Thank you to Martin and also to MOJO.
I’m here partly in my capacity as Secretary of the Criminal Appeal Lawyers Association (CALA). I know that that organisation owes a great debt to MOJO, firstly for the support that its given to CALA and secondly because we all know of the fantastic level of support that MOJO gives to individual defendants. Support is pretty thin on the ground even to the point where there are people leaving prison destitute and I read that when Robert Brown left prison, his grant was £ 200 from MOJO. That’s the sort of practical support that’s being given.
I was at MOJO’s AGM meeting last year and I wrote out what I was going to say 2 nights ago, and happened to look back at what I wrote a year ago. I was half-amused and half-dismayed to discover that I was going to say exactly the same thing this year.

That is because nothing has changed over the last year I’m afraid, except that perhaps things are getting worse, and the outline of what is happening is becoming clearer. Its not a very good picture. I’m going to give you the practitioner’s perspective on this.

I would say that we’re now entering a state of crisis in the criminal justice system.

I will start by saying a little bit about defence lawyers. MOJO has highlighted the way that defence lawyers are implicated in miscarriages of justice. When you listen to what Don Hale has said about those events in Derbyshire in the early 1970s, you have to ask why it was that the defence lawyers didn’t look at how the exhibits were kept; why the defence lawyers did not examine those photographs; why evidence wasn’t found at the time? I’m afraid this is a pattern that you find (and I’ve done quite a bit of research on it) in every miscarriage of justice, a failure by defence lawyers.

In my experience, if you do the job really well, its very unlikely that somebody is going to be wrongfully convicted. Equally, having dealt with many such cases, you find in the lawyers’ files some of the following:
1. They didn’t know what the law was, which is pretty bad – these people are paid to be lawyers.
2. They gave inadequate advice in the police station – if any at all. One case I dealt with there’d been a total of 12 minutes between lawyer and client, and after disclosure and before interview a total of 52 seconds. Fortunately the lawyers entrance and meeting with the client was recorded on the custody area video before a sixteen year old with learning difficulties had gone into the interview on a murder charge.
3. You’ll find a lack of engagement in the process of disclosure. You’ll find breaches of the professional rules.
4. You’ll find that things weren’t prepared for trial – witnesses weren’t found and statements weren’t taken.
5. You’ll find issues weren’t identified covering forensic material and that counsel and experts weren’t controlled and managed.

All of this is happening still today. My most recent miscarriage of justice dates from only two years ago. Public funds are being poured down the drain and the most amount of money is going to defence lawyers who add nothing in terms of protecting defendants. This is an absolute crying scandal, and one of the reasons why I was so dismayed that I was saying the same things as I was last year.

I look back and I feel like I’ve been saying this for a long time.

We really need to ask, why is this still happening? Its 15 years since the government took over legal aid funding and took it away from the law society to run it. It was in 1999 that they set up the Legal Services Commission to take over from the Legal Aid Board with new powers to intervene and regulate the market effectively. Its three years since the government set the objectives that the criminal defence services now have. This includes enabling the defendant to have a fair trial and ensuring that the defendant meets the crown’s case on an equal footing. That is precisely what is not happening in so many cases. We are not dealing with these problems, and why not?

The first reason I think that we have to acknowledge in context is that there is a powerful public revulsion over crime, and its often dated back to the Bulger case – to the little boy that disappeared - and it was a terrible thing. It was said that then the politicians came under really great pressure to do something about crime. I don’t argue with that at all, even within my perspective as a criminal lawyer because at best, crime is an awful waste of resources and at worst, it just ruins peoples’ lives, in the same way that miscarriages of justice do.

If that were all that was being said, it would be fine, but its got worse than that. We’ve got locked into this utterly immature discourse about crime as a result of this political pressure. Loose thinking on the part of politicians and journalists, presumes that if a culprit can’t be found for a crime, then somehow the police have failed. And in the rush to try and resolve this completely false proposition, the idea of a fair trial has gone overboard. I can’t think of one major politician from any political party who’s actually used the words fair trial in public in the last three years. I don’t think its said or talked about any more. The last place I heard it from officially was in the objectives for the criminal defence service and nobody has mentioned it to me since in my professional capacity as a defence lawyer.

Finding the culprit now takes priority over everything - over public protection; over a fair trial and over the integrity of the system. That’s leading to a lot of unfortunate consequences. If you go back to when the famous miscarriages of justice happened, that was in the 1970s. And when you go back to that point you see that there was no protection for defendants; there was no protection in the police station against brutality or the fabrication of evidence. Then we had things improving through the 1980s and early 90s but now we’ve seen the swing back for a decade and gradually the police have taken back the ground, which they had in the 1970s. For ten years, they’ve kept up an incessant chatter about how the system needs to be re-balanced in favour of victims and witnesses. The consequences that we are getting for this are things like the criminal justice bill, which is a truly terrifying, authoritarian piece of legislation. The intention of this its said is to re-balance the criminal justice system in favour of victims and witnesses. >p>Well, that’s a fallacy because it is not a zero sum game here – to give rights to victims and witnesses, you don’t actually have to take away the rights of defendants, but that it seems, is what the project of the government is. There is stuff going on that is even more insidious than that!

What is more insidious, is (you can find it if you look it up on the internet) the report of the Audit Commission on the criminal defence service and on criminal legal aid. If you look up The Justice Gap Project you will find out what the Audit Commission is doing. They are looking for value for money. It is not asking - why are we spending this money on lawyers and what are we trying to get? Its still bleating on about the unjustified demands of defendants. It quotes 4 case studies, a couple of gems from these case studies illustrating why public funds are wasted on legal aid.

One defendant, A is arrested in the middle of the night and when he gets to the police station he demands the duty solicitor. That is supposed to be an example of what is wrong with criminal legal aid! What was the problem, did he not say please? I’m left simply not understanding what the problem is.

In another example a murder trial is delayed because the defence solicitors want to read the papers! Well, really, it should be obvious. This is the discourse that is coming from the Audit Commission. If you look at the Justice Gap Project, this is the idea that 12 million offences occur over the year; 5 million are reported to the police; something like 2 million are apprehended and 750,000 are convicted. So you have about a 1 in 15 chance of being convicted if you’ve committed a crime. That’s called the Attrition Rate. The Justice Gap Project is designed to close that gap, so it sets targets for everyone in the criminal justice system – not the defence lawyers I have to say, but for everyone else – the police, the prosecutors, the judges and court staff. They all have to hit more targets now for convicting more people.

It would be nice to think that this could be done by applying more resources or brain power, and generally making sure that matters came to court efficiently; that the defence were served with papers on time and that the police didn’t forget to turn up. But I don’t think it will be – I think it will be done quite simply by magistrates and judges making sure that more people are convicted, come what may. What an appalling prospect.

If you’re going to have this kind of discourse going on you need a very strong and adversarial opposition to it. For every David Blunkett, (and his department now openly talk about defence lawyers as ‘the enemy’) you need a strong defender of due process and fair trial on the other side. And who should that defender be? That defender of fair trial should be the Lord Chancellor. I know that the Lord Chancellor has said nothing in public about legal aid since the 3rd July 1998. He has silenced himself now for nearly five years on the subject of legal aid. Yet he is the person responsible for the funding, how its spent and whether it gives good value. And he has given up on the subject. There is no other way of expressing it.

At the same time the Crown Prosecution Service has gone from strength to strength. Its led by a professional lawyer David Calvert Smith and he sets the target and states what is important, making the views of that service known, and debates about the criminal justice system. Does the criminal defence service have a professional head? No it doesn’t. What you get is no leadership, not at any level, therefore the sort of culture that flourishes is negative, commercial, selfish and inward looking and doesn’t actually – with honourable exceptions – address the needs of defendants.

There’s been very much research on the problems that exist in criminal defence firms and I just want to say, what is it that we need? There are clearly many steps that could be taken. I think what we’ve got to do is get somebody in charge of the criminal defence service who provides an authoritative voice in government and the criminal justice system, that begins to counter-balance the whole of the discourse I’ve been talking about, to protect the rights of defendants. That person then leads the legal profession into a position where people who don’t want to do their job properly or who won’t train and equip themselves with the skills, are removed from their posts. That’s exactly the exercise that’s been going on in the last decade in other areas of professional services including medicine and teaching, with a lot of howling, a lot of controversy – but it has happened. Why isn’t it happening with the criminal defence service? Probably the reason why its not happening is because the Lord Chancellor is silent and the criminal defence service future is determined by the Home Secretary who is deeply authoritarian and responds only to the public panic about crime. There’s also the Treasury who don’t want to spend any money.

My manifesto therefore, for what we should do generally, in order to ensure that miscarriages of justice don’t happen, is that we must take drastic measures to ensure that we don’t have too many defence lawyers and that they’re not actually competing with each other for the work. That is entirely wasteful. Defendants who haven’t been in the system before, who may be offered cash bribes (CD players, tracksuits, trainers and so on) by lawyers in order to bring them their cases, are simply being driven in the direction of an inadequate lawyer. That must be dealt with.

We need an inspectorate that will look at the quality of criminal defence work, and who will investigate the allegations that are often made from the Home Office camp, that defence lawyers will often drag their feet, prolonging cases and fighting unnecessary cases. If that were being done by defence lawyers it would be a bad thing. But is it not simply an attack on lawyers who do their job properly? Let’s have an inspectorate who can answer those questions and put these issues to rest. We need incentives for lawyers to retire in areas of over supply and we need incentives for them to relocate in areas where there are insufficient numbers. There are areas in the country where you cannot find a decent lawyer. If you want a decent lawyer you have to come down to London.

If we need to set up public defender offices in those areas then so be it. Whether its public or private I don’t care but I think we need to be talking about quality above all.

Let us finally adjust the structures of the profession and the rewards that are offered to the profession, to ensure that people of adequate experience take the very serious cases. This again is something that I’ve seen too many times in miscarriage of justice cases. They have been conducted by lawyers with insufficient experience; my two cases in the Court of Appeal at the moment were both done by solicitors with less than four years experience who couldn’t control counsel, couldn’t control and manage the experts and couldn’t control the time table. They were bounced into court when they weren’t ready and a lot of the preparation work hadn’t been done. They probably didn’t know what preparation was needed and when counsel, for whatever reason (often there’s a late change of counsel) didn’t help them, nothing happened. That has got to be stopped.

I’d go further than that in relation to Appeals. What I would dearly love to do is to take the funding of all work on appeals away from the Legal Services Commission and the Criminal Defence Service and I would give that funding to the CCRC. From the CCRC I would take away the power to investigate the cases and make them a body that simply contracts, with skilled and experienced lawyers to do the investigations.

That way you would have proper monitoring of who took on the appeals advice work and it would make sure that it only ever ended up in the hands of people who could do it. If you did that, you would end the scandal of incompetent lawyers.

There may be a sequence of incompetent lawyers before one finds a decent lawyer to take on their appeal, and each incompetent lawyer will lose some of the papers and will waste no end of funds, and will probably waste years of the defendant’s life in custody.

The CCRC could be using its investigative powers to ensure that things that need to be looked into – that can’t be obtained normally without a court order, such as telephone records – are explored. I think it fails to do this at the moment. Finally, the CCRC should be conducting an independent review of the original lawyers in a trial, where every time an appeal is quashed. One thing that would motivate defence lawyers, its the knowledge that your mistakes don’t just go to jail for 15 or 20 years; they will actually come back and you will be investigated and somebody will say something about the quality of your work.

I’ve packed a lot in here – if anyone would like to see me afterwards and offer me a job, I’m completely open! I just wanted to add that I was reminded by John McDonnell that I was the solicitor for the Greenham Common women, and when John was arrested the sisters sent me to the police station to advise John. As I arrived on the steps, there was Paul Boateng looking very impressive as he always does – in one of his suits. He sent me away and I’d forgotten it was John but I’ve born a grudge against Paul Boateng ever since. I simply have to say that I know that Paul Boateng is holding the lever of the cash that is probably necessary in order to rescue criminal defence lawyers generally, from what is an increasingly unhappy plight.

Just let me give you two figures: £ 52 an hour is the rate I would be paid for working on your appeal. £ 100 an hour is the rate that a junior barrister would be paid. They sound like fantastic sums but out of the £ 52 there has to come out the rent, the insurance, the secretaries, the staff, reception, my wages etc. It cannot be done. Why do we let this go on?

Thank you.