Independence of duty solicitors must be made clear

The Law Society and Bar Council have pledged to do more to ensure defendants are aware of the independence of duty solicitors following publication of the Lammy Review last week.

Labour MP David Lammy’s independent review into the treatment of and outcomes for BAME individuals in the criminal justice system highlighted a “trust deficit” between BAME defendants and their solicitors.

It linked evidence that BAME defendants were consistently less likely to enter guilty pleas compared to their white counterparts with a reported mistrust of duty solicitors.

President of the Law Society Joe Egan said: “Criminal defence solicitors have a duty always to act in their client’s best interests. We will look at what more we can do to ensure all defendants are aware that their solicitor is completely independent.”

Meanwhile, chair of the Bar Council’s Equality and Diversity and Social Mobility Committee Robin Allen QC said: “We will continue to play our part in ensuring defendants and their families have the information they need to understand their rights and options.”

A guilty plea at the first stage of court proceedings can lead to a reduction of up to one-third from prison sentences, or other leniencies not open to those that are found guilty after entering a not guilty plea.

Lammy’s review infers that not entering guilty pleas at the earliest stages of court proceedings is a contributing factor in the disproportionate number of BAME individuals in custody.

As such, the review recommended that the Home Office, Ministry of Justice, and Legal Aid Agency work with Chancery Lane and the Bar to “experiment with different approaches to explaining legal rights and options to defendants”.

It pointed to a possible role for community intermediaries to help explain defendant’s rights when first received in custody, or giving defendants a choice of duty solicitors.

The review cited evidence from focus groups which found that defendants questioned the motives of the legal aid solicitors, and viewed them as part of ‘the system’ rather than independent and capable of protecting their interests.

It called on organisations like the Law Society and Bar Council to experiment with new approaches and mark the effect they have on the proportion of guilty or not guilt pleas. “The results should be published as part of a public consultation on this issue,” it said.

Egan flagged the progress made by the Law Society in increasing diversity so that solicitors from BAME backgrounds now make up 14.1 per cent of the profession, but admitted there was work to do “at more senior levels”.

“We are helping firms to adopt fair recruitment and development procedures, as well as supporting them to recognise unconscious bias,” he added.

Corker Binning criminal defence partner Robert Brown said the review had identified a “lack of confidence in the criminal justice system” but queried the viability of offering defendants a choice of duty solicitor or access to barristers at an earlier stage.

“Due to the extreme public funding cuts that are currently being undertaken by the Legal Aid Agency, these recommendations are completely unachievable,” he said.

Former president of the LCCSA and a partner at BSB Solicitors Jonathan Black is unconvinced that mistrust is the reason for the disproportionate level of not guilty pleas by BAME defendants.

However, he welcomed the review, saying “it was unbelievable that it's taken 30 years to have these put into a formal document”.

He warned solicitors reading the review not to allow “discrete elements”, such as the degree to which it is possible to experiment with new approaches to appointing legal aid lawyers, to “overshadow the main findings”.

Black said he hoped the government would implement the recommendations in the review, including meeting targets for judicial diversity by 2025.

However, he said: “I’m not convinced that the JAC’s current recruitment process is geared towards getting the right people on board because the test is very academic and not based on experience. In the past it was far more based on experience.”

He said headhunting members of the profession who are appropriate for judicial roles might be a better approach to finding suitable BAME candidates.

Allen QC said: “Justice requires that good judges from a comprehensively diverse background are appointed.

“That is why the Bar Council’s immediate focus is on developing a foundation course in judgecraft – to be undertaken pre-application – that will demystify the skills needed for judicial appointment and increase the confidence, particularly of ethnic minorities, women, and those from a non-traditional background, when applying.”

Hannah Gannagé-Stewart, reporter

hannah.gannage-stewart@solicitorsjournal.co.uk