After having her feet held to the fire by women’s rights charities and even the president of the Family division of the High Court, Liz Truss says legislation’s coming soon to stop perpetrators of domestic violence cross-examining their accusers in court.
This means that the Family courts will soon have the same power as the Criminal courts to appoint a lawyer to parachute in to cross-examine a victim on an alleged abuser’s behalf. (The Criminal court’s power to appoint lawyers to do this exists under ss36-38 of the Youth Justice and Criminal Evidence Act, 1999).
Just when you might be waxing lyrical about Liz and Tory enlightenment thinking …
Less than two weeks ago, the Government released an “impact assessment” which proposes to slash fees paid to ss36-38 court appointed advocates in order to save 6-8M from the Ministry of Justice’s annual budget.
Currently, s36-38 advocates are paid in accordance with the Government’s own Guideline Hourly Rates. These guideline rates are based on post-qualification years of experience and location.
The impact assessment states that on average, the fee notes that the Government receive for ss36-38 court appointed work are circa £193.00 per hour. In light of the Government’s own guidelines, this fee indicates that the majority of this work is conducted by solicitors and barristers with over four years post qualification experience.
Rather than following their own Guideline Hourly Rates, the MoJ want to pay “legal aid rates”.
While Magistrates Court legal aid cases are a fixed-fee for the whole of the case, Liz will no doubt say that circa £50 per hour is “more in line” with those legal aid fixed fees.
You cannot compare being parachuted in for a ss36-38 cross-examination only with conduct of the full case.
Cross-examination is only a fraction of the work and time involved in running a case.
For example, a typical Magistrates Court ss36-38 appointment involves preparation time of about 20 minutes per witness, 20 minutes listening to the examination in chief and 20 minutes cross-examination. That’s £50.00 total in legal aid rate world. Before tax.
£50.00 before tax for one of the most nerve-wracking days of a vulnerable woman’s life?
As much as I want women in the Family court to get cross-examination protection from their alleged abusers, why on earth would any qualified and experienced lawyer do this job in either the Criminal or Family courts for circa £50.00?
Why on earth would I book an entire morning or afternoon out so I can be one of several cases in a court list for circa £50.00?
It makes zero commercial sense for me to block off my diary and to prepare for sensitive cross-examination of a vulnerable witness and participate in a trial for a bargain-basement fee.
How will firms make a fraction of an already rock bottom legal aid fee commercially viable?
Volume? Leaving aside that we cannot be in two places at the same time, even if I were to receive separate morning and afternoon appointments in the same court, we are still talking only circa £100 per day – before tax.
Send inexperienced lawyers looking for a break – or the truly awful? Doesn’t this defeat the entire purpose of a ss36-38 order?
Tell me again why the Government is trying to balance the budget off the backs of abused women.
And here’s how the apparatchiks explain away the risk of this fee-slash:
27. If some lawyers no longer agree to do this work at reduced rates, it could affect the ability of a defendant to have their case effectively put to the witness(es), or to have the prosecution evidence tested, resulting in the possibility of miscarriages of justice. It may also impact witnesses by prolonging the distress of being involved in criminal proceedings.
28. Further, if there is a shortage of lawyers willing to be appointed to do this work, cases could be delayed creating a backlog in the court system. Costing this delay would prove difficult, however it is important to note the potential impact on HMCTS. However, we believe there is a low risk of this happening, as there is an established market, operating effectively at legal aid rates. Further, the risk could be mitigated further through contractual provision.
The impact assessment presumes we will continue to carry out this work – with the premise that if I will work for legal aid rates for the whole case, I’ll be happy to work for legal aid rates for a fraction of the case. Much as I’d love to, I don’t see how any of us can afford to do that when that fraction is only an hour or two’s worth of time.
I wish I could herald the protection of vulnerable victims from abusive cross-examination by their partners as a win for women and Government accountability – but the MoJ’s sleight of hand fee-slash will ensure victims of domestic violence continue to get the short end of the stick.