April 22 2024
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No defence: damping down expectations, not drumming up business

No defence: damping down expectations, not drumming up business

Writing this, it is difficult to know what identity I should use, writes the Chief Legal Ombudsman Adam Sampson. Half a lifetime ago, I used to be a probation officer in Tottenham in the aftermath of the Broadwater Farm riots. Given that I had two of the Tottenham Three – Winston Silcott and Engin Raghip – on my books at one point, I could talk about the difficulty in supporting efforts to get any attention paid to the possibility of miscarriages of justice.

In my personal life, I am married to a criminal defence barrister. I could therefore talk about the pressures I see on such lawyers at a time of decreasing incomes and increasing competition for work, pressures including those from intolerant and unsympathetic husbands.

  • This essay appears in No defence: miscarriages of justice and lawyers which is that latest publication in the Justice Gap series and follows on from Wrongly Accused: who is responsible for investigating miscarriages of justice? (published in association with Solicitors Journal and Wilmington shortly). You can download Wrongly Accused HERE.
  • Contributors for No Defence include Eric Allison; Dr Ros Burnett; Prof Ed Cape; Dr Dennis Eady; Francis FitzGibbon QC; Mark George QC; Andrew Green; Campbell Malone; Michael Mansfield QC; Mark Newby; Daniel Newman; Paul May; Dr Angus Nurse; Correna Platt; Julie Price; Dr Hannah Quirk; David Rose; Adam Sampson; Satish Sekar; and Tom Wainwright. Thanks to all.
  • The pic is called ‘A Figment of your Imagination in Time’ (HMP Edinburgh, pencil on paper) and is from the Koestler Exhibition for Scotland, November 2012

But I suspect that is not why I have been asked to contribute for this collection. There are many better placed that I am to write on these areas. No – it is in my current capacity, as Chief Legal Ombudsman, that I am making this contribution. And if that means that I am not going to express any views on the shape of legal aid cuts or the way that the legal services market is being reshaped, you will have to forgive me. As an Ombudsman, my role is not to act as a commentator on Government policy but to describe what it is I see in the cases with which we deal.

And there are a lot of them. Last year we investigated nearly 7,500 complaints of which over 900 were about criminal law. And there are signs that number is set to build as the word about our existence spreads around prison landings. For prisoners who have tried and failed to interest the Court of Appeal in their cases or who have given up on the Criminal Cases Review Commission, our arrival gives fresh hope. After all, if a statutory body such as the Legal Ombudsman might be persuaded to opine that the defence they received was inadequate, that surely will be a step on the road to release.

And they have a point. As a body set up to deal with complaints about the adequacy of service provided by lawyers, we are there as much for criminal defendants as for those who instructed lawyers to do their conveyancing or obtain a divorce. And we find that the service given to someone whose liberty was at stake was inadequate, it is our duty to seek to do something about it.

That said, such cases cause real challenges for us. Despite the fact that the Legal Ombudsman was established by piece of legislation sponsored by the very Government department which oversees the system of justice and sponsors the Criminal Cases Review Commission, we have little formal relationship with the criminal justice system.

Our remit is limited to the individual lawyers who provided the service; even where we find that the defence was inadequate and that this may have contributed to the conviction, we have no formal powers in relation to the court system (and nor would it be usual for an Ombudsman to have such powers). We can order the lawyer to make whatever redress lies within their power but our writ extends no further.

Iniquity of evidence
Moreover, the twin hurdles of determining that the defence provided was inadequate and that these inadequacies raised serious questions about the conviction are, in practice, high for us to surmount. We are a lay organisation, required to provide a speedy and efficient complaints resolution service. We are neither set up nor resourced to undertake detailed analysis of the intricacies of criminal defence strategies. In most cases, the complaints received revolve around unhappiness with the tactics adopted: why was a particular witness not called? Why was a particular line of questioning not adopted? These are questions of legal judgement which it is difficult for anyone, particularly a lay organisation, to establish definitively were unreasonable. And just because a line of argument was rejected by the judge or the jury was unconvinced by the way the evidence was presented does not mean that the lawyer’s judgement was flawed or that the service was inadequate. Were this to be the case, in every contested case one side could always be held to have good cause to complain.

There is also an inequity of evidence in many of these cases. Complainants who argue that they were bullied into pleading guilty are often faced with their signature on the brief or a contemporaneous attendance note; rarely do they have their own notes to counteract these.

And lawyers can argue, reasonably enough, that many of the decisions they make are necessarily subjective – whether a witness would be credible or a question would alienate the jury – which no-one subsequently is in a position to retake. These are not merely issues for the Legal Ombudsman; I have heard judges voice the same concerns in relation to the assessments of advocates’ quality that they will have to make under the QASA scheme.

Even where we can find evidence to substantiate that the service was poor, that does not automatically mean that the conviction is necessarily unsafe. Many of the issues raised with us – delay, rudeness, communication failures, cost – can almost never be linked with the outcome of the case. Others, such as the late change of a barrister, can easily enough be shown to have had an emotional impact but unless the judge has, for example, commented on the lack of preparedness of the defence counsel, it is difficult to find a direct link between that and a case being lost. As a result, many of our complainants are able successfully to establish that the service they had was poor but leave disappointed with the outcome of our process. It is no coincidence that the levels of satisfaction with our service on the part of prisoners are lower than we would like.

Which is not to say that we can never be an effective route to challenging a conviction. While most complainants are destined to leave disappointed, some do achieve a successful outcome.

One of our early cases was from an individual who claimed that his defence team failed to argue for an adjournment to enable his defence to be investigated. On looking into the matter, it rapidly became clear that he had indeed been let down by his legal team and when they, to their credit, agreed that they should have done more to trace and interview his witnesses, we were able to broker an agreement that they would do some pro bono work on preparing an appeal; we also liaised with the Criminal Cases Review Commission to ensure that they were in a position to approach the matter sympathetically.

But such cases are relatively rare. And for all that we will continue to look seriously at claims that the defence lawyers have failed to provide a reasonable service, there is reason to feel some discomfort about our positioning. There is an argument to say that our arrival into the current system of providing a service to people who claim to have been wrongfully convicted has not been helpful, that we have merely added a further level of complexity and raise hopes which in the main will not be fulfilled.

When I write articles for prisoner magazines, I spend more time trying to damp down their expectations about what we can achieve than I do drumming up business. I do not want to be the cause of greater alienation and frustration to a population which is already prone to both feelings.

Not cost-free
Nor has our arrival been seen as great news by some lawyers. On the positive side, part of our role is to defend them against unfounded allegations and provide somewhere for them to refer clients who they simply cannot satisfy. By policing the behaviour of the worst of the profession, we also aim to support the work of the best. However, I am deeply conscious that many criminal defence lawyers, particularly legal aid lawyers, are struggling with a faltering economic model and a rapidly transforming market. Given that the burden of regulation, according to a recent Law Society survey, is currently the single most profound challenge to solicitors, I do not want to add unnecessarily to it.

And in seeking to help the fight for justice by some defendants, we do risk being part of an injustice for some lawyers. For lawyers, dealing with my office is not cost-free: along with the potential for being ordered to make redress and pay a case fee of £400, there is the time cost of answering our questions and providing the evidence we need. This is increasingly known to some complainants.

Already I am aware of some former criminal clients writing to lawyers threatening to report them to the Legal Ombudsman if they do not pay a small amount of compensation, and some lawyers paying up on a naked cost-benefit basis.

Given that the total earnings from a criminal case may be as low as £200, hard-pressed legal aid lawyers may be increasingly reluctant to take on cases involving clients they consider difficult if they know that they risk losing double that amount by a complaint being made to the Ombudsman.

But it is these very economic pressures which makes it so important to have an outlet for complaints about poor legal service. As the legal aid cuts bite and the competition from new legal models intensifies, there is a risk that some lawyers may be tempted to shave the quality of their service in an attempt to continue to survive. If that happens, the impact on those facing criminal charges could potentially be profound. For all our limitations, it is the Legal Ombudsman’s job not just to seek to right the wrongs which may have resulted but also to feed back to lawyers, clients and Government what we are seeing. And that is what we will do.