Duty calls: the hard and sometimes demanding and thankless role of a duty solicitor

The duty solicitor I’m shadowing negotiates electronically controlled gates under the unblinking gaze of CCTV cameras. He arrives at a windowless room beneath the court, where the table and seats are bolted to the floor and there is a glass viewing port in the heavy wooden door. A guard from a commercial security company escorts his client, handcuffed, into the room. The guard exits, leaving lawyer and client alone for one last conference before putting their defence to the bench.

Things do not look hopeful for the client. He is charged with possession of amphetamines with intent to supply. The police found the drugs concealed beneath the wheel arch of his car, but he denies all knowledge of them. The weighing scales found in his house are for cooking, he says, as is the white powder, which is glucose. Already under a suspended sentence, he has a string of prior convictions, including some arising from offences committed while on bail. His first custodial sentence was more than 20 years ago, yet he seems so pleasant, hanging on the duty solicitor’s every word with childlike trust.

He shows no emotion as the magistrate remands him to jail. ‘He’s been remanded before,’ the solicitor explains later. ‘And anyway, he’ll have a reunion with old friends, no doubt.’

My duty solicitor subject is Liam Gregory of two-partner Tonbridge firm Clarke Kiernan, and the scenario that has just unfolded is ‘all in a day’s work’, he says. Admitted in summer 2007, Gregory began duty solicitor work after following the standard route to accreditation of the Police Station Qualification and the Magistrates’ Court Qualification.

It is a challenging way to earn a living: on call for 24-hour shifts, lots of hanging around, telephone calls in the middle of the night, and five-minute briefings with defendants who are almost invariably strangers to Gregory and have arrived at magistrates’ court without representation. There is a huge range of clients, too, from suspected murderers, terrorists and armed robbers, to shoplifters and drink drivers who, Gregory says, have ‘taken a chance and lost’. Gregory enjoys the advocacy, he says, and the chance to ensure that clients, when their liberty is at stake, are represented and have access to a fair trial.

But is Gregory one of a dying breed of young lawyers willing to commit to a career in publicly funded criminal work? Much has been written about how legal aid cuts and increased bureaucracy might drive him and his contemporaries into the arms of commercially focused practices. Are the days of duty solicitor schemes numbered – and are the schemes worth saving as they are?

Robin Murray, of three-partner Kent firm Robin Murray & Co, says the duty solicitor scheme ‘works brilliantly well – when it is allowed to’.

He can list several ways that the scheme is being subverted, including the ‘deliberate attempt by some police officers’ to discourage detainees from calling a duty solicitor. They keep the client waiting for hours, he says, then ‘stroll down’ to the cells and ask whether a solicitor is still required. The client is told it might take as much as four hours for the solicitor to arrive and, since the charge is ‘not serious’, why not let the police sort it out?

‘That’s how miscarriages of justice happen,’ Murray says. ‘We have complained to the Home Office and asked for it to become mandatory, as part of the Police and Criminal Evidence Act (PACE), for all detainees to talk to a solicitor.’

The Home Office is currently reviewing PACE and has pledged to publish a summary of responses to its consultation ‘before the end of autumn’ 2009.

Murray is also critical of government moves to streamline the way detainees are represented at police stations. He dismisses as a ‘gimmick’ the Ministry of Justice’s plans to allow detainees to be represented by the duty solicitor via a ‘virtual court’ – essentially a video link between the station and the magistrates’ court. ‘You shouldn’t depersonalise justice as though it’s a video game,’ he says. ‘The MoJ is confusing efficiency with technology, cost-cutting with fairness. When magistrates are deciding on someone’s liberty, they want the defendant and all the professionals, including the defence lawyers, in front of them in the flesh. How else can they make a fair assessment of the client?’

There is also, Murray adds, a health and safety issue attached to virtual courts. Unlike real courts, there are no secure docks at police stations. ‘Clients regularly kick off when they are distressed at being remanded into custody,’ he says. ‘The duty solicitor, sitting beside his or her client during filming, could be at risk.’

Malcolm Fowler, a criminal defence lawyer since 1969 and a partner at eight-partner Birmingham firm Jonas Roy Bloom, also has concerns about the future of the duty solicitor scheme. ‘It’s being swamped by managerialism and by number crunchers with their targets and key performance indicators. The prosecution is actually assessed, in part, on the number of cases they discontinue.’ The defence’s role is to evaluate each case as lawyers, Fowler says, whereas the courts’ priority is to dispose of cases quickly – and the two approaches are incompatible. Fixed penalty notices are a symptom of this headlong rush to bypass the courts and, some say, recklessly speed up the administration of justice.

The duty solicitor is portrayed on television as ‘a spiv or a cipher’, Fowler adds, and this attitude also extends to the real world. The courts tend to be ‘relaxed and forgiving’ when the prosecution asks for more time to prepare a case, but are hostile to any similar request from the defence. ‘There’s the assumption of guilt,’ he says. ‘The prosecution represents us, is on "our side", while the defence represents "them", the bad guys.’

Roy Morgan of Welsh firm Morgan Solicitors says the duty solicitor scheme has ‘generally’ worked well for many years, but the government’s constant erosion of the legal aid budget has persuaded an increasing number of firms to give up this area of practice – creating ‘legal aid deserts’.

‘In one part of Wales, there is just a single duty solicitor covering four courts. He gives clients lifts to court because of the distances involved.’

The problem is so acute, says Morgan, that perhaps virtual courts are the only solution, ‘except convictions are appallingly low where video evidence has been used in rape cases. Why should it be different with bail applications? It’s easier for magistrates to remand defendants to custody when they are not there in front of them’.

Most police officers recognise that duty solicitors are ‘doing a job’. But others take it personally, as if duty solicitors are trying to subvert the good work they do – though Morgan says that the recommended, and for police officers frustrating, ‘no comment’ line is the first thing a police officer in trouble asks for.

Morgan adds: ‘The duty solicitor scheme is a great and absolutely essential service. It should be valued and improved, not undermined.’

The Association of Chief Police Officers declined to comment on any aspect of the duty solicitor scheme on the grounds that the MoJ was already reviewing it.

This review is in the form of a consultation paper, ‘Legal aid: funding reforms’, which opened for responses on 20 August and closes on 12 November. The consultation proposes ways of reducing government spending on criminal defence, including reducing fees for police station work in what the MoJ calls the ‘most expensive and oversubscribed’ areas of the country. It says costs have been driven up by an ‘overuse’ of duty solicitor schemes in some parts of the country, particularly where there are ‘too many firms competing for business’.

The consultation does not concern itself with how the duty solicitor scheme operates or how successful or otherwise it is at delivering access to justice. Some of the proposed cuts, however, will affect the duty solicitor scheme in that more firms can be expected to pull out of publicly funded work rather than go bankrupt.

Joy Merriam, chairwoman of the Criminal Law Solicitors Association and a solicitor at London firm Duncan Lewis & Co, described the consultation as a ‘peevish response’ to the Legal Services Commission’s failure to roll out best value tendering – which would have obliged law firms to tender for criminal contracts, but has been put on hold until certain problems are resolved.

Merriam said: ‘The proposed cuts will have the same effect as BVT, which is to wipe out firms’ 5% profit margins and push them to the brink of bankruptcy.’ The government is on a crusade to reduce the number of solicitors doing the job but is doing nothing about reducing demand, she adds. People will still be detained at police stations.

Merriam deplores the government’s determination, as manifested in the consultation, to attack criminal defence provision at the ‘sharp end’ – the police station and in the magistrates’ court. All payment is under scrutiny, she says, including committal work and advocacy, which hits the junior bar hard too. ‘Health and education are facing cuts because of the recession,’ she says. ‘So are we, except we suffered cuts during the boom too.’

Duty solicitor work is under attack from all sides, says Merriam. Criminal Defence Service (CDS) Direct is now an all-too-familiar threat. It has been providing call centre-based advice to police station detainees since 2005, taking work away from duty solicitors. One business with a franchise to offer CDS Direct is famously not even a solicitors firm – it is Bostalls, which is owned not by solicitors but by former members of the Metropolitan Police Service.

Christopher Dowd, a solicitor at London firm Fisher Meredith when, in April 2008, it closed down its criminal department after 30 years, agrees the system is under enormous pressure. ‘It was death by a thousand cuts,’ he says. ‘Fixed fees are just not viable, even if you stack ‘em high and sell ‘em cheap. And anyway, that’s not the Fisher Meredith model – we built the firm’s reputation on quality and we wanted to maintain the highest standards.’

Dowd was kept on as a partner with responsibility for private criminal work and is also now a level 2-accredited immigration and asylum law practitioner.

‘I would hate to be in [publicly funded] criminal law now and, although it is one of the pillars of the whole system we live by, I will never go back if I can avoid it.’ If he knew of anyone at university now reading law and considering publicly funded criminal work he would ‘spend an eternity dissuading him or her from doing so’, he says. Students could try going to the junior bar, but income is right down there too. ‘In fact, I don’t know how anyone can survive the constant cuts to legal aid. It’s a legal football, there are no votes to be won and they will keep making cuts until it’s finished.’

Dowd, like increasing numbers of junior bar members, added accreditation in immigration and asylum law to his skill set, both to offer clients a wider service and to take advantage of public funding. But he has learnt that this area is not immune from the depredations of the LSC either. ‘The firm made 15 pages of representations in a recent asylum case,’ he says. ‘We did psychiatric assessments and spent hours and hours on the matter. We billed for over £1,000 and received £123.80.

‘We took it on the chin because it was an exceptional case. A legal aid firm cannot sustain that sort of loss. It would go broke. So why do it?’

But the ‘why’ isn’t in doubt. The duty solicitor scheme, as Dowd implied, is society’s assurance that, irrespective of your wealth and status, you are guaranteed skilled representation before the criminal courts. The scheme is a mark of a civilised society that values individual freedoms and the independence of the judiciary from government.

Too bad the government says we can no longer afford it.

These are a few of the difficulties encountered by duty solicitor Sacha Alexander over the years she has represented clients in court. Alexander, the other partner to Liam Gregory in Tonbridge firm Clarke Kiernan, says they all demonstrate a lack of respect for the court, alienate the bench and weigh the case against the defence.

Other defendants bring problems that are not of their own making, she says, such as mental illness, illiteracy and the need for an interpreter.

Her job is far from an easy one, and it was an eye-opener to shadow her through a day’s work at a magistrates’ court.

We sat in a room near the main doors to the court, close to where defendants and their friends loitered outside, in a fug of cigarette smoke, waiting for their cases to be called. Alexander spoke to her clients individually, hearing their versions of events and contrasting them with the details provided to her by the prosecution.

One young man sat with his wife-to-be a brooding presence beside him. He had got into a drunken fight a week or so before their wedding day. It wasn’t the first time he had been in a punch-up, but compromising their marriage arrangements in this way had led, Alexander was told, to his being turfed out of the home he shared with his fiancee and forced to move in with his mother. They hoped to avoid a custodial sentence so that the wedding ceremony could go ahead as planned – and so they could go on a honeymoon, that was already booked and paid for.

He seemed to think the whole affair was a bit of laugh. His young lady clearly did not, not least because he had seemed a reformed character. He had gained qualifications at work, despite problems with reading, and seemed established on the straight and narrow. His chosen garb for the hearing was a pair of shorts, the type that reach to below the knees. Like Gregory’s client in the main article, this young man seemed much too personable to be in trouble with the law – again.

Alexander later spotted him chatting amiably with the fellow he had been fighting, the two of them seemingly the best of mates. Both got off with fines, with Alexander’s client – by virtue of his having a job – paying much more than his unemployed new friend, which seemed somehow unfair.

We sat in court awaiting the appearance of Alexander’s next client. There was a hiatus in the proceedings because the bench, still hearing the previous case, had retired to another room to consider a point of law. The defendant was left sitting in the secure dock, behind reinforced glass, alone. The prosecutor from the Crown Prosecution Service and the defendant’s solicitor, meanwhile, loudly discussed their fantasy football teams. The clerk of the court gently ribbed the CPS man for participating in the Sun’s fantasy football competition. She was concerned, she said, for his education.There was movement in the dock as two burly security guards entered and sat flanking the defendant. He would have known then that he was being remanded into custody. He showed no emotion, either then or when the bench returned to give the anticipated judgment.

Alexander’s client was up on two separate and unrelated charges, one of which was causing grievous bodily harm and was heard first. He had been in his local pub when some men had goaded him into a fight. The landlord had become involved and the brawl had turned into a free-for-all during which people had sustained injuries tumbling down stairs. They were just after compensation, the defendant said, looking for a payout. The hearing was remanded until October.

The second charge was for possession of an illegal drug that the police had discovered when searching the defendant’s home. It was heard in the courtroom adjacent to the first one so the bench would approach the defendant without preconceptions (assuming they did not read the order of cases for the day). He had been to counselling to kick the drug habit, he had told Alexander earlier. The drugs were left over from before he had gone ‘clean’. He had no intention of using them or selling them. The hearing was also remanded.