Justice lacks a champion

The findings of the Joint Committee on Human Rights on the implications for access to justice of the Government’s proposals to reform judicial review; the publication of the Jeffrey Review; and facing challenges with resilience and determination.

It is 700 years since Edward II’s army was defeated by Robert the Bruce at Bannockburn, on 23-24 June 1314. At school, we were taught that Robert was inspired to overcome early setbacks in his career by a spider who refused to give up. The spider is now thought to have been an invention, probably by Sir Walter Scott, but his inspiration remains a valuable one for advocates, who often have to display persistence in the face of adversity if a case is to be properly presented. That is certainly true at present of the case for preserving access to justice in criminal, family and civil cases.

Support for that case came at the end of April from the Joint Committee on Human Rights, which is made up of MPs and peers, with a majority drawn from the coalition parties. In its report on The implications for access to justice of the Government’s proposals to reform judicial review, the Committee found, unsurprisingly, that the Government’s proposals would have a negative effect on  access to justice.

However, the Committee went further and questioned the conduct of the Lord Chancellor in bringing forward these proposals. The Committee’s language is measured, but its message is powerful: “In an article in The Daily Mail on 6 September 2013, the day on which the Government’s judicial review consultation was launched, the Lord Chancellor suggested that the rationale for the Government’s proposed reforms is that judicial review is being used as “a promotional tool by countless Left wing campaigners.” Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim recognised by human rights law as capable of justifying restrictions on access to justice, nor are they easy to reconcile with the Lord Chancellor’s statutory duties in relation to the rule of law.”

The Committee has proposed a review of the combined office of Lord Chancellor and Secretary of State for Justice. This issue was also raised by several speakers in the House of Lords debate on 7 May 2014 on the latest regulations restricting legal aid for judicial review cases. Baroness Deech put the matter well, and succinctly, when she said, “Our system of justice lacks a champion.”

Sir Bill Jeffrey has now published  his report on the market for criminal  advocacy services. He has made  recommendations which will be  considered and debated by the  professions, the regulators, the  Government and the Courts. It is worth  pausing, however, to consider some of the  factual findings which he made:

  • Effective advocacy lies at the heart of  our adversarial system of justice.
  • The particular strengths of the English  and Welsh Bar are a substantial  national asset, which could not easily  be replicated.
  • Barristers are “manifestly better  trained” as specialist advocates. To be  called to the Bar, a barrister needs to  have completed 120 days of advocacy  training. By contrast, a solicitor can be accredited to practice in the Crown Court with as few as 22 hours of such training.
  • His visits to the Crown Courts revealed that the “main area of concern” about quality was “relatively inexperienced solicitor advocates being fi elded by their firms (for what were presumed to be commercial reasons) in cases beyond their capacity.”
  • Despite the fact that barristers are better trained and are not being beaten on price or quality, they are receiving a diminishing share of Crown Court work. The market is not operating competitively or in such a way as to optimise quality.
  • Both some defence solicitors (who wish to use an in-house advocate in the event of a guilty plea) and the Crown Prosecution Service (who have a practice of waiting until after the Plea and Case Management Hearing) delay the assignment of trial advocates, which has an adverse effect on the preparation and conduct of the trial.

These facts will come as no surprise to members of the Bar. Others may cavil, but they are the findings of an independent review by someone with no axe to grind.  They deserve to be taken seriously.

We have proposed action by the Legal Aid Agency and the Criminal Procedure Rules Committee to address these specific c issues. We have also established a Criminal Justice Review Group, with Geoffrey Rivlin QC as chairman and with members drawn from the Criminal Bar Association, the Circuits, the employed Bar and the young Bar. This will provide an opportunity for the profession not merely to engage with and respond to the Jeffrey and Leveson reviews, but also to look ahead and consider carefully   how best to ensure that the criminal Bar survives and flourishes, addressing the many challenges which it faces with the same resilience and determination as Robert the Bruce and his spider.

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