Good morning.
This is my first CLSA Conference. For one reason or another, I've had to turn down your kind invitation in previous years. I wanted to be here to reassure you that it's genuinely nothing personal and also to express my gratitude for Rodney's [Rodney Warren, CLSA Director] persistence. It's a pleasure - finally - to be here.
The all too often unincluded part of the criminal justice system is the defence lawyer. In my experience, he or she is almost always as keen to ensure the system works as well as it can, in the public interest, as the state parties or participants are - such as the police, the CPS, the judges, HMCS, prison and probation services, Youth Offending Team.
Your role is to look after your client, to ensure that he or she is treated fairly. That is just not at odds with the aims of the system - it is an inherent part of the system.
We accept, rightly, as a matter of course that in any significant criminal process the defendant or suspect has the right to be represented. That goes without saying.
Without representation, the system becomes weighted against the defendant, and miscarriages of justice occur. The whole system is undermined.
We take this for granted. It is a development of the last thirty years. With police station solicitors and access to representation in court being a given - we need to consider whether that change over the last 30 years has been adequately reflected both in pre-court and court processes.
We want and we need a system, which is demonstrably fair and which carries the confidence of the wider community that it adequately serves - in terms of determination of guilt or innocence and in terms of justice - with people brought before it. In a way that gives confidence to the public.
My focus today will be:
The criminal justice system deals with offences from:
Of course, these categories interweave and overlap.
In all categories we must ensure that the innocent go free and the guilty are convicted. That is the backbone of any justice system.
But we increasingly recognise that one, single template for the disposal of these wide range of cases within the criminal justice system is neither sensible, nor the best way to retain public confidence.
The TV licence cases do not need to be dealt with in open court.
Some antisocial behaviour and other more minor crimes - such as some cases of criminal damage, theft or public order offences - do not need to come to court where the defendant admits guilt and is willing to accept a condition such as a fine or treatment or unpaid work.
There need to be safeguards - but the ability to deal with these category of cases in a speedy and clear way may well be both more effective in dealing with the problem, and carry more confidence with the community.
A long, drawn-out process which will at the end of that process treat the offence as minor, and, quite possibly, impose the same penalty as the defendant was willing to accept at the outset will not carry confidence.
Where diversion is either not appropriate or not possible, and we are not dealing with the bulk cases such as the TV licence, then there needs to be a disposal of the case, either by a guilty plea or a trial, in court.
At every level of disposal we need to address whether the process can be made faster without of course sacrificing fairness.
For those cases going through the court process, we need to ensure that where agreement can be reached on the issues it should be, out of court.
Where there is to be a guilty plea, it should be as early as reasonably possible.
Where there is a trial it should focus on the issues that are in reality in dispute.
The justice system expects a proportionate response to problems when it judges the behaviour of society, whether it be in a criminal context such as self-defence, or a civil context such as in the law of negligence.
The justice system in the way it deals with cases should equally have a proportionate response. There needs to be an obvious connection between the seriousness and the complexity of the case, and the time it takes both to come to court, and then, if there is a trial, the time it takes in court.
To achieve this there needs to be well-focused prosecutions. There needs to be proactive case management by the bench - in the magistrates' court, and the crown court.
And there needs to be clear incentives on the defence team to deal as much as possible outside court, and reserve for court only the real issues.
That means as much early preparation as possible.
How we achieve this needs to be worked up in conjunction with the professions.
A vital part of this is to ensure there are proper rewards for that work. That inevitably depends on the results of the Carter review
I will return later in the speech to legal aid.
But, let me reassure: I don't intend our enthusiasm for reform to leave the professions behind. Your voice is an important one - a vital one - in shaping the reforms and the debate. Proposals that we make to benefit the public should not incur disproportionate cost for the professions.
As criminal solicitors, you are closer to the 'coal face' than most. You are responsible for dealing with and advising people in real distress, both before and after charges are laid. Your role often represents the first time defendants accused of a crime have access to legal advice, and these may be defendants with varying perceptions of their guilt or innocence.
I know that yours which is in part of the system you are in is a difficult job. Being a duty solicitor on call on a dark and stormy night is a job envied by few, and the day to day strain of supporting cases at short notice and dealing with difficult clients puts you very very firmly on the front line day in day out in the firing line of the media and the public.
Your job inevitably varies according to where in the country you practice. Case fees will mean different things for a different case mix. Big trials are necessarily drawn to the big cities, which of course makes for a different sort of job for those working in rural areas or in small towns- not to mention the increased time spent travelling between clients spread over a wide geographical area.
I do recognise and I do most profoundly value the work you do. Part of the reason I am here today is to express my appreciation for the work you do.
This is why I have made some recent announcements to encourage solicitors to progress onto - and up - the judicial ladder.
I want to broaden the pool of people who apply for judicial appointment.
I want to see a more diverse judiciary; more women, more black and minority
ethnic candidates. The Judicial Appointments Commission will have a key
role in this area - but I want to act now.
I want to see more solicitors looking at a judicial ladder. There is
a substantial disparity between the number of solicitors who are eligible
and those that actually apply. Solicitors that do apply tend to apply
for more junior posts.
There is an assumption - among some solicitors - that being a judge is not just for 'other people' but more specifically is for 'other barristers'. This is wrong. Experience as an advocate is not a necessary requirement for judicial office. Solicitors are a huge untapped pool of talent for the judiciary.
I announced earlier this month a programme of work in partnership with the Law Society to promote judicial appointment for solicitors. This includes:
There's now a real incentive to firms to let their fee earners explore judicial office. I hope some of you here will consider this route - and I hope you will all take this message back to your firms.
Let me say a few words about legal aid.
And let me get straight to the point.
Legal Aid is a cornerstone of a fair and decent society. It ensures that access to justice is available to all without discrimination or prejudice.
But, currently, legal aid is not providing value for money for the public.
The current predictions are that the legal aid budget will overspend by £130 million this year, and by similar amounts in subsequent years.
The legal aid budget has risen from £1.5 billion in 1997 to £2.1 billion today.
More tellingly, criminal legal aid costs have risen by 37 per cent, while civil legal aid costs - excluding asylum - have fallen by 24 per cent since 1997. Some cases - of necessity - are long and complex. But this represents a 20% increase in payments in real terms.
And half of all legal aid spending in the Crown Court goes on just one percent of cases, with £48 million spent on thirteen cases alone.
It is obvious that too much is spent on these high cost cases. And the overall growth in expenditure is not sustainable in the short- or long-term.
This is why I published 'A Fairer Deal for Legal Aid': we need to provide fair justice at a fair price.
I know not everyone will agree - but solicitors and barristers alike I believe understand that the legal aid status quo could not be sustained. For some too little is paid; for some too much is paid. Many practitioners have readily committed their time, energy and expertise to help shape reforms to legal aid. There has been - and will be - discussion and, on occasion, disagreement. But I am convinced that constructive engagement is vital in finding the way forward.
One of the key areas is the balance between civil and criminal.
Of course, legal aid for criminal defendants is critical - the demands of a fair and decent society require that all defendants receive competent and proportionate advice and representation. But the costs must be proportionate. At present they are not.
The key is to reduce the expenditure on the very high cost criminal cases, so that the whole legal aid system can be re-balanced. It's not an option to indefinitely squeeze money out of civil and family legal aid to fund the rising criminal spend.
We need to look closely at how the we manage trials.
For example, we should look at the exchange of material between prosecution and defence. A common cost driver in high cost cases is the large quantity of unused material passed from the prosecution to defence lawyers.
Blanket disclosure is not necessary. Prosecutors who err on the side of caution have a significant impact on trial lengths and legal aid costs.
Defence lawyers are legitimately incentivised to trawl though all the unused material instead of being able to concentrate on what actually assists the defendant or undermines the prosecution case.
In the new Guidelines for disclosure the Attorney General asserted that disclosure must not be "an open ended trawl of unused material." A comprehensive Disclosure Manual has been produced for investigators and prosecutors with specific instructions for the management of these large-scale cases.
These measures should help reduce spiraling legal aid costs. But we need to do more to build on and refine the way that high cost cases are managed.
A Very High Cost Case Review Board had its first meeting this month. The Board is looking at the length of time taken to try these cases, and ways that the control and management of the cases could be improved.
And Lord Carter, will produce a plan - in early 2006 - by 31 January - to deliver a modern procurement system. A system that ensures maximum value for money and retains the quality and fairness of the justice system.
Procurement arrangements should:
Lord Carter will review the current programme of moving to fixed or graduated fees, and the proposals for competitive tendering for solicitors in London. I am aware of the strong opposition to price competitive tendering in London.
He will also review the criminal graduated fee scheme and the very high cost cases scheme.
The willingness of the professions to support and engage with Lord Carter's review is vital. I would like to express my profound gratitude to everyone who has done so.
This is an important piece of work - it's a key part of the process of reform. It will ensure justice is still done. But is done more swiftly and more efficiently.
I have spoken so far about what goes on in court. As part of the process of reform I want to broaden the pool of people who apply for judicial appointment. I want to see a more diverse judiciary; more women, more black and minority ethnic candidates. The Judicial Appointments Commission will have a key role in this area - but I want to act now to increase the pool.
I want to see more solicitors looking at a judicial ladder. There is a substantial disparity between the number of solicitors who are eligible and those that actually apply. Solicitors that do apply for more junior posts.
There is an assumption - among some solicitors - that being a judge is not for 'other people' but more specifically is for 'other barristers'. This is wrong. Experience as an advocate is not a necessary requirement for judicial office. Solicitors are a huge untapped pool of talent for the judiciary who have proved over the years, unwilling to apply.
I announced earlier this month a programme of work in partnership with the Law Society to promote judicial appointment for solicitors. This includes:
There's now a real incentive to firms to let their fee earners explore judicial office. I hope some of you here will consider this route - and I hope you will all take this message back to your firms.
We need to do more for victims and witnesses.
We are improving the facilities. Now vulnerable and intimidated witnesses can give evidence through video links - without even stepping into court.
We have already met our 2006 target for 75% coverage in magistrates' courts for video link and this continues to increase across the estate.
We have invested over £3 million this year to improve separate facilities in our criminal courts for witnesses - both Prosecution and Defence. We want to ensure that witnesses coming to our courts can feel safe and comfortable.
By the end of the year all criminal courts will have Witness Liaison Officers who will be responsible for all witness related matters at that court.
But I want to go further.
Following our manifesto pledge, we have published plans for specialist advocates in murder and manslaughter cases.
They will give victims a voice. They will be able to tell the judge how they feel and how their loss has affected their lives. The advocate would also be able to offer help and advice in the pre-trial and trial stages so that the family is informed about what happens, when and why.
And there is so much more under way, including a Commissioner for victims and a Victims Code both in place by next year.
Courts are also innovating in a number of other areas. We now have antisocial behaviour response courts in all parts of the country. And in December we are launching a pilot for a dedicated drug court, to handle the review of drug treatment orders given to offenders who carry out numerous low-level crimes to fund their drug habit. The people is the Community Justice Centre is in operation in Liverpool and we are looking at how some of the ideas from the Liverpool court can be brought into the mainstream system - working with Salford Magistrates' Court, in particular, to do this.
People's sense of insecurity is growing. I believe that it is vital that the states response to crime is credible and effective. The criminal justice system, I believe, must demonstrate that it is good at what it does. In too many areas it does not do that at the moment. The desired outcome is a system which sees:
We need to build a system that recognises one size does not fit all. I have no doubt those who work the system share the analysis and aspiration.
Join us to make the system as good as it can be.
We recognise that that change depends on a properly rewarded solicitors profession providing quality and choice.
The challenge is now to remain and increase the momentum and create a truly 21st century criminal justice system.