Written by: Maslen Merchant
A poor defence
As controversial, and unexpected as it may be to read, in my experience a very high proportion of wrongful convictions are the fault of poor defence work by lawyers.
The most infamous of the many high profile miscarriage cases of the last 20 years received such huge publicity because of endemic police corruption. The discredited experts whose opinions and theories have been debunked and disproved have also hit the headlines for the very reason that these people were ‘experts’. These were people upon whom you should have been able to rely. The very idea that the opinion of a forensic scientist, pathologist or doctor may not actually be worth a damn is shocking.
Profits before justice
However, it seems to be very difficult for the Court of Appeal and the Criminal Cases Review Commission (the independent body set up to investigate miscarriages of justice) to accept that lawyers are responsible for wrongful convictions too – to put it simply, that they are not up to the job. The criminal justice system assumes that criminal lawyers who practice are competent. It assumes that it does not matter who represents you, or what the charge is – whether it is speeding or murder – the end result will be the same.
That assumption is wrong. As is the case with any other profession, there are good and bad lawyers. There are those, perhaps mercifully few, who are downright incompetent. Some are well intentioned and hard working but lack experience.In my view, of increasing concern is the growing number of solicitors’ practices which, sometimes out of a perceived necessity to survive in the current financial climate and frozen legal aid rates, but often simply out of greed, believe that ‘big is best’ and that ‘economy of scale’ is the key to a successful practice.
The financial pressures on solicitors’ practices nowadays are so great that turnover and profit rank far higher than actually doing a good job for the client and ethics come nowhere. Legal aid fees in the Crown Court are, basically, calculated taking into account the seriousness of the case, the page count of prosecution evidence and whether it is a guilty plea or how long the trial lasts. You get paid the same amount at the end of the case if you do 10 hours’ or 100 hours’ work. It follows, therefore, that the less work you do the higher your profit margin. The less work you do for your money the more cases you can do at any one time. There exists a positive financial disincentive to do the job properly, which is scandalous. It undermines the whole ethic of someone being rewarded for a job well done.
Such is the desire to increase profit margins that some solicitors now do little more than read the prosecution evidence, have a cursory appointment with the client and nothing else. The concept of fighting your client’s corner and of the lawyer actually doing what is necessary to defend the client is anathema to many modern criminal lawyers.
How does this specifically lead to miscarriages of justice? Before the legal aid system changed a number of years ago – and when you actually got paid (or at least could claim) for the work you did on an hourly basis – I was shocked at the number of lawyers I came across who simply did not do the work which they should do to prepare a case properly. All lawyers seem capable of following the checklist type of approach to preparation. If it’s murder you instruct a pathologist; if it’s child rape you need a paediatrician; if it’s arson get a psychiatric report. What concerns me is when lawyers have to actually think about a case: when something out of the ordinary arises, when they actually have to earn their money and do what they are paid to do. Unfortunately it is very often the most vulnerable of defendants who suffer. It seems to be something of an inconvenience to the modern criminal lawyer to get a medical report addressing mental health issues, for instance. The question of whether a defendant is fit to plead seems to be ignored by many unless it is screamingly obvious because of mental illness, by which time the client has very often already been diagnosed, sectioned under the Mental Health Act and is in hospital.
You can about a recent case here. Sadly, there are many examples. I once spoke to a solicitor outside court before a hearing on a manslaughter case. I said that we were looking to get an order for disclosure of certain material we knew the Crown had but were not disclosing to us voluntarily. She said: ‘I don’t know why you’re bothering with the unused material, there’s never anything in it.’ Really? Tell the Guildford Four that; tell Judith Ward, the Maguire Seven, the M25 Three and the Bridgewater Four. It was astonishing to hear.
Perhaps the worst example is a client of mine convicted of the armed robbery of a post office. He was serving 12 years. I went to see him after he was convicted and he earnestly told me that his solicitors had only seen him twice during the 10 months he spent on remand prior to trial and that although he had begged, pleaded and shouted for his solicitors to request unused material they had requested precisely nothing. I was sceptical; this was an armed robber, a serious offence. Surely he was exaggerating. The solicitors’ file confirmed that his instructions were entirely accurate. He had had a grand total of two hour appointments with his solicitors’ agent, a former police officer and there were precisely no letters to the Crown Prosecution Service asking for any of the material generated during a major police investigation which so obviously might have assisted his defence case.
It took twelve months of letters to the local CPS branch, to their Chief Crown Prosecutor and ultimately the Director of Public Prosecutions before we even got a response to our requests. In the end the police handed over so much material which had not been disclosed before the trial that I had to make two trips to the police station to get it. It filled the car twice over.
The police were perfectly happy to hand the material over and confirmed that they would have disclosed it before the trial had they been asked to. One sergeant went to great pains to make sure that we had received every last item that I had requested. We sat down together and painstakingly ticked off one document after another; hundreds of pages of witness statements, descriptions of the offenders, crime reports and investigation logs. We checked that the many compact discs containing the recorded witness interviews were in order and made sure that the tapes containing the many CCTV angles of the robbery were all in a viewable format. The flaw in the trial process was defence incompetence; the failings were entirely those of the trial lawyers. None of this material had ever been requested by the trial lawyers.
Businessman first, lawyer second
Twenty years ago while waiting at court or at the local prison you would hear lawyers discussing the cases themselves which they were dealing with and the charges their clients faced. The interest was obviously in the job itself; how you could find that elusive legal argument to derail the whole prosecution or what unused material may be hidden in the back of a police filing cabinet? Nowadays, all one hears are lawyers discussing page counts and how to challenge the latest Legal Services Commission decision to reduce their fees.
High profile miscarriage cases attract publicity because of corrupt police or dishonest or incompetent experts; however, compare those relatively few cases to the number of cases which become miscarriages because of poor defence work. This is happening in every court every day to some degree.
As cuts increase and the criminal legal aid budget is tightened it will only get worse. Conscientious, ethical, altruistic lawyers are now few and far between and the number of miscarriage cases rises proportionately. Today’s criminal lawyer is a businessman first and foremost; actually practising law seems to be sandwiched somewhere in between accountancy, practice management and marketing. Access to justice for a defendant in criminal proceedings is entirely dependent on the trial process being fair. This extends not only to the judiciary and the prosecuting authorities but also the defence lawyers. In my view, there are far too many defence lawyers who fail in their duty to their clients at very basic levels and who, therefore, undermine the fairness of the proceedings as a whole.