IS THERE A JUSTIFICATION FOR SHORT SENTENCES?

For some considerable time there has been general agreement that, in the main, short sentences (6 months or less) have no real value.  Defendants are brought into custody, with an automatic release date halfway through their sentence, and are released without any rehabilitative work being done with them. 

In order to deal with the obvious omission the Government brought in Post Sentence Supervision so that any person on a short sentence would still receive supervision from the Probation Service for a period of 12 months.

The fact is, however, that people on short sentences are expensive to maintain in custody.

It is now being mooted that legislation be brought out to prevent sentences of 6 months or less being imposed.

The Magistrates’ Association has immediately proposed an alternative with lower limit. This is perhaps unsurprising as Magistrates have a limit of 6 months in most cases, or a total of 12 months in respect of 2 or more offences which are either way (ie could be heard in either the Magistrates’ Court or the Crown Court).

Criminal Defence Solicitors are obviously aware of the debate and can appreciate the reasoning. There is, however, another issue to take into consideration.

Criminal Defence Solicitors are, on the whole, reliant upon Legal Aid to fund the vast majority of cases that they do.  The vast majority of people who appear before the Criminal Courts are either unemployed or have low incomes. They would not be able to fund their own criminal Defence.

Successive Governments have presided over many years of refusing to increase the fees payable under Legal Aid to the extent that these fees are now less than 25% of the average hourly rate for private work, and for many businesses leading to criminal defence work being unsustainable on Legal Aid alone.

In addition, a few years ago the Legal Aid payments were reduced by 8.75%, and then again by a further 8.75%, the second reduction eventually being reversed.

In addition to that, Legal Aid has been more difficult for people to obtain for 2 reasons. The first is that the income limit for obtaining Legal Aid has not changed for many years. Accordingly, plenty of people who have low incomes still do not qualify for Legal Aid even though they are clearly not in a position to pay for legal assistance, and secondly, the Legal Aid Agency are much more aggressive in their application of the criteria for the grant of Legal Aid.

As for the latter reason, generally speaking the Legal Aid Agency will grant Legal Aid where there is a risk of custody and only in limited circumstances will it grant Legal Aid when there is no risk of custody.

Accordingly, should there be a piece of legislation which would result in all, or the vast  majority, of people being sentenced by the Magistrates’ Court facing no risk of custody, Representation Orders will be few and far between and as a result there will be a lot of Criminal Law Solicitors no longer able to survive.

We are well aware that the popular Press tend to portray Criminal Lawyers as “fat cats” and obstructive of justice, but the reality in both cases is wide of the mark and by a huge margin, but fits the agenda of muck raking journalists and their bosses.

The fact is that the Criminal Justice System is already under pressure and lawyers ease some of that pressure by giving robust and proper advice to their clients as to what they should plead and what chances of success they have in a Trial, and also, they prevent abuses of power in Police Stations and elsewhere.

There have been considerably more problems in the Civil Courts since Legal Aid was removed from the majority of civil proceedings, such that there is one law for the rich and one for the poor.

We are likely to find ourselves in the same position with regard to criminal work unless the rules are changed and reasonable payments made. If that doesn’t happen, then there will be no Solicitors left to represent the poor man   and, indeed, the rich man will also find it difficult to find anybody with any criminal law expertise.