From Where I Stand

PUBLISHED November 16, 2012

Michael Burdett continues our occasional series. He was president of the LCCSA in 1993 and received a LAPG lifetime achievement award in 2009. The views expressed below are entirely personal.

As I enter my 50th year as a criminal practitioner, I observe a country which prides itself on being the epitome of rational stability, yet lurches from one unbalanced position to another, as particularly demonstrated in the wild pendulum swings of the criminal justice system. Ironies abound.


The system in the 60s and 70s was prosecution biased. The police, well portrayed in the TV series "Life on Mars?, were institutionally violent and corrupt. In aptly named police courts, any disclosure was non-existent.

Gradually, society became less deferential to authority. Defendants complained that confessions were beaten or tricked out of them. Juries believed them. Acquittals multiplied. This trend - along with various cases of miscarriages of justice - forced the Home Office to introduce the transformation that was the Police and Criminal Evidence Act (PACE).

Post PACE, the system became defence biased as sentencing was liberalised. But this was not our finest hour. Some practitioners sent untrained ex-police officers to give appalling police station advice and bulked up their costs with unnecessary remands.

Shame at low quality advice (disclosed in independent research) galvanised me into initiating evening seminars in police station skills through the Criminal Law Solicitors? Association - newly founded on the LCCSA?s initiative - and then through the LCCSA. These evolved into the training programmes of which we can be proud.

From 1986, the new Legal Aid Board embraced quality control, followed by the Law Society, as some of us agitated for accreditation schemes. But it is sad to see how sensible quality controls, like the fixed costs regime, have progressively degenerated into prescriptive bureaucracy. Government has introduced 3,000 more criminal offences in complicated and confused legislation, whilst access to legal advice is inexorably withdrawn.

Since 2007, prosecution bias has crept back and defence practitioners have been under siege. The Legal Services Commission slowly turned collaboration into confrontation, which exploded in the first war on best value tendering. A second war approaches.

I am sure that senior officials at the Ministry of Justice, encouraged by the current ideology that cutthroat, cut-price competition is everything, are releasing their atavistic desires to return to a justice system on Mars. They have so far failed to kick us out of police stations; but we need to remain vigilant in this area.

I weep for the CPS. Younger LCCSA members may not be aware that, in the 80s, the CPS was so badly set up that it owed its survival in London, in large part, to a body of experienced LCCSA agents. We withstood the ire of the "stipes?, knowing it was nothing personal.

By 2010, the CPS was starting to get its act together; but then the economic axe fell and standards have plummeted. Individual control of files needs to return. Ironically, a strong CPS, robust in its decisions on charge and disclosure, makes for a more efficient and economical defence.

What now?

Technology may be the saviour of our system, or alternatively shatter it. The "Swift and Sure? consultation paper contains mostly daft ideas (eg permanent out-of-hours courts), yet some good ones on technology. But the saving of money rules. The paper states "the government has made it clear that our highest priority is tackling the fiscal deficit?. The way for us to destroy the daft ideas is to demonstrate their financial incompetence.

"Swift and Sure?, in swinging the pendulum so far in favour of victims? rights, and in its plethora of proposals for competition, digitalisation, localisation and speed of disposal, is losing sight of the rule of law and aggravating prosecution bias.

Kenneth Clark may justifiably say that the British professional judiciary is the best in the world, but I exclude our uniquely amateur magistracy. ?Swift and Sure? wants to "place the magistrate at the heart of the criminal justice system in their communities?. Without intensive training to confront their natural prejudices, these (many ill-meaning) amateurs will mess up. Some of the judiciary, politically directed, seriously lost the sentencing plot during the 2011 summer disturbances. When they reoccur, as they will when the economic cuts begin to bite, I hope that the judiciary will resume normal independent service and prevail over panic.

I feel schizophrenic over the new Justice Secretary. Although setting his tone with the burglar bashing gimmick, his policies will generate more work for us. Amazingly, my question at the recent LAPG conference to the legal aid minister on the release of restrained assets, so that wealthy fraudsters don?t get legal aid, elicited the reply that Mr Grayling has told him to implement the idea rapidly. However, all the "Swift and Sure? rhetoric on rehabilitation and restorative justice will not replace the reality of a rising prison population.

Ironically, in Texas, the kingpin of executions and tough crime control, a sentencing revolution is taking place. Writing recently in the Observer magazine, Ian Birrell reports that "right wingers have allied with liberals? and "Texas is now diverting funds to sophisticated rehabilitation programmes to reduce recidivism. Money has been poured into probation, parole and specialist services for addicts, the mentally ill, women and veterans. And it has worked: figures show even violent crime dropping at more than twice the national average, while cutting costs and reducing prison population.? Is this such an impossible dream for the UK?

Suggested action

The LCCSA, so good at reactive responses to consultations, should become more proactive. "Swift and Sure? regurgitates the perennially false complaint of "a system that seems to be built around the needs of offenders and their lawyers,? whilst talking of creating transparent services, partly by using social media websites.

I suggest that the LCCSA should create our own survey on our website, encouraging members to report (anonymously if they wish) systemic failures in their cases which are the fault, not of the defence, but of another criminal justice partner, such as the court, the CPS, prisoner delivery or digital breakdowns. These facts should be collated monthly by the LCCSA and forwarded to the MoJ, their social media networks, the CPS, and the legal media.

This is the way to make the dialogue become less one-sided and more transparent.

- Michael Burdett, HCL Hanne & Co