tag:blogger.com,1999:blog-66886926969662390232024-03-07T22:17:17.771-08:00The Zealous Advocate: Thoughts on Criminal Law and PracticeA blog by Tom Smith, an early career researcher, on matters relating to Criminal Law and Practice, Criminal Lawyers, Professional Ethics, Adversarial Procedures, and related topics.Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.comBlogger28125tag:blogger.com,1999:blog-6688692696966239023.post-75353366969426825232015-09-04T05:51:00.002-07:002015-09-04T06:10:08.210-07:00A Zealous Roundup: Bail Offences, the Criminal Charge, & Legal Aid Forensics<span style="font-family: Arial, Helvetica, sans-serif;">After a hiatus of some 18 months, I'd like to return blogging on a semi-regular basis. The approach with which I will be experimenting will be a sort of 'weekly round up' structure; thoughts on a few issues that have caught my eye recently, rather than extended discussion on single topics. That being said, this first one is longer than initially planned ! Comments/retweets welcome.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;"><br /> -----------<br /><br />REDUCTION IN OFFENDING ON BAIL: SOME THOUGHTS<br /><br />Some interesting figures have been released in relation to offending on bail. In mid-August 2015, the Ministry of Justice (MoJ) revealed that <a href="https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CCIQFjAAahUKEwjp_fqBnN3HAhWGs9sKHTqXDEE&url=https%3A%2F%2Fwww.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F455169%2Fdata-on-offenders-on-bail-committing-further-offences-2014.doc&usg=AFQjCNHGlnTA-4Dlm9D0CR_pBPyY3L0KqA&sig2=dCyzKcSa06lyJJaR8qJN0Q"><b>offences committed on bail dropped substantially during the last Parliament.</b></a> The figures were released in response to a Freedom of Information request, although it is unclear who made the request. The headline figure states that between 2010 and 2014 'the number of offenders convicted of committing an offence of any kind while on bail has fallen 48% from 69,348 to 36,053'. The response provides data on the various types of offences committed on bail. It is not clear whether the headline figure relates to ALL types of bail (i.e. police and court bail). A footnote for Table 2 of the response suggests that the figures relate to all types of bail; however, this table does not cover all offences on bail. It is not confirmed elsewhere which types of bail the figures cover.<br /><br />The MoJ states that 'the overwhelming majority of people bailed do not reoffend' and adds that the figures demonstrate 'substantial progress since 2010 in reducing the number of offences committed on bail'. The first statement is fairly uncontroversial. The second should perhaps be questioned. In infers that some proactive strategy on the part of the Government has reduced offending on bail. What this might be is not specified. The reduction could be explained in a number of ways. For example, bail may be being granted less; the police may be detecting offences on bail more infrequently (perhaps due to cuts in police numbers); as the response admits, the recording process does not necessarily capture all those suspects/defendants who offend on bail.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The figures will provide useful context for a research project I am currently working on with Professor Ed Cape and Fair Trials International, entitled the <a href="http://www.fairtrials.org/press/fair-trials-launches-new-pre-trial-detention-project/"><b>'Practice of Pre-trial Detention'.</b></a> The project has involved a desk based and empirical examination of the use of court bail and remands in custody in England and Wales, alongside 9 other EU jurisdictions. The figures on offending on bail may help provide explanations for trends in the use of bail/custody at the pre-trial stage. For example, lower offending on bail may encourage courts to make greater use of unconditonal/conditional release. Of course, such conclusions must be treated cautiously, be the release of the figures helps create a more complete picture of the practice of pre-trial detention and release in England and Wales. <br /> -----------<br /><br />THE NON-DISCRETIONARY NATURE OF THE CRIMINAL CHARGE IS IRRATIONAL<br /><br />Blogger <a href="https://twitter.com/JackofKent"><b>@jackofkent</b></a> recently highlighted the rather shaky rationale offered by under-secretary for Justice, Shailesh Vara, for the non-discretionary nature of the widely criticised Criminal Courts Charge. Way back in March 2014, <a href="http://www.theyworkforyou.com/pbc/2013-14/Criminal_Justice_and_Courts_Bill/10-0_2014-03-25a.4.0?s=Criminal+courts+charge"><b>in a Parliamentary debate about the proposed charge</b></a>, Mr Vara said: <br /><br /><i>'The UK justice system is one of the finest in the world, and our courts must remain independent and impartial. Providing the court with discretion over whether to impose the charge would risk creating a perception that our judges and magistrates were being given the ability directly to influence the funding of the criminal courts—a system of which they are an integral part and the success of which they have a vested interest in. We cannot permit the risk of such a perception.'</i></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This statement essentially says the following: </span><span style="font-family: Arial, Helvetica, sans-serif;"></span><br />
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<li>Judges/magistrates want the court system to succeed </li>
<li>If judges/magistrates can choose to impose the charge, this might give the impression that they can make money for a system from which they benefit </li>
<li>This implies judges/magistrates may be tempted to abuse this power for their own gain</li>
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The conclusion is therefore that the judiciary cannot be given any discretion lest persons unknown believe the above to be true. As such, the court charge should be compulsory. This is fairly ludicrous for several reasons.<br /><br />First, the uproar amongst the judiciary (<a href="http://www.theguardian.com/law/2015/jul/31/magistrates-resign-court-charges-encourage-innocent-plead-guilty"><b>including the resignation of magistrates</b></a>) since the charge was introduced in April 2015 makes it very clear that they DO NOT want to order the charge in many cases. As such, the suggestion that judges/magistrates might want to over-use and inappropriately apply the charge is nonsensical.<br /><br />Second, the statement implies that a) the MoJ believe the judiciary cannot be trusted to make fair and independent decisions because they may be tempted to abuse that power and b) that some other group of persons (the public maybe?) also believe this. There is no evidence to support this and it makes a mockery of centuries of judicial independence in decision-making. It undermines the judiciary. It also seems to contradict the statement that we have 'one of the finest' justice systems in the world if our judges can be so easily tempted into corruption.<br /><br />Third, it is not clear that the Criminal Courts Charge directly benefits the court system or the judiciary. In a tweet on the 28th August 2015, <a href="https://twitter.com/JackofKent"><b>@jackofkent</b></a> reported asking the MoJ whether revenue from the charge would be fed directly back into the system - they refused to answer (although I cannot find any official/alternative source for this). Beyond the vague statement that the charge will go towards the cost of 'running the courts', the MoJ have provided no detail. Where the revenue generated will end up is at present a mystery. Additionally, there is no suggestion that it will personally benefit the judiciary (e.g. by contributing to salaries - and let's not forget that magistrates are unpaid volunteers).<br /><br />Fourth, the MoJ's solution is wildly over-the-top. It imposes a blanket charge that is inflexible, frequently unfair, and punishes those without means. The charge can be grossly disproportionate to the offence in question (<a href="http://www.howardleague.org/criminal-courts-charge/"><b>see the Howard League's campaign on this</b></a>). To compensate for some vague impression that the judiciary would 'abuse' their discretion, the MoJ have chosen to remove it entirely rather than temper it. More rational responses would include:<br /><br />a) Giving authority to a non-judicial figure for imposing the charge<br />b) Providing a set of strict guidelines on imposing the charge<br />c) Introducing some kind of gradation based on means<br />d) Not introducing the policy at all</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><br />Finally, it is faintly surreal that the MoJ wanted to avoid the perception that judges would be making money for the court system, so are obligating them to impose it. The charge is clearly designed generate revenue. The MoJ have said that the charge exists to recoup costs and is not a 'punishment' (although this is unconvincing in practice). By this logic, it must thus exist simply for the financial benefit of the court system - and judges are compelled to help with this. This seems equivalent to saying:<br /><br /><i>'We don't want you to <u>choose</u> to steal that old lady's handbag - so we're going to <u>force</u> you to do it.'</i><br /><br />This is, quite simpy, irrational.<br /><br /> -----------<br /><br />FORENSICS IN CRIMINAL LEGAL AID: A HARD ROAD AHEAD?<br /><br />In late August 2015, <a href="http://www.lawgazette.co.uk/law/departing-forensic-specialist-highlights-legal-aid-plight/5050669.fullarticle"><b>forensic science specialist Contact Traces announced that it would no longer be providing its services in criminal proceedings in England and Wales</b></a>. In its departing statement, it expressed its dismay at the disappointing state of criminal legal aid and the impact that budget cuts were having on the legitimacy and effectiveness of the system. Chief Scientist Tiernan Coyle said:<br /><br /><i>‘I’d like to pay tribute to all our clients from the criminal defence sector... Over the years they have faced a daily struggle to get the necessary funds from a decimated legal aid budget; just so they can provide their clients an understanding of the strength of the scientific evidence against them – which is a fundamental human right.’</i><br /><br />Clearly, Coyle saw the role of organisations like Contact Traces as playing an essential part in upholding ther right to a fair trial and equality of arms. It is difficult to dispute this. Not only do forensic services help question a prosecution effectively; they also assist clients to engage with the justice process - they can 'understand' what they are facing and why. This may help them make a more appropriate decision as to plea, etc. Equally, the same arguments apply for foresnic services provided to the police and prosecution.<br /><br />As Coyle suggests, the ability of defence lawyers to access such services - and thus do their job - is diminishing with the criminal legal aid budget. For those who can, Contact Traces no longer be available to assist. Whilst alternative providers exist, one wonders how many are considering the viability of continued practice in criminal proceedings. If access to such services disappears (for both defence and prosecution), the integrity of criminal proceedings will be damaged. This should be seen as warning sign.</span><span style="font-family: Arial, Helvetica, sans-serif;">
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Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-55231172828078434882014-02-05T09:28:00.005-08:002014-02-05T09:30:30.083-08:00Making crime pay? Thoughts on defendant contributions to criminal justice costs<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">On seeing <a href="http://www.telegraph.co.uk/news/uknews/law-and-order/10619018/Criminals-will-pay-towards-own-court-case.html"><b>the Lord Chancellor's announcement today that convicted offenders will pay a contribution towards the costs of running the courts</b></a>, my mind wandered back to <b><a href="http://www.pbs.plymouth.ac.uk/PLR/vol6/Smith%20-%20Justice%20for%20Sale%20FINAL.pdf">fieldwork I conducted last year with criminal defence lawyers at the 'Justice For Sale' meeting</a>.</b> </span><span style="font-family: Arial, Helvetica, sans-serif;">One of the questions posed in the survey I distributed asked whether convicted defendants should pay a contribution towards their legally aided defence. Interestingly, a majority (64%) said 'yes', with only 31% disagreeing. </span><span style="font-family: Arial, Helvetica, sans-serif;">Whilst the two proposals - a contribution to court costs and a contribution to legal aid - are not the same, they both share the same underlying principle ('make the offender pay') and relate to costs drawn from the same pot.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Some of the reactions so far - primarily on Twitter and comments on news articles - have criticised the proposal. One might be led to believe that the idea of the defendant making a contribution is therefore not supported by those within the legal profession. </span><span style="font-family: Arial, Helvetica, sans-serif;">However, the response in my fieldwork suggests that the idea of a convicted client paying for the costs of prosecuting them (in some form) is not opposed as strongly as one might think. Indeed, <b>i<a href="http://www.southeastcircuit.org.uk/images/uploads/SEC%20response%20to%20the%20MoJ%20Transforming%20Legal%20Aid%20Consultation%20Paper%20CP142013.pdf">n their response to the 'Transforming Legal Aid' consultation</a></b>, the South East Circuit of the Bar proposed the very same idea now announced by the Lord Chancellor.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The criticisms levelled at both the Lord Chancellor's proposal and my hypotethical one (by respondents to the survey) are similar. Foremost among them is the practicality of enforcing such orders against defendants who cannot afford to pay or may have to be chased for payment. </span><span style="font-family: Arial, Helvetica, sans-serif;">The former problem renders such proposals redundant - if a defendant has no money, the order is meaningless. In the event that enforcement costs more than the amount sought, the latter problem means that such proposals are a false economy. Ultimately, both problems risk making a farce of such orders.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This would not, of course, be universally true. The South East Circuit paper presents arguments suggesting that enforcement could be achievable in an economic way. It has also been pointed out that enforcing such orders against wealthy offenders - who have benefited financially from their crimes - could be more realistic. </span><span style="font-family: Arial, Helvetica, sans-serif;">However, this is not without issues. <a href="http://www.theguardian.com/law/2013/dec/17/national-audit-office-criminal-confiscation-orders"><b>There currently appears to be a discrepancy between costs/surcharges ordered by courts (e.g. confiscation orders) and their actual enforcement</b></a> - in short, only a small proportion of the proceeds of crime are actually being reclaimed. Adding more orders to the bill seems pointless.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">In addition, one could argue that wealthy offenders are more likely to be able to 'hide' assets; a protection not so readily available to indigent offenders. This infers that such proposals could disproportionately penalise those with fewer assets. These defendants are also likely to be of a lower cost to the system than wealthy ones, who may be involved in complex and costly trials for fraud or drug offences, for example. </span><span style="font-family: Arial, Helvetica, sans-serif;">Moreover, one might argue that certain costs (e.g. legal representation) could be paid for by wealthy offenders from their own assets, rather than freezing those assets and compelling an application for legal aid - which must then be recouped by the state at a later stage.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">In general, the addition of another cost for offenders to pay - in addition to the existing victim surcharges and prosecution costs - seems needlessly complex and bureaucratic. It may well be that administering such orders will cost more than they are worth. If, as proposed in the fieldwork, a legal aid cost were also added, the system would seem rather ridiculous. </span><span style="font-family: Arial, Helvetica, sans-serif;">Perhaps all of these costs could be rolled into a single order, distributed later on. Maybe, in practice, this is the reality; maybe to do so would also be costly, since some authority would have to be responsible for pursuing and distributing the money reclaimed amongst the beneficiaries. Perhaps the proceeds of this 'single order' should be returned straight to central funds, with the increased income allowing for increased funding to the CPS, HM Courts and Tribunals and legal aid providers, with an automatic payout to victims. One suspects that the individual beneficiaries would object, on the basis that they would never see the money.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">A last thought. Since the courts service - including the payment of staff, running of the estate, etc. - exists in perpetuity and regardless of whether a defendant is convicted or not, is it really fair to charge convicted offenders for its operation? Those who are acquitted after a trial get equal use from them. They exist as a public service for the good of society, whether people are engaged with the system or not. </span><span style="font-family: Arial, Helvetica, sans-serif;">In contrast, were a defendant to plead not guilty, obtain the benefit of legally aided defence representation, and then be convicted, he or she would have created a cost that would not have existed had he or she pleaded guilty. In this circumstance, it seems fair to ask for a contribution towards the cost of a service. </span><span style="font-family: Arial, Helvetica, sans-serif;">Then again, the same scenario means electricity, heating and staff costs which could have been avoided.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Clear opposition to the Lord Chancellor's proposal amongst the legal profession would contrast with the responses in </span><span style="font-family: Arial, Helvetica, sans-serif;">my fieldwork. This</span><span style="font-family: Arial, Helvetica, sans-serif;"> might be regarded by cynics as stemming from self-interest: convicted clients can pay for my costs but not those of the courts. This is probably unfair and inaccurate. No respondents expressed the view that costs should specifically benefit them - merely that contributions could help fund the justice system. Moreover, the contribution would likely be so small as to make little direct difference to the income of individual providers.</span></div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-62574295207957658162014-01-21T08:23:00.005-08:002014-01-21T08:35:15.611-08:00Speculating on the Public Defender Service: Some Questions<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">In an interesting move, the Ministry of Justice (MoJ) today <b><a href="http://www.justice.gov.uk/legal-aid/newslatest-updates/crime-news/public-defender-service-appoints-two-more-qcs">announced the appointment of two QCs to the Public Defender Service (PDS).</a></b> It also posted <b><a href="https://www21.i-grasp.com/fe/tpl_moj01.asp?newms=jj&id=36669">an advertisement to recruit more lawyers to the organisation.</a></b></span><span style="font-family: Arial, Helvetica, sans-serif;"> This follows the announcement of </span><b style="font-family: Arial, Helvetica, sans-serif;"><a href="http://www.justice.gov.uk/legal-aid/newslatest-updates/crime-news/pds-appoints-head-of-advocacy">a new Head of Advocacy in October 2013</a></b><span style="font-family: Arial, Helvetica, sans-serif;">. </span><span style="font-family: Arial, Helvetica, sans-serif;">The PDS was created in 2001; it provides publicly-funded criminal defence services and is an arm of the state. Therefore, PDS lawyers are state employees with fixed salaries, much like the Crown Proesecution Service (CPS), whereas private firms of solicitors and the self-employed Bar - who supply the majority of defence services - are akin to independent contractors, paid with public money. The PDS is a small organisation. It has only four offices - in Cheltenham, Darlington, Pontypridd and Swansea - reduced from eight (Liverpool, Chester, Birmingham, Middlesbrough have all closed). The announcement has quickly generated controversy and drawn criticism, from </span><b style="font-family: Arial, Helvetica, sans-serif;"><a href="http://www.legalfutures.co.uk/latest-news/government-opens-new-front-criminal-legal-aid-fight-bulking-public-defender-service">the Law Society</a></b><span style="font-family: Arial, Helvetica, sans-serif;"> as well as </span><b style="font-family: Arial, Helvetica, sans-serif;"><a href="http://obiterj.blogspot.co.uk/2014/01/independent-bar-v-public-defender.html">the blogs and Twitter accounts of lawyers</a>.</b><span style="font-family: Arial, Helvetica, sans-serif;"> </span><span style="font-family: Arial, Helvetica, sans-serif;">The announcement raises a number of interesting questions, some of which do not necessarily have clear answers:</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Why are the Government investing money in expanding the PDS, whilst proposing fee cuts for all private criminal defence suppliers?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Should more money be invested in a service <b><a href="http://www.law.cf.ac.uk/research/pubs/repository/1622.pdf">which has been criticised in the past for being excessively expensive?</a></b></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Is the Government aiming to rebuild the PDS to its original size and beyond?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Does the Government want to exert more control over the operations of criminal defence lawyers by making them state employees?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Is this an overt indication that the Government would prefer criminal defence services to be delivered by an arm of the state?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Is this a first step towards a US-style universal public defender service <b><a href="http://www.theatlantic.com/national/archive/2013/10/how-much-does-a-public-defender-need-to-know-about-a-client/280761/">(which has been much criticised in recent years)?</a></b></span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">- Why have the Government not explained their justifications for these appointments at a time of proposed contraction in the defence services sector?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Does the expansion of the PDS, a public entity, stand in contrast to both the ideology and practice of the Coalition?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Is the timing of the announcement designed to undermine current opposition to legal aid reforms, perhaps representing a threat that work can be taken away from the private sector?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Does active recruitment suggest the Government are preparing for strikes by defence lawyers, which the PDS will be used to cover?</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">- Is the Government poaching key players, in the hope that others will follow? Is it attempting to create divisions between opponents of the reforms?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Will the temptation of a guaranteed salary and benefits (e.g. pension, holiday, etc.) tempt private sector lawyers away?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Why has a high-profile circuit leader decided to leave the private sector for the PDS?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Considering two of the most recent appointments (David Aubrey and Gregory Bull), is there some link between the Welsh Circuit and the expansion of the PDS?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- What position have the two QCs been appointed to? Will they simply be advocates, or are they tasked with any management/business duties?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Is it wise or fair to appoint QCs on high wages to an organisation that currently provides a very small proportion of criminal defence services?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Do these particular appointments contradict <b><a href="http://www.theguardian.com/law/2014/jan/06/courts-close-england-wales-lawyers-legal-aid-cuts">the Government's implied attitude towards barrister fees i.e. that too many are earning too much?</a></b></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- What sort of clients will QCs be serving? Will they be involved in VHCC case work? How frequently is high-value work undertaken by the PDS?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Does the PDS have a monopoly in its operating regions? Does this damage quality of service because of a lack of competition?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- What current evidence is there that the PDS provides benchmarking for quality standards, as claimed by the Government in its 'Transforming Legal Aid' consultation?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Does criticism of the PDS by privately employed lawyers stem from a fear of competition? Is the private sector truly as competitive as it claims to be?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Is there </span><span style="font-family: Arial, Helvetica, sans-serif;">an argument to be made that the PDS will provide a guarantee of services to clients should private firms and chambers close in the wake of cuts?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- In the long-term, can the PDS generally pay wages that will attract talent to publicly funded criminal defence work?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Could a well-funded, properly managed, universal public defender service, with a robust ethical framework and competitive aspects, be as effective as the private sector? Is this a realistic goal?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- How robust would ethical protections for clients be in an expanded PDS? For example, how would the Cab Rank principle cope, how 'zealous' would representation be?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Would an expanded PDS dilute the independence of advocates, employed as they are by the state?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Will clients be able to fully trust state-appointed defence lawyers?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Will fluctuating pressure on public funding directly impact on the behaviour of lawyers via their superiors - for example, in making plea decisions, accepting clients, use of time for preparation of a case, travel, etc.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Are the interests and aims of the PDS and the private sector so different as to prevent co-existence and cooperation?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Considering its current size, would significant expansion of the PDS not take an enormous amount of financial investment and time? Are the Government (and subsequent Governments) willing to commit to this long-term?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Would the expansion of the PDS require a large shift in clients away from their familiar lawyers? If so, would this create issues of trust between lawyers and clients? Otherwise, would there need to be a simultaneous shift of lawyers and clients to the PDS?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- If the Government is planning to expand the PDS, is it time for a fresh, independent assessment of its effectiveness and value for money?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Any thoughts on these and any other questions would, of course, be welcome !</span></div>
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Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-63709652456251966202014-01-02T07:54:00.000-08:002014-01-03T05:50:41.464-08:00Earnings of the Criminal Bar: It's all about timing...<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">With impending strikes across England and Wales by criminal barristers on January 6th, the Ministry of Justice has chosen to use the first working day of 2014 for a not-so-subtle pre-emptive 'strike' of its own. <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/269061/laa-barrister-spend.pdf"><b>The MoJ has released figures detailing the earnings of criminal barristers in 2012/2013.</b></a> The timing is clearly relevant. Whilst one might argue that the beginning of the year is a logical time for publishing such information, a search of the database of Government publications in recent years reveals that no such equivalent statistical release has occurred - not at the beginning of the year or, in fact, at all. As such, collating this information has presumably been specifically commissioned with both target (criminal barristers) and timing (prior to their strike) in mind.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The main findings that will likely be highlighted by the Government are the mean and median earnings - £72,000 and £56,000 respectively. Whilst the explicit purpose of the document is to provide the public with an idea of what criminal barristers' earned last year, I would argue that the implict purpose is to suggest that barristers aren't doing too badly financially. <b><a href="http://www.bbc.co.uk/news/business-20442666">After all, £56,000 a year is more than double the average national salary.</a> </b>The logical progression from this conclusion would be - 'how can barristers justify striking over fee cuts when they earn THAT MUCH??' The timing of this publication strongly suggests that</span><span style="font-family: Arial, Helvetica, sans-serif;"> invoking such a train of thought is the intention.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Importantly, the document clearly underlines the dangers of misinterpretation and the caution with which such figures should be treated. Factors that should be considered include: that the figures may represent several years worth of earnings; that VAT and disbursements (such as travelling expenses) need to be considered; that barristers must cover professional overheads (e.g. a proportion payable to their Chambers); and that the majority of barristers are self-employed and must deduct income tax and national insurance contributions from gross earnings. Moreover, other factors not mentioned should be considered. Self-employed barristers do not have state pension provision and so need to account for this from the earnings above. Barristers are also compelled by the Bar Standards Board to take out professional indemnity insurance - another cost to deduct. </span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">When considering the amounts earned, one must also remember that the work undertaken by barristers varies enormously in complexity. Very High Cost Cases are usually lengthy and technically challenging, representing the most difficult work criminal barristers can undertake. Harder work should mean a higher reward. Finally, barristers - like similar professionals - have trained for many years and undertaken extensive education in order to serve the criminal justice system, building up very large debts in the process. It seems only fair that such commitment, to a profession that many do not have the skill or determination to enter, should lead to a higher than average salary.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">If one deducts the proportions above and weighs the indirect factors mentioned, £56,000 (as an average) begins to look a lot more modest. Add to this the stressful and sometimes traumatic nature of the work, and you have a salary that seems to undervalue barristers. The question is - will the Government, in discussing the findings, mention these factors or will they simply highlight the headline figures? One suspects the latter will occur. If so, this will surely be an attempt to undermine the strike action - which the Bar insists is about preserving a functioning justice system rather than protecting their salaries. One must, of course, consider this statement carefully too; it is rare for a group to strike for entirely altruistic reasons. But the implication that 'fat cat' barristers are striking over pay whilst earning large amounts is obviously misleading and underhand. It is also the oldest trick in the book. If the Government choose to pursue this tactic in the guise of balanced statistical analysis, it will surely be a new low.</span></div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-68295208170052002722013-12-17T06:26:00.002-08:002013-12-18T04:46:19.449-08:00Law Society vote of 'no confidence' - is unity the latest casualty of war?<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;"><a href="http://www.pbs.plymouth.ac.uk/PLR/vol6/Smith%20-%20Justice%20for%20Sale%20FINAL.pdf"><b>In fieldwork I conducted In May 2013 at the 'Justice For Sale' meeting of criminal defence lawyers</b></a>, 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 <a href="https://www.gov.uk/government/consultations/transforming-legal-aid-delivering-a-more-credible-and-efficient-system"><b>the Ministry of Justice's legal aid reforms</b></a>.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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, <b><a href="http://www.lawgazette.co.uk/practice/no-confidence-vote-passes-at-special-general-meeting/5039204.article">today's Vote of No Confidence saw a near 50/50 split</a> </b>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.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Perhaps the recriminations can wait until later, whilst there is still a war to be won?</span></div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-25863736412032239502013-12-02T08:10:00.004-08:002013-12-02T08:14:09.694-08:00VHCC fee cuts: A sign of things to come in criminal defence work?<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">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.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif; text-align: justify;">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.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">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. </span></div>
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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.</div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
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Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-24523225725698722342013-06-07T05:30:00.000-07:002013-06-07T05:32:29.672-07:00Doctor Grayling: A Short Story<br />
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<span style="font-family: Helvetica Neue, Arial, Helvetica, sans-serif;">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 ! </span></div>
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<span style="font-family: Helvetica Neue, Arial, Helvetica, sans-serif;">“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.</span></div>
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<span style="font-family: Helvetica Neue, Arial, Helvetica, sans-serif;">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?</span></div>
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<span style="font-family: Helvetica Neue, Arial, Helvetica, sans-serif;">“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!!”</span></div>
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<span style="font-family: Helvetica Neue, Arial, Helvetica, sans-serif;">“Now, now, quiet down” says Doctor Grayling ,“I’m just doing my job. Patients just don’t know what’s good for them sometimes !”</span></div>
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<span style="font-family: Helvetica Neue, Arial, Helvetica, sans-serif;">THE END (Probably)</span></div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-27198775451810654602013-06-04T08:44:00.001-07:002013-06-04T08:44:52.682-07:00My response to the 'Transforming Legal Aid' ConsultationDear Sir/Madam,<br /><br /><div style="text-align: justify;">
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.</div>
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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.</div>
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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.</div>
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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. </div>
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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. </div>
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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.</div>
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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.</div>
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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.</div>
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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. </div>
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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.</div>
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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. </div>
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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.</div>
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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.</div>
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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.</div>
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I am also concerned, in the case of barristers, that the proposals will seriously undermine Rule 303(a) of the Bar Code of Conduct:</div>
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<i>‘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’</i></div>
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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.</div>
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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.</div>
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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. </div>
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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.</div>
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Kind Regards,</div>
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Dr Tom Smith</div>
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Plymouth Law School</div>
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Plymouth University</div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-59402178691203611242013-05-14T06:41:00.001-07:002013-05-15T09:03:18.773-07:00Effective and fair justice means that even Stuart Hazell gets a defence lawyer<div style="text-align: justify;">
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. </div>
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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.</div>
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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.</div>
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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.<b> </b>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. </div>
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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?</div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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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?</div>
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Defence lawyers are important - even for those we hate. Not just because it's fair, but because it is effective.</div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-44702403944683844152013-05-14T04:01:00.003-07:002013-05-14T04:04:46.944-07:00Lord Thomas gives an excellent summary of the arguments against the criminal legal aid reforms<div style="text-align: justify;">
<span style="font-family: inherit;"><i>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:</i></span><br />
<span style="font-family: inherit;"><i><br /></i></span></div>
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<b><span style="font-family: inherit;">Lord Thomas of Gresford</span></b></div>
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<span style="font-family: inherit;">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.</span></div>
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<span style="font-family: inherit;">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. </span></div>
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<span style="font-family: inherit;">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. </span></div>
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<span style="font-family: inherit;">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: </span></div>
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<span style="font-family: inherit;">“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”. </span></div>
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<span style="font-family: inherit;">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.</span></div>
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<span style="font-family: inherit;">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. </span></div>
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<span style="font-family: inherit;">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. </span></div>
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<span style="font-family: inherit;">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. </span></div>
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<span style="font-family: inherit;">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. </span></div>
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<span style="font-family: inherit;">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. </span></div>
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<span style="font-family: inherit;">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? </span></div>
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<span style="font-family: inherit;">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. </span></div>
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<span style="font-family: inherit;">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. </span></div>
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<span style="font-family: inherit;">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. </span></div>
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<span style="font-family: inherit;">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.</span></div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-28740016934908713712013-05-02T04:44:00.004-07:002013-05-09T03:48:05.440-07:00Insert 'truck' metaphor here: Why run Stobart defence lawyers off the road?<div style="text-align: justify;">
As the <a href="http://www.lawgazette.co.uk/news/stobart-bid-pct-work"><b>Law Gazette</b></a> and <a href="http://www.legalfutures.co.uk/latest-news/stobart-barristers-sets-sights-criminal-legal-aid-contract"><b>Legal Futures</b></a> 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. </div>
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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 <a href="https://consult.justice.gov.uk/digital-communications/transforming-legal-aid"><b>'Transforming Legal Aid' consultation</b></a> to show their hand. It is suggestive that they, like the Government, see the whole process as a 'done deal'.</div>
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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. </div>
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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?</div>
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The company <a href="http://www.lawgazette.co.uk/news/stobart-offers-pay-you-go-barristers-no-plans-be-abs"><b>launched Stobart Barristers last year</b></a> 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.</div>
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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.</div>
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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.</div>
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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'. </div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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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. </div>
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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.</div>
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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 <a href="http://www.telegraph.co.uk/finance/newsbysector/transport/9988415/Stobart-chief-Andrew-Tinkler-to-face-contempt-proceedings.html"><b>currently embroiled in allegations of contempt of court</b></a> for making false statements during legal proceedings against a whistleblower (covered in more detail in <a href="http://lawyerwatch.wordpress.com/2013/04/12/no-truck-with-abss-and-litigants-in-person-stobarts-in-hot-water/"><b>Richard Moorhead's blog</b></a>). </div>
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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?</div>
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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. </div>
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Whether these summaries are accurate might well be disputed by both sides - which will win out remains to be seen.</div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com3tag:blogger.com,1999:blog-6688692696966239023.post-49673842254188059652013-04-26T06:42:00.003-07:002013-04-29T02:51:31.246-07:00A Break in Play: Who needs these Human Rights anyway?<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">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?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- 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?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- 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?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- 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?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- 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??</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- Privacy is overrated. After all, most people don't really need it do they? What have we all got to <u>hide</u>?? 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 . . .</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">- 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 . . .</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-92114043866286877792013-04-25T08:52:00.001-07:002013-04-29T02:51:19.990-07:00A Technical Defence: Lawyers fight for justice, armed with tweets and blogs<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-84809572359888426692013-04-12T04:13:00.004-07:002013-04-12T04:17:57.226-07:00Price-Competitive Tendering for Criminal Defence - Some questions and comments<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
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<i>'Transforming legal aid: delivering a more credible and efficient system'</i></div>
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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.</div>
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<i>'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.'</i></div>
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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. </div>
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<i>'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.'</i></div>
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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.</div>
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<i>' . . . 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.'</i></div>
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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.</div>
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<i>'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.'</i></div>
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This proposal has potential issues - how neutral and fair will an internal procedure be? Is eliminating external scrutiny likely to encourage lawful practice?</div>
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<i>'This is a comprehensive package of measures to restore the public’s faith in the system.'</i></div>
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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.</div>
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<i>'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.'</i></div>
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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'.</div>
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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.</div>
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<i>'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.'</i></div>
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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.</div>
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<i>'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.'</i></div>
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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. </div>
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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.</div>
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<i>'In short, the reforms outlined in this document both boost public confidence in and reduce the cost of the legal aid system.'</i></div>
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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.</div>
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<i>'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.'</i></div>
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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?</div>
</span>Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-64696016217527629852013-04-09T07:22:00.003-07:002013-04-09T08:17:56.430-07:00Price-Competitive Tendering: Grayling Throws Down the Gauntlet<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">Today (April 9th 2013), Minister for Justice Chris Grayling announced<a href="http://www.justice.gov.uk/news/features/making-legal-aid-fairer-for-taxpayers"> <b>the long anticipated consultation</b></a> (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).</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Below is Grayling's summary of the aims, with telling references underlined:</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><i>'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 <u>legal aid is still costing too much</u>. It is not <u>free money, it is paid for by hard-working taxpayers</u>, so we must ensure we get the very <u>best value for every penny spent</u>.</i></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><i>'<u>Some lawyers earn hundreds of thousands of pounds from just one or two cases</u>, and these cases can themselves cost up to £15 million each. And <u>we've all heard of wealthy criminals with stashed millions</u> getting legal aid to pay for their defence or of prisoners given legal aid <u>unnecessarily</u>.</i></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><i>'I am clear <u>we will continue to uphold everyone's right to a fair trial </u>but that doesn't mean we shouldn't look again at how the system which provides this is operated.'</i></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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 <a href="https://docs.google.com/file/d/0B8dY-3hzSftCMng5TFBkaFdSb3M/edit"><b>the Ministry of Justice budget represents one of the smallest in Government</b> </a>(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'.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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).</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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. </span></div>
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Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-45520050758009060482013-04-04T03:37:00.004-07:002013-04-04T03:47:03.546-07:00In Defence of the Defence: Why Counsel For The Accused Deserve More Academic Attention<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">Criminal defence lawyers advance and protect some of the most fundamental rights of citizens in liberal democratic societies.</span><a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote1" style="font-family: Arial, Helvetica, sans-serif;"><b>1</b></a><span style="font-family: Arial, Helvetica, sans-serif;"> 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.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote2"><b>2</b></a> 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’<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote3"><b>3</b></a> – 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.’<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote4"><b>4</b></a> 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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote5"><b>5</b></a> 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’.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote6"><b>6</b></a> 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’.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote7"><b>7</b></a> 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’,<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote8"><b>8</b></a> 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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote9"><b>9</b></a> 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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote10"><b>10</b></a></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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?”’.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote11"><b>11</b></a> 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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote12"><b>12</b></a> 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’.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote13"><b>13</b></a> 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 </span><span style="font-family: Arial, Helvetica, sans-serif;">Kemp,</span><a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote14" style="font-family: Arial, Helvetica, sans-serif;"><b>14</b></a><span style="font-family: Arial, Helvetica, sans-serif;"> 54% of a sample of respondents who had been arrested reported that they sought legal assistance at the police station.</span><a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote15" style="font-family: Arial, Helvetica, sans-serif;"><b>15</b></a><span style="font-family: Arial, Helvetica, sans-serif;"> For those respondents who did not, a major reason for declining representation was the belief that legal assistance was unnecessary.</span><a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote16" style="font-family: Arial, Helvetica, sans-serif;"><b>16</b></a><span style="font-family: Arial, Helvetica, sans-serif;"> 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.</span><a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote17" style="font-family: Arial, Helvetica, sans-serif;"><b>17</b></a><span style="font-family: Arial, Helvetica, sans-serif;"> Beyond this, one can only speculate about the level of awareness members of the public have of this right.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote18"><b>18</b></a> 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.</span></div>
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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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote19"><b>19</b></a> 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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote20"><b>20</b></a>These 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’<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote21"><b>21</b></a> and ‘bizarre’,<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote22"><b>22</b></a> 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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote23"><b>23</b></a> 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.</div>
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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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote24"><b>24</b></a> 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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote25"><b>25</b></a> 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.<a href="https://owa.uwe.ac.uk/OWA/WebReadyViewBody.aspx?t=att&id=RgAAAACYcOtDsLAXSLVPCsEBXn%2foBwAiFAzdug7qR4PXaG4MeMPbAAAALdLrAAA2HWsaK20ZQIGVXpR3JUPyAHlB5oNyAAAJ&attid0=EACwiYKYHg2STpNGlgeSWaGC&attcnt=1&pn=1#footnote26"><b>26</b></a></div>
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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.</div>
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<span style="font-size: x-small;">1 See R v Samuel [1988] QB 615.</span></div>
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<span style="font-size: x-small;">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.</span></div>
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<span style="font-size: x-small;">3 Ibid., Preamble</span></div>
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<span style="font-size: x-small;">4 Ibid., at para. [1]</span></div>
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<span style="font-size: x-small;">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.</span></div>
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<a href="https://owa.uwe.ac.uk/OWA/redir.aspx?C=697658194095433898830044f5b11eef&URL=http%3a%2f%2fdaccess-dds-ny.un.org%2fdoc%2fUNDOC%2fGEN%2fV11%2f878%2f15%2fPDF%2fV1187815.pdf%3fOpenElement"><span style="font-size: x-small;">http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V11/878/15/PDF/V1187815.pdf?OpenElement</span></a></div>
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<span style="font-size: x-small;">6 UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9:<a href="https://owa.uwe.ac.uk/OWA/redir.aspx?C=697658194095433898830044f5b11eef&URL=http%3a%2f%2fwww.unhcr.org%2frefworld%2fdocid%2f3ae6b3a84.html">http://www.unhcr.org/refworld/docid/3ae6b3a84.html</a> (accessed 25 May 2011)</span></div>
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<span style="font-size: x-small;">7 Salduz v Turkey 36391/02 [2008] ECHR 1542 at para. [51]</span></div>
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<span style="font-size: x-small;">8 Ibid., at para. [55]</span></div>
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<span style="font-size: x-small;">9<a href="https://owa.uwe.ac.uk/OWA/redir.aspx?C=697658194095433898830044f5b11eef&URL=http%3a%2f%2fwww.se2009.eu%2fen%2fthe_presidency%2fabout_the_eu%2fjustice_and_home_affairs%2f1.1965.html">http://www.se2009.eu/en/the_presidency/about_the_eu/justice_and_home_affairs/1.1965.html</a></span></div>
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<span style="font-size: x-small;">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)).</span></div>
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<span style="font-size: x-small;">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.</span></div>
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<span style="font-size: x-small;">12 Arguedas C., ‘Duties of a Criminal Defense Lawyer’ (1996-1997) 30 Loyola of Los Angeles Law Review 7, 9.</span></div>
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<span style="font-size: x-small;">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.</span></div>
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<span style="font-size: x-small;">14 ‘Transforming Legal Aid: Access to criminal defence services’ (Legal Services Commission, 2010).</span></div>
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<span style="font-size: x-small;">15 Ibid., 33.</span></div>
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<span style="font-size: x-small;">16 Ibid., 5.</span></div>
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<span style="font-size: x-small;">17 Ibid., 35-40.</span></div>
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<span style="font-size: x-small;">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.</span></div>
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<span style="font-size: x-small;">19 Rule 1.29(a), Criminal Procedure Rules 2011/1709</span></div>
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<span style="font-size: x-small;">20 Rules 1.1(2)(e), 3.2(2)(a), 3.10(c)(i), 3.10(c)(vi), 3.10(c)(viii) respectively.</span></div>
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<span style="font-size: x-small;">21 Baksi C., ‘Opponents win custody advice concession in “un-costed and unjust” LASPO’, Law Society Gazette, 26th January 2012.</span></div>
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<span style="font-size: x-small;"><a href="https://owa.uwe.ac.uk/OWA/redir.aspx?C=697658194095433898830044f5b11eef&URL=http%3a%2f%2fwww.lawgazette.co.uk%2fnews%2fopponents-win-custody-advice-concession-un-costed-and-unjust-laspo">http://www.lawgazette.co.uk/news/opponents-win-custody-advice-concession-un-costed-and-unjust-laspo</a>.</span></div>
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<span style="font-size: x-small;">22 Bowcott O., ‘Means testing of suspects held in police stations dropped from bill by coalition’, The Guardian, 25th January 2012.</span></div>
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<span style="font-size: x-small;"><a href="https://owa.uwe.ac.uk/OWA/redir.aspx?C=697658194095433898830044f5b11eef&URL=http%3a%2f%2fwww.guardian.co.uk%2flaw%2f2012%2fjan%2f25%2fmeans-testing-suspects-dropped-from-bill">http://www.guardian.co.uk/law/2012/jan/25/means-testing-suspects-dropped-from-bill</a>.</span></div>
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<span style="font-size: x-small;">23 Baksi, op. cit.</span></div>
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<span style="font-size: x-small;">24 Riddle H., ‘The Stop Delaying Justice! Initiative’, Law Society Gazette, 19th January 2012.</span></div>
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<span style="font-size: x-small;"><a href="https://owa.uwe.ac.uk/OWA/redir.aspx?C=697658194095433898830044f5b11eef&URL=http%3a%2f%2fwww.lawgazette.co.uk%2fin-practice%2fpractice-points%2fthe-stop-delaying-justice-initiative">http://www.lawgazette.co.uk/in-practice/practice-points/the-stop-delaying-justice-initiative</a>.</span></div>
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<span style="font-size: x-small;">25Cave R., ‘Lawyers claim new policy causes miscarriages of justice’, BBC News UK, 14thApril 2012. <a href="https://owa.uwe.ac.uk/OWA/redir.aspx?C=697658194095433898830044f5b11eef&URL=http%3a%2f%2fwww.bbc.co.uk%2fnews%2fuk-17690404">http://www.bbc.co.uk/news/uk-17690404</a>.</span></div>
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<span style="font-size: x-small;">26 See Brett v Director of Public Prosecutions [2009] EWHC 440 (Admin).</span></div>
</span></div>
<br />Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-15911433504807301032013-03-19T05:27:00.004-07:002013-03-19T05:28:17.855-07:00A Mild Winter? Sgt Danny Nightingale's 'Improper' Defence <div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">On the 13th March 2013, Sgt Danny Nightingale was freed by the Court of Appeal, after his conviction for possession of a firearm was quashed and a retrial ordered. The basis for this decision was the 'improper pressure' applied to Nightingale to plead guilty prior to the military trial he was entitled to. The clear implication of this was that Nightingale's defence lawyer, Ian Winter QC, had failed in his duty to adequately protect his client's interests.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The case is interesting not only as an examination of the proper role of the defence lawyer, but also as a warning about the relationship between defence lawyers and judges. Winter's role as a defence lawyer was to protect the interests of the client; this should include presenting the case the client wants (obviously avoiding perjury) and vigorously questioning the prosecution. As far as I am aware, defence lawyers in Courts Martial are bound by the same ethical codes as your average criminal defence lawyer (SRA Code of Conduct, BSB Code of Conduct, etc). If there is a separate code for military lawyers, I would be keen to read it. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Regardless, one can presume that as a minimum Winter would be obliged to fulfil the reasonable wishes of the client by presenting the defence he desires. It is pretty well established that Danny Nightingale claimed to be innocent; this was widely covered by the media, and included a high profile campaign by his wife. It is thus puzzling that his lawyer suggested he plead guilty (at least by implication). Winter explained that the judge had told him that a 5 year sentence was likely should Nightingale proceed to defend himself and be convicted. In contrast, a guilty plea would be unlikely to attract a custodial sentence. The Court of Appeal suggested that, with the cooperation of the defence lawyer, this amounted to 'improper pressure' on the defendant.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">As such, Winter arguably failed to perform his duty - by acting as a messenger for the judge, he was complicit in a not terribly subtle attempt to end matters quickly by extracting a guilty plea. This seemed to be in direct contrast to Nightingale's repeated protestations of innocence. Winter helped facilitate the interests of the Court rather than those of the defendant, failing in the requirement to protect and defend the client. Certainly, this was far from the zealous advocacy an embattled defendant, claiming innocence, would need. The result, of course, was a miscarriage of justice which now appears to be rectified.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This sort of plea bargaining has now become a fairly common feature of the 'guilty plea' culture encouraged in England and Wales. Various carrots and sticks have been created to encourage guilty pleas, and although many will be accurate and save time and money, plenty will result in an unfair and unjust result. The defence lawyer's role in the system is protect the defendant and ensure that a conviction is legitimate. It is highly questionable whether cooperation of this nature fulfils this brief. The entrenched incentivisation of guilty pleas has thus had a substantial impact (among many other things) on the role of the defence lawyer, diluting 'zealous' advocacy with 'cooperative' advocacy. How good this is depends on your point of view, but Danny Nightingale would probably consider it to be negative.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Finally, the relationship between defence lawyers and judges should certainly be questioned in this context. It is unclear how often judges provide an 'uninvited' indication of sentence, but the post-Criminal Procedure Rules ethos of openness, cooperation, dialogue, and focus on the 'real issues' encourages closer procedural relationships between the bench and lawyers. How close to negotiation of plea this comes is, again, not clear. Too cosy a relationship between judges/magistrates and defence lawyers - for whom saving both time and money are undeniable factors in the modern criminal justice system - is dangerous as client interests may be relegated. Danny Nightingale appears to have been a victim of too much cooperation between the Court and the defence; hopefully this sort of 'improper pressure' isn't as common in Magistrates' and Crown Courts across the land.</span></div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-27210609054089084122013-03-07T07:49:00.002-08:002013-03-07T07:51:10.778-08:00Efficient and Expeditious? Sometimes it pays to 'think twice'<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">The drive for increased efficiency and speed in criminal proceedings has been high on the agenda for many years. Those in favour (the Government, the judiciary) argue that the promotion of this culture provides better value for money for the public and focuses proceedings on the 'real issues' (as the Criminal Procedure Rules term them).</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Those who question this eternal quest for a shorter and cheaper process argue that quicker isn't necessarily better. Issues or evidence that matter can be missed. Procedures designed to safeguard rights can be truncated. What the 'real issues' are depends on who you ask. And the constant pressure for more efficiency can lead to unfair trials, subsequent appeals and more cost. Not so efficient after all.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">A good example is the recent case of <a href="http://www.familylawweek.co.uk/site.aspx?i=ed102862" target="_blank"><b><i>J (A Child) </i>[2012] EWCA Civ 1231</b></a>. Although a family case, the matter at hand was demonstrative of a danger applicable to criminal cases. The case involved a dispute between a separated mother and father over shared custody of their son. Sadly, the litigation relating to the case had dragged on for nearly a decade. The mother, a difficult woman who's 'personality characteristics . . . were putting [the child] substantially at risk' had broken off agreed custody arrangements with the father on several occasions.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Having sole custody, the mother had consented to allow periodic, temporary custody for the father. But, every few months, she would renege on the agreement, disrupting the child's contact with the father. The mother failed to provide any clear reasons as to why she repeatedly terminated the arrangements. As such, joint custody on an equal basis was imposed in order to establish a 'balance of power'.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Once again, the mother disrupted the arrangements by seeking sole custody of the child. Subsequently, the father made a similar application. The matter therefore came to the County Court before Recorder Bryan. The matter was resolved in favour of the mother and the father appealed. </span><span style="font-family: Arial, Helvetica, sans-serif;">His grounds underline the points raised earlier in this post.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The major issue, he argued, was that the Recorder - seemingly due to a desire to get through proceedings swiftly and focus on the 'real issues' - had unfairly limited his Counsel's ability to put his case. The father's lawyer had wished to cross-examine the mother on why she had repeatedly changed her stance on the father's level of contact. When the lawyer attempted to do this, the Recorder intervened, saying to the mother:</span></div>
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<i><span style="font-family: Arial, Helvetica, sans-serif;">'Do not answer the question . . . I do not see where it is going'</span></i></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The Recorder did not see the value in 'rak[ing] over all [the mother's] earlier concerns and worries'. The lawyer explained that because the mother repeatedly disrupted contact, she wished to 'get to the bottom of what the problems are', in order to finally and definitively resolve the matter. She suggested it would avoid a situation where the mother might disrupt the arrangements again (as in the past) and 'two months down the line . . . we come back to Court again and we're back to . . . square one'.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">These appear to not only be very cogent arguments, but go beyond favouring her client - they promote effciency. Yet, the Recorder stated that 'the Court . . . will want to move forward rather than linger'. The lawyer countered that this would allow the mother to 'dictate' future arrangements and that it had 'never [been] established why the previous arrangements were wrong'.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The Recorder dismissed her persistence, stating she was 'not going to gain any mileage from this line of cross-examination'. The lawyer attempted to proceed but was actively curtailed by the Recorder. The lawyer argued that this 'hamper[ed] my ability to be able to put my client's case'. The Recorder curtly responded that 'we are where we are'.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This exchange is a good example of the dangers of rushed procedure, driven by a desire to be speedy and efficient. The lawyer's point - that a pattern could be identified in the mother's conduct and examining it could help resolve future issues - was dismissed with little or no consideration because of the desire to 'move forward'.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Rightly, the father's appeal was allowed. Munby LJ felt that the issues raised 'cried out' for investigation. He considered the line of enquiry substantial and justified. Defence lawyers are often criticised for pursuing spurious points in the vain hope of raising any defence. Case management in the name of efficiency is often lauded for discouraging this behaviour. Yet, in complete contrast, Munby LJ dismissed any notion that the lawyer was attempting a 'Micawber-like' cross-examination in the 'speculative hope . . . that something might turn up.'</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">He made a point of underlining that 'a judge should stop irrelevant or time-wasting cross-examination'. However, he suggested that 'counsel is likely to have a better grasp of the inner forensic realities of the case [than the judge]'. This provides a good basis for criticising the long-running transfer of power away from the parties to the judiciary.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Judicial case management essentially adopts a top-down approach, with parties expected to comply with the expectations of the bench. Alongside the argument that the parties in an adversarial system should be able to run their own case, Munby LJ's rationale provides a good reason for judges to 'think twice' before dismissing a lawyer's line of investigation as time-wasting.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Munby LJ commended the father's lawyer, highlighting meritorious conduct that should also be considered good criminal defence practice. He congratulated her for 'doing her duty, politely but firmly standing her ground and telling the Recorder plainly that his ruling was preventing her putting her client's case.'</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This clearly demonstrates the type of fearless and persistent zealous advocacy that criminal defence clients should be provided with. A lawyer willing to incur the ire of a judge or the opponent, in order to logically and robustly present the client's case. Munby LJ concluded that it was 'a pity' that the Recorder stifled such behaviour by refusing to 'change his mind'.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><i>J (A Child)</i> is an excellent demonstration of both good defence work and bad judicial case management. It highlights the danger that single-minded devotion to an efficient, speedy, forward-moving process can present and the necessary battles that effective lawyers need to engage in.</span></div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-89225720777267329412013-03-01T06:05:00.002-08:002013-03-01T06:05:35.486-08:00Defence lawyers left out in the cold . . . again<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">Criminal Justice Minister Damian Green yesterday (28 Feb 2013) announced the membership of the new 'Criminal Justice Board' - a panel designed to examine the flaws and inefficiencies of the current criminal justice framework, adopting a 'whole system approach'. </span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Unfortunately (or perhaps deliberately) the Minister has omitted to include any direct representative of a rather important player in the process - the criminal defence lawyer. Alongside the prosecution, suspects and defendants comprise the primary party affected by the workings of criminal justice. Since defence lawyers are employed to represent them, it would seem logical and advisable to include them.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The Board includes representatives for the Police, the CPS, prisons, youth justice, the Courts, the LSC and for victims of crime (who, although clearly affected by the system, are not a formal party to the process). There is in fact room for multiple mouthpieces for the Police and Victims. In contrast, the defence perspective has no advocate on the Board. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This curious oversight is perhaps the continuation of a pattern; the criminal defence community has been excluded before. The Criminal Procedure Rules Committee has never had a direct representative of defence interests (although several members are ex-solicitors and barristers who no doubt have been defence practitioners at some stage). Defence lawyers were initially left out of consulations on the digitialisation of the criminal justice system. The defence had no representation on the short-lived post-Carter reform group spearheaded by the Attorney General at the time, Lord Goldsmith.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The exclusion of the defence community may also result from a deliberate 'deaf ears' policy adopted by successive Governments. The Coalition's single-minded quest to slash costs, shorten processes, cut corners, reduce defendant rights, expand victim involvement, and case manage the criminal process is regularly criticised.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">To invite defence lawyers into the room would likely lead to dissent - and the Government is not looking for dissenters. The fact that the Board aims to create a service that 'meets the needs of victims and the public' suggests that defendant interests do not even register on the agenda. To include their representatives would therefore be another obstacle in achieving the stated goals of the Board.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The exclusion of the defence community may also be a form of punishment. The long-running battle over QASA, OCOF and (in the past) tendering for legal aid contracts has seen an extreme polarisation of the Government and the major defence representatives such as the Criminal Bar Association and the Criminal Law Solicitors Association.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">With threatened universal strike action looming and furious diatribe eminating from the defence community (for example, see the blog of Michael Turner QC, Chairman of the CBA), the Government may be placing the rebels in the dog house.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Either way, to deliberately exile the defence community from the conversation is unjustifable and foolish (particularly considering that most of them have direct experience of the day-to-day problems the Board apparently seeks to rectify). If the Minister has simply forgotten to include them then it is outrageously incompetent.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">On a final note, it is worth mentioning that the Board includes no academic representation. Considering that many scholars and researchers dedicate their talents to examining the criminal justice system from an outside perspective, it would seem worthwhile including a representative of the academy. But perhaps they are also likely to say things that the Board don't want to hear.</span></div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-33503336542726480592013-02-26T03:15:00.001-08:002013-02-28T08:58:16.428-08:00Cost over quality - the 'secret' is out<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">This week's revelation that the CPS seemingly favour 'cost over quality' - by in instructing in-house advocates for the most profitable cases - has been greeted with strange surprise by figures including the DPP, Keir Starmer. But it should be questioned whether such incredulity is genuine; it should be no shock that that the underlying mantra of the criminal justice system is now 'cost over quality'.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">There are many clues and have been for years. The eternal drive for more 'efficiency' and 'speed' in criminal proceedings is not necessarily born of a desire to just cut out bona fide time-wasting. The very term seems to include actions that both defence and prosecution (and perhaps juries and victims) would consider necessary, including instructing experts and robust defence cross-examinations. The latter seem to be increasingly conducted under the watchful eye of magistrates and judges with equal concern for the clock. Sometimes this is good and sometimes this leads to missed evidence or truncated testimony, subsequent appeals and more money spent. Additionally, wasted costs orders are effectively used to punish 'time wasting' and deters going too far for clients.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The Criminal Procedure Rules - now the touchstone of the criminal process - are founded on principles all geared towards quicker, shorter, cheaper. The 'Stop Delaying Justice' policy is similarly oriented - often urging the defence to declare their hand before even being fully aware of the case against them. Failure to do so could mean negative inferences or WCOs.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The CPS have, for years, been under the kosh financially. The regularity of unprepared prosecutors or missing files on the day of hearings is frequently bemoaned by both judges and defence lawyerly. The email that has whipped up a storm this week betrays the key driving force behind CPS budgeting - maximise profit in order to keep the car running. How many other senior managers have sent out similar emails is unknown; but it is highly unlikely to be rare.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The Coalition Government and their predecessors are most guilty of placing cost first. The continuous slashing of legal aid disincentivises quality work and is easy to target. Fixed fees for police stations and graduated fee schemes for advocates are good examples. The drive for tender-based competition and schemes such as OCOF are causing near riotous insubordination amongst the legal profession. The near miss of means tested legal aid in the police station under LASPO also highlights where the government's priorities lie. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Other examples include Chris Grayling's recent attack on QCs (the necessary quality of whom was lauded by Lord Judge); Theresa May's proposed transfer of thousands of cases away from trained advocates to the police for prosecution; the continuous drive to push defendants out of courts and onto video camera; phone based legal advice rather one-to-one representation. There are many more.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">All are primarily justified by terms like 'efficiency', 'value for money', 'slashed bureaucracy', 'speedier justice', and so forth. Last to pass the lips are 'quality', 'high standards', 'rigour' or 'effectiveness'. Justice has become a price tag among price tags behind the Treasury's doors. And we shouldn't be suprised - the evidence surely proves it beyond reasonable doubt.</span></div>
Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-54830428275210273022013-02-13T04:06:00.004-08:002013-02-27T08:20:49.953-08:00Frances Andrade: Who to blame?<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">The sad case of Frances Andrade - who took her own life after giving evidence in court - has caused significant discussion about the treatment of victims of crime. Defence lawyers have been the primary target for criticism; but this focus is perhaps unfair. Different parts of the system exercise influence on those individuals drawn into the system, and I suspect that to blame the defendant's counsel entirely is to settle for an easy scapegoat. This post examines different 'players' in the system, with the hope of providing a more balanced analysis of what may have caused this tragic event.</span></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">The victim or 'complainant'</span></b><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Frances Andrade was a 48 year old violin teacher and mother, with a supportive family. She took her own life during the trial of Michael and Hilary Brewer, her school music teacher and his ex-wife, accused of sexually abusing Mrs Andrade whilst in her teens. Mrs Andrade left no note or explanation for her decision. She reportedly commented regularly that the process was an ordeal in which she felt she was 'on trial'.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This experience is common. Providing evidence in court is an intense process, where the reliability and credibility of a prosecution witness is likely to be questioned. There are few ways of preparing for it. However, the Youth Justice and Criminal Evidence Act 1999, created an extensive set of protections for vulnerable prosecution witnessess, most notably in sexual offences cases. These include the taping of evidence-in-chief in advance, video link testimony, protective screens, and even limitation on what lines of questioning defence lawyers can pursue.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Historic sexual abuse is extremely serious, but complex. The manipulation and exploitation of vulnerable individuals nearly always has substantial long-term implications for victims, affecting not only their life generally but often draining any desire to engage with the issue again - in short, to bury it in the past. A problematic aspect of historic cases is the near universal lack of forensic evidence, placing great emphasis on the evidence of the primary witness in a case. The combination of this pressure, the intimidating prospect of the court process, and the urge to forget the trauma present a signficant barrier to victims coming forward.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">However, reporting and prosecution of such offences now occurs much more regularly; increasingly, victims of recent and historic sexual abuse have found the courage to report their experiences, largely due to changes in the culture and attitude of both society and the legal system towards such cases and the treatment of witnesses. In all these cases, witnesses must face questioning about their allegations; but not all take the tragically terminal decision of Frances Andrade - hers is an unusual case and not necessarily indicative of a broken system.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Until the Brewers were convicted, Mrs Andrade could not be classfied as a victim. She was a complainant - an individual making an as yet unproven allegation of criminal behaviour against a defendant. This aligns with the principle of 'innocent until proven guilty'. To Mrs Andrade this would have meant nothing - she knew the truth and understandably her family and friends supported and believed her. However, society cannot simply accept as true - on trust alone - such serious allegations against another without thoroughly tested evidence. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Proof beyond reasonable doubt is required; to do any less would leave our criminal justice system in a dire mess, riddled with false allegations and convicted innocents. It is important to underline that prosecution witnesses are not the only potential victims; those falsely accused or wrongly convicted of serious criminal offences - particularly sexual offences - can and have had their lives destroyed. As such, until proven, Frances Andrade needed to be treated as a complainant and not a a victim.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Several factors appeared to influence Mrs Andrade's feelings about the prosecution of the Brewers. Some sources suggest she had never wanted the prosecution to proceed at all; it was apparently initiated by the police independently. Other reports state she refused the aforementioned special measures, determined to face the defendants in court. She had attempted to take her life on two occasions prior to the trial and, controversially, had not received therapy for her psychological wounds. Finally, the dropping of five charges against Mr Brewer closely coincided with her decision to end her life, and may have been a factor <b><a href="http://www.guardian.co.uk/uk/2013/feb/10/frances-andrade-killed-herself-lying" target="_blank">(according to this description by her husband)</a>. </b></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Whether her feelings about the case and her decisions relating to it resulted from fear, defiance, desperation, an underestimation of the intensity of the court process, or a mix of the above, is unclear. Clearly, a variety of factors deeply affected her prior to her death. It is worth remembering that the trauma inflicted upon her by the Brewers was the root cause of her death. To return to the point made in the opening paragraph of this post, to suggest that the words of the defence lawyer were the primary trigger is both speculative and misleading.</span></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">The judge</span></b><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">The judge has a crucial role to act as a guardian in cases with vulnerable witnesses. He or she must ensure that complainants are questioned fairly and with appropriate sensitivity; but equally, a judge will insist on witnesses being cross-examined robustly. Judges will neither allow the humiliation of a witness by a defence lawyer simply to score cheap points, nor will they allow a defence lawyer to shy away from hard but necessary questions. The judge has a primary duty to serve the administration of justice, which requires both prosecution and defence to present their cases.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Since the passage of the Youth Justice and Criminal Evidence Act 1999 and the introduction of the Criminal Procedure Rules in 2005, judges have been very proactive in their management of criminal trials. It is arguable, in fact, that restrictions on certain types of defence evidence (particularly sexual history) have been enforced so stringently as to exclude truly relevant evidence (see R v A (No. 2) and R v Beedall) to the detriment of the defendant and benefit of the complainant. In this context, one might conclude that the culture amongst the judicicary is generally favourable to the protection of complainants.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The judge would have rightly granted special protective measures to Mrs Andrade had she desired them. The trial judge, Martin Rudland, commented that the defence lawyer had been 'perfectly proper and correct in her examination of all the witnesses in this case'. There is little suggestion in this case that the judge failed to provide adequate protection for Mrs Andrade during the court process; to criticise the defence lawyer for excessive zeal without also criticising the judge for failing to control proceedings seems unjust.</span></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">The defendant and defence lawyer</span></b><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">The defendant or accused has a long-established right to a fair trial before an independent tribunal. Until allegations are proven via a rigorous process and to a very high standard, the defendant remains an innocent man or woman. The entitlement to present one's case allows a defendant to honestly submit evidence or argument contrary to the account of the prosecution and their witnesses.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This is justified on the bases that the innocent majority must be protected from wrongful conviction, which not only offends the rights of the blameless but fails to protect the public from the genuinely guilty. To presume the veracity of accusations in advance would greatly increase the chances of such miscarriages of justice. False allegations are made for various reasons: revenge; to deny or hide an embarrassing truth; or even due to genuine belief. In a parallel with false confessions by suspects, complainants can sincerely believe in allegations without foundation - perhaps because family, professionals or the Police have convinced them.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The Brewers were thus entitled to dispute the accusations made by Mrs Andrade. In cases of alleged historic sexual abuse, it is usually one person's word against another. Sex offences - such as rape - are very personal and usually private in their nature; hence, multiple prosecution witnesses are uncommon. Thus, the defendant and complainant engage in a one-on-one battle of credibility and reliability.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">In this sense, the Brewers' defence was almost certain to be that Mrs Andrade was lying. From a neutral point of view, this was an expected and justifiable case to make since the allegations were as yet unproven. The Youth Justice and Criminal Evidence Act 1999 prohibits defendants from cross-examining complainants in sexual offence trials. As such, the Brewers were entirely reliant on legal representation to present their case and question Mrs Andrade directly.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The defence lawyer owes a duty to promote the best interests of the defendant and present their case, lawfully and properly. Brewer's counsel, Kate Blackwell QC, is a highly experienced criminal barrister, who has prosecuted and defended in several high profile cases over a 20 year period. Blackwell is required to 'promote and protect fearlessly' a defendant's interests and rights (Bar Code of Conduct, Para. 303(a)). This should be done regardless of the defendant's character or cause, in a detached and robust manner.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The fear of offending or upsetting a complainant cannot prevent a defence lawyer doing their job. The Code explicitly prohibits questions 'which are merely scandalous or intended or calculated only to vilify, insult or annoy' (Para. 708(g)), but equally they must present the defendant's case 'without regard to his own interests or to any consequences to himself or to any other' (Para. 303(a)). The case for a defendant will almost inevitably upset a complainant because it will contradict their own - in highly sensitive cases, causing acute embarrassment or upset to a primary witness is often unavoidable. How this is presented must tread within the boundaries above; judges are quick to stop cross-examination which offends these principles (often doing so for much less - for a recent example, albeit a family case, see J (A Child) [2012]).</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The Brewers' argument was that Mrs Andrade was a liar and a fantastist; as such, Blackwell's duty was to present that case. In doing so via cross-examination, she had little option but to state directly to the complainant that she was a 'liar' and 'a fantasist'. These are, of course, horrible labels; no one would wish to be called either, and a primary issue for victims of sexual abuse is being believed. Accusations of lying and fabrication were, understandably, deeply painful for Mrs Andrade; but in a situation where a jury must decide who's account is more credible, the defence lawyer cannot be blamed for depicting the accuser as unreliable. As the trial judge stated, 'you did your job, in that you put what had to be put to the witness.'</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The assumption of a direct link between the trial and Mrs Andrade's death has led to some negative classification of Blackwell's cross-examination. Javed Khan, Chief Executive of Victim Support, characterised it as 'aggressive'; her son described it has 'hostile'; and the Home Secretary suggested it would deter complaints about sexual abuse. Others have described it as 'robust' and, as mentioned, the trial judge described her conduct as 'proper' and 'correct'. The words used by Blackwell were the central to the defence case; to avoid them for fear of offense or upset would be a dereliction of duty and might well have led to censure by the judge or even formed grounds for appeal. As Mrs Andrade's son pointed out, the defence lawyer 'challenged her personal integrity' - which is an absolute necessity.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The role-differentation that defines the defence lawyer's obligations were in fact recognised by Mrs Andrade's husband, Levene. He stated, 'I know it's not personal, she [the barrister] has to do that, she has to attack, she has to defend her client.' He went on, 'I understand. If I was put in that position as the accused, I'd want the very best fighting on my behalf'. There are few better descriptions of the role.</span></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">The Police, CPS and Victim Support</span></b><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">The Police and CPS are charged with investigating and prosecuting criminal activity; as representatives of the state, they form the other 'party', alongside the defendant, in adversarial proceedings. They also have a pastoral role, supporting complainants, witnesses and their families through the process. Victim Support provide what might be termed 'moral support' and guidance during criminal proceedings.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Although it has not been ignored, the failures of the prosecutory arm of the criminal justice system have been partially obscured by the maelstrom surrounding the defence lawyer's cross-examination of Mrs Andrade. The primary criticism is the deeply misguided decision taken by the Police to advise her not to seek counselling until after the proceedings were complete.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The apparent reasoning behind this was the fear that psychological therapy might affect the quality of Mrs Andrade's evidence in court - the implication being that a calmer, happier, and more well adjusted complainant might undermine the seriousness of the accusations in the eyes of a jury. This advice is grounded in the widely discredited myth - particularly relating to rape - that marks of a 'genuine' victim are visible distress and emotional instability.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This 'myth' has presented a substantial barrier to the pursuit of prosecutions for sexual offences for many years, particularly among police officers married to the idea that rape victims cannot be believed unless they express emotion. It is well documented that victims of rape often exhibit calm, logical and sober descriptions of their experiences. As such, this commitment to the court process as a 'sort of theatre' where the jury need to be impressed by the complainant's performance lacks a basis in evidence and is damaging to complainant well-being.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The advice provided to Mrs Andrade reinforced the myth, an approach described by former Solicitor General Vera Baird QC as 'very out-of-date', 'abysmal psychiatry' and 'an appalling misjudgment'. Although a speculative conclusion, one suspects that a lack of professional psychological help, over a two year period, during an extremely intense process, was likely to be a major causative factor in Mrs Andrade's death.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Andrade's son described how she was effectively left to 'cope on her own', with only family and friends to support her. The CPS provided a Witness Care Officer to explain the process to Frances Andrade and special measures were successfully applied for. Yet, she opted to decline them. This raises the question as to whether the CPS and Victim Support had adequately prepared her for her court appearance - reports suggest the CPS only discussed the court appearance with Mrs Andrade the day before it occurred.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">To an extent, both lack the ability to do more. The former is a busy, under-staffed, under-funded organisation primarily dedicated to case preparation and presentation. Their job is to pursue the case for the state - as distinct from the complainant. Under the adversarial system, the complainant is a witness, albeit the central source of evidence in this sort of case. But beyond the protection of special measures and pre-trial preparation - which excludes coaching - they can do little else. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Victim Support have very limited resources, with no rights of audience or intervention. They can provide a basic 'therapeutic' service by allowing complainants to articulate their thoughts and feelings, and offer guidance as to procedures and experiences, but they are neither lawyers not counsellors.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The Police's advice, however, should be seriously scrutinised. It should be questioned whether their desire to secure a conviction, by encouraging what might inaccurately be termed 'best evidence', overrode the best interests of the complainant: to seek professional help for the serious psychological problems which had clearly negatively affected her prior to and during the case. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Additionally, the suggestion that Mrs Andrade never wished to give evidence against Michael Brewer infers that she was convinced to do so - and one wonders how far the Police went to ensure that a viable case could be brought. In all likelihood, these decisions and behaviours contributed to the eventual tragedy, when they could have been avoided. </span></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">The System - is Adversarialism too cruel?</span></b><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">To pretend that the cross-examination of Mrs Andrade was not a potential factor in her death would be naive. The experience was undoubtedly humiliating, traumatic, and emotionally exhausting. As an essential feature of adversarialism, cross-examination is cruel. But it is also necessary.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The adversarial theory posits that the truth is best reached by an equal battle between opposing parties. Both 'sides' have the ability to present their accounts before an independent adjudicatory tribunal, question each other's version of events and ensure no one has, <a href="http://lawyerwatch.wordpress.com/2013/02/09/adversarial-anxieties-lets-not-stop-asking-questions/" target="_blank"><b>as Richard Moorhead terms it, 'a monopoly on truth'.</b></a></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The adversarial system thus elicits (in theory) a thoroughly tested body of evidence, judged without bias or vested interest, and secures the individual rights to both defend oneself and pursue justice for wrongs suffered. The process is undertaken orally (as much as possible) and in public, so that the accused can meet their accuser.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Cross-examination of complainants by the defence are essential to this; providing oral testimony about traumatic experiences is generally unavoidable if a prosecution is to be secured. Mrs Andrade's son commented that his mother was 'forced to relive' the awful experiences of her childhood. The sad fact is that this is a necessity in our current system.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The adversarial system in its purest form is certainly brutal - but that is rarer now. Much has changed in recent years. The aforementioned special measures and restrictions on lines of cross-examination have provided significant comfort and protection for victims; but only so much can be eliminated.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The Criminal Procedure Rules impose a duty on all parties to 'respect . . . the interests of witnesses [and] victims' and grant the judiciary substantial discretion in excluding evidence considered to be irrelevant or indulgent. Both a Charter and Code of Conduct for victim's of crime exist. Victim Support provide help and guidance to complainants, and the CPS and Police have dedicated officers designated for dealing with complainants. Complainants are also consulted prior to charge of a suspect - as Mrs Andrade was.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">All of this is worth pointing out because complainants are not formal parties to a criminal prosecution. The state charges an individual defendant, usually at the behest of the complainant (in contrast to Mrs Andrade). The matter is thus between those two parties - the complainant is a witness, but does not have formal rights. As such, all of the measures mentioned above form a signficantly more robust framework of rights than a traditional adversarial system would envisage. But they are positive and should certainly be defended.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Some have suggested that the complainant needs be more than a 'bit-player' in the process. While I would argue they already are, any suggestion that complainants should be a party should be treated cautiously. The authority of the state prosecution would be undermined; representation of the complainant may be based on emotional drives such as revenge, fear or hatred, rather than solid evidence and reasoned logic; and the supposedly equal balance between the prosecution and the defendant (who is already at a disadvantage in terms of resources and funding) would be critically affected.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The cruelty of the defence lawyer and the flawed nature of the system have been blamed for this unique but tragic incident, and calls for review and revision have already begun. But before we rush into a rash and emotional assessment of what needs to change, the whole picture should be considered. Hopefully, this comment demonstrates that adversarial criminal justice is a complex interplay of constituent parts; to some extent, its harsh realities remain unavoidable if we are to have a fair and accurate system of justice.</span></div>
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Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-29000957119489464982013-02-11T04:20:00.003-08:002013-02-11T04:22:14.685-08:00Discretion Advisable: The difficult case of Venables’ Lawyer <div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">In February 1993, 10 year-olds John Venables and Robert Thompson were convicted of the brutal murder of toddler James Bulger. Recently, presumably to tie-in with the 20th Anniversary of the event, Venables’ former defence solicitor – Laurence Lee – <a href="http://www.heraldscotland.com/news/home-news/bulger-case-lawyer-my-client-the-eight-year-old-killer-who-looked-angelic.1360046720" target="_blank"><b>gave an interview to the Herald Scotland</b></a>, raising issues about the appropriate role and attitude of a criminal defence lawyer in the police station and beyond. The interview was notable for Lee’s tendency to blur the lines between the personal and the professional in this context, and his willingness to tread dangerously close to the boundaries of client-lawyer confidentiality.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The murder of James Bulger was and remains an exceptional case, striking a universal chord across the UK. I was 7 years old at the time, only a little younger than Venables and Thompson; like anyone else, I can’t imagine even the slightest possibility that I, or any of my friends, would commit or even contemplate such brutal actions. The benefit of hindsight allows us to regard Venables and Thompson as vile and sadistic killers. But at the time, the possibility that two children could have kidnapped, tortured and murdered a toddler seemed inconceivable. As such, it was essential that both suspects were defended properly; revealing the truth seemed an awful prospect, but to ensure justice for James Bulger, it was imperative that the facts be established accurately, fairly and legitimately.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The views expressed by Lee make interesting reading in this light. As a human being, one can certainly forgive and understand the obvious affect the case had on him; very few would be immune from the impact of such traumatic events. This comment does not pretend that Lee is a robot. But the interview may represent some revisionism on Lee’s part in assessing his feelings at the time; otherwise it raises issues about how committed he was to the defence of his client, Venables – at that time, a child in a police station without the infamous reputation he now has.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Criminal defence lawyers are required to act as neutral partisans – detached, non-judgemental advocates for the client and his or her interests, whoever that might be, whatever the allegations. This is justifiable on the bases that all are innocent until proven guilty and should be able to access qualified representation before the law. As the duty solicitor assigned to Venables’ case, Lee’s role throughout both the police interview and the subsequent trial should have been to advance and defend the interests of Venables as robustly as possible, within the law.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Lee’s descriptions raise questions about his representation of Venables. The interview is peppered with emotive language, suggesting a less than sober approach – an essential requirement of his job. For example, Lee describes how Venables was ‘angelic-looking’; this is irrelevant and should have no influence on the professional approach of a defence lawyer.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Lee supposedly asked of himself: ‘What am I doing here? He couldn’t be capable of anything like this’. Again, this is contrary to the demands of the role – personal instincts and assumptions should be entirely divorced from professional duties, which require the lawyer to protect the client before him or her. To personally invest in the innocence of the suspect – in this case, simply because he was a child – is arguably as unhelpful as automatically assuming there is ‘no smoke without fire’, obstructing detached, sober and robust protection of the client. The answers to Lee’s questions should therefore be straightforward.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Lee described the job as ‘the easiest money’, which seems a rather naïve conclusion for a criminal defence solicitor. It should have quickly become obvious that, of all possible scenarios, this case seemed highly unlikely to be simple. Again, this seemed to derive from an assumption that no child could commit the acts Venables stood accused of.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">It displays a somewhat prejudicial approach – the defence lawyer’s belief in their client’s genuine innocence or guilt is irrelevant. They must defend them within the limits of the law, protecting the client’s rights and confidences but without lying or deceiving. In contrast to this proactive professional, Lee’s description suggests a man who seems to follow the proceedings as an engrossed observer.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Lee also stated he would have ‘happily’ prosecuted Venables and that his ‘number one sentiment’ was for the Bulger family. This could be interpreted in two ways; either Lee was satisfied to both prosecute and defend suspects generally, or he would have derived satisfaction from convicting this particular client. The former reflects a detached, professional attitude, free from personal association or investment in the client (whether it be the state or the suspect).</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The latter, however, is problematic. Had Lee been uninvolved in the case, one could understand his overt disdain for Venables; but his job was to defend him, and test the police case as thoroughly as possible. It raises questions about his commitment to his client. As a professional, regardless of personal feelings, Venables should have been ‘his number one sentiment’, or more appropriately his number one ‘priority’. Had he been unable to separate his emotions from his duties, it would have been wise to have withdrawn. Which interpretation Lee intended is unclear.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">On a different note, Lee also mentioned his fear of reprisals and even assassination. This is entirely understandable. The case was widely covered in the media and has remained a benchmark for the worst type of criminality in this jurisdiction. Notwithstanding his role as a professional, many may have associated Lee with Venables on a personal level – as someone who approved of and defended his horrendous actions. This fails to recognise that a defence lawyer is not as one with their client, and they do not defend their criminal actions – they defend the rights of a person not yet convicted.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The defence lawyer is an essential requirement of any fair and legitimate criminal justice system. The professional defends, not out of empathy for the accused, but because all should be represented before the law, the rights of the innocent protected and the guilty convicted as the result of a legitimate, balanced and thorough investigation. To target Lee as a sympathiser would therefore be seriously misguided.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">More generally, Lee seems comfortable with or at least oblivious to his troubling approach to confidentiality – a duty that continues after the dissolution of the client-lawyer relationship. He describes Venables’ statements, behaviour, and moods in very private settings – for example, a client conference with Venables’ barrister. Presumably, Lee assumes that since Venables is a despised figure forever trapped by necessary anonymity, the obligation of confidentiality no longer subsists. This is, of course, false. Lee’s decision to ‘spill the beans’, presumably for a fee or perhaps to rehabilitate his name, is inappropriate and arguably unethical (in the professional sense). After all, a (good) doctor would not publicly divulge past consultations with famous or controversial patients.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Lee’s empathy for James Bulger and his family, and horror at the nature of the case, are entirely understandable. He drew a difficult hand, but was nonetheless bound to fulfil a critical role; had he felt professionally or personally unable to handle the case, he should perhaps have passed the brief to a more experienced colleague as quickly as possible. Lee saw it through and that is very much to his credit. But in describing his experiences, he should have clearly marked a line between his professional role and personal feelings. By blurring the boundary between the two, he has undermined the integrity of his position as a defence lawyer in this infamous case.</span></div>
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Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-46071062447084947472013-02-04T06:33:00.001-08:002013-02-04T06:34:58.800-08:00Police prosecutions and the ‘deprofessionalisation’ of criminal advocacy: short-term savings with a long-term risk?<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">In October 2012, Home Secretary Theresa May announced that police powers of prosecution would be extended substantially for the purposes reducing bureaucracy and saving money. However, questions can be raised about both of these conclusions – and the symbolism of such a move is troubling. Under the plans, the police will not need to pass prosecutions to the CPS in around 50% of cases in the Magistrates’ Court, where more than 95% of all criminal prosecutions occur. As such, the police will be responsible for large proportion of all criminal prosecutions in England and Wales. The addition of 90,000 more cases to the police portfolio of duties could be problematic, both for them and for justice in general. </span></div>
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This very sizeable chunk of extra work will test an over-stretched police force, already feeling the effects of austerity cuts. ‘Front-line’ policing is supposedly protected – but every other area of work appears to be vulnerable. One must wonder where this additional duty fits into the economic picture for the police? Will officers spend days in the Magistrates’ Court, processing minor offences, resentful of the added burden granted to them by the Home Secretary? Or will staff be hired to do so? Or will the police even contract advocates? The last of these seems the most unlikely as it would probably be the most expensive and render the transfer of cases from the CPS pointless. As such, it is arguable that the result will be not a saving of cost, but a shifting of cost. </div>
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Additionally, one can’t help but feel police bodies and time could be better spent elsewhere. Increasingly, the police seek to divert suspects away from the trial system through the use of measures like conditional cautions, warnings and penalty notices; between 2003 and 2008, out-of-court disposals such as this increased by 135% (Office for Criminal Justice Reform, 2010). These may often be inappropriate; suspects may be urged by the police to save themselves time and trouble by accepting such an option, or may be coerced into believing in their own guilt (regardless of the factual reality). Equally, cases that should be pursued may be filtered out of the system, denying a sense of justice or ‘a day in court’ for a complainant. In the face of the Home Secretary’s proposed changes, such action might now be further incentivised as a ‘time saver’. </div>
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The strategy also potentially threatens the integrity of the justice process. Prior to the Prosecution of Offences Act 1985, the police were responsible for the majority of criminal prosecutions in this jurisdiction and had been for over a century. The creation of the Crown Prosecution Service under the statute was aimed at ending miscarriages of justice, usually resulting from inappropriate, misguided or even illegal prosecutions by the police. The Home Secretary’s proposed change undoubtedly represents an extensive reversal of that legacy. </div>
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It should be pointed out that the police will not be responsible for the prosecution of not guilty pleas, under 16s, cases started by charge, or those which may result in custody. As such, it can be argued that this will not necessarily result in a return to the ‘bad old days’. But it is a step in the wrong direction; legally qualified CPS advocates will be replaced with officers or staff untrained (or one presumes, at best, the very quickly trained) in prosecution advocacy. Prosecutions will not undergo the oversight of the CPS – a very public body, observed and audited regularly, and substantially more accountable and transparent than the police. </div>
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Police culture is also very different; the problematic ‘tunnel vision’ mentality that has caused so many major miscariages of justice (for example, the Cardiff Three, the Birmingham Six, etc.) presents a serious threat if the police see their additional 90,000 cases as conveyor-belt processing of the guilty. Defendants are all entitled to legal representation and a fair hearing – even if they have pleaded guilty. The danger presented by rushing through cases considered ‘unimportant’ or ‘minor’ is the dehumanisation of the system. Inch by inch, this culture generates only a cursory respect for rights, minimal level of attention to detail, and limited commitment to thoroughness of procedure. </div>
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This is not to say the CPS never lapse into such behaviour – they are frequently complained about by defence advocates – but they are, ultimately, legally trained and immersed in a culture with a different perspective on prosecution to that of the police. The move is a slippery slope – and few who remember want to see a slide back to the era before 1985.<br />
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<b>References</b><br />
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Office for Criminal Justice Reform, 'Initial Findings from a review of the use of out-of-court disposals' (2010)</div>
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Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-39724279543950996162013-02-01T03:59:00.004-08:002013-02-01T04:00:20.712-08:00Seminar on Police Ethics <span style="font-family: Arial, Helvetica, sans-serif; text-align: justify;">This week, my institution – </span><a href="http://www1.plymouth.ac.uk/research/lcjc/Pages/default.aspx" style="font-family: Arial, Helvetica, sans-serif; text-align: justify;" target="_blank"><b>Plymouth University Law and Criminal Justice Centre</b></a><span style="font-family: Arial, Helvetica, sans-serif; text-align: justify;"> – hosted an interesting guest seminar on a very topical subject: the ethical values and conduct of the police. I thought I’d post a summary of what was said.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Entitled ‘Police Ethics: Through A Glass Darkly’, the seminar was jointly presented by an academic, Professor Allyson MacVean (University of Chester), and an operational officer, Detective Superintendent Keith Perkin (Devon and Cornwall Police) – and it was refreshing to see scholarship and practice coming together to discuss this thorny and complex issue. </span></div>
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Professor MacVean opened by referring to this month’s report by the Committee on Standards in Public Life in which the police were ranked the least ethical institution in the eyes of the public (alongside MPs). She also noted the recent reports of the Leveson Enquiry, the Hillsborough Independent Panel, and Desmond Da Silva’s investigation into the murder of Pat Finucane as topical examples of the heavy criticism the police have received for being untrustworthy, unaccountable and thus illegitimate. She highlighted that this primarily implicated senior police officers as opposed to the rank and file – a shift from past perceptions of unethical behaviour within the police. </div>
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Professor MacVean explained that police ethics is not however a new issue. In 1999, Her Majesty’s Inspectorate of Constabulary (HMIC) espoused a series of qualities and values that the police should uphold, in its report ‘Police Integrity’. These included honesty, integrity, fairness, equal treatment and probity. She asserted that police ethics is important primarily because of the law enforcement duties of the police and the powers of discretion and autonomy applied to significant decisions affecting the public. </div>
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She outlined how current attempts to define ‘police ethics’ are lacking in meaning and resonance. She pointed out that the police has no Code of Ethics (apart from in Northern Ireland), having failed to adopt ACPO’s draft version from 1992. Instead, several ‘arrangements’ exist, including the Oath of Office, the Statement of Common Purpose (1993), the Code of Conduct (under the Police Act 1996), the Statement of Mission and Values (2011), and the Police Ethical Decision Model (2011). </div>
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Professor MacVean argued that, despite this raft of measures, police ethics remains a serious problem and identified three key reasons. First, she asserted that a ‘paramilitary philosophy’ remains part and parcel of policing – that is, orders are dispensed by the higher echelons which rank and file officers obediently follow without challenge or question. As such, little or no moral deliberation takes place. She suggested the lack of transparency in the decision-making process aggravated the problem; the introduction of Police and Crime Commissioners (PCCs) had, despite their democratic election, not helped this due to issues including inflated salaries, election rigging, lack of mandate, and nepotism. The second and third factors were a lack of training in ethics for police officers and the insufficiency of the current models, which do not mention or address ethics directly. </div>
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Professor MacVean stated that ethical dilemmas were a real problem for operational police officers. In situations with no clear right or wrong answer, the discretion of the police becomes a very significant issue since the consequences of unethical behaviour could have a substantial impact. She also underlined the Neyroud Report’s recommendation that the police progress towards the status of ‘profession’ rather than ‘vocation’. She identified research activity, self-regulation (an impossibility for the police), degree-level education and a code of ethics as characteristics of a professional organisation, indicating that the matter of police ethics would need to be properly addressed sooner or later. </div>
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Det Sup Keith Perkin proceeded to provide an operational police officer’s perspective on the issues raised. He commented that the police used to be a more trusted and respected institution, despite the poor attitude and behaviour of some officers from older generations. He suggested that police behaviour had not been adequately challenged in recent years, but that the reports mentioned by Professor MacVean highlighted the need to do so. He questioned whether the public had excessive expectations of the police; considering the very significant impact of the police on the lives of the public – through the removal of liberty, intrusive operations and covert conduct – he concluded that expectations should be high. </div>
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He identified institutional and individual corruption and incompetence as matters of substantial urgency that damaged the credibility of the police, a service relied upon 24/7 by citizens and other public services. He argued that the police were now less accessible due to the closure of police ‘houses’ and stations, the rarity of officers living in their area of work, and the use of vehicles to undertake police work. As such, the police (as individuals and an institution) were less known and visible, with the force as a whole lacking connection with local communities. However, he also suggested atttiudes in society had changed generally over the last half century, with less respect for institutions of authority, a more self-indulgent attitude amongst the public, and more deliberate disobedience. </div>
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Det Sup Perkin highlighted the increased performance management of the police since the 1990s, with HMIC inspecting, observing and pressuring the service, particularly in politically important areas like crime recording. He singled out the problem of lower crime figures and whether they should be interpreted as less crime or higher recording levels. He also disputed Professor MacVean’s assertion about the ‘paramilitary philosophy’ of the police, suggesting that senior levels were now more engaged with rank and file officers, indicating some shift in culture. </div>
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He proceeded to discuss the problem of ethical decision-making in the context of <a href="http://www.telegraph.co.uk/news/uknews/law-and-order/9625748/Steve-Fulchers-suspension-theres-nothing-intelligent-about-this-injustice.html" target="_blank"><b>Det Sup Steve Fulcher of Wiltshire Police and his handling of the Christopher Halliwell case</b></a>, in which Fulcher breached PACE in order to ensure the suspect identified a second murder victim. He argued Fulcher’s subsequent suspension was controversial; he had attempted to do the right thing in a difficult situation (earning great admiration from the family of the second victim) but failed to fulfil the obligations of the statute. If such behaviour was unethical, he suggested it was hard to call it either corrupt or incompetent. </div>
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He concluded by suggesting that the ethical framework of the police had been changed markedly by PACE, but that less money, worse working conditions, more pressure and low morale made ethical behaviour more difficult for many, citing the example of organised crime figures targeting police officers to ‘corrupt’. However, he argued that many police officers demonstrated a daily commitment to helping people and suggested that media portrayals of the police were often distorted and unfair.</div>
</span>Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0tag:blogger.com,1999:blog-6688692696966239023.post-38394722106450801612013-01-29T07:19:00.002-08:002013-01-29T07:35:39.204-08:00Gloves off at the Cab Rank<div style="text-align: justify;">
<span style="font-family: Arial, Helvetica, sans-serif;">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).</span></div>
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Most notable is the vitriolic response of Michael Turner QC, Chairman of the Criminal Bar Association (which can be read <a href="https://www.criminalbar.com/latest-updates/news/q/date/2013/01/26/weekly-round-up-26-01-13/"><b>here</b></a>). 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'.</div>
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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.</div>
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Professor John Flood, who co-authored the report, responded in kind <a href="http://johnflood.blogspot.co.uk/"><b>here</b></a>, 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.</div>
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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 <a href="http://www.lawgazette.co.uk/news/taxi-cab-rank-rule#comment-26263"><b>this Law Gazette article</b></a> 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. </div>
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Two posts appear to me to be the most sensible on the topic. Richard Moorhead wisely points out<b> <a href="http://lawyerwatch.wordpress.com/2013/01/28/cab-rank-rules-or-bar-room-brawls/">in his blog</a></b> 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 <a href="http://pinktape.co.uk/legal-news/a-trickle-not-a-flood/#more-4004"><b>one of the most balanced analyses available</b></a>, accepting where she lacks expertise or evidence, but equally not deigning to pull her punches. </div>
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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. </div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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Tom Smithhttp://www.blogger.com/profile/11280102084400302988noreply@blogger.com0