Selling out the Criminal Defendant – and you never know, in the future this could be you.

Following the announcement last week that the Ministry of Justice intends to expand the Public Defender Service in England and Wales, I have decided to wade into the debate.

Firstly, there is a reason it has taken me a week to get around to typing up this blog. For the past week I have been working on case preparation for the Miami Office of the Public Defender, an office which I work with on a voluntary basis and which is so snowed with cases that its elected Public Defender Carlos Martinez had to take the unprecedented step of petitioning the Florida Supreme Court to ask permission to refuse to accept some felony cases due to an excessive workload. The Florida Supreme Court said in its judgment

‘Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered….instead the office engages in triage with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients”.

I am one of those who offers a limited amount of triage on a pro bono basis, but it is not enough…

Miami is not alone in its public defender work overload, I have worked with public defenders around the USA and all are suffering the same. Some Public Defender offices no longer have an elected Public defender in charge, as they have resigned in protest at the conditions their staff and defendants are working under. I have seen public defenders in court with a case load of over 40 cases in one day, as the defendant’s name is called the public defender searches for the file, and opens it up for the first time as their defendant is being asked about plea or is being sentenced. In this situation the public defender is not a lawyer, they are merely reciting the information in the file, which is often nothing more than one page of basic information on the client. I have seen public defenders read out the facts of a clients file only for the defendant to say in open court “that’s not me’. As the public defender had not met or even seen the client prior to them being brought into court the public defender was unable to even vouch for whether the person in court was their client!

Transfer this to Mr Grayling’s planned expanded Public Defender Service in England and Wales. The Crown Prosecution Service, which will always be able to justify the need for more funding than a defender service, is in melt down. The number of prosecutors has been cut to levels where the CPS can no longer service the courts. In recent weeks there have been one damning judgment after another from senior judges who are witnessing first hand the damage that the funding cuts have caused to the CPS – disclosure not being provided to the defence because the CPS cannot afford to provide it, cases having to be rescheduled as no prosecutors are available, failure of cases being reviewed by the CPS prior to being brought to trial, or worse still case papers being lost by the CPS. While the Ministry of Justice and the CPS profess to have the interests of victims at the heart of their work, these cuts have shown that victims are no better protected than they were 5 years ago. The recently departed Director of Public Prosecutions, has effective stated that the CPS is not fit for service.

The experience of the Miami Public Defender’s office is a taste of things to come in England and Wales if the Lord  Chancellor gets his way and introduces an expansion of the Public Defender Service, and all of the problems of the CPS will be multiplied in the Public Defender Service as it will be working under a lesser budget than the CPS. That will not only affect the defendant but also victims who will be caught in the crossfire.

Sadly, the Ministry of Justice has not yet realised that criminal defendants are people and are not just a number.

The youth who has been held in custody for a night, and who has decided to plead guilty to an assault that they did not commit just so that they can get back to school to take their GCSE’s, who needs to be advised that a quick plea to assault now could have dire consequences for their future, requires more than a quick conversation in the court room when they are brought up from the cells.

The ex-soldier with PTSD who regularly suffers flashbacks to his colleagues being blown up by a roadside bomb, who has not managed a full nights sleep in the past 18 months, who cannot sleep in the same room as his wife due to his fear he will beat her in the night during one of his nightmares, requires more than a quick five minute chat about his mitigation prior to going into court for sentencing.

The woman who was caught shoplifting food for her and her children due to her benefits being cut completely when she signed a zero hours contract with a local company, and which despite promises of full time work has not provided her with more than 2 hours work a week, requires more than a letter telling them to turn up at court with evidence of her benefit withdrawal.

These are not unusual scenarios for any criminal defence lawyer. We deal with cases like this every day, we spend a great deal of time with the clients, we try to get to the crux of the matter with them, and we spend many hours, evenings and weekends preparing for their cases. However, we are independent, we chose to do this work and put the hours in, and we do it because it is right. An employee of the Public Defender Service will be subject to targets and decisions by their superiors as to where their work efforts should be focused, and this in turn will be decided by the Government or media interests.

Through funding cuts, this Government has effectively taken away the right of the people to challenge State action by the removal of legal aid for judicial review of actions of the State. With your support we managed to persuade the Lord Chancellor to back down on his proposals to limit the right of a defendant to choose their own defence lawyer.  However, this recent announcement of the Public Defender Service is effectively the Lord Chancellor removing the right to choose a defence lawyer by another method.  Does he think the public are stupid enough not to realise this  expansion  for what it is, a kick in the teeth for all those who tirelessly campaigned to protect the right of the defendant.

The expansion of the Public Defender Service can only mean one thing, that criminal legal aid for the independent defence lawyer will be abolished. This is not to reduce costs to the tax payer as the Public Defender Service has been shown to be more expensive than the current criminal legal aid system, but to ensure that only those cases that the Government believes are worthy of being defended will be defended. For all those who don’t fall into that category… they will be left at the mercy of the public defender who picks up the file with their name on it for the first time as the defendant walks into court..

Us defence lawyers need your help. I know its a tough call as defence lawyers are not the public’s favorite profession, but you never know when you or one of your friends or family may need us. Every day I hear the wording ‘I can’t believe this is happening to me” from clients who have never been in court before. Please don’t wait until its too late…

What can you do to help?

• Sign this epetition (you will be in good company as Joanna Lumley has created the foreword for the petition) www.change.org/en-GB/petitions/david-cameron-uk-government-save-legal-aid-to-protect-access-to-justice-for-all
• make people aware of the damage that this Government intends to do to a persons right to defend themselves against criminal charges;
• write to your MP, the Lord Chancellor Chris Grayling, The Prime Minister, complaining about the reduction in legal aid and the expansion of the Public Defender Service;