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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Price-Competitive Tendering: Grayling Throws Down the Gauntlet

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

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

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

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

'I am clear we will continue to uphold everyone's right to a fair trial but that doesn't mean we shouldn't look again at how the system which provides this is operated.'

Although I haven't read the consultation paper yet, a few initial thoughts spring to mind relating to the above points. 'Legal aid is still costing too much' according to Grayling, yet it has been slashed continuously for years and years and the Ministry of Justice budget represents one of the smallest in Government (see the enormous burdens of health, work and pensions, social security, education). This also gives away the major push behind Grayling's reforms - 'best price' rather than 'best value'.

The idea that legal aid is 'free money' is of course nonsense - legal aid for criminal defendants is one of several hallmarks of a civilised society that the state provides because those accused very often cannot afford it themselves. Being provided with a representative in the face of accusation by the overwhelming resources of the state is hardly 'milking' the system. And there is also an implication that those accused of crimes are NOT hard-working taxpayers - is it just work-shy, benefits dependent freeloaders that come before the courts? Of course not - a large number of 'hard-working taxpayers' have paid into the pot from which they derive the benefit of legal assistance - it is the same principle as is exercised in justifying all state funded services, such the NHS or the benefits system. But the working status of defendants shouldn't preclude access to the same rights and protection as any other citizen; this sort of thinly disguised financial prejudice is no better than racism, homophobia or any other form of bigotry.

One must also question the logic that introducing 'lowest bidder' tendering for criminal contracts represents better value - it will certainly mean a better price (for the Government and for the bidders, which will likely include large corporations like Tesco, Eddie Stobart, G4S and the Cooperative Group). But for defence lawyers and their clients, quality is likely to be damaged. Less money for the same or more work is only workable if defence lawyers spend less time with clients, less time investigating and constructing a case, and encourage swifter resolution of proceedings (guilty pleas being the most dangerous example of this). Whether this is better 'value' for the taxpayer is questionable - after all, taxpayers are not simply interested money. They are interested in a fair, legitimate, good quality legal system that serves them rather than letting them down (whether they recognise it or not).

Grayling's example of 'some lawyers' earning gross amounts refers to a tiny minority - most defence lawyers earn very small fees for the level of work invested. To suggest that defence lawyers are raking it in at the state's expense is much like suggesting that mansion squatters and similar to homeless people sleeping rough every night. It is irresponsible and misleading, but is sadly familiar rhetoric. The same can be said of the 'wealthy criminals' card - once again, a minority that does not represent most defendants brought before criminal courts. What Grayling means by 'unnecessary' cases brought by prisoners is anybody's guess - cases brought for matters including racism, violence, invasion of privacy, limiting of access to legal advice, and ill treatment are presumably included within this definition simply because the claimants are prisoners. 

Finally, Grayling makes a token gesture to the Article 6 right to a fair trial, but provides little or no detail about what he means, and fails to address why massive cuts and a race to the bottom in terms of the prices paid for criminal defence work will in any way bolster the right to a fair trial. The starting gun has been fired on BVT; the Government will inevitable face off with the criminal defence profession. Who will ultimately pay the price for Chris Grayling's money-saving is not yet clear - but one imagines it will not be Chris Grayling or the Government. 

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

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

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

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

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

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

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

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

1 See R v Samuel [1988] QB 615.

2 Office of the High Commissioner for Human Rights (1990) ‘Basic principles on the role of lawyers’ – Adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba.

3 Ibid., Preamble

4 Ibid., at para. [1]

5 In April 2012, the UN’s ‘Expert Group on Strengthening Access to Legal Aid in Criminal Justice Systems’ produced a set of draft principles underlining the importance of legal representation throughout the criminal justice process.

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V11/878/15/PDF/V1187815.pdf?OpenElement

6 UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9:http://www.unhcr.org/refworld/docid/3ae6b3a84.html (accessed 25 May 2011)

7 Salduz v Turkey 36391/02 [2008] ECHR 1542 at para. [51]

8 Ibid., at para. [55]

9http://www.se2009.eu/en/the_presidency/about_the_eu/justice_and_home_affairs/1.1965.html

10 Key cases include Kennedy v Broun (1863) 13 CB(NS) 677; Rondel v Worsley [1969] 1 AC 191; R v Munnery [1992] 94 Cr. App. R. 164; and Medcalf v Mardell [2003] 1 AC 120 (HL). Under the Police and Criminal Evidence Act 1984 (PACE), those arrested and held in custody are entitled to consult with a solicitor at any time (s.58(1)).

11 Brown R., ‘The “Good Person” Question: Valid Query or Hobson’s Choice?’ (1999) 2Journal of the Institute for the Study of Legal Ethics 153, 154.

12 Arguedas C., ‘Duties of a Criminal Defense Lawyer’ (1996-1997) 30 Loyola of Los Angeles Law Review 7, 9.

13 Brown R., ‘A Plan to Preserve an Endangered Species: The Zealous Criminal Defense Lawyer’ (1996) 30 Loyola of Los Angeles Law Review 21, 21.

14 ‘Transforming Legal Aid: Access to criminal defence services’ (Legal Services Commission, 2010).

15 Ibid., 33.

16 Ibid., 5.

17 Ibid., 35-40.

18 Notable British scholarship in this area has been undertaken by Donald Nicolson and Julian Webb (see Professional Legal Ethics (2000) Oxford University Press); Mike McConville, Jacqueline Hodgson, Lee Bridges and Anita Pavlovic (see Standing Accused (1994) Clarendon); Ed Cape; David Pannick; and Jenny McEwan. At a more practice-oriented level, Andrew Keogh’s Crimeline service regularly addresses criminal defence issues.

19 Rule 1.29(a), Criminal Procedure Rules 2011/1709

20 Rules 1.1(2)(e), 3.2(2)(a), 3.10(c)(i), 3.10(c)(vi), 3.10(c)(viii) respectively.

21 Baksi C., ‘Opponents win custody advice concession in “un-costed and unjust” LASPO’, Law Society Gazette, 26th January 2012.

http://www.lawgazette.co.uk/news/opponents-win-custody-advice-concession-un-costed-and-unjust-laspo.

22 Bowcott O., ‘Means testing of suspects held in police stations dropped from bill by coalition’, The Guardian, 25th January 2012.

http://www.guardian.co.uk/law/2012/jan/25/means-testing-suspects-dropped-from-bill.

23 Baksi, op. cit.

24 Riddle H., ‘The Stop Delaying Justice! Initiative’, Law Society Gazette, 19th January 2012.

http://www.lawgazette.co.uk/in-practice/practice-points/the-stop-delaying-justice-initiative.

25Cave R., ‘Lawyers claim new policy causes miscarriages of justice’, BBC News UK, 14thApril 2012. http://www.bbc.co.uk/news/uk-17690404.

26 See Brett v Director of Public Prosecutions [2009] EWHC 440 (Admin).

A Mild Winter? Sgt Danny Nightingale's 'Improper' Defence

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.

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. 

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.

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.

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.

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.

Efficient and Expeditious? Sometimes it pays to 'think twice'

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).

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.

A good example is the recent case of J (A Child) [2012] EWCA Civ 1231. 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.

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'.

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. His grounds underline the points raised earlier in this post.

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:

'Do not answer the question . . . I do not see where it is going'

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'.

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'.

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'.

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'.

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.'

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.

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.

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.'

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'.

J (A Child) 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.

Defence lawyers left out in the cold . . . again

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'. 

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.

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.  

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.

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.

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.

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.

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.

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.

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.