Dr. Tom Smith of Plymouth University, in an extract from his recent research on the role of the criminal defence solicitor, here gives BLS members an insight into his conclusions
Criminal defence lawyers advance and protect some of the most fundamental rights of citizens in liberal democratic societies.1 Legal representation and assistance is a central principle of due process: whether needed in the Police Station or the dock, delivered by Barristers, Solicitors, Higher Court Advocates and Accredited Representatives.
The wide recognition and vital importance of this right is exemplified by the United Nation’s Havana Declaration, a set of principles relating to the role of lawyers.2 The first of these principles – which the UN asserts should be ‘respected and taken into account by Governments within the framework of their national legislation and practice’3 – states that ‘[a]ll persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.’4 This is an unambiguous acknowledgement of the significance of legal assistance to the fairness of criminal proceedings – and continues to feature prominently on the UN’s agenda in 2012.5 The principle is replicated in International, European, and English and Welsh Domestic Law. The Rome Statute of the International Criminal Court states that someone accused of a criminal offence has the right to ‘conduct the defence in person or through legal assistance of the accused’s choosing’.6 The European Convention on Human Rights and Fundamental Freedoms guarantees the right of the criminally accused to ‘to defend himself in person or through legal assistance of his own choosing’ under Article 6(3)(c). European Court of Human Rights jurisprudence expands on this. The case of Salduz v Turkey underlined that ‘although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer… is one of the fundamental features of fair trial’.7 Salduz also established that the right to a defence lawyer arises at the investigative stage of criminal proceedings. Subject to ‘compelling reasons’, the court asserted that the Police must provide ‘access to a lawyer… from the first interrogation of a suspect by the police’,8 thus laying down an utterly essential protection for those arrested and detained. The EU’s ongoing ‘Stockholm Programme’ provides further evidence of the cruciality of legal assistance.9 The programme includes a European Council ‘roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings’, a key feature of which is ‘the right to legal advice (through a legal counsel) for the suspected or accused person in criminal proceedings at the earliest appropriate stage’ – described as ‘fundamental in order to safeguard the fairness of the proceedings’. In England and Wales, the right to legal assistance afforded by the European Convention on Human Rights has effect through the Human Rights Act 1998, and is supported by centuries of case law and is enshrined within PACE.1
Yet, in contrast to such overwhelmingly authoritative recognition, it is arguable that many inside and outside of the legal-academic community underestimate the value of defence lawyer: particularly members of the public. Raymond Brown suggested that ‘[a] Delegate of the Estate of Real People would probably ask “Aren’t most good lawyers bad people? Don’t they represent horrible clients and use clever technicalities to thwart true justice?”’.11 As professionals paid to shield potential offenders, defence lawyers are regarded almost as enemies of justice by some; obstructors of fairness engaged in a role which few people endeavour to comprehend and many more disparage.12 The media’s tendency to perpetuate the enduring image of defence lawyers as deceptive and untrustworthy is well-worn and has stifled a more balanced and realistic debate in the public domain. As such, the criminal defence profession is ‘disdained, mocked and unappreciated in both the popular and the legal culture’.13 Yet, it is not unreasonable to assume that the average citizen expects a defence lawyer to be on ‘their side’ should they need one; that their lawyer will be suitably qualified and competent to protect their interests, and will work diligently for them alone. It is uncertain what proportion of the public in England and Wales are aware of the universal right to a defence lawyer and what that service provides. In a recent study by Vicky Kemp,14 54% of a sample of respondents who had been arrested reported that they sought legal assistance at the police station.15 For those respondents who did not, a major reason for declining representation was the belief that legal assistance was unnecessary.16 Kemp argued that this belief often stemmed from a lack of understanding of what was happening at the Police Station and ignorance about the right to free legal representation.17 Beyond this, one can only speculate about the level of awareness members of the public have of this right.
Defence lawyers are entrusted with critical responsibilities within the criminal justice system – to protect and defend some of then most vulnerable individuals in society, and to ensure that criminal proceedings are legitimate, justifiable and legal. Yet a limited number of British academics have devoted attention to scrutinising the nature and scope of this vital role in recent years.18 This dearth of focused research in England and Wales contrasts with American scholars – particularly David Luban, Monroe Freedman and William Simon – who have dominated the debate about legal ethics over the past 40 years, and have written extensively about the obligations and duties of adversarial lawyers. The result is an under-developed body of modern academic discourse contemplating the work and role of defence lawyers in this jurisdiction. This is particularly surprising since the last decade has seen the defence role experience significant and unprecedented change.
Since their inception in 2005, the Criminal Procedure Rules have reshaped the landscape of criminal justice and substantially impacted on the role of the defence lawyer. Various ‘case management’ obligations are incumbent on all parties in the case.19 The defence lawyer is now obliged to deal with a case ‘efficiently and expeditiously’, identify at the an early stage the ‘real issues’ and provide information about witnesses, written evidence, and points of law.2These may run counter to the defendant’s interests. Where the defendant wishes to put the prosecution to proof – as he or she is entitled to – the duty of ‘convicting the guilty’ (one of the first ‘overriding objectives’ of the rules) is certainly at odds with the accused’s interests. Yet, the defence lawyer is obliged to help the Court fulfil the ‘overriding objective’: does this, by extension, include convicting his or her client? One must presume it does, making for a very controversial conflict between the defence lawyer’s duty to the defendant and the Court. The Rules continue to be updated and remain an issue of crucial importance in the sphere of criminal defence work. More recently, the Government attempted cripple the universal right to legal assistance in the Police Station by making it subject to a means-test. The highly controversial provision – contained in Clause 12 of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) – would have allowed the Police to require vulnerable suspects to produce personal financial information in the Police Station in order to justify legal assistance. Described as ‘unworkable’21 and ‘bizarre’,22 the provision would have almost certainly fatally undermined the ‘unfettered’ universal right to a defence lawyer at the most dangerous stage of the criminal process.23 The Government withdrew Clause 12 – but the saga sent an unmistakable message that the pivotal role of the defence lawyer is not immune from the axe of the Coalition. This near miss – and the shrinking budgets of criminal defence firms tasked with representing suspects in Police Stations – were given a worrying context in May 2012. After seven years in prison for murder, 25-year-old Sam Hallam was freed; a victim of a miscarriage of justice caused by ‘ineptitude and at worst by dishonesty on the part of some police officers’. As the noose tightens around the throat of the defence profession, the spectre of more grave injustices looms large.
Another recent signal of the changing context in which the defence lawyer must operate is the ‘Stop Delaying Justice!’ campaign. Rolled out at the close of 2011, the policy initative is a spiritual successor to ‘Criminal Justice: Simple, Speedy, Summary’ (CJSSS) sharing the common aim that proceedings in Magistrates’ Courts are to be ‘fully case managed’ from the outset.24 This, in short, requires that cases be shorter and more efficient, with less delays. But fears have been raised about the effect of such a focused drive on the legitimacy and fairness of summary proceedings for the defendant. In April 2012, the BBC reported on the potential for miscarriages of justice caused by rushed procedure and expedited disclosure – particularly where defendants are expected to enter pleas without seeing all the evidence against them.25 The place of the defence lawyer in this scheme is fraught with difficulty; the court expects them to deliver speedy pleas and hasty disclosure, while the client they serve depends on them for protection and representation. In addition, hanging above like the Sword of Damocles is the threat of a wasted costs order.26
To some extent, all of the changes mentioned above – and myriad examples omitted – have generated confusion and uncertainty about what the defence lawyer’s role is in the 21stCentury, with more potential ethical conflicts for defence lawyers to resolve than ever before. Of the few academics who have broached the subject, some have suggested that such changes herald a shift away from an adversarial criminal process in England and Wales, towards a more managerial and even inquisitorial style of criminal justice. Consequently, the traditional principles of zealous and detached partisanship which have underpinned criminal defence representation have been undermined. Despite this, such substantial issues have attracted limited attention outside of the circle of practice. Four conclusions can be drawn from all of the above. First, there is widespread and long-standing recognition in international, continental and domestic law of the importance of the defence lawyer to fair criminal proceedings. Second, there is limited public understanding of what defence lawyers do and why. Third, modern and contemporary theorising and commentary in this area, particularly in the case of British academia, is under-developed. Fourth, this important figure in the criminal justice system is now operating in a shifting procedural context, raising serious questions about the nature and extent of the criminal defence role within the adversarial tradition of England and Wales. The criminal defence lawyer should undoubtedly feature more prominently in academic literature and commentary. It is a crucial element of the adversarial criminal justice system which – some would argue – is under attack. Such changes are profoundly distorting the relationship between defence lawyers, clients and the Court: it’s time for scholars, practitioners and policymakers to have a frank debate about this.
Dr Tom Smith is a Research Assistant and Associate Lecturer in the Law and Criminal Justice Centre at Plymouth University, and completed his doctorate within the Centre for Legal Research at the University of the West of England, Bristol.
2 Office of the High Commissioner for Human Rights (1990) ‘Basic principles on the role of lawyers’ – Adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba.
5 In April 2012, the UN’s ‘Expert Group on Strengthening Access to Legal Aid in Criminal Justice Systems’ produced a set of draft principles underlining the importance of legal representation throughout the criminal justice process.
6 UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9:http://www.unhcr.org/refworld/docid/3ae6b3a84.html (accessed 25 May 2011)
1 Key cases include Kennedy v Broun (1863) 13 CB(NS) 677; Rondel v Worsley  1 AC 191; R v Munnery  94 Cr. App. R. 164; and Medcalf v Mardell  1 AC 120 (HL). Under the Police and Criminal Evidence Act 1984 (PACE), those arrested and held in custody are entitled to consult with a solicitor at any time (s.58(1)).
18 Notable British scholarship in this area has been undertaken by Donald Nicolson and Julian Webb (see Professional Legal Ethics (2000) Oxford University Press); Mike McConville, Jacqueline Hodgson, Lee Bridges and Anita Pavlovic (see Standing Accused (1994) Clarendon); Ed Cape; David Pannick; and Jenny McEwan. At a more practice-oriented level, Andrew Keogh’s Crimeline service regularly addresses criminal defence issues.
25Cave R., ‘Lawyers claim new policy causes miscarriages of justice’, BBC News UK, 14thApril 2012. http://www.bbc.co.uk/news/uk-17690404.