Tuesday, September 18, 2007

Branson and the Broken Justice System

I imagine that most people have heard by now of Richard Branson's intention to create a £100,000 account to fund the defence of the parents of Madeleine McCann. If not the linked article is worth checking out, because it really throws into relief some of the issues I am going to try to deal with. I am not interested in Mr. Branson's motives - I will assume that they are altruistic and not merely publicity-seeking, but it is irrelevent. I also have no desire to second-guess the guilt or innocence of the McCanns. I feel that such public guesswork tends to do more harm than good, at least where there is no compelling evidence (like a confession).

What concerns me is just how starkly the criminal justice system is shown for what it is here: The creation of the fund is a tacit admission that to get decent representation against criminal charges, you need money. Lots of it. The McCanns were planning to sell their house to raise the money. Many people either cannot do that, because they do not own a house, or will not because it will leave them with nothing. They will instead take the free representation guaranteed to them.

Ah, the free representation. The modern society's nod towards equality before the law. I would never denegrate those solicitors and barristers who do legal aid work, but many of them are unexperienced in the areas in which they take such cases, and their ability and experience varies. Pay for legal aid work is low and so it tends to attract less experienced and skilled lawyers and to sit at the bottom of long priority lists. All of this is known: It is common knowledge, and unquestioned, that if you are able to pay you will get better representation, and the more you pay the better you will get. Better lawyers are able to charge more - that's the way of the free market.

But like it or not, the quality of representation has a massive impact on your chances of winning a case. Of course, the bare facts and the law are very important, but having a lawyer capable of making the right arguments and putting in the time to do the research can often be crucial. Where there is an inequlity of financial resources available on different sides, the richer gains a distinct advantage. This turns justice into a free market commodity - something to be bought according to the income at your disposal. To some people this might seem acceptable, but such people frighten me. Unless we are equal before the law, with justice blind to money and social circumstance, then really you cannot have the kind of liberal democracy in which we claim to believe. The 'justice' system unwittingly becomes a tool for keeping the poor permanently in danger of having their liberty stripped away.

It is imperative to end the correlation between ability to pay and success in defending one's case. (In fact, the point extends to all kinds of areas of law, but here I am just dealing with criminal, where it is most acute.) Again, some will argue that this can never happen because lawyers need pay incentives to do a better job. To them I say that you can have your cake and eat it. You can still have a career structure with pay increasing as lawyers are assigned to more difficult levels of cases (the simplest structure would be magistrates court, Crown court, appeal court, House of Lords), and bad lawyers will still be weeded out because people will no longer go to them. The crucial difference would be that at each level of the case, you would have lawyers at the same grade and paid the same on each side, levelling the playing field. The state would stump up the cost originally, and recoup it from the accused party after a conviction, as far as they are able to pay.

Of course, key to all of this is pay setting, and that will outrage some. It will cap the possible wages of criminal lawyers, although the cap should of course be generous to retain lawyers in the area. It might smack of socialism to some, but surely if there is one area to be socialised and made equally available to all, it is justice? The McCanns are lucky to to have found (through the publicity the case has generated) a backer willing to give them a fighting chance. Many others do not have that fortune. Let's stop leaving justice to luck and class.

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