A critical evaluation of the development of the criminal defence solicitor’s role in the twentieth century and the need to introduce the duty solicitor scheme in England and Wales
As part of the criminal justice system in England and Wales, the criminal defence solicitor is considered key to the system’s operation.[1] In fact, criminal defence solicitors arguably gained even more significance in keeping with the access to legal representation available to those that needed it.[2] To illustrate, the Poor Prisoners Defence Act 1903 (PPDA 1903) recognised that legal aid would be made readily available for trials on indictment for those accused of serious crimies.[3] In addition, around this time, the criminal defence solicitor was also starting to be notably more active at the pre-trial stage.[4] To illustrate, the Judges‘ Rules of 1912 provided that criminal suspects needed to have the chance to seek solicitors’ advice, so long as the police were not unreasonably stopped from completing their work.[5]
Nevertheless, although the PPDA 1903 increased the availability of criminal defence solicitors through legal aid, the judiciary was encouraged NOT to draw attention to the fact that it was possible for an accused party to seek legal advice.[6] Moreover, it is arguably hardly surprising that only 9% of all criminal suspects ever looked for legal advice from a solicitor and only 7% ever actually received that advice.[7] This situation regarding the need for the judiciary to keep the right to legal advice a secret did not go without at least some attempts being made to address it, with the Legal Aid and Advice Act 1949 (LAAA 1949) an especially notable example.[8] Put simply, this Act provided everyone with the right to legal representation, aside from those that could not be reasonably regarded as appropriate for receiving any state help.[9]
That the introduction of the LAAA 1949 had a notable effect upon criminal defence solicitor’s development during the twentieth century and the introduction of the duty solicitor scheme is further supported by the European Convention on Human Rights 1950 (ECHR 1950).[10] More specifically, Article 6 of the ECHR 1950 protects the right to a fair trial for someone suspected of a crime.[11] This is because this provision permits a defendant to either provide their own defence or to be defended by their selected legal representative.[12] More importantly, where a defendant cannot afford legal support, the defendant is to be provided with support free of charge where it is in the best interests of justice.[13]
Reflecting back upon the LAAA 1949, any legal support that was supplied to accused parties within the remit of Act itself would be permitted by a court on a wholly discretionary basis in practice.[14] However, this appears to be a somewhat arbitrary process with regard to who should be entitled to receive legal aid that led to the creation of the Widgery Committee in 1964. Consequently, it was recommended by the Committee that there was a need to account for – (i) the gravity of the criminal charge; (ii) whether there is a significant question of law to be answered; (iii) it is possible for the accused to provide their own case and then follow proceedings; and, finally, (iv) if another party’s interests would benefit from legal support.[15]
Following the Widgery Committee’s aforementioned recommendations, the Criminal Justice Act 1967 provided a clear account of the guidelines that govern when the use of legal aid must be allowed.[16] For example, section 75(1) of the Act provides that a court will grant legal aid where it is wanted in justice’s best interests.[17] However, it was still determined that defence representation remained largely a minority activity that was still to be effectively addressed.[18] To illustrate, a report by Justice in 1971 emphasised the need for a more enhanced role for criminal defence solicitors in the criminal justice process since approximately 96% of all of the defendants that came before the magistrates‘ courts’ were unrepresented.[19] Then, to rectify unrepresented defendants’ disproportionate treatment, Justice sought to establish a ‘Duty Solicitor Scheme’ to ensure that all those accused of crimes could obtain legal assistance in the best interests of justice.[20]
It is also to be noted that, five years before, the aforementioned Widgery Committee had evaluated the possibility of establishing such a scheme.[21] However, ultimately, the Committee concluded that a ‘Duty Solicitor Scheme’s’ introduction was wholly impractical due to the scale to be accounted for regarding criminal justice in England and Wales.[22] Nonetheless, Justice was not influenced by the Widgery Committee’s arguments regarding the impracticality of the Scheme set out in the preceding paragraph. Instead, Justice argued that the Scheme would mean that it would then be possible to help many defendants that would otherwise go without legal support as soon as possible.[23]
In view of the establishment of a duty solicitor scheme in the ensuing years, it is pertinent to consider recent statistics emanating from the magistrates courts system to illustrate the significance of this scheme’s development to the operation of the criminal justice system. Specifically, the charity Transform Justice found that there are actually very few people that are prosecuted in court proceeding that receive no help whatsoever from some form of legal professional.[24] The reality is that some people actually utilise the same lawyer (or solicitor and barrister) from the start in the police station interview to the very finish of any criminal proceedings in a court hearing.[25] At the same time, however, there are also a few that utilise the skills of a legal professional for some of the stages of a given case but not others for whatever reasons that may be in the particular circumstances prevailing.[26]
Nevertheless, in the magistrates’ courts, there is still a significant minority of people who go unrepresented at one hearing. By way of illustration, in 2014/2015, 25% of all of the defendants that appeared before the magistrates’ courts went legally unrepresented; although the numbers in specific kinds of hearings varied from almost 50% in private prosecutions, to approximately 20% at first hearings.[27] However, Transform Justice also interviewed magistrates and district judges to evaluate how unrepresented defendants are perceived before the courts.[28] This is especially interesting because magistrates and district judges themselves had their own wildly contrasting views about the proportion of unrepresented defendants that came before them that, for example, 15%-40% in non-traffic cases.[29]
Nonetheless, the difference in magistrates’ experiences is somewhat stark and disappointing due to the need for the duty solicitor system in England and Wales.[30] That the experiences of the magistrates and district judges interviewed by Transform Justice are especially notable is because there is still a lack of official magistrates’ courts statistics in this regardi.[31] Consequently, if there were also official statistics for the magistrate’s court, a comparison would have been interesting with the Ministry of Justice’s official statistics.[32]
As a result, it remains difficult to reach reasonable conclusions regarding whether there has actually been an increase in how many unrepresented defendants appear before the courts in England and Wales so as to justify the need for the duty solicitor scheme. Nevertheless, the perception of those working in the courts cannot be discounted because it seems there are actually many more unrepresented defendants needing support.[33] Consequently the reality and the perception of the number of unrepresented defendants in England and Wales appear to support an interesting account of duty solicitors’ value to the achievement of justice.
Bibliography
Primary Materials
Legislation
European Convention on Human Rights 1950
Legal Aid and Advice Act 1949
Poor Prisoners Defence Act 1903
Secondary Materials
Books
Justice, ‘The Unrepresented Defendant in the Magistrates’ Court’ (Stevens and Son, 1971)
William Schabas, The European Convention on Human Rights: A Commentary (Oxford University Press, 2015)
Articles
Tobias Schrank, ‘Legal Aid in Times of Economic Turmoil: Current Challenges in England and Germany’ (2011) Oxford U Comparative Law Forum 3
Other Published Sources
Ed Johnston, ‘The Defence Lawyer in the Modern Era’ (A thesis submitted in partial fulfilment of the requirements of the University of the West of England, Bristol for the degree of Doctor of Philosophy. Faculty of Business and Law, University of the West of England, Bristol, July 2019)
Ministry of Justice, ‘Criminal court statistics quarterly: England and Wales’ (Ministry of Justice Statistics Bulletin, 24th September 2015)
Transform Justice, ‘Justice denied? The experience of unrepresented defendants in the criminal courts’ (Transform Justice, April 2016)
Paul Softley, ‘Police Interrogation: An Observational Study in Four Police Stations’ (Royal Commission on Procedure, Research Study No 4, Her Majesty’s Stationery Office, 1980)
Widgery Committee, ‘Departmental Committee Report: Legal Aid in Criminal Proceedings’ (Cmnd 2934, 1966)
[1] See, by way of illustration, Ed Johnston, ‘The Defence Lawyer in the Modern Era’ (A thesis submitted in partial fulfilment of the requirements of the University of the West of England, Bristol for the degree of Doctor of Philosophy. Faculty of Business and Law, University of the West of England, Bristol, July 2019)
[2] Ibid
[3] Ibid
[4] See, by way of illustration, Tobias Schrank, ‘Legal Aid in Times of Economic Turmoil: Current Challenges in England and Germany’ (2011) Oxford U Comparative Law Forum 3
[5] Ibid
[6] See, by way of illustration, Ed Johnston, ‘The Defence Lawyer in the Modern Era’ (A thesis submitted in partial fulfilment of the requirements of the University of the West of England, Bristol for the degree of Doctor of Philosophy. Faculty of Business and Law, University of the West of England, Bristol, July 2019)
[7] See, by way of illustration, Paul Softley, ‘Police Interrogation: An Observational Study in Four Police Stations’ (Royal Commission on Procedure, Research Study No 4, Her Majesty’s Stationery Office, 1980)
[8] See, by way of illustration, Ed Johnston, ‘The Defence Lawyer in the Modern Era’ (A thesis submitted in partial fulfilment of the requirements of the University of the West of England, Bristol for the degree of Doctor of Philosophy. Faculty of Business and Law, University of the West of England, Bristol, July 2019)
[9] Ibid
[10] See, by way of illustration, William Schabas, The European Convention on Human Rights: A Commentary (Oxford University Press, 2015)
[11] European Convention on Human Rights 1950, Article 6
[12] Ibid, Article 5
[13] Ibid
[14] See, by way of illustration, Ed Johnston, ‘The Defence Lawyer in the Modern Era’ (A thesis submitted in partial fulfilment of the requirements of the University of the West of England, Bristol for the degree of Doctor of Philosophy. Faculty of Business and Law, University of the West of England, Bristol, July 2019)
[15] Widgery Committee, ‘Departmental Committee Report: Legal Aid in Criminal Proceedings’ (Cmnd 2934, 1966)
[16] Criminal Justice Act 1967, ss 73-84
[17] Ibid, s 75
[18] See, by way of illustration, Ed Johnston, ‘The Defence Lawyer in the Modern Era’ (A thesis submitted in partial fulfilment of the requirements of the University of the West of England, Bristol for the degree of Doctor of Philosophy. Faculty of Business and Law, University of the West of England, Bristol, July 2019)
[19] Justice, ‘The Unrepresented Defendant in the Magistrates’ Court’ (Stevens and Son, 1971)
[20] Ibid, paragraph 26
[21] Widgery Committee, ‘Departmental Committee Report: Legal Aid in Criminal Proceedings’ (Cmnd 2934, 1966)
[22] Ibid
[23] Justice, ‘The Unrepresented Defendant in the Magistrates’ Court’ (Stevens and Son, 1971)
[24] Transform Justice, ‘Justice denied? The experience of unrepresented defendants in the criminal courts’ (Transform Justice, April 2016)
[25] Ibid
[26] Ibid
[27] Ibid
[28] Ibid
[29] Ibid
[30] Ibid
[31] Ibid
[32] See, by way of illustration, Ministry of Justice, ‘Criminal court statistics quarterly: England and Wales’ (Ministry of Justice Statistics Bulletin, 24th September 2015)
[33] Ibid