A guest blog by Oliver Kirk, @Kirkabout.
Why SHOULD a suspect or a defendant in a criminal investigation/case be allowed to choose his solicitor?
We lawyers have made much of the fact that the Government has promoted choice in the areas of health and education. Why should people be able to choose their doctor, their surgeon, their childs’ school but not their lawyer?
If Mr Grayling is right, people should not be trusted to make such choices for themselves- however, I am not a doctor, and know virtually nothing about medicine, and yet the Government enthusiastically promote my ability to choose my own Doctor, when in fact all I really want is to be able to see a Doctor whose surgery is not too far away, and who, if i am ill can make me better and refer me to a specialist/for surgery.
Equally, I am not an educationalist, but I certainly want to have some choice about who teaches my children, whether I send them to a faith school, etc. I am generally, allowed to make such choices.
Why should it be different for those accused/ suspected of crimes?
Graylings’ answer seems to be: because such people are not informed enough to make a sensible choice. They are criminals therefore they do not get to choose. Why should tax payers foot the bill for a criminal to have the lawyer of his choice?
There are a number of reasons why these arguments are both offensive and wrong:
1) Not everyone arrested or charged or indicted for a crime IS a criminal. Do not forget that those arrested and those charged are entitled to be presumed innocent. Do not forget that a very high percentage of these arrested are released without being charged at all, that a significant percentage of those charged are found not guilty, or have the case against them discontinued. Those who are in this position are NOT criminals, and it is offensive to suggest that they are and to lump them together with “career criminals” in putting forward an argument that they do not deserve to be allowed to choose. Grayling might say that this is “Justice” because everyone will be treated the same way. It is not Justice, though if everyone is entitled to a shoddy service, unless they can afford to pay for their own lawyers (and lose their money, or most of it, even if found not guilty).
2) Not all lawyers are the same. We do not all have the same experience, the same professional backgrounds. We do not all spring straight from University into the Law, some of us have backgrounds in the military, the police, in industry. We are (nowadays) also from diverse ethnic and social backgrounds. We are not all as good at our jobs at each other either! We do not all specialise in the same cases. There are firms that deal with a wide range of offences, of course, but there are others that operate in areas of great specialisation: terrorism, for example, but there are others:military, road traffic, fraud, drug smuggling/ people trafficking. By denying suspects choice, the Government will be both denying the suspect the possibility of being able to chose a lawyer who really knows his/her stuff, while, at the same time, operating to dilute the specialist lawyers and to make us all “generalists”.
3) When anyone (“career criminal” or not) is accused of a crime, they want to have a lawyer that can TRUST. Trust is the fundamental to any lawyer/client relationship. Trust between a lawyer and client allows for advice to be given and recieved without suspicion. It allows the lawyer to advise a client when the case against him is strong, and for that advice to be heeded- resulting in proper pleas of guilty being entered in a timely fashion. Trust can be gained in a number of ways: it may be through previous experience, personal recommendation, ethnic/ linguistic affinity, or reputation.However it is gained, though, trust cannot be “created” by the Government telling a suspect “This is the lawyer you are having. We have quality assured him.”
4) This week Sir Anthony Hooper was challenged regarding choice on the Today Programme on Radio 4 he said that if he were arrested in Norwich for a fraud, he might want a specialist solicitor in London or Manchester. He went on to mention ex-military personnel who might want to instruct a particular lawyer with experience and expertise. The Governments response was that this was only a tiny minority of cases. WRONG. It is not. It is every case. In every case the suspect/ accused wants a lawyer he can trust. Some are happy to trust the duty solicitor. Some, though are not. Some want and need to be represented by a lawyer of their own choosing. To deny that choice is to deny fairness. For the Government to suggest that it is only unfair “in a tiny minority of cases” is therefore wrong. It also unveils that that Government is not really interested in Justice at all. Justice is Justice for all. You cannot have: “Justice for all (but not for these people over here)”
5) From a practical and financial point of view, the removal of choice is terrible. Solicitors keep records too, you know! We have access to our clients’ previous psychiatric and medical reports. We know when “hardened recidivists” are arrested what drug or social problems they have. We can therefore deal with such cases far more speedily and therefore cost effectively. Furthermore, as there is already trust in place with a client who has chosen his own lawyer, the Client is more likely to be able to listen to what might be un-paletable advice. This does mean that defendants make early decisions to admit offences when they are guilty. This saves money and time. It also means that Justice is swifter for victims who might be apprehensive about having to go to Court to give evidence. As far as ethnic minorities are concerned, solicitors who are bi-lingual are able to save the Legal Aid fund significant sums by not needing to employ interpreters. EVERYONE IS A WINNER!
6) The loss of choice will also wipe out, at a stroke, the specialisms that our current system has allowed to develop. The diversity of specialisation, of ethnicity is a strength of our system at present, not a weakness.
7) Choice allows professional development. It allows for lawyers to gain reputations in particular areas and this drives quality up. Lawyers are human too! We need something to strive for- we want to attract Clients, to be the best, to do better than our competitors. Remove choice, and you remove competition. Quality will fall. Why does that matter? Well it matters because without quality on both sides Justice will not be done.
Why remove choice?
The only reason the Government can give for its’ removal is so that they can guarantee volumes of work to whoever wishes to bid for its’ contracts. Being cynical, so that it can foist upon vulnerable individuals cheap lawyers of an “acceptable” standard, who will be financially incentivised to get their clients to plead guilty- to save money. However, the removal of choice will not save money. It will mean delay, cases being contested which should not be, defendants representing themselves, etc. These delays and self representation will come at a price. Who will pay? Oh yes! The taxpayer. Just like that taxpayer has paid for the abject failure of the Governments’ contract with ALS/Capita which was going to save so much money.
Would you choose to send you relative to a Doctor who was incentivised to keep you ill?
Would you choose to send your child to a school where the teachers were not interested in your child achieving its potential?
If you were a victim of crime, would you like the Prosecutor to be financially better off if he dropped the case against the perpetrator?
Why should a suspect/defendant be able to choose his own lawyer? Because it is right and just to do so.
You have a choice.
Please, choose to say NO to these proposals.
Please choose to sign this petition: http://epetitions.direct.gov.uk/petitions/48628
Choose Justice- because your Government will not choose it for you.