Seventeen years ago, as a young barrister, I was lucky enough to represent the South Eastern Circuit on The Florida Advocacy Course. Along with three other juniors, I made my way to Gainesville, Fl. and spent a week conducting mock trials and advocacy exercises alongside over one hundred public defenders and states attorneys.
There are many stories that arise from that week. Almost all of them positive, with some of them…probably untellable, even now. It was a unique experience and undoubtedly the most enjoyable way to meet my New Practitioners CPD requirements. Seven days of fairly effortless fun for me and my British-based colleagues, and an opportunity to make connections in the US that stand to this day.
But above all else what those seven days proved was enormous enlightenment. And not, I am afraid to say, enlightenment that fills me with confidence for the future of criminal practice in England and Wales.
Before boarding the plane I knew little of the US criminal justice system. Shamefully, even that came from TV and film and John Grisham novels. I had done no research; in my defence, I had a burgeoning junior practice which took up essentially every hour of every day. Or, in other words, I was just another junior barrister doing exactly what we all do. And so I was extremely surprised, upon arrival, to learn how criminal law really works across the pond.
I take no pleasure in providing too negative a critique of that we found on the first day and of what was confirmed as the course progressed. Suffice it to say, the ability of those who were supposed to be our ‘peers’ – of the state attorneys and the public defenders, all of whom were senior in terms of years in practice than me or the other three barristers – was not what we would have demanded of even the greenest of criminal practitioners back home.
I should make it clear that this gulf – and it was a gulf – was not the result of some innate difference in natural talent. Certainly there was some of that. But in the main it came from the stark contrast between the American system and criminal justice in England and Wales.
Back when I took this trip the cuts to our own criminal justice system had already begun to accelerate. But they had not yet had the impact we see today. And so, at the time I was making this comparison, it was from a point where our home criminal practice was still close to its best.
Our US colleagues, unfortunately, could make no such claim. They were already operating in a system where both the prosecution and the defence was, in most cases, provided by the State. And so they were operating in a system where lawyers on both sides were under-funded, under-resourced, under-paid, under-motivated and – to cap off that fatal combination – fundamentally over-burdened.
Sound like anywhere we know in 2021?
The result of the differences between the two systems was unmistakable.
The Brits, self-employed and reasonably paid, were used to having conduct of their cases from an early stage. We might not ultimately be trial counsel on every case we prepped, but we always assumed we would be. And so we would advise and prepare and draft and make everything case ready, all with the guaranteed sterling support of properly funded solicitors. We would get to court trial ready, with one case to defend or to prosecute, having had ample time to properly prepare our client and ensure that if a plea were to be entered, it would generally have been entered at the right time, i.e. the earliest opportunity.
Read through that again now, in 2021. Read through what we used to be able to do in even publicly-funded work; the world-class, private-level service we used to provide. That system was in place to ensure that even the poorest amongst us had access to the very best the criminal justice system had to offer.
Now compare that to the American system we encountered. Because as I said above, the gulf in ability was not about talent. It came because of the inequitable, fundamentally flawed US system. Unlike us, our US counterparts did not have the luxury of self-employment and decent payment. Those two factors which allowed us to focus so intently on each and every case were denied to them, because as state employees they had to deal with whatever caseload they were given with nothing like the resources required to do so properly. This alone made it impossible for them to properly prepare their cases before court, and nor could they have the confidence that some competent colleague had prepared it for them; if anything, they could be sure that the opposite was true.
The experience of our American peers, then – defence and prosecution – was turning up to court under-prepared and over-burdened with far too many cases on any given day. The result of this is inevitable: poor representation and so a lack of confidence from a client who – when offered the chance to avoid the risk of conviction by pleading to a lesser offence that would guarantee a tenth of the sentence (the result of the still-bizarre US practice of plea bargaining) – would jump at that lifeline, guilt or innocence be damned.
With this being the common outcome, where is the trial experience going to come from? How can we expect the same level of expertise and skill from lawyers who had collectively, amongst thirty of them, conducted fewer jury trials than I alone had personally defended at only three years call?
(For those doubting that statistic, it’s actually 100% accurate. We did the count!)
Seventeen years ago, then, I flew home with absolute confidence in our criminal justice system. Sure, it wasn’t perfect. But just look at the alternative.
Well, it seems to me that someone did look at the alternative. And that someone shamefully saw a system to which they aspired. This is why England and Wales are closer to ‘US justice’ in 2021 than we have ever been.
Some would argue otherwise, of course. The Public Defender Service exists, they would say, but it has yet to take off. Most accused are still defended by the self-employed bar and by independent solicitors, they would posit. And that is true. But it is also misleading. Almost two decades of cuts have seen to it that in every other respect, those who cannot afford to pay privately for their defence now face a level of representation that – whilst still ahead of what the poorest would expect in the US – is now running America far too close. It is for this reason that I personally work so closely with private criminal defence specialists Ewing Law; because only for privately paying clients are the necessary resources still available to ‘defend at all costs’.
With fees cut to the bone, publicly funded defence lawyers – both solicitors and barristers – are now working on a shoestring. Where possible they will still provide the very best representation they can; thankfully there are many still left from the ‘good days’ who will not allow themselves to do their job any other way. But pure determination and an understanding of professionalism can only carry them so far. With the threat of insolvency or bankruptcy hanging over far too many heads, how long can dedicated practitioners’ drive to defend be expected to overcome the financial reality where – for publicity-funded work – only ‘stack em high’, ‘volume over quality’ can pay the bills?
And what about when those who knew the ‘good days’ are gone? When all that’s left is the minuscule amount of newer recruits, lawyers who have only seen the ‘bad times’ and the ‘bad ways’?
The direction of travel could not be clearer. Publicly-funded firms are disappearing at a shocking rate and, as sad as it is to admit this, the two-tier system already exists. All because some faceless mandarin with zero experience of a courtroom decided to emulate the US ethos of ‘Justice for the Rich and Just This for Everyone Else’.
Is it too late to stop this rot? Who knows. But while some of us still remember the ‘good days’, should we not at least try?
Tony Wyatt, Associate Counsel at Ewing Law and best-selling crime author under the pseudonym Tony Kent