Why Court was Right to Grant ex-MPs Legal Aid

I am relieved to see that this morning’s mainstream newspapers have not been taken in by the manufactured row over the three former MPs who have been granted legal aid to defend themselves against charges of false accounting.

The Guardian’s report displays a healthy scepticism. But none of the newspapers that I have seen really understands the story — not surprisingly, since none carries a piece by a legal correspondent.

As I tried to explain in an interview on BBC Radio Five Live late last night, legal aid in criminal cases is a human right. Article 6(3)(c) of the Human Rights Convention says that everyone charged with a criminal offence has the right to defend himself through legal assistance of his own chosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

And despite its protestations, the current government has not abolished that right. All it has done is to introduce a means test. Those with sufficient means who are convicted generally have to pay towards their defence. The rule has not yet been introduced into every Crown Court, not least because means testing takes time and costs money.

In itself, means testing is not particularly objectionable. What’s more worrying is that those who chose to pay for their own defence lawyers — and who are then acquitted — no longer have their full costs paid back by the state. The most they can claim is what a defence lawyer would have received under legal aid.

This is a dilemma for middle-class defendants wrongly accused of career-threatening offences; pay for the best lawyers and end up out-of-pocket or pay lower rates for inadequate representation and risk losing both your liberty and your livelihood.

In any event, it would have been a false economy to deny the three former MPs legal aid. They are seeking to argue at a preliminary hearing next month that they are immune from prosecution on grounds of parliamentary privilege. This is a difficult case to establish and not one that could possibly be made by a non-lawyer.

Let us imagine, though, that they had been denied legal aid, that they failed to persuade the judge that the defence of parliamentary privilege applied and that they were convicted and imprisoned. Let us imagine that they then appealed to the Court of Appeal, which was taken by the privilege argument and quashed their convictions as a result.

This would result in a much higher cost to the public purse — quite apart from the strain on the MPs and their unnecessary imprisonment, albeit for a short period pending appeal. Far better to sort it out before trial.

Put like that, legal aid is a worthwhile investment. If there’s a clear ruling that privilege does not apply — perhaps from the Supreme Court — I don’t suppose the trials of David Chaytor, Elliot Morley and Jim Devine will take very long.

Update: The Law Society chief executive Desmond Hudson said later:

It is a principle of our legal system that anyone charged with a criminal offence before the Crown Court is entitled to legal representation. This is a vital part of ensuring that charges against a defendant must be fully proved in a fair trial. This must require the provision of legal aid. 

The government has recently introduced a means test for such cases to ensure that those who can afford to contribute to the costs of their representation are asked to do so. Depending on the wealth of the individual and the cost of the case, their contribution could cover all costs.

It would be very worrying indeed if a fellow citizen charged with serious criminal matters could not be properly represented in court. Stigmatising the legal aid system is disappointing and unhelpful.

 Quite right. 

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