Representing indigents in serious criminal cases in England's Crown Court: the advocates' performance and incentives.

• Author: Tague, Peter W.

1. INTRODUCTION

   While indigent defendants charged with serious criminal offenses can be represented by lawyers in the United States and by barristers and solicitors in England and Wales. Gauging the quality of that help is an important but elusive inquiry. This article has two purposes: to map how the indigent criminal defendant charged with very serious offenses is represented in England's Crown Court, and to examine whether economic incentives can induce the defendant's representatives to perform as expected.

   While barristers profess to be skilled advocates, and while many lawyers have likewise extolled the barrister's advocacy, testing the point is extremely difficult. Apart from observing trials or reading memoirs, there is scant evidence to study. The information often used to evaluate the effort of lawyers--challenges by disgruntled defendants to the effectiveness of the lawyer's efforts--hardly exists in England.(1) Without a better understanding of how the criminal defendant is represented in England, lawyer-advocates may think themselves as inept as many critics claim they are when compared with their barrister cousins.(2)

   If barristers do perform better than lawyers, why is this so? The compensatory scheme plays a role, and this article's second purpose builds on the truism that economic incentives can affect the defendant representative's preparation and advocacy. Inadequately compensated, advocates will refuse to represent indigent defendants or will be tempted to do less than needed.

   Indigent defendants in the United States, for example, may be deprived of the most able advocates because they cannot select the advocate and, even if they could, the advocate might refuse to help because the remuneration is inadequate. The compensation paid to court-appointed lawyers is pitiably low in many state courts, and, although higher, even tolerable, in federal courts, is still too low to entice skilled advocates to represent indigents when they can garner higher fees from other sources. Moreover, typically paid by the hour but with a ceiling on the total award,(3) court-appointed lawyers have an incentive either to resolve the matter once their cumulative bill approaches the ceiling or to skimp after exceeding the ceiling because their time is then uncompensated.

   Matters are different in England's Crown Court. Indigent defendants can select the barrister who, for two reasons, cannot decline the request. First, the cab-rank rule requires a barrister to represent one who seeks help, no matter how reprehensible that person or his legal position is, so long as the barrister has no conflict of interest and the compensation is adequate. Second, the Bar defines the compensation paid in publicly-funded criminal cases as adequate. Barristers are not chafed by this requirement because the compensation in publicly-funded cases can be quite high, and significantly higher even than in federal courts. Thus, defendants in Crown Court have the unparalleled opportunity, when compared to their counterparts prosecuted in American courts, to retain the most skilled advocates who are available. That having been said, defendants in Crown Court are often disappointed when they learn, often shortly before the trial date, that the barrister initially retained has withdrawn from the case. The barrister's return of the brief (the "returned brief") threatens to undermine this important aspect of English practice.(4) It will be important to learn how the compensatory scheme affects the barrister's incentive to return or to keep the brief.

   If the returned brief dents the attractiveness of English practice, it is also obvious that even skilled advocates may not always perform skillfully. Barristers have a model of advocacy that differs from the criminal defense lawyer's model. They are less partisan than lawyers, less attentive to the defendant, less concerned with the development of the case. They work with the materials they receive, only guiding the solicitor if asked. Thus, it becomes important to learn whether barristers are sufficiently prepared to unfurl their advocacy skills. More particularly, how do the barrister and solicitor work together; how often does each speak with the defendant about the case; and is there tension within the defense camp because, say, the barrister's approach offends the defendant or his decisions clash with the defendant's desires?

   Answers to those questions come from a source never previously plumbed. I received permission from the Lord Chancellor's Department, the body with jurisdiction over the system of payments in publicly-funded cases, to examine files that had been or were being reviewed at the Central Criminal Court (the Old Bailey) in London, for the purpose of calculating the fees paid to the defending barristers and solicitors in very serious criminal cases.(5)

   These files teemed with interesting facts about those issues.(6) To presage the conclusions,(7) the barristers were in a position to advocate effectively. The briefs found in the files seemed to have been thoroughly prepared and provided an important introduction to the case. The solicitors identified the issues and canvassed the facts, even though they never offered any tactical suggestions. If barristers actually took the time to prepare that they reported having spent, they should have understood the issues and developed a plan to execute the defendant's instructions. The defendants were not ignored, but spoken to frequently, especially by the solicitors. The system of compensation thus seemed to provide incentives for the barrister to prepare and to avoid returning the brief because occupied in representing a different defendant in an unrelated case.

   Even if the English system seemed to work, American jurisdictions will not be tempted to adopt it. The costs would be too high. The professionals in these cases were paid thousands of pounds, amounts far exceeding that which court-appointed lawyers typically receive.

   Before ending this introduction, it is important to make one reservation. The cases studied were unusual in an important way. Only defendants charged with the most serious crimes received the resources described in this study. In these cases defense advocacy should reach its acme for two reasons. The high level of compensation should entice the ablest advocates available not to find an excuse to avoid representing an indigent defendant. Second, many defendants were represented by three or more professionals: a leader (usually a Queen's Counsel), a junior barrister, and one or more solicitors. Thus, to conclude that these defendants probably received able representation does not mean that the same would be so for the mass of defendants charged with less serious offenses, and represented by a junior and solicitor in what were called standard fee cases.(8)

   Part II generally introduces the advocates who represent indigent criminal defendants and the methods of compensating them in effect at the time of this study. Those who represented the defendants in this study are described in Part III, as is their relationship with each other. Part IV asks how prepared the defendants' barristers were. Part V focuses upon the incentives, in representing the criminal defendant, created by the system of compensation, summarizing the earlier discussion and adding new points. Part VI concludes by commenting on the relevancy of this study for lawyers.

2. THE DEFENDING ADVOCATES AND THE SYSTEM OF COMPENSATION IN NON-STANDARD CASES

   This Part introduces the defendant's advocates and the mechanics of payment in legally-aided work in the Crown Court that applied to the cases studied. With this information, we can begin to understand how the rules governing compensation can affect the defenders' advocacy under the old system.

   As they begin, all barristers are called juniors; ninety percent finish their careers in that status. The other ten percent are elevated to the rank of Queen's Counsel after demonstrating skill as an advocate for ten years or so.(9) In publicly-funded cases, Queen's Counsel represent only those defendants charged with the most serious offenses.

   Solicitors are also classified under the legal aid scheme based on the Lord Chancellor's belief in specialization.(10) Certain aspects of representation are thought to demand more skill and experience than others, and are paid accordingly. As such, only "fee-earners" within a solicitor's office receive recompense for acting on behalf of a defendant. A "`fee-earner' means a solicitor, a legal executive or any clerk who regularly does work for which it is appropriate to make a direct charge to a client."(11) Solicitors are further subdivided into "senior solicitors" and solicitors. A "senior solicitor" is one "who has the skill, knowledge, and experience to deal with the comparatively small number of cases which fall within the higher categories of gravity or difficulty."(12) While experience is not dispositive, senior solicitors will usually have acted as an advocate for at least ten years. A solicitor or legal executive will have "good experience [although less than ten years] of the conduct of criminal cases."(13) A "clerk" is a comprehensive term that includes people who are training to become solicitors as well as those with "equivalent experience,"(14) typically no more than two years.

   Each fee-earner within the solicitor's office is compensated at a different hourly rate, and receives his rate only if his skill was needed.(15) Were he to undertake work that a less experienced fee-earner could perform, he is paid at the latter's lower rate.(16) Thus, senior solicitors can expect to be paid at their level "only in a small percentage of cases, the most difficult[,] complex or serious...."(17) Even when a case qualifies under one of these exacting tests, a senior solicitor must delegate any work that could be performed by one with less experience or skill, "unless to do so...