Last year, rather to my surprise, I was called by someone from the Department of Constitutional Affairs (DCA) about the possibility of doing some research on legal aid. The call was a surprise as I haven't done any research on this topic before. But I was feeling in a mood to try something different. My colleague Avis Whyte and I undertook a secondary research on the costs of legal aid in other countries.
The nub of the problem is that we, England and Wales, spend vastly more than anywhere else on legal aid. Currently we are running at £2.1 billion a year. Criminal legal aid takes the main portion; civil legal aid is more tightly controlled. The DCA was concerned to see how it could reign in costs yet satisfy the European Convention on Human Rights' Article 6 on right to a fair trial. Avis and I showed how costs varied sigficantly across countries as well as means of coping with them. Some countries use public defenders, others use legal insurance, and some do nothing! We finally wrote an article "What's wrong with legal aid: lessons from outside the UK" (which is published in Civil Justice Quarterly, January 2006, but is available in preprint from www.johnflood.com [look under "Publications"] ).
Having satisfied my desire to tackle issues of legal aid, I believed that would be my last foray into it. Wrong. We handed in our report last winter and this autumn we received another call from the DCA, but a different part. This was Lord Carter's Review of Legal Aid Procurement. The Carter Review emerged from the report of the previous review we had engaged with. The official wanted to see our report and article, so I sent them in. Later we were asked to come and talk with them. It seemed the Carter Review wanted its own research on international comparisons of legal aid; Avis and I were happy to comply as we could build on what we had done before and also through the Case Allocation project. We brought in a research assistant, Sylvie Bacquet, who had experience of empirical research. She would handle most of the data collection, and being of French heritage could obtain data on France also. We are on a tight schedule since we are due to report on our research by the end of November.
Our research focuses on three areas: lawyers involved in legal aid representation, case management, and case disposition. Within those are various variables that I won't go into here. But let me point out one difference, that of time. Cases can take a long time to deal with in the UK: constant adjournments because witnesses or defendants fail to appear in court; new reports to be requested; prosecution not ready; and so on. In the US, in Chicago, for example, criminal cases are disposed of quickly as a matter of pride by court, prosecutors and defenders. (See Steve Bogira's Courtroom 302: A Year Behind the Scenes in an American Criminal Courthouse [Alfred A. Knopf, 2005] for a truly enlightening account of the day to day realities of the criminal court in Chicago.) This is not to say one is better than the other.
There are problems with the costs of legal aid. It has always been a demand-led, open-ended budget, except now it competes with other demands like health and education. Even the International Criminal Tribunal for the Former Yugoslavia (ICTY) has problems with the costs of defending accused (click on "Defence" on home page to see items on costs). I don't know what the solutions are to these problems. They will have to be dealt with sensitively; it will only take a couple of wrong convictions for an outcry to occur about miscarriages of justice.