NZ has spent NZ$1 billion dollars on Legal Aid in the last 12 years, since 2000. So it is reported: The cost of justice: legal aid bill $1 billion .
The five most expensive cases involved individuals found not guilty or whose cases were discharged. Based on my experience, it costs money to investigate a criminal defence case thoroughly – at least three of those cases involved forensic science, which usually should be reviewed by a specialist witness if any of the facts and issues in dispute are based on science.
Had there not been a strong case to follow then the costs in these cases would not have reached these levels – something in those cases made the defence teams carry on.
Jonathan Temm of the Law Society said that although the defendants in those cases had some of the best lawyers in the business, such lawyers are moving away from legal aid because of frustration at recent changes in the way legal aid is being paid to lawyers.
I have to agree – fixed fees are contentious and don’t seem to cover the amount of time that lawyers actually have to spend on cases if the cases take a turn onto the Complicated Highway. On top of that, I have heard from several criminal defence lawyers that they have not applied for legal aid contracts because it just isn’t worth it. Some are changing careers altogether because there is a limit to the number of defendants facing criminal charges who can afford to pay their legal costs privately.
The problem with losing good criminal defence lawyers is that access to justice will be compromised, there will be more appeals and, potentially, miscarriages of justice. Aside from the effects that has on the people involved, the costs of dealing with criminal cases beyond the first trial creates more expense in the longer term. From a scientific review perspective, reviewing a case prior to a first trial is cheaper because there is less paperwork to consider; trials and appeals generate a lot of testimony that has to be taken into account in any case review. It is also far more appropriate, given how difficult it is to obtain a retrial or appeal. Do it as well as possible the first time round – having the best and most appropriately qualified team is critical.
I have my suspicions already that the changes in Legal Aid are affecting the criminal justice system. Independent forensic colleagues from across a range of expertise are commenting to me that the amount of work has dropped off noticeably. The number of issues to be considered in cases can’t be changing because crime isn’t dropping that much so, given that there are only so many people working in the independent forensic science sector, where has the work gone? Is this related to changes in how lawyers are being paid by Legal Aid, the changes in the criminal justice system and how lawyers are adjusting to their futures? I hope this is temporary turmoil but how will things be looking this time next year?