# Interesting UK Separation of Powers Problem **URL:** \ **Category:** Great Debates\ **Created:** [May 1, 2014, 3:21pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443 "2014-05-01T15:21:35Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [May 1, 2014, 3:21pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/1 "2014-05-01T15:21:35Z")
The background- legal aid has been guaranteed for serious cases with the State paying for a criminal defence if the person has inadequate finance. Following the recession the government cut the supply of money for such payments and put a ceiling on money paid to the attorneys involved in the defence. The attorneys believe that this does not cover their costs and are not coming forward for criminal legal aid work. The government were warned that as Judges have a responsibility to ensure trials are fair, they would start throwing out cases where defendants were not adequately represented. Today it happened. The Attorney involved, embarrassingly, is the brother of the Prime Minister. > **[Serious fraud trial abandoned after David Cameron's QC brother](https://www.independent.co.uk/news/uk/crime/serious-fraud-trial-abandoned-after-david-camerons-qc-brother-attacks-legal-aid-cuts-9310820.html)** > > The judge at Southwark Crown Court agreed and ruled that there was no prospect of a fair trial ---
**Author:** ![blindboyard](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blindboyard/32/2833_2.png) [@blindboyard](https://boards.straightdope.com/u/blindboyard)\ **Post date:** [May 1, 2014, 4:35pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/2 "2014-05-01T16:35:13Z")
Someone call Eddie Stobbart! ---
**Author:** ![Malden\_Capell](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/malden_capell/32/5274_2.png) [@Malden\_Capell](https://boards.straightdope.com/u/Malden_Capell)\ **Post date:** [May 1, 2014, 4:36pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/3 "2014-05-01T16:36:45Z")
How is this a separation of powers issue? How do other countries handle legal aid funding? Is it decided by the judiciary alone? ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [May 1, 2014, 4:37pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/4 "2014-05-01T16:37:22Z")
> [@blindboyard](#): > > Someone call Eddie Stobbart! What? ---
**Author:** ![blindboyard](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blindboyard/32/2833_2.png) [@blindboyard](https://boards.straightdope.com/u/blindboyard)\ **Post date:** [May 1, 2014, 4:41pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/5 "2014-05-01T16:41:42Z")
Someone call Eddie Stobbart! ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [May 1, 2014, 4:52pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/6 "2014-05-01T16:52:08Z")
> [@Malden\_Capell](#): > > How is this a separation of powers issue? How do other countries handle legal aid funding? Is it decided by the judiciary alone? I believe that in the US the courts have powers to force attorneys as officers of the court to conduct a defence for basic payment as a public defender. It is separation of powers because the courts are using judicial decisions to make a political statement. And the Executive is imposing rules on the administration of justice. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 1, 2014, 4:57pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/7 "2014-05-01T16:57:07Z")
> [@Pjen](#): > > I believe that in the US the courts have powers to force attorneys as officers of the court to conduct a defence for basic payment as a public defender. They most certainly _do not_. They have the power to require that the state hire a private attorney be hired to represent a defendant if the public defender’s office is unable to (because it already has too many cases or a conflict of interest), but no attorney can be forced to take a case under any circumstances unless he is a state employee. ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [May 1, 2014, 5:27pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/8 "2014-05-01T17:27:21Z")
> [@Really\_Not\_All\_That\_Bright](#): > > They most certainly _do not_. They have the power to require that the state hire a private attorney be hired to represent a defendant if the public defender’s office is unable to (because it already has too many cases or a conflict of interest), but no attorney can be forced to take a case under any circumstances unless he is a state employee. I was going from examples in several TV programs and novels where an attorney is required to act as defence by the court. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 1, 2014, 5:35pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/9 "2014-05-01T17:35:04Z")
TV programs and novels are pretty bad sources of legal information. 🙂 Even John Grisham’s novels (he was a criminal defense attorney before taking up writing, IIRC) play way fast and loose with the rules of criminal procedure (because they don’t leave much room for the courtroom “gotcha” that makes the story interesting.) ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [May 1, 2014, 5:37pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/10 "2014-05-01T17:37:50Z")
> [@Really\_Not\_All\_That\_Bright](#): > > TV programs and novels are pretty bad sources of legal information. 🙂 Even John Grisham’s novels (he was a criminal defense attorney before taking up writing, IIRC) play way fast and loose with the rules of criminal procedure (because they don’t leave much room for the courtroom “gotcha” that makes the story interesting.) IIRC it was a Grisham novel and an episode of LA Law. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 1, 2014, 5:46pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/11 "2014-05-01T17:46:08Z")
If you want to see a movie that portrays US courtrooms accurately try _A Few Good Men_. The political stuff is way overblown but the procedures are pretty much true to life (and military courtrooms don’t function much differently where it matters.) ---
**Author:** ![Pjen](https://avatars.discourse-cdn.com/v4/letter/p/3d9bf3/32.png) [@Pjen](https://boards.straightdope.com/u/Pjen)\ **Post date:** [May 1, 2014, 6:22pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/12 "2014-05-01T18:22:19Z")
> [@Really\_Not\_All\_That\_Bright](#): > > If you want to see a movie that portrays US courtrooms accurately try _A Few Good Men_. The political stuff is way overblown but the procedures are pretty much true to life (and military courtrooms don’t function much differently where it matters.) Seen it, loved it. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [May 1, 2014, 6:28pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/13 "2014-05-01T18:28:25Z")
I guess I don’t see the problem. If Britain has decided it’s not willing to pay for a proper criminal justice system then at some point the only appropriate response is to throw cases out. It’s similar to the situation in California, where California was unwilling (actually unable as the State was near bankruptcy) to properly fund a corrections system so there was extreme prison overcrowding. A judge ruled a large portion of those prisoners had to be released by a certain date to reduce the prison population to safe capacity (or I guess the Governor could have tried to increase capacity in some way.) ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [May 1, 2014, 7:29pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/14 "2014-05-01T19:29:37Z")
> [@Pjen](#): > > It is separation of powers because the courts are using judicial decisions to make a political statement. I don’t see it as a political statement at all – it’s a statement in furtherance of the court’s interest in justice. A political statement would be something like throwing out a case because of the party affiliation of the Government. > [@](#): > > And the Executive is imposing rules on the administration of justice. Hate to tell you this, but the other parts of government is always imposing rules on the administration of justice. Funding, rules of evidence, and oh yeah - the laws themselves are all examples of “imposing rules on the administration of justice.” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 1, 2014, 7:33pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/15 "2014-05-01T19:33:14Z")
> [@Martin\_Hyde](#): > > I guess I don’t see the problem. If Britain has decided it’s not willing to pay for a proper criminal justice system then at some point the only appropriate response is to throw cases out. I think the issue here is that there can be differing views on what constitutes “a proper criminal justice system”. Britain apparently spends more per capita on criminal defence for the indigent than any of the G-8 states. I happen to think the US public defender system is woefully underfunded (and I am hardly alone), but that doesn’t mean the UK’s isn’t _too_ expensive. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [May 1, 2014, 7:47pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/16 "2014-05-01T19:47:08Z")
> [@Martin\_Hyde](#): > > I guess I don’t see the problem. If Britain has decided it’s not willing to pay for a proper criminal justice system then at some point the only appropriate response is to throw cases out. Well, the question is, under what legal authority are they dismissing these cases? In the US, if the executive takes the position that it wants to prosecute cases against indigent defendants, and the legislature takes the position that it doesn’t want to fund the defense in those cases, a court will throw it out because the Sixth Amendment overrides both. What is the authority that compels a British judge to find that the defense of these indigent cases is inadequate? Or in other words, inadequate according to what? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 1, 2014, 7:54pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/17 "2014-05-01T19:54:57Z")
Article 6 of the [Convention for the Protection of Human Rights and Fundamental Freedoms](http://conventions.coe.int/treaty/en/treaties/html/005.htm): > [@](#): > > Everyone charged with a criminal offence [has the right] to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require… I am fairly certain English law also recognizes a common-law right to counsel for the indigent. In this case, the defense was “inadequate” because it didn’t exist; _no_ barrister was willing to accept the fee offered by legal aid to defend the case. You can read the judgment [here](http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/r-v-crawley-others.pdf). ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [May 1, 2014, 8:11pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/18 "2014-05-01T20:11:29Z")
> [@blindboyard](#): > > Someone call Eddie Stobbart! I just wasted some time reading about Eddie Stobart, but I still don’t get it.☹ ---
**Author:** ![Baron\_Greenback](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/baron_greenback/32/48_2.png) [@Baron\_Greenback](https://boards.straightdope.com/u/Baron_Greenback)\ **Post date:** [May 1, 2014, 9:06pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/19 "2014-05-01T21:06:43Z")
There’s another case on the verge of collapse due to the same legislation that’s caused the problem in the OP. > **[Criminal case faces collapse following legal aid cuts for medical experts](https://www.theguardian.com/uk-news/2014/may/01/criminal-case-collapse-legal-aid-neurologists-fees)** > > Dozens of neurologists decline to give advice about defendant's fitness to stand trial after legal aid fee cut by £18 an hour This time it’s due to the reduction in fees payable to expert witnesses. Who would have thought that making someone with no legal background whatsoever Lord Chancellor and SoS for Justice would lead to poorly thought out legislation? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 2, 2014, 1:26pm UTC](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443/20 "2014-05-02T13:26:38Z")
> [@Tom\_Tildrum](#): > > Well, the question is, under what legal authority are they dismissing these cases? > … What is the authority that compels a British judge to find that the defense of these indigent cases is inadequate? Or in other words, inadequate according to what? The overall duty of the courts to provide a fair trial. If counsel is necessary to provide a fair trial in a complex case (as this one is - allegation of a fraudulent land scheme of some sort), and the accused can’t pay for counsel, then the Crown has to provide a way for the accused to have counsel. If the Crown doesn’t do that, the courts have a duty to stay the charges - not because they are stepping into a policy dispute with the government, but because as a court, their ultimate duty is to provide a fair trial to the accused. As **Really Not All that Bright** mentions, the right is protected by both the Convention, which Britain has incorporated into its domestic law, and also from the common law right of the accused to a fair trial, assisted by counsel. At common law, the court has an inherent authority to insure its process is not abused; if the Crown tries to insist on a trial without counsel, when counsel is necessary for a fair trial, that can amount to an abuse of the court’s process, warranting a stay of proceedings. [Next page](https://boards.straightdope.com/t/interesting-uk-separation-of-powers-problem/687443.md?page=2)