This research set out to explore the lawyer-client relationship.

It has been informed by the supposition that access to justice requires access to criminal defence lawyers funded by legal aid. Moreover, I have insisted that these lawyers need to provide a high quality service dedicated to the clients and displaying strong due process values

- active defence.

- symptomatic of ill-health - and the clients appeared to suffer as a result. It was hardly worth the lawyers being there at all, except to serve the interests of swift and efficient court processing of cases (crime control not due process values).

To conclude this investigation, I reflect on some of the implications of what has been reported. My research built on the foundations laid by the ethnographies of McConville et al (1994) and Travers (1997b) some two decades before, and espe­cially the fundamental contradiction between the various images of the lawyer­client relation they portrayed. The former presented evidence justifying an attack on legally aided criminal defence lawyers, while the latter found grounds to praise them. These works present such divergent accounts of the lawyer-client relation­ship that I felt they needed to be resolved by a new and up-to-date study - such as my own.

In designing this study, a theoretical sample of Radical and Sausage Factory firms was devised in order to find the best and worst of legally aided criminal defence; lawyers who facilitated access to justice for their clients and those who precluded it. I was particularly keen to focus on the former to draw out the positive elements of legally aided criminal defence. Thus, two Radical firms and one Sausage Factory firm were the subject of close scrutiny. As such, a distinct pattern should have emerged across these three firms regarding the highlighted issues of attitudes, behaviour and outcomes. This configuration, though, did not materialise in the manner anticipated.

Rather than the theoretical firms directly mapping onto their real life counter­parts in the sample, the two prongs of this ethnography produced a complication. In the formal interviews, the great majority of lawyers from all three firms presented views that could be characterised as Radical. In the participant observation, the bulk of lawyers from all three firms acted in a manner suggestive of the Sausage Factory. Though unexpected, this variation was straightforward. Its simplicity works to emphasise how stark and definitive these results were, as should be evident from the following figures.

Attitudes

I anticipated that lawyers in the firms should display readily distinguishable atti­tudes to their clients. Radical firms would be positive, Sausage Factory negative:

Figure 1

Lawyers from both firms, though, presented positive attitudes in the formal interviews:

Figure 2

In contrast, the participant observation showed a quite different situation, as each displayed negative attitudes:

Figure 3

Behaviour

As with attitudes, behaviour was supposed to generate a clear separation between Radical firms where lawyers treated clients with respect and Sausage Factories where the opposite would be found:

Figure 4

The formal interviews saw claims to respectful behaviour by all:

Figure 5

The participant observation, though, contradicted this with universally disrespect­ful behaviour:

Figure 6

Outcomes

Finally, I predicted that outcomes were to follow a similar path.

Figure 7

The image gleaned from the formal interviews was one in which lawyers gave voice to clients across the board:

Figure 8

Meanwhile, the participant observation suggested that these same lawyers actually spoke over their clients:

Figure 9

The Lawyer-Client Relationship

In each issue, then, the formal interviews and participant observation were at odds. Overall, this meant that, while it was supposed that these two types of firm would show divergent experiences of the lawyer-client relationship they actually revealed a similar one. It was expected that the Radical firms would exhibit a healthy rela­tionship, rather than the strained one expected with the Sausage Factory firms:

Figure 10

The formal interviews documented a healthy relationship all round:

Figure 11

However, the participant observation exposed a strained relationship in every firm:

Figure 12

On the one hand, lawyers portrayed a supposedly healthy relationship while, on the other, I found this not to be the case and saw a strained relationship.

RHETORIC

It should, then, be clear that the formal interviews produced a picture quite distinct from that of the participant observation and that the former tallied with the theo­retical Radical firm, while the latter was consistent with the Sausage Factory. Lawyers spoke as if they stood for active defence, while they appeared to practise something far more passive. As such, it can be said that the lawyers talked the talk but did not walk the walk. This poses a question of deep significance to this research, and left-liberal socio-legal studies in general; is the Radical firm simply a matter of rhetoric?

In addressing this question, I feel it is important to reassert the contention that this book is not in any way intended to be anti-lawyer; quite the opposite it was undertaken to support those who practised active defence and the cause they claimed to work for. As such, it is only fair to acknowledge that there will be system­atic reasons why a healthy relationship was difficult to achieve in practice. The most obvious of these are the aforementioned burden of reduced legal aid remuneration. This must certainly have exerted some impact, as spending less on goods of what­ever variety almost always entails receiving a lesser product in return, you get what you pay for - less and/or lower quality service. But the devaluing of the apparent commodities offered by these lawyers is only one part of a wider process whereby the structure of the criminal process increasingly appears to stand against enacting adversarial justice. A more procedural example exists in the way that the criminal justice system holds out a discount for defendants pleading guilty which, inher­ently, makes it harder for lawyers to appear to be practising active defence. Lawyers are ethically obliged to advise their clients that it may be in their best interests to plead guilty. In this manner, the criminal justice system ensures that truly active defence can come at a considerable cost to the client.

Meeting this disjuncture, over the course of the research, I have felt the need to become increasingly sceptical of what the lawyers said. For Shermer (2010), a scep­tic is one who takes a scientific approach to evaluating claims; science is sceptical and good scientists are sceptics. The sceptic carefully considers the evidence and willingly follows the facts wherever they lead. This can be contrasted with the denier who has a position set out in advance and sorts through the available data employ­ing confirmation bias to find evidence that confirms their pre-existing beliefs. Anything that contradicts their position is ignored, so Shermer (2010: 36) suggests that, ‘denial is typically driven by ideology and belief... commitment to belief takes precedence over the evidence'.

It would have been an act of denial for me to produce a book that portrayed law­yers in a good light, and depicted a healthy lawyer-client relationship. This could have been achieved, though, with some highly selective presentation of unrepresen­tative data. That implies, of course, that not everything that I saw aroused my criti­cal ire. It should be recognised, then, that it would be misleading to proceed as if these lawyers were engaged in a constant and unrelenting war against their clients. Throughout the research, I have highlighted my selective use of quotes and exam­ples, deployed to produce a representative account of the dominant patterns.

On many occasions, lawyers were neutral about clients and offered no judge­ment. When they did, it tended to be negative, but there were some positive atti­tudes expressed. This can be seen across the firms, in the following examples taken following client consultations at the Magistrates' Court. The first dialogue refers to three new Eastern European clients involved in an affray, with difficulties speaking English; the latter two concern young, but regular, clients facing drug-related theft charges. The reactions could be deemed patronising but, all the same, seemed well-intentioned:

Oh, that was great. I think I really bonded with them. They seemed to like me. Nice guys, lovely. I really enjoyed that. I hope I helped them.

(Laura, solicitor, Swining MacSage, IC)

I really hope he can sort himself out. He's been so unlucky in his life. He deserves another chance. Poor kid.

(Shelly, solicitor, Radcliffe and Musk, IC)

He's a sweet little kid. I really liked dealing with him. I hope he gets on okay. I'll keep an eye out for him

(Catherine, solicitor, Radford Hope, IC)

While the lawyers were regularly disrespectful to clients, there were also exceptions to the rule at all firms. In the following example, Denise, a Radcliffe and Musk solici­tor at the Magistrates' Court, encountered a client who was in court for assaulting his wife. The client would not receive legal aid for his Magistrates' appearance as he was self-employed, had not brought payment slips along and, it was assumed, would be beyond the eligibility threshold in any event. The case was likely to be committed to the Crown Court but, all the same, Denise was distraught that the client would have to go through the hearing on his own. She had spent much time with him in the cells, despite not being paid for it, and passionately complained to all who would listen, as follows:

It's ridiculous. About as serious as it gets - domestic violence. The fact that he's not got anyone representing him today isn't going to make any difference to the outcome. But that's not the point, he should have the right to representation. Access to justice? This is a case in point; complete lack of. It makes me want to give up the job completely. Ifwe can't represent clients like that, in these circumstances, what's the point?

(Denise, solicitor, Radcliffe and Musk, OR)

Similar sentiments were expressed by her colleague, Shelly, who was appointed by the court to cross-examine the main witness in another domestic violence case. She was upset that she was to attend the trial but only undertake that one task and then leave the client to fend for himself, as seen from the following:

It's crap, absolute crap. And I feel terrible about it. I really hate this. I feel really shit. I'd much rather not be here at all. I just don't want to go in and just do the cross-examination, while he does the bad character, other witnesses and makes his own closing speech. It's horrible and I really wish I wasn't in this position.

(Shelly, solicitor, Radcliffe and Musk, IC)

With regard to outcomes, the major theme was for lawyers to push clients to accept their decisions and plead guilty. One solicitor expressed regret at this situation:

It's not right to push clients to plead guilty, not if they really don't want to. Of course, solicitors do encourage clients to see it their way, when it's in their best interests. But, even then, if the client doesn't want to they shouldn't be made to. Clients should be able to do what they want.

(Audrey, solicitor, Swining MacSage, IC)

Beyond this, though, the following examples show lawyers from Sausage Factory and Radical firms alike acting to convince clients to plead not guilty:

[Client] Why would the police make something up?

[Lawyer] They have been known to do that [laughs]. It might be that he realised he made a mistake and was lying to cover his own back by claiming you hit him first. You should really consider pleading not guilty.

(Peter Siddle, client, and Dale, senior partner, Swining MacSage, OR)

[Lawyer] I want you to think very carefully about this. Ifyou're sure you're not guilty then you have to say not guilty.

[Client] But, the other one, he said I should just go guilty.

[Lawyer] Forget about that. What's important is what you believe. If you think you are not guilty, then that's what we do. Think about it.

(Norma, solicitor, and Ben Hilfenhaus, client, Radford Hope, OR) The foregoing from the participant observation could have been used in combina­tion with the interview data to produce a positive work akin to Travers (1997b). Maybe Travers (1997b) was lucky enough to find a firm that practised active defence all the time. However, the possibility of rhetoric is also writ large; accepting the slant lawyers put on events may have produced findings that owed more to this rhetoric than to any reality. However much I wanted to find similarly encouraging results to support my initial belief that lawyers deserve more support (not to mention, for an easy life in terms of analysis), the need for scepticism was too strong. If I had attempted to give a positive slant to what I saw, it could justifiably be construed as an act of denial, as Shermer (2010: 37) suggests that a ‘practical way to distinguish between a sceptic and a denier is the extent to which they are willing to update their position in response to new information ... sceptics change their mind, deniers just keep on denying'. I was not able to deny the discrepancy between what the lawyers said in interview and did through the participant observation; my own standpoint had to change and I became distanced from the lawyers. This was no easy move, and I was initially concerned that I would upset many of my new friends. While I hoped to improve it, I am aware that this research may further harm the reputation of this branch of the legal profession. However, I am first and foremost a social scientist and so guided by Shermer's (2010: 37) conclusion that, ‘scepticism is integral to the scientific process because most claims turn out to be fake... weeding out the few kernels of wheat from the large pile of chaff requires extensive observation'.

Over time, completing the research for this book has turned me into something of a lawyer-sceptic (which should not be misread as a lawyer, septic; a phrase that some of the less sympathetically minded might wish to use in referring to the law­yers in this study) In compiling this book, then, I have to consider that what the lawyers said about their practice might simply have been so much rhetoric; exagger­ated and high-flown language, grandiloquence and bluster, used to disguise and deflect attention away from a lack of meaningful content to support it. Of course, this research does not provide the answer to the question of whether the Radical firm is just a matter of rhetoric. It was conducted with a handful of purposively selected firms in a single area. This represents a significant limitation of the present findings. There is a need to be aware of the possibility for variation between differ­ent locations, what Church (1985: 451) labels ‘local legal cultures' - lawyer norms governing case handling and activity. Accordingly, Hucklesby (1997b: 130) urges the value of considering the social processes involved in particular criminal justice settings and the importance of relationships for the participants within. There is, then, scope for variation and specificity. Following this, I make no claims that the data offered represents the mass of legally aided criminal defence across England and Wales (no matter what anxiety I posses that it actually may well do).

At the very least, the emergence of rhetoric as a topic that needs to be addressed constitutes an extremely important finding in itself. It has wider implications for what we believe about access to justice and what we could legitimately hope to see in the criminal process. While we cannot judge whether the Radical position was all rhetoric, this study does put us in a position from which to consider that there may have been some element of rhetoric from lawyers in this research. That said, it would be wrong to condemn this rhetoric out-of-hand.

For Billig (1996: 1-2), rhetoric should be seen as a pervasive feature of the way in which people interact and arrive at understanding. Rhetoric represents a public position, often on a matter of controversy, so it is reasonable to expect individuals to justify their own position and criticise counter-arguments. As such, Simons (1990: 11) believes that a key job of the rhetorical analyst is to determine how such ‘constructions of the real' are made persuasive. In this light, Potter (1996: 107) sug­gests that rhetoric need be explored for both its offensive and defensive properties; any description must necessarily work against a competing account. Rhetorical discourse will seek to challenge alternatives, intended to damage, rework, or reframe them, while also seeking to resist being discounted itself.

To follow Potter (1996: 108), there is a fundamental need for a double analytic focus when considering rhetoric. This rhetoric serves two functions - building up factual accounts and undermining them. This first aspect is ‘reification’ - turning something abstract into a material being. By this, accounts are producing an object, something tangible. It is in this sense that Sommerlad (1996: 294-96) sees validity in the dogmas of lawyers’ professional claims. Though they may not have achieved the ideals they professed, they still presented a form of reality. This is the reason that Travers (1997b: 130) places such great stock in giving voice to his lawyers. However, the second purpose, ‘ironizing’, suggests words are used in a manner that contra­dicted what was witnessed. This sees rhetoric as undermining material reality, dis­torting it through knowingly erroneous talk, motivated by a particular agenda. These are the concerns that the authors of McConville et al (1994) express when addressing Travers’ (1997b) work, which they fear could be compromised and invalidated by the false claims of lawyers (Bridges et al, 1997: 379). They consider it a mistake to accept an account that might differ so markedly from what it describes.

The lawyers in this study, then, may have been both constructing their own real­ity and seeking to prevent others from making independent judgements on what they experienced. Either way, some level of persuasion should be recognised as involved in this process, as rhetoric can be considered ‘the art of persuasive dis­course’ (Cockcroft and Cockcroft, 1992: 3). This persuasion could be labelled manipulative; however, it can also be construed as par for the course in dialogue and discussion and an inevitable part of the process in constructing social knowl­edge. Ultimately, rhetoric should be considered somewhat unavoidable in ethno­graphic research that relies on respondents’ statements to any degree. Under the ‘universal rhetorical situation’, identified by Nichols (1974: 348), rhetoric is a social fact, common to all:

The basic function of rhetoric is the use of words by human agents to form attitudes or induce action in other human agents... it is rooted in an essential function of language itself, a function that is wholly realistic and continuously born anew.

My lawyers were likely engaged in an attempt to both convince themselves and influence me. That the accounts provided by these lawyers in the formal interview suggest rhetoric, then, should not be used to deny the possibility that the Radical firm and, in particular, the values contained within that definition, did and could exist. Indeed, Sommerlad (1996: 295) urges that such rhetoric should not be writ­ten off for not conforming completely to the ideal; for her, it will always be an approximation on the trajectory of the professional project. At the very least, these lawyers sowed the seeds of a Radical discourse, which might flower - given the right conditions.

LEGAL AID

The rhetoric of committed service should be taken seriously - it does have poten­tial. As has already been mentioned numerous times, the lawyers in this study would attribute the paucity of such service in practice to their perceived lack of legal aid funding. Their position is captured in the following quote from James, the senior partner of Radford Hope, who saw legal aid cuts jeopardising the whole crim­inal process:

Government ‘tough on crime' rhetoric just works to allow them to take away more and more money from legally aided criminal defence. I liken it to a man who's got a heart condition and is given medication and is also asked to exercise every day and what is actu­ally happening, the government is removing his medication, and each day he goes on the trainer, his feet have been tied. So, eventually, he will have a cardiac arrest. I think the criminal justice system is very close to that.

(James, senior partner, Radford Hope, INT) Indeed, I should note that it was this theme that first influenced my decision to conduct this research - I wanted to prove the worth of this branch of the legal pro­fession against the naysayers in charge of public spending, to prove that they pre­sented a necessary element of the welfare state. I knew that legal aid remuneration rates were a thorny issue and so it was to be expected that it would also be at the forefront of much of these lawyers' thinking. The dichotomy between rhetoric and reality, then, may well be influenced by such structural factors. Indeed, when con­sidering legally aided criminal defence schemes across time and space, Smith (2002: 3) sees one constant: a good quality of service goes hand-in-hand with high levels of funding.

However, in the present times of economic hardship, remuneration is only likely to worsen as the legal aid budget passes onto a Coalition Government committed to deficit reduction (Watt, 2010). Following the new administration's first Comprehensive Spending Review, the Ministry of Justice was tasked with making some of the greatest savings of all Whitehall departments as its £9 billion budget was cut by £3 billion (Helm, Asthana and Townsend, 2010). Alongside fewer prison places and court closures, legal aid was identified as an area ripe for potential cuts (Hanman, 2010). Legal aid in England and Wales accounts for over a fifth of the total budget and, as then Justice Secretary, Kenneth Clarke was so keen on remind­ing everyone, a larger amount than any other nation in the world with the exception of Northern Ireland. The first raft of legal aid cuts duly saw the annual bill of £2.1 billion cut by £350 million, with the majority being taken from the civil budget - facing cuts of £240 million compared with just £70 million for criminal cases (Bowcott, 2012). The apparent discrepancy seems even more disproportionate when it is considered that civil cases previously accounted for less than half of the overall legal aid budget, at £985 million, with £1.2 billion being taken up by crime (Newman, 2011). The dismantling of civil provision was enshrined within the Legal Aid, Sentencing and Punishment of Offenders Act 2012 - despite the loud noises made by the opposition of the Justice for All campaign. The latter coalition of chari­ties, advice agencies, trade unions, community groups and politicians attempted to highlight some of the more emotive examples of the impacts caused by the cuts to civil legal aid, promoting heart-wrenching stories by the elderly and infirm.

At first glance, it might seem odd that the Coalition Government would choose to protect criminals over the law-abiding vulnerable. Indeed, hard-line crime stances are one of the simplest means of attaining political capital; giving money to support a drug-addicted shoplifter over a geriatric who cannot afford their central heating is unlikely to go down well in the tabloid press or on talk radio phone-in shows. Despite the prospect of negative headlines, targeting civil legal aid represents a relatively easy choice for the government to take. As the freedom of individuals is at stake in criminal cases, and less likely to be so in civil matters involving benefits, divorce or employment, the European Convention on Human Rights offers greater protection to this fund. Cutting more from the criminal legal aid budget would be difficult without incurring the wrath of human rights challenges, though this should not be ruled out in light of the inevitable attempts of the Prime Minister’s attempts to appease the right of the Conservative Party by supposedly standing up to their bogeymen of Europe and the forces of - to repeat that most misused of phrases - political correctness gone mad.

An increasingly hard-line approach will likely emerge as the more authoritarian Chris Grayling (who, unlike his predecessors, has never been a lawyer) replaces the rather liberal Kenneth Clarke as Justice Secretary, perhaps shifting any remaining emphasis on justice towards one on crime. For Rozenberg (2012), Grayling’s main qualification for the post is that he is right wing - likely to use the post as a means to generate tabloid-friendly populist headlines attacking the supposed liberal incur­sion of the legal establishment. This process was quickly enacted in his first major comments around the subject of legal aid, attacking the reported £1 million fee incurred in Islamist preacher Abu Hamza’s prolonged extradition proceedings - a cause that was, of course, championed by the Daily Mail (Doyle, 2012). The inevi­table transition from hug a hoody to mug a hoody will likely take form as the next general election gets closer, and has already been suggested by the reaction to David Cameron’s first law and order speech in office, halfway through his administration (Jowit, 2012; Walters and Owen, 2012). Despite claims to the contrary in the actual content of the speech, with its arguments against treating crime as a binary concept (soft or tough), it seems highly likely that behind-the-scenes briefings led a raft of popular punitive stories emerging in the right-wing press - in no small part to appease the increasing clamour of backbench Tory voices calling for a lurch to the right in law and order policy (see Tebbit, 2012). Added fuel to the fire is the underly­ing law and order agenda that underpins any Conservative government and the distinct possibility that the government’s unerring quest to speedily reduce the state's economic deficit is as much ideological as it is pragmatic. In the situation Rose (2010) describes as ‘death by a thousand cuts’, it is likely that criminal legal aid will be adversely impacted sooner rather than later.

Though the need for cuts offers the opportunity for realignment of the system to better serve access to justice, this is unlikely to materialise (see Garside, 2010). This process will rather likely entail measures such as reduction in eligibility criteria and an increase in telephone advice over that provided in person. For those who still receive representation as we know it, it is possible that they will receive a lesser qual­ity of service. These (dis)incentives might further encourage the practices that have been witnessed in this research: lawyers taking increasingly negative attitudes, treating clients with less respect and providing clients with fewer opportunities still to have their voices heard. It could be suggested, then, that the future heralds more of the same, more of the time.

With this consideration in mind, it is valuable to turn to a recent consultation paper on access to justice produced by the Law Society (2010: 5), which was guided by a similar credo to my own research, namely that:

Any society that wishes to be thought of as just and fair needs to have mechanisms to ensure that the rule of law is maintained and that its members are able to obtain justice properly: the rule of law is meaningless without justice also being freely available.

This Law Society (2010: 18) review is enthused with a deep concern that the legal aid situation has meant that the current system is at a financial breaking point for lawyers:

For increasing numbers of lawyers, legal aid is no longer a viable business proposition or an acceptable career path. The rewards have become too low relative to what qualified professionals can reasonably expect. The risks are too great... the government is com­promising lawyers’ ability to do a good job for their clients, thus weakening one of the final remaining ties keeping them in the system.

This situation might be considered inevitable as long as legal aid is provided through the private practice, judicare model; a system which Mackay (2001: 1) believes to be so fundamentally flawed that the system would not likely be considered were legal aid introduced today. For Stein (2001: 25-34), this privatised service inherently works against the ability of legal aid to facilitate justice in society; they provide only ‘band-aids’ - inadequate to deal with such an important task. A significant aspect of this can be found in Smith’s (2002: 8-9) assertion that judicare possesses an inbuilt disadvantage, derived from allowing lawyers to act as arbiters of quality control. As long as firms are expected to maintain themselves as viable businesses, it remains

plausible that economic concerns could trump those of the clients, meaning the service clients receive must suffer.

The Law Society (2010) has shown itself keen to explore alternatives - to better serve access to justice. If private practice is the problem, it would seem sensible to consider non-profit options. The most prominent of these has been salaried defend­ers, introduced as a pilot Public Defender Service scheme following Lord Carter's review (see Lord Chancellor's Department, 2000). Salaried defence might be uti­lised to provide a distinct and independent, community-minded criminal legal aid service. In this manner, the scheme offers a means to improve quality by freeing lawyers from the burdens ofbusiness imperatives and allowing them to concentrate on meeting the needs of their clients.

This Public Defender Service had been a contentious issue among the lawyers in my research. They perceived it as a challenge, one premised upon a misguided drive to cut costs with little regard for quality of service. The following interview quotes provide a flavour of the discontent:

Salaried defenders are just part of the civil service again, so that must put constraints on them in other ways. I don't think it's actually focusing on the client and on the case. It's just cost-cutting.

(Shelly, solicitor, Radcliffe and Musk, INT)

I think the governments that are coming will still be looking at ways of cutting costs - in the CPS [Crown Prosecution Service] they've got people who are not qualified presenting cases, so if they are prepared to allow that, they'll be prepared to allow it for defence too. I can see dedicated caseworkers. I can see defence lawyers as in America, just somebody appointed by the court - I know they piloted it in areas, and it's still going in some areas... so I don't think any government will stop trying to cut costs. It'll drip down and the whole system will become increasingly weak. The defence profession as I knew it will die.

(Norma, solicitor, Radford Hope, INT)

While they were against the government's practical application of the scheme, sev­eral lawyers were attracted by the theoretical principle of salaried defence. They raised the possibility that it might provide them with more freedom to act for their clients in the manner in which they would want. Such lawyers suggested that sala­ried defence held the potential to alleviate any current financial pressures experi­enced, as in the following:

Being a public defender would absolutely free me from distractions and improve quality, yes. I'd get a bit more than I am earning at the moment, I would get flexitime, I would have a contributory pension, I would have 30 days holiday per year, I wouldn't have to worry about employing staff and paying wages, I wouldn't have to worry about going to get business. Please make me a public defender at £55k per year! I would jump tomorrow and every lawyer I've spoken to - and I've spoken to most in the city - would all jump at that opportunity.

(Mike, senior partner, Radison and Muddle, INT)

I know people who have gone into the public defenders system from private practice when they were doing well and they say it's an absolute delight to work there because they have all the benefits ofbeing a civil servant, in terms of flexibility, they don't have to over­work, they don't have to stretch themselves.

(Leo, senior partner, Radcliffe and Musk, INT)

The public defender system? To be honest, it would be great if they wanted to say: ‘Right, you're contracted to us'. Some solicitors would gladly say that they didn't want to take the risk any more, it would be: ‘You pay me a salary, you pay for all my IT, you set up a pen­sion scheme and you run it then - take all the risk away'. Because we're taking all of the risk at the moment. That sounds much more appealing.

(Donna, solicitor, Radcliffe and Musk, INT) However, reports on salaried defenders in Scotland (Tata et al, 2004: 9-10) and the United States (Gilboy and Schmidt, 1979: 19-21) have presented many of the issues evident in this research. Lawyers adopted negative attitudes to clients, they behaved disrespectfully towards them - discontinuous representation was rife - and, ulti­mately, outcomes still worked for the lawyers and even more clients were pushed towards guilty pleas. Plus ςa change. More fundamentally, though, the Public Defender Service could be judged a failure in the terms that the government set out for it - it was not cost-effective, proving pricier than private practice (Bridges et al, 2007: 263-64). For the Law Society (2010: 42), this can be considered inevitable in such a system, with the public sector demanding greater overheads and bureau­cracy. It seems this area will not be developed further in the immediate future (Zander, 2007: 612-14).

Accordingly, the Law Society (2010: 42) moves beyond salaried defence and onto the advice sector - schemes largely financed by local authorities or charities. In particular, they focus on law centres and Citizens Advice Bureaux (Law Society, 2010: 65-66). There might be grounds on which to call for an expansion of the ser­vices provided by the 52 law centres and 416 Citizens Advice Bureaux which cur­rently provide help across a wide swathe of legal areas. As it stands, these organisations tend to deal in matters such as housing, employment, welfare, debt and immigration. A radical model for improving these services is suggested by Smith (2010: 16), under the banner of ‘poverty law'. He seeks to transform these individual, local centres into a broader, national movement, with wider strategic goals (Smith, 2010: 16). The rationale offered by Smith (2010: 19) is that this area could take up the slack from lawyers increasingly abandoning and neglecting less profitable areas of law. Freed from the profit motive, he believes that these advisers could be trusted to put the clients first, suggesting that a more comprehensive inte­gration of legal services will benefit access to justice. To move beyond the proposals of Smith (2010) or the Law Society (2010), there is the potential for a debate on whether such a provision of poverty law could be further extended to incorporate criminal defence work in some way.

In a similar vein, the Law Society (2010: 44) commends the triage system for further consideration:

Triage is traditionally used in medicine and is the process by which individuals are assisted on the basis of the actual or perceived degree of need by assigning them to the most effective and efficient provider so as to ensure optimal care... a system of allocating scarce resources, providing the maximum resources to individuals of highest priority.

They cite the Dutch system of Legal Service Counters as a working example of a tri­age approach to legal aid in operation (Law Society, 2010: 75-79). These high street shop fronts provide readily accessible advice, with call centres and consultation rooms on site. The service is free, and non-means tested, as hour-long sessions are offered with legal advisers, while there is no limit on repeat calls. Clients are pro­vided with information and helped to work through their problems. They might ultimately be referred to a local legal practitioner who specialises in the area of need; this lawyer is registered with the Legal Aid Board, to whom the client makes a small, one-off financial contribution for an appointment.

The appropriation of such a scheme in England and Wales would involve more use being made of publicly funded organisations, legal aid centres and student law clinics attached to universities. The Law Society (2010: 75-76) provides figures based on two such counters over the first six months of their operation, which doc­ument crime constituting one of the smaller areas of business. However, this might be due to the ingrained nature of traditional criminal legal aid provision, and the possibility for growth in this area remains.

The Law Society (2010), then, discusses a handful of alternatives to the judicare model that offer potential for greater access to justice. However, in assessing them, they return to the same problem; none offer a system that would definitively improve on a better financed judicare model. Salaried services have been shown to cost more than judicare, while any growth of law centres and Citizens Advice Bureaux or the importation of Legal Service Counters would all require a large amount of funding. Accordingly, the Law Society (2010: 45) finds it difficult to envisage how these schemes would improve on the current system were it ‘properly funded'.

The Law Society (2010) suggests that private practice is the appropriate model to persist with. They accept that there are methods that might enhance this - the entry of large organisations into the market and alternative business structures; however, both of these are deemed problematic (Law Society, 2010: 46-48). While a smaller number of large providers might reduce administration costs and new commercial entrants promise greater efficiency, they pose substantial threats to quality. The Law Society (2010) contends that these developments would simply work to increase the drive for savings and further decrease attention on clients. In addition, profitable areas of the law would be cherry-picked at the expense of the less lucrative.

Ultimately, the Law Society (2010: 49-57) concludes that the best way to improve access to justice largely involves improving the remuneration offered to the judi­care system that currently operates. The current contracts are not judged to be ‘fit for purpose' - deemed a decade out of date (Law Society, 2010: 52). Rather, lawyers need to be provided with appropriate remuneration, and one means of achieving this is offered through appointing an independent body to determine rates (Law Society, 2010: 54-55). Many other public servants - such as nurses and the armed forces - already benefit from pay review bodies. As there is no general consensus as to the market rate for lawyers' services, this body could develop a formula on which fair pay could be determined.

VALUES

For the Law Society (2010), clearly reflecting the views of the profession it repre­sents, it seems that improving the economic situation faced by these lawyers would alleviate many of the problems currently faced by access to justice. As so often in contemporary society, capital is considered as a panacea. There is likely some verac­ity in the argument that a better funded legal service would better serve justice - taken at face value, this proposition seems somewhat self-evident. However, more money should not be assumed to automatically herald an increase in standards in and of itself. While lesser remuneration might well precipitate ever greater declines in the service provided, it is possible that improving the situation will take more than financial reward. Whether or not financial considerations got us in this posi­tion with regard to access to justice, it cannot be taken for granted that simply reversing the rate of remuneration will undo the damage that has been done to legally aided criminal defence practice. The activity of lawyers in this study seems to pertain to something deeper and more intransient, beyond economics. At this point, it is useful to turn to Nicolson and Webb (1999: 289) and their rejoinder to lawyers that, ‘to be involved in a business rather than a profession does not excuse one from the human race'.

The failings displayed by these lawyers cannot be written off as financial neces­sity, and monetary concerns are not enough to excuse them or detract from their responsibility for their own activity. Instead, we must recognise the roles that values play in the professional development of lawyers. This is the task that Boon (2005: 229) sets himself and, seeing values to represent ‘how the world ought to be and what is judged valuable or important in life'. The values that informed these lawyers should take centre stage over and above how they coped financially. To some degree, client-centred principles can be enacted whatever the economic circum­stances. This was also the stance taken by McConville et al (1994: 296), whose con­clusions I (sadly) must echo - for their lawyers, these desirable values are not realised and this is considered representative of the manner in which:

Legal education and training... has tended to be dominated by teaching about the tech­nicalities of the criminal law and procedure, without sufficient attention to basic princi­ples of adversarial justice and their links to more fundamental values.

They call for a redefining of values to ensure that lawyers are taught to care about clients and offer a better quality of service. However, since their research, Francis (2005: 176-85) identifies an ever-increasing disjuncture between legal training and ethics. Things have been getting worse, not better. The professional identity of these lawyers has definitely moved away from client-centeredness and towards manage­rial, profit-centred, concerns. This requires a level of ethical reflection that pro­gresses beyond simple compliance with the professional codes.

As it stands, professional service equates to little more than a ‘tick-box activity' (Sommerlad, 2008: 186). Ethics have become functional rather than moralistic. For Economides (2007: 162), the absence of these values can be attributed to an ‘overly narrow, positivistic legal education'. In this manner, it is useful to consider Chapman's (2002: 68) insight that training institutions themselves actually func­tion to make lawyers cynical and unquestioning. There has been a shift towards a neo-liberal mindset in law schools, in which the accumulation of capital and pro­motion of the self are downplaying the social role of the law (Thornton, 2006: 14-18). This gives weight to Maharg's (2007: 115-18) suggestion that law schools should integrate themselves into their communities. He believes that law students interacting with those whom they will later serve precipitates the development of a moralistic ethical approach to law through experience as well as education. As such, he cites the need to introduce public spirit, cooperation and democracy into legal training. This idealistic tone tallies with Francis' (2005: 189) insistence that, in the future, there is a need to precipitate a move from existing professional codes towards something altogether more aspirational. Such developments should be deemed crucial in the light of Nicolson and Webb's (2005: 167) observation that, ‘no part of the professional socialisation process seems to focus specifically on value formation'.

However, Evans and Palermo (2002: 128-29) have warned that institutional val­ues and ethical rules will not necessarily override individual circumstances and commitments. It is for this reason that Nicolson and Webb (2005: 168) urge the consideration of the character and personal values of lawyers. They are sceptical of the role that professional organisations can play in (re)structuring values. These authors insist that the vague pleasantries of lists including items such as public ser­vice commitment, integrity, justice and fairness fulfil an inherently conservative function of preserving professional privilege. Values become detached from that which they represent, empty in practical terms and relegated to a theoretical argu­ment by which to preserve the status quo. Any discussion of realigning the values of lawyers, then, must move beyond the syllabuses of law schools or the strictures of professional bodies. Rather, Nicolson and Webb (2005: 168) show us that:

The time might be ripe for the commencement of a profession-wide debate, involving individual practitioners, practice organisations, professional bodies as well as legal aca­demics, over the values and ethics to which contemporary practice can and organisations should aspire. At the very least, even if no consensus is reached, this is likely to result in values and ethics becoming more central to the professional enterprise.

It is to such a wider debate that my own work seeks to contribute. Rectifying the shameful way that lawyers treat their clients is partly a matter of ethics but, more specifically, these ethical constricts must be socially located. The ethics need to relate to the real world. Lawyers should be encouraged to consider the cultural position they occupy and, thereon, identify just where the values they should embody derive from. Lawyers, then, require a proper grounding in sociology of law, thus being taught to question their role and critique who they are and what they do. To be truly effective, such analysis must step outside a focus on the law in books and look at the everyday reality of living law, the way that these lawyers are daily responsible for shaping and reshaping the experience of law for themselves and those who come into contact with them. This book can play a major contribution to this process, offering a reference point through which to gain sight of a world that often remains closed off and private. As such, it can help new and old lawyers alike, introducing them to the life of a lawyer as recorded by an impartial outsider. The research might help to rewrite an organisational culture which might be sus­taining unpleasant behaviour by means of legitimising some manner of ethical fading (Chambliss, 2010). The data it has generated can inform and stimulate discussion as to what kinds of lawyers we have and what we should want. This research has shown a strained lawyer-client relationship that undermines access to justice, across all its lawyers, despite the sample being weighted towards Radical firms. These results suggest that serious consideration should be given to assessing the meaning of the values that lawyers claim. They merit questioning whether any such theoretical values can be properly enacted in reality and, if so, how.

The findings of this project will, of course, be disseminated to lawyers, held up as a mirror to show them what they say and what they do - whether they happen to pick up this book or, more likely, I need appeal to them directly and present the results. What the lawyers see might surprise some, shock others and could evoke disappointment, dismay or a sense of resignation. I have no doubt that some law­yers (including those I accompanied) will be angry with me, and may try to contest my research. Nobody likes to be criticised, especially not by someone from outside their field (who does he think he is?). I welcome the debate, though all I can do is tell it as I saw it - I have no agenda except to help them to do their jobs as well as they can. Whether or not lawyers publically admit to seeing themselves in my research, I hope, privately, they can meditate on it to some extent. As much as being research about the profession then, this report can become research for the profession, hope­fully encouraging reflexivity in their practices. Lawyers need to be educated about how they conduct themselves, and the role that rhetoric seems to play in bracketing off this behaviour from their sense of their professional self.

In this regard, a cue can be taken from other professions. I am firmly of the opinion that public service occupations can be treated as a whole, united by the relationship of server to the served. The latter is reliant upon the former, and thus inherently vulnerable. In this situation, Schon (1983: 3-20) finds an increasing cri­sis of confidence in professional knowledge, a scepticism borne from professionals taking advantage of their position. These lawyers, then, are not alone in the manner in which they fail to meet the values that society expects of public service professionals.

The most infamous alternative example might be that of the medical profession, notorious for its slang and abbreviations belittling patients (see BBC News, 2003). Under this, ‘GLM’ means ‘good looking mum', the ‘departure lounge' is the geriat­ric ward and ‘GROLIES' are ‘Guardian readers of low intelligence wearing ethnic skirts'. Some notes are adorned with ‘TTFO', signalling that patients were ‘told to fuck off'. That medical professionals deem this acceptable implies ‘ethical erosion' - the widespread devaluation of patients (Fox, 2003: 181).

Derogatory treatment of patients can be understood to constitute something of a learned activity (Wear et al, 2006: 454-55). Trainees treat current practitioners as role models, so those they follow influence their personal professional identity. The ethos of the community becomes self-perpetuating unless it is challenged. A possi­ble solution, proposed by Wear et al (2006: 461) involves making practitioners mindful of what they say and do:

The issues raised here go to the heart of professionalism in medicine, yet few of us want to acknowledge them directly. But we suggest that an honest engagement with the realities of clinical training faced by our students, even those realities that make us wince, is neces­sary. We must forewarn students early and consistently in their training... We must alert students that they will hear horrible, disrespectful comments about patients’ bodies, about their ability to pay for care, about their addictions. We must impress upon students that there are always choices when these moments arise - to ignore such comments, to laugh or chime in, to talk to a trusted role model about what to do, or perhaps even to risk confrontation with the sources of such humor.

This reflects a wider trend for awareness raising as more and more professions are becoming cognisant of their need to comprehend how they act with their clients. Indeed, Hopper (2008: 711) has issued a plea for more qualitative research into mental health care provision, to enable psychiatrists to understand what they actu­ally do. In this spirit, White (2006: 37-39) urges health and social care practitioners to be more reflexive, encouraging the practice of taping oneself to allow greater self-criticism. Within management education, Cunliffe (2004: 411) suggests that, ‘we can develop critically reflexive practice by encouraging students to think about how they, with others, construct realities and identities’. She recommends that stu­dents are provided with case studies of situations and told to analyse them using theory and principles, engage in role plays to understand their relations to others or keep journals and learn from themselves (Cunliffe, 2004: 413-22).

With regard to teachers, Day et al (2006: 613-14) believe practitioners are drained by emotional, intellectual and social demands. Values are said to shift and vary across time, dependent on a range of situational factors. The teachers require exter­nal support to renew and maintain their original values. For Tickle (2005: 61-64), social commentary has a large impact on the mindset of teachers, and he discusses the need for a politics for professionalism. Teachers, then, require reminding of what they use education for, and this will facilitate a process of self-construction whereby their teaching persona is (re)created (Tickle, 2005: 70-72).

In my research, I hope to make legally aided criminal defence lawyers similarly self-aware. As such, this work could aid them in identifying the values that they seek to adhere to and how these would be reflected in practice. Thereafter, the study may also act as a reminder of the need to check whether they are succeeding or failing in attaining those goals. This work could stand as a warning of the difference between rhetoric and reality. In doing so, this research will live beyond this book and I hope it might actually contribute to improving access to justice for at least some clients.

CLIENTS

Though this research has addressed the lawyer-client relationship from the per­spective of the lawyers, it is important never to lose sight of the clients; their rights are the reason this research was commenced. On turning to consider the clients, it is useful to refer to a recent collection of essays edited by Jon Robins (2010) - Closing the Justice Gap - which seek to disseminate fresh ideas and rejuvenate the principles of access to justice in the midst of a ‘legal aid system in crisis' (Zander, 2010: 2). These authors claim their key task as ensuring that whatever is done prioritises the client. Accordingly, Robins (2010: 6) details that the central criteria by which works were accepted were that they needed to be:

In the client interest, forward-thinking... a positive and very different contribution to a debate that’s stuck in something of a rut caught between government intransigence (as lawyers and those working in the advice sector might see it) and professional self-interest (as non-lawyers and ministers might see it).

Clearly, my work has been informed by just such values but its focus on lawyers limits the scope to make recommendations for clients. I judged that the rights of these clients was best explored by following the research of McConville et al (1994) and Travers (1997b) to see which findings held good some 15 years after those stud­ies were conducted. I sought to achieve this by utilising sampling, methods and methodology informed by both - ethnographic study concentrating on lawyers understood through structuralist and interpretivist lenses. I supposed that this was an area lacking in nuanced, contemporary treatment. Accordingly, lawyers had to be the centre of attention. In the circumstances of this study, it was not possible to address the clients directly to any great degree. In theory, I could have adopted a dual approach in which I sought to interview both clients and lawyers; in practice, the impact that a dual approach would have exerted on the ethnography would have been considerable, and likely harmful. There was the danger that my relation­ships with the lawyers might have been compromised, rendering lawyers awkward and guarded leading to further restricted access and a greater effort to play up to the researcher gaze. Lawyers may have been more acutely aware that judgement was being passed on them, and wary that the opinions of their clients could not be antic­ipated or controlled. The subsequent research could have lacked both the depth and closeness actually obtained. Thereon, producing that research would have seen greater demands on time and space. The lawyers’ experiences would have been neglected and, in turn, so would those of the clients. This compromise would not do justice to either side of the relationship, and therefore, not to the relationship at all.

Notwithstanding all that, my research is informed by the supposition that a fully rounded understanding of the lawyer-client relationship necessitates hearing the voice of the client. To these ends, further research is necessary in order to augment and improve on the value of the findings offered herein. Client-focused research, though, is a contentious area, as highlighted by Moorhead et al (2003: 19) who assert that, ‘lay clients are unable to assess the basics of legal competence, gathering pertinent information, providing good advice and suggesting practical courses of action'. However, these same authors go on to insist that clients' assessments can be engaged with, in relation to the factors that clients themselves consider important, ‘tangible aspects ofpersonal service' (Moorhead et al, 2003: 19). Ultimately, though, Moorhead et al (2003: 27-29) posit that clients should not be relied on as a gauge of the quality of the service lawyers provide; there are ‘benefits to be had from a re­emphasis of the needs of the client within the professional domain, but these ben­efits are limited'. That said, when placed alongside other markers, it can be supposed that the views of clients can be of value. In their study, Sommerlad and Wall (1999: 1) seek to do just this, suggesting that qualitative research is needed ‘to identify the views on quality held by the actual participants in the lawyering process'. They rec­ognise the great difficulties that would face any assessor of legal services, rendering the supposed subjectivity of the client perspective no more limited than any other marker (Sommerlad and Wall, 1999: 2). More so, client contributions can help to improve (verify and authenticate) the understandings available from other sources. These client views are complex and heterogeneous, so do not lend themselves to easy generalisations. Rather, they require that work be done to actively pursue their standpoints. Considering this, I believe that a parallel research project should be carried out from the clients' perspective. This could entail a similar research design to the present one, but with clients inserted in place of lawyers. There would be space for both the voice of clients and authorial opinion, and a purposive sample would allow for the best opportunity of capturing a variety of practice, and ideally good service. This would be the sensible follow-up to the present study, offering a means of triangulation, so that, in combination, the lawyer-client relationship could be fully illuminated. I hope that someone will do just this in the near future.

In the meantime, the present research offers the means to make some limited suggestions for the clients. In addition to educating lawyers as to their role in upholding defendants' rights, perhaps consideration should be afforded to the cli­ents themselves and their understanding of the lawyer-client relationship. They might be better informed of the values that could and should infuse their relations, and of the responsibility that lawyers are tasked with on their behalf. At present, the advice available to clients largely takes the form of leaflets offering procedural and technical guidance pertaining to the process of obtaining legal aid and explaining various elements of the criminal justice system and its institutions. This practical information does not address the principles and ideology at play in this particular enactment of access to justice; it does not empower clients to adequately look after their own interests.

In Closing the Justice Gap, Harker and Sandbach (2010: 36-38) propose the development of outreach programmes and remote delivery channels in order to engage with the wider public. They commend the potential for personalisation of service, to tailor supply to the precise needs of the client and encourage a system that is more in tune with local needs and demands. However, this would still largely operate through conventional, high-street means, and in another essay, Trigg (2010: 52-53) problematises such approaches suggesting that not everyone has or wants a high street. Rather, it is suggested that more attention should be given to the internet, as this realm increasingly provides the first source of information that people turn to. However, it is all but ignored as a source of advice or point of contact for legal aid clients. In these circumstances, Trigg (2010: 53) believes that ‘for legal aid to survive and thrive we need a radical overhaul of everything we do and how we do it, we need to stop detaching it from society and rekindle the nation's natural affection for its law and those who practice it'.

This is said to require a movement from behind the barricades, talking to ordinary people in a language they recognise. This could be utilised as a source of public legal education, to provide better and more reliable information to clients about their rights. However, another contribution in that volume, from Passmore (2010: 27), suggests that teaching clients in this manner simply functions to make them more like lawyers. Rather, advances in technology provide the opportunity to change legal aid and advice ‘to meet clients as they are' (Passmore, 2010: 27). He proposes a large-scale, integrated, telephone and internet service to provide information and advice to clients. This approach would put clients in control by empowering them to access the knowledge they require on their own terms. Either way, it appears that clients are demanding this greater accessibility (see Baksi, 2010c).

In this spirit, then, I would suggest that the findings of this research should also be made available to clients. Rather than restrict it to academic and professional realms, clients should be free to engage with it and draw from it any use they can. Obviously, this book is available for anyone to buy, borrow or download - but mar­kets for such scholarly texts are inherently restricted and I am not so wrapped up in my own self-importance as to assume that the majority of ordinary people I pass in the street will have any idea that the book even exists. As such, a far better way of accessing large numbers will be provided by a dedicated website to provide a ready means of dispersing some of the data. As it stands, internet searches from any of the major search engines reveal little to clients about what they could expect from their dealings with lawyers. If they could have straightforward access to these findings, clients would better appreciate how the lawyer-client relationship may actually function. This research has not claimed the ability to generalise its data and so would not posit that they are necessarily reliable as a gauge for all firms in England and Wales. Rather, they represent the results of a particular study in a specific loca­tion at a certain point in time but, in so doing, can offer an indicator of some reality which may or may not be replicated elsewhere. These results have implications that should be able to be appreciated and considered by the relevant parties. Users of such a service could see what lawyers in this research thought about their clients, and how they were discussed behind their backs. Clients could also witness the dis­respectful behaviour that lawyers engaged in, and the ways in which lawyers could push their clients towards outcomes other than those they wanted. Clients can decide for themselves whether this constitutes a strained relationship and whether they are willing to accept being treated in that manner. They are empowered by knowledge and, as a result, would be able to use some of the particular insights from this study to inform their own decision-making.

JUSTICE

Overall, this research project has left me disappointed. I am disheartened by the similarities between Radical and Sausage Factory firms and the manner in which all talked a healthy lawyer-client relationship but walked one that was strained. The nature of this strain could be identified in the participant observation findings on attitudes, behaviour and outcomes, which posed a distinct challenge to the rights of defendants in the criminal process to achieve access to justice. This pessimism is merely amplified by the manner in which this work echoes the damning indictment of McConville et al (1994), notwithstanding the intervening time period during which one of the authors could claim that, ‘a significant shift has in fact taken place in the standards and practices of many criminal defence lawyers... transforming what was previously characterised as a “guilty plea culture” into one based more on adversarial principles’ (Bridges, 2006: 100). That rather optimistic statement as to the conduct of the profession seems somewhat at odds with the situation I found in this research. More so, the data produced this depressing picture despite all the efforts that I made in sample, design and methodology, intended to give lawyers the opportunity to redress the balance and present a more uplifting image of their pro­fession akin to that in Travers (1997b). The only hint of positivity with regard to active defence was to be found in the rhetoric that lawyers spoke in interview and the occasional (but resolutely exceptional) example of client-centred practice.

However, I believe that there is a ray of hope in the lawyers’ rhetoric all the same. As long as access to justice is talked about, and the notion of providing clients with a good service remains on the agenda, then it can be achieved. This might take reforms to legal aid remuneration and improvements in ethical training, it may also require clients being taught to stand up for themselves; however, the potential remains. As such, I do not feel that this research constitutes a defeat but rather an opportunity: it provides the chance for us to improve our criminal process so the freedom of all is enhanced. In a similar vein, the architects of the freedom approach that I have taken in this book, Sanders et al (2010: 746) offer the means to realise these ambitions in their recommendation that:

We need a new language in which to express our aspirations, and the language offreedom seems to us to provide a vocabulary most likely to persuade the various entrenched inter­est groups of the need for change. It is time to set the primary goal of the criminal justice system as the promotion of freedom of all citizens and social groups alike.

Legal aid should be acknowledged as containing the ability to enact this freedom, starting the process by protecting the rights of those suspected and accused of crimi­nal offences. As a force for social inclusion, the fairness it promotes could ensure justice and ultimately precipitate greater freedom for all in society. This sets up crimi­nal justice as a means of achieving social justice. This is the approach taken by Cook (2006: 1) who suggests that criminal and social justice are interconnected - the for­mer primarily involving the exercise of legitimate power, the latter chiefly concerned with citizenship, public service and equality. One feeds into the other. The criminal justice system, and the treatment of those suspected and accused of crimes, should be understood in the wider social context and the manner in which the criminal process impacts upon British society. Accordingly, Rutherford (2001: 8) explains that:

Considerations regarding criminal policy closely intersect with broader ideas about citi­zenship... and the shaping of criminal justice arrangements should have the purpose of fostering social inclusion by, wherever possible, encouraging a rewarding and sustained membership within the wider community. Given the inherent tendencies of criminal justice towards social exclusion, this presents a daunting challenge to policy makers and practitioners.

Legal aid must be championed as an offspring of the welfare state, as an instrument for social equality that allows individuals to ‘protect their badge of citizenship' (Stein, 2001: 1). The authority that the state enacts through the criminal justice system will not be respected if it is imposed, but needs to be accountable, legitimate and justified (Faulkner, 1996: 6). In ensuring that criminal justice can achieve social justice, the role of lawyers is vital. For the good of the wider community, then, defendants reliant on legal aid cannot be denied their access to justice through inad­equate representation that hinders their taking an active part in the criminal pro­cess. If they are excluded, it harms everyone; by extension, all can benefit from a lawyer-client relationship that better honours the rights of clients.

To achieve this, the plight of these clients must be more widely constituted as a viable topic of conversation. However, a series of seminars convened by the Legal Action Group before this research commenced worked to highlight the predomi­nance of a populist dogma that neglected defendants in favour of victims in the criminal justice debate. The Legal Action Group is a non-aligned organisation, con­cerned with advancing access to justice for all - they have no particular concern to favour one side over the other. Despite this even-handedness, Cape (2004b: 1) highlights that the discussions were chiefly informed by their being ‘disturbed by the growing polarisation of the rights and interests of victims and of those accused of crime in both government rhetoric and in popular discourse'.

It is contended that discourse has been clouded by recent attempts from govern­ments of all colours to paint the interests of victims and defendants as irreconcil­able. In this, there has been a totemic quest to support victims of crime concomitant with a discernible lack of effort to protect the rights of those suspected or accused of crimes (Cape, 2004b: 5-7). These victims are themselves supposedly subject to a gap between rhetoric and reality, as a lack of respect or information ensures their needs remain unfulfilled. Even so, Jackson (2004: 7) suggests that the criminal process has become increasingly (re) aligned, meaning any imbalance between prosecution and defence unfairly favours the former rather than the latter.

In this situation, the freedom of those suspected or accused of crime is curbed. This impacts negatively on the freedom of all and, accordingly, Rethinking Crime and Punishment (2005: 5) summarises the Legal Action Group debates as suggesting that:

Neither the interests ofvictims, nor those of society as a whole, are served by reducing the rights of defendants to make it easier to convict them. Protections for defendants exist for good reasons: no one benefits from a person being found guilty of an offence that he or she did not commit... The underlying problem may be that current Government think­ing on criminal justice policy is driven largely by managerial priorities instead of being underpinned by a shared public understanding of what is meant by ‘justice’... high standards ofjustice must be seen as part of the wider public good.

This is the language that discussions of defendants in the criminal process must be recast into; their treatment should be understood to reflect on society as a whole. Fair treatment can be seen to induce commitment and obligation towards the insti­tutions and rules that constitute society (and, thereon, it renders this support well- placed); it creates a climate of respect. In this book, I have not sought to pass judgement on the effect that the legal advice or advocacy witnessed exerted on the results of cases. I am not legally qualified, so could not have done so with complete confidence even if I had wanted to. However, it is satisfying to note the proposals that were being put out for consultation by the Joint Advocacy Group (2010) while this research was being written up. This follows the recommendations of research offered by Devereux et al (2009), positing the necessity for regular monitoring of lawyer standards. The regulatory bodies representing all three strands of the legal profession support the establishment of an independent adjudicator to judge the quality of lawyers, something of a legal MOT (Newman, 2012). Under this process, lawyers would be attributed particular levels of competency at regular points across their professional careers. It was never my intention to make such an attempt at rigorous assessment - though these results will inevitably have knock-on effects for legal conceptions of justice. Rather, this was a study focused on human beings in a social relationship. At its heart, this topic is straightforward and free of the com­plexities of legal jargon and bureaucratic procedure. I have simply used the func­tioning of that relationship as a means of dealing with the question of whether a particular group of citizens appeared to be treated justly.

In the light of this, then, those who are aware of these findings face a decision (by the way, that’s you, the reader - no pressure). There is the option to read about the manner in which lawyers acted towards clients in this research and say nothing. By this line, perhaps you think it inevitable or deserved; these are, after all, the criminal classes. Alternatively, the data presented in this research might prompt concern at perceived injustice, and the feeling that this mistreatment should not be ignored. Those suspected and accused of crimes are members of society like any other. As such, you might take the view that these individuals should be treated in the same manner in which we would hope to find ourselves and our loved ones treated if we found ourselves in the criminal process. Obviously, considering that I conducted this research, I want you to take the latter position. I care passionately about the perilous position in which some of the most vulnerable people in society are being put. In addition, I firmly believe that, if you hurt society, you hurt yourself. Those who commit criminal acts hurt society and deserve to be brought to justice. But these individuals are still a part of society, so to treat them with wanton disregard for fairness simply means that society is hurt for a second time, adding insult to injury. Only justice holds the potential to heal the harms caused by crime and such callous treatment of offenders is not justice but does further damage to the social fabric. In this way, nobody wins, we all debase ourselves and society is all the poorer for it - how can those from the criminal classes seriously be expected to treat society with respect, when their supposed betters chose not to do so by condoning or turn­ing a blind eye to their mistreatment in the criminal process? No matter how selfish or insular (read, libertarian) a person's worldview, however far to the right of the political spectrum they may be, the potential social damage that compromising those in the position of being suspected or accused of crimes should be a concern at some level. Sooner rather than later, the degradation of society will drag everyone down. Though these are left-liberal values, you should not need to put yoghurt on your muesli, wear sandals and read The Guardian to be alarmed by the erosion of justice in our society - and you shouldn't need to be driven by a burning desire for socialist revolution to recognise that fair treatment in a democracy applies to all. No matter your ideology, then, I would hope that these findings alarm you in some way and make you think about what can be done to rectify it.

The best result this book could achieve would be to contribute to the flourishing of a wider dialogue that takes seriously the position of those suspected and accused of crime. Defendants in the criminal process deserve justice, and lawyers should be made to work for their clients and properly enact adversarial principles. In this way, legal aid can be made to ensure that the criminal process works for social justice rather than perpetuating social injustice.