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The Ministry of Justice have just announced a consultation on removing the right to recover the costs that people have to spend defending themselves succesfully in road traffic cases.
In essence this will mean that if you pay for a lawyer to help you defend a road traffic allegation and you win, you will not be reimbursed your reasonable legal expenses. Thats right you are found not guilty and you still end up out of pocket.
At the moment if you succesfully defend yourself you get reimbursed your reasonable legal expenses in the form of a defendant's costs order. This means ,quite rightly, you are not out of pocket.
Lord Bach has suggested that people who defend road traffic allegation and pay for expert represetation do so out of choice, just like when you choose to send your child to a private school... How illogical is that!!
People don't choose to have to defend themselves. They are accused and have to defend themselves. Often their jobs and family life are on the line....... Thats not much of a choice in my books.
The suggestion is that the Court Clerk (the legal adviser to the magistrates) will assist unrepresented defendant's to present their case.
Court Clerks simply dont do that! Thats not their role. The court clerk will make sure that everybody has their say in court but they won't help you to defend yourself, they wont help you to understand the complex rules of evidence and disclosure, they won't run your case for you.
We have represented lots of people who have tried to represent themselves in the magistrates court and have been convicted simply because they weren't able to get there defence accross in a way that the magistrates could understand.
We have helped them to appeal to the crown court, where with proper representation they have been found not guilty on exactly the same facts that got them convicted. Why? The only answer can be be proper representation. Our client's described incredible frustration when trying to get there point accross unrepresented. We have clients who have worked for months trying to persuade the proscetion that they have a good defence without succcess and we have stepped in and got the case withdrawn within a few days. Simply because we were able to explain the defence in a way that was understandable to the CPS.
So from now on, if you can't afford to run the risk that you wont get you legal expenses back if you win, you will have to turn up at court and do battle with a crown prosecution lawyer (solicitor or barrister) who has in the region of 6 years legal training under his/her belt.
You will have to hold your own and trust that the truth will out! You will have to present complex evidence to the court and deal with the rules of giving evidence, disclosure, defence statement, cross examination etc etc on your own in a courtroom full of lawyers.
The Human Rights Act states that you are entitled to a fair trial and that you should be entitled to equality of arms in being able to represent your self? So lets get this straight - court room full of qualified lawyers who are not on your side - in fact one of them is actually against you - and you have to hold your own and present your own case......Yeah thats fair - NOT!
Want to know why this has happened?
The government in its wisdom brought back means testing for criminal legal aid and few years ago. In effect this meant that anyone accused of an offence and who wanted representation had to pay for it themselves if they earnt more than in the low £20000's.
So lots of people had to pay privately for representation. I don't have a problem with this, but I do if they win their case and end up significantly out of pocket for having to defend themselves.
Now Im not saying that the police and the crown prosecution service are bad at what they do, but lots of cases get withdrawn and lots of people are found not guilty.
After doing so they are, quite rightly (at the moment), entitled to be reimbursed their reasonable legal expenses. The cost to the public purse has escalated because people who would once upon a time would have got cheap legal aid are now making bigger claims on the public purse because they have had to pay privately for their legal advice and representation.
Now you may say why are lawyers charging more than they would have received to act privately for a client than they would get for doing a case with legal aid funding?
The answer is simple - the legal aid rates in this country are appallling low and most legal aid lawyers really struggle to keep their practices running. You may think "yeah right!" but its true. Lawyers who do solely legal aid work have a tough time of it and work on very tight margins to keep their practices running. Thats why the bigger wealthier firms dont do legal aid work. The rates are simply not economic.
Legal aid lawyers generally get around a quarter of the hourly rate earned by lawyers that do other types of legal work.
Its a vocation to practice criminal law and its certainly not a way to earn mega bucks...!
So most lawyers who charge privately for their services have made a decision that they cannot or will not work for the legal aid rates paid by the government.
Give us your thoughts
Don't take my word for it. Look it up on the Ministry of Justice website and have your say. Come back to me with your thoughts, I would be interested to know what you think. Tell me if you think I'm wrong in my views.
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