Jane has more than 29 years’ experience in Criminal law practice.  She is the founder of Hickman & Rose Solicitors.  She has acted as adviser to Lord Justice Auld’s review of Criminal Courts, and is Secretary to the Criminal Appeal Lawyers Association.

This is the full text of her speech to the 2^nd Annual Miscarriage of Justice Day meeting,  Liverpool, 2003

 

·                     I have been working in criminal law for nearly 30 years. 

 

·                     When I began, I could look out of the window of my flat in Notting Hill and often enough of an evening see policemen grab black citizens off the street.  And Irish people.  And others who did not fit. 

 

·                     I worked in the local law centre.  This was before lawyers were even allowed into police stations.  The first time most defendants saw their lawyer was in prison some time after the first remand in custody.  Where you would find them, beaten, humiliated fitted up.

 

·                     In those days there were just two kinds of miscarriage of justice – the false confession and the planted evidence.  And one or the other happened in every case where the police needed or wanted a conviction.  It was standard procedure.   I used to keep a list of my cases on a white board in my office and marked with a ‘B’ every one that was bent.  And almost every one had a ‘B’ next to it.

 

·                     And it was really the glory days for civil rights activists and for defence lawyers.  There was a huge struggle for public opinion and for reform of the criminal justice system.   Over the next 15 years the pendulum swung.  The public were horrified at the revelations of police fitting people up.  Reforms were instituted, even by the Tories. 

 

·                     We had PACE, we got tape recording of interviews, we got ID suites, we got the new AG’s disclosure guidelines, several times.

 

·                     And then it began to go wrong.  It went wrong somewhere around the time of the Major victory and the Kinnock defeat.  It went wrong with the Jamie Bulger case, and Michael Howard’s speech at the Tory conference in November 1993. 

 

·                     And suddenly we had Labour roaring back.  We had tough on crime, and tough on the causes of crime.  We got our Labour government, then we got Straw who was worse than Howard, and Blunkett who was worse than straw.

 

·                     And today the imperative for police to get results is probably worse than it ever was, and still accelerating. 

 

·                     And there will be only one result from that, more miscarriages of justice.

 

·                     What makes it so intolerable, so frightening and so utterly wrong is that it is led by our own Prime Minister.

 

·                     In his speech to the Labour Party conference two weeks ago (30/9/03) Tony Blair said

“And of course the criminal justice system with its rules and procedures was a vital step of progress when poor people were without representation unjustly convicted by corners cut. But today in Britain in the 21st century it is not the innocent being convicted. It's too many of the guilty going free”

 

·                     That has to be one of the most dishonest things that this Prime Minister has yet said

 

·                     This is supposed to be a government  pledged to evidence based policy making.  And on what evidence does Blair make this assertion?

 

·                     Not by looking at the figures for referrals by the CCRC, and the number of cases awaiting, or by looking at what is happening in the Court of Appeal.  Not by looking at the state of the legal profession, or at what the probation service says.

 

·                     No, this mess is populism, it is fed by the media, and it plays to the lowest and cheapest strand of political life in this country today.

 

·                     It finds its expression in the CJ Bill, which is proclaimed as “rebalancing the criminal justice system in favour of victims and witnesses”

 

·                     Now of course, people who are victims of crime or are witnesses need a better deal.  For too long, ordinary people have been treated with scant respect by judges, prosecutors and police. 

 

·                     But this is not a zero sum game.  You do not need to take rights away from defendants in order to treat witnesses and victims better. You do not need to thrash one side to raise standards on the other. This is adversarialism run amok.

 

·                     We know the consequences in the Criminal Justice Bill.  One is the loss of jury trial where the police reckon there is jury interference.  I remember jury nobbling in the 80s very well, and how clear it was in some cases that it was the police doing the nobbling.  I do not see what protection there is against police jury nobbling.  And it is not fashionable to say so either.

 

·                     Another is the introduction of previous convictions or other forms of behaviour that might be viewed with disapproval.  This will lengthen trials, bring cases to court that otherwise would not have got there, and increase the chance of absolutely marginal convictions being obtained.

 

·                     But there is another threat in the pipeline, the Case Preparation Project.  May be the worst of all.  This is an idea that sprang from the Auld Review.

 

·                     It is being pursued by a working party within DCA.  The plan is to train all judges and magistrates to bring all cases to swifter trial and earlier conclusion.

 

·                     In practice, as the training is being rolled out, it is already resulting in intimidation and bullying by judges to bring cases to trial irrespective of whether they are ready.  It is being done in many cases in the most brutal and unreasonable way.

 

·                     We are now seeing cases where both Crown and Defence agree more time is needed and the court refuses it.

 

·                     Even when defendants are going to plead guilty it is a thoroughly bad idea.  It makes nonsense of any commitment to reflection, remorse and rehabilitation.   Defence lawyers who represent guilty people know how hard it is often for them and their families to come to terms with what they have done.  This is a process that has to go on over a period of time.  This is surely a process we want to encourage.  Not to beat guilty defendants into a premature plea and to have them serve their sentences simmering with resentment and convinced that they are the true victims.

 

·                     For the innocent it is a nightmare.  There is a very high correlation between rushed trials and miscarriages of justice.  In the case of Timothy Evans there was only 23 working days from charge to trial.  Bentley had even less, under four weeks, and even that was won only after a huge struggle by his QC.

 

 

Returning to the subject of lawyers however:

 

·                     If you rightly want to improve the position of victims, you need to make sure at the same time that you have a very strong, independent and adversarial defence.  You need lawyers who are motivated, alert, free from improper pressure.  You want dedicated professionals who will take nothing for granted.  And that of course was the vision of the Attlee government which introduced legal aid, alongside the health service, in 1949.

 

·                     If only it were true.  Looking at range of cases there is very strong correlation between poor legal work and miscarriages of justice.  Almost 100%. 

 

·                     It is rare that things go wrong if the defence do their job thoroughly (although nothing gets round the worst cases of police malpractice).

 

·                     In the majority of miscarriages of justice, in my experience, you will find in the lawyer’s file three or more of the following:

Ø                  Ignorance of current law

Ø                  Inadequate advice in the police station, with little record of what occurred

Ø                  lack of engagement in disclosure process

Ø                  Breaches of professional rules

Ø                  lack of preparation/investigation/witness tracing for trial

Ø                  failure to identify issues requiring expert opinion

Ø                  failure to control counsel and experts

 

So what I want to talk about today is the problematic nature of criminal defence work

 

·                     Over last dozen years I have seen exactly the same quality problems recur time and again, and I have a room full of these problems at the moment.

 

·                     I would challenge the Lord Chancellor, on behalf of this government, to explain why there has been no proper review of the design and funding of legal aid.

 

Firstly, quality:

·                     Franchising and contracting were supposed to address issues of quality but they cannot do so on their own.  The advantages they confer include:

Ø                  client papers are now kept in files

Ø                  the client’s name and address are on the file

Ø                  the client gets regular letters telling him whether he is likely to get legal aid, and how long his papers will be stored for

 

·                     this has brought about the procedurally correct miscarriage of justice, where the files are in beautiful order.  Everything is more or less done but in a way that is thoughtless, uninvolved, unreflective and wanting any strategy,…….so still innocent people are being convicted.  It is all there except an understanding of the Defendant’s actual case.

 

·                     It is therefore crucial to isolate where quality is to be found

 

·                     Research was done for Royal Commission in 1993 by Baldwin and McConville into advice given at the police station.  They looked in depth at 22 firms and found an appalling picture

 

·                     Work was delegated to unsuitable staff and polished off by routines whether appropriate or not.  Clients were expected to plead guilty.  If they did fight there was a chronic lack of preparation. 

 

·                     This was mainly because the experienced lawyers were out at court strutting their stuff and winning clients, while case preparation was delegated to idiots

 

·                     It was a breeding ground for miscarriages of justice.

Ø                  And it still is. 

Ø                  Too many miscarriages of justice come from upside down firm organisation, leaving insufficiently experienced lawyers running cases

Ø                  key decisions left to counsel who come into the case too late to make a difference.

 

·                     So what can be done?

 

Good firms

·                     The researchers found  honourable exceptions in four firms

 

·                     These they referred to in a footnote with the comment “lawyers sharing a particular ideology tended to be drawn to these firms”

 

·                     (no prizes for guessing which ideology)

 

·                     So all along its been a matter of conviction.  Its about the values and the ethos of public service.  It’s a matter of caring about justice and having compassion for clients.  What a surprise!

 

·                     The question is - how can you best identify and nurture this?   The market won’t do it.

 

·                     Research shows that professional services are very hard to evaluate.  Is your dentist any good?  You don’t know unless it goes wrong.  But criminal defendants face extra problems in choosing good lawyers.  After arrest and charge, they are isolated, vulnerable, probably shocked, and detained well away from the local library.   They are also under colossal pressure to get on with it, again courtesy of the system’s infantile preoccupation with speed.

 

·                     So lawyers get chosen by defendants on the basis of how well dressed and confident they are.  Or even by the size of their bribes.  The going rate for a criminal defendant in Pentonville just now is a CD player down and £10 a week.  You may think defendants deserve no better if this is their approach.  But you are often talking about desperately isolated and impoverished people

 

·                     You need a pro-active and informed consumer, in the form of the central purchaser of services.  Also known as the Legal Services Commission.  It should be the job of the LSC to work out which firms can be trusted to deliver to their clients.

 

·                     To my knowledge, no-one has ever pursued this.  There has been no work to distinguish which these firms are.  No-one has ever tried to support them, encourage them, or study the values and economics of practising law in this way.

 

·                     No-one is asking about the link between miscarriages of justice and incompetent defence work.

 

·                     I have only once in 28 years across a judge reporting a solicitor for incompetent work.  But they see it all the time.  And do nothing.  If you were cynical you would wonder if keeping a crew of incompetent defence lawyers were not a matter of policy

 

 

Quality and measurement

·                     The only recent research that has been done makes grim reading.  This was the LAB’s own pilot scheme for contracting with private law firms.  It ran from 1998 – 2000. 

 

·                     By then performance measurement was at the top of the quality agenda .  The researchers focused on measurables, looking in detail at 25 firms.  So it wasn’t even trying to get to a proper definition of quality, just measurables.

 

·                     Results were extremely troubling.

 

·                     15 of the 25 firms fell below the standard which the LSC have set

 

·                     Researchers wryly noted the lack of “non-compliance action” from the LSC.

 

·                     They concluded that the LSC  auditing mechanisms were not working efficiently

 

·                     They warned that if there were a move towards the use of more standard fees or to firms competing on price the failure of the transaction criteria would be very serious

 

 

Policy in Criminal Defence Services

·                     So what is the policy?

 

·                     There is crude but widespread  belief amongst LSC staff, and even among its researchers, that competition between private firms for clients will somehow cause quality to rise.  

 

·                     This rests on an ill digested notion of how markets operate.  There is a weak link between quality and winning clients, because most clients cannot tell if they are getting a good service or not.  No-one can. 

 

·                     So don’t hold your breath while you wait for competition to drive up quality.

 

·                     Far stronger than competition for clients is the price competition. This was hinted at in the White Paper on Legal Aid “Justice for All” (1997), but is explicitly disavowed by LSC policy makers.  But what is happening in practice? 

 

·                     In practice, price competition is the chosen instrument of policy at the Lord Chancellor’s Department.  Confronted with evidence that firms which give actual value for money cannot survive on current rates, the  LCD repeats the mantra that while there are enough practitioners there is no need to increase payment for legal aid work

 

·                     Until price competition is explicitly disavowed it remains the plan by which the market operates

 

·                     It is the framework within which all firms set their own strategies

Ø                  if you are small, you try not to invest in technology, books or people

Ø                  if you grow larger, you routinise ruthlessly

Ø                  You maximise income while minimising work 

Ø                  You waste no time  on quality measures, on developing lawyers, on dealing with complaints

Ø                  You do the minimum, and even that is delegated to the least qualified person

 

·                     And of course, this is a good description of what the researchers found

 

·                     We are witnessing a tragically lost opportunity to exercise a huge influence on the Criminal Justice System, by fashioning the criminal defence firms of the future.  There is a desperate need for more vigorous regulation of the market to deliver the quality that we want

 

·                     Every time price competition is mentioned you encourage a rip-off mentality among the providers.  The idea should be put to rest We need a strategic plan, executed by a strong and value driven Criminal Defence Service. 

 

·                     For Appellants this would include

Ø                  drastic measures to get capacity under control and to redeploy savings to an inspectorate

Ø                  incentives for lawyers in oversupplied areas to retire

Ø                  incentives for lawyers to relocate to undersupplied areas

Ø                  as many PDS offices as are needed to drag quality in the regions upwards

Ø                  healthy competition between  public and private sector agencies

Ø                  equality of reward between prosecution and defence lawyers, with a premium for private enterprise risk-taking

Ø                  adjusting reward structures so that firms will allocate senior lawyers to serious cases

Ø                  adjusting reward structures so that the payment for righting miscarriages is no less than the rate paid to the lawyers who messed it up

Ø                  independent review of the original lawyer’s work whenever a conviction is quashed

 

Lawyers pay

·                     This is not a popular subject.  But law firms cannot be run at a loss.  The ones that will survive really harsh economic conditions are the most commercial ones.  The ones dedicated to making money by cutting corners, not those that do the job properly.

 

·                     For nearly ten years the rate of pay for legal aid has been frozen.  The rate paid to a solicitor for working on a miscarriage of justice is £47.90 an hour in London, less outside.  From which work the firm has to pay for the solicitor, her secretary, rent, heating, lighting, professional insurance, a detailed accounting system, IT, law library, training and so on.  It is scarcely any wonder that solicitors willing to work on miscarriages of justice cannot be found.

 

·                     Ultimately you have to ask WHAT IS GOING ON

 

·                     The relentless hostility to defence lawyers is actually hostility to the idea that the prosecution might be wrong.  That there is really anything at issue at all in a criminal trial. 

 

Where next

·                     We desperately need everyone to make their views known to their MPs and in their local papers.  The only way we change it is if this government thinks someone notices and someone cares.

 

·                     Every minister who talks about criminal justice has a string of anecdotes about their constituents who beg for something to be done about crime.  Make them feel as strongly the bitterness and hurt of those who have been fitted up.  It is still happening, and Tony Blair should be left in no doubt in the future.