Monday, 13 May 2013

Criminal trial funding restored, but Legal Aid still needs help

Following the Court of Appeal’s decision in Chaouk — discussed here — Victoria Legal Aid last week announced that it was restoring funding for solicitors when required in criminal trials.

It’s certainly welcome news, and will prevent what looked like an impending logjam in quite a few trials.

But it hasn’t really addressed the chronic underfunding by the State Government, which is apparent from the latest budget. The Age today reported that VLA is still likely to lose somewhere between $3.1 – $10 million for this financial year, and that the budget papers show the Government expects VLA to provide 4000-odd fewer grants of aid this year. (Gotta admit, I can’t see that in the stuff I can find, but then, I’m no expert at reading budget papers.)

But, there’s no doubt the increase in police will result in more offences detected and prosecuted — what criminologists terms net widening — which will result in more cases coming to our courts. Unless we have a sudden change in the economic composition of accused people in this State, many of them will be unrepresented if they can’t receive legal aid.

While some might say that’s okay — it’s not, really — cases involving self-represented accused typically take a lot longer to resolve and certainly require more work from judicial officers to ensure those people understand their rights and the processes. Ask any prosecutor if they’d prefer to bo opposed to a lawyer who knows what they’re doing or an unrepresented accused, and I can guarantee the answer you’ll get. (I daresay a fair few Benches would feel the same way.) Occasionally, cases simply don’t get resolved until the accused can get a lawyer, which is precisely what’s happening in the UK now as the government there tries to decimate legal aid to ‘save’ £220 million out of an annual £2 billion budget. (See here and here for some examples.)

There are some real doubts about whether the changes will in fact save any money, and concerns about the propriety of having the same firms that run the privatised prisons systems also holding the contracts for the law firms that advise accused people to plead guilty or not guilty — for surely there couldn't be a conflict of interest there?

Though things aren’t quite as grim here as in the UK — at least, not yet — there’s still a desparate need to fund legal aid so that the whole system can cope with the inevitable increase in accused people coming before the courts. If nothing else, that’s a simple case of arithmetic that the government must confront. There is also that quaint little thing called justice, which is arguably as good a reason — if not better — for properly funding legal aid. A new blog called the Barrister’s Wife provides some good examples of what can happen otherwise, as does The Justice Gap.

The return to legally aiding trials is a good thing, but the Government needs to increase funding, as the Bar and LIV said last week.

The other long-term issue I reckon needs looking at is an evaluation of why we need instructing solicitors. I don’t say that to be controversial or to suggest getting rid of them. Far from it. But, a couple of commentors in my post about the decision in Chaouk queried how trials are funded in other jurisdictions. I don’t profess to have any significant experience in other jurisdictions, but I reckon it’s at least worth looking at. I wonder too how other common-law jurisdictions cope. For example, what happens in Canada, and India, and the UK (despite its funding problems)? What about the USA, where they have a fused profession but specialist trial attorneys? Do they truly work with only one trial advocate, or do they too consider it necessary for more than one advocate?

 It might be that there are significant differences that mean comparisons are meaningless. Or perhaps it might be that the system in Victoria is currently so complex that instructors are vital in all circumstances. Either way, it’s a question worth asking and answer worth discovering.


Jadzia said...

Now we can just have trials adjourned because there aren't enough judges rather than because of this issue. The County Court criminal reserve list has been in double figures for weeks now.

Funding is low across the board. The OPP pays its barristers and solicitors relative peanuts, VLA is way overstretched, there aren't enough judges or courts...the whole system is threadbare.

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