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The power of choice – is it enough to maintain the quality of criminal defence?

Fionnuala Ratcliffe
27 Jul 2019
The whole thing feels arbitrary. It doesn’t feel like you have a choice. You might have a choice of which solicitor you pick off a list, but it’s a blind choice. You’ve no information to understand it.

Is criminal defence a consumer-driven market? It’s designed as if it is. The argument goes that lawyers are incentivised to do a good job so that clients continue to use them and recommend them to friends. If the service isn’t up to scratch, clients will go elsewhere.

But our new report, ‘Criminal defence in an age of austerity, zealous advocate or cog in a machine?’, suggests this isn’t what happens in practice. Defendants rarely have the necessary information at hand to judge the quality of their defence – it’s a ‘blind choice’, as one defendant told us. And it’s difficult to switch lawyer if you’re unhappy.

It’s worth saying that clients like having a choice of lawyer, so it does play a part in building trust. But accepting its weak role in maintaining quality helps to explain some of the cracks in the current criminal justice system.

Take police station representation. Lawyers told us that good or bad advice at the police station can set the course of a whole case. But it doesn’t have the gravitas, work pattern or fee levels of court advocacy work. The Ministry of Justice’s view is that lawyers are incentivised to do a good job at this stage in order to retain clients. But if it’s difficult for clients to know whether their representative has done a good or a bad job, does this incentive play out in practice?

Our report suggests not. In reality, firms are sometimes sending junior staff, or accredited representatives from agencies, to advise and represent the defendant at interview. Perverse incentives mean junior staff can take on the most complex cases – such as for clients with mental health problems – which take a long time and have no corresponding increase in fees. Lawyers recognise the problem but calls for restructured police station fees have so far fallen on deaf ears.

Elsewhere in the system, court timetables and a drive for ‘efficiency’ force lawyers to give advice and enter pleas without having all the evidence, and to squeeze their first and only meeting with their client before the hearing into 15 minutes. This cannot be conducive to a fair trial. And a few rogue firms continue to work to a business model of poaching as many clients as possible for the fee and then leaving them high and dry. These firms for the most part are not reported to regulators by lawyers or other court actors.

Some lawyers and firms have read the writing on the wall and are stopping legal aid work or leaving criminal law entirely. Those left face being forced to compromise their client’s needs to meet the demands of the system (and their bottom line). Whatever impact client choice has on improving quality, it’s no match for the long list of countervailing factors. So what else can be done to ensure those accused of crimes have access to a good defence?

For sure, fee structures need reforming. The long-term trend to lower and fix fees is making it harder for firms to do a good job for their clients. But there are other issues. For example, it’s questionable whether increased fees would prevent rogue firms from ensnaring new clients. Our report calls for better regulation and proportionate and effective quality assurance mechanisms.

Alternative models for state-funded defence may be part of the solution, such as the holistic defence approach taken by the Bronx Defenders in New York. Their client-centred approach connects defendants with an interdisciplinary team of advocates to meet other legal and welfare needs. Client choice doesn’t come into it – the Bronx Defenders are one of two organisations delivering all public defence work in the area – but the approach has proved effective. A study found that holistic defence reduced both the likelihood and length of a custodial sentence.

Such a model may feel far from our current setup, but systemic issues need systemic solutions. To enhance the quality of defence advice and advocacy, everyone needs to address the barriers to defending well, with defendants at the centre of the discussion.

This blog was written by Transform Justice researcher Fionnuala Ratcliffe and first published by Fair Trials