For citizens, the law is not a consumer product

The debate around the Legal Services Regulation Bill has its origins in the report of the Competition Authority on the legal professions and the EU/IMF Memorandum of Understanding that endorsed it. However, the language surrounding the proposals for reform has tended to conflate two very distinct concepts: that of the consumer of legal services and the client of a legal practitioner. In this discourse, the interests of the citizen in the sound administration of justice are reduced to the interests of an imaginary consumer of a service not fundamentally different from hairdressing. But legal services are not like hairdressing, or indeed like accountancy or auctioneering or banking, or a host of other services which have been subject to competition rules, though some legal services may resemble them in certain circumstances. Legal services are fundamentally different to other services for two main reasons: the law protects the rights of the individual and of vulnerable groups against the State and against those who might abuse positions of power; and there are circumstances in which people need legal representation. They are not freely exercising a consumer choice. Can it be seriously argued that a person, who is the victim of a medical mishap and needs compensation in order to obtain ongoing essential care, is a “consumer” of legal services when he or she seeks legal advice about how to proceed? What about the young man who was involved in a row outside a pub where one of the other participants dies, and who finds himself charged with murder? His liberty is at stake. Is he exercising a choice in deciding whether or not to “consume” legal services? What about those cases, all too frequent recently, where a family is threatened with the repossession of their home by a financial institution due to the bread-winner losing his or her job and therefore being unable to keep up mortgage repayments? Are they really voluntary “consumers” of legal services when they seek legal help to save their home? Such examples of the kind of people who are not freely exercising a consumer choice when they seek to access legal services are legion, and have received little attention in the debate surrounding the Bill (with some honourable exceptions, such as FLAC, which has expressed concern about its impact on access to justice for all). In very many cases when individuals seek a legal service, they are either vulnerable, or at a crisis point in their lives through accidental injury, family breakdown or bereavement, or they find themselves confronting an agency of the State. Most individuals seek legal services only a handful of times in their lives. The choice of an appropriate lawyer in such circumstances is of the greatest importance, and a mistake could be catastrophic. On the other hand, businesses, especially big corporations, need legal services all the time to draw up contracts, to assist in employment disputes, to negotiate mergers, to acquire or rent property, to secure payment for services, to deal with banking and taxation matters . . . the list goes on. These companies know exactly what they need and have a very good idea of where to find it. They are in a position to strike a hard bargain in obtaining a legal service, and lawyers in the big legal firms attest that obtaining this work is now very competitive. Some of the measures in the new Bill will be of benefit to these firms. Solicitor/barrister partnerships or combined practices could help ensure that highly sought-after specialist barristers are always available to the clients of these firms. Multi-disciplinary practices could allow for a seamless service, from accountants’ tax advice to fighting off any challenges to that advice in court – and perhaps, as is being argued in the Supreme Court in London at the moment, extending the benefit of legal professional privilege to accountants’ advice. It is arguable that such a combination of disciplines would not be in the public interest, especially if it allows a dilution of a lawyer’s primary obligation to the law and the court. But it is less obvious that these measures will be of any benefit to the vast majority of ordinary citizens, both those who require legal services at crisis points in their lives and those who have an interest, as citizens, in the fair, independent and impartial administration of justice and in the availability of legal services to all sections of society.

Barristers may strike over legal aid reforms and fees

The head of the Criminal Bar Association is to raise the spectre of strike action by criminal barristers across England and Wales in protest at cuts in fees and legal aid reforms. In a confrontational speech, Max Hill QC, will accuse politicians of “duplicity”. signalling a significant souring of the relationship between the legal community and the coalition government. Disappointed by criminal fees being repeatedly frozen, then cut by 13.5% by the last Labour government and again by a further 11% by the current administration. Hill will declare that the age of “Rumpole is dead”. The popular perception of “fat cat” lawyers wallowing in claret is inaccurate, Hill will assert, to an audience expected to include the Lord Chief Justice, Lord Judge. “We may be [Rumpole's] successors but we spend our days worrying about paying the mortgage; worrying about how we can ever afford a pension.” He will declare: “So let us fight, and let us remember the option to strike … demand better treatment. No more cuts, I say, either for the defence or the prosecution. Do not allow them to say that we must take our share of future cuts demanded by the comprehensive spending review. “The criminal bar suffered cuts by stagnation in our fees for 15 years before the spending review. Did public sector wages stand still from the mid-nineties? Of course not. But our fees did. And when that argument meets with a hostile reaction, as it will, be ready to strike.” Any decision to strike is only likely to taken following further conversations with all the 3,500 members of the Criminal Bar Association in England and Wales. The decision to slice £350m out of the Ministry of Justice’s annual civil legal aid budget has further contributed to the mood of dismay at the bar, Hill will say. He will say the Legal Aid (Sentencing and Punishment of Offenders) Act “will leave many with no recourse to the law when things go badly wrong, and necessary litigation is being sacrificed on the altar of cost despite all of the right arguments of principle being brought to bear”. Politicians, Hill alleges, express “confidence that the bar will continue to play its vital role in the criminal justice system, when they should be telling the truth, which is: ‘We the government are prepared to settle for cheap, partial justice, but we will con the public into believing it is greedy lawyers who are to blame’. “In the face of such duplicity, I can and do claim that the role reversal is complete. We at the criminal bar uphold the public interest in access to justice and the maintenance of a proper criminal justice system, whilst it is the government who are obsessed by money.” Lawyers are the latest professional group to oppose cuts in funding. Last week more than 30,000 police officers marched through London protesting about the impact of government policies on their pay, pensions and working conditions. Hill’s speech to the CBA also coincides with a decision by the Solicitors Regulation Authority to scrap the minimum wage for trainee solicitors from 2014. The national minimum wage of £6.08 per hour will be the only requirement after that date. The grievances are widely felt within the Bar, Hill argues. A survey of more than 1,600 CBA members found that 89% were both “prepared to take direct lawful action” and “do not consider the current level of fees for publicly funded defence work is proper and fair remuneration”. More than 80% had suffered from delays in payments by the Legal Services Commission. Barristers’ “greatest weakness” in the past, he suggests, had been the “reluctance to use our heavy weaponry. A reluctance to use the ultimate weapon; namely stopping the courts, rather than being the backbone of the court system, which we are year in, year out”. In some cases barristers are facing bankruptcy, Hill will say. One anonymous comment he quoted from the survey said: “The more that those who work in this field are hit by cuts in fees and uncertainty of work and/or a level of earning, the heavier the costs and the more likely they are to outweigh the benefits of stimulation, intellectual challenge and development and the fulfilment inherent in public service.” A Ministry of Justice spokesperson said: “Striking is never the answer to resolving complaints. The changes we have made to legal aid are necessary and barristers are still paid well for legal aid cases.”

Legal action launched to identify Facebook trolls

Nicola Brookes, 45, is taking legal action to force Facebook to reveal details of who posted abuse and set up a fake profile in her name which was used to send explicit messages to underage girls. She plans to then use the information to launch a private prosecution against the online bullies – also known as “trolls” – in what would be the first case of its type. Ms Brookes’s case was disclosed as a survey showed that just over half of all internet users have received abuse online or by text message at least once. One in seven recipients reported the matter to police, but almost 80 per cent of the 1,000 people questioned felt the police would not take the matter seriously if they did. Ms Brookes, from Brighton, had looked at a Facebook page dedicated to Frankie Cocozza, a teenage singer in the X Factor reality television show, because her daughter enjoyed the programme, and when she saw that he was being subjected to abuse, wrote her own message saying: “Keep your chin up, Frankie, they’ll move onto someone else soon.” Within hours, her message had prompted hundreds of abusive comments and death threats directed at her. “Facebook users began deliberately targeting me, writing under my comment that I was a paedophile and hoping that I would die,” Ms Brookes said. Every time a comment was made she received an email alert informing her of the new message. “I was getting hundreds of these alerts so I couldn’t even ignore it or blank it out. It was like a form of torture,” she said. Ms Brookes, who has been unwell with Crohn’s disease, said the comments soon turned into something much more sinister. “They started getting very personal, looking at my Facebook account, and talking about my appearance, my age and my illness. I hadn’t invited any of it, but they ganged together and started inciting a sort of public hatred of me,” she said. A fake Facebook profile was set up in her name using her photo, and explicit messages were sent from the account to girls as young as nine. She reported the offending posts and the fake account to Facebook then decided to go to the police with evidence of the abuse, but Sussex Police have yet to take action. Now she has engaged lawyers who are bringing a High Court action against Facebook, ordering the American-based internet firm to hand over details of the computer addressed where the offensive messages came from. The lawyers hope to use those to identify who wrote them, then bring a private prosecution against the offenders. It would be the first of its type although the police and Crown Prosecution Service have brought action against so-called “trolls” already, including a man who directed abuse at Louise Mensch, the Conservative MP through her Twitter account. In March, Liam Stacey, a student, was jailed for 56 days for sending racist messages on Twitter about Fabrice Muamba, the Bolton footballer who collapsed during a game. Rupinder Bains, a partner at Bains Cohen, the legal firm which is bringing the action, said it appeared police were less willing to investigate harassment when it was online and did not involve public figures. “A criminal offence has been committed and the police should be involved hunting down these perpetrators, but no such assistance is provided,” she said. “There is a clear anomaly in the law and the way in which internet abuse is treated and investigated by the police depending on whether the victim is in the public eye or an ordinary member of the public, like Nicola.” A Sussex Police spokesman said: “We have looked at the material sent to us by Ms Brookes and we have made every effort to the trace the person responsible for creating the false profile of her on Facebook but this is notoriously difficult to prove. “As Facebook is an international website, millions of people from all over the world use it. We need to gather evidence to prove who the person is for a successful prosecution to take place.” Facebook said it could not comment on the case but a spokesman said it barred users with false names and added: “We respond aggressively to reports of potential abuse. “Reports involving harassment are prioritised, reviewed by a trained team of reviewers and removed if they violate our terms.”