Chris Daw QC: Justice on Trial
This is a transcript of the Podcast Episode on this website when Chris Daw QC spoke to Baines Law. It can be found on this link Podcast – Barry Baines
BARRY BAINES:
Welcome. This is Barry Baines from Baines law, a legal miscellany, where we regularly podcast about cases and legal issues, as well as talking to professionals and others who have experience of our legal system.
Today’s guest is a leading criminal defence barrister with over 25 years, experience who has represented clients in some of the most complex, serious and headline grabbing cases. He is a QC who is also a popular writer and commentator on topical legal issues for national publications, television, and radio. Presenter of the five-part 2020 BBC television series, Crime – Are we tough enough? he is also the author of Justice on Trial, a book which challenges everything we think we know about crime and punishment in Britain and presents radical solutions for our broken and failing justice system. We extend a warm welcome to Chris Daw QC. Chris, thank you very much for giving up your time to talk to us today.
CHRIS DAW:
No problem. Good to meet you
BARRY BAINES:
In your book Justice on Trial you deal with what you describe as dysfunctional prisons, pointless drug laws, and unnecessary punishment of children. In that context. I wonder if I may start by asking you about the huge backlog of cases in the criminal justice system. As I understand it, there are around 60,000 cases outstanding in the Crown Court and 350,000 in the magistrates’ courts with no serious proposals for doing anything about it. Do you have any views on this?
CHRIS DAW:
Yes. You’re absolutely right. Your numbers are very close to the current numbers that are in the backlog right now. And they’re not getting any smaller anytime soon.
My view is that the state of the criminal justice system is a sort of an example of a national emergency, just as there are national emergencies across the whole range of our public sectors, institutions in particular, the Health Service, but also other parts of our national life.
The difficulty is that we just haven’t prioritised the justice system in the way that we prioritise those other things. So we haven’t flooded the justice system with resources, we haven’t, for example, brought back retired judges or increased the recruitment of Recorders and judges at the other end of the spectrum or just increased the number of courts that can sit and deal with this backlog.
But we also haven’t addressed the fundamental issue that really we criminalise far too many people. One of the reasons why our justice system is so overburdened is because it’s full of cases that in my view – as you know if you’ve read the book – shouldn’t be there at all. So we have a sort of almost generational opportunity if we wanted to take it to strip away a lot of the unnecessary cases that really have no place in the justice system, particularly young people, particularly those who are suffering with mental health problems, who make up such a large proportion of our criminal justice system: also at the same time to bring through a new generation of judges and bring in emergency measures, whatever it takes, to get these cases through.
There’s no sign of any of those things happening at the moment. And that’s going to mean that this problem continues for many years to come.
BARRY BAINES:
Yes, indeed. I mean, in the past, so often I know when I prosecuted, one of the measures was just to drop cases.
CHRIS DAW:
Yes, and that would be a wise move. You are right. The CPS did change their charging standards certainly during the first year of lockdown and said we are going to rule out cases that are really at the bottom end and really marginal cases, purely out of a sort of pragmatic realisation. There weren’t enough people to deal with them. There weren’t enough CPS lawyers at the time discount the number, for those who were out isolating or ill with COVID itself; we already didn’t have enough even before that. So the CPS took a fairly pragmatic view, but unfortunately it wasn’t quite pragmatic enough because the backlog continued to mount and continues to be a problem to this day.
I mean, you make a very good point, which is why are there so many cases that result often in non-custodial sentences or short prison sentences, which actually make ultimately the crime problem worse? Why are they still being brought and just added to this mountainous backlog which has got no end in sight.
BARRY BAINES:
Yes. So many cases, particularly in the magistrates’ court end up with no real disposal, don’t they – enormous numbers of conditional discharges, for example?
CHRIS DAW:
Well, there’s a large number of those. And you have to question whether they really needed to be taken to court at all or whether, in fact, they could have been dealt with either by just an informal warning or caution.
For me the biggest problem is our kind of revolving door justice system. Magistrates are handing out short sentences of several months and those sentences are known to be the least effective in reducing reoffending and the most effective in increasing reoffending. So, you know, there are these sorts of systemic problems with our entire approach to sentencing, to charging decisions, to the criminalisation of activity, which is really kind of marginal in terms of its criminality, and in many other countries probably wouldn’t be criminalised and certainly wouldn’t result in charges and prison sentences.
So I think these are all contributing to this overall problem that cases are being delayed. I have had cases being delayed for years and years, some cases going off into 2023, 2024, and you kind of have this complete disconnect between the events that give rise to the prosecution in the first place and the trial. There’s such a huge gap between the two that it’s difficult to see in some cases how you’re ever going to get a really fair trial for either side, for victims. and witnesses. The passage of time is almost inimical to the pursuit of justice. It is a is a cliché that justice delayed is justice denied but there are issues and nothing’s being done about it.
BARRY BAINES:
The government has indicated it’s going to implement the provisions of the Criminal Justice Act 2003 to permit magistrates to impose sentences of up to 12 months. So I take it your reaction to that proposal, wouldn’t be favourable either in the circumstances.
CHRIS DAW:
No, and the purported reason for that is that somehow it’s believed that that’s going to reduce the backlog in the Crown Court. I just don’t understand the logic of that at all, because if magistrates are given greater sentencing powers, then that increases the incentive amongst those who wish to stand trial to elect Crown Court trial, if it’s an either way offence as it would be this case. So it kind of incentivises people to take the case to the Crown Court, but also, you know, the more sentences of imprisonment – particularly getting towards that 12 month point – that magistrates impose, the more appeals against sentence and, indeed, possibly conviction, there will be from the magistrates’ court to the Crown Court, where the sentence is reviewed on appeal. So that will increase the workload of the Crown Court because inevitably, you know, the more long sentences in magistrate courts that there are, the more appeals there’ll be.
I just don’t understand where the logic of this comes from that you will supposedly save something like thousands of days of Crown Court time a year. I just don’t see any scientific basis for that. In my view, at best, it’ll be neutral in terms of the impact on the Crown Court and, at worst, it will increase the Crown Court’s backlog and increase the workload of the Crown Court. So I just think it’s not the answer.
I mean, I gave you some of the answers earlier. You can’t get away from the fact that we don’t have enough courtrooms sitting to deal with these cases and tinkering around with who’s going to pass sentence and how long magistrates can sentence for isn’t going make any difference to that. So it’s just a bad idea.
BARRY BAINES:
Yes, exactly. And the appeals against conviction, of course, in the Crown Court take place by way of rehearing.
CHRIS DAW:
Exactly. So you have a trial that may have taken a day or a day and a half, or sometimes even longer, in the magistrates’ court, and that will have to be reheard in its entirety with all the witnesses in the Crown Court.
Or you’ll have people who will say if I could get, if I could get 12 months if I have a trial here, then I may as well elect to go to the Crown Court where at least I’ve probably got a better chance of being found not guilty, which statistically is the case. So you just might end up with this perverse incentive for people to take cases to the Crown Court that might have stayed in the magistrates’ court.
The other thing is, of course, that it is not just appeals: we are going to get more committals for sentence from the magistrates’ court? I just feel like it’s a badly thought out policy. There’s no evidence that it will work. It’s just an announcement being made to curry favour with the magistrates (because the Magistrates’ Association have said they’re in favour of this although I am not entirely clear why they are). Mainly it’s just a gimmick: it’s an announcement for the sake of an announcement.
BARRY BAINES:
And not only is it shortage of staff. The number of court centres that have been closed in the last 10 years is an enormous number. There was a parliamentary answer given today. I think you will have probably seen it,
CHRIS DAW:
Hundreds of them, yes; hundreds of magistrates’ courts and a significant number of Crown Courts. And not only is it court centres being closed, but it’s lack of capacity within court centres. So even if you have a large Crown Court centre that might have 12, 14, or even more court rooms, that doesn’t mean they’re all in action on any given day. Set aside the staff who are isolating and the COVID impact which has hit the court system so heavily, we just don’t have enough judges. We don’t have enough judges to sit particularly on complex or serious cases – and particularly on cases, which form one of the largest elements of the backlog, which are sex cases and allegations of rape and other forms of sexual offending. Those require specially trained judges, and there just aren’t enough of them.
So the backlog of those cases is particularly acute because those are the cases where there is a real incentive or real premium to be had in terms of justice in getting them into trial quickly. You know, if a victim of rape has to wait two or three years to give evidence, that’s extraordinary; in my view, that’s a miscarriage of justice. Whatever the rights or wrongs of the case and whatever the ultimate verdict, there is something seriously wrong with the system that makes anybody wait two or three years to give evidence about something that happened to them and for a jury to be able to consider the justice of the case. Inevitably victims face an uphill battle to remember detail after such a long period of time. Sometimes those memory features are the sole reason why the defendant may be acquitted and that cannot be right.
BARRY BAINES:
And of course, some just fall by the wayside, don’t they?
CHRIS DAW:
Yes, and many, many do. I mean, we already know that only 1.6% of reported rapes ever make it into court at all, so a tiny number anyway, but amongst those 1.6% you’re seeing hundreds of complainants many of whom will actually have been victims of these crimes, saying “I’ve just had enough”. You know, I’ve had clients who perhaps have been in this country coming from abroad and who have been the victims of these sorts of serious attacks. They’ve said to me, “Look, you know, I may as well go back to my own country because it’s just never going to get resolved, and I can’t just hang around forever with my life on hold waiting for the English legal system to catch up.“ You know, there are many, many cases out there where victims are just saying, “The waiting is too much, the lack of information is too much.
Potentially a defendant would’ve been in custody if the trial could take place within three or four or five months, but they’re released on bail because of the delay. So that means that victims are in fear because their attacker is on bail purely because there is so much delay in the court system. All of these things are just working to the disadvantage of victims and ultimately undermining public confidence in the justice system, which I think is at an all-time low anyway,
BARRY BAINES:
That brings us naturally, I think, to the age of criminal responsibility, which is something I feel quite strongly about. You have a chapter in your book called “Why children are never criminals”. In this country children may be criminalised at the young age of 10. Some of us may think that’s ridiculously young when most European countries set the minimum age as 14. You think there’s a better way?
CHRIS DAW:
Yes, most do. And some, as I point out in the book, set the minimum age of 18, which is the same as the age of majority and the age at which young people assume all of the rights and responsibilities – and certainly in terms of rights, that’s the case in Britain. You know, you can’t vote until you’re 18, and there’s a whole range of other kind of civic rights that you don’t fully engage with until you are an adult.
I think it’s really as straightforward as this, you know: if you don’t trust someone because of their age to have the maturity and responsibility to make the law, in other words, to be a voter, and to be able to elect politicians who can decide what the law should be, then I don’t really see how you, on the other hand, argue that they’re old enough to be subject to those laws in exactly the same way as an adult.
Of course, the public needs to be protected from a very tiny number of dangerous children but they are tiny in comparison to the number who are put through the criminal justice system every year. The number of genuinely physically dangerous young people is minuscule, and the public needs protection from them. But what the public actually needs most of all is to ensure that those young people who do find themselves in trouble with the police, or being arrested or coming to the attention of law enforcement, are pulled away from whatever it is that’s causing that, and are given access to education and support to see them through whatever trouble in their life is putting them in that position. They need to come out of childhood and into adulthood without the rest of their life being blighted by actions that they took when they just didn’t have sufficient maturity to be to be judged as being criminal.
I mean, anyone who has either 10-year-old children, or 10-year-old grandchildren, or even know 10-year-old children, you know, they are just not mature enough to understand and process their actions and the consequences of their actions in the way that most adults are. But 10-year-olds are just not equipped for that. So to put them into a criminal court and treat them as if they’re an adult criminal, I think is just abhorrent and morally wrong. In my view, it breaches the United Nations Charter on the Rights of the Child which we kind of ignore in this country in so many different ways anyway.
Just as a matter of basic common sense, you know, if you blight a child’s life with the label of criminal at the age of 10 or 11 or 12, or whatever the age may be, you may as well tattoo “criminal” on their forehead because their life chances will be effectively much the same as if you did that. You know, no one would ever give someone a job if they had “criminal” tattooed on their forehead. They live their lives with a criminal record and the same impacts as if that were the case. It just doesn’t make any sense.
I think it’s just a cruel system designed generally to punish those from certain parts of our society and community much more than those from others. We know that disproportionately it’s the children of the lowest socioeconomic groups and in very small pockets of our urban environments on the whole, who are subject to the criminal law. Most other 10-year-olds, or children of an older age, particularly from middle class families elsewhere, never go anywhere near the criminal justice system, even though they may make the same mistakes and do the things in particular in relation to drugs.
I’m sure we we’ll come on to talk about that, but, you know, children experimenting with being in possession of drugs is common across the entire social spectrum and all over our society. But only predominantly black children in the inner cities tend to get prosecuted for it and tend to end up with a criminal record – and their life chances are massively hampered when they’re already disadvantaged in so many ways in our education system and socially and otherwise.
So it’s just fundamentally wrong to me; it’s wrong to treat children as criminals and no child should be labelled in that way. We should protect the public from dangerous children, but even dangerous children should be given an education and opportunity to move into adult life and put their past behind them.
BARRY BAINES:
You mentioned drugs so let’s come on to it. What are your views about decriminalising drugs?
CHRIS DAW:
It’s probably the single largest policy error that has been made in our society in the past century because of the consequences of drug prohibition in terms of harm to those who use drugs from the fact that they buy their drugs at such high costs from dealers with absolutely no idea what they’re really taking. So there are overdose levels and all the other harms that go with it: drug related crime, the impact on society from the need of people who are using drugs, particularly highly addictive drugs, like heroin and, and crack, to get more and more drugs and have to find hundreds or even thousands of pounds a week; the size of the crime wave that’s created by that sort of huge increase in price caused by prohibition, and of course, just the sheer utter waste of money, of all the policing and law enforcement; the fact that half or more of our prison population are in some way in there because of drug prohibition, either directly in terms of drug offences or drug related crime or, or crime committed because they’re on drugs. All of these are kind of basic commonsense points that drug prohibition causes more crime causes more deaths, and increases the cost of policing to our society.
Of course we were talking earlier on about the huge backlog in the system. When we strip away drug crime, the system would have plenty of capacity. It takes up a very large proportion of the business of many Crown Court centres and indeed many magistrates’ courts, and it’s totally unnecessary.
There’s a clear path we could take towards licensing and regulating drug supply which would protect the health of users, which would dramatically reduce drug related crime and which would free up resource in our criminal justice system to deal with things that we really need to deal with like the very large number of unresolved sexual offences that I talked about earlier. It’s utterly abhorrent that we’ve got large drug conspiracy trials taking place in court centres where rape victims are being told we’ve got no space for your trial. That just doesn’t make any sense when we could get rid of all of that and make the world and the country a safer place in the process.
BARRY BAINES:
I wonder if we can change tack a bit now and talk about unduly lenient sentences, which the current Law Officers seem to be quite keen on.[1] We know they can refer cases to the Court of Appeal when they think sentences are unduly lenient. In one recent case, the Court of Appeal felt it necessary to remark that it was, to say the least, an unusual submission by the Attorney General that the judge fell into error by failing to depart from the guidelines. I wonder how this chimes with your general views about prison sentences and the attitude to them by the government.
CHRIS DAW:
Well, we’ve seen our present Attorney General, who gets in front of the cameras as soon as there is a sentence in any high profile case and complains that it’s too lenient and says that she’s thinking about it appealing it.
That is a sort of politicisation of the role of the Attorney General as a Law Officer, as you say. Although they’re a Minister of the Crown they’re supposed to exercise independent judgment but I’m afraid we’ve seen the Attorney General basically becoming nothing more than a mouthpiece for Boris Johnson and Priti Patel, and not exercising that degree of independence which we’ve seen in the past. But you are right to point out that judgment where the Court of Appeal described it as baffling or confusing or something like that.
But when the Attorney General is coming to the Court of Appeal and says, “We accept that the judge fully complied with the sentencing guidelines and that he took account of all of the aggravating and mitigating features and passed a sentence that was within the guidelines”, which the judge is required to do, to read and pay attention to, “but we are saying it’s still unduly lenient and the judge was duty bound to go above the maximum level within the guidelines” – the Court of Appeal, I think, were just sitting there – I wasn’t in court, but I’ve read the judgment – I think I was just wondering what on earth is this all about? It doesn’t make any sense. You can’t possibly argue that a judge who takes account of everything relevant and passes a sentence within the guidelines is somehow acting perversely and the Court of Appeal should intervene and increase it even beyond the top of the guidelines.
I don’t think that’s ever happened before. I don’t think we’ve ever had a case where the Attorney General has argued that a sentence within guidelines should have been increased above guidelines and the Court of Appeal has agreed. So it just shows a complete lack of judgment on the part of the Attorney General and frankly, a complete lack of independence. That politicisation is quite worrying because the Court of Appeal has also got plenty of work to do, and they don’t need to be used as a political football by the Attorney General and the government to try to prove a point about how “tough”they are on crime (in inverted commas).
BARRY BAINES:
Just bringing populist politics into the courts, isn’t it?
CHRIS DAW:
Yes. It’s very sad. We’ve seen successive Lord Chancellors, and now successive, Attorney Generals doing the same: as you say, that sort of populist rabble-rousing around criticising judges for a start, openly and publicly, and often in quite scathing, almost personalised terms rather than accepting that being a judge is difficult and that their responsibilities are high; and also that judges can’t pass whatever sentence they like just as an emotional reaction to how nasty the case is. They have to look at the sentencing guidelines. I don’t agree with many of them but they are what they are and they are in place. So judges, you know, really shouldn’t be criticised for observing and following guidelines which are imposed upon them from elsewhere.
You know, if there’s to be criticism of guidelines and the government wants to increase sentencing levels, which I’m afraid it has done in a number of ways over the last couple of years, then that has to be done openly and publicly by legislation and parliament deciding that sentences need to be higher or whatever the case may be. But to criticise judges for doing their job properly I think is particularly unpleasant when it comes from a government which has got a history of disregard for the law and has itself, of course, been found to have broken the law on countless occasions. Possibly we might see another load of examples of that over the next few weeks with number 10 and its many, many parties when the rest of the country was in severe lockdown.
BARRY BAINES:
We can’t wait for the outcome of that!
CHRIS DAW:
I mean, I wasn’t actually a big fan of the police becoming involved in it because I felt that it was a waste of time and public money and police resource which is pretty scant. I would much prefer to see the Gray Report just published with all of the photos and videos of whatever went on at these parties and let the public and Party decide what to make of it rather than the police dragging their heels for months and possibly letting the government off the hook
BARRY BAINES:
Now discounts for pleading guilty. We know that in order to get the maximum discount for pleading guilty, you have to plead guilty at the earliest possible stage. And if found guilty at trial, then there’s no discount at that stage. Sometimes the discount is sufficient to avoid prison altogether. In your experience, does that sort of pressure on a defendant lead to some people pleading guilty to offences hey haven’t committed because the risk of a heavy sentence is too great.
CHRIS DAW:
Well, I’ve certainly had clients say that to me. I’ve had clients say, “You know, I didn’t do it, but if I don’t go to prison and I can “do a deal” (in inverted commas), I’ll do the deal because I don’t want to take the risk that it goes wrong at trial and I end up going down or going down for a lot longer. So I’ve had clients say that and, I have obviously got them to put that in writing. If they’re saying “I’m not guilty but I’m pleading guilty anyway” I need to make sure that’s recorded because I don’t want them coming back later and saying, “Well, I told my barrister I didn’t do it.”
That’s their choice to do that. I think there is a significant issue now with the pressure on guilty pleas at the very beginning of the case. It used to be the case that you would get the full discount as it’s called, the one third discount for a guilty plea, if you pleaded guilty after you’d had all of the evidence and after it had all been served and after you’d had the proper opportunity to take some legal advice about what your plea should be, and potentially around offering a lesser plea to a lesser offence or something like that. But now, as I think you were pointing out, you have to plead guilty at the very first hearing in the magistrates’ court to get that full third discount.
That often means that it could be the day after you have been charged because someone could be arrested one day, charged, kept in the police station, taken to the magistrates’ court the next day, and they’ve barely spoken to a lawyer. Often those who go to police stations are not lawyers in the full sense of the word – they’re unqualified – people who, you know, may have been on a two-day training course or something. So, you know, you shouldn’t expect people to make these really big decisions, particularly in very serious cases where they may be looking at many years in prison at the very, very first hearing. I think it is a worrying kind of development. I think it was much better when the full credit was available up until that first substantive hearing after service of the evidence when they should, in theory at least, have had the opportunity to take proper advice.
The problem with the current system is that many do plead not guilty or give no indication of plea at the very beginning. By the time they get to that hearing where all the evidence has been looked at and so on, the credit may have reduced to 25% or around 20%. So the incentive to plead guilty is much less at that point because the difference between the outcome if they plead guilty, and the outcome if they lose at trial, is a much smaller margin. So I think overall it’s counterproductive.
I think one of the things that would worry me is if we went down the American route where the difference between pleading guilty and not guilty can often be not a third as our kind of maximum discount is in theory, but it can be 90%. Someone could be looking at 40 years or they can plead guilty and get four. You can imagine the pressure in that system for someone who’s innocent to say, “Well, if I’m looking at 40 years or life without parole, and they’re offering me five and I could be out early, etc,” I suspect it’s a much greater problem.
I don’t think there is a huge problem in our system as yet with completely innocent people pleading guilty just to get that discount on sentence. Over my almost 30 years of criminal law, I don’t think that’s the issue. The issue, in my view, is that people may plead guilty when they had a viable legal defence and had got no proper advice about it, or they plead guilty to maybe to a more serious offence than the one that they really should have pleaded guilty to because there hasn’t been time for a qualified lawyer to look at the case properly and to give them some proper legal advice. It has to be said in this day and age there are legal aid lawyers who deal with the great majority of these criminal cases and are so overburdened and so underpaid that they often don’t physically have the time to give that level of attention and the right sort of advice. They certainly don’t in the very early stages.
All of these, these problems kind of come together to create a perfect storm of bad decision making. A bit like with the magistrates’ new sentencing powers and so on, perverse incentives; you end up with people, as I say, who’ve got nothing to lose. I may as well run a trial. “If they’re only going give me 10% discount, then I’ll take my chances.” Then you end up with trials that cause more backlog and all the rest of it.
So I think there should be a clear principle around guilty pleas: that of course someone can choose to plead guilty if they wish at the beginning without waiting for the evidence, and they should be able to do that. But I think that the presumption should be that you’ll get full discount up until the point that you’ve had legal advice from a lawyer based on the evidence. Until that point, I think it’s wrong to reduce the amount of credit that people get when they plead guilty. It should be later on the process
BARRY BAINES:
That brings me naturally to our last topic really, which is that there’s probably never been a greater need for skilled criminal advocates to represent accused people in the courts, and given the downward pressure on legal aid rates and young barristers leaving the profession because they can’t make ends meet. How do you see the future of the criminal bar?
CHRIS DAW:
I think the criminal bar will shrink over time. It has shrunk already in real terms, as it were, if you are looking at the number coming in versus the number going out. The number of pupillages is much smaller in criminal law than it was when I started out almost 30 years ago. I think it will shrink, and that’s partly as a result of those features in terms of funding and it’s partly as a result of reduced workloads. It sounds counterintuitive when there’s this huge backlog, but because of the smaller number of cases actually getting to trial and going through the system, there’s a sort of a reduction in overall work available. There’s also the issue of many, many cases in the Crown Court in particular dealt with now by solicitors or by in-house barristers at the CPS in particular.
So the independent criminal bar has seen leakage of its work in different directions. But I think economic forces are as valid and important in the criminal law as they are in anything else. It’s as simple as this: to the extent that money doesn’t flow to particular kinds of work there will be a reduction in those willing to service that work. The criminal bar have announced a ballot this week effectively about industrial action because the government won’t commit to any particular timetable in terms of addressing some of these huge shortfalls in funding. So we’re going to see potentially criminal barristers going on strike I suspect over the next few months. Something like 94% have already supported some form of action.
Young people I speak to regularly, aspiring lawyers and particularly aspiring barristers. Many of them say we are just put off criminal law because everyone says there’s no money in it and it’s so poorly paid. Now where does that end up? We already have a two-tier system, if not a three-tier system, but we’ll end up with a system which is very similar to the American system: 90% of the population who can’t afford to pay for a lawyer have the public defender in America. Over here they’ll have people on legal aid and those public defenders or legal aid lawyers have so many cases because that’s the only way to make ends meet to take on lots and lots of cases; you’ll be lucky to get to see your lawyer at all.
That’s happened in the past recently, you know, where people have been on trial for murder, and they’ve not met their barrister until the trial. When I started it was unheard of. You would’ve had three or four or five conferences, at least for someone charged with murder. Now, as I say, people are lucky if they see you once and that’s quite extraordinary when you think about it, but that’s the direction of travel.
The direction of travel, I think, is that at one end of the market, defendants will have access to their lawyer for a very small amount of time. The case will be very poorly funded. Getting access to expert witnesses, and the rest, is going to be very difficult because those rates have been cut to the bone, but at the other end of the spectrum, you’re going to have wealthy defences which will have access to the absolute best. There is an elite group of barristers and solicitors for that matter, who only act for those who can afford to pay substantial fees. I sometimes act – often act – in those cases and the difference between the resource that we have as a well-funded, privately funded legal team, defending someone, versus for example, a co-defendant in the same case, who has legal aid funding – there’s absolutely no comparison. It’s a bit like a premier league team playing a fourth division local side from Essex or somewhere. There’s just no comparison in resources. There’s no comparison in the sort of numbers that you can have on the team, and there’s no comparison in the access you have to expert witnesses.
Some of my cases for well known people, people in public eye, we might instruct three or four experts on a given issue because the client can afford it and they want to see what’s the best evidence that they can possibly get. Whereas on legal aid, the same case, the defendant’s lawyers are struggling to get an expert at all, any expert to even look at the case. And when expert evidence is so important, you can imagine the disadvantages that causes to those who can’t afford it, and the huge advantages to those who can. So I think the end result is a smaller criminal bar, probably a large number of people working for very low rates and doing a high volume of work, and a relatively small number working at very high rates, and doing a small amount of work, but being able to do that work in a very different way. That’s the direction of travel. That’s what we see across the Atlantic, and sad to say, that’s the way it seems to be going here.
BARRY BAINES:
Chris, thank you for sharing your views, which I know will be fascinating to all our listeners and especially those with an interest in criminal law or who have a criminological interest. Thank you very much.
CHRIS DAW:
You’re welcome, Barry. And if any of your listeners want to see any more of my content, I know hopefully that some of them will read Justice on Trial, but they can follow me on Twitter @crimlawuk. I also have a YouTube channel which is particularly of interest to students and people who are aspiring lawyers. I have lots of content on there for them. Of course, people are welcome to follow me on LinkedIn where again there’s content of all kinds that I post mostly about criminal justice, but sometimes about other things. So I hope anyone who’s interested will make contact with me via one of those channels.
BARRY BAINES:
Thank you for listening to Baines Law. Listen out for future podcast episodes where we will continue to discuss issues of interest to the legal community. If there is a professional perspective that you would like to share, get in touch via our website@wwwbarrybaines.com. You can also follow us on Twitter @Baineslaw. We look forward to presenting to again very soon on Baines law.
[1] Reference by Her Majesty’s Attorney General pursuant to section 36 of the Criminal Justice Act 1988: Between Henry Long, Albert Bowers and Jessie Cole v The Queen [2020] EWCA Crim 1729 Dame Victoria Sharp P, Holroyde LJ, William Davis J.