Tuesday, 29 January 2013

Gloves off at the Cab Rank

Professors John Flood and Martin Hviid's report for the Legal Services Board (which I commented on in my last post), appears to have set pulses racing amongst interested academics and, not unsurprisingly, barristers, with some heated electronic exchanges over the relevance and future of the Cab Rank Rule (and more than a little mud-slinging).

Most notable is the vitriolic response of Michael Turner QC, Chairman of the Criminal Bar Association (which can be read here). Describing the LSB as 'a politically motivated body whose mission is the wholesale destruction of the publically funded criminal Bar', he suggested that the report recommended the 'abolition' of the Cab Rank Rule and summarised it as a 'crassly ignorant analysis' based on 'fundamental misunderstanding'.

The response is characterised by a clear emotional attachment to the subject, evident in language including, 'it makes one shudder', 'how dare they', and 'read it and weep'. Although the passion is admirable (emotional committment isn't inherently bad), it would be fair to say that a response anchored in emotion is likely to lack some perspective and balance.

Professor John Flood, who co-authored the report, responded in kind here, posting a couple of images mocking Michael Turner's comments. A post further down the page suggests he clearly expected a backlash. Although his point about 'emotional' ranting is reasonably accurate, his willingness to stoke the fire seems unfortunate. It strengthens the barrier between a profession which values this long-standing principle and an academic community that should be soberly examining its worth. It would be better for the two to work together to improve the mechanism of the rule.

The report did indeed contain some provocative conclusions couched in less than neutral language (see my earlier blog post); it is thus unsurprising to witness the resulting extremes of opinion, some examples of which were aired in the comments section of this Law Gazette article about the report. Of the various immoderate phrases employed, highlights include 'the latest idiocy', 'this silly rule', 'sacred cow', 'half-educated half-wits who become professors', and 'total ignorance on the LSB's part'. It is perhaps ironic that the Cab Rank Rule - underpinned by the concept of amoral detachment and objectivity - is being debated in such a 'right brain' manner. 

Two posts appear to me to be the most sensible on the topic. Richard Moorhead wisely points out in his blog that a 'bar room brawl' over the rule is both unproductive and pointless, and that several extreme and 'conspiratorial' conclusions have been leapt to. Lucy Reed, family barrister and Pink Tape blogger, provides one of the most balanced analyses available, accepting where she lacks expertise or evidence, but equally not deigning to pull her punches. 

She describes the report as 'a literature review . . . a literature review of scant literature . . . with a smattering of interviews thrown in for good measure.' She rightly concedes that the report has 'some well made points'; but she has the same reservation about the report as I do - primarily the 'tone' of the report based on the evidence available. It is overly negative, too conclusive, and it is, in a way, sneering about the Bar's committment to a complex but admirable principle. 

Among her various points, Lucy also criticises the report's argument about 'notorious' clients being attractive and I agree, but for slightly different reasons which I will deviate into (briefly). The authors of the report (and a number of commentators) have perhaps missed the point of the Cab Rank Rule in the context of 'horrible' but high profile clients. The rule is designed to ensure that 'unattractive' clients get represented; this often means the nasty, cruel, sadistic or perverse, but most people in this category do not make it into the papers.

The very, very worst are infamous. If one accepts the perhaps cynical premise that infamy is attractive for barristers because of the boost to business, the challenge, the ego trip, etc. (which undoubtedly it is for some), then the very, very worst might not struggle for representation. Those protected by the rule are the low profile clients, not renowned on a grand scale for their crimes but still maligned to varying degrees for various reasons. Luckily, not every defendant will be an Ian Huntley or Harold Shipman - the vast majority will (for want of a better term) be your 'average' deviant, and the Cab Rank Rule acts as a measure of protection for them where the lure of the spotlight (for some barristers anyway) is absent.

It is hard to say what the result of abolishing the Car Rank 'rule' would be; it might lead to a disastrous antipathy towards helping undesirable characters drawn into the legal system. It might continue to pervade practice as a guiding principle. It might have no noticeable effect at all. Either way, it is right that the report should raise questions about a professional rule that does not appear to be enforced in any clear and transparent way and which has little statistical profile. However, to become ideological and over-zealous (how appropriate) about abolishing or preserving the concept out of sentiment or scorn is ultimately unhelpful.

The Cab Rank rule is a very old principle, grounded in valuable moral ideals of equality and access to justice, nurtured by the liberal traditions of modern democracy and the rule of law. Whether these abstract notions translate into true relevance and workability in the reality of practice is an important question, which the report raises. The report is, however, over-conclusive and does undermine the integrity of the rule in a way which could have been avoided. The most important conclusion to draw from this report is that much more detailed, balanced, and objective debate and research is necessary - both theoretical and empirical - asking why we have the rule and what it means it for the Bar, the client, and the justice system in the 21st Century. And it needs to be free from bickering and politicking.

Thursday, 24 January 2013

The Death of the Cab Rank Rule: A Sheep in Wolf’s Clothing?

This week, eminent academics John Flood and Morten Hviid may have signalled the death knell for the ‘Cab Rank’ rule - the age-old law of professional detachment applicable to barristers in England and Wales, compelling them to accept any client requiring their services. Flood and Hviid – leading scholars on professional ethics – make several valid points; but a point of criticism might be the tone of the argument, rather than its substance.

In their report for the Legal Services Board, they describe the long-standing rule as an anachronism which lacks ‘teeth’ in practice. They characterise it as an impractical, unenforced antiquity, with an over-exagerrated relevance perpetuated by the Bar. They conclude by recommending that it should be considered a ‘principle’ rather than a ‘rule’. I agree with the final conclusion, but for perhaps different reasons.

In many ways, Flood and Hviid have dragged this particular skeleton out of the closet. Practitioners and academics alike have been aware for some years that the concept of compulsory representation is a fallacy. In the context of criminal defence, the almost universal exclusion of legal aid from the ‘rule’ (due to its categorisation as insufficient remuneration) makes a mockery of the mechanism. This has led to what has been descibred as ‘legal advice deserts’ in some areas.

But where the ‘rule’ falls down, the ‘principle’ stands up. The idea that no man or woman should be turned away on the basis that they or their cause are immoral, deviant or objectionable is essential. It is the foundation block of access to justice, most particularly in criminal defence. This principle has been inculcated in to the culture of the Bar for hundreds of years; there is no evidence to suggest that barristers deviate from it on the basis of moral objections. Indeed, in a piece of empirical work I conducted in 2009, every barrister was adamant about their duty to accept a client however much they disliked their character or cause.

As Flood and Hviid point out, the principle is ‘laudable’. I would go further and say that it should always be vigorously defended. It is an anchor ensuring that the culture of legal representation never drifts too far from the essential notion that all must be able to exercise their legal rights. The principle, as opposed to the rule, has such strong resonance in the field of criminal defence that solicitors – not bound in any way to follow the ‘Cab Rank’ system – generally abide by it, opting to accept all comers. This, again, was something I encountered during the aforementioned empirical study.

So, one might argue that the ‘rule’ (a binding covenant) is no longer defensible, particularly in the post-ABS environment. But the ‘principle’ (a normative value) remains essential and healthy, particularly in circles where it is needed most. Indeed, in a world where lawyers and non-lawyers can now work together closely in a business setting, it seems more important than ever to ensure that the ethics of legal representation are protected, sustained and even prosthelytised; after all, one must ask who will choose the clients in an ABS – the lawyers or the non-lawyers? And what factors will drive the decision-making? Barristers don’t appear to have fully embraced the opportunities of ABS yet, but it is an inevitable destination and these bridges will have to be crossed.

It seems sensible and realistic then to abandon the pretense of a ‘rule’ and accept the concept of a ‘principle’: the ‘Cab Rank’ rule is a sheep in wolf’s clothing, and should give it up. But Flood and Hviid’s report lacks the passionate conviction that the ‘Cab Rank’ principle deserves. To use a metaphor, rather than accepting it as simply the out-dated, mutterings of the old man in the corner, it should be embraced as the sage advice of an elder statesman – no longer followed rigidly but always consulted and respected as the voice of reason and experience.

Tuesday, 22 January 2013

Cost Over Quality: Do Chris Grayling’s comments perpetuate the pattern of declining standards?

Justice Secretary Chris Grayling yesterday (Monday 21st January 2013) sought to ‘start a discussion’, which in the view of some may represent another line in a long running monologue by the Government: reduction of cost at the expense of quality.  Mr Grayling, bemoaning the large legal aid bill, suggested that the use of Queen's Counsel in the defence of those charged with criminal offences could be reduced by employing those on the cusp of achieving the same status. In short, substitution of less senior – and thus less experienced and less expensive – barristers for the most senior.

Several questions arise from the Minister’s statement. First, one might wonder why those ready to step up to the higher echelons of the legal world would feel content to accept what Mr Grayling argued was around half the wage of a QC, for exactly the same burden and complexity of work. Alternatively, it might be argued that those on the cusp of Silk status might leap at the chance of such top level work to bolster the CV. However, those at this stage of their career are not generally the very young and eager (and perhaps slightly desperate) practitoners, keen to please whenever possible. A reputation will have already been established.

In any case, should this class of junior barrister be willing to accept harder work for no more pay, that does not mean they are either ready or able to manage it. They may be - but one wonders how much assessment will be made of capability when the lure of slashed costs calls. Perhaps more realistically, one would imagine that the junior barristers referred to are likely to be significantly more junior. This raises the question of how far down the ranks difficult cases will fall before the right pay scale can be accommodated.

This raises potential concerns about how the most challenging and expensive cases will be handled by those employed using the Minister’s logic. After all, QCs are highly unlikely to represent the common or garden defendant facing a straighforward trial, and one might assume they would be unhappy about the loss of work to those lower down the ladder. Alternatively, they might feel relieved of the workload; but one would suspect that in a sector as squeezed as criminal legal aid, any fee is appreciated.

According to Bar Standards Board statistics, as of 2010 there were 15,387 practising barristers, of which 1,397 were QCs. One would presume that the number of QCs representing criminal defendants compared with more junior barristers is disproportionately low (specific statistics have been difficult to locate and would be appreciated by anyone who can contribute them !) Most criminal defence lawyers have seen fees go down and workload go up according the Biennial Survey of Barristers Wokring Lives - and for nowhere near the fees of QCs or counterparts in other areas of work.

Worryingly, the comments of the Minister may represent a gateway to attacking criminal defence fees generally - which do not reflect the amounts earned by those QCs criticised in the press. This therefore projects a distorted image of legally aided criminal defence. QCs are arguably employed to defend in circumstances where their experience, skill and status afford the defendant necessary protection. To replace this minority of the most able – but most expensive – in what is likely to be the most complex cases seems illogical but typical of the Government's persistent attitude towards criminal defence: cost over quality.

An Introduction . . .

Hello to any and all who might come across this blog.

This is my first foray into the world of blogging (some years after the fact); still, better late than never ! As an early career academic, I'm often frustrated by the slow pace of the publishing cycle for academic journals and even websites. Many of you who are in a similar position, or more experienced, may well agree that this inevitable crawl towards publication can stifle opportunities to express thoughts, opinions or - dare I be so bold - insights on matters important to us.

As someone who is still attempting to develop their voice and articulate eloquently about my work and interests, I've decided to start a blog on issues relating to Criminal Law and Practice, most particularly criminal lawyers and their role. This is theory at this stage; the content or direction may change but that is the opening brief and I intend to stick within its boundaries ! I hope this might give me an opportunity to both practice my craft, gain an audience for my writing, and connect with academics, professionals or casual readers who might find this area to be of interest.

I am, of course, aware that this blog is a drop in an ocean of internet opinion, both general and crime/law oriented. Some is brilliant, some is banal, and much is in between. If I can avoid the second of those, I will feel I've achieved something. I hope you will agree and perhaps comment (constructively !).

Thanks for reading: enjoy.