In his thought-provoking report on disparity of treatment within the criminal justice system David Lammy has again seized on a worrying statistic that was very familiar to those of us who were studying these matters 25 years ago: the greater tendency of Black, Asian and Minority Ethnic defendants to enter a “not guilty” plea, only to find themselves punished more severely in the Crown Court without receiving any credit for an early plea.

In a blog today, Jonathan Black, who is a very experienced criminal defence solicitor in London, gives an equally worrying explanation of why this may be occurring. It is linked to the growing tendency within the police and the CPS (on which I heard the Director of Public Prosecutions comment adversely in her Police Foundation lecture last week) to withhold proper disclosure of the evidence against a defendant, so that he/she may be advised to plead “not guilty” in ignorance of the strength of the prosecution case.

Jonathan writes:

“It is necessary to consider the anatomy of a case when assessing the reasons for late guilty pleas. Over the past 15 years full disclosure prior to police station interview has become the exception rather than the rule, and accordingly decisions as to whether to comment in interview is often proportionate to the level of disclosure.

Perhaps it needs to be amplified that attendance at the police station is not for the purpose of presenting the police with a case against our client that didn’t previously exist. Similarly, where initial disclosure in the magistrates’ court fails to include crucial information we are often justified in advising clients to resist the early credit carrot.

This is not about increasing fees, but about ensuring our clients are treated fairly. Rarely does a client say ‘I wanted to plead guilty, but my solicitor wouldn’t let me.’ Seldom is there a case where a client may not have been charged had he chosen to comment in interview on the back of limited disclosure.

The question that arises over the statistic is whether it takes into account the fact that a larger proportion of the BAME offenders are concentrated in areas where the disclosure habits both in police stations and court are different.

A generous view might be that cuts to police funding prevent resources being committed to file preparation. Only recently I had a case where as duty solicitor I represented a suspect in interview in relation to a relatively serious matter. He made full admissions in order to maximise credit and mitigation. The file prepared for court summarised his interview as a no comment interview.

Had I not been at court to represent the defendant and had he met a new solicitor, he may have entered a not guilty plea only to change it to guilty when the true transcript was disclosed. Would that have been as a result of lack of trust in that solicitor appearing at court to his behalf?

A beauty parade to choose the duty solicitor as suggested in the report is not the answer. Not only does it defeat the object of a duty rota, but it is the thin end of the wedge that we are already at and only one step away from a form of competitive tendering.

We all know the answer to restoring the trust between solicitors and their clients in the police station if, as the report suggests, it has been diminished — reverse the trend for cheapening justice and remunerate properly those attending the police station.

When rates are so low it is little wonder that their bedside manner may sometimes give the impression that their client is less important than their exit from the police station.

Once they have asked for the services of a duty solicitor, the system makes it very difficult for a suspect to change representation while still benefitting from publicly funded representation. This is nothing to do with the defence solicitors, but the rigid provision introduced by the Legal Aid Agency to ensure there is no duplication of expenditure of relatively modest sums in the context of the problems reported.

It is hoped that having published the Lammy report the Ministry of Justice (MoJ) will take some responsibility for the impact that treatment of BAME defendants within the criminal justice system has on wider society. As I write we expect further news of further cuts to the legal aid budget. It would be logical for the MoJ to give some consideration to these findings before wielding the axe further.”

In the run-up to the publication of the report of Lord Bach’s Commission on Access to Justice on 22 September, it cannot be repeated too often that unless very much more attention is paid to the need to find ways of improving the quality of the duty solicitors who attend at police stations, and also of improving the quality of the training of both police officers and CPS staff in relation to their disclosure obligations – an issue on which both services were lambasted by their Inspectorates a few weeks ago – injustices will continue to occur.   And if Jonathan Black, with his vast experience of the London scene, is right, they will occur far more often in areas where there is a large BAME population.