In positive defence of the CDS

With the proposals of the Criminal Defence Service looming, is the despondency surrounding it justified? Joel Bennathan gives four reasons why the CDS could be good news. Joel Bennathan is a barrister and a member of the Society of Labour Lawyers.



TO ASK a criminal defence lawyer whether they are looking forward to the advent of the Criminal Defence Service, is to provoke a response similar to Napoleon's on being asked how he got on at Waterloo.

Yet is the despondency that envelopes the criminal bar when the Lord Chancellor's latest plans are discussed really justified?

In order to cheer up the Bar, let me suggest four reasons why the Criminal Defence Service could be good news.

First, a properly structured organisation can find the resources and the time for proper training as the law changes.

Never again need the Court of Appeal be told that word of the new Criminal Appeal Act has not yet reached the provinces.

Second, some decent common standards in the use of expert and other resources. Your client's access to a forensic doctor need not depend upon which solicitor's office he or she walked in to.

Third, the next time you see an advocate clearly not up to the job, how about reporting your worries to your head of section so they can be re-trained or sidelined, rather than chortling.

Fourth, and let us be selfish for a moment, a 40-hour week, a pension, a monthly cheque come what may and a sensible career structure that allows those without private means into the professions cannot be all bad.

The obvious reservation to all this, however, is that I have no idea whether the Lord Chancellor's vision of a Criminal Defence Service bears any resemblance to my own.

The Access to Justice Bill that is currently before Parliament is drafted in such broad terms as to give few clues.

The best educated guess, from the publicised comments of Lord Irvine, is that there will be a gradual introduction of a restricted salaried sector to run in tandem with private practitioners.

In recent days, the Lord Chancellor has accepted two amendments in principle at least. One would impose a quality control procedure on the new service, while the second would impose a code of conduct on those who work within it.

All well and good, but this seems to sit ill with the suggestion of one particular MP who takes a close interest in these things - that there was no plan to actually use the power to deploy employed lawyers.

Doubtless, as we say in the trade, the fault is mine, but there seems to me to be an inconsistency in agreeing to a code of conduct for a body of men and women who will not be assembled.

Many, many of my colleagues at the Bar, and my comrades in the Labour Party, would disagree with the positive views I have expressed about the Criminal Defence Service, but as yet we have no basis for any argument, because we do not know what we would arguing about.

The point is that we should not be asked to support a scheme, nor members of Parliament vote for one, when the best we have is guesses, educated or otherwise.

The other worry is the motivation for all this; the current system has faults, but the only fault mentioned in the Modernising Justice consultation paper - that preceded this legislation - is cost.

There may be slogans that could lure young talented lawyers into a well-funded and highly-motivated defence service, but "Come lay down your career to allow tax cuts" is not one of them.