It’s not the lawyers. It’s the system

A criminal solicitor responds to the observation in David Lammy’s review of black, Asian and minority ethnic (BAME) representation in the criminal justice system (here), that BAME suspects lack trust in legal aid solicitors, seeing them as part of the system that discriminates against them. Jon Black, of BSB Solicitors and former president of the London Criminal Courts Solicitors’ Association points the finger back at the government for slashing solicitors’ fees.

As I turned on my laptop to write this, I received a call from a woman whose family member had appeared in court that morning – her case had been sent to the Crown Court and she had been remanded in custody. I asked if she had a lawyer, to which the woman replied that she had been given a lawyer by the police and wanted to change them.

I asked which firm they were from and when she told me I tried to explain that it is very difficult to change lawyers and, in any event, she was being represented by one of the most well thought of firms in London and that it was unlikely that they would fail her.

David Lammy’s report, for the first time, acknowledges the widespread prejudice faced by BAME defendants. But I am disappointed at how this issue of lack of trust in legal professionals has been framed.

The telephone conversation from the relative is one that many criminal solicitors will be familiar with and the comment about the duty solicitor comes as no surprise. There is clearly something wrong with the system if defence lawyers, who are there to act as the buffer between the client and the police, are perceived as part of the problem.

But, we ought not be defensive in that regard. We all know that individuals are at their most vulnerable when caught up within the machinery of the justice system. We all know how easily manipulated and impressionable our clients can be, and we often have to check ourselves to remember the stress that they are under when they can appear needy and demanding.

We can be self critical and acknowledge that we are not always overjoyed to be in the police station in the middle of the night, dealing with adversaries whose shift pattern would not have required them to have been working since 9am. In some cases the job of a publicly funded defence lawyer is such a thankless task that the bedside manner may at time slip away, and perhaps there are times when we might appear to be impatient.

In his report David Lammy makes broad statements and fails to address why this may be the case.

Let’s just examine the statistics – 21% of BME defendants change their plea from not guilty to guilty as opposed to 17% of white defendants. This is not a headline-grabbing statistic in it’s own right and the disparity is not huge.

Does the data account for factors such as late offer of pleas to lesser charges by the CPS or geographical differences in the manner in which cases are prosecuted?

It is necessary to consider the anatomy of a case when assessing the reasons for late guilty pleas. Over the past 15 years full disclosure prior to police station interview has become the exception rather than the rule, and accordingly decisions as to whether to comment in interview is often proportionate to the level of disclosure.

Perhaps it needs to be amplified that attendance at the police station is not for the purpose of presenting the police with a case against our client that didn’t previously exist. Similarly, where initial disclosure in the magistrates’ court fails to include crucial information we are often justified in advising clients to resist the early credit carrot.

This is not about increasing fees, but about ensuring our clients are treated fairly. Rarely does a client say ‘I wanted to plead guilty, but my solicitor wouldn’t let me.’ Seldom is there a case where a client may not have been charged had he chosen to comment in interview on the back of limited disclosure.

The question that arises over the statistic is whether it takes into account the fact that a larger proportion of the BME offenders are concentrated in areas where the disclosure habits both in police stations and court are different.

A generous view might be that cuts to police funding prevent resources being committed to file preparation. Only recently I had a case where as duty solicitor I represented a suspect in interview in relation to a relatively serious matter. He made full admissions in order to maximise credit and mitigation. The file prepared for court summarised his interview as a no comment interview.

Had I not been at court to represent the defendant and had he met a new solicitor, he may have entered a not guilty plea only to change it to guilty when the true transcript was disclosed. Would that have been as a result of lack of trust in that solicitor appearing at court to his behalf?

A beauty parade to choose the duty solicitor as suggested in the report is not the answer. Not only does it defeat the object of a duty rota, but it is the thin end of the wedge that we are already at and only one step away from a form of competitive tendering.

We all know the answer to restoring the trust between solicitors and their clients in the police station if, as the report suggests, it has been diminished — reverse the trend for cheapening justice and remunerate properly those attending the police station.

When rates are so low it is little wonder that their bedside manner may sometimes give the impression that their client is less important than their exit from the police station.

Once they have asked for the services of a duty solicitor, the system makes it very difficult for a suspect to change representation while still benefitting from publicly funded representation. This is nothing to do with the defence solicitors, but the rigid provision introduced by the Legal Aid Agency to ensure there is no duplication of expenditure of relatively modest sums in the context of the problems reported.

It is hoped that having published the Lammy report the Ministry of Justice (MoJ) will take some responsibility for the impact that treatment of BAME defendants within the criminal justice system has on wider society. As I write we expect further news of further cuts to the legal aid budget. It would be logical for the MoJ to give some consideration to these findings before wielding the axe further.

About Jonathan Black

Jon is a criminal defence solicitor at BSB Solicitors and former president of the London Criminal Courts Solicitors’ Association

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