Judges will be told to get tough with bad defence lawyers: Royal Commission puts barristers under sharper scrutiny - Report blames poor advocacy for many miscarriages of justice

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The Independent Online
JUDGES will be told this week by the Royal Commission on Criminal Justice that they must do more to ensure that defence lawyers provide a competent service for their clients.

The Commission is expected to say that judges should take a more interventionist approach when they see barristers performing poorly in court.

In its report, to be issued tomorrow, the Commission is likely to say that the judiciary should be more willing to criticise lawyers and more willing to refer examples of incompetent work to disciplinary hearings.

The Commission's findings will follow the publication today of a survey showing that errors by defence lawyers lead to a large number of miscarriages of justice.

Of the 1,300 cases sent to the law reform group, Justice, since 1990, almost half include complaints about barristers: in a quarter of the cases, defendants said they were dissatisfied with their solicitors.

One of the most frequent complaints was that barristers tended to meet their clients for the first time on the day of the trial, and then for only a few minutes. 'In one case, the defendant first met his barrister five minutes before the trial and did not want to go ahead in those circumstances,' the Justice report says. The trial went ahead.

With trials frequently overrunning or finishing early it has always been difficult for clerks to allocate cases to barristers in their chambers until shortly before the hearing.

There is growing support in legal circles for the view that action needs to be taken to make it possible to distribute cases well in advance of a forthcoming trial. Defendants also expressed concern about the way their cases were passed from one barrister to another, often at the last moment.

The group goes on to criticise the Court of Appeal for its reluctance to accept that convictions should be overturned solely on the ground that defence lawyers made a mistake at the trial. That reluctance often makes it difficult for defendants to prove that they have been the victim of a miscarriage of justice, the group says.

Some of Justice's criticisms are likely to be echoed by the Royal Commission.

However, to the disappointment of many reformers, the Commission will stop short of a full-scale attack on the standards of the profession, emphasising that, in the majority of cases, the system works well.

Instead of a wide-ranging overhaul, the Commission will recommend a series of measures aimed at 'tightening' the existing legal process. Those are likely to include:

An independent tribunal to investigate alleged miscarriages of justice, taking over the work presently carried out by the Home


A new rule obliging defendants to disclose their case before trial;

A limited form of plea bargaining with defendants told to expect a discount on their sentence for an early admission of guilt;

A rigorous new best practice guide to be followed by solicitors and barristers.

A limited extension of the range of cases heard by magistrates, rather than at a Crown Court before a jury;

A recent case where the defence lawyers and judiciary were blamed for contributing to a miscarriage of justice involved Ivan Fergus, 13, a model schoolboy who was convicted of assaulting a bank clerk.

Last month judges at the Court of Appeal said his barrister, Stephen Fletcher, 'fell markedly short' of the Bar's standards.

Lord Justice Steyn, sitting with Mr Justice Hutchison and Mr Justice Rougier, said he accepted that Mr Fletcher had been badly briefed by the defence solicitors, Toppin and Co, of New Cross, south London. But he should have called alibi witnesses - Ivan was with three school friends several miles away at the time of the offence - and provided evidence of his good character.

The defence had failed to make capital out of obvious discrepancies between the description which the victim, Andrew Maloney, gave of his attacker and the schoolboy accused of the crime. Mr Maloney said his attacker was 5ft 11in and aged 17 to 18 years old. Ivan was 4in shorter at the time of the incident and aged 13.

The Court of Appeal said that the trial judge, Peter Rowntree, should have intervened and withdrawn the case because it relied entirely on weak identification. The judge's summing-up was also criticised.

Ivan described the six months he spent in a secure unit at Orchard Lodge young offenders' institution in south London after being wrongly convicted as 'a nightmare'.