Tuesday, 17 December 2013

Law Society vote of 'no confidence' - is unity the latest casualty of war?

In fieldwork I conducted In May 2013 at the 'Justice For Sale' meeting of criminal defence lawyers, the unity amongst the profession - solicitors and advocates, constituents and representatives - was pretty clear. The strength of agreement and the robust nature of this alliance was almost unprecedented, created by the near absolute rejection of the Ministry of Justice's legal aid reforms.

Nine months on, the picture is somewhat different and one might ask - is this 'unity' slowly dying in the heat of battle? The Law Society are now considered enemies by a substantial number of defence solicitors. Critics have been vocal and consistent in their condemnation of the Society's negotiation with the MoJ over the legal aid reforms. Yet, today's Vote of No Confidence saw a near 50/50 split between those wishing to bring down the executives who have apparently betrayed the cause and those who, for various reasons, wish to protect them. Unity might well be one of the reasons. Targeting the wrong enemy and wasting energy may be another.

Most striking is how different the internal dynamic is now when compared to May 2013. Defence solicitors no longer seem to be singing from the same hymn sheet, regardless of their differences; and unlike the Bar, there does not seem to be a clear plan of action for the future. They appear to have lost sight of the greater goal. When an opposing force is dvided, there is clearly an opportunity for the enemy (in this case, the Government) to take advantage. Internal squabbling and power struggles are likely only to dilute the power of the campaign against reform. Unity was the primary strength of the profession - that now appears to be at serious risk. Moreover, the spotlight will shift away from the substantive issues to the grisly business of politics.

Perhaps the recriminations can wait until later, whilst there is still a war to be won?

Monday, 2 December 2013

VHCC fee cuts: A sign of things to come in criminal defence work?

Having been engaged in fieldwork over the last 6 months, I've neglected to keep up blogging. With a new year approaching, I'd like to try and renew it with more posts - so here's the first.

Today, a variety of changes kick in relating to the funding of criminal legal aid in England and Wales. Chief among these is a reduction of 30% (possibly more in some cases) in the level of fee paid to lawyers for Very High Cost Cases (VHCCs) in criminal work. These involve lengthy preparation, complex issues, technical knowledge and extensive proceedings in court. They are the toughest cases and thus are generally handled by the best practitioners. VHCCs usually involve serious offences such as fraud, terrorism, murder, sexual offences, drugs, etc. Any threat to the integrity of these criminal cases is therefore of great significance.

The cuts in fees affect legally aided VHCC work - in short, those who cannot afford to pay to defend themselves and are reliant on the state. In light of the large reductions in effect from today, an indeterminate but apparently significant number of criminal defence advocates will be returning ongoing VHCC work and refusing future briefs. The concern this raises is that defendants in VHCCs will not be able to obtain representation, effecting the fairness of trials. 

An example of this was recently cited by retired Court of Appeal judge, Sir Anthony Hooper. In R v P [2008] EW Misc 2 (EWCC), a convicted drug dealer faced confiscation of the proceeds from his offences. The values involved ran into the millions and the issues were complex. No lawyer could be found to represent the defendant due to the low fees, 'deemed' (as the Bar's terminology expresses it) as insufficient remuneration for the level of work involved. It was held that the proceedings should be stayed as the defendant could not have a fair hearing. The confiscation therefore did not take place.

This case may represent an harbinger of trouble to come. If the logic of the judge in R v P is followed, potential offenders may escape justice if left without representation in VHCCs involving serious matters. Equally, if proceedings are not stayed, unrepresented defendants may be faced with serious challenges to their Article 6 rights. Judges will have to deal with this; delays may be caused; appeals will likely increase; miscarriages of justice could occur.

The Government has expressed its confidence that replacements can be found in place of those lawyers rejecting the fees. Presumably, these 'supply' lawyers will not be of the same quality; after all, if large numbers of the best representatives turn their back on VHCCs, why would anyone at the same level, with the same experience, choose to fill the void?

Those with something to gain from this situation are the less experienced (and possibly less able) defence lawyers, who see the opportunity to act in a VHCC as being more valuable than the fee offered. As such, one would logically presume that the quality of VHCC representation would inevitably diminish. This in turn implies that the Government's insistence that its reforms to legal aid will not damage quality cannot be accurate. 

The VHCC cuts and their aftermath may therefore represent a test-run for the broader roll out of fee cuts next year, which may only leave two outcomes for defendants: no representation or poorer representation.

Friday, 7 June 2013

Doctor Grayling: A Short Story

Chris Grayling has unwittingly been appointed the shift doctor at a busy A&E. He has no medical qualifications and no experience in treating patients. A man , Mr CJ System, comes into the department with a badly broken leg. Mr System knows he is broken, but luckily he is a doctor and has a good idea of how one would go about sorting his medical issue. Mr Grayling does not. He’s also been told in no uncertain terms by hospital management that he must save time and money in doing his job ! 

“Hmm” thinks Doctor Grayling, “there’s something wrong here, but I have no idea what I’m doing. But I’ve got to do SOMETHING”. Complicated surgery is way beyond his capabilities, would take quite a long time, and cost the hospital cash. He doesn’t want to ask anyone else – after all, he’s the shift doctor and it’s his job to sort the problem.

Suddenly Doctor Grayling thinks of a solution – he’ll just cut the leg clean off ! That will save time and money, and fix the problem of the broken leg (sort of). After all, Mr System can just use a crutch or a cheap artifical leg instead, right?

“DEAR GOD!” screams Mr System as Doctor Grayling hacks away at his leg, “What are you doing?? I know how you can save my leg!!”

“Now, now, quiet down” says Doctor Grayling ,“I’m just doing my job. Patients just don’t know what’s good for them sometimes !”

THE END (Probably)

Tuesday, 4 June 2013

My response to the 'Transforming Legal Aid' Consultation

Dear Sir/Madam,

I would like to submit this as my response to your consultation, ‘Transforming Legal Aid: Delivering a More Credible and Efficient System’. It does not address the questions contained in the consultation document directly, but generally comments on the proposals contained in and the issues raised by the document. It primarily relates to those proposals relating to criminal defence services and legal aid.

I am a legal academic within Plymouth Law School. My fields of expertise are criminal defence services and legal aid. I find the proposed reforms deeply concerning, and believe they will be highly damaging to the effectiveness, efficiency and – ultimately – credibility of the criminal justice system in both the short and long term.

I suspect you will receive a large number of responses echoing mine. As such, I will attempt to be as concise as possible and focus on the major issues as I perceive them from a non-practitioner perspective. However, I can assure you that the views I will express, although my own, form part of a wide consensus amongst my colleagues in both academia and the legal profession.

The introduction of price-competitive tendering for the provision of legally aided criminal defence is both unworkable and inappropriate. The infrastructure required for bidding at the rates proposed (at least 17.5% below current rates) will not be achievable for nearly all currently operating firms, even large ones, and certainly not in the timescale suggested. 

It is clear that firms will need to increase profits by at least 250% in order to survive; this must be achieved within a year. This is not simply not viable. One might therefore suggest other providers will step in – this can only mean corporates with the necessary size and infrastructure to do so. 

Such entities have no experience or expertise in providing highly specialised criminal defence services; they will therefore recruit practitioners to work in-house and will do so at the lowest cost possible (as encouraged by the ‘lowest bid’ model). This will consist of the least experienced, the least competent and the most desperate. The best lawyers will simply cease to work in publicly funded criminal defence. This will impact on the future quality of the judiciary, the training of new practitioners, and most importantly the quality of the service provided.

Moreover, when such providers re-bid for contracts in several years time they will inevitably tender at massively inflated levels, since they will almost certainly be operating at a loss in the short-term. The Government will have to accept these bids as the current providers will no longer exist, and some form of criminal defence service must be provided. This is fairly simple economics. It will be enormously costly and will destroy any short-term savings the Government believes it can achieve.

The proposed division of service provision into geographical areas, where providers will only be able to have a fixed market share, will create advice deserts for the most vulnerable clients (particularly in rural areas). It will be logistically and financially unviable for the remaining providers to service large areas sufficiently, particularly considering that travel costs are not reimbursed. Moreover, a fixed market share is antipathetical to free market competition – quality of service will inevitably suffer as providers will have no motivation to improve.

It is conceded in the consultation document that the removal of client choice, to guarantee volume for the remaining providers, is necessary to ensure the proposed model works. This is simply unacceptable. Client choice is absolutely the key driver behind quality legal services and is a fundamental right in our liberal democracy, alongside the right to choose your NHS doctor or which political party you wish to vote for. 

To remove it will not only drive down quality (also conceded in the document) but will destroy years of local knowledge amongst the legal community, sever relationships between clients and lawyers, and render reputation and quality irrelevant to securing work. This will mean less incentive to provide a good service, to the cutting of corners, to the exposure of vulnerable citizens to poor (or even no) legal advice, and inevitable disruption in the criminal justice system.

Lawyers are crucial to ensuring clients attend court, plead appropriately and follow procedures correctly; the trust between them means that advice the client may not like can be provided, and lengthy proceedings can be avoided. Many clients, denied their choice of lawyer, will opt to represent themselves in person. This will create widespread delay, inefficiency, cost, and unfairness. 

Trials will descend into farce, riddled with adjournments and delays; moreover, without a sturdy, reasoned and thorough examination of the case against a defendant, prosecutions will become less robust and miscarriages of justice will increase. Witnesses and victims may also be faced with the intimidating prospect of being questioned by the accused in court. As such, some may decide not to engage and prosecutions will collapse. Furthermore, questioning of complainants by the defendant is prohibited, by statute, in certain sexual offence cases (including rape), raising the prospect of the judge cross-examining witnesses for the defendant or of no cross-examination at all. This is extremely troubling.

I am also deeply concerned by the proposal to pay the same rate to lawyers for guilty pleas as for trials. This clearly creates an incentive to avoid costly trials which involve many hours of work, when a guilty plea is both cheaper and quicker for the lawyer. Considering that lawyers will inevitably have to be very wary of extremely tight profit margins under the proposed system (potentially with pressure to reduce costs from practice managers, senior partners, shareholders or heads of chambers), the temptation to give less than a full defence for the client will be very real.

Furthermore, such a proposal may well destroy the essential bond of trust between lawyer and client; if the lawyer advises a guilty plea, the defendant will be entitled to ask ‘Is he or she doing this to save money?’ This suspicion, coupled with the fact that the lawyer will be a State-assigned stranger, will cripple effective legal representation.

I am also concerned, in the case of barristers, that the proposals will seriously undermine Rule 303(a) of the Bar Code of Conduct:

‘A Barrister must promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person’

This is a crucial and long-standing ethical principle, without which defendants would be given a less robust defence against the accusations of the State. With the introduction of the same fee for both guilty pleas and trials, the barrister will inevitably have a personal interest in what course to pursue; the cost consequences may well be in the back of his or her mind. To apply this kind of pressure to a professional who's primary responsibility should be to the client is indefensible. In summary, this proposal, to my mind, creates a serious conflict of interest, will endanger professional ethical principles, and is a moral turpitude.

I would like to add one more thought from an academic perspective. The provision of robust criminal defence for those accused of crime has been an essential part of English and Welsh criminal justice for over three centuries. The ethics and traditions ingrained in this professional role have been repeatedly proven to be essential to fair and effective prosecutions, to the prevention of miscarriages of justice, to the enforcement of and respect for the rights of individual citizens, to the protection of victims and witnesses, and to efficient and effective proceedings.

Under these proposals, the breadth and quality of this service – underfunded for so long now, and part of a legal aid budget accounting for under 0.5% of Government expenditure – will collapse. The number of litigants in person will increase enormously, endangering defendant and victim rights, and generating delay, ineffiency and cost. Judges will be forced to become advocates for the accused. This has not been common since the 1600s. These proposals will turn back the clock by nearly 400 years in criminal justice terms. 

Please reconsider these reforms – listen to the profession that provides the service, the academics that study it, and the public you serve, 71% of whom, when polled recently, agreed that more miscarriages of justice will occur if you proceed.

Kind Regards,

Dr Tom Smith
Plymouth Law School
Plymouth University

Tuesday, 14 May 2013

Effective and fair justice means that even Stuart Hazell gets a defence lawyer

Stuart Hazell has spent 9 months denying the murder of Tia Sharp. He also spent just over four days of his trial for that offence claiming not to be guilty. On the fifth day, Hazell changed his plea to guilty and has now been sentenced to 38 years in prison. 

Like most child murders, the case has captured the public's attention. As such, it provides a good test of the argument that all those accused of crimes - even the guilty - need to have a defence representative. To most laymen, this would seem hard to justify in the case of Hazell.

He has systematically lied about the death of his partner's granddaughter. It has become clear that Hazell was sexually attracted to Tia Sharp  - another element of the case which fuels public horror, and rightly so. Hazell went to some lengths to conceal his crime by hiding the body in a neighbour's attic.

Now, after five days of legal proceedings - painful for the victim's family and at a cost to the taxpayer - Hazell has admitted his case is a lie. His timing of plea is unusual; defendants that have resolved to protest their innocence and allowed the trial to start normally see it through to the end. 

Beyond the motivation to plead guilty early for ethical reasons, defendants are given the incentive of sentence discounts for admitting an offence before the trial. Hazell will of course get no such credit now. As such, Hazell's decision raises some thoughts - did he have inadequate advice from his lawyers about the evidence or proceedings? Did he ignore their advice? Or has he made an unpredictable decision?

Hazell claims that the decision is motivated by a desire to end the suffering of Tia Sharp's family. Whether this is true or not, the unique pain of listening to the forensic dissection of your loved one's death could have been avoided. This is an important reason why Hazell should have good quality defence representation.

A defence lawyer has a paramount duty to protect their client's interests; however, this does not (as is often thought) inevitably mean fighting for their acquittal until the bitter end. Most defence lawyers would likely say that when their client insists on their innocence or has a compelling defence, there is little question about advancing a not guilty case.

However, they would also say that where the prosecution evidence is substantial or the defendant's story doesn't wash, they would probably advise them that it was in their interests to plead guilty - they will save themselves, the victim or victims, and witnesses some pain; the Court some time and money; and earn a sentence discount.

In the case of Stuart Hazell, dependent on the evidence before them, it would seem likely that an effective representative would have advised him to change his plea prior to the trial. Such a quick u-turn suggests that it dawned on Hazell that either he was doomed or that he was prolonging the agony of people he once loved. A defence lawyer is often essential to making a defendant have such realisations at the right time.

This demonstrates how defence lawyes can enhance effective justice. Hazell may not have known or trusted his lawyers, but in general many defence lawyers have 'repeat' clients who they have an established relationship with. This personal connection and the local knowledge that goes with it is crucial to effective and efficient delivery of justice.

Therefore, defence lawyers arguably save the court and the taxpayer time and money when necessary. Even if this weren't the case, had Hazell proceeded to plead his innocence (bearing in mind we now know him to be guilty) it is also fair that he have a defence lawyer to protect his interests and advance his case.

Until he confessed or was convicted, Hazell was an innocent man. Criminal liability is only acceptable when proven beyond reasonable doubt by the prosecution. Without a defence lawyer, Hazell (a man who seems unlikely to be capable of running an effective defence autonomously) would likely face a prosecution case free from any robust challenge, resulting in conviction.

If a prosecution case untested by a skilled defence professional - perhaps built of questionable evidence, omissions, assumptions or dressed with persuasive rhetoric - is sufficient for proving guilt, then arguably, in practice, the burden of proof is lowered. Reasonable doubt becomes acceptable because the prosecution no longer needs to go beyond it.

Any legitimate prosecution must be able to withstand the strength of opposing arguments - and the burden of proof is always the prosecution's. Had Hazell not had a defence lawyer, the prosecution could simply have presented a bare minimum should it wish to, perhaps convincing a jury of laymen with the oratory and spin that defence lawyers are often associated with.

If one tennis player walks onto the court to find his opponent missing, the game might well be forfeit in his favour. But that is no true victory and no guarantee that the winner was truly better than the absent opponent. The same principle applies here.

Stuart Hazell has confessed to his crime and justice has been done, but not as effectively as it could have been. Had he insisted on a full trial, would we not want him to be convicted of murder - the worst of crimes -  with proper evidence, tested and tried, or would we prefer the show trial of a folk devil?

Defence lawyers are important - even for those we hate. Not just because it's fair, but because it is effective.

Lord Thomas gives an excellent summary of the arguments against the criminal legal aid reforms

This is such a well-formed and concise critique of the MoJ's proposed changes to the provision of criminal defence services that I felt I could best contribute by reproducing it in the hope more people see it:

Lord Thomas of Gresford

Turning to something quite different, I very much regret that there is nothing in the gracious Speech that would permit parliamentary scrutiny of proposals which seem to be designed to destroy access to justice in criminal cases. The Ministry of Justice’s current consultation is for a scheme of “competitive tendering” for criminal legal aid, which will not require primary legislation.

The consultation is a sham, as Ministers have already decided that they are in favour of such a scheme in principle and, regardless of the consultation, competitive tendering will be introduced within months. The only question posed in the consultation is the precise model. The model proposed by the Government could have been brought forward only by Ministers and their advisers, who have not the slightest experience of the way criminal courts operate or of the professional values, ethics and practices of the legal profession. 

The key parts of the consultation document are chapter 4, on introducing competition in the criminal legal aid market, and chapter 5, on reforming fees in criminal legal aid. Chapter 4 is about introducing price-competitive tendering. Those proposals will be the death of the high street solicitor. The intention is to remove competition on quality and replace it with competition on price alone. In each of the contract areas, which will match the 41 police areas, there will be a set number of contracts. In my own immediate vicinity, there will be four in north Wales, four in Cheshire and some 37 in Manchester. Contracts will be awarded on a three-year basis. Successful bidders will receive a guaranteed equal share of the criminal work in that area. To achieve equality, work will be allocated by a central agency on neutral criteria; for example, by surname alone. The explicit intention is therefore to abolish client choice. A solicitor will be appointed by a central agency to act for a defendant. The reputation and goodwill which solicitors have built up within their area disappear. The skills of firms which have built up particular specialisms—for example, in fraud, terrorism or mentally disordered offenders—will count for nothing. In cities such as Manchester, the skills of firms which have a client base within particular ethnic communities or with particular language skills—for example, Urdu or Polish—are of no value because work is to be allocated on random criteria. As for my home territory, Welsh language provision is seriously compromised. 

The contracts will be one size fits all. There is a Goldilocks problem about this: most firms are too small to bid at all and, ironically, many others are too big to bid. In Manchester there are a couple of firms which have 10% to 15% of the market but which under the new system of equality would be restricted to one-37th of the market, or 2.7%. There may be a handful of firms, or networks of firms, which are just the right size to bid. However, these contracts will go mostly to service companies which have the capital to create a national network with contracts in every area; for example, G4S, Serco, Tesco and the Co-op. Perhaps the most aggressive is the newly arrived Stobart Barristers, an offshoot of Eddie Stobart truckers. Its legal director, Trevor Howarth, confirmed that the firm would bid for the new criminal defence contracts. He said: 

“We can deliver the service at a cost that’s palatable for the taxpayer … Our business model was developed with this in mind. We at Stobart are well known for taking out the waste and the waste here is the duplication of solicitors going to the courtroom. At the moment there are 1,600 legal aid firms; in future there will be 400. At Stobart, we wouldn’t use 10 trucks to deliver one product”. 

I think that, like the Ministry of Justice, he regards people in trouble with the criminal law as units and justice as a common product to be delivered like a load of bricks. Mr Howarth is, I believe, currently on trial himself for contempt of court for allegedly lying in court. I say no more about it.

From a business perspective, however, the changes do not make sense. The companies which win the contracts will be monolithic, national firms. The government agenda generally is supposed to be to support SMEs—small and medium enterprises—but the effect of these proposals will be to send the existing providers, the high street firms, to the wall. There will be mass bankruptcies and redundancies. The new providers, the big companies, will bid low to start with, but once they have destroyed the competition from existing solicitors, inevitably prices will rise, with the profits going to the big boys. 

If the Government’s proposed model is adopted, quality is to be driven down to minimum standards. The single determining factor for success will be price. Practitioners will be valued and rewarded for producing the highest turnover of work at the lowest cost. Literally and intentionally, no value will be attached to quality of representation. If the professions are dumbed down, it will impact ultimately on the judiciary. Someone has already said that, if you have Tesco-grade lawyers, within 10 years you will have to start appointing Tesco-grade judges because they will be the only people to have experience in this field. 

The complaint about the chapter 4 proposals is that they represent the intentional dumbing-down of the criminal justice system. Quite explicitly, the intention is to reduce the quality of representation to a set of minimum standards. No value will be attached to quality of representation. The explicit abolition of client choice will erode confidence in the system. 

The proposals in chapter 5 are about the reform of fee structures. There is opposition to the reduction in fees, which are cutting to levels which are unsustainable, but that is not the main thrust of opposition. The concern is that the new structures are unworkable, the most obvious being the proposals to cut trial fees. In many cases, the advocate will be paid the same for a guilty plea as he or she would get for a trial. In more complex cases, refreshers would be paid on a reducing scale so that, in some cases, they might fall to £14 a day, without expenses. 

The intention is presumably to add to the incentives to defendants to plead guilty. The effect of that is to create conflicts of interest between the advocate and his/her client. The advocate is punished financially if the client pleads not guilty and goes to trial. Not only is that wrong in principle, it is counterproductive: if defendants know that the advocate has a conflicting financial incentive, they will not listen to him when he tells them to plead guilty, because it will be in his financial interest to do precisely that. Hence, there will be more trials, at greater expense. 

The proposals will mean fundamental changes, but there is to be no pilot scheme. One of the most dangerous aspects of the price competitive tendering proposal is the compete lack of modelling or trialling. The Attorney-General, Dominic Grieve QC, gave the explicit assurance before the general election that the Tories would not introduce tendering without full trials first. Why has the one person in this Government with practical experience been overruled? 

The proposals are to be brought in nationwide, commencing this autumn, without any trial period. They will be irreversible, because once the existing providers have gone, they will never come back. It was made clear in Tuesday’s Law SocietyGazette that most of the significant current providers regard the scheme as unworkable and will not tender. 

On the subject of minimum quality standards, there is a link to a separate set of proposals to introduce a quality assurance scheme for advocates. I will not go into that at this stage. Suffice it to say that solicitor advocates can presently obtain higher level grades on the basis of attending a course and giving a good performance in role-play exercises. They are not judged on their actual performance in real cases at a lower level. 

I am a former solicitor, so I have no axe to grind, but a very experienced Crown Court judge, who was also a solicitor, told me recently that the quality of advocacy in the Crown Court is, unhappily, appalling. He faces the dilemma that if he, as the judge, steps in to the arena too often to correct a solicitor advocate who is making a hash of the case before him, it quickly gives the appearance of bias. He was also concerned that in very serious cases, where two advocates are required to represent an accused, the fees structure is such that solicitor advocates now frequently seize the role of junior to themselves. However, he told me, if the lead counsel has to be elsewhere—for example in the Court of Appeal—far from the junior taking over, as has been the tradition at the Bar for ever, the solicitor advocate immediately applies for an adjournment. He can not carry the weight or responsibility of the hands-on conduct of the case. That judge told me that he was in despair. 

I have to say that no one with experience of the criminal courts could ever advise a young person starting his career to take up the role of a criminal advocate. Centuries of experience have created the system in which a team of solicitor and counsel work to high ethical standards to ensure that justice is done. I shall be sad if liberals of any political party or none in this House assist in its destruction.

Thursday, 2 May 2013

Insert 'truck' metaphor here: Why run Stobart defence lawyers off the road?

As the Law Gazette and Legal Futures have reported, trucking giant and legal beginner Eddie Stobart have announced their intention to bid for criminal legal aid contracts, should the Government be successful in its quest to introduce price-competitive tendering. Implied in the Stobart announcement was the necessity of killing off the 'wounded animals' currently undertaking legally aided criminal defence; a telling phrase from a would-be market predator. 

The defence community are understandably furious but unsurprised - this has long been predicted, and the entry of corporates like Stobart, Tesco, G4S, and the Co-op is thought to be a major driver behind both PCT and QASA. It is interesting to note that Stobart have not waited until the end of the 'Transforming Legal Aid' consultation to show their hand. It is suggestive that they, like the Government, see the whole process as a 'done deal'.

In contrast, the defence community appear to have strengthened their resolve, with much of the rhetoric filling blogs and social media condemning a future of Eddie Stobart legal aid lawyers. The announcement appears to have added a little more fuel to the anti-PCT and QASA fires. 

From an outside perspective, the most important question is what are the pros and cons of a world in which truckers secure your bail or advise on your plea?

The company launched Stobart Barristers last year and now claims to 'have' approximately 1000 barristers on its 'panel' to deliver legal services. It should be noted that Stobart do not 'employ' these lawyers - they are direct access barristers to whom the company can refer clients. Other companies provide similar  referral services. Members of the public could in theory access these services without Stobart, should they wish to. It is not entirely clear what the Stobart 'panel' is exactly; there is no available detail about which direct access barristers are 'on' the panel, or whether this would limit their ability to provide services elsewhere. Legal Director Trevor Howarth, a controversial man in his own right, claims that the current system of legally aided criminal defence is 'unsustainable' and that Stobart Barristers was created with the current proposals in mind.

1000 direct access barristers is not an insignificant number. Although Stobart do not 'own' these barristers, the money and resources that they can apply to funnelling clients to them does suggest that (should the barristers happily acquiesce) the company could 'deliver' criminal defence services on an enormous scale, in multiple regions. In contrast, the current fragmented market of hundreds of firms and chambers delivering defence services sees greater overheads, more debt and replication of the same or similar working practices which could arguably be merged.

Howarth argues that many existing firms would struggle to merge and cope with a 'legacy of debt' in the new market environment. Certainly, within the Government's aggressive timescale, the fact that many would have to increase profits by around 300% suggests that the proposals are not an exercise in 'toughening up' - they are a cull. The argument is therefore that the market must shed the dead wood.

Stobart, and other corporate candidates yet to reveal their supposed plans, would argue that they will provide better access to justice - a branch in your local shopping centre; cheap, fixed rates; flexibility and control in deciding when to take up services and at which stage; and, of course, a brand you can 'trust'. 

The power of branding pervades all markets, even criminal defence - but at present, in a very different way. As many defence lawyers will argue, their 'brand' has been built on reputation, goodwill and quality service rather than a name and extensive marketing. Stobart is simply a known name - and with that comes the assumption of trustworthiness.

Furthermore, Stobart (and the Government) would argue that the 'wounded animals' of the current defence community are simply self-interested - unwilling to be quality accredited or to let go of a funding model that is not sustainable in a time of austerity and which shuts out competition.

So what are the contrasting arguments? The defence community essentially argues that providers like Stobart are interested in the bottom line: maximisation of profit. As such, speed and volume will be paramount, both in the recruitment of defence lawyers and the delivery services.

Tied to this is QASA, which is designed to provide a basic level of accreditation - a level the defence community argues provides no guarantee of quality. With a badge of adequate skill, Stobart can recruit lawyers of questionable ability, paid at low rates, with limited resources and even less time for investigating/preparing cases for clients.

Most controversial of all, it is argued that for a business to remain profitable (the key goal) - in a market where low fixed rates will be further undercut to secure work - volume and speed must be king. As such, Stobart lawyers will have substantial pressure to encourage speedy resolution - in effect, the more guilty pleas secured, the more money the firm makes.

The pressure on the lawyer will inevitably taint the advice and service provided to the suspect or defendant - they will in turn not be provided with the full and zealous defence they deserve, prosecutions will go unchecked and miscarriages of justice will result. Appeal rates will go up, and the cost will be borne by the public.

The defence community also argue that corporates like Stobart, with their massive financial advantage and suitable infrastructure, will monopolise the new market, restricted to certain numbers of provider per region. As such, competition will be drastically reduced and the incentive to provide quality services will disappear. 

The defence community argue that they do not fear competition - the fact that the current market has so many providers tends to support this. They fear that the new playing field won't be level, that the big corporates have all the advantages and that the defence community as it is - with its wealth of experience, expertise and professionalism - will be destroyed forever, replaced with the cheap and barely adequate.

On a side note, some in the defence community have highlighted the fact that Stobart Chief Executive Andrew Tinkler and the aforementioned Trevor Howarth are currently embroiled in allegations of contempt of court for making false statements during legal proceedings against a whistleblower (covered in more detail in Richard Moorhead's blog). 

These, of course, remain allegations and need to be proven in court; but should that happen, the point being made is this: if such men are in charge, what sort of ethical commitment to fair and full criminal defence can society expect from their company?

The general tone of the argument really boils down to one of quality versus quantity - the defence community argues that it believes in quality while the corporate providers (with the Government's backing) believe in quantity. The corporate providers would likely argue that they believe in sustainability, accessibility and a free market, whilst the defence community believe in saving their own skins. 

Whether these summaries are accurate might well be disputed by both sides - which will win out remains to be seen.

Friday, 26 April 2013

A Break in Play: Who needs these Human Rights anyway?

So, if the Courts don't give you the answer you want - and we're talking about pretty much every court available, filled with the best legal minds around - then what do you do? The Government's answer it seems  is suspend the law. For one man. Temporarily. The news that the Conservatives (and it should be made clear that the Lib Dems want nothing to do with it) wish to suspend adherence to the European Convention on Human Rights (ECHR) so that they can get their way over Abu Qatada is the stuff of 1984; a total disregard for the Rule of Law, a brutal snub of the independence and authority of the Courts of this country, and a terrifyingly arbitrary manipulation of executive power. There are fewer slippery slopes than this. So what other 'temporary' remedies for defects of the law might the Governent consider should the mood take them?

- Perhaps a brief reduction in the prosecution burden of proof? 'Beyond reasonable doubt' is a pretty hard standard to satisfy after all; so when a defendant turns up who the Police and the Government are 'certain' is guilty, perhaps lowering the standard required for guilt would help grease the wheels?

- The whole 'right to silence' thing (limited as it now is) can be a real pain for the police. After all, it's their job to 'get their guy' and what use is an interview when the perp can keep quiet? We could get rid of that for a while, just so we can make sure we convict those who are 'really' guilty. After all, we all know who they are don't we? And the police shouldn't have to prove their case all on their own - that's quite a task. It would all be a lot easier, quicker and cheaper if people just confessed. No smoke without fire, right? Right?

- Legal representation: another troublesome roadblock in the pursuit for convictions. These defence lawyers just delay, distract, and procrastinate. Yeah they have some good uses - protecting innocent clients, ensuring a prosecution is accurate, legitimate and thorough, upholding individuals rights, weeding out false accusations, preventing police bullying, etc. But for a few of these nasties on trial, perhaps we could deny it every now and then?

- A clip round the ear (or more) can be really useful in getting the scum in police stations to talk - so maybe we should bring back a bit of the old 'police brutality'? Put the prevention of 'cruel and inhumane treatment' (Article 3 of that pesky ECHR) on the back burner; after all, the police can be trusted to be responsible and only use a sound beating when it's REALLY necessary, can't they??

- Privacy is overrated. After all, most people don't really need it do they? What have we all got to hide?? It's just a barrier to catching criminals. So perhaps the Government would consider letting the police listen in on conversations between suspects and their lawyers? Oh wait, no lawyers . . . well , how about rifling through  a suspect's stuff whenever they fancy? Or reading emails without permission? Or tapping their phones? I'm sure this sounds familiar . . .

- Due process in open court lets all the liberal trouble makers observe prosecutions and stir up a fuss about 'rights' and 'freedoms' and 'protections', etc. So, we could drop public trials when it seems necessary? If we've got a tough nut to crack, do it behind close doors, withhold evidence from the defendant, and stop media reporting. Again, this rings several bells . . .

The list of rights and procedures which stymie the Government's ability to bully, intimidate and convict their citizens goes on. Abu Qatada is quite clearly a deeply unpleasant man, who contributes very little of value to this nation or any other. But it is simply untenable to suspend the law just to get 'the job' done for one man that the Government and the public hate; and it is a matter of civilisation and principle to treat even one's enemies in the same way that we treat our friends.

Thursday, 25 April 2013

A Technical Defence: Lawyers fight for justice, armed with tweets and blogs

The various attempts by the Coalition Government to reform the delivery of legally aided criminal defence services have encouraged the legal profession to embrace two novelties: the extensive use of social media as a form of activism and a unity of purpose. Barristers and solicitors have been blogging and tweeting extensively on the proposed legal aid cuts, the introduction of QASA, and the consultation on price-competitive tendering in recent months. The online medium has been embraced not only by representative groups like the Criminal Law Solicitors Association (CLSA) and the Criminal Bar Association (CBA) but by individual lawyers, for both commentary, analysis and active dissent. The "blogosphere" and Twitter have of course been around for several years now. Both have been an outlet for frustrated or repressed citizens and interest groups, allowing a greater freedom of expression and protest; they have also been used as vital organisational tools. Primary examples, in both positive and negative contexts, include the Arab Spring of 2011 and the London Riots of 2012.

The legal profession as a whole has been fairly slow to engage, presumably because of the value afforded to traditional (and lengthier) forms of communication in legal culture, the caution exercised by professionals engaged in confidential work, and perhaps a dose of natural conservatism that most adults share when it comes to the popular and the new. But social media is now a serious tool, used by major companies as a major marketing weapon and it is, for better or worse, unavoidable. There are plenty of individuals and groups from the legal world who have been active bloggers and tweeters for several years. But the last few months have seen the profession's use of social media for the purposes of protest grow quickly and with more focus. The imminent threat of enforced changes, heavily criticised by the defence community, have arguably forced a change in behaviour and attitude; a snowball effect has drawn more and more interested individuals to this 'new but not new' arena of expression, perhaps on the basis that its immediacy and accessiblity helps get the message out. Today saw a peak in such activity, with the hashtag ‘SaveUKJustice’ sitting atop the trends on Twitter. Arguably this has been of great benefit to the defence community's fight to save its soul.

This week's mass 'stay away' of more than 400 barristers on the Northern Circuit could surely not have been as successful on such a scale without the organisational capabilities of social media. This is not to underplay the role of face-to-face conversations between lawyers, which remain the bedrock of communication in the legal world. But without the rallying calls issued online, the momentum built by the internet activity of angry defence lawyers, and the awareness of the big picture across the entire profession and the entire country, the collective who walked out might not have had the confidence and motivation to do so in such numbers. And without putting its money where its mouth is, the anti-cuts, anti-QASA, anti-PCT movement would now seem more like the 'noisy minority' it has been labelled by Baroness Deech. Instead, the actions of the Northern lawyers, and impending repetition in other circuits, suggests something big is gathering steam.

Next month, solicitors and barristers (supposedly 500 in number) are gathering for what could fairly be described as an 'historic' meeting in London to discuss the aforementioned threats - this sort of unity is in itself unusual. Although not as divided as they once were, the two separate strands of the English and Welsh legal profession remain at odds in many ways, rivals with competing interests (particularly when it comes to the overlap between HCAs and barristers). However, in the face of the Coalition's 'divide and rule' strategy, the defence community appears to have come together, in the belief that both are doomed without collective action. This has happened before, most notably in 2009 when the former Labour Government attempted to introduce Best Value Tendering (now rebranded as PCT); but not on such scale and with such determination. Indeed, 100 Manchester solicitors attended the first part of the Northern Circuit's aforementioned protest - a remarkable gesture. And this is likely to be only the beginning.

Again, social media has presented an opportunity to build a united front and a joint message. Retweets, interconnected blogs and comments sections have brought both solicitors and barristers together and disseminated information rapidly. Communication is of course vital in any alliance, and one could speculate that the micro-exchange facilitated by social media has strengthened the defence community in its battle to survive. Considering the determination of the Coalition to see through its plans and the difficulty of conveying a convincing message to the public, such unity may be the profession's strongest card. Equally, social media may represent the key to persuading the public that its real interests are in danger - there are few more direct and accessible mediums available. Either way, the forum of online debate and dissent amongst the profession remains a fascinating and informative source for the observer, as well as a vehicle for lawyer activism.

Friday, 12 April 2013

Price-Competitive Tendering for Criminal Defence - Some questions and comments

The Government's consultation on price-competitive tendering for criminal defence services was released on Tuesday 9th April 2013. Although not part of the substance of the proposals, the MInisterial Foreword by Chris Grayling raises a variety of questions about the underlying intentions and objectives of the proposals; I will endeavour to consider some of these in this post.

'Transforming legal aid: delivering a more credible and efficient system'

The title itself is of interest, particularly the phrase 'more credible'. Will the system be more credible in the eyes of practitioners? After all, defence lawyers will have to deliver the services within the new context proposed. They are, to some extent, the system. Without them it cannot work. Considering that the defence community, led by the CBA and CLSA, have been highly critical of PCT for years and are now discussing direct action, the question of how 'credible' the proposed system is and will be is important. The lack of consensus undermines this claim.

'Unfortunately, over the past decade, the system has lost much of its credibility with the public. Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid. Under the previous government, the cost of the system spiralled out of control.'

The claim that the system has lost credibility with the public is not supported with evidence; it is therefore a weak basis on which to justify major financial reform. The funding of 'wealthy criminals' and 'racking up of large fees' applies to a minority of cases - as the foreword recognises, this represents a 'small number of lawyers'. As such, one might ask why reforms aren't isolated to targeting these areas, rather than applying a blanket reduction in costs across the board? Additionally, the claim that Labour are responsible for costs that have 'spiralled out of control' is inaccurate - according to the National Audit Office, legal aid funding reduced by 12% in real terms between 2003 and 2009. As such, the suggestion smacks of playing politics. 

'In the current financial climate, it is now necessary to make further savings by embarking on the next phase of reform, mainly focused on criminal cases.'

Many have questioned the apparent rush to impose the reforms contained in this consultation. The Government are keen to see the process of implementing PCT started by the end of this year. But why 'now'? It has been suggested that it would be more sensible to slow the pace and explore the implementation of such a complex and controversial scheme over a number of years. Perhaps the need for speed is related to the electoral calendar; but that is of course speculative.

' . . . to make certain that legal aid is not funding cases which lack merit or which are better dealt with outside court; and to encourage greater efficiency in the criminal justice system to reduce costs. The hard working public pay for legal aid, and we must deliver a system which commands their confidence and spends their money wisely.'

This paragraph raises several points of interest. The suggestion that legal aid should not be provided for cases which 'lack merit' has three problems. First, this appears to prejudge a case before it has been considered. Second, it seems to usurp the powers of the CPS (who make charging decisions), defendants (who decide whether to contest) and Courts (in which magistrates, judges and juries decide upon guilt or innocence, admissibility, procedure, costs, etc.). Third, what does 'merit' mean - and what kind of characters and causes will be deemed unmeritorious? Since over 90% of defendants plead guilty, does this mean they lack 'merit' and therefore legal aid is not justifiable? Giving the job of deciding/defining 'merit' to the Government, civil servants or even the public would be dangerous, not only because of politics and prejudice, but because of a lack of expertise.

'Prisoners who wish to challenge their treatment in custody will have recourse to the prisoner complaints procedures rather than accessing a lawyer through legal aid.'

This proposal has potential issues - how neutral and fair will an internal procedure be? Is eliminating external scrutiny likely to encourage lawful practice?

'This is a comprehensive package of measures to restore the public’s faith in the system.'

This objective is put at the forefront of the proposals and their justification. But will the proposals improve the quality and effectiveness of the system? Such aims are notably absent.

'For criminal litigation, we are proposing a model of competitive tendering, where solicitors firms must compete to offer the best price they can for work in their local area. This will mean successful firms expanding or joining together, to achieve economies of scale which can be passed onto the taxpayer in savings to the public purse.'

Solicitors firms are identified above; but the elephant in the room is the opportunity for other organisations to bid for contracts. This could include ABS organisations and corporate providers. Potential candidates that currently offer/are involved in legal services include Eddie Stobart and the Cooperative Group. The danger identified by the professional defence community are that clients will be less well served by 'Tesco' lawyers, as profit, low cost and high volume will take precedence. Furthermore, such large companies may well develop a monopoly in the market, squeeze out smaller, independent competitors, reducing choice and reducing quality. This may well be the primary intention of the proposals; after all, as stated above, all must compete to offer 'the best price', rather than the 'best quality'.

As the quoted paragraph indicates, successful firms will need to expand or merge. One question is whether 'success' will be measured by effectiveness, quality and choice, or by profit and speed. One might also ask whether this reduction in competition will be good for the overall service quality provided by the market. This strategy seems to encourage an 'if you can't beat them join them' culture - and beating the larger, wealthier firms and organisations will inevitably be difficult. The savings to the taxpayer identified above - which one presumes will not be 'passed on' in the form of tax cuts - may well be purchased with a gradual sacrifice in the time and effort invested in appropriate defence work.

'For criminal advocacy, we intend to reform the fee structure, to ensure that cases are resolved as quickly as possible, which will mean less time required of lawyers, and lower costs to the legal aid bill.'

Again, reductions in cost and increases in speed appear to be the paramount concern - this raises the issue of whether accuracy, legitimacy and effectiveness will be negatively affected, not just for the defendant but for all parties in the case. An early guilty plea and swift resolution will be appropriate some of the time - but not all of the time.

'The impact of these changes will also help remedy the great disparity which had emerged within the legal profession by reducing the payments to that small number of lawyers earning very high fees whilst protecting the majority of barristers who should not lose out as a result of our proposals. Indeed, some of the lowest fee earners will be better off.'

First, it is worth questioning whether 'small numbers' of lawyers earning large amounts represents a 'great disparity'; it is a disparity certainly, but if the vast majority are earning fees in a similar range, then it is not necessarily dissimilar to any other profession. It is also worth asking what sort of work this cohort of 'elite' lawyers undertake? Presumably, complex, lengthy and high cost cases, perhaps with extremely high levels of pressure and high profile litigants. In this context, it is not an inherent unfairness for these lawyers to earn more. This is not to justify disproportionately excessive fees but simply to question the premise that because some lawyers earn very high fees there exists a 'great disparity' within the profession that needs urgent redress. 

One wonders whether the focus on high-fee earners is a form of decoy, used to justify the general reduction in funding. Moreover, if one accepts the logic that fees are disproportionately funnelled to the top-end of the profession, then surely a system-wide drive to reduce costs is inappropriate? It seems logical that an across-the-board lowering of fees would hit the majority of defence lawyers first and hardest.

'In short, the reforms outlined in this document both boost public confidence in and reduce the cost of the legal aid system.'

Arguably not. Public concern about the legal aid/criminal justice system is nearly always driven by media reporting (the near exclusive source of information about law for most people) of a minority of cases, presented in a biased manner coupled with long-established stereotypes about lawyers and defendants. These reforms are highly unlikely to impact on this.

'I am keen to explore further ways for convicted criminals to bear a greater proportion of their legal costs themselves . . . whether through deductions from future earnings, or by some other means, we should be seeking to ease the burden of legal aid on the public purse, whilst guaranteeing everyone the right to a defence.'

A controversial suggestion. It is worth asking whether effectively extending punishment of an offender beyond their sentence is wise or fair. It certainly seems to contradict the principle that you are punished once for a crime. Additionally, such a financial penatly would arguably damage rehabilitation and increase the likelihood of reoffending. The desire to guarantee the 'right to a defence' is positive (albeit legally required) - but to what standard? What is a nominal defence other than a fig leaf for a system that does not respect individual rights?

Tuesday, 9 April 2013

Price-Competitive Tendering: Grayling Throws Down the Gauntlet

Today (April 9th 2013), Minister for Justice Chris Grayling announced the long anticipated consultation (or edict as some consider it) on the introduction of price-competitive tendering for criminal legal aid (or best-value tendering as it has been rebranded).

Below is Grayling's summary of the aims, with telling references underlined:

'We have an excellent tradition of legal aid and one of the best legal professions in the world. But we cannot close our eyes to the fact legal aid is still costing too much. It is not free money, it is paid for by hard-working taxpayers, so we must ensure we get the very best value for every penny spent.

'Some lawyers earn hundreds of thousands of pounds from just one or two cases, and these cases can themselves cost up to £15 million each. And we've all heard of wealthy criminals with stashed millions getting legal aid to pay for their defence or of prisoners given legal aid unnecessarily.

'I am clear we will continue to uphold everyone's right to a fair trial but that doesn't mean we shouldn't look again at how the system which provides this is operated.'
Although I haven't read the consultation paper yet, a few initial thoughts spring to mind relating to the above points. 'Legal aid is still costing too much' according to Grayling, yet it has been slashed continuously for years and years and the Ministry of Justice budget represents one of the smallest in Government (see the enormous burdens of health, work and pensions, social security, education). This also gives away the major push behind Grayling's reforms - 'best price' rather than 'best value'.
The idea that legal aid is 'free money' is of course nonsense - legal aid for criminal defendants is one of several hallmarks of a civilised society that the state provides because those accused very often cannot afford it themselves. Being provided with a representative in the face of accusation by the overwhelming resources of the state is hardly 'milking' the system. And there is also an implication that those accused of crimes are NOT hard-working taxpayers - is it just work-shy, benefits dependent freeloaders that come before the courts? Of course not - a large number of 'hard-working taxpayers' have paid into the pot from which they derive the benefit of legal assistance - it is the same principle as is exercised in justifying all state funded services, such the NHS or the benefits system. But the working status of defendants shouldn't preclude access to the same rights and protection as any other citizen; this sort of thinly disguised financial prejudice is no better than racism, homophobia or any other form of bigotry.
One must also question the logic that introducing 'lowest bidder' tendering for criminal contracts represents better value - it will certainly mean a better price (for the Government and for the bidders, which will likely include large corporations like Tesco, Eddie Stobart, G4S and the Cooperative Group). But for defence lawyers and their clients, quality is likely to be damaged. Less money for the same or more work is only workable if defence lawyers spend less time with clients, less time investigating and constructing a case, and encourage swifter resolution of proceedings (guilty pleas being the most dangerous example of this). Whether this is better 'value' for the taxpayer is questionable - after all, taxpayers are not simply interested money. They are interested in a fair, legitimate, good quality legal system that serves them rather than letting them down (whether they recognise it or not).
Grayling's example of 'some lawyers' earning gross amounts refers to a tiny minority - most defence lawyers earn very small fees for the level of work invested. To suggest that defence lawyers are raking it in at the state's expense is much like suggesting that mansion squatters and similar to homeless people sleeping rough every night. It is irresponsible and misleading, but is sadly familiar rhetoric. The same can be said of the 'wealthy criminals' card - once again, a minority that does not represent most defendants brought before criminal courts. What Grayling means by 'unnecessary' cases brought by prisoners is anybody's guess - cases brought for matters including racism, violence, invasion of privacy, limiting of access to legal advice, and ill treatment are presumably included within this definition simply because the claimants are prisoners. 
Finally, Grayling makes a token gesture to the Article 6 right to a fair trial, but provides little or no detail about what he means, and fails to address why massive cuts and a race to the bottom in terms of the prices paid for criminal defence work will in any way bolster the right to a fair trial. The starting gun has been fired on BVT; the Government will inevitable face off with the criminal defence profession. Who will ultimately pay the price for Chris Grayling's money-saving is not yet clear - but one imagines it will not be Chris Grayling or the Government. 

Thursday, 4 April 2013

In Defence of the Defence: Why Counsel For The Accused Deserve More Academic Attention

Criminal defence lawyers advance and protect some of the most fundamental rights of citizens in liberal democratic societies.1 Legal representation and assistance is a central principle of due process: whether needed in the Police Station or the dock, delivered by Barristers, Solicitors, Higher Court Advocates and Accredited Representatives.

The wide recognition and vital importance of this right is exemplified by the United Nation’s Havana Declaration, a set of principles relating to the role of lawyers.2 The first of these principles – which the UN asserts should be ‘respected and taken into account by Governments within the framework of their national legislation and practice’3 – states that ‘[a]ll persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.’4 This is an unambiguous acknowledgement of the significance of legal assistance to the fairness of criminal proceedings – and continues to feature prominently on the UN’s agenda in 2012.5 The principle is replicated in International, European, and English and Welsh Domestic Law. The Rome Statute of the International Criminal Court states that someone accused of a criminal offence has the right to ‘conduct the defence in person or through legal assistance of the accused’s choosing’.6 The European Convention on Human Rights and Fundamental Freedoms guarantees the right of the criminally accused to ‘to defend himself in person or through legal assistance of his own choosing’ under Article 6(3)(c). European Court of Human Rights jurisprudence expands on this. The case of Salduz v Turkey underlined that ‘although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer… is one of the fundamental features of fair trial’.7 Salduz also established that the right to a defence lawyer arises at the investigative stage of criminal proceedings. Subject to ‘compelling reasons’, the court asserted that the Police must provide ‘access to a lawyer… from the first interrogation of a suspect by the police’,8 thus laying down an utterly essential protection for those arrested and detained. The EU’s ongoing ‘Stockholm Programme’ provides further evidence of the cruciality of legal assistance.9 The programme includes a European Council ‘roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings’, a key feature of which is ‘the right to legal advice (through a legal counsel) for the suspected or accused person in criminal proceedings at the earliest appropriate stage’ – described as ‘fundamental in order to safeguard the fairness of the proceedings’. In England and Wales, the right to legal assistance afforded by the European Convention on Human Rights has effect through the Human Rights Act 1998, and is supported by centuries of case law and is enshrined within PACE.10

Yet, in contrast to such overwhelmingly authoritative recognition, it is arguable that many inside and outside of the legal-academic community underestimate the value of the defence lawyer: particularly members of the public. Raymond Brown suggested that ‘[a] Delegate of the Estate of Real People would probably ask “Aren’t most good lawyers bad people? Don’t they represent horrible clients and use clever technicalities to thwart true justice?”’.11 As professionals paid to shield potential offenders, defence lawyers are regarded almost as enemies of justice by some; obstructors of fairness engaged in a role which few people endeavour to comprehend and many more disparage.12 The media’s tendency to perpetuate the enduring image of defence lawyers as deceptive and untrustworthy is well-worn and has stifled a more balanced and realistic debate in the public domain. As such, the criminal defence profession is ‘disdained, mocked and unappreciated in both the popular and the legal culture’.13 Yet, it is not unreasonable to assume that the average citizen expects a defence lawyer to be on ‘their side’ should they need one; that their lawyer will be suitably qualified and competent to protect their interests, and will work diligently for them alone. It is uncertain what proportion of the public in England and Wales are aware of the universal right to a defence lawyer and what that service provides. In a recent study by Vicky Kemp,14 54% of a sample of respondents who had been arrested reported that they sought legal assistance at the police station.15 For those respondents who did not, a major reason for declining representation was the belief that legal assistance was unnecessary.16 Kemp argued that this belief often stemmed from a lack of understanding of what was happening at the Police Station and ignorance about the right to free legal representation.17 Beyond this, one can only speculate about the level of awareness members of the public have of this right.

Defence lawyers are entrusted with critical responsibilities within the criminal justice system – to protect and defend some of then most vulnerable individuals in society, and to ensure that criminal proceedings are legitimate, justifiable and legal. Yet a limited number of British academics have devoted attention to scrutinising the nature and scope of this vital role in recent years.18 This dearth of focused research in England and Wales contrasts with American scholars – particularly David Luban, Monroe Freedman and William Simon – who have dominated the debate about legal ethics over the past 40 years, and have written extensively about the obligations and duties of adversarial lawyers. The result is an under-developed body of modern academic discourse contemplating the work and role of defence lawyers in this jurisdiction. This is particularly surprising since the last decade has seen the defence role experience significant and unprecedented change.

Since their inception in 2005, the Criminal Procedure Rules have reshaped the landscape of criminal justice and substantially impacted on the role of the defence lawyer. Various ‘case management’ obligations are incumbent on all parties in the case.19 The defence lawyer is now obliged to deal with a case ‘efficiently and expeditiously’, identify at the an early stage the ‘real issues’ and provide information about witnesses, written evidence, and points of law.20These may run counter to the defendant’s interests. Where the defendant wishes to put the prosecution to proof – as he or she is entitled to – the duty of ‘convicting the guilty’ (one of the first ‘overriding objectives’ of the rules) is certainly at odds with the accused’s interests. Yet, the defence lawyer is obliged to help the Court fulfil the ‘overriding objective’: does this, by extension, include convicting his or her client? One must presume it does, making for a very controversial conflict between the defence lawyer’s duty to the defendant and the Court. The Rules continue to be updated and remain an issue of crucial importance in the sphere of criminal defence work. More recently, the Government attempted cripple the universal right to legal assistance in the Police Station by making it subject to a means-test. The highly controversial provision – contained in Clause 12 of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) – would have allowed the Police to require vulnerable suspects to produce personal financial information in the Police Station in order to justify legal assistance. Described as ‘unworkable’21 and ‘bizarre’,22 the provision would have almost certainly fatally undermined the ‘unfettered’ universal right to a defence lawyer at the most dangerous stage of the criminal process.23 The Government withdrew Clause 12 – but the saga sent an unmistakable message that the pivotal role of the defence lawyer is not immune from the axe of the Coalition. This near miss – and the shrinking budgets of criminal defence firms tasked with representing suspects in Police Stations – were given a worrying context in May 2012. After seven years in prison for murder, 25-year-old Sam Hallam was freed; a victim of a miscarriage of justice caused by ‘ineptitude and at worst by dishonesty on the part of some police officers’. As the noose tightens around the throat of the defence profession, the spectre of more grave injustices looms large.

Another recent signal of the changing context in which the defence lawyer must operate is the ‘Stop Delaying Justice!’ campaign. Rolled out at the close of 2011, the policy initative is a spiritual successor to ‘Criminal Justice: Simple, Speedy, Summary’ (CJSSS) sharing the common aim that proceedings in Magistrates’ Courts are to be ‘fully case managed’ from the outset.24 This, in short, requires that cases be shorter and more efficient, with less delays. But fears have been raised about the effect of such a focused drive on the legitimacy and fairness of summary proceedings for the defendant. In April 2012, the BBC reported on the potential for miscarriages of justice caused by rushed procedure and expedited disclosure – particularly where defendants are expected to enter pleas without seeing all the evidence against them.25 The place of the defence lawyer in this scheme is fraught with difficulty; the court expects them to deliver speedy pleas and hasty disclosure, while the client they serve depends on them for protection and representation. In addition, hanging above like the Sword of Damocles is the threat of a wasted costs order.26

To some extent, all of the changes mentioned above – and myriad examples omitted – have generated confusion and uncertainty about what the defence lawyer’s role is in the 21st Century, with more potential ethical conflicts for defence lawyers to resolve than ever before. Of the few academics who have broached the subject, some have suggested that such changes herald a shift away from an adversarial criminal process in England and Wales, towards a more managerial and even inquisitorial style of criminal justice. Consequently, the traditional principles of zealous and detached partisanship which have underpinned criminal defence representation have been undermined. Despite this, such substantial issues have attracted limited attention outside of the circle of practice. Four conclusions can be drawn from all of the above. First, there is widespread and long-standing recognition in international, continental and domestic law of the importance of the defence lawyer to fair criminal proceedings. Second, there is limited public understanding of what defence lawyers do and why. Third, modern and contemporary theorising and commentary in this area, particularly in the case of British academia, is under-developed. Fourth, this important figure in the criminal justice system is now operating in a shifting procedural context, raising serious questions about the nature and extent of the criminal defence role within the adversarial tradition of England and Wales. The criminal defence lawyer should undoubtedly feature more prominently in academic literature and commentary. It is a crucial element of the adversarial criminal justice system which – some would argue – is under attack. Such changes are profoundly distorting the relationship between defence lawyers, clients and the Court: it’s time for scholars, practitioners and policymakers to have a frank debate about this.

1 See R v Samuel [1988] QB 615.
2 Office of the High Commissioner for Human Rights (1990) ‘Basic principles on the role of lawyers’ – Adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba.
3 Ibid., Preamble
4 Ibid., at para. [1]
5 In April 2012, the UN’s ‘Expert Group on Strengthening Access to Legal Aid in Criminal Justice Systems’ produced a set of draft principles underlining the importance of legal representation throughout the criminal justice process.
6 UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9:http://www.unhcr.org/refworld/docid/3ae6b3a84.html (accessed 25 May 2011)
7 Salduz v Turkey 36391/02 [2008] ECHR 1542 at para. [51]
8 Ibid., at para. [55]
10 Key cases include Kennedy v Broun (1863) 13 CB(NS) 677; Rondel v Worsley [1969] 1 AC 191; R v Munnery [1992] 94 Cr. App. R. 164; and Medcalf v Mardell [2003] 1 AC 120 (HL). Under the Police and Criminal Evidence Act 1984 (PACE), those arrested and held in custody are entitled to consult with a solicitor at any time (s.58(1)).
11 Brown R., ‘The “Good Person” Question: Valid Query or Hobson’s Choice?’ (1999) 2Journal of the Institute for the Study of Legal Ethics 153, 154.
12 Arguedas C., ‘Duties of a Criminal Defense Lawyer’ (1996-1997) 30 Loyola of Los Angeles Law Review 7, 9.
13 Brown R., ‘A Plan to Preserve an Endangered Species: The Zealous Criminal Defense Lawyer’ (1996) 30 Loyola of Los Angeles Law Review 21, 21.
14 ‘Transforming Legal Aid: Access to criminal defence services’ (Legal Services Commission, 2010).
15 Ibid., 33.
16 Ibid., 5.
17 Ibid., 35-40.
18 Notable British scholarship in this area has been undertaken by Donald Nicolson and Julian Webb (see Professional Legal Ethics (2000) Oxford University Press); Mike McConville, Jacqueline Hodgson, Lee Bridges and Anita Pavlovic (see Standing Accused (1994) Clarendon); Ed Cape; David Pannick; and Jenny McEwan. At a more practice-oriented level, Andrew Keogh’s Crimeline service regularly addresses criminal defence issues.
19 Rule 1.29(a), Criminal Procedure Rules 2011/1709
20 Rules 1.1(2)(e), 3.2(2)(a), 3.10(c)(i), 3.10(c)(vi), 3.10(c)(viii) respectively.
21 Baksi C., ‘Opponents win custody advice concession in “un-costed and unjust” LASPO’, Law Society Gazette, 26th January 2012.
22 Bowcott O., ‘Means testing of suspects held in police stations dropped from bill by coalition’, The Guardian, 25th January 2012.
23 Baksi, op. cit.
24 Riddle H., ‘The Stop Delaying Justice! Initiative’, Law Society Gazette, 19th January 2012.
25Cave R., ‘Lawyers claim new policy causes miscarriages of justice’, BBC News UK, 14thApril 2012. http://www.bbc.co.uk/news/uk-17690404.
26 See Brett v Director of Public Prosecutions [2009] EWHC 440 (Admin).