Who will defend them?

Defence lawyers are under attack again, accused by Lord Falconer of underhand delaying tactics and ruthless cross-examinations. How did they become the bogeymen of the criminal justice system? And do they deserve to be? Jon Robins and Robert Verkaik investigate

While defendants are always innocent until proven otherwise, the men and women who represent them in court appear to be afforded no such right. Last week, Lord Falconer QC became the latest Home Office minister to lead the case for the knee-jerk prosecution, when he accused lawyers of stretching out trials to maximise fees and let cases "slip through the cracks". The former minister of the Dome let rip about "the utterly outrageous" cross-examination of defendants in trials and, in particular, rape cases. He was joined by Sir John Stevens, the Commissioner of the Metropolitan Police Force, who accused solicitors of "scandalous" tactics to "delay or frustrate trials".

Defence lawyers have become the bogeymen of the criminal justice system. "For two or three years, we have had the same line trotted out by the Labour government in order to hide its own inadequacies in doing anything about the criminal justice system," counters Courtenay Griffiths QC.

The silk achieved notoriety when he was attacked for the demolition of the prosecution's chief witness in the Damilola Taylor trial. The case was said to have "angered" ministers. "The government has taken a lot of stick for its law-and-order policies, which aren't working. They're looking for scapegoats and we're the easy targets," Griffiths argues.

Lord Falconer's comments came hot on the heels of an outburst by David Blunkett about "adjournment culture". But it was Sir John Stevens who set the ball rolling when, earlier this year, he described the criminal justice system as "an uneven game of tactics played out by lawyers in front of an uninformed jury, with the disillusioned victims and bemused defendant looking on".

The anti-defendant rhetoric – albeit toned down – was in evidence in Tony Blair's speech last week, when he called for "a rebalancing of the criminal justice system". The Falconer interviews coincided with the publication of an Audit Commission report, which revealed that more than £80m a year is wasted on adjournments and cancellation of trials. According to the minister, there was a financial motivation from lawyers to aid in "stretching out the process".

"It's not the case that it's in the interest of defence lawyers to cause delays; it's not what they do," argues Janet Paraskeva, chief executive of the Law Society. "Nor does the system – the fee structure for the payment of defence lawyers – allow it."

Nor was any such point made in the Audit Commission report. Only four paragraphs in its 84 pages dealt with defence lawyers, and it was only tentatively suggested that the fee structure might be open to abuse.

"It was unbelievable that the press latched on to the story and ran with it," comments Rodney Warren, chair of the Criminal Law Solicitors Association. "You would have thought that they would be able to spot a bit of government spin by now."

Rob Brown, secretary of the London Criminal Court Solicitors Association, was scheduled to appear on the Channel 4 News to debate the issue with Lord Falconer last week. In the interview, the minister conceded that there was no incentive for solicitors to stall cases. A fairly conciliatory exchange followed. When the broadcast was aired, the debate was cut because the cricket overran. However, Brown was surprised to discover that Falconer's assertion attacking lawyers – which he had retracted – was edited back into the programme. "The media needs demons, and lawyers are the whipping boys of the moment," he reckons.

Perhaps the most measured contribution to the debate has come from Lord Justice Auld, who, in his report into the criminal courts, says that defence lawyers must be properly paid if they are to make a "contribution consistent with their duty to their clients and the court".

The Court of Appeal judge identifies two "perversities" in the system. One is that the longer the trial runs, the greater the brief fee paid to the barrister. The second is the incentive for lawyers to be paid more for "cracked" trials – where the defendant changes his innocent plea at the doors of the courtroom. Lord Justice Auld is also critical of the graduated fee scheme for paying barristers, which he argues is "flawed because it does not provide an adequate reward or incentive for preparatory work".

The sniping at defence lawyers comes at a time when solicitors are weary. Warren believes the profession is reaching "crisis point". Morale is plunging. Practices are starved of cash and smothered by the bureaucratic, contracting regime. "There has been one small increase in the rates of remuneration in 10 years, and that was just over inflation, last year," Warren says.

Tony Blair's speech last week suggests that life is about to become tougher for defence lawyers. "The days of the old hobby horses about the police and how they treated people, the days of believing the whole issue is simply around how we give better protection to defendants – I believe those days have changed," he said.

Next month's white paper is expected to: repeal the double jeopardy rule in serious cases; allow for the disclosure of previous convictions to the jury; and give prosecution counsel the right to appeal against a judge's decision to stop the trial on technical grounds.

Bruce Houlder QC, chairman of the Criminal Bar Association, is struck by the Prime Minister's call for "a rebalancing of the system". "It proceeds from the idea that the system isn't balanced at the moment, and if you talk to a police officer he will say it isn't," he says. "But the criticism doesn't stand up and there are few cases where the defendant will 'ambush' the prosecution."

John Burbeck, chief constable of Warwickshire and the Association of Chief Police Officers spokesman on criminal justice, hopes that next month's proposals will curb what he sees as the excesses of defendant lawyers who "exploit the looseness of the system". He is concerned about lawyers abusing the tough defendant disclosure regime and providing statements that are "vague to the point of meaningless".

"Judges aren't tough enough with defendants pre-trial, or on reducing adjournments and protecting witnesses from bullying and hectoring," Burbeck says. "It could be that they are protecting their rights of defendant, or that there is not enough guidance on where the balance should be drawn." He is optimistic that next month's white paper will address all their concerns.

Richard Miller of the Legal Aid Practitioners' Group urges ministers to take a more holistic approach to the criminal justice system. "Tony Blair has highlighted a number of measures, some controversial, some welcome, that should properly be the subject of inter-agency discussion."

But before this can happen, relations between ministers, lawyers and the police must become more constructive. "The criminal justice system needs improvement. That will be best achieved if the elements within the system respect each other's different, and sometimes conflicting roles, and work together so far as those roles permit. It is not helpful to blame each other for perceived failings when there is room for improvement in all sectors in the system."