Leading Article: Goodbye to justice

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The Independent Online
Goodbye to justice

THE PROPOSALS by the Lord Chancellor, Lord Irvine of Lairg, to "reform" criminal legal aid, expected to be announced in the Queen's Speech on Tuesday, profoundly threaten the quality of British justice. As we disclose for the first time today, Lord Irvine wants to abolish the present system, in which defendants unable to afford private representation may go to the lawyer they choose and expect them to be paid from public funds. In its place he plans to create a state-run bureaucracy, the "criminal defence service". As a first step, there will be a list of "approved" solicitors and barristers, paid on annual contracts, irrespective of the particular demands each case may make as it crops up. After years of steady increase in the legal aid bill, Lord Irvine says, the pressure on the public purse will ease. The anomalies of the old system - for example, the millions paid out of public funds to the lawyers of "fat cat" defendants such as the Maxwell brothers - will become a thing of the past.

No one could argue that forcing fat cats to pay their own bills is an unworthy objective. Nor could anyone argue that the present criminal justice system is perfect. There is, for example, ample evidence that the quality of criminal defence legal work is often far from ideal. As Standing Accused, a book by four criminologists from Warwick University, showed four years ago, the norm for many ordinary defendants, the thousands processed by the crown courts every month, is lawyers who fail properly to investigate claims of innocence, whose main concern appears to be their own profits, and who would rather bully a client into pleading guilty than go to the trouble of having a proper trial.

So there is a case for reform. At the very least, if the system is to function properly and to deliver fairness and equality, people charged with crimes must have at their disposal a fully functioning and properly funded defence. Yet if Lord Irvine's proposals becomes law, the failures of the present system will be greatly exacerbated. Strict cash limits on franchised lawyers will leave them little if any leeway to commission their own forensic tests or to spend time tracing a crucial witness, especially if a case happens to arise towards the end of the financial year. Across the Atlantic, public defender systems from New York to Texas - which provide the model for what Lord Irvine wants to establish here - are a baleful example. There, contested trials have become a rarity. Pressure on and from the lawyers means that more than 90 per cent of defendants plead guilty. The whole of the system is infected by this virus. Prosecutors and police know that they can usually get away with a weak case. If they are unsure of their ground, they will lay a very serious charge, then offer a deal - a reduced indictment in return for a plea of guilty.

To make matters worse, public defender offices do not attract the brightest and best. The Government recently enacted the European Convention on Human Rights in British law. One of the principles established under the convention is the need for an "equality of arms" between prosecution and defence. The effect of Lord Irvine's proposals in practice will make such equality far more difficult to achieve.

They are constitutionally significant in a further, highly damaging way. Imperfect as it is, the bedrock of British justice is the independent legal professions. The proposals place this independence in jeopardy.

Lawyers who effectively depend on state licence are not free agents. What price now the solicitor, suspicious of police malpractice, who digs and digs on behalf of the client? The fearless advocate, once he has to bear in mind next year's government contract, will cease to exist. Here the proposals amount to a significant extension of state executive power in a field where this is least appropriate: where the liberty of the citizen is at stake.

There will certainly be loud protests from the Bar and the Law Society. Perhaps Lord Irvine will claim this is merely special pleading, by a feather-bedded interest group. If so, he will be wrong again. The Lord Chancellor wants to "modernise justice". If by justice we mean the principles of legal due process, and the recognition that even the poorest have a right to a fair trial, then the true effect of the "reforms" will be to sweep it away.