We are delighted to welcome this guest post from Lucy Welsh. Lucy is a criminal defence solicitor in Canterbury, England. She is also currently completing her PhD on the issue of legal aid in the criminal justice system and teaches criminal law at the University of Kent.?
The system of legal aid in criminal proceedings exists to avoid defendants being presented as the victim of persecution by an overbearing state. The adversarial process assumes that the parties can access broadly comparable resources. Art. 6 of the European Convention on Human Rights protects this position by guaranteeing access to legal advice in criminal proceedings (to be state funded if necessary), by stating that advice must be adequate and that there must be sufficient resources for a defendant to be able to prepare his/her case.? In the UK, however, the government has focussed on value for money in administering this system, ignoring political debate about what actually constitutes value in specific circumstances. It is against this background that the Ministry of Justice recently released its consultation paper on Price Competitive Tendering (PCT).
The government aims to reduce the legal aid budget by approximately ?220m via the introduction of PCT in publicly funded criminal representation ? mainly at police stations, magistrates? courts and in Crown Court case preparation. PCT is a system in which firms are ?guaranteed? an equal allocated market share of the available work, thereby reducing the number of criminal defence forms by 75% nationally. Areas of practice not subject to PCT will face reduced rates of payment. This is an example of the trend towards privatisation in criminal justice, which limits the state?s obligations under the Human Rights Act.
The aim is to commence service in September 2014. The rapidity with which it is proposed that this scheme will be implemented will not allow a ?market? which has already suffered significant change and fee cuts to make the significant structural changes necessary for the PCT to be sustainable in the long term. The reality is that these proposals could easily be counterproductive in many ways.
When Legal Aid was introduced, it was accepted that adequate representation (now a necessity under Art. 6) required adequately remunerated defence advocates. However, profits for publicly funded criminal defence lawyers have become very slim, resulting in an already fragile market which is unlikely to be able to withstand the introduction of radical reforms. Furthermore, there is no acknowledgement that, after the initial round of contracts and the loss of significant numbers of firms from the market, those firms that are left will be in a strong position to increase their minimum bid price disproportionately. There is some evidence that this happened when a similar model was introduced in North America.
Presently, defendants can be represented by either an on-call solicitor or a solicitor of his/her choice. PCT proposes to remove the right to choose a lawyer, which eradicates the essential element of trust that exists between lawyers and their clients. Clients are far less likely to accept advice given by a lawyer who is not trusted. Lawyers who know their clients are also likely to be able to deal with their cases much more swiftly than a lawyer who has to start afresh each time the lawyer and client meet. This would result in duplication and inefficiency at best; serious miscarriages of justice at worst.
The efficiency of the criminal justice system is dependant, to a large extent, on the co-operative practices that exist between advocates and the court. The presence of lawyers facilitates the smooth administration of the proceedings. Indeed, co-operative working practices have been encouraged by the Criminal Procedure Rules and initiatives such Stop Delaying Justice! The removal of client choice and ?guaranteed? levels of work mean there is no incentive on defence advocates to co-operate with the courts as professional reputations no longer matter. Streamlining practices means that there is less time to be spent on cases, which may result in inadequate preparation and longer term inefficiencies such as an increase in the number of ineffective trials.
So far as quality is concerned, there is evidence that, following the introduction of standard fees, lawyers altered their behaviour towards case preparation. The introduction of price competitive tendering, and the proposed reduction in funding in other areas are likely to exacerbate such problems. Furthermore, low levels of remuneration not only have a detrimental impact on the quality of advice and representation received, but also exacerbate the problems that already exist in attracting new trainees to the profession which will have an impact on diversity in the profession.
Article 6 of the European Convention on Human Rights requires member states to provide access to adequate publicly funded defence services for those accused of crimes that cannot afford to pay for representation, to enable effective participation in the proceedings. There is no incentive under PCT to provide a good quality service as the only thing that matters is cost. The government prefers management tools such as the Specialist Quality Mark which is largely unrelated to actual quality of advice and representation. As long as internal review procedures exist and are being followed then auditors are unlikely to intervene ? they are not lawyers after all. The government previously attempted to use a system of paper peer review in which lawyers reviewed each other?s files but there was no assessment of the quality of advocacy or advice in person. The European Court of Human Rights has already stated concerns about the quality advice received as a result of poor levels of remuneration in other countries. If more draconian measures are pursued, quality may well decrease to a level that the ECtHR would find unacceptable.
Ultimately it seems that the government has failed to properly examine sources of expense in summary criminal proceedings. Instead the government seeks to impose managerial influences which fundamentally alter the solicitor/client relationship in favour of factory-like case processing. Lawyers will have no incentive to build trusting relationships with clients which could further decrease efficiency and affect quality. Decreased quality risks the integrity of the criminal justice system. Reductions in quality increase the risk of inadequate access to resources, which increases the risk of wrongful convictions. While the Ministry of Justice may be demonstrating that its faith in the market outweighs its belief in the foundations of the criminal justice process, the profession appears to have united in their adverse response to the proposals. Only time will tell if their response will be as effective as it has been vociferous. There is a petition available to sign ? please do!
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From time to time we invite academics, advocates, activists and others to contribute to HRinI. To suggest a guest post, e-mail editors[at]humanrights.ie
Source: http://humanrights.ie/civil-liberties/transforming-legal-aid-in-the-uk/
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