Purdah has allowed the government to implement new guidance and charges in a way that Niccolò Machiavelli would be proud of

It must be quite difficult for lawyers to engage with social media in the minutes and hours after a court has acquitted or quashed the conviction of a person whom the baying mob of Twitter has already found guilty.

The metaphorical gnashing of teeth which followed the quashing of Amanda Knox’s and Raffaele Sollecito’s murder convictions by Italy’s top appeals court is but one recent example.

One can tweet until blue in the face – or finger tips – but there is just no convincing some elements of the Twittersphere that the law is not always ‘an ass’ and that the rule of law must be respected. Often the response received is ‘there is no smoke without fire’, or ‘innocent people aren’t found guilty’.

Of course, the unfortunate truth is that they do, and under new government reforms they are more likely to in the future.

Just when we all thought the 5 per cent fee hike for civil claims over £10,000 was the worst thing the government could throw at court users, the Ministry of Justice (MoJ) decided to bring into legislation outrageous guidelines set to undermine the principle of fair trials.

The guidelines, which have slithered from the Lord Chancellor’s office and through the halls of 102 Petty France, are set to come into force from 13 April and introduce new criminal court charges. In short, suspects who refuse to plead guilty will be forced to pay expensive court fees as punishment if found guilty.

In the magistrates’ court, those defendants convicted at trial of a summary offence will incur a £520 charge; more than three times the amount had they pleaded guilty. But it gets worse, as those convicted of either-way offences can expect a £1,000 charge.

Things will be no better in the Crown Court, where a guilty plea will lead to a £900 charge. Conviction after a trial will cost £1,200.

It is easy to see why many lawyers – or anyone with an ounce of common sense – are worried that innocent people of low economic means might consider pleading guilty at an early stage of proceedings so as to avoid such a draconian charge.

The court fees were laid as a statutory instrument which was enabled by a clause of the Criminal Justice and Courts Act. That particular piece of legislation was granted royal assent in early February. Why take so long to introduce the guidelines? Those of a sceptical nature might think that implementing these changes so close to purdah represents the darkest side of politics.

But the purdah controversy doesn’t stop there. MoJ regulations which limited payments in judicial review cases were recently quashed following a High Court ruling in early March. Unsurprisingly that hasn’t stopped the government getting its way.

Lawyers were understandably buoyant after the MoJ confirmed it would not appeal the High Court’s ruling that the Lord Chancellor’s plans to limit judicial review applications were unlawful. In theory, the decision not to appeal meant that lawyers challenging government decisions would get paid regardless of whether their cases reached the permission stage.

At the time, Nicola Mackintosh told SJ that it was vital for the public to be able to hold public bodies to account when they act unlawfully.

‘The Lord Chancellor’s Regulations would have prevented vulnerable people from enforcing their rights,’ she said. ‘We hope that future governments will take active steps to preserve, and not to erode, the rule of law.’

Unfortunately for Mackintosh, her words fell on deaf ears. No sooner had the digital ink dried on an SJ news piece – written by freelance legal hack Catherine Baksi – had the MoJ amended its regulations. The new regulations continue the ministry’s principle of not paying legal aid unless permission is granted – apart in the ‘very specific circumstances’ where the High Court found against it.

A MoJ spokesperson said: ‘The changes made…do not affect the principle of our original reform. They respond to the recent judgment allowing for payments in limited and specific circumstances for reasons outside the control of the lawyers bringing the case.’

The timing of these new regulations, so soon after the court’s judgment, and just prior to the start of purdah, is more than a little concerning, although hardly surprising given this government’s repeated attacks against the rule of law over the last five years.

During the last week, lawyers have no doubt been considering the regulations very closely and deciding how best to respond to them. Only time will tell if there is to be another legal challenge in the pipeline. But whether or not there is one, I wouldn’t put it past Chris ‘Machiavelli’ Grayling being able to wriggle out from underneath it political unscathed.

This blog was first published on Solicitors Journal on 31 March 2015 and is reproduced with kind permission

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