Have you ever paused to consider what would happen if you were falsely accused of a serious crime? While most of us would consider it a remote possibility, this was Dr Stephen Glascoe’s reality – falsely accused of 3 crimes with 15 charges against him, he was forced to spend £101,000 proving his innocence, only £40,000 of which was reimbursed (1). A substantial portion of his life savings and many years were lost to a battle he never should have had to fight. It sounds absurd and wildly unfair, but with the current legal aid provisions, it is a dreadful reality you too could face, no matter how slim the chances. 

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A brief background on legal aid

Legal aid refers to funding provided by the government for legal procedures. Before 2012, legal aid provided representation unequivocally, but in 2012, the LASPO (Legal Aid, Sentencing and Punishment of Offenders) Act was passed. The Act, in a bid to decrease government spending in the Ministry of Justice at a time when the budget deficit was around 6% of total GDP (2), restricted access to legal aid by creating a means test. This test means that only individuals with almost negligible incomes - incomes less than £12,475 in most cases (3) - can access full legal aid and dictates that people with household incomes of higher £37,500 are entitled to no support. 

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Therefore, people with incomes over the threshold, however barely, would have to cover the costs of their legal procedures independently, no matter the merits of the case. Moreover, the money spent on legal procedures will not necessarily be refunded if you are acquitted, as seen in Dr Glascoe’s case where less than half the money spent was reimbursed. 

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Why is this relevant today? 

For one, the position I explained at the beginning has not changed – you could be wrongly accused of a crime and be forced to spend your life savings to prove your innocence, a real situation faced by Dr Glascoe. Those less fortunate than Dr Glascoe would not have even been able to afford a strong defence and would have to face the possibility of being wrongly indicted. This system is unjust in a multitude of ways. 

In addition to the injustice caused, legal aid also has an intricate connection to many of the judicial issues faced currently.

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Take, for example, the recent issue of overcrowding in prisons which has meant that there have been several ‘emergency releases’ of prisoners (4). This issue of overcrowding stems directly from restricting access to legal aid. The majority of those who fall above the threshold for legal aid still cannot afford private legal representation so will choose (or be compelled) to self-represent in court. 

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Such individuals will, of course, be less successful than a barrister or solicitor in arguing their case and mitigating any sentences they receive – after all, knowledge about offences, aggravating and mitigating factors and defences is not common. Therefore, the defendants are more likely to be convicted and receive longer sentences (5), which ultimately means there are more people for prisons to accommodate, and for longer periods of time. The cumulative impact of this over the last decade has majorly contributed to the problems of overcrowding faced currently. 

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The enormous backlog of cases in courts currently, with over 73,000 cases remaining unheard at the end of September (6), can also be seen as a consequence of restricting legal aid. When the court system is examined, it is obvious that the entire process — appearing in court, examining witnesses, negotiating — would be most efficient if those familiar with the process, lawyers, were to conduct it. However, as mentioned, cuts to legal aid have led people to self-represent in court, causing massive delays (7), as regular breaks and interruptions are required to remind the self-litigant of the basics of the law. Costs also spiral due to the increased time judges and witnesses are required in court to complete proceedings. 

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The Autumn Budget – repeating the mistakes of the past.

With the reveal of the Labour government’s Autumn Budget, lawyers and legal enthusiasts alike were hoping to see the new Labour government recognise the source of its current judicial problems. One would hope that at least the current budget, 12 years from when initial cuts were implemented, would reflect the need for increased funding for legal aid. But with the new budget came yet another wave of disappointment and the grim realisation that this government too will fail to recognise the importance of legal aid. 

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Although the budget for the Ministry of Justice has been increased by £1.9 billion to a total of £13.8 billion, the ideas for investment of the extra funding seem problematic. For example, the new budget aims to ‘repair the justice system’ by investing £2.3 billion in prison expansion (8) and £500 million across the prison and probation service to recruit more prison and probation staff. However, it is unclear how these proposals aim to ‘repair’ the justice system when they are merely band-aid solutions that are trying to alleviate the current issues — overcrowding in prisons, the backlog of court cases — rather than resolve the root of the problems:  lack of sufficient funding for legal aid. 

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Simply expanding prison facilities and hoping that their capacity too will not be exceeded does nothing to address the problem of why prison capacity is being exceeded and how a more permanent resolution can be brought about. For a government that has only recently been elected and will stay in power facing the same problems for the next 4 years, this level of myopia is surprising indeed. 

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Looking to the future

Looking ahead, what will the government decide to do a decade later, when the new prison facilities are overcrowded yet again, and the court backlogs have not decreased? Expand prison facilities further? Or finally deal with the underlying issue and choose to spend the budget on the provision of legal aid?

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The economic benefits of providing legal aid are clear. A cost-benefit analysis conducted by the World Bank found that expenditure on legal aid decreases costs related to other public services. For example, every £1 spent on legal aid advice relating to social welfare entitlements saves the state £8.80 (9) by reducing the pressure on other public services (such as social services and the NHS) and preventing adverse consequences. Moreover, the decreased pre-trial detention and efficiency gains for the courts that legal aid allows for can also bring huge cost-savings to the justice system. So, even if the initial (and perhaps perpetual) goal was to keep government spending to a minimum, legal aid is the sure way forward. 

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In a country where the court system is adversarial and litigants cannot possibly be expected to self-represent, the importance of legal aid cannot be emphasised enough. In France, for example, the court system is inquisitorial; the judge asks questions of the witnesses, instead of being a referee for the debate between the prosecution and defence (10). In such cases, it is at least justifiable if the importance of legal aid is overlooked, since the requirement for representation is much lower. Such oversight from countries such as the UK, where the court system relies on lawyers presenting an individual’s case, is unacceptable. 

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What initially began as a fiscal policy measure to reduce government spending has spiralled into something that has created false economies, exacerbated the issues of overcrowding in prisons and decreased the efficiency of courts massively. Currently, when there is concrete evidence illustrating the social and economic benefits of legal aid, the wisest course of action that can be taken by the new labour government would be to acknowledge the mistakes of the past and take action to provide more comprehensive, unequivocal legal aid, as it was before 2012. Not only will this help resolve the many social injustices caused by legal aid cuts, but it will also produce economic and efficiency gains. The case for legal aid is clear and it would be a mistake not to recognise its importance in society yet again.