FOREWORD

For the diminishing number of often-disheartened lawyers who, like me, work in the Cinderella world of criminal appeals, Daniel Newman's book is both timely and important. Many of us have suspected for a long time that criminal defence lawyers are (with of course some very important exceptions!) in general, ‘not fit for pur­pose'.

There can be no argument with the basic proposition that those who are accused of a crime need effective and fearless representation, and the more serious the offence then the greater the need for the very best defence. However, many appel­lants having been wrongly convicted say that their lawyer didn't listen to them, wasn't interested in them, didn't understand the evidence against them or the case that they wanted to run and, generally, did a bad job. We have to explain that, how­ever true this may be, it's bad luck because as a ground of appeal, incompetence, laziness or the downright stupidity of their defence team will almost certainly not succeed as a ground of appeal.

Daniel Newman's research, put bluntly, tells the story of a criminal justice system that is populated by and large by a collection of lawyers/paralegals and gophers who would not survive in virtually any other branch of the law. In their defence, they point to the scandalously low fees that they receive from the LSC and how criminal legal aid is an easy target for politicians to cut to the bone; knowing that forcing down standards will not produce an outcry from the media, from the public or by and large from the legal profession. Victims of legal incompetence and error are a marginalised and disenfranchised group with no voice, no public sympathy and no political clout. They have no money to pay for a decent service and their lawyers know that they will rarely face a negligence claim and are unlikely to be the subject of a complaint to the SRA or the Legal Services Ombudsman for poor service.

Adding to this, having established the CCRC, politicians are now no longer inter­ested in why our criminal justice system produces miscarriage after miscarriage and refuse to address the fundamental issue that it is impossible to deliver a first class criminal justice system on the cheap. The introduction of fixed fees in criminal cases is just one example of a cost cutting measure that has made the situation worse. What is the point of an uncommitted defence lawyer doing anything to challenge the prosecution case when their fee is based on the page count not on the work done? Doing hundreds of hours of work challenging the prosecution at every stage gets you precisely the same fee as if you do absolutely nothing - the logic of inactivity is overwhelming.

By using ethnographic methodology and having observed at close quarters three criminal defence firms, Daniel Newman's research shows, in a vivid and colourful

vi Foreword

way, that, although defence lawyers by and large talk the talk, they don't walk the walk. Daniel Newman's research illustrates brilliantly that such lawyers are not delivering the service that they should and as a result the adversarial system - which relies on equality of arms between the prosecution and the defence - is failing. Even when the CPS is as incompetent and as flawed as it often is, it still succeeds in cases where it should not.

In my experience, defence lawyers often fail to do even basic things to investigate or put the prosecution to the task of proving beyond reasonable doubt that the person they have charged is guilty. In one of the cases I am currently dealing with, the appellant was charged with murder following a fight with his friend through a broken kitchen window. Expert evidence pointed to the fact that the victim had impaled himself on a shard of glass while he was trying to hit the appellant with a squeezy mop. For reasons that still remain bewildering, the jury were never given the opportunity of considering the self-impalement option, which, from all the available evidence, appeared the most logical explanation for what had occurred.

Although we cannot change the criminal justice system (and sadly it is difficult to imagine how it can be changed for the better) some of us who are deeply worried about its many deficiencies have recently established the Centre for Criminal Appeals, which, if it secures funding, will focus on investigating miscarriage of jus­tice cases and will attempt to do some of the work that should have been done before trial.

We know that this is shutting the door after the horse has bolted and we know that some of the cases we will examine are old and important evidence will have been lost or destroyed and memories will have faded. What we are hoping to achieve, however, is to establish a core methodology of best practice that we hope will influence defence practitioners who may learn from the very many mistakes that are continuing to be made daily in the criminal courts. By doing this, it may at least be possible that one innocent person will get a better defence, and it may well be that this will encourage those committed defence solicitors to continue to do a good job and if so it will be worthwhile. In the meantime, everyone who is interested in and cares about criminal justice in this country should read Daniel Newman's book. It can only be hoped that it stimulates a debate about this vitally important subject and that things begin to improve for all those who face criminal charges, particularly those who are innocent of the crime for which they have been charged. Glyn Maddocks 31 January 2013