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 defense 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.

Price-Competitive Tendering: Grayling Throws Down the Gauntlet

Today (April 9th 2013), UK 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 defense 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 UK National Health Service or the benefits system. But the working status of defendants is hardly relevant. 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 defense attorneys and their clients, quality is likely to be damaged. Less money for the same or more work is only workable if defense attorneys 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 defense attorneys earn very small fees for the level of work invested. To suggest that defense attorneys 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 European Convention on Human Rights 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 defense 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 defense 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 Defense of the Defense: Why Counsel For The Accused Deserve More Academic Attention

Criminal defense attorneys advance and protect some of the most fundamental rights of citizens in liberal democratic societies, like the UK and USA.1  This brief post will focus on the former. In England and Wales, 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 defense 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 defense attorney 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 defense attorney: 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, defense attorneys 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 defense 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 defense 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 defense attorney 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 defense attorney 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.

Criminal defense 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 defense lawyers in England and Wales. This is particularly surprising since the last decade has seen the defense 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 defense lawyer. Various ‘case management’ obligations are incumbent on all parties in the case.19 The defense attorney 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 defense attorney 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 defense 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 defense 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 defense 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 defense attorney is not immune from the axe of the UK Coalition Government. This near miss – and the shrinking budgets of criminal defense 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 defense profession, the specter of more grave injustices looms large.

Another recent signal of the changing context in which the defense 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 defense attorney 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 defense attorney’s role is in the 21st Century, with more potential ethical conflicts for defense 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 defense 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 defense attorney to fair criminal proceedings. Second, there is limited public understanding of what defense 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 defense role within the adversarial tradition of England and Wales. The criminal defense attorney 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 defense attorneys, 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).