Access to Criminal Justice

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Access to Criminal Justice

Edited by

Richard Young

and

David Wall

Foreword by The Right Hon. Sir Thomas Bingham

B L A C K S T O N E

PRESS L I M I T E D

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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

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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

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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

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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

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