early draft of Transform Justice’s report. There was the predictable harrumphing from one end of the table. The chair of one of the rep bodies felt that any report might be ‘play into the hands of the government’ (like they needed an excuse). The report is not only well timed, it’s long overdue.
Jon Robins is an NLJ columnist, & editor of The Justice Gap (www.thejusticegap.com).
In another time of political tension, Geoffrey Bindman recalls a historic tragedy