Wasted legal aid and the benefit of hindsight

Family Law|August 8th 2016

As many of the arguments for and against Brexit demonstrated, it doesn’t matter whether an allegation is true, all that matters is whether the people believe it. And if the allegation is contained in a headline in a popular national newspaper, then a fair chunk of the people are likely to believe it.

I wrote here last week about the demise of our once-excellent legal aid system, as the government abandons justice in favour of making an almost insignificant contribution towards reducing the national debt. Such government actions are, of course, driven by a desire to pander to the voting masses, who have been stirred up by dubious headlines in national newspapers.

At the end of last week a story broke in a certain national newspaper (and was repeated in several others) that added to the ongoing narrative of hardworking taxpayers’ money being wasted on legal aid (which in turn lines the pockets of fat-cat lawyers). The story claimed that ‘child killer’ Ben Butler was ‘given’ £2 million by taxpayers to fund his battle for ‘custody’ of his daughter Ellie, who he went on to murder. Referring to the story, another national newspaper spoke of the public anger over the legal aid bill.

The story emanated from a freedom of information request to the Ministry of Justice, that informed the first newspaper that Butler and his partner Jennie Gray had the benefit of legal aid payments totalling £1,449,899 over a period of 15 years. Before I come to my main point, certain things should be noted about all of this, including:

  1. The sum was actually £1.4 million, not £2 million, obviously.
  2. Mr Butler was not, of course, ‘given’ any of the money – it went to the lawyers (who, incidentally, would have done a great deal of work to earn that payment).
  3. The battle for ‘custody’ was actually care proceedings concerning Ellie and her sibling.
  4. About £260,000 of the legal aid bill did not relate to the family proceedings, presumably relating to the criminal proceedings against Butler and Gray.

OK, having got those things out of the way I come to my main point: hindsight is a wonderful thing. In other words, it’s easy to suggest that legal aid money was wasted when you know the outcome of the case. At the outset, when legal aid was granted, the legal aid authorities did not know what Butler was like, and obviously could not have foreseen what was going to happen. Accordingly, even if they had a choice as to whether or not to grant legal aid (they didn’t, as parliament decided that all parents involved in care proceedings should get legal aid, irrespective of the merits of the case), they wouldn’t have had any reason not to grant it.

Ah, but when Ellie was first taken into care Butler had been arrested for assaulting her, I hear you say. Well, we have this little idea in our criminal justice system, and I think it’s a good one, that you are innocent until proven guilty. Until he was convicted of assaulting Ellie, Butler was an innocent person. He was also an innocent person after the conviction was quashed.

All that happened in the Butler case was the application of rules, which are designed to protect all of us. Criminal legal aid is granted (at least in part) to protect the innocent and civil legal aid for care proceedings is granted to protect parents from having their children wrongly removed by the state.

Those that demand a system that doesn’t ‘waste’ legal aid money on undeserving cases need to understand the implications of what they are asking for. It means that we will have to have a system in which the legal aid authorities ‘pre-judge’ cases, to decide what they think the outcome will be. If, for example, they decide that you are guilty, then you won’t get legal aid for criminal proceedings. If they decide that you did injure your child, then you won’t get legal aid for care proceedings. So, as someone wrongly accused of injuring your child, are you going to be happy with that?

Further, legal aid is not just about protecting the innocent. A person who admits a crime is still granted legal aid so that, for example, his lawyer can enter a plea in mitigation when it comes to sentencing. And legal aid for care proceedings isn’t just about the parents, it’s also about the children – how can the court decide what is best for their welfare without hearing from the parents? Legal aid is not necessarily wasted just because the party to whom it is granted is ‘guilty’.

Yes, I can see that it is galling to some that so much taxpayers’ money is spent on legal representation for a man such as Butler. That, however, is the system. And before you jump on the ‘angry’ bandwagon, take a moment to stop and think what things would be like without that system.

Image by Chad Kainz via Flickr under a Creative Commons licence

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  1. D says:

    Good stuff on a worrying situation.

  2. Andy says:

    This also shows what a wast of time and as per usual £1.4 mil wasted and gets the result wrong..
    Then surprise surprise Mr Butler is then guilty of murder..
    So who else got found guilty of murder..no one..solicitors just walk away..and got paid randomly…nice work with no fault….British justice..It’s a farce…

  3. Stitchedup says:

    So what about the man falsely accused of domestic abuse??? Is it right that he’s refused legal aid when his accuser is granted legal aid??? What do you have to say about that John??? Why aren’t screaming from the rooftops about human rights, article 8 and,equality of arms??? Are you a hypocrite???

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