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Courts need lawyers as much as people need lawyers.

Neil White

By Neil White on 04/07/17

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Courts need lawyers as much as people need lawyers.

The courtroom used to be a vibrant place, with talented professionals providing advice to those who found themselves on the wrong end of a police charge. The courts were managed so that they dealt with the work. They were robust places, the court corridors busy and hostile places, but the system worked.

That isn’t to say that it was always rosy. There are so many things that are done better now. The care for victims and witnesses, for example, and particularly for survivors of domestic violence and sexual assaults, with better police and prosecutor training, has improved immeasurably. Why does a system that has improved in so many ways seem determined to bring itself to its knees? The answer is, as always, money.

Back in the nineties, the government decided that, it in order for lawyers to be paid from public finds, they had to show a degree of expertise and efficiency. On the face of it, a noble call, coming at a time when many defence advocates saw criminal work as an interesting sideline, something to do as a break from the routine of conveyancing or personal injury work, when the local solicitor was the one-stop-shop for all things legal.

The introduction of legal aid franchising meant that the criminal lawyers became specialist criminal lawyers, with whole departments and firms providing the level of expertise required by the government. Once penned in to one area of law, however, with little ability to diversify, all governments have seen a chance to attack them. Year on year with no rises, and even cuts, criminal law became the discipline to avoid.

Forget the clichés in the press about fat cat lawyers. No criminal lawyer will recognise those, with the average pay for a criminal lawyer around half of that of lawyers in other disciplines, so that more and more firms jettisoned criminal law.

This, combined with the reduction in the rights to free legal advice, has meant that the courts deal with an increasing number people who have to defend themselves against a highly trained prosecutor under pressure to deliver successful outcomes, with legal advisers under pressure to bring cases to a conclusion.

It doesn’t work.

Unrepresented defendants drag the system down. They don’t understand the complexities of law and, more importantly, may not realise that they have a defence. The trial process has become increasingly technical, with bad character and hearsay applications, special measures for witnesses, and issues around unused material. It’s no place for the layperson and, without defence lawyers, everything takes longer.

As a prosecutor, I winced frequently as unrepresented defendants blundered through questioning, not understanding the nuances and skills involved, where cross-examination turned into a fumble through their own explanation rather than an exploration of the prosecution case. As a prosecutor, I have secured convictions frequently because of a poorly defended case.

Don’t lawyers create problems though?

That depends on whether you regard ensuring that the State has done everything properly as a problem. He who asserts must prove, a fundamental of our legal system: innocent until proven guilty. But a person’s guilt shouldn’t be determined by their inexperience or their inability to afford a lawyer. Do we really want a society where the State goes unchallenged?

Whatever people think of them, defence lawyers streamline the whole process.They advise guilty pleas where they should be entered. They negotiate appropriate alternative pleas. They ask only those questions that need to be asked, make only those points that are relevant. As a prosecutor, it’s hard to negotiate or discuss cases with unrepresented defendants, for fear of being accused of bullying someone into pleading guilty, so the cases drag on with unnecessary trials, causing more stress for victims and witnesses, dragging out the court process.

We should be wary of thinking that this only matters to those who choose a criminal lifestyle. That is dangerous thinking, because the law drags in everyone, from all walks of life. You don’t have to be rich to be above the legal aid limits. An average salary will find you too rich for legal aid, and they won’t care that you’ve got a mortgage to pay or children to feed. Try adding a lawyer’s bill on top of that and you’ll go for the “do it yourself” option, which will leave you vulnerable and exposed, and sometimes with life-changing consequences.

Whatever you might think, it could be you, but the court process shouldn’t be the lottery.

Neil White has been a criminal lawyer in the north west of England for over two decades as well as an author of ten crime fiction novels. He has worked for both defence and prosecution, and his latest legal thriller, From The Shadows, is due for paperback release on 10th August 2017.