Access to Justice and the Lawyer-Client Relationship

This book is about lawyers, criminal defence lawyers. In particular, it focuses on how they treat their legally aided clients - ordinary people, suspected or accused (even convicted) of committing offences.

As the author, I realise that neither lawyers nor criminals are the most popular groups in society. Does anyone really love lawyers, apart from their mothers? And even some mothers may struggle to love their offspring when they are career crimi­nals. All the same, I want to establish the players in this little drama from the outset

- if the thought of spending the next few hundred pages reading about lawyers and their clients strikes you as pointless or even fills you with dread, this book might not be for you. However, I believe that if you have even the most basic interest in living in a truly democratic society then perhaps you should read on. As repulsive as law­yers and/or criminals might be to your palette, it is important to understand them as a measure of the strength of our democracy. In a democratic society, justice should mean fair treatment for all under the law, the ultimate test of which is the criminal justice system - the arena in which individuals and the institutions of the state collide. If those suspected, accused and convicted of crimes are not treated fairly, then society is on rocky ground. Every miscarriage of justice, such as the Birmingham Six or the Cardiff Three (or the hundreds of routine and mundane miscarriages that pass by without fanfare every year), where individuals are wronged by the state, poses a challenge to society, and should act as a reminder to question whether the criminal courts are working for justice.

This book contributes to that process, addressing the state of access to criminal justice through an exploration of the lawyer-client relationship under legal aid. In so doing, I question whether the nature of that relationship puts the client's access to justice in jeopardy.

- of a level that we would be happy with our children, partners, siblings or parents receiving if they ever got into trouble with the law?

First and foremost, there is a need for a terminological clarity when looking at matters ofjustice. Within the bounds of this book, access to justice has a necessarily restricted, though highly potent, meaning - relating to the basic ideology of the criminal process as it currently operates. It tests one of the system's key claims to fairness, perhaps the foremost principle: that it functions justly. The book will not engage in wider philosophical debates as to just what constitutes justice but, rather, restricts the definition to the elemental aspects of greatest relevance to the study at hand. This work is, at root, a practical study of law in action.

Accordingly, I posit that the key mark of a just criminal process lies in its ability to distinguish the guilty from the not guilty in its application of law and through its fact-finding. In England and Wales, accurate fact-finding and correct application of law is premised upon the adversarial theory of justice, where competing prosecu­tion and defence accounts are permitted to do battle, within procedural limits, before an impartial adjudicator. In the light of the conflicting arguments and evidence advanced by each side, the court is expected to determine whether the prosecution has proven guilt beyond reasonable doubt. This situation presupposes roughly equal resources and expertise on both sides of the argument: the equality of arms. In these circumstances, Young and Wall (1996: 6) have established that, fundamentally, ‘access to justice seems, therefore, to imply access to legal aid and lawyers'. Implicit within this statement is the notion that these legal aid lawyers should practise active defence - systematically taking the prosecution case apart to expose its weaknesses and investigating the case for the defence.

Considering these elements, it is important that the administering of justice is recognised to involve both process and results. While results are ultimately crucial for the long-term impact they can exert on individuals and communities, this research highlights the importance of process, which can exert equally significant effects along the way. In so doing, it seeks to ensure that those suspected or accused of crimes are not subject to arbitrary or oppressive treatment within the criminal justice system. The actions of these legally aided lawyers are deemed crucial in determining whether or not their clients are exposed to such harms.

The stance taken in this study reflects a particular left-liberal position. It seems important to recognise the specificity of such beliefs, in light of Lacey's (1994: 34) assertion that criminal justice can only be properly understood with reference to its ‘normative implications'. Debates around criminal justice are necessarily enthused with an array of values, ideologies and interpretive frameworks. Accordingly, any discussion of criminal justice requires that the speaker articulates the choices they have made regarding its purpose. The standpoint of the interested party is crucial - they cannot be assumed to approach the subject impartially and neutrally. Matters of criminal justice are not merely theoretical; they are firmly located within real life situations - social contexts and personal implications. There is a great deal that is essentially contestable in criminal justice, and meanings will vary for different peo­ple depending on their particular perspective and position. Modelling the criminal process can play a useful, if not imperative, function in socio-legal research.

MODELLING CRIMINAL JUSTICE

In framing his work on the criminal process, Packer (1968: 149-73) constructs two models to describe divergent value systems: ‘crime control' and ‘due process'. These models are supposed in competition to dictate the operation of the criminal pro­cess. However, the models are not intended to represent reality nor desirable ideal; they are neither what is nor what ought to be. They share much common ground - such as the contention that there should be some limits on state power - but each stands for extreme points on a spectrum of doing criminal justice. This device allows for the identification of where the institutions of the criminal process sit at any particular moment and, thereon, predicts future trends.

Under the crime control model, the central function of the criminal process is the repression of criminal behaviour. It relies on the efficiency of the criminal process to capture and convict a high proportion of offenders as swiftly and definitively as possible. This evokes the image of an assembly line conveyor belt, with an endless stream of cases flowing down it. What follows is an essentially managerial system, with routinised practices working to pass cases along through each successful stage, screening out those likely to be innocent as early as possible while quickly moving on those likely to be guilty.

This system operates under a factual presumption of guilt. In this process, the centre of gravity lies in the early, administrative, fact-finding stages. Here, the police and prosecution are invested with much trust so that those who progress through are assumed to be guilty. As much as it represents the prevailing attitude, the pre­sumption of guilt is a prediction of likely outcome.

The raison d'etre of this model is to repress crime; conviction of the guilty is the key tenet, with the mistaken conviction of some innocent defendants an unfortu­nate but acceptable price to pay. It seeks as few restrictions as possible on the fact­finders, and stands in opposition to rules restricting illegal arrest or coercive interrogations that might lead to the exclusion of otherwise credible evidence of guilt. To these ends, defendants should only be allowed access to representation in a minority of cases and, then, only at court. To encourage wider representation would needlessly serve the defendants at the expense of the court's ability to discern the defendant's guilt, running counter to the ultimate aim of the process: to secure conviction.

In contrast, due process is more concerned with upholding the rights of the defendant, so much so that the criminal process comes to resemble an obstacle course. The due process model lacks confidence in pre-trial fact-finding enterprises. In this model, a great emphasis is placed on the possibility of error. There is an undercurrent of doubt, questioning the reliability of individuals to observe events and recognising the opportunity for inaccuracy in recall, influence of bias or the possibility of coercion. Informal fact-finding processes are, thus, rejected. Instead, this model champions adversarial processes, with the case against an individual considered publicly in a formal hearing with an independent tribunal. As such, decisions are only made after the accused has been provided with the opportunity to discredit the case against them, which they should be able to do at each stage.

Central to this model is the right to representation, in order to allow the remedies and sanctions that check this process to be properly enacted. Furthermore, this position is premised upon the notion of the equality of arms, so that each individual should have the ability to contest a charge against them. This necessitates that - where the system allows the right to be represented by a lawyer yet the individual cannot afford to instruct one - the state should provide one for free.

This model challenges the finality of the crime control model, championing the essential right to appeal a decision. The due process model also harbours a deep scepticism about the morality of the criminal sanction - a device typically used against those deficient psychologically and/or economically. It is considered hypo­critical to condemn individuals for their choices to breach the law, while concomi­tantly failing to provide for their humane treatment within the criminal process. As such, this model favours limiting the ability of the state to catch and punish alleged offenders. The end result is that, while crime control prioritises convicting the guilty, due process is primarily concerned with the acquittal of the innocent. Adherents are willing to allow the frequent acquittal of the guilty to meet its aims.

Of course, Packer's (1968) models have been critiqued and augmented, though against his own understanding, premised upon what is (Choongh, 1997: 35-42; Bottoms and McClean, 1976: 226-39) and what ought to be (Griffiths, 1970: 410­17). For Choongh (1998: 625), Packer (1968) fails to appreciate the significant minority of police arrests unconcerned with establishing guilt. The complementary model of ‘social discipline' accounts for cases in which the police have no intention of charging and simply seek to control hostile elements of the local population (Choongh, 1998: 627-28). In his original study, Packer (1968) provides legal models that bear no relation to such work, which is conducted solely to achieve police-defined objectives. In addition, Packer's (1968) models have also been found deficient by Bottoms and McClean (1976: 228), who offer a ‘liberal bureaucratic' model. They suggest that humane and enlightened court clerks act in a manner differentiating them from both crime control and due process. This upholds the protection of individual liberty over the repression of criminal conduct but is prac­tical enough to realise that there must be a limit on the protection offered.

An alternative critique is presented by Griffiths (1970: 367-71), dismissing Packer's (1968) two models as one, monolithic, ‘battle' model. By this line, Packer (1968) is condemned for adhering to a dominant ideology that positions the defendant and state in opposition, assuming disharmony, conflicted interests and encouraging a state of war. In contrast, Griffiths (1970: 371-86) supposes that there might be a state of love as in his ‘family’ model. Under this, disputes are settled in the manner of a stable family; everyone recognises that they are inexorably bound together, seeking to resolve their differences as amicably as possible. Any punish­ment is ultimately accepted for the greater good.

All three of these alternatives, though, continue to talk in Packer’s (1968) lan­guage of models. That approach is criticised by MacDonald (2008: 269-89), who believes that the resulting models are inadequate, conflating strong and weak ideal types as well as failing to properly differentiate between empirical and evaluative research. He suggests that, rather than models, socio-legal studies can only move beyond Packer (1968) by developing a multidimensional framework. Accordingly, MacDonald (2008: 289-303) proposes a reconfiguration of the due process model into an ideal type based on a defensive criminal law that aims to protect individuals from abuses of state power.

In this light can be seen two sophisticated frameworks, with broadly due process concerns, centred on ‘rights’ (Ashworth and Redmayne, 2010: 19-61) and ‘free­dom’ (Sanders et al, 2010: 47-58). These approaches share a common foundation in their intention to overcome two further crucial deficiencies posited to inhibit Packer’s (1968) theory: that his models are incomplete and that they do not offer aspirational ideals (Sanders et al, 2010: 47). As such, Ashworth and Redmayne (2010) attempt to overcome these difficulties by insisting that individuals be seen as rational and rights-bearing, with state power subject to limits that treat them with dignity. These authors adhere to a retributive rationale for punishment, where cen­sure is morally appropriate but need be proportionate to the offence and must fol­low a fair conviction. Their criminal process is concerned with authoritative determinations of guilt, but only in a way that protects human rights. This perspec­tive pays particular reference to the European Convention on Human Rights as enshrined in the Human Rights Act 1998. In the position set out by Ashworth and Redmayne (2010), these rights need be developed so as to offer a reliable constraint on the criminal process. Rights become a concomitant aim of their system.

This approach requires the balancing, and prioritising, of certain rights weighted against others. However, Sanders et al (2010) problematise the manner in which that process is inherently vague, while establishing and enshrining particular inter­ests at the expense of others. In contrast, they offered an approach that conceives of the criminal process primarily protecting and enhancing freedom. Their frame­work encompasses all who come into contact with crime or the justice system: victim, suspect or offender. In the name of a free society, maximising the freedom of each must be prioritised. This ranges from the freedom to enjoy one’s posses­sions or walk the street without fear of attack, to the freedom from having one’s life arbitrarily invaded by state officials or being wrongfully convicted in a prejudicial tribunal.

Human rights are considered but a basic minimum, a safeguard that the state should respect. However, they are not considered enough in and of themselves. For Sanders et al (2010), state institutions have much leeway to behave in a manner consistent with human rights but antithetical to increasing freedom. The authors invoke the example of a police stop-search policy whereby powers could be used whenever the law permitted. While this would not impinge human rights, neither would a more restricted use of those powers. The latter approach, though, would be better suited to protecting and enhancing the freedom of the community at large. Greater credence should be given to the role that rights, and other safeguards, play - or fail to play - in promoting freedom. Paying attention to the interplay of rights and freedom is important because a large part of the reasoning behind having such rights is to enhance freedom, but this is too often subsumed by a focus on the rights themselves: their wording, technical interpretation and associated litigation. The daily application of the rights, as they are experienced in the real world, is obfus­cated by a concentration on the abstract legal principles contained in the letter of the law as written or argued in court. Rights are normal and banal - they are lived and not just confined to the domain of occasional and special formal pronounce­ments. To gain any real value from these rights - and ensure that they work to protect people from harm (as is their intention) - the implications for freedom must be considered and this involves engaging with ordinary life.

In this research, I follow the freedom approach. As such, the book is more inter­ested in the everyday reality of rights - how they are invoked, used, subverted or ignored in practice. Proceeding with the insight of the freedom approach allows a greater appreciation of the individuals involved and their ordinary experiences. It calls on the criminal justice system to be tasked with the role of enhancing the free­dom of all: accuser and accused alike. While Sanders et al (2010: 42-47) are keen to reinstate the place of the victim - missing from Packer's (1968) models - this research focuses on those suspected and accused of crimes. In this manner, it can be described as promoting due process values, with a concern that these individuals are justly treated within the criminal process. The particular approach to access to justice underlying this research is one which Sanders and Young (2006: 29) label ‘pro-suspect'. As loaded a term as that sounds, rife with loony left, anti­establishment sentiment, I will take it on as an apt description; I am devoting my time and effort to fighting the corner of those who are forced to defend themselves against the accusations of the state. It would be reductionist, though, to suppose that I seek to promote defendant rights at the expense of victims; despite the pigeon­holing promoted by our adversarial system, I do not believe it is this simple as justice, if it works properly, should be made to work for all. This research, then, evokes Eleanor Roosevelt's (1947) noble epitaph that ‘justice cannot be for one side alone, but must be for both'. Victims deserve justice; but this research is concerned with ensuring that the other side also attains it. In the legal process, the police and prosecution support victims; but as this study looks at the other side of the criminal case, it is somewhat inevitable that a focus on those suspected and accused of crimes brings attention onto the role of criminal defence lawyers.

THE NEED FOR LAWYERS

It seems easy for socio-legal literature to proceed with the implicit assumption that the values of the author are those routinely accepted. By this line, the author expects the audience to hold the same view as they do - whether because the author feels that they are intrinsically correct or because they are simply preaching to the con­verted. As such, I could well just thunder ahead with this book assuming that you, the readers, are all as wet as me. In this manner, Travers (1997a: 359) suggests that:

Academics are simply out of step with British society, which has moved increasingly to the right... Much research has a liberal or left-wing political bias, whereas users of research, such as the British government, and rank-and-file members of the police - as well as a large proportion ofthe British electorate - hold very different assumptions about... the purpose of criminal justice.

Indeed, from the 1980s onwards, popular debate around criminal justice policy can be identified to have taken a more punitive turn (Garland, 2001). While judging public opinion on socio-legal issues is notoriously difficult, it can be noted that my research was conducted in a political climate infused with populism and attempts at hard-nosed political posturing when it comes to crime and criminals. The term ‘populist punitivness' aptly describes this situation - as coined by Bottoms (1995: 40) - ‘to convey the notion of politicians tapping into, and using for their purposes, what they believe to be the public's generally punitive stance'. People who are caught up in the net of criminal justice are now increasingly portrayed in media reports, political rhetoric and in actual policy statements as belonging to an unde­serving, feckless underclass. Accordingly, the New Labour Government adopted tabloid-centred, ‘anti-crime politics' (Tonry, 2004: 64); they were ‘banging the law and order drum' (Young, 2003: 41). From the 1997 general election campaign onwards, the Party proffered a hard-line stance unprecedented by a supposedly left-wing British political party and quite at odds with any other government in Labour history (see Brownlee, 1998). This was encapsulated in a speech made by, then Justice Secretary, Jack Straw, celebrated by the rabidly right-wing Daily Mail as ‘Liberals who push criminal rights drive me nuts' (Hickley and Slack, 2008). Within it, Straw (2008: 12-13) can be found to criticise these ‘liberals' for becoming ‘lost in a fog of platitudes', so much so that:

I am concerned that it has retreated into language that doesn't chime with the public... When I hear phrases like ‘criminogenic needs of offenders' it drives me nuts... I pro­foundly disagree that we should describe someone's amoral desire to go thieving as a ‘need' equivalent to that of victims or the law-abiding public.

Without accurately exploring the notion of criminogenic needs, deploying the phrase becomes a quick and easy tool with which to mock those who argue for human rights - it just sounds shot through with painfully woolly, wildly do-gooder overtones, ensuring that Straw is able to depict himself as far more sensible and on the side of the ordinary, law-abiding citizen. Despite the fact that New Labour infamously created a new crime almost every day it was in office and offered some­thing of a tour-de-force in cracking down on civil liberties (Morris, 2008), the lead­in to the 2010 general election reflected the clamour for ever harsher treatment of those implicated in the criminal justice system (see Mille, 2010). Accordingly, Theresa May's (2010) first speech as Coalition Government Home Secretary saw her promise that this new administration would be ‘tough on crime'; by implica­tion, tougher still than New Labour. She effortlessly dismissed New Labour as far too soft on crime, describing them as having been ‘bowed to the lawyer lobby' (May, 2010).

In conducting this research, I may be inviting similar, likely greater, criticism; I acknowledge that the plight of defendants is not the most fashionable of good causes. While others may disagree with my defence-minded perspective, it is a cause deemed legitimate within the bounds of this book, wherein they are considered inherently vulnerable by taking on that status. The defendant can be faced with an alien, oftentimes bewildering, environment once drawn into the criminal justice system. In the face of this, defendants can quickly find themselves very much out of their comfort zone - left inarticulate and overwhelmed. As such, it seems necessary to provide them with a helping hand to guide them through: an expert. It is at this point that the notion of the equality of arms assumes its significance; our adversarial system depends on there being powerful arguments on both sides of the question of legal guilt (see Fuller, 1978). On their own, defendants would face a permanent, and telling, disadvantage against the might of the state. To avoid this, they should be provided with access to criminal defence practitioners: lawyers. Accordingly, Goriely (1996: 26) asserts the ‘unequivocally' held principle that ‘in the adversarial system which prevails in the courts in this country, representation is needed on both sides'. Indeed, McConville et al (1994: 2) view the desirability of this provision to be self-evident:

The need for defendants to be legally represented in criminal cases is perhaps so obvious that the fact that solicitors may be seen giving advice at the police stations to suspects who have been arrested and advocating their cause in Magistrates' Courts hardly seems to require explanation.

The reality is that most defendants simply cannot afford to hire a criminal defence lawyer privately. Lawyers have expensive hourly rates that quickly add up. For those with an average wage, it seems fair to suggest that even paying a lawyer to read a let­ter would represent a bit of a luxury, let alone the lengthy periods that can be accrued over the life of a case as it progresses through the courts. As such, access to justice does not simply require access to criminal defence lawyers but, specifically, access to criminal defence lawyers funded by legal aid. This principle has been ardently advocated by Ashworth (1996: 56-57) who identifies four strands underlying its necessity: complexity ofthe courts; police and Crown Prosecution Service resources; the potentially devastating impact of a conviction upon a defendant, and; that the ability to defend oneself should not depend on financial resources.

The first two of Ashworth’s (1996: 56-57) strands highlight the relative weakness of the criminal defendant when compared with the agents of the Crown. The crimi­nal process involves convoluted procedures and unfamiliar linguistic conventions, resting on a mass of highly technical, interlocking and overlapping laws stretching back centuries. The state prosecuting has, near enough, unlimited access to the necessary expertise required to properly navigate the system. In order to retain any pretension towards equality of arms, the defendant must be in the position to draw upon such expertise of their own. Understandably, individual defendants are highly unlikely to posses such skills so this requires the services of a criminal defence law­yer. This lawyer must support the defendant through the inherently alienating criminal justice system.

In Magistrates’ Justice, Carlen (1976: 19) offers the thesis that the main function of the Magistrates’ Courts is to operate as a means of social control, through ‘super­ordination and subordination’. Both the physical arrangements of the courtroom setting and the behaviour of magistrates, court staff and police work to alienate defendants. Defendants become dummy players in the process of criminal justice, ignorant of exactly what is going on and excluded from the games that those in charge play. While Carlen (1976) focuses on the practical playing out of criminal cases, McBarnet (1981) locates defendants’ alienation within the law itself. Her study, Conviction, duly addresses official legal, police and formal rules. These have been established in a manner that precludes defendants from being able to take on active roles in their own trials. Again, defendants are silenced in the criminal pro­cess through their lack of understanding over what is happening to them. All this contributes to a sense of ‘confusion’ and ‘exclusion’; incomprehensibility that feels positively threatening (Bottoms and McClean, 1976: 55).

Those studies were conducted at a time when defendants were largely unrepre­sented in Magistrates’ Courts. However, even with - to some extent, because of - increased levels of representation, this process of alienation can still be identified. While it is easy to become lost as an individual within the strange and self-contained world of the legal system, even greater levels of detachment follow the appointment of a lawyer with the individuals, invariably, taking a backseat while the legal profes­sionals go about their business with one another. In large part, this can be attributed to Magistrates’ Courts’ business becoming increasingly complicated over recent years, with regard to both legislation and bureaucratic procedure. Successive gov­ernments have attempted to professionalise the criminal justice system. This has seen the introduction of measures such as bad character hearings, reforming the right to silence so that inferences can be made, admitting hearsay evidence in crimi­nal proceedings and the regimentation of sentencing guidelines. There has been an explosion in the variety of hearings and personnel involved in the processing of a case through Magistrates’ Courts. As a result, there seems far greater need for defence lawyers to be involved from the outset. Represented or not, greater com­plexity serves to further remove the defendant from active engagement in the crimi­nal process; their alienation is ever increased. For the ordinary man or woman in the street, there is no shame in admitting that they find the whole court process absolutely bewildering - despite being theoretically primed with ensuring that jus­tice is publically accountable and able to be democratically scrutinised, the reality is that the legal system does not work for outsiders. It is a member's only club, the world of lawyers and jurists.

This alienation seems amplified with regard to the place of the defendant in police stations and the Crown Court. In these arenas, defendants have greater access to representation but, concomitantly, even less of a role to play themselves. The police station is explicitly the territory of the constabulary; defendants temporarily lose their liberty as it is entrusted to the officers. At the same time, the Crown Court is the more daunting step up from the Magistrates' Court with increases in serious­ness of case, waiting periods and means of sentencing. In this grander setting, some­times in front of juries, experienced judges and legal representatives - adorned in wigs and gowns - play the games. Both settings alienate defendants.

As such, all three locations remove the defendant from the criminal process in significant ways. The defendant becomes definitively a client. Their ability to com­prehend, let alone conduct, cases themselves are diminished; they are reliant on lawyers. As such, they are entered into a process of ‘legal dependency' (Ericson and Baranek, 1982: 92-100). So it is that Bourdieu (1987: 828) identifies such clients to be separated from their cases as:

The establishment of properly professional competence, the technical mastery of a sophisticated body of knowledge that often runs contrary to the simple counsels of common sense, entails the disqualification of the non-specialists' sense of fairness, and the revocation of their naive understanding of the facts, of their ‘view of the case'... the vulgar vision of the person who is about to come under the jurisdiction of the court.

Defendants are, then, locked into a ‘self-referential system' (Moorhead et al, 2003: 7). It is in this context that they are encountered in this research; the book is neces­sarily focused on their status as clients. While I approach the topic looking to empower suspects and defendants by telling their stories, it is a necessary evil that I reduce them to dependent clients, as this is the best way to make sense of their actual experience; effectively, they operate within the legal system as the plus ones of law­yers. As such, I address the lawyers and the role they must play in serving their cli­ents; lawyers represent something of a proxy.

By Ashworth's (1996: 57) third strand, lawyers have great responsibility in these circumstances because the convicted defendant faces serious consequences, which increase the moral and social significance of the first two points. Clients might have their reputation tarnished, lose money, have their liberty taken and be privy to all manner of physical or mental ills. The importance of this consideration informs Ashworth's (1996: 57) final point that the ability to defend oneself should not depend on financial resources. This consideration is premised upon fundamental notions of equality and such provision can be regarded as a human right. Within the European Convention on Human Rights, the need for legal representation is clear:

Article 6.1

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an inde­pendent tribunal.

However, while Article 6.1 offers an equality of arms, Article 6.3(c) shows the mat­ter of funding to be more ambiguous:

Article 6.3 Everyone charged with a criminal offence has the following minimum rights...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

The relationship between these two Articles, then, is rather murky. Problems are created by the open-textured phrases by which they simply refer to the defendant’s not possessing sufficient means and, thereon, the qualification when the interests of justice so require. The European Court of Human Rights has refused to identify any base level of income to tie into the former, while the latter is conditioned upon the complexity of the case and the potential consequences for the accused.^[1] As such, the European Court of Human Rights has granted much discretion for individual gov­ernments in when and how they provide this legal assistance.

In the criminal justice system, duty solicitor schemes ensure that all accused are eligible to receive police station representation, though the advent of telephone- only advice can be considered to somewhat temper this right (Skinns, 2009: 68-70). Most Crown Court appearances involve legal aid, though New Labour introduced means testing. Although a large amount of Magistrates’ Court first appearances automatically receive legal aid, the routine mass of cases rely on both means and merits tests. While these satisfy the letter of Article 6.3 of the European Convention on Human Rights, Ashworth (1996: 68) concludes that, normatively, this is not enough as the clauses ‘appear to be trial-centred, and... they fail to insist on proper standards of fairness and equal access to justice at the pre-trial stage’. This raises serious questions about the quantity of service that defendants receive. Legally, access to justice might be challenged by a lack of representation.

My research is concerned with those who were represented and so goes a step further. In doing so, rather than simply looking at matters of quantity, I am con­cerned with the quality of the service those clients receive. Lawyers are, surely, not inherently good - as human beings engaged in social interactions, their perfor­mance and, thus, value to those they purportedly serve will inevitably vary. If legally aided representation is considered a right, it seems legitimate to insist that this representation should be sufficient to enact the adversarial principle the right is intended to support. Indeed, McConville et al (1994: 295) warn that we can no longer take it for granted ‘that legal representation is an end in itself and to be valued.. . on that basis alone'. Representation should not necessarily be taken to confer access to justice upon an individual. Discussing recent research, Moorhead (cited Baksi, 2010a) suggests that there is an increasing amount of evidence to the effect that some lawyers do not operate at an acceptable level; they are ‘not really up to the job'. As such, this book takes the line that even those who are represented might not receive access to justice if the service they are provided with is of a low standard. This position is guided by Felstiner's (2001: 191) contention that, ‘the production ofjustice might be defined as a dimension of the relationship of lawyers to clients'.

This vision of access to justice, then, depends on the health of the lawyer-client relationship. Access to a legally aided lawyer is not enough of itself. If the lawyer appears committed to active defence and displays due process values then they may facilitate access to justice. Within this research, that is judged to constitute a healthy relationship - providing the greatest opportunity to the client, and so working to their benefit. If lawyers do not show such values and, rather, appear to practise passive defence, they then fail their clients. This would constitute an unhealthy relationship - one that has the potential to cause the client harm. It is my contention that access to justice can be gauged through addressing the relation of lawyers to their clients. In order to appreciate this dimension, we must first consider the legal profession itself.

THE LEGAL PROFESSION

Criminal defence lawyers are, rather self-evidently, members of the wider legal pro­fession and, as such, the sociology of the professions provides a rich resource to aid in understanding their position. In particular, it can be seen that the fabled public service ideal forms a central part of professional ideology - whatever the practical reality.

The definition of a profession is difficult, and essentially contestable. Much of the early literature in the sociology of the professions utilised the idea of trait theory to distinguish professions from other work; however, there are so many traits that it can be difficult to know where to stop (see Leicht and Fennell, 2001: 25-27). Indeed, Millerson (1964) notoriously documents as many as 23 traits posited by 21 authors, in something of a ‘checklist' approach best summarised by Atherley and Hale (1975: 323). These traits, though, can be considered to represent little more than, ‘an uncritical reiteration of “professionals'” statements of pious hopes and self­interests' (Atkinson, 1983: 225). They tend to include bureaucratic features such as assessments for entry, codes of ethics and professional associations. However, the most emblematic element is the moralistic notion that professionals posses a prin­cipled commitment to serve society; accepting a responsibility that extends beyond their immediate clients. The professional supposedly pertains to Pythagorean stan­dards, eschewing any connection between work and wealth, occupying a privileged position above the pettiness of the class systems and the division of labour that taints the masses (Jacob, 1999: 116). Professional justification, then, may be found in their supposedly possessing an ideology of public service (Freidson, 2001: 122-23).

Until the 1960s, Freidson (1994: 13) suggests, sociological writing on the profes­sions seemed to take this high standing for granted:

Most sociologists have been inclined to see professions as honoured servants of public need, conceiving of them as occupations especially distinguished from others by their orientation to serving the needs of the public through the schooled application of their unusually esoteric knowledge and complex skill.

Those academics emphasised the positive functions of the professions and legiti­mised the notion that professionals were disinterested servants of the community. From the 1960s onwards, there was something of a watershed as the sociology of the professions became increasingly critical. These studies associated the professions with political and economic elites (see Freidson, 1988; Johnson, 1972; Larson, 1977). In contrast to the previously sympathetic professional portrayal, there emerged a more judgemental one, identifying contradictions in the public service model of professionalism. Perhaps, the key issue to consider is professional auton­omy. For example, Larson (1977: 5-14) locates the professions at the heart of the class struggle. Far from being independent and disinterested, the professions are said to collude with governments, ensuring state protection and guaranteed mar­kets. As such, while the professions claim a form of universalism - to serve the needs of all - they were actually identified as the servants of the few. In this situation, public service ideals were a vacuous self-justification, conferring a false sheen of legitimacy on their privileged position.

In this vein, Sommerlad (1996: 295) identifies a ‘classical paradigm' of legal professionalism - tied in with the public service model - while also locating a flaw between the ideal and a more tarnished reality. This reflected the difference between ideology and actuality. However, Sommerlad (1996) does not believe that seeing the public service model as simply an ideological construct invalidates it, raising two arguments for its continued use. First, it presents a benchmark with which to monitor historical change in the legal profession; though practice may never have completely conformed to the ideal, it can be measured in relation to it. Secondly, she invokes Weberian social action theory, suggesting that ideologies possess mate­rial reality for those who profess them - no matter what the contradictions may be. This approach allows us to use the classical paradigm, of a legal profession premised upon public service ideals, while still aware of its tenuousness - that this was never necessarily a reality. As such, we can draw on the insight of Thompson (1977: 264­65) that, from such rhetoric, radical critique can flourish.

Criminal defence has historically been a small part of the legal profession. Defendants were unable to give evidence on their own behalf until the early years of the twentieth century. The appearance of lawyers in criminal cases is a relatively modern feature of the English criminal justice system. The half-century preceding the Second World War had witnessed the piecemeal, but limited, introduction of legally aided representation in the criminal courts. This lay the foundations for the reformist zeal which greeted the instigation of the Rushcliffe Committee. Along with Beveridge’s famous five pillars of the post-war Welfare State, criminal legal aid was greatly extended; although it was not deemed a priority. It took until the end of the 1940s for those recommendations to be enacted in the Legal Aid and Advice Act 1949. However slowly it took root, though, legal aid had become definitively estab­lished in the criminal justice system. While an important development for those accused of crimes, this advance had a concomitantly large impact on lawyers. Near universal coverage presented fundamental challenge to the classical paradigm of legal professionalism. For one, it positioned the state as employer, clearly increasing the extent to which the profession served the elite. However, it also put the ideals of public service to the test; they were put under the microscope by the reality of practice.

The introduction of the mass legal aid scheme has been held by Morrell (2006) to be largely responsible for the decline in status of this branch of the profession: their becoming ‘secondary professionals’. Ceding responsibility to the government impugned the notion of professional control (Sommerlad, 1996: 297-98). The wider service this demanded also had the effect of countering the homogeneity that Sommerlad (1996: 297-98) claims to have previously characterised both lawyer - drawn from the upper ranks of society - and their - largely well-off - clientele. However, Paterson (1996: 158) disputes that the introduction of legal aid under­mined the lawyers’ professional project, as ‘when legal aid was introduced some of the wilder critics predicted the end of the independent profession... in reality it had a negligible effect on the concept of professionalism’. In similar vein, Spencer (2002: 268) argues that these developments did not make new demands of professional­ism, but simply drew upon their commitment to public service. It emphasised what was already there. For Sommerlad (1995: 165), Rushcliffe enabled the public service ideal to be enacted, moving lawyers beyond ideology:

The expanded notion of citizenship implicit in legal aid... to an extent made a reality of the related notions of vocation and universal service which were crucial aspects of the traditional professional ideology but which were ofcourse originally belied by the impos­sibilities of the market.

So, while Rushcliffe diminished the classical paradigm by contesting professional autonomy, it presented fresh opportunity to realise the public service ideal. At this point, ideology and actuality were closer than they ever had been previously. With the rolling out of legal aid, lawyers had more grounds to their claims of providing a service benefiting both clients and wider society.

LEGAL AID

The history of the criminal legal aid scheme can be written as one of an ever­increasing budget. Though the rise of legally aided representation in the immediate post-war years was dramatic, the most significant change experienced by criminal defence lawyers can be said to have occurred in the early 1960s. Remuneration changed from fixed fees to hourly rates. Lawyers felt this system fairer, as they were rewarded for the actual services they claimed. As a result, representation rates increased significantly. This prompted the convening of the Widgery Committee, which commended the provision of legal aid in the higher courts but sought to restrict it to a minority in Magistrates’ Courts. To regulate this, the merits test was duly established. This did not have the desired effect and the following two decades saw an even greater explosion of legally aid representation.

However, from the mid-1980s, the Lord Chancellor’s Department took over the legal aid scheme from the Home Office. Its smaller budget meant that, from then on, the legal aid bill showed up far more prominently; it became a more salient political issue. Over the past quarter of a century, governments of all persuasions have been increasingly concerned to manage it. There have been various experi­ments with means testing, but these were to no avail in controlling costs. Conservative regimes bore witness to a 300 per cent increase in such spending over the decade from 1984 to 1994 (Lord Chancellor’s Department, 1995: 115). Such a rise was deemed unacceptable and, in an attempt to understand why the bill increased, they hit upon the thesis of supplier-induced demand (see Bevan, 1996). It was suggested that under hourly rates of remuneration, lawyers were induced to spend longer on cases and so inflate their fees. To counter this, fixed fees were reintroduced in 1995, so that remuneration was thereafter paid case-by-case at a standardised rate.

However, this move did little to check the advancing criminal legal aid budget. Instead, the following 10 years saw it double to £1.2 billion (Cape and Moorhead, 2005: 2). By this time, such spending had become a predicament for the New Labour administration. It was one they enthusiastically set about resolving. Lord Chancellors, Justice Secretaries and Legal Aid ministers alike displayed great zeal in publicly lambasting legal aid lawyers, castigating them as ‘fat cats’ on the ‘gravy train’ (see Rose, 2009). The former two offices were held by Jack Straw (cited Gibb, 2009), who keenly discussed what he saw as the astonishing growth of legal aid funding by comparing lawyers’ remuneration to the increasingly reviled bankers, stating that:

There is certainly nothing ordained by the Almighty which says that of those paid for by the public purse, lawyers should be any higher than in other professions... Lawyers and law firms who are dependent on state funding - and I emphasise dependent, as there are many whose existence relies exclusively on the public purse - would be wise to reconsider expectations of earnings.

Thereafter, Lord Bach (cited Hirsch, 2009), then Legal Aid minister, implied that the majority of the £23 million he sought to cut from the budget would come from lawyer remuneration, and he anticipated their defensiveness:

Of course they’re going to defend what they’ve got... that's what anybody would do when it comes to earning their living... But sometimes it’s easy to forget what the whole point of legal aid is, which is to protect vulnerable people. I do think that sometimes the debate about legal aid gets clouded over with just concerns about pay.

The New Labour Government went beyond sound bites, though, and implemented policies that actively targeted lawyer remuneration as an important element in reducing the criminal legal aid budget. A notable example of this was the cost­cutting White Paper, Modernising Justice (Lord Chancellor’s Department, 1998) which paved the way for the Access to Justice Act 1999 and the introduction there­under of the new Criminal Defence Service. The Act also launched the Public Defender Service - salaried defence - pilot scheme as a supposedly more economi­cal means to meet legal aid needs. Most prominent, though, was Lord Carter’s review of procurement (Department for Constitutional Affairs, 2006a) which proposed a market-based system in which the headline recommendation was for Best Value Tendering in distributing legal aid contracts - a reverse auction, lowest bidder wins.

There was much protest and grandstanding, from profession and government alike (see Hynes and Robins, 2009: 112-14). Lawyers were hostile, claiming the proposals were ‘ill-considered’, ‘unresearched’ and ‘likely to be a disaster’ and would ‘destroy the criminal justice system’, while Lord Carter labelled them ‘Luddites; whining and whinging’ (cited Hynes and Robins, 2009: 122). In the end, the Law Society won a judicial review against tendering with regard to family law. The High Court deemed the process ‘unfair’ and ‘irrational’, suggesting that fewer lawyers would simply create ‘advice deserts’ - diametrically opposed to the high quality service the scheme professed to enshrine (cited Baksi, 2010d).

Shortly before this decision was confirmed, and a matter of months prior to the planned commencement of my research, the original Best Value Tendering pro­posals in crime were abandoned (Baksi, 2009b). However, not long after that announcement was welcomed by the profession, the Ministry of Justice (2010a) outlined the government’s vision for further reform, along not dissimilar lines, in their report, Restructuring the Delivery of Criminal Defence Services. This proposed consolidating the market for criminal legal aid so that larger volumes of work were given to a smaller number of providers. It was suggested that up to 75 per cent of criminal legal aid firms would be purged in little over a year, as Lord Bach estimated that no more than 500 firms would receive contracts (Baksi, 2010b). This situation remains in the balance with the subsequent Coalition Government indicating their willingness to explore the option of introducing competition in the medium to long term (Ministry of Justice, 2010b: 101-15).

The bulk of this research, however, was conducted before the 2010 proposals, when Best Value Tendering was considered imminent. Even at this time, the Law Society (2009a; 2009b) had labelled remuneration as ‘thread-bare’ and ‘crumbling’. National Audit Office (2009: 15-17) research supported such sentiments. On aver­age, it was suggested that some 60 per cent of criminal legal aid firms’ turnover was derived from their criminal legal aid work. This was despite 79 per cent of these firms deeming it less profitable then private work and 14 per cent of firms making only 1-5 per cent profit; 16 per cent not making any profit at all. It was predicted that 28 per cent of firms were unlikely to be practising five years hence. However, a more striking estimate was provided by Keogh (2009), who forecast a ‘massacre’, with 85 per cent of firms leaving criminal legal aid work.

Those firms that remained would be left facing what Green and Mendell (2010: 2) labelled a metaphorical ‘north-south divide’; while the criminal legal aid budget heads south, demands for representation continues to move north. In the House of Commons, the Solicitor-General detailed an increase in acts of legal assistance from 2.5mn in 2008 to 2.9mn in 2009.^[2] However, the Legal Services Commission had specified that the legal aid budget was frozen at 2006 levels of £2.1 billion (House of Commons Committee of Public Accounts, 2010: 17). Tracking increased demand would have put the budget at some £2.7 billion meaning a decline, in real terms, of some £600 million. Lawyers are well aware that they work under governments frus­trated by their cost and which, one way or another, seek to reduce the amount spent on remuneration. It is vital, then, to consider the consequences of such attempts to limit the funding of criminal casework.

THE IMPACT OF LEGAL AID REDUCTIONS

In chastened financial circumstances, the professional ideal of service must be problematised. This is a problem for lawyers as it is the whole legal system, as described by Mansfield (2012), who suggests that:

If market forces are to be the determinative factor in the quest for truth then, just like most economies, we will be heading for irretrievable meltdown. Justice is not a business enterprise, still less a commodity. It is ‘truth in action’.

As a result, there is a need to question whether lawyers allow any pressures they feel from remuneration to impact on their relationship with the clients. To these ends, a hypothetical alter-ego lawyer has been constructed by Johnson (1980-81), based entirely on meeting the public service ideal, working only in the interests of their client. His lawyer is premised upon the rule that they would use every resource they could until the maximum net benefit was reached for the client. This device can be used to predict how a lawyer might change their efforts and, thus, reshape the law­yer-client relationship contingent on external financial circumstances. Under hourly rates, this lawyer would invest greater resources than their clients demanded as the lawyer gets paid more for putting in greater effort. However, fixed fees would see the lawyer devote less time because they did receive any extra financial induce­ment; they would do the bare minimum deemed necessary. There seems to be a point at which benevolent good intentions meet less righteous hard reality. The implication is that lawyers should be considered motivated by self-interest as well as, or even instead of, the public service ideal. Considering this, lawyer motivations can be understood in economic terms using contract theory - the lawyer's various work tasks are to be conceptualised as inputs into a system (see Fenn et al, 2007). By this line, the move to fixed fees means that lawyers will reduce their supply of inputs when the fee (the output with which the lawyer is primarily concerned) no longer rewards it. Attendance, preparation and advocacy time will all fall if lawyers do not feel themselves to be adequately rewarded. Perhaps, the basics of client care will also disappear into the ether.

As a result of this (dis)incentivisation, clients receive ‘a different product' (Fenn et al, 2007: 17). This is likely to be an inferior one. The service will deteriorate fur­ther as the value of the fee paid declines. In a study comparing the decisions made by public defenders and private practice solicitors, Tata (2007) invokes the concept of ethical indeterminacy. For situations in which lawyers are faced with two courses of action - both carrying advantages and disadvantages - they might compromise their professional ideals and the good of clients or society. As such, Goriely et al (2001: 68-69) explain a fundamental problem resulting from making some approaches more attractive than others:

In making difficult and evenly balanced judgements, greater weight is placed on advan­tages that flow from one course of action that is in one's own interests. Less weight is placed on those that flow from actions that run contrary to one's interests.

In this way, lawyers are able to justify (to themselves and others) taking the course of action that is in their own commercial interests. It becomes the most sensible decision to act in a rational, economically prudent manner - anything else would surely be frivolous and unsustainable. As lawyers face harsher economic circum­stances, the concept of ethical indeterminacy can be used to show that corners are being cut, meaning clients could lose out (Tata and Stephen, 2006: 740-41). This theme has been highlighted in a fraud trial reported while this research was ongo- ing.^[3] In a judgment, which he hoped would be widely distributed throughout the criminal legal profession, Judge Gledhill QC was highly critical of the quality of service provided by one lawyer towards her client. He was scathing that the firm had chosen to appoint a solicitor with Higher Rights to appear in the Crown Court, from within, to conduct the trial, rather than a barrister from a chambers. He rec­ognised that, in so doing, the firm would receive both preparation and litigator's fee. However, he deemed her knowledge of the law, procedure and advocacy skills to fall below the acceptable level. This was considered a purely financial decision.

While Gledhill professed sympathy for the reasoning, he expressed his concern at the implications:

I am well aware that recent reductions in the rates of legal aid have hit solicitors particu­larly hard. On a practical financial level, it must be sorely tempting to keep the trial within the company. I understand that. However, if the consequence is that an accused person is not adequately represented, it is simply not acceptable - not acceptable to the defendant, and not acceptable to the public as it is not in the interests of a fair trial and therefore not in the interests ofjustice.

The firm involved refuted Gledhill's claims as the prejudice of a judge with distaste for solicitors with Higher Rights (Baksi, 2009a). However, the pertinent point to take from this dispute is that it highlights Cape's (cited in House of Commons Constitutional Affairs Committee, 2007: 22) fears that the reformulation of legal aid remuneration might result in ‘irreversible' changes. The legal profession, as it once was, might be reshaped under the pressures of market forces.

Such concerns are pertinent in light of the concern expressed by Lodziak (2000) who has castigated the rise of a neo-liberal ideology of consumerism in government - viewing it as subjecting welfare to the vagaries of the profit motive. Drawing on Gorz (1999) and his notion of the commodification of state provision, public ser­vices are rendered essentially meaningless when reduced to the status of products to be bought and sold. By this line, the obligations of state to citizen are those that require it to care for the common good, but the veracity of this care is challenged as they are exposed to the full force of capitalism and the drive to reduce prices by delivering standardised products that can be quickly, cheaply and routinely dis­pensed to a mass of consumers. State services become embroiled in the climate of consumption. For Lodziak (2000: 131), the ‘standardisation of caring means that the latter is not tailored to the specific needs of particular individuals... When the “care” misses needs are left unsatisfied'. He suggests that we consider the impact of cost-cutting measure of the provision of health care, whereby the need to meet targets and drive for efficiency means that patients are offered standardised care - standard diagnoses within a standard consultation time all designed for a standard, model, patient. For a more personalised, tailored service, patients are driven to self-provision or more expensive private health care. In a similar way, I believe that this principle can be applied to legally aid criminal defence - another arm of the welfare state subject to the pressures of reduced funding and harsh economic circumstances.

Accordingly, this is an important time to study the lawyer-client relationship. There appears to be the very real prospect that business decisions might come to trump social welfare concerns; standardised, rational choices based on the value contained in a case for a lawyer supersedes how they can best meet the subjective desires of their clients. If, unlike an area like commercial law, this branch of the legal profession was premised upon a public service remit, such an understanding may look increasingly quaint and old fashioned as we glimpse a corporate mindset at play even in legal aid work. At the moment, we cannot be sure whether - like so much of the noblest idealism throughout human history - it gave way to the perva­sive creep of greed; this is speculation based on some empirical research and a con­sideration of surrounding events. If there ever was a public service lawyer, they may have vanished already and we are too late to do anything about it or, alternatively, they might be stronger than ever, contrarily resisting the pressures against them and waiting for support. What we can be certain of is that the profession is evidently in flux, as lawyers will have to cope with the changes that come their way. This book will go on to explore whether and to what extent lawyers alter or modify their prac­tices and, thereon, how this impacts on their clients. Will the pressures felt by such lawyers put a strain on the lawyer-client relationship?

By everyday usage, strain can involve stretching an object so tightly that it becomes taut or tense. These excessive demands cause the object to be subjected to great stress as it is exerted to the utmost. Being pressed to such extremes ensures it distorts from, and acts in violation of, its true intention or meaning. Think of an elastic band, which is supposed to have some give but, if pulled too aggressively, it can no longer cope with the pressure and breaks. The snapped elastic band can no longer be used properly as, devoid of its previous strength, it does not serve its origi­nal purpose. This study seeks to ascertain whether any such strain existed here in the lawyer-client relationship and, if it did, its nature and extent. It addresses whether clients still get the benefit they should and, presumably, used to, from law­yers. However, it moves beyond that, and attempts to describe how this strain man­ifested itself; the effect this had on the service offered and the manner in which lawyers dealt with the resulting state of affairs. Finally, it allows us to consider whether the strain had gone so far as to bend the lawyer-client relationship so out of shape that it was beyond repair, or if it could be patched up and reused in any meaningful manner.

However, before considering these results, I must first outline the way in which this research was conducted: the methods and methodology that underpin it. These are addressed in the following chapter.