A Zealous Roundup: Bail Offences, the Criminal Charge, & Legal Aid Forensics

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.

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REDUCTION IN OFFENDING ON BAIL: SOME THOUGHTS

Some interesting figures have been released in relation to offending on bail. In mid-August 2015, the Ministry of Justice (MoJ) revealed that offences committed on bail dropped substantially during the last Parliament. 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.

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.

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 'Practice of Pre-trial Detention'. 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.
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THE NON-DISCRETIONARY NATURE OF THE CRIMINAL CHARGE IS IRRATIONAL

Blogger @jackofkent 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, in a Parliamentary debate about the proposed charge, Mr Vara said:

'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.'

This statement essentially says the following: 

• Judges/magistrates want the court system to succeed 
• 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 
• This implies judges/magistrates may be tempted to abuse this power for their own gain

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.

First, the uproar amongst the judiciary (including the resignation of magistrates) 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.

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.

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, @jackofkent 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).

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 (see the Howard League's campaign on this). 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:

a) Giving authority to a non-judicial figure for imposing the charge
b) Providing a set of strict guidelines on imposing the charge
c) Introducing some kind of gradation based on means
d) Not introducing the policy at all

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:

'We don't want you to choose to steal that old lady's handbag - so we're going to force you to do it.'

This is, quite simpy, irrational.

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FORENSICS IN CRIMINAL LEGAL AID: A HARD ROAD AHEAD?

In late August 2015, forensic science specialist Contact Traces announced that it would no longer be providing its services in criminal proceedings in England and Wales. 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:

‘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.’

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.

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.

Making crime pay? Thoughts on defendant contributions to criminal justice costs

On seeing the Lord Chancellor's announcement today that convicted offenders will pay a contribution towards the costs of running the courts, my mind wandered back to fieldwork I conducted last year with criminal defence lawyers at the 'Justice For Sale' meeting. 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. 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.

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. 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, in their response to the 'Transforming Legal Aid' consultation, the South East Circuit of the Bar proposed the very same idea now announced by the Lord Chancellor.

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. 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.

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. However, this is not without issues. There currently appears to be a discrepancy between costs/surcharges ordered by courts (e.g. confiscation orders) and their actual enforcement - in short, only a small proportion of the proceeds of crime are actually being reclaimed. Adding more orders to the bill seems pointless.

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. 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.

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. 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.

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. 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. Then again, the same scenario means electricity, heating and staff costs which could have been avoided.

Clear opposition to the Lord Chancellor's proposal amongst the legal profession would contrast with the responses in my fieldwork. This 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.

Speculating on the Public Defender Service: Some Questions

In an interesting move, the Ministry of Justice (MoJ) today announced the appointment of two QCs to the Public Defender Service (PDS). It also posted an advertisement to recruit more lawyers to the organisation. This follows the announcement of a new Head of Advocacy in October 2013. 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 the Law Society as well as the blogs and Twitter accounts of lawyers. The announcement raises a number of interesting questions, some of which do not necessarily have clear answers:

- Why are the Government investing money in expanding the PDS, whilst proposing fee cuts for all private criminal defence suppliers?

- Should more money be invested in a service which has been criticised in the past for being excessively expensive?

- Is the Government aiming to rebuild the PDS to its original size and beyond?

- Does the Government want to exert more control over the operations of criminal defence lawyers by making them state employees?

- Is this an overt indication that the Government would prefer criminal defence services to be delivered by an arm of the state?

- Is this a first step towards a US-style universal public defender service (which has been much criticised in recent years)?

- Why have the Government not explained their justifications for these appointments at a time of proposed contraction in the defence services sector?

- Does the expansion of the PDS, a public entity, stand in contrast to both the ideology and practice of the Coalition?

- 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?

- Does active recruitment suggest the Government are preparing for strikes by defence lawyers, which the PDS will be used to cover?

- Is the Government poaching key players, in the hope that others will follow? Is it attempting to create divisions between opponents of the reforms?

- Will the temptation of a guaranteed salary and benefits (e.g. pension, holiday, etc.) tempt private sector lawyers away?

- Why has a high-profile circuit leader decided to leave the private sector for the PDS?

- 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?

- What position have the two QCs been appointed to? Will they simply be advocates, or are they tasked with any management/business duties?

- 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?

- Do these particular appointments contradict the Government's implied attitude towards barrister fees i.e. that too many are earning too much?

- 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?

- Does the PDS have a monopoly in its operating regions? Does this damage quality of service because of a lack of competition?

- What current evidence is there that the PDS provides benchmarking for quality standards, as claimed by the Government in its 'Transforming Legal Aid' consultation?

- 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?

- Is there 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?

- In the long-term, can the PDS generally pay wages that will attract talent to publicly funded criminal defence work?

- 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?

- 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?

- Would an expanded PDS dilute the independence of advocates, employed as they are by the state?

- Will clients be able to fully trust state-appointed defence lawyers?

- 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.

- Are the interests and aims of the PDS and the private sector so different as to prevent co-existence and cooperation?

- 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?

- 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?

- If the Government is planning to expand the PDS, is it time for a fresh, independent assessment of its effectiveness and value for money?

Any thoughts on these and any other questions would, of course, be welcome !

Earnings of the Criminal Bar: It's all about timing...

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. The MoJ has released figures detailing the earnings of criminal barristers in 2012/2013. 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.

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. After all, £56,000 a year is more than double the average national salary. 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 invoking such a train of thought is the intention.

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. 

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Doctor Grayling: A Short Story

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

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

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

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

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

THE END (Probably)

My response to the 'Transforming Legal Aid' Consultation

Dear Sir/Madam,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kind Regards,

Dr Tom Smith

Plymouth Law School

Plymouth University

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lord Thomas of Gresford

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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