JusticeWatch: Full disclosure and virtual injustice

Full disclosure
As reported on LegalVoice, it was revealed that 97% of criminal defence lawyers had encountered disclosure failures in the last year. According to a survey for the BBC’s File on 4 programme, more than 1,000 lawyers experienced such failures. Of 1,282 respondents, close to a third said they believed that evidence not being disclosed had led to miscarriages of justice.

On the Justice Gap site, Bill Waddington of the Criminal Law Solicitors Association pointed out that the programme did not have the time to focus on another issue connected to disclosure problems. ‘That is the general failure of the magistracy and judiciary in tackling disclosure issues,’ the lawyer argued. ‘Courts should apply the law and rules properly and the sooner they do so then the sooner the disclosure debacle will halt. I hope that those with power to do so can get an urgent grip on the rules by tightening them and removing any ambiguity. The profession is more than happy to help in this regard.’

The director of legal services at the CPS, Greg McGill told the BBC that disclosure was a problem ‘facing the whole of the criminal justice system’. ‘Can we put this in context?’ he asked; adding that there was a conviction rate in the Magistrates’ court of ‘almost 85%’.

The Secret Barrister did put it into context – although not possibly what McGill had in mind.

Anna Jemmison and Katie McFadden of the Young Legal Aid Lawyers writing for the Legal Action Group argued that the introduction of fixed fees had had ‘a particular impact in relation to disclosure’. ‘The fixed fee scheme results in payments to defence solicitors being made on the basis of three categories: type of offence; number of defendants; and number of pages of prosecution evidence,’ they wrote. ‘Unless otherwise provided within the regulations, all work conducted on the matter is counted as included within the fixed fee. To give an example, the fixed fee for a standard rape trial (a class J offence) is £1,467.58 (Criminal Legal Aid (Remuneration) (Amendment) Regulations 2016 SI No 313 Sch 1 para 2). This equates to approximately 32 hours of work.’

It was ‘hardly surprising’ that issues concerning disclosure were ‘often left unresolved until the door of the courtroom, if indeed they are resolved at all’, they argued Legal Futures (here).

Virtual injustice
The House of Commons’ justice committee expressed concern about the government’s ‘evident preference’ for online justice over courts – reported Legal Futures. ‘The estate reform programme is predicated on an assumption that increasing use will be made of modern technology in the administration and delivery of justice, leading to a reduced need for physical buildings… however, the consultation does not seek views on this aspect of the reform strategy,’ said Bob Neill MP, chairman of the justice select committee. ‘We do not doubt that further modernisation is needed, and we welcome proposals such as the centralisation of HMCTS administrative functions. However, we are concerned about the MoJ/HMTCS’s evident preference for virtual and online justice over traditional, court-based models in the absence of recent research, or evaluation of pilot projects.’

‘The MoJ appears to have undertaken no evaluation of virtual hearings since its pilot programme in Kent and London, which was evaluated in a report published in 2010. This found that virtual courts were expensive to set up and to run, that defendants appeared less engaged in the process and that the rate of guilty pleas and custodial sentences was higher than in traditional courts for reasons that were unclear.’
Bob Neill

LiPs not ‘a problem’
Litigants in person should not be seen as ‘an unwelcome problem for the court’, judges have been told in guidance on equal treatment issued by the Judicial College (and as reported here in the Law Society’s Gazette).

‘A thoughtless comment, throwaway remark, unwise joke or even facial expression may confirm or create an impression of prejudice,’ the guide says. Litigants in person ‘should not be seen as an unwelcome problem for the court or tribunal’ and judges were urged to ensure they have every reasonable opportunity to present their case.

Stop moaning
Lawyers north of the border have been told to stop complaining about legal aid fess – according to the Times. Martyn Evans, chairman of an independent review into legal aid in Scotland which published earlier this week, said that ‘negative public perceptions of the profession were being reinforced by high-profile lobbying to increase fees’. He dismissed a claim that rates had not risen since the early 1990s as misleading.

Evans, chief executive of the Carnegie UK Trust, called on lawyers to make the case for legal aid by ‘emphasising its importance to a just society rather than their own pay packets’.

‘We found the public quite like the idea of legal aid, they didn’t think the spend was too high. But they had a view about lawyers that was very negative. [Lawyers are] focusing on fees but they actually have to take the public with them about the value of what they are doing. Otherwise, all the public hears is ‘we would like more money for the work we do’ and the public knows too little about the value and purpose of legal aid. So I’m saying the legal profession should talk up the value and effect of legal aid on a fairer Scotland. I didn’t find the evidence to justify a general increase in fees.’
Martyn Evans

Shiner news
‘Tank-chasing lawyer’ Phil Shiner has been forced to sell his house – as The Sun put it (here). ‘An indebted solicitor whose law firm was shut down for hounding war heroes has been foiled giving away almost £500,000 in assets to his family instead of to his creditors,’ the tabloid reported.

Apparently, the lawyer ‘tried to dodge paying back money he owed creditors’. But he is now being forced to sell his house after insolvency investigators ‘rumbled his ruse’. Insolvency Service official receiver Justin Dionne said: ‘All his activities were easily spotted and we have been able to recover a substantial amount of money, even if it was in his family’s name.’ The service also extended his bankruptcy from the usual 12 months to six years.

Good point, well argued
Deborah Coles of INQUEST tweeted the following about Sara Ryan’s account of her fight for justice for her learning disabled son, Connor Sparrowhawk, who died in a residential unit.

Facing seven separate legal teams on the other side, Ryan rubbishes the then Minister for Justice claim that inquests “are specifically designed so people without legal knowledge can easily participate” as “utter bollocks”. Spot on @sarasiobhan #legalaid https://t.co/YV43zpoaz1

About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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