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.