I recently received a call from Police. Someone was being arrested and charged with significant sexual offending. I felt the weight on my chest knowing the enormous stress and long hours that lay ahead if I were to represent them; the pressure that would rest on my shoulders as they placed their future in my hands.
I went down to the cells at the station to see them. As they spoke I realised I could not act as I was potentially conflicted, as I may know a witness. I approached 12 other defence lawyers, before I could find one, prepared to take the case on. The message was almost the same, "I have had enough of doing this, it is not worth it, I want my life back."
Just how the state really views lawyers who undertake legal aid work can be seen from the following story. Sometime around 2017 the Ministry of Justice prepared a paper for Treasury requesting an increase in legal aid rates, which had been effectively frozen for close on 15 years. The gulf between what lawyers receive for private work compared with legal aid rates was growing wider and wider and it was time to address the gap. I am advised that this was scotched, the prime reason being that the bean-counters felt that criminal trial lawyers' sense of professional obligation and social conscience, meant that they would still keep "some skin in the legal aid scheme". This view is corrosive of the wellbeing of practitioners, who have to work increasingly long hours to make ends meet, and explains the policy behind the systemic underfunding of the legal aid scheme.
Mechanics are now billing labour at between $100 - $140 per hour. Further, when a mechanic finishes work, it does not follow them home and keep them awake in the small hours. The new rules in relation to fast tracking pre-recorded evidence from complainants, and the increasing burdens placed on defence counsel combined with the low rates of remuneration mean that senior counsel are now leaving criminal defence work.
I was reminded of this when I attended a "Sexual Violence Legislation Forum" run by the Law Society. A Judge and a giggling academic gave their prepared talks about the changes and how they would help "victims." Bullet points and graphs were displayed. Despite sending in several questions about how this would impact trial processes in reality, these issues were ignored.
Again Parliament, has foisted wholesale changes upon the criminal trial process, with no understanding of how the changes will impact. These changes will see criminal barristers who represent defendants in sexual violences cases doing a whole lot of extra work with practically no increase in fees. While I and other more experienced practitioners told the Select Committee how their proposals would be corrosive to fair trial rights, it was as if MPs conducted open heart surgery on the failing body of justice while having their their ears blocked and eyes shut as to the reality of how criminal trials would be impacted in the criminal courts. You can’t keep introducing extra processes with extra work for barristers without proper funding.
Since the loss of depositions, and the log-jam in cases that this change created, delay from arrest, charge and trial has ballooned. Delay has become even worse post-Covid. A person may be charged today and it will be well over a year before their case actually comes to trial.
In sexual violence cases in order to avoid the stress to 'complainants', which the system now refers to as "victims," despite the presumption of innocence, their evidence must be pre-recorded, often a year in advance, very early in proceedings. While the case itself might be listed for trial in a year’s time, the barrister will have to prepare the case again when it comes to trial for no extra money, but at the front end of the case, they have to get ready to cross-examine a complainant at the outset.
Worse, before recording the evidence barristers have to attend a “ground rules” hearing and must submit questions for the complainant to be vetted by a Judge in advance. The reality is that at the start of a case all the disclosure is not available. Often the Crown and or Police are providing disclosure - that is the evidence that informs the case, often right up until the night before the trial gets underway. Now not only does the Crown, with its larger resources, such as staff, Police and forensic evidence face off against a defendant and a sole lawyer lawyer, the defence must now flag their defence at the start of the process, giving the Crown with its greater resources and rates of remuneration time to plug the holes, eroding a defendant's right to silence, and the traditional right to keep their defence under wraps until the trial gets underway in front of a jury.
Nobody wants to cause undue stress to complainants in sexual offending cases. But why is it that complainants in these types of cases are effectively regarded as being inherently more truthful than complainants in other cases, such that their evidence must be pre-recorded months or a year in advance?
Juries, will now no longer see a complainant present their evidence in Court, live. Rather they will receive advice about stress etc. But behind all this is the fact that fair trial rights are being poorly served as a political agenda trumps the reality of how Courts actually work. Lawyers are now being expected to have locked in trial strategy for defending a client presumed innocent, before they have all the disclosure and before they have had the opportunity to read and consider all the evidence and only after doing that question the complainant.
I recently was involved in a case of an inmate who had only known a life of extreme violence. When he was a baby feeding at his mother's breast, his father slapped him, out of her arms onto the floor. Growing up as a boy, when he was entitled to feel safe in his family home, he was subjected to what one relative called, "man hidings." Thereafter he was subjected through his developmental years to physical and sexual abuse, which so damaged him, that by the time he was 17 he was in a mainstream adult prison.
He was facing serious fresh charges He had gone through 3 previous lawyers. the trial date was fast approaching. As I reviewed the evidence, it was clear that there was no defence. Around two weeks before trial I had to tell him the bad news - there was no defence. He didn't take it very well. Somehow, my honesty meant that I was an agent for the Crown - taking the easy way out. I subsequently discovered that a "jail house lawyer" had gotten into his ear and had made him suspicious of everyone. This jail house lawyer had self-represented in his own case, after having been assigned and sacked 21 lawyers.
Prisons and society are increasingly populated by people who think they know about the law and are more effective that actual lawyers. Often such people believe that law is like some Harry Potter incantation type exercise - you utter some Latin sounding phrases and bars melt, or people will see their point. Anyway, my client asked me to listen to his cell-mate. I then received a 20 minute peroration from someone I didn't know, who had self-represented which such success that he had just himself sentenced to a lengthy term. I was told "you have to be aware of like - "disclosures" and "double jeopardy" etc. He told me he believed my client innocent and that "if he went down for something he didn't do, some powerful men are going to come down and see me ....". This again is another joy that defence counsel endure. Not only are we attacked in the media for our work, we also face threats from friends of and sometimes our own clients.
Most lawyers have experienced the bbq or social drinks where some slightly pissed boor will come up, having learned you are a lawyer, suddenly wrestling with an issue that has nagged them for years, will be emboldened, with a sense of excitement, as if they had discovered the Philosopher's Stone only to ask: "How can you defend someone you know to be guilty?" In reality such people often do not want an answer, they really want a launching pad for their views about how lawyers are as bad as their clients and how prison is too soft. Other times, you are asked for free advice on issues ranging from the latest high profile murder, to fencing disputes, employment issues and the like. I once was in a supermarket when I was even approached by an old dear who wanted advice about returning an overdue library book!
In my time at the bar I have seen colleagues burn through their lives as they tirelessly represent clients. I have had friends suicide, drop dead with heart attacks or have break downs. Our professional organisations talk about, "Practising Well", while the pressures of criminal defence work, in terms of compliance measures, timetabling and process obligations increase almost proportionally to the erosion of fair trial rights.
