Pubdate: Mon, 05 Oct 1998
Source: Times, The (UK)
Contact:  http://www.the-times.co.uk/ 
Author: Frances Gibb

BAR WARNS STRAW THAT HIS REFORMS COULD BREAK LAW

THE Bar set itself on a collision course with the Home Secretary at
the weekend with a warning that Jack Straw's criminal justice plans
could fall foul of the Government's own human rights law.

Heather Hallett, QC, chairman of the Bar, said that reforms in the
pipeline - such as confiscation of property without a criminal trial -
could be challenged under the new Human Rights Bill, soon to reach the
statute book. "It would be a dreadful irony if the very first
challenge in the courts was to legislation passed in the same session
by the same Parliament," she told the annual Bar conference in London.
"If the reports of some of the proposals emanating from the Home
Office are accurate, that is exactly what will happen."

In a blistering attack, she pointed out a range of proposed or enacted
changes that, together, amounted to a "chipping away at the edges of
the present system in the name of cost-cutting and market forces that
could prove disastrous for the country in the long term".

These included recently announced plans to allow property to be
confiscated without a criminal trial, further restrictions on the
right of defendants to cross-examine people accusing them of rape, and
the law, now in force, which makes the opinion of a police officer
admissible evidence in court.

Ms Hallett told some 500 barristers and judges that there were other
threats to the criminal justice system, including plans to allow crown
prosecutors to present cases in the higher courts and a public
defender system, soon to be piloted in Scotland, in which defence
lawyers are employed by the state.

Taken together, such moves posed a risk that the British justice
system, in which top advocates defend and prosecute in the criminal
courts and appear for both sides in the civil courts, would be lost
for good, said Ms Hallett.

"We still have a system whereby some of the best advocates in the
world can be seen day in, day out, in our criminal and civil courts
... acting for the state and for the ordinary man and woman in the
street, prosecuting one day, defending the next, acting for the
injured plaintff one week, the insurance company the next."

She also expressed concern about the Lord Chancellor's "no win, no
fee" reforms, which give lawyers a financial interest in a case, and
about block contracts in legal aid, which remove an individual's
choice of lawyer.

Such contracts would put law firms under financial pressures to offer
the cheapest deal to the Government, however good or bad they might
be, Ms Hallett said. In one American state, the defence brief in a
capital murder trial was on offer to local lawyers "for the princely
sum of $100".

She said: "If this country cannot afford to ensure that all litigants,
rich and poor, have access to suitably qualified and experienced
lawyers, if there is to be one set of lawyers for the well-heeled and
another less able set for those unable to afford a cobbler, someone
should have the courage to say so."

She expressed fears about increased state involvement in the criminal
courts, through allowing crown prosecutors into the higher courts and
the creation of public defenders, and said she was astonished by
claims from the Scottish Legal Aid Board, which is running the pilot
on public defenders, that other jurisdictions operated such a scheme
successfully

"I wonder if they have spoken to the New Orleans Public Defender, Rick
Tessier, who sued himself because he was being forced to take on three
times more cases each year than the recommended maximum."

As for crown prosecutors being allowed to take the serious cases in
the higher courts, which are now taken by the Bar, she cited examples
in which crown prosecutors had failed, in preparing cases, properly to
disclose crucial evidence to the defence.

In one case, in which a mother was charged with assaulting her child,
the prosecutor had written on a file originally not disclosed: "May
undermine the strength of the prosecution case".

Ms Hallett said many asked why the English Bar was so concerned about
the proposed changes and offered the unequivocal answer that the Bar
did not wish to move to a system where, as in most countries, top
lawyers specialised only in commercial work. In Britain, a top
advocate could specialise in publicly funded work, but that was "fast
becoming unique".

She said: "We do not want to became a small cadre of highly specialist
commercial practitioners available to just the few. We want to remain
as specialist advocates and advisers available to all. It is in the
public interest that we should remain so."
- ---
Checked-by: Patrick Henry