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Innocents will suffer as legal cuts put paid to due process

It’s not often you see bewigged barristers take to the streets waving placards in protest, but such were the scenes outside the Old Bailey and other courts around the country as defence lawyers demonstrated…

Lawyers pass judgement on proposed cuts to legal system. AP Photo/Alastair Grant

It’s not often you see bewigged barristers take to the streets waving placards in protest, but such were the scenes outside the Old Bailey and other courts around the country as defence lawyers demonstrated against planned cuts of £220m to legal aid. We may be entering what George Osborne calls, the year of “hard truths”, and, certainly, Osborne’s speech on Monday forecast some hardship for welfare claimants. But every bit as pertinent is how government cuts are reshaping the criminal justice system and dictating the nature of its operation.

Savings in the criminal process are precipitating a shift from due process values to those of crime control. The difference between these approaches was famously articulated by Herbert Packer in the 1960s and remains pertinent today.

Under crime control, the central function of the criminal process is the repression of criminal behaviour. The centre of gravity lies in the early, administrative, fact-finding stages operating under a factual presumption of guilt. The approach sees nothing wrong in organising affairs so that pressure is put on the defendant to confess. Conviction of the guilty is all-important and the mistaken conviction of some innocent defendants is seen as an unfortunate but acceptable price to pay. This approach demands as few restrictions as possible on those tasked with investigation and stands in opposition to rules restricting illegal arrest or coercive interrogations. To these ends, defendants should only be allowed access to representation in a minority of cases.

In contrast, due process is more concerned with upholding the rights of the defendant. The due process model lacks confidence in pre-trial fact-finding enterprises. Great emphasis is placed on the possibility of error. Adversarial processes are championed, with cases considered publicly in a formal hearing with an independent tribunal. As such, decisions are only made after defendants have been provided the opportunity to discredit the case against them. The right to representation is central, in order to allow the remedies and sanctions that check this process to be properly enacted. This position is premised upon the notion of the equality of arms, so each individual should have the ability to contest a charge against them. This necessitates that – where the system allows the right to be represented by a lawyer yet the individual cannot afford to instruct one – the state should provide one for free.

While maintaining its legitimacy through professing due process principles, such as legal aid lawyers and the right to an appeal, the criminal justice system of England and Wales is increasingly crime control in its functional reality. Values are shifting under the ideological impact of austerity.

Cuts and the legal process

This week’s unprecedented mass walkout and demonstrations by criminal defence lawyers highlights the manner in which proposed legal aid cuts have the potential to destroy state provision of criminal representation as we know it. Defence lawyers will see average pay reduced by 17.5%. In place of access to justice will be a sausage factory approach as defendants are turned into standardised products by lawyers who do not have the time to offer a personalised service.

Research has shown that increased legal aid pressures will mean lawyers feel increasingly compelled to push their clients to plead guilty as quickly as possible. Legal advice deserts that emerge in certain geographical locations and around certain low-remunerative types of case will mean unrepresented defendants – with higher levels of self-incrimination and, again, a greater expectation for early guilty pleas.

Defence lawyers, though, are not alone in facing such systemic pressures; tasked with making a 27% reduction to its budget by 2015, the Crown Prosecution Service has cut nearly a quarter of its lawyers in the past three years. As they keep more casework in-house, there are concerns of declining standards; due to lack of experience and over burdensome workloads, it is feared that the quality of advocacy has been reduced.

The expectation appears to be that prosecutors should not expend as much energy on casework (as evident from increasing numbers of collapsed cases). With an ever-greater throughput of guilty pleas, then, this end is achieved and there is less work for them to do. in theory, at least, defendants should pass through the system more quickly (in practice, unrepresented defendants often take significant amounts of court time).

As part of the same trend are government proposals to cut judicial reviews – charging more to bring about a review, reducing the eligibility for pre-application funding and shortening the period in which they can be raised. Judicial review is one of the only ways courts can scrutinise the decisions of public bodies. But, the prime minister, David Cameron wants to see a reduction in the number of such reviews, which will apparently curb “time-wasting”; cutting through the “red tape" of, what he dismisses as, “bureaucratic rubbish”.

The example most often dismissed by the government is the supposedly frivolous legal aid for prisoners to review parole board decisions. Such cuts deny a human right to vulnerable people in need of rehabilitation back into society, not further marginalisation. They assert the notion that the state is always correct; citizens should simply agree.

What emerges is a crime control system where state decisions on citizens are quick and final. While this might sound positive to those who bemoan the inadequacy of our legal system to impose adequate punishment on wrongdoers, what it actually means is that this often happens more through luck than judgement. Without proper procedures in place to scrutinise evidence against an individual, the awesome power of the state often goes untested.

What price justice?

Justice on the cheap is no justice at all. Under Packer’s models, due process presents an obstacle course – we can have faith in our state decision-making apparatus as it has gone through a thorough process of checks. It is these due process concerns that have allowed its advocates to trumpet England and Wales as the finest legal system in the world. But if the criminal justice system rather emerges from these deep cuts as little more than a crime control system, evoking the image of an assembly-line conveyor belt with an endless stream of cases flowing down it, there can be no case for the defence of justice in England and Wales. Justice is sacrificed to save money.