Case for the defence

As in-house lawyers await Sir Robin Auld's review of the criminal courts, Nicola Laver finds firms sweating over reforms which they argue favour the prosecution rather than defendantThe basic tenets of the country's criminal justice system are seriously under threat from the government, according to leading criminal practitioners.

The government's report, 'Criminal Justice - the Way Ahead', published last month, contains far-reaching and controversial proposals.

The timing of the report's publication has puzzled some practitioners.

Girish Thanki, partner at Thanki Novy Taube in London, says: 'We are waiting for Sir Robin Auld's review of the criminal courts and until that is available I don't know how the Lord Chancellor can talk about change, because it might be contrary to Auld's review.' The sentencing review will be announced on 1 May.

The suggestions for reform are: improved policing, major financial investment - the government aims to inject 2.7 billion into the criminal justice system by 2004- more support for victims and witnesses, and reviewing sentencing policies.

These are all ideas most practitioners agree are overdue.

However, practitioners are alarmed that the government is focusing on achieving results and increasing the powers of the prosecution agencies at the expense of protecting the inherent rights of the individual.

It is feared that the cornerstones of our criminal justice system, such as the presumption of innocence until proven guilty, and the right to a fair trial, are being sacrificed to obtain results.

A major proposal for reform is codification of the criminal law which, according to the report, will help to achieve transparency and accessibility, certainty, speed and efficiency.

Shaun Murphy, partner at London firm Edwards Duthie, agrees with this proposal.

He says: 'Given that much of the system is fraught with various difficulties and anomalies, codification would be feasible and workable.

It would be helpful to practitioners in dealing with their clients and to courts at all levels.' However, Martin Cunningham, a partner at Cunninghams in Manchester, is sceptical: 'We have got to the stage where we are currently inundated with statute after statute.

We would need to consider carefully whether it would be workable in practice.' One proposal which causes particular concern is a new prosecution right of appeal against a range of adverse judicial rulings, to reduce the number of cases that are dismissed prematurely without a result.

There are clear human rights implications.

Although the report claims to be 'evidence-based', Mr Murphy says: 'Cases are usually only dismissed if there is a serious omission in the prosecution case.

There is no evidence to suggest this is not the case, and that cases are not being dismissed for other than good reasons.

The proposal is a substantial change without any real evidence that it's needed.' He says this could lead to situations where cases are 'not sufficiently prosecuted first time round if the prosecuting authorities feel they can have two bites of the cherry'.

And he warns: 'You need very strict safeguards to ensure this type of abuse does not arise.' Mr Cunningham calls this proposal 'appalling'.

He says: 'The proposed double jeopardy rule is already being seen as a very serious threat to an individual's rights.

A prosecution right of appeal against acquittals will lead to a head-on conflict over an individual's right to a fair trial, and lead to appeals to the European Court of Human Rights.'Practitioners welcome proposals for fuller disclosure of prosecution evidence.

Simon Nicholls, a partner at Belmores in Norwich, says: 'What may not be relevant to the prosecu-tion may be relevant to the defence.'However, there is dismay that it is intended to allow disclosure of previous convictions 'where relevant' - a shift away from the present exclusionary rules.

Mr Nicholls fears that this could constitute a fundamental breach of the right to a fair trial.The intended powers to freeze a suspect's assets before civil trials, to investigate suspected proceeds of crime, and to tax suspected criminal assets will lead to a further erosion of an individual's liberty.Franklin Sinclair, chairman of the Criminal Law Solicitors Association, calls this 'grossly unfair' and adds: 'I would be concerned as to whether any legislation in these terms will be compatible with the European Convention on Human Rights.

It blows apart the presumption of innocence and the right not to incriminate yourself.' Mr Nicholls finds the whole tenor of the report worrying: 'While historically, the prosecution has always had the duty to prove someone guilty and even if someone was guilty they could still say "the state must prove me guilty", the underlying feeling that I get is that there is more emphasis on guilty people pleading guilty than there being adequate protection for the innocent.' This, coupled with the increased resources and the proposed closer relationship between the police and the prosecution, 'puts the defence at a particularly disadvantageous point', he says.

Mr Nicholls expresses concern at the sentencing proposals.

The report proposes more severe sentences for persistent offenders, as well as punitive and 'offending behaviour' components.

However, the proposals include a reparation component, which means the victim would have an active part in suggesting a suitable reparation.Mr Nicholls calls this 'pure America' and says it is fraught with potential problems.

He supports calls for consistency in sentencing but warns of sticking too rigidly to guidelines: 'The proposals are well-intentioned but there has to be an important distinction between sentencing "guidelines" and sentencing "tramlines".'My concern in relation to lay magistrates is that there is too much emphasis on the guidelines, to the exclusion of continued judicial discretion.' He expresses concern at adopting a 'sentencing-by-computer' approach.Proposals within the report of a more practical and procedural nature include a salaried defence service (SDS), a unified court structure and closer links ('joining up') between the various agencies.The Criminal Defence Service starts in April- and is already being piloted in some areas - and aims to provide advice, assistance and representation by contracted, quality-assured criminal lawyers.The proposed SDS, intended to provide more flexibility in meeting demand for legal representation, is being met with misgivings.

Mr Murphy says: 'This would be similar to an American-style public defence service and would run in tandem with private practice.

This would inevitably lead to competition with private practices.' Mr Cunningham has doubts about the proposals: 'I cannot see how a state-funded, state-guided salaried defence service can be seen to be independent from its employer, namely the government.

It remains to be seen whether the public will have any confidence in using a solicitor employed by the state, when it is the state itself that is prosecuting the individual.' He says that the current system is independent and works well, adding: 'The salaried defence service will affect solicitors who are in private practice.

I foresee firms in smaller towns being particularly affected because their criminal work will eventually be taken away from them by such an agency.' Against the background of 'poor Legal Services Commission rates,' he continues: 'The money that is being put into this could have been better used in increasing the still poor rates that private practice receives for such valuable work'.

A more unified court system will be welcomed by Mr Nicholls, who calls the proposal 'common sense'.

He says: 'Historically, there was a reason to have two courts.

Now, it makes more sense for some cases to go straight to the higher court, and combining the magistrates and crown court would inevitably produce shared resources and speedier justice.' However, he has reservations about linking the CPS and the police.

He says: 'The CPS was designed to be an authority independent of police influence.

The investigators and the prosecutors should be kept separate, otherwise the prosecutors could have their objectivity influenced.

Independence must be maintained.' He adds: 'My overwhelming concern is that the balance is shifting towards a pro-prosecution position as opposed to a neutral one.

Without a properly funded defence system there are likely to be further miscarriages of justice.' While the Lord Chancellor awaits Sir Robin Auld's report, he would clearly do well to listen to the concerns of the criminal defence specialists at grass-roots level.

Nicola Laver is a freelance journalist