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Innocents will suffer as legal cuts put paid to due process

16 January 2014

Author: Dr Daniel Newman, RA, Sustainable Places Research Institute

Original published on The Conversation on the 10 January 2014

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.

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.

Read the full article on The Conversation.