Subj: UK: Bar warns Straw that his reforms could break law



Date: Monday, October 5 1998



Source:    The Times (UK)





Bar warns Straw that his reforms could break law 

By FRANCES GIBB



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."