Home > Law > Branson and the Broken Justice System

Branson and the Broken Justice System

JusticeI imagine that most people have heard by now of Richard Branson’s intention to create a £100,000 account to fund the defence of the parents of Madeleine McCann. If not the linked article is worth checking out, because it really throws into relief some of the issues I am going to try to deal with. I am not interested in Mr. Branson’s motives – I will assume that they are altruistic and not merely publicity-seeking, but it is irrelevent. I also have no desire to second-guess the guilt or innocence of the McCanns. I feel that such public guesswork tends to do more harm than good, at least where there is no compelling evidence (like a confession).

What concerns me is just how starkly the criminal justice system is shown for what it is here: The creation of the fund is a tacit admission that to get decent representation against criminal charges, you need money. Lots of it. The McCanns were planning to sell their house to raise the money. Many people either cannot do that, because they do not own a house, or will not because it will leave them with nothing. They will instead take the free representation guaranteed to them.

Ah, the free representation. The modern society’s nod towards equality before the law. I would never denegrate those solicitors and barristers who do legal aid work, but many of them are unexperienced in the areas in which they take such cases, and their ability and experience varies. Pay for legal aid work is low and so it tends to attract less experienced and skilled lawyers and to sit at the bottom of long priority lists. All of this is known: It is common knowledge, and unquestioned, that if you are able to pay you will get better representation, and the more you pay the better you will get. Better lawyers are able to charge more – that’s the way of the free market.

But like it or not, the quality of representation has a massive impact on your chances of winning a case. Of course, the bare facts and the law are very important, but having a lawyer capable of making the right arguments and putting in the time to do the research can often be crucial. Where there is an inequlity of financial resources available on different sides, the richer gains a distinct advantage. This turns justice into a free market commodity – something to be bought according to the income at your disposal. To some people this might seem acceptable, but such people frighten me. Unless we are equal before the law, with justice blind to money and social circumstance, then really you cannot have the kind of liberal democracy in which we claim to believe. The ‘justice’ system unwittingly becomes a tool for keeping the poor permanently in danger of having their liberty stripped away.

It is imperative to end the correlation between ability to pay and success in defending one’s case. (In fact, the point extends to all kinds of areas of law, but here I am just dealing with criminal, where it is most acute.) Again, some will argue that this can never happen because lawyers need pay incentives to do a better job. To them I say that you can have your cake and eat it. You can still have a career structure with pay increasing as lawyers are assigned to more difficult levels of cases (the simplest structure would be magistrates court, Crown court, appeal court, House of Lords), and bad lawyers will still be weeded out because people will no longer go to them. The crucial difference would be that at each level of the case, you would have lawyers at the same grade and paid the same on each side, levelling the playing field. The state would stump up the cost originally, and recoup it from the accused party after a conviction, as far as they are able to pay.

Of course, key to all of this is pay setting, and that will outrage some. It will cap the possible wages of criminal lawyers, although the cap should of course be generous to retain lawyers in the area. It might smack of socialism to some, but surely if there is one area to be socialised and made equally available to all, it is justice? The McCanns are lucky to to have found (through the publicity the case has generated) a backer willing to give them a fighting chance. Many others do not have that fortune. Let’s stop leaving justice to luck and class.

Categories: Law
  1. October 15, 2007 at 12:16 am

    What is striking for me is that I didn’t even know the McCann’s had been formally charged. That is how solidly the Press hype turned me off the story. Good article and good point about the criminal justice system; one well worth reiterating to those characters who portray our society as meritocratic.

  2. October 15, 2007 at 12:39 am

    Hey Peter! Welcome to TCF! Great to see another law blogger here.

    When reading your article, I’m reminded of a debate going on here, which is similar, about judicial pay. We’re having a debate (mostly among academics and policy wonks familiar with it, but still) here about how much to pay our judges. Right now, Federal District Judges’ pay is tied to the pay of Congresspeople, which is around 165,200. The problem we’re having is that it’s not anything competitive with what you can make in the private sector. Sure, the public sector can give you a life appointment and great benefits, but for judges with children and families, it’s very hard to do. We’re seeing a pretty new phenomena here in the U.S., where District Court Judges, and even some Judges on the Circuit Courts of Appeal are actually *resigning* to go into the private sector. While many lawyers have privately declined appointments for many years (no statistics obviously, on how many people decline to be appointed by the President), it’s been new that sitting judges have resigned, and many of them have cited financial reasons and then moved to much more lucrative private practice jobs.

    While 165K is a lot of money, it’s not a whole lot of money when you consider that Supreme Court Clerks, (the !@#$ing clerks) have been getting bonuses at private law firms of up to 250K, just for signing up.

  3. October 15, 2007 at 8:07 am

    Interesting point on the nature of justice. Corporate crime does over thirteen times more economic damage than burglaries, but where are the prosecutions?

    Tax evasion in Britain costs us £20 billion a year, while benefit fraud costs us £3 billion, yet again the press and justice free market create inequalities.

    On a local level in my town of Norwich there is a local lawyer and he is personally leading a case against the council over St. Andrew’s hall. The hall holds children’s choirs and local drama production, but the council can’t afford the case so it’s having to pay for sound insulation. Ridiculous.

  4. Phil Patterson
    October 15, 2007 at 9:14 pm

    I’m not sure I agree with the thrust of this. If you are charged with murder (or kidnapping) the Criminal Defence Service who provide legal aid will ensure you are represented by a QC in court. Criminal defence barristers have no special powers over juries and cannot create evidence. Admittedly spending thousands of pounds could buy you a huge team of solicitors to pour over evidence but they cannot find what is not there. As to fears that a legal aid solicitor may be inadequate, this may occasionally be true, however, even the worst criminal firm sharpens up their act when they have a top silk overseeing their work.

  5. October 16, 2007 at 12:21 am

    I think the point was that such cases are not just about evidence. Concealed within the niceties of law are also loopholes which teams of excellent lawyers are more likely to find than someone working for a few hours on Criminal Defence Service pay.

  6. Gavin
    October 16, 2007 at 2:08 am

    The point could be made that if you are truly inoccent, then there is no need for highly paid representation. Unfortunately, innocence may not always be obvious.Also it jury cases, the jury can find it very hard to follow points of law and can quite easily make there descions on factors that have very little to do with the law. In such situations your best defence is a lawyer who is persuavise , a good public speaker and has experince. These attributes in the current “market” wont come cheap. Unfortuantly this those seem to lead to a ‘justice to the highest bidder’ situation. And as pointed out, a greater knowledge of the law again can be an expensive attribute. Unfortuanetly as long as their are those willing to pay the price, this situation isnt likely to be resolved. (really sorry about spelling)

  7. October 16, 2007 at 6:51 am

    lol. That’s alright Gav, you’re improving slightly. Try to use Mozilla Firefox; it has an inbuilt spell-checker.

  8. October 16, 2007 at 3:03 pm

    I would have to disagree with you, Phil.

    As Gavin said, knowing the law isn’t enough Often the trick is to persuade others that you know the law, and that comes through essentially showmanship. With juries in particular, you have to make them [i]like[/i] you. You might know the law, but if the jury doesn’t like you, you won’t win.

  9. Phil Patterson
    October 17, 2007 at 10:39 am

    There is some merit in all of the above but I fear it is considerably overstated. Jeff’s point about the performance before a jury is true (if perhaps not as significant a factor as Hollywood/Kavanagh QC would have us believe. The point is that the person who performs in front of a jury is the barrister bound by the ‘cab-rank rule’ to accept whichever instructions are given to him. Ian Huntley’s legal aid got him Stephen Coward QC (one of the best of his generation). The Criminal Defence Service will always provide a QC for a murder case and so there is no fear that the McCanns would get an inferior barrister whether they spent nothing or a million pounds on their defence. In the USA the position is much different and I suspect that many of the above arguments apply over there but not in the UK.

  10. Phil Patterson
    October 24, 2007 at 9:17 pm

    Ok forgive me I’m not sure how to access the post you referred to there. I am not wholly against finding ways to stop the few lucky QCs taking many thousands out of the legal aid pot each year. One slight point I feel must be made, however. The criminal bar (as an industry) is in direct competition with commercial law firms. The pay in such firms has now reached an eye-watering level. As a consequence when people are coming out of law school they are offered £40K p.a rising to £100K in 2/3 years by a large number of firms in the city. A criminal lawyer will do well to earn £40K at any stage in their career. Today fewer and fewer of the best qualified law graduates want to do crime. The effect of this is that in the one section of the legal industry where it is vitally important for society to have good, able lawyers, the standard of lawyer is dropping sharply. This is a view widely held in the industry and many fear it could lead to a rise in the number of miscarriages of justice. I appreciate this looks like lawyers lobbying for more money but its something to consider.

  11. Pete
    October 29, 2007 at 2:51 pm

    It’s worth remembering that the cab-rank rule only requires a barrister to accept people who can pay the appropriate fee: “a self-employed barrister is not obliged to accept instructions…other than at a fee which is proper having regard to…his ability experience and seniority” (Code of Conduct of the English Bar, Rule 604(b)(ii))

    The rule prevents barristers from avoiding unpopular clients, but it does not prevent more money buying more experienced barristers.

  12. Phil Patterson
    November 3, 2007 at 7:48 pm

    True, however, privately funded cases are so rare that no barrister could ever survive on only privately-funded criminal work. The CDS (see above) index their fees for the work to reflect the section of the Code of Conduct above. Long, serious cases produce a much higher fee than lower-level issues. As a result the sort of cases which require better barristers already attract a muh higher fee. If there is any injustice it is that the standard of representation, particularly on the part of the CPS is very poor for the low-tariff offences.

  1. October 15, 2007 at 12:58 pm
  2. October 23, 2007 at 11:37 pm

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