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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.

 

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Maslen Merchant Posted by on November 3, 2011. Filed under Other. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

12 Responses to A poor defence

  1. Andrew Keogh Reply

    November 3, 2011 at 10:17 am

    A very interesting piece and it is undoubtedly true that some miscarriage of justice occurs as a result of poor defence work. But not all of course. What is not established by this article however is the alleged causal link between poor work and the pursuit of profit.

    It is of note that the more high profile miscarriage cases cited occurred during a time when legal aid was generously distributed, so money was certainly not the root cause of any incompetence in those cases.

    There is also an interesting swipe at large firms (Big is best; economies of scale), but again of note is that most (and I think in fact all) of the high profile cases mentioned were dealt with by small firms not large ones.

    Having said that, it would be naive to believe that lower remuneration will be able to maintain the current very high standards, and there is certainly a risk of poorer work.

    Given that around a million cases are prosecuted each year, the number of miscarriage cases is negligible, although I acknowledge that each and every one is a tragedy. The statement that ‘Conscientious, ethical, altruistic lawyers are now few and far between..’ is the type of poorly evidenced rhetoric that one might expect to find in a tabloid newspaper and I would hope that the author of this article either puts up the statistics to support it or withdraws it.

    Andrew Keogh, who according to the author is likely to be a lawyer who is not conscientious, ethical or altruistic.

    • Victoria Lancaster Reply

      November 3, 2011 at 12:41 pm

      Very well said Andrew. The comments of the author are ill researched headline grabbing calumny. Let him put up the EVIDENCE if he can.
      Victoria Lancaster

    • Piers Kiss-Wilson Reply

      November 3, 2011 at 12:45 pm

      I entirely agree and as a criminal legally aided lawyer would always give the same level of committment be it a speeding, murder, legal aid or private case – perhaps such “effort” means I too am neither conscientious, ethical or altruistic.

    • Starburger Reply

      November 3, 2011 at 10:05 pm

      What appears to be forgotten by this article is that the vast majority of criminal defence lawyers are not fat cats aiming to gain huge profit from minimal work. We are attempting to represent our clients to the best of our abilities in an environment where we are only paid to do the bare minimum.

      Most defence lawyers routinely go above and beyond what is paid in order to ensure their clients obtain some level of justice. Whether that is visits in custody, court hearings or bail applications to the Crown Court, all of which often without reimbursemnent.

      Solicitors ‘in it for the money’ do not work in legally aided criminal defence. Our wages are, to my knowledge, less than in every privately paying area of law. Most defence solicitors are still interested in the law, the job, and doing the very best for the client.

      Unfortunately, every defence solicitor has to consider the business element. Quite frankly, legally aided work does not pay sufficient fees to allow us to meet our ethical requirements, but we endeavour to do so anyway.

      Of course, some will fail through negligence, inexperience or laziness. However, most still in the industry, and those who choose to enter now, do so with the firm intention to act in the best interests of their clients.

      Aquaintances are often surprised by the hours I work compared to the renumeration. I simply wish the resources were available for me to do my job better.

  2. Simon Pottinger Reply

    November 3, 2011 at 12:55 pm

    I am often engaged precisely to train around the issue of “businessman first”, or costs awareness as I would (more accurately?) describe it. Achieving the required attitudinal change, particularly under the Crown Court LF, is tough, belies the theme of the article and runs counter to my firms extensive experience. Indeed were the articles claim accurate one assumes it would negate the demand for such training in the first place.

    Of the small number of miscarriages of justice I have encountered, in client firms, in the last 15 years, (I will spare the firms involved their blushes), one of which was high profile, the common factor was human error, aggravated by poor management control and over work. There is arguably a costs factor in this, however I would attribute this to “running faster to stand still” rather than greed.

    This view is purely anecdotal. Nonetheless I find that those slugging it out in Criminal Defence work, against ever decreasing actual and real value profit margins, demonstrate the opposite to the characteristics ascribed to them in this article.

  3. Jim Meyer Reply

    November 3, 2011 at 7:22 pm

    I agree entirely with AK’s comments. “A very high proportion” is about as vague as you can make an assertion purporting to have some sort of emperical value. I am a partner of a large criminal defence firm. If we accept instructions to act on a matter, we don’t pull our punches. None of my lawyers (who are all dedicated professionals) decide not to undertake work that is otherwise reasonable and necessary to properly defend a client simply because it will make a difference to the profits earned from the particular matter (or in some cases the loss incurred from the particular matter).

    What is true is that it is becoming more common for lawyers to decline to take some cases. This is where the true justice gap now lies.

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    Kim Evans Reply

    November 4, 2011 at 1:14 pm

    I have just checked the figures for comparison of two murder cases I had sole responsibility for preparing. The first was billed per hours, and the second as a page count. I am not familiar with billing, so forgive me for not being able to interpret, and I do not have the hours or ppe counts available yet. However, I recall both as being very similar in the amount of work and time (sweat and tears) I expended in preparing them. The first bill was £16,333 and the second £19,006. For the non lawyer, this represents a proportion of each day working on the case, daily, for around 12 months. A particular problem had been in the lack of payment for travelling to, and conferences in prison. I can now get around that by booking regular video link conferences from the Magistrates Court. We have a current case, just begun, and already have had to clear an entire office to house the paperwork. The general public I am sure will be blissfully unaware of just how much work is done by lawyers that is not billable. As the old quote used to say, the public gets the Police force it deserves, maybe now it will be the public gets the defence lawyers it doesn’t deserve, thanks to the Government

  6. John Storer Reply

    November 5, 2011 at 4:41 am

    The impact of this article, and there is a kernel of truth within it, is lessened by some sweeping generalities that simply do not hold up to close examination.

    I do criminal defence work because it is what I love … with a passion. Oh, I had the chance to go into much more lucrative areas of work at the beginning of my career in private practice and I did try to move into another area of law several years ago that gave me a 9-5 life for a year. I came back because I missed criminal defence work dreadfully. (I remember well my wife saying “You have to go back into the criminal department. I’d rather you not be here of an evening than be here and miserable”). I do what I do because I enjoy it immensely, I get to help people, and I’m pretty happy that I make a difference to people’s lives.

    Over the years, very nearly 40 now, I have sat in court (both as a legal advisor and then as a defence lawyer) and have seen the occasional incompetent lawyer – poorly prepared, unsure of their law, or simply ineffective advocates – but they are very much few and far between. Further, almost without exception, it dawns on them or their firm that they are not cut out for a “life of crime” and you stop seeing them.

    This article, however, hints that such lawyers are becoming the norm. This simply isn’t true. I’ll not answer every point but …

    “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”

    Arrant nonsense and grossly insulting! Besides the fact that few firms would survive without a loyal client base, which you only get from doing a good job for them, the writer forgets that our files are open to audit, peer review, etc. Profit, rather than turnover, is obviously incredibly important – we are in business, and we have overheads, after all – but most firms I know place as much value on their reputation amongst clients, peers, and the judiciary. That comes from doing good work consistently

    “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”

    Absolute tosh and, again, extremely insulting. The writer clearly has spent little time in magistrates’ courts or has sat there with blinkers and ear-muffs on. I may be too old to be described as a “modern” lawyer but one of my great joys in working in the criminal justice system is seeing new arrivals showing grit, determination, and no little advocacy skills to do exactly that – fighting for their client

    “It seems to be something of an inconvenience to the modern criminal lawyer to get a medical report addressing mental health issues”

    Come look at my firm’s accounts and see just how much of our SMP goes on medical, psychiatric, psychological reports, amongst other experts instructed. Go see lawyers in court fighting for an adjournment to get reports done when up against a legal advisor who wants to maintain his court’s KPIs and persuade the Bench not to grant any adjournments at first hearing.

    “Nowadays, all one hears are lawyers discussing page counts and how to challenge the latest Legal Services Commission decision to reduce their fees.”

    Not true. Not going to say it doesn’t happen – the decisions of the LSC and MoJ affect not only me, but my staff, and their families, and a big page count is always going to please a legally-aided criminal lawyer – but if there is one thing us criminal lawyers love to do, its discuss interesting points or law / evidence in cases they have before the court that day with their contemporaries.Or about the case they picked up at the police station recently. Today I sat with five other lawyers, all from different firms, discussing evidence and advocacy over coffee during our lunch break.

    “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.”

    This made my blood boil! Not sure if these are the author’s words or a quote (its indented, so I’m guessing they are someone else’s opinion). Conscientious, ethical and altruistic lawyers are, in my experience, the norm in criminal defence work. Possibly more than in any other area of law, with the exception of family law. Good people fighting for another’s rights in a climate of reduced income, increasing Government interference with the judicial process, and no support from public opinion.

    Right … having criticised this article, there are a couple of things that do concern me.

    I genuinely believe that the decision to remove the power of the local Duty Solicitor Committee to appoint duty solicitors and leave it in the hands of the LSC was a mistake. Yes, the old system was open to possible abuse and self-interest decisions being made. However, the disadvantages were more than outweighed by the committee actually having seen the advocate on his feet and having been able to assess his advocacy skills. That is not something you can tell from a paper exercise, irrespective of how many portfolios you inspect. The comment “How did he/she ever qualify as a duty solicitor?” is now not as unusual as it once was

    Secondly, I do think that some firms get too hung up on how many chargeable hours their fee-earners do in a day, a week, or a month. When pretty much everything we do is paid on a fixed-fee basis, how much time has been spent on a case by a particular fee-earner (as opposed to the case itself) is pretty much irrelevant. A good supervisor will know how much work his supervisees’ are doing and, much more importantly, the quality of that work

    I’m not saying a firm should not have targets (although we don’t), but said targets are much more effective if they are team targets, rather than individual. A team target encourages people to work together and pretty makes sure that all members of the team pull their weight. Individual targets simply put uneccessary pressure on the fee-earner, and positively discourage people from involving their colleagues in the work they are doing.

    • Jeremy Hawthorn Reply

      November 7, 2011 at 12:36 pm

      As yet another criminal practitioner reading this blog, I could get all defensive but I’ll try not to. I’ll just add this to what others have ably said:
      1. I wouldn’t get too romantic as Meslen does about legal aid lawyers of 20 years ago. Back then they talked just as much as they do now about money, but then it was about things like enhanced rates, Green form extensions and Crown Court taxing decisions.
      2. I read with interest his graphic account of collecting two carloads of unused material…. but alas no punchline of how this cracked the case. I suspect it didn’t. The reason why we now have this ridiculous disclosure regime is that some of us insisted on getting carloads of unused material on auto-pilot, having little or no idea what we were looking for and in the process racking up large bills. Cue the 1997 Act and the new CPS motto of ‘Death Before Disclosure’.
      3. Those who specialise in appeals – as Meslen claims to – often make good criticisms but there is usually an element of being wise after the event. The decisions you make when a case in in progress (borrowing medical terms, when the body is alive rather than dead) are not all about money, they are also conditioned by instructions, court time-limits and availability of evidence.
      4. Sure there are mouse-pushers now just as there were pen-pushers those years ago. But I don’t think the number of committed advocates has gone down.

  7. Shahideurope Reply

    November 25, 2011 at 7:26 pm

    What happened to the armed robber? Was he convicted following re-trial? A lot of time spent going through unused material but did it materially effect the outcome? What about identifying the real issues in a case as per Criminal Procedure Rules rather than simply trying to find technicalities and ambushing the prosecution as used to happen in the ‘good old days’. I do not share the author’s views.

  8. Patricia Wiltshire Reply

    June 18, 2012 at 8:49 pm

    The comments in response to this article seem to be made by criminal lawyers who appear to be epitomes of virtue. They claim that they work hard for their clients and are ethical. I accept that the people who have commented are probably thoroughly worthy. However, as a scientist working for both prosecution and defence, I have come across some dreadfully inept barristers (both defence and prosecution ones). Actually, I get the impression that, on the whole, defence lawyers work hard for their clients. However, there are certainy some poor, uncommitted individuals, some of whom have been near retirement when I have encountered them on cases. Barristers are people just like anyone else. There are good and bad, competent and inept, committed and careless ones. It is wrong to protect the profession without criticism. There ARE bad lawyers working in the courts, and the CPS.

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