Criminal law: case for the defence

The gripping storyline in The Archers is giving listeners an insight into the criminal justice system and putting the complexities of criminal defence centre stage. For two years, the Radio 4 drama has been building up to Helen Titchener stabbing her abusive husband – and it could not be more topical, unfolding alongside the introduction of the new crime of ‘coercive control’ under the Serious Crime Act 2015.

While real-life criminal barristers were quick to offer to defend Helen, it is her fictional solicitor Dominic Farrell whose every move was first analysed on social media, from her initial ‘no comment’ interviews, to the bail hearing; to how child witnesses are interviewed, defence strategies, how the system treats pregnant women, and how Helen will fund her defence.

So far, practitioners say there have not been any howlers – apart from the overly dramatic ‘take her down’ at the end of the bail hearing – though time will tell if the script writers go on to sacrifice reality for drama.

But there is certainly no shortage of material for them to tap into: legal aid; bail and sentencing reforms; delays in getting cases to court; the increase in recent and historic sexual abuse cases; court closures; and possible strike action by court staff over pay and spending cuts. What is more, the promised digital revolution to create paper-free courts is beset by problems.

Top of the agenda is legal aid. The bitter fight over the dual own and duty provider crime contracts may have ended in January when justice secretary Michael Gove scrapped the process, but uncertainty continues (see box).

So what happens next? There are still issues to resolve from the aborted process. The Ministry of Justice would not comment on whether it is going to pay the costs of the judicial review and the 100-plus procurement challenges, because some issues are still live. And it is taking a robust stance when it comes to paying compensation to firms left out of pocket by the tendering process. An MoJ spokesman says the documents governing the process expressly provided that the Legal Aid Agency (LAA) had the right to vary or cancel the process ‘at its absolute discretion’, and that applicants were ‘solely responsible’ for any costs and expenses.

Looking forward, the LAA has extended existing contracts to allow time to run a ‘simpler, non-competitive process’ to award new contracts later in the year.

The MoJ spokesman says it is working with practitioner groups to develop the new contracts, which will be based on ‘quality requirements’, with ‘no separation between duty and own client work’. Competitive tendering is no longer needed, because ‘in this instance, a process of natural consolidation took place in the criminal legal aid market as crime reduced and natural competition took place’.

‘We told the MoJ that time and again,’ says Steven Bird, director of south-west London criminal defence specialists Birds Solicitors. ‘I still feel angry – we have been put through so much stress and anxiety for no real benefit.’

With 25 solicitors, his firm tendered for four local contracts. He got two but not the most local one, Wandsworth, despite being 100 yards from the police station. He says costs discussions are continuing over his procurement challenge: ‘I am out of pocket on legal fees and that doesn’t take into account the months of fee-earning time I have spent on this.’

However, one positive step, he says, is that the MoJ ‘does seem to have learnt it needs to listen to those actually doing the job if change is going to succeed’.

Another area where the justice secretary listened was over legal aid rates, reversing last July’s 8.75% cut. The MoJ also points out that the spending review settlement reached with the Treasury for the next five years leaves criminal legal aid ‘almost untouched’.

But the sector remains under huge pressure, with legal aid rates lower than in 2010 – and less work. LAA statistics for October to December 2015 show a 7% drop in completed work compared with the previous year. Spending on lower-level crime was down 14%, reflecting the fee cuts.

Zoe Gascoyne, a partner at Liverpool criminal defence practice Quinn Melville, took over as chair of the Criminal Law Solicitors’ Association (CLSA) in October – a very ‘turbulent time’, she says. While her firm does predominantly own-client rather than duty solicitor work, both she and colleagues feel very strongly about legal aid.

Liverpool was the first area to take direct action over fee cuts and ‘we stood strong for the duration’, she says, adding: ‘All we ever wanted was for the government to listen and engage with us and we have achieved that.’

She sees her role now as trying to secure some certainty for firms. Particularly positive, she says, is that previously ‘fractious’ relations with the Criminal Bar Association have improved. ‘The Law Society was also given a very hard time,’ she says, ‘and they withdrew for the period the “strike” was ongoing. But they are also back round the table with the practitioner groups and it is very much a collaborative approach.’

Last summer’s direct action put the Society in a difficult position as a professional body rather than a trade union, says its head of legal aid Richard Miller. ‘There are still a few scars,’ he acknowledges, ‘but we are now in a position where we have a very good working relationship with all the practitioner groups with a common agenda to improve the system – and, so far, discussions with the MoJ have been fairly productive.’

Jon Black, immediate past-president of the London Criminal Courts Solicitors’ Association, says there is a ‘huge desire to get on with our jobs, build our practices and, most importantly, represent our clients’.

He says the association’s concern is that any new contract will enable the maximum number of firms to remain in business. ‘I am not a supporter of consolidation in any shape or form,’ says Black, founding partner of BSB Solicitors. ‘Others would like it because they fear the drop in volume of work. But my view is there is room for practices of all shapes and sizes and they should be encouraged, particularly in rural areas.’

However, experienced criminal practitioner and Gazette commentator Anthony Edwards expects more firms to be driven out of the market. ‘The new contracts are likely to be similar to the current ones, with some rationalisation in how duty slots are allocated,’ he says. ‘The MoJ will then let the market rule, which will drive firms out so we will be left with a lot of smallish firms. There is no relief in the near future from the position that there are too many firms chasing too little work at inadequate rates of pay.’

While the MoJ will get the consolidation it wants, he says, ‘what will that mean for quality and service? It will be very interesting to see what quality standards the LAA puts into the new contracts because my guess is they will be unachievable at the rates being paid.’

Hodge Jones & Allen (HJA) partner Raj Chada, who specialises in protest law and white-collar crime, says the MoJ still has to rebuild trust after so much time and resources were wasted. ‘Reversing the rate cut is welcome; we shouldn’t be churlish,’ he concedes. ‘But it doesn’t deal with the overall question of sustainability when the vast majority of firms are still struggling to survive. The gap between what you can do on legal aid and what you can do for a private client is ever increasing, and it is disgraceful and unfair.’

HJA was awarded 12 of the 13 contracts it bid for. Had the new regime gone ahead, Chada says the firm would have taken on seven or eight more staff, mainly solicitors. ‘We won’t expand to that level but we are still considering a small expansion,’ he says. ‘We recognise we will have to do more private work and more of the very high cost cases, but we wouldn’t pull out of legal aid.

‘Most of our current funding comes from legal aid so it wouldn’t be a viable business decision. But, more than that, many of us entered the profession because we want to do publicly funded work.’

However, the level of fees has to be sorted out, he says: ‘I am doing a case where there are 11,000 items on the unused material schedule. I don’t get paid to look at them so the firm will end up paying for the privilege of doing this case, which is bonkers.’

However, he stresses he does not want to come across as the ‘stereotypical whingeing defence lawyer’. There needs to be more fundamental reform because the level of inefficiency on all sides is ‘staggering’, he continues: ‘We need to be asking, who do we prosecute and why? Do we prosecute youths in the right way? Do we deal with drug offences in the right way? Ultimately, it is answering those questions that will save money, not just cutting the legal aid budget.’

When it comes to the new contracts, there are two key issues to resolve. The solicitor ‘ghosts’ – duty solicitors whose names remain on the rota despite having retired, emigrated or even died – and ‘touts’, solicitors who pretend to be the duty solicitor or make unsolicited approaches to unrepresented defendants at court.

The allocation of duty slots is likely to continue being based on headcount because there is not time to consult on any significant change.

But Miller says: ‘We are having some constructive discussions on how to tackle ghosts, such as a much clearer definition of who qualifies for duty slots. We are also looking at the Criminal Litigation Accreditation Scheme (CLAS) to see if a form of reaccreditation would help purge the rotas of those no longer doing duty work.’

The Society is also working with practitioner groups on options to tackle ‘touting’. ‘We would need to define what is meant by touting,’ Miller says, ‘so the LAA could make such behaviour a breach of the criminal legal aid contract; the SRA could make it a breach of professional rules; while CLAS could be revised to include a code of conduct.’

Gascoyne is chief assessor of CLAS and says it ‘definitely’ needs updating. The legal aid rates and volume of cases are so low it has led to ‘unattractive’ business practices, she says: ‘We need to look at how we conduct ourselves as professionals and be brave enough to address those behaviours we don’t like. Any measures to stop them must be profession-driven.’

Other issues still to be resolved include restructuring the litigators’ and advocates’ graduated fee schemes and the MoJ’s proposal to have a panel of publicly funded criminal defence advocates. ‘We are struggling to see what the panel would achieve that the Quality Assurance Scheme for Advocates wouldn’t,’ Miller says.

Another area of controversy is court closures, which affect about 40 criminal courts. The MoJ argues that closing ‘underused and dilapidated’ court buildings will raise £40m to reinvest in the justice system. It maintains that over 95% of people will still be able to reach a court within an hour ‘by car’ – an arbitrary test, say practitioners, when many of their clients do not have a car.

The MoJ has pledged to put money from court closures into improving technology and online options. In the meantime, the judiciary-driven Better Case Management system was rolled out nationally in January, while the HM Courts & Tribunals Service Digital Case System has been rolled out to all Crown courts apart from six, including the Old Bailey, which still need building consent.

The National Audit Office (NAO) reported recently that, despite the ‘ambitious’ reforms led by the MoJ, Crown Prosecution Service and judiciary, two-thirds of criminal trials still do not proceed as planned. A victim of crime giving evidence at a Crown court trial in north Wales has a seven in 10 chance their case will go ahead on the scheduled day. This drops to a two in 10 chance in Greater Manchester.

The criminal justice inspectors’ report Delivering Justice in a Digital Age found some improvements but also significant problems. Agencies’ computers still don’t ‘talk’ directly to each other; there is no reliable way of sharing CCTV, interview and 999 recordings, photos or video footage, so it is still being sent on discs; some defence practitioners are not using the secure email system; and the Court Store system is slowing up cases ‘dramatically’ where there are multiple defendants because each record has to be updated individually.

BSB’s Black says little is being achieved when IT programs are ‘clunky’, the secure email system slows through overuse and the LAA portal is down.

However, Matthew Claughton, managing director of Manchester criminal defence specialists Olliers, is excited at the prospect of paper-free courts and the ability to work remotely: ‘Digitalisation will encourage better dialogue because it will be harder to ignore an email or say you haven’t received items of evidence. There won’t be any doubt what has gone on to the system nor who has looked at it.’

Other developments include the Policing and Crime Bill, which introduces a framework for increased accountability and scrutiny of the pre-charge bail process following criticism over the length of time suspects remain on bail.

There will be a presumption, says HJA partner Ruth Harris, who specialises in serious crime, that suspects released before charge will not need to be bailed, so they will not be given a return date or be subject to bail conditions. Those who need to be bailed will be subject to a 28-day limit, extendable for up to three months by a senior officer and, after that, on application to the magistrates’ court.

‘On the face of it this a tremendous step forward,’ she says. But, she cautions, it is unclear how much information police will have to give about the investigation’s progress so that suspects can challenge their bail. The bail ‘clock’ also stops when the matter is referred to the CPS for a charging decision. Most worrying, she says, are those not on bail but still under investigation – the elderly, the young, those without a previous conviction – who will have no means to challenge the ‘whiff of suspect’ hanging round them.

Practitioners are also concerned that the Sentencing Council’s draft guideline on credit for guilty pleas could introduce false incentives. The consultation, which closes on 5 May, proposes more stringent time frames and fetters judicial discretion to encourage more defendants who are ‘aware of their guilt’ to plead guilty as early as possible.

Harris says it is rare that the Crown’s case is served in its entirety by the first opportunity to plead. ‘There is a worrying reference to defendants “playing the system’,’’ she says, ‘but it is not “playing the system” for a defendant to want to be fully advised on the evidence before entering a plea’.

At the same time, police and courts are swamped by a huge increase in sex abuse cases, both recent and historic. Cases can take up to a year from allegations to charge, says Nigel Richardson, head of HJA’s criminal defence team, while the NAO reports a 12% rise in cases in Crown courts over the last five years.

There have been calls for anonymity to be reintroduced for those charged, but Richardson is not in favour. ‘I can see arguments for the system being open from the beginning,’ he says. ‘It is a huge problem for those in the public eye but, for the vast majority, there is no publicity until the trial.’

With so much uncertainty and pressure, is there a new generation of defence practitioners coming through? ‘Criminal law is a vocation,’ says Gascoyne. ‘I have been doing it for 14 years and am still passionate. But talented young solicitors are being driven out because it is such a responsible role but so poorly remunerated.’

Claughton is optimistic. His firm, which won the Manchester Legal Awards Crime Team of the Year 2016, has one trainee – the 27th in his 28 years at the firm, 11 of whom have stayed on after qualifying. ‘The appetite for the role is coming back after a big void,’ he says.

Whether the highly charged case in The Archers will fire the imagination of future defence lawyers or put them off for life remains to be seen.

Grania Langdon-Down is a freelance journalist