Access to Criminal Justice

Full text


Access to Criminal Justice

Edited by

Richard Young


David Wall

Foreword by The Right Hon. Sir Thomas Bingham




Foreword by The Right Hon. Sir Thomas Bingham v

Preface xi

List of Contributors xiii

1 Criminal Justice, Legal Aid, and the Defence of Liberty —

Richard Young and David Wall 1 1 Criminal legal aid in England and Wales — II Access to criminal justice and the defence of liberty — in The role of legal aid in society — IV The administration of criminal legal aid — V Controlling the costs of legal aid — VI The impact of legal aid reforms: Structural constraints on access to justice — VII Conclusion

2 The Development of Criminal Legal Aid in England and Wales — Tamara Goriely 26

I The mid-eighteenth century: jury trial without lawyers — II 1750-1850: increasing professionalisation — III The criminal trial at the end of the nineteenth century — IV The Poor Prisoners' Defence Act 1903 — V Criminal legal aid in the 1920s — VI The Poor Prisoners' Defence Act 1930 — VII The Second World War, reconstruction and the Rushcliffe Committee—VIE Initial enthusiasm meets economic reality: Rushcliffe's slow implementation — IX The Widgery Committee — X 1967-82: fifteen years of expansion within magistrates' courts — XI The criminal legal aid firm — XII The content of criminal legal aid work — XIII The Government's reaction — XTV 1984 onwards — XV Conclusion


3 Legal Aid, Human Rights and Criminal Justice —

Andrew Ashworth 55

I Why legal aid? — II The European Convention on Human Rights — III The European Convention and the English system — IV Criminal justice beyond the European Convention — V Conclusions

4 Criminal Legal Aid: Does Defending Liberty Undermine

Citizenship? — Francis Regan 70

I Introduction — II Legal aid and citizenship — III Legal mobilisation — IV Interpreting legal resources — V National legal aid in Australia — VI Conclusion

5 At the Heart of the Legal: The Role of Legal Aid in

Legitimating Criminal Justice — Mel Cousins 98

I Introduction — II The law and the legal — III Civil and criminal legal aid — IV The role of the criminal justice system — V The role of criminal legal aid — VI Criminal legal aid in the Republic of Ireland — VII The structure of the Irish scheme — VIII Alternative forms of 'access to justice'? — IX Conclusion

6 Keyholders to Criminal Justice?: Solicitors and

Applications for Criminal Legal Aid — David Wall 114

I Recent policy developments in criminal legal aid — II Applications for criminal legal aid — III Solicitors' application practices — IV Explaining why application behaviour did not change — V Assessing the solicitors' key holding abilities — VI What happens when legal aid is refused? — VII Conclusion

7 Will Widgery Do?: Court Clerks, Discretion, and the

Determination of Legal Aid Applications — Richard Young 137

I Historical and political background — II The legal framework — III Methodological aspects of studying discretion — IV The decision-making behaviour of court clerks — V Conclusion


8 Administrative Justice Within the Legal Aid Board: Reviews by Caseworkers and Area Committees of Refusals

of Criminal Legal Aid Applications — Adrian Wood 164 I Introduction — II The political and historical context of the review mechanism — III Pattern of applications — IV Professional domination of the system — V The dynamics of the caseworker/area committee relationship — VI Evaluating Area Office decision-making — VII Conclusion

9 Controlling Lawyers' Costs Through Standard Fees: An

Economic Analysis — Alastair Gray, Paul Fenn and Neil Rickman 192 I Introduction — II Standard fees and economic theory — III Simulation study — IV Standard fees and solicitor behaviour — V Conclusions

10 Criminal Legal Aid Expenditure: Supplier or System

Driven? The Case of Scotland — Elaine Samuel 217 I Introduction — II Supplier-induced demand and criminal legal aid — III The criminal justice system and legal aid in Scotland — IV Criminal legal aid as system driven: late changes of plea — V Custody courts — VI Assistance by way of representation — VII Intermediate diets — VIII Conclusion

11 Legal Firms, Lawyers' Attitudes and Criminal Legal Aid

in Scotland — Karen Kerner 238 I Introduction — II The research samples — III Who does legal aid work in Scotland? — IV Defence agents' opinions and attitudes — V Changes desired and implemented in Scottish criminal legal aid — VI Conclusion

12 Access to Justice in the Police Station: An Elusive

Dream? — Andrew Sanders 254 I Introduction: the theoretical and historical background — II Securing legal advice — III Influences on request rates — IV The nature and quality of legal advice and assistance — V Addressing the quality issue — VI Conclusion 13 The Reform of Criminal Legal Aid — Lee Bridges 276 I A cautionary tale — II Ideology versus pragmatic reform — the Green Paper — Ill From an open to a controlled market for legal services — IV Conclusion


14 Criminal Legal Aid Reforms and the Restructuring of

Legal Professionalism — Hilary Sommerlad 292 I Introduction — II The classical paradigm of legal professionalism and its erosion — III The impact of the new managerialism upon professional autonomy — IV Conclusion

15 Alternatives to Prosecution: Access to, or Exits from,

Criminal Justice? — Adam Crawford 313 I Introduction — II Diversion from criminal prosecution: the 'alternatives' — III The role of state-funded legal aid — IV The involvement of lawyers — V The role of the Crown Prosecution Service — VI The voice of the victim — VII The problem of 'net widening' — VIII Exits from, or access to, justice? — IX Managerialist and normative aims: an unresolvable conflict? — X Conclusion

Bibliography 345 Index 367