We have politicians repeatedly telling us that the Human Rights Act is a criminal’s charter and should be repealed. We are told that it does nothing more than prevent the guilty being punished.
The reality is rather different though. A couple of recent events have brought this to my attention again.
The current Lord Chancellor and the legal adviser to the Government is Chris Grayling. He is in actual fact neither a Lord, nor even a lawyer. He is the first Lord Chancellor since 1588 to be a non lawyer. His full title is Lord Chancellor and Secretary of State for Justice. Quite why we have politicians with no legal experience at all in charge of the legal system is incredible. We do not allow a plumber without the appropriate gas safe qualification to touch any gas appliances, but we allow politicians with no legal experience whatsoever, let alone training or qualifications to be responsible for the whole criminal legal system.
The stupidity of this has been shown gain with a recent article in the Sunday Times by Chris Grayling in which he:
felt it necessary to decry the daily fees paid to leading criminal defence silks (Queen’s Counsel). The standard rationale was trotted out, namely why should the public purse pick up the tab for defending criminals?
This short-sighted statement of course pre-supposes a number of things:
1) That everyone is guilty, and that the whole trial process is some charade concocted by lawyers;
2) If everyone is guilty then they don’t need access to expensive, excellent quality advocates, because it’s sufficient to just make it look like a fair trial is being conducted;
Mr Grayling would do well to have these five principles of the legal system in this country in mind the next time he formulates policy:
In this country you are innocent until proven guilty.
You have a right to a fair trial.
You are entitled to a legal representative for which the state will foot the bill if it is accusing you of committing a crime.
The defendant bears no evidential burden and may remain silent throughout if he wishes.
The prosecution must prove the case so that a jury/court are sure of his guilt.
Or to put it bluntly just because you have been charged with a criminal offence, it doesn’t mean you are guilty.
I have previously defended many people who were charged with serious offences who were completely innocent in that they had done nothing to bring any suspicion on themselves:, victims of mistaken identity, victims of a malicious complainant, or in some case victims of falsified police evidence.
If everyone is innocent until proven guilty, the surely everyone has the right to a proper defence by a suitably qualified lawyer, not just a lawyer who is cheap. If the state deem it important enough to bring a prosecution against someone, then the suspect has the same right to defend the case.
3) If it can be done cheaper, then that is necessarily better.
(thanks for this to the author of http://youngrumpole.blogspot.co.uk/)
Market forces being what they are, then generally, you have to pay more for better quality work. For example if you cut your arm and require stitches in it, you’d be happy with it being stitched up by a junior doctor at A&E. Would you be so happy with said junior doctor performing a heart transplant because they are cheaper than a suitably qualified heart surgeon? Probably not.
So why would you deem it appropriate to insist that the defence of someone (who may well not have committed a crime at all) no a serious criminal charge (which may well result in a prison sentence of many years)?
Would you be happy to spend the next 20 years in prison for a crime you have not committed simply because legal aid saved a few pounds by appointing a lawyer who was not suitably experienced to defend you? That is the risk you face.
It doesn’t happen like that you say? Well, in the recent past, I was witness to someone being arrested and subsequently being charged with 2 offences that could have resulted in his being sent to prison for many years. These offences related to allegations of committing serious violence . The person arrested had not ever been arrested before. There was no apparent reason for the police to lie, but that is what they did. Not content with lying, they destroyed or failed to disclose any of the CCTV evidence they had of the incident, both their own and that from several other premises.
How do I know this? Well, I was with this person at the time he was allegedly in other locations committing offences. There was CCTV showing where the arrested person was at the time of the alleged offences. This was seized by the police and then suppressed and never disclosed to the defence.
I also had camera footage taken by me of the arrest, showing the police allegations were false, and even that the arrested person was not wearing the clothing the police alleged. The footage was taken by me at the time without me realising the person had been arrested for anything. I was actually filming for a different reason.
This footage also shows the arrested person was in custody (and had been for at least 10 minutes) at the time the police in their statements allege he was involved in a violent incident. This is not a mistake in timing as the alleged victims of the violence were not present at the scene until after the arrest had taken place!
A simple case that would not be proceeded with? Well that’s what the arrested person thought. When this became apparent he got himself a very good firm of lawyers to represent him. Despite their best endeavours, and the clear abuse of the system by the police, and evidence of their lies, the case rumbled on for nearly a year, and was only discontinued when the arrested person was able to instruct a QC. Without the involvement of the QC, that case would at the very least proceeded to an expensive trial, and possibly resulting in an innocent man going to prison.
The instruction of a QC resulted in the case being brought to an end BEFORE a trial, thus saving money in the long run. It being cheaper to pay the QC for what he did than paying the costs of a lengthy trial. However, more significantly, the instruction of the QC prevented an innocent man going to prison.
What price do you put on liberty? Well, let me refer you to some figures from the USA courtesy of http://www.deathpenalty.org/article.php?id=83
Inadequate Legal Representation
Perhaps the most important factor in determining whether a defendant will receive the death penalty is the quality of the representation he or she is provided.
Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases.
There have even been instances in which lawyers appointed to a death case were so inexperienced that they were completely unprepared for the sentencing phase of the trial. Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol.
In 2001, U.S. Supreme Court Justice, Ruth Bader Ginsburg commented: “People who are well represented at trial do not get the death penalty . . . I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.”
- Almost all defendants who face capital charges cannot afford an attorney and rely on the state to appoint one for them. However, often times appointed attorneys are overworked, underpaid, lack critical resources, and are either incompetent or inexperienced. As a result when death sentences are set aside by the federal courts, it is often because among other reasons the trial attorney was so incompetent that the accused’s constitutional right to effective counsel was violated. (See ACLU Report: “Slamming the Courthouse Doors: Denial of Access to Justice and Remedy in America“)
- In 2009, the U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions conducted an official visit to the United States to examine the administration of the death penalty in Alabama and Texas. Alabama has the highest per capita rate of executions in the United States, while Texas has the largest total number of executions and one of the largest death row populations after California and Florida. The Special Rapporteur expressed concern about deficiencies in the administration of the death penalty in Alabama and Texas, including “the lack of adequate counsel for indigent defendants.” He called for the two states “to establish well-funded, state-wide public defender services” and recommended that “[o]versight of these should be independent of the executive and judicial branches.” The state of Alabama has no state-wide public defender system even though its death row occupants are overwhelmingly poor with 95% indigent. (See ACLU Report above)
- An examination of 461 capital cases by The Dallas Morning News found that nearly one in four condemned inmates has been represented at trial or on appeal by court-appointed attorneys who have been disciplined for professional misconduct at some point in their careers. (“Quality Of Justice“Dallas Morning News, September 10, 2000).
- An investigation by the Texas Defender Service found that, “Death row inmates today face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.” (Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts Texas Defender Service, 2002).
- In Washington state, one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (Overall, the state’s disbarment rate for attorneys is less than 1%.) (Seattle Post-Intelligencer, Aug. 6-8, 2001).
- According to an investigation by the Chicago Tribune, 12% of those sentenced to death from 1976-1999 were represented by, “an attorney who had been, or was later, disbarred or suspended–disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney’s license should be taken away.” An additional 9.5% inmates, “have received a new trial or sentencing because their attorneys’ incompetence rendered the verdict or sentence unfair, court records show.” (Ken Armstrong and Steve Mills, “Inept Defenses Cloud Verdict,” Chicago Tribune, November 15, 1999)
- In North Carolina, at least 16 death row inmates, including 3 who were executed, were represented by lawyers who have been disbarred or disciplined for unethical or criminal conduct. (Charlotte Observer, Sept. 9, 2000).
Alabama is the only state in the country without a state-funded program to provide legal assistance to death row prisoners. There is no state-wide public defender program in the state and, in some counties, defendants have been sentenced to death after trials where they were represented by a lawyer who did not meet even the minimum requirement of five years of criminal defense experience. Nearly half of the people on Alabama’s death row were represented at trial by appointed lawyers whose compensation for out-of-court preparation was capped at $1000.
This political obsession with cutting costs to the minimum level possible will lead to the same sort of issues of inadequate representation. If this is discovered, it will result in increased legal costs as appeals will inevitably follow. If the inadequate representation is not discovered, then innocent people will inevitably be convicted and many sentenced to prison sentences, losing homes, careers and families as a result
In criminal law, Blackstone’s formulation (also known as Blackstone’s ratio or the Blackstone ratio) is the principle:
“better that ten guilty persons escape than that one innocent suffer“,
This political obsession with cost cutting will inevitably destroy this principle that has helped protect your freedoms.
I’ll leave the final word on the subject of suitable legal representation to the author of the Young Rumpole blog:
One of the best parts about his pronouncement was that some of the cases being undertaken by silks could be undertaken by junior barristers (in this context anyone who is NOT a silk), who might be about to take silk in a couple of months. They already have the skills but don’t command the same rates. This really is excellent stuff, as many of my colleagues are looking forward to the Ministry producing the list of “People Who Will Be Silks In A Couple Of Months” list to see if their names are on it.
One wonders what we were expecting really. Mr Grayling is not a qualified Solicitor or Barrister. He has no law degree, but a background in television.
I will be coming back to this topic in another blog post and looking at what happens to those innocent people who are wrongly convicted.