While the Legal Services Commission should be applauded for its work in presenting a coherent strategy on legal aid, its stance on criminal defence lawyers is flawed, argues Roger Smith

The Legal Services Commission (LSC) has revamped the presentation of its annual report. The 2003-04 edition deploys full colour photographs with gusto - there are no fewer than 49. On the other hand, the report is heavy with so much administrative detail that it requires another innovation - a one-page glossary of terms. What it lacks is the big picture of actually why we fund legal aid, particularly in criminal matters, and what we get from it.


Annual reports do not matter all that much. After all, who reads them? But the LSC is a stand-alone, non-departmental body, the function of which is ‘to fulfil the government’s obligation under the Human Rights Act’. The Act is acknowledged in this one solitary reference. Even then, it is hurriedly qualified by adding ‘and to ensure that there are no resulting delays to other parts of the criminal justice system’. The set of ‘targets and objectives’ into which the report immediately delves in its section on the Criminal Defence Service are all about cuts and control - along the lines of ‘re-focus the general criminal contract [to]... priority cases’.


No one would expect the commission gratuitously to insult or resist government - least of all in its annual report. But, actually, the job of defence lawyers in the criminal justice system is to be zealous advocates of their clients’ interests. Done properly, this function makes the life of prosecutors and police officers more difficult - it requires them properly to prove their case. In a sophisticated democracy, this function is acknowledged and accommodated. It is a part of the criminal justice system. Its potentially disruptive effect is mitigated by acceptance that defence lawyers are also officers of the court and work within a structure of professional ethics.


The commission’s report accurately states that the ‘criminal justice system is a key domestic priority for the government’. And it is fine for the ‘LSC and the Department for Constitutional Affairs [to be] committed to "making the justice system properly a system"’.


It is totally desirable that the defence should be recognised as so integrally part of the system that its costs are linked. Every new police officer on the beat, every new prison on the street, is likely to cause an increase in legal aid costs.


The problems arise with the commission’s account of what appears to be its main concerns in relation to the Criminal Defence Service. For it, these appear not to be the provision of effective representation that meets the requirements of article 6(3)(c) of the European Convention on Human Rights. That article gives a right to a defendant ‘to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’. The LSC reveals that it is developing a rather more subversive aim - ‘to empower defence solicitors to take a proactive role in tackling the causes of crime and in reducing offending and re-offending behaviour’.


You can understand why the commission wants to position itself within the Home Office’s tent. This is safely within the ambit of core government policy and where the money is. There probably is no real problem with highlighting LSC participation in ‘initiatives to reduce offending and re-offending’, even in the suspiciously Orwellian reducing offending through advice scheme (no doubt shortened to ROTAS). This has, at least, allowed the LSC to grab some of the cash from the jargon-laden ‘invest to save’ budget of the Treasury and the Cabinet Office.


However, when it comes down to it, defence lawyers defend suspects and defendants. That is their core business. It is not their job to reduce offending through advice. It is their business to reduce convictions through advice and representation. They are the mechanics of the criminal justice engine, making sure its pistons keep functioning. Others drive the car.


The commission is doing many excellent things to get control of the benefit formerly known as legal aid and to give it a coherent set of priorities. However, it is simply a nonsense for the LSC to imply, as it does, that ROTAS is an example of targeting ‘available resources on highest-priority clients and where legal aid interventions can add the greatest value’. What about cases such as that of solicitor Sally Clark, where the Court of Appeal is persuaded that a person’s conviction is unsafe? What about anyone acquitted of a serious crime?


Our criminal legal aid system is a beacon throughout Europe. It sets a standard to which the new democracies to the east aspire. The least that the LSC can do is to indicate that it understands the core human rights justification for criminal defence. In the longer term, it is terribly dangerous to argue for the funding of defence costs in terms that are fundamentally specious, however superficially attractive.


Roger Smith is director of the law reform and human rights organisation Justice