THE
MODERN LAW REVIEW
Volume 42 September 1979 No. 5
MICHAEL ZANDER,
PROMOTING CHANGE IN THE LEGAL SYSTEM *
AN academic, by choice of occupation, experiences a variety of
occasions for giving lectures. But an Inaugural is, somehow,
different. For one thing the lecturer, very likely for the only time
in his career, is honoured by the presence not so much of the usual
captive or semi-captive audience, but of both friends and colleagues.
For another, the topic he chooses tends to be of a somewhat broader
character than is otherwise usual. But perhaps what most distinguishes
an Inaugural Lecture is that it is explicitly related to a
stage in one's career-which appears to invite some form of
personal accounting.
When I became a law student at Cambridge exactly 25 years ago,
I would have been astonished had anyone predicted that reform of
the legal system would become one of my chief interests. In those
days-the mid-1950s-we were all extremely meek and inoffensive.
But the experience of being a graduate student at Harvard and of
working for a year in a great Wall Street law firm changed my mood.
Partly it was the normal result of seeing one's own system in sharper
focus from the vantage point of a different country. But partly it
was because I felt that the Harvard system of legal education and
the operation of the unified legal profession had features from
which we had something to learn. By the time I came back to
London in 1959, after two years away, I felt committed to trying
to do something on both these fronts. The next three years were
spent in articles and I then worked for a short period in a City firm
after qualification as a solicitor. But I think I knew from the outset
that I wanted to be an academic rather than a practising lawyer.
It was obvious that a life devoted to the problems of individual
clients would make it difficult, if not impossible, to find time to
study the operation of the system more generally. Also, quite apart
from the problem of time to pursue one's interests, it seemed clear
that neither a solicitor's office nor barrister's chambers were likely
to be a background conducive to writings that might be critical of
the system and especially of the legal profession. If the profession
today is sensitive about criticism, 15 to 20 years ago things were a
great deal worse.
* An Inaugural Lecture delivered at the London School of Economics on
November 9, 1978.
489
I wanted an academic home and the only place I applied to, or
ever considered applying to, was the L.S.E. In 1963 at the age of
31 I came to the School-and, I would say, lived happily ever after.
In the same year, by a stroke of sheer good luck, I became the
Legal Correspondent of The Guardian. Since then I have been
involved, both as a member of various groups and as an individual
in attempts to effect change in a variety of fields-most of them
concerned with the working parts of the legal system (as opposed
to the substantive law). My purpose here is to reflect on that
experience.
I will not be considering the role of the judges for the reason that
in the field of legal-system reform the courts can, I think, do little.
The argument almost invariably has to be addressed rather to the
legislature, the civil service or to the government-whether of the
country or the profession. It is this, therefore, that forms the focus
of my remarks tonight.
The problems of effecting change have not been the subject of
much academic analysis, but there is one work to which any
would-be reformer should turn, irrespective of his field. This is
F. M. Cornford's 20-page gem of a book Microcosmographia
Academica,' as relevant today as when it was first published 70
years ago. Cornford, a don at Cambridge, took a pessimistic view.
Addressing the young academic reformer he warned that nothing
was ever done "until everyone is convinced that it ought now to be
done, and has been convinced for so long that it is now time to do
something else." 2 All important questions were so complicated, and
the results of any course of action so difficult to foresee, that
certainty or even probability was seldom, if ever, attained. It
followed that the only justifiable attitude of mind was suspension of
judgment. It was then only necessary to persuade others to be
equally judicious and to refrain from plunging into reckless courses
which might lead them heaven knows whither. This was relatively
easy, especially by appeals to the Principle of the Wedge and the
Principle of the Dangerous Precedent. The Principle of the Wedge
was that you should not act justly now for fear of raising expectations
that you might act still more justly in the future-expectations
which you are afraid you will not have the courage to justify.
The Principle of the Dangerous Precedent was that you should
not now do an admittedly right action for fear that you, or your
equally timid successors, would not have the courage to do right
in some future case, which was essentially different but which
superficially resembled the present one. Every public action which
was not customary was either wrong or, if right, was a dangerous
precedent. It followed that nothing should ever be done for the
first time."
I Microcosmographia Academica (Bowes and Bowes, 5th ed., 1953).
2 Ibid. at p. 2.
3 Ibid. at p. 15.
491
Cornford's chief target was inertia and although I imagine that
the legal system in the 1970s is not so resistant to change as the
University of Cambridge at the turn of the century, the problem of
inertia will always be a major obstacle to change, not least in the
legal system. Some would say rightly so, since reform is not
invariably for the best and too much change is apt to prove
indigestible. The ideal is to find the rate of change that at any given
time best suits each society. This cannot I think be the responsibility
of the would-be reformer. He can only urge reforms that appear
to him to be desirable-leaving it to those in authority in that field
-the government, the civil service, the profession or whatever-to
resist such pressure to the extent that it is felt necessary or desirable
to do so. It is not for the reformer to stay his hand for fear that the
rate of change is too rapid. His function is to propose; it is for
others to dispose.
It may be different in some branches of the substantive law, but
those concerned with the working of the legal system do not, on the
whole, in my experience move too quickly. If anything, rather to
the contrary. By the time, for instance, that Lord Beeching's Royal
Commission 4 was asked to consider what should be done about the
assize and quarter sessions system it had been creaking for decades.
The problems now under investigation by the Royal Commission on
Legal Services or that on Criminal Procedure cannot be said to be
new. They have, on the contrary, been around for years.
What then explains why, at a particular moment, change occurs
in the legal system while at other times no change takes place?
It would be very helpful if some general theory could be developed
to explain the phenomenon of change in this, or indeed in any
other, context. But I am sceptical whether this will happen-save
at the level of trite generality. During the past 15 years or so I have
seen at close hand campaigns to achieve change in a variety of fields.
If one looks for an overall theory to distinguish between the campaigns
that prosper and those that do not I believe that one looks in vain.
I am far from saying that there is no value in the study of individual
case histories of such campaigns, but I do not believe that such
study will throw up any very profound insights. Nevertheless there
are, perhaps, certain observations one can make that throw some
light on the process of achieving change.
The first is that even in an area that is said to be notoriously
resistant to change, such as the legal system, progress can be made.
Consider some of the things that have happened in recent years.
There has, for instance, been a dramatic increase in the level of
representation for defendants in criminal cases. Fifteen years ago,
in 1963, only a half of those tried on indictment were granted legal
aid; today it is over 95 per cent.5 In 1963 legal aid for committals
4 Report of the Royal Commission on Assizes and Quarter Sessions, Cmnd. 4153
(1969).
3 Criminal Statistics, Cmnd. 2525 (1963); Criminal Statistics, Cmnd. 7289 (1977).
492
was granted in a quarter of cases; in 1977 it was 73 per cent." Most
spectacular of all, the number of grants of legal aid for summary
trials in magistrates' courts went up from under 16,000 in 1963 to
234,000 in 1977.7
The 1966 Report of the Widgery Committee on criminal legal
aid dismissed the idea of duty solicitor schemes in magistrates'
courts in two brief paragraphs. The Committee concluded that it
would not be practicable to introduce such a scheme in England
and Wales." Today, only 12 years later, there are duty solicitor
schemes in over a hundred courts. 9
In 1968 the Law Society opposed the introduction of neighbourhood
law centres 10 and was supported in its view by the Lord
Chancellor's Legal Aid Advisory Committee.11 Today, 10 years on,
there are some 30 law centres and the Advisory Committee, in 1976,
described law centres as "an integral and essential branch of legal
services." 12
Nor has the legal profession been untouched by change. Special
fees on circuit,13 the two-thirds rule 14 and the two-counsel rule "5
have all been abolished. The advertising rules for both branches of
the profession have been relaxed to the point where Local Law
Societies can now advertise in the local press the names, and
addresses of, and even the work undertaken by, individual firms."
Lay referral agencies such as citizens' advice bureaux, instead of
having simply to hand the client a list of local solicitors, are now
allowed to direct him to the most suitable firm for his problem.' 7
Barristers can work as salaried members of law centres, whilst
retaining their right of audience at least in the lower courts.1 8 In
regard to overseas work, most of the ordinary rules governing
barristers have been suspended-there is no need for a clerk or
chambers, the barrister may enter a partnership with a foreign
lawyer, may take instructions direct from the lay client and may
receive payment in any form-including even a contingent fee! 19
6 Ibid. 7 Ibid.
8 Report of the Committee on Legal Aid in Criminal Proceedings, Cmnd. 2934
(1966), paras. 206-207.
9 Information supplied by the Law Society.
10 Law Society, Legal Advice and Assistance, February 1968, paras. 19-20. But
see a second memorandum with the same title dated July 1969, especially paras. 34-37.
11 16th Annual Report on Legal Aid, 1965-66, p. 51, para. 9; 17th Annual Report
on Legal Aid. 1966-67, pp. 57-58.
12 26th Annual Report on Legal Aid, 1975-76, para. 48. For the history of the
development of the law centre movement, see Zander, Legal Services for the
Community (1978, Maurice Temple Smith), Chap. 2.
13 Abolished by the Bar in 1964 after the Report of the Gardiner Committee.
14 Bar Council, Annual Statement, 1971-72, pp. 61-62.
15 Bar Council, Annual Statement, 1977-78, pp. 42-44.
10 Law Society, Evidence to the Royal Commission on Legal Services,
Memorandum No. 3, Pt. 5, pp. 104-105.
17 This was agreed between the Law Society and the National Association of
Citizens' Advice Bureaux-see NACAB, Administrative Circular 7/73, " Legal
Schemes in Citizens' Advice Bureaux," para. 3.2.
18 Bar Council, Annual Statement, 1977-78, p. 49. 19 Ibid. at pp. 41-42.
493
Lay persons have been incorporated into the disciplinary process
on both sides of the profession 20 and there is a statutory Lay
Observer over the machinery of complaints against solicitors.2'
Laymen have been appointed by the Law Society to its Legal Aid
Committee,2'
2 and the Law Society has set up an experimental Legal
Services Committee in Greater Manchester consisting of about
equal numbers of laymen and lawyers. 2
3 The Royal Commission
on Legal Services has a lay chairman and a clear majority of lay
members. .4
No doubt there are many issues on which progress has been slow
or even non-existent but in the light of the record of the past few
years one can hardly say that achieving change is impossible.
On the other hand, certain kinds of change are easier to achieve
than others. It is one thing, for instance, to get the Bar Council to
abolish the Two-thirds rule under which the junior had to be paid
a fee equal to two-thirds of that paid to the leader. It is much more
difficult to get solicitors to use the new situation to negotiate fees
related to the actual value of junior counsel's work in the case. 2
The fact that the Two-Counsel rule (requiring that a Q.C. appear
in court with a junior barrister) is abolished does not in itself mean
that there will be many Q.C.s appearing without juniors. The
Supreme Court of the United States ruled in 1977 that individual
lawyers may advertise,' but few have yet done so. 27 The State of
Victoria in Australia passed a statute in 1891 designed to effect
unification of the legal profession, but barristers and solicitors in
Victoria refused to alter their traditional ways of practising, and the
profession is as much divided today as it was in 1890.28
It is generally easier to change rules than it is to get people to
alter the ways they do things. In order to alter conduct people
usually have to be made to feel that change is desirable or at least
unavoidable. Barristers gave up demanding pupillage fees, solicitors
stopped asking for premiums and began paying articled clerks not
because they were told to do so, but because of a combination of
20 On
the Bar side of the profession there is a layman on the Professional Conduct
Committee of the Senate of the Four Inns of Court and on the Disciplinary Tribunal.
On the solicitors' side there is a layman on the Disciplinary Tribunal.
21 Under the Solicitors Act 1974, s. 45.
22 See 27th Annual Report on Legal Aid, 1976-77, p. 2, para. 3.
23 See (June 14, 1978) Law Society's Gazette 585; Greater Manchester Legal
Services Committee, First Annual Report, 1977-78.
24 Out of 15 members the chairman and eight other members were laymen, two
were non-Establishment lawyers and only four were orthodox lawyers-a judge,
a non-practising Q.C. and two solicitors.
25 See Zander, " Costs of Litigation " (June 25, 1975) Law Society's Gazette 682,
which showed that even after the " two-thirds rule " had been abolished in a fifth
of the cases junior counsel's fee was two-thirds of that of the leader. In half the
cases it was half that of the leader.
26 Bates and O'Steen v. State Bar of Arizona, 97 S.Ct. 2691 (1977).
27 (August 1977) American Bar Association Journal 1058; (January 1978) ibid.
at pp. 23, 36-38.
28 See J. R. Forbes, " The Divided Legal Profession in Australia: History,
Rationalisation and Rationale" (1977) Queensland Lawyer, Supplement to Vol. 4, Pt. 1.
market forces and a change in the climate of the times. In 1949
the Law Society told the Lord Chancellor that it would not take
part in the legal aid scheme if laymen were permitted to sit on the
legal aid committee 29 and the 1949 statute actually provided that
all the members of the committee must be lawyers.3
When, in 1977, the Law Society in effect repealed this section in the statute by
adding two laymen to the committee of its own motion it did so, I
think, because it felt this was the right thing to do in the changed
circumstances of the times.
What one may loosely term the Spirit of the Times may, therefore,
have a powerful effect in promoting change, but it is right to
notice that much may turn, also, on the fortuitous conjunction of
events and individuals. The campaign for the setting up of the
Royal Commission on Legal Services lasted from early January
to mid-February 1976. Exactly a month after the announcement of
the Royal Commission Sir Harold Wilson resigned as Prime
Minister. If his resignation had come a few weeks earlier I am sure
that there would have been no Royal Commission. Harold Wilson's
interest in the idea, I believe, was only slight; but Mr. Callaghan's
would, I suspect, have been virtually non-existent.
The Royal Commission was set up in spite of the determined and
formidable opposition of the Minister concerned-(the Lord Chancellor),
and of his Permanent Secretary.
Given that the Prime Minister was himself only mildly interested,
this could never have happened had it not been for the accident
that certain Ministers and advisers were in the right place at the
right time. Mr. Jack Ashley, M.P., the press and others brought a
great deal of pressure to bear from outside the system but the
establishment of the Royal Commission would not have taken place
had it not been for the fact that Mr. Roy Jenkins and Mr. Anthony
Lester were at the Home Office, Mrs. Shirley Williams and Mr. John
Lyttle were at the Department of Prices and Consumer Protection
and Dr. Bernard Donoughue was at No. 10 Downing Street.
But even though the general Spirit of the Times is favourable
and crucial individuals are in the right place, usually nothing
happens unless there are enough people to give the idea sufficient
momentum. They need not be numerous but there must be some to
act as promoters. A reformer should never assume that a good idea
need only be put forward to be acted upon. Cornford warned against
this naive assumption. Addressing his Young Academic Politician
he asked:
"You think (do you not?) that you have only to state a
reasonable case, and people must listen to reason and act upon
it at once. It is just this conviction that makes you so
unpleasant. . . .Are you not aware that conviction has never
29 See
R. D. Abrahams, " The English Legal Assistance Plan " (January 1950)
American Bar Association Journal 31.
30 Legal Aid Act 1949, s. 8 (4).
495
yet been produced by an appeal to reason, which only makes
people uncomfortable? ... I like you better for your illusions;
but it cannot be denied that they prevent you from being
effective, and if you do not become effective before you cease
to want anything to be done-why what will be the good of
you? " 81
In order to be effective it is often necessary to go to the trouble to
take the next step. Many people, and especially perhaps academics
find this uncongenial. They regard their function as completed when
they have written the original proposal and put it into circulation in
a book or article. But this is to leave everything to chance. It
assumes that those who have the power to do something about a
proposal will receive the book or article, that they will read it, that
having read it, they will not only agree with the writer's view but
will feel moved to do something about it, and to such an extent
that they will "carry the ball" in the face of the opposition that
is bound to develop soon enough from one quarter or another. This
is to pile improbability on improbability.
The danger, in other words, is not so much that one's proposal
may be opposed as that it may not even be noticed.
The innocent in public affairs tends to assume that those in
authority will automatically get to hear of any new facts or ideas
within their area of competence. This is far from being the case.
If one believes one has new facts or ideas it is normally necessary
to peddle them around before anyone will pay the slightest
attention.
One should send the original article to the lay and professional
press. Copies should also be sent to the relevant officials and bodies
concerned with the problems. If this includes a government department
it is often sensible to send copies both to the Minister and to
the relevant civil servants. If there are several levels of civil servant
concerned with the matter, one does well to send copies to the
junior as well as to the senior man. It should never be assumed that
one will pass a letter on to the other. It is usually sensible to send
copies at the same time to others who are more peripherally concerned
but who may be interested and who will have occasion in
the ordinary course of things to see and talk to those more directly
involved. A casual word in the corridors of power by one denizen to
another sometimes advances things marvellously. It may help to
get an M.P. to table a Parliamentary Question directing the
Minister's, and thereby possibly the press's attention to the matter.
Often it is essential or at least desirable to mobilise other organisations
or individuals to add their support for the proposal. One may
be able to achieve this by writing to them, or it may require some
personal approach. Sometimes the most effective way of proceeding
is to make telephone calls. However important and valuable one
31 Op.
cit. note I above, pp. 2-3.
believes one's idea to be it is always wise to bear in mind that those
to whom one addresses oneself almost certainly already have more
work to do than they can cope with. For that reason, if for no other,
they will understandably be somewhat resistant to new ideas. One
may therefore have to work quite hard even to get to the stage of
having one's proposal considered on its merits.
Though it is sometimes necessary to be blunt one normally does
best, I think, to conduct oneself with courtesy. Kruschev's shoebanging
style does not, on the whole, go down well in Whitehall,
the Bar Council or the Law Society. One must also learn the art
of stopping before one has become wearisome. But the successful
reformer does not easily accept the answer no. In fact one of the
most important rules is not to accept any reverse as final; if
something does not go one's way this year, it may in two or five or
ten years' time. One learns to take a long view.
The media are invaluable allies. There is still a feeling in some
quarters that an academic demeans himself by engaging in
journalism. My own view, precisely to the contrary, is that communication
with the general public (quite apart from questions of
reform) is part of one's proper function as an academic. Apart from
one's teaching and ordinary university duties one should, I believe,
try to undertake a full range of activities, from scholarly books and
articles in learned journals to the experts at one extreme, to
communication with the lay public through radio, television or
newspaper articles at the other. University teachers are paid out of
public funds. If they have an expertise in a field in which the public
has (or should have) an interest, it is right that it should be made
widely available. Disapproval of communication by experts with
the general public is mainly intellectual snobbery.
Moreover, it is more than simply a matter of communicating
information or ideas. I have myself taken part in hundreds of
broadcasts and have written, I suppose, well over 1,000 newspaper
articles. Few of these were designed to promote any particular
campaign or cause, but the cumulative effect over the years may,
nevertheless, have assisted in the creation of a climate of opinion
favourable to reform.
When it comes to a campaign on a particular issue it is obvious
that efforts should normally be made to mobilise the media. The
press, radio and television alike have a voracious appetite for
material that appears relevant to the public interest-especially if
it involves controversy. There is a great and growing interest in all
things legal. Any proposal for reform of the legal system that stands
the remotest chance of acceptance ought to be able to secure some
attention in the press. The attraction of enlisting the interest of
journalists is, of course, the greater because the authoritieswhether
in government or the profession-tend to have a considerable
dread of the media. Often something can be made of this
497
tension. Not that it is always wise to "go public." Sometimes one
judges that discussions will proceed more smoothly in private, but,
even then, the threat (explicit or implicit) to take the matter to the
press or to Parliament can sometimes be a helpful lubricant.
The business of lobbying for reform is distasteful to some
academics. But this is a clear matter of choice. To write academic
books and articles which offer criticisms and suggestions is good.
To take the next step and urge one's concerns outside the academic
community is better-or at least it is more likely to achieve results.
It may be argued that this is beyond the academic's proper function
qua academic. Let him by all means engage in reform activities as
a concerned citizen, but that is not what he is paid for. This, in my
view, is to take too narrow a view of the role of the academic.
If his proper duties include the constructive analysis of problems
in his field of interest, it does not seem wrong to expect that he
should go beyond this to do what he can to have ideas for improvements
in his field implemented. If the originator of an idea does not
trouble to promote it himself, he can hardly be surprised if others
do not do so either.
A quite different and no less important function for anyone
concerned to stimulate reform is that of discovering new facts. This
is a relatively new activity for anyone connected with the law,
including academic lawyers who have traditionally spent most of
their working lives in the library. But the law and the system as
written about in books, or as retailed in the anecdotes of practitioners,
is often quite different from the law and the system in
operation. Unless one is prepared to dig for the facts, one will never
discover how the system actually functions.
The 1966 Report of the Widgery Committee on legal aid in
criminal proceedings, for example, expressed broad satisfaction with
the way the legal aid system was working in magistrates' courts.
It drew attention to a certain lack of uniformity in decision-making
by magistrates but said that "the general impression left upon us by
most of the witnesses who are able to judge the question on a
country-wide scale is that the present system is working tolerably
well." 32 This view was echoed not long after in Parliament by the
Minister of State at the Home Office, who said, in 1970, that in
general the legal aid system in criminal courts was working well,
and that the Government had no reason to believe that the courts
were not aware of the criteria suggested by the Widgery Committee
for the grant of legal aid.33 But neither the Widgery Committee nor
the Home Office nor the Government, in fact, had any idea of
whether the system was working as it should, for the simple reason
that no empirical inquiry had been undertaken to find out. The
Widgery Report said that magistrates should grant legal aid where
32 Op.
cit. note 8 above, para. 75.
House of Commons, December 4, 1970, cols. 1736 and 1740.
33 Hansard,
the defendant was in jeopardy of losing his liberty, or faced grave
damage to his reputation, or where he was unable to follow the
proceedings, for instance, because of inadequate knowledge of
English or mental illness.3 4 According to the Committee, its inquiries
showed that these principles were already followed by the majority
of courts.3" The Committee said that since its proposed criteria for
the grant of legal aid reflected the existing general practice they
would involve no problem of additional expenditure. 3 6
But later empirical studies showed that far from the Widgery
criteria being generally applied, they were in fact being generally
ignored. First year law students at the L.S.E., in a study in 1969
showed that in London magistrates' courts the majority of those
sent to prison (the foremost category of those whom the Widgery
Committee thought should have legal aid) had none.3 7 The findings
were confirmed by a study in the West Midlands by Professor
Gordon Borrie,35 and even more fully by a study of a sample of
cases at Holloway Prison by Mrs. Susanne Dell of the Institute
of Psychiatry at the Maudsley Hospital. 39 No less than 81 per cent.
of Mrs. Dell's sample who had been sentenced to imprisonment
or sent to Borstal by the courts all over the South of Egland, had
been unrepresented. 40
When the Widgery Committee reported, there was a general
consensus that legal aid should be granted stingily for summary
trials. Ten years later, largely as a result of a change in conventional
wisdom, the number of legal aid grants for summary trials had
increased by 1,000 per cent.41
It seems reasonable to assume that the various empirical studies
were at least partly responsible for the dramatic change in the
prevailing climate of opinion.
Another example of the same effect of empirical research is the
field of legal advice for defendants convicted in the higher courts.
In March 1970 the then Lord Chief Justice, Lord Parker, announced
that hopeless applications for leave to appeal to the Court of
Appeal, Criminal Division, might in future be penalised by an order
that part of the time spent appealing should not count towards
the sentence. 42 The power to make such orders had, in the past,
been used sparingly. But provision for advice on appeals under legal
aid was made in the Criminal Justice Act 1967 which had been in
force since October 1968. There had, therefore, Lord Parker said,
Op. cit. note 8 above, para. 180.
35 Ibid. para. 181.
36 Ibid.
34
37 Zander,
" Unrepresented Defendants in the Criminal Courts " 11969] Crim.L.R.
643, Table 12.
38 G. Y. Borrie and J. R. Varcoe, Legal Aid in Criminal Proceedings (1970).
39 S. Dell, Silent in Court (1971). See also, Zander, " The Unrepresented Defendant
in the Magistrates' Courts 1972," (November 22, 1972) New Law Journal 1042.
40 Op. cit. note 39 above, p. 13, Table 2.
41 See text to note 7 above.
42 Practice Note (Crime, Applications for Leave to Appeal) [1970] 1 W.L.R. 663.
499
been sufficient time for the provisions to become generally known
and understood. No prisoner need any longer be without advice
and frivolous applications would therefore be penalised.43
The news of this warning must have flashed around the prisons
since the number of applications for leave to appeal dropped
dramatically. Up to March 1970 these had been running at the rate
of 12,000 a year. Within a short time of the announcement applications
for leave had fallen to a rate of about 6,000 a year-and they
have remained more or less at that level ever since. Lord Parker's
warning was clearly based on the belief that the provisions in the
1967 Act for providing advice under legal aid on the prospects of
an appeal were working. But there was no evidence to show whether
this was so or not.
I was given permission to conduct a survey to try to discover from
prisoners and their lawyers whether defendants convicted in the
higher courts were receiving legal advice and assistance as envisaged
by the 1967 Act. In the event, it turned out that although many
were, a sizeable minority were not.44 Also, in over half of all the
cases (54 per cent.) the lawyers had not troubled to see their clients
immediately after the case was over. The client went down to the
cells to begin his prison sentence, the barrister and whoever was
there from his firm of instructing solicitors went off home without
even a word of good-bye, let alone some reference to the question
of an appeal. 45
The study was published in March 1972. I suggested to JUSTICE
that it might form the basis of a private meeting between those
concerned with the problem, and at JUSTICE'S request such a meeting
was in fact called on a Saturday in May of that year. The Lord
Chief Justice was represented by the late Bean J. and those present
included representatives of the Criminal Bar Association, the Law
Society, the Home Office, the Prison Department, the London
Criminal Courts Solicitors' Association and, of course, JUSTICE
itself. It was held at the office of Master Thompson, the Registrar
of the Court of Appeal, Criminal Division, who had prepared a
working paper. The draft paper was subjected to lengthy discussion
at the meeting and further re-drafts were later circulated.
Eventually an agreed draft emerged and in June 1974, the Lord
Chief Justice issued a Practice Note in which he referred to a
pamphlet on the problem of advice on appeals issued by the
Registrar of Criminal Appeals, setting out the new procedure.4 6
The machinery was designed to provide a fail-safe system to ensure
that every defendant was seen immediately after the end of the case
and then or later received advice as to whether he had grounds of
45 Ibid.
44 Zander,
" Legal Advice and Criminal Appeals" [1972] Crim.L.R. 136-143.
at pp. 150-152.
46 See Zander, " Legal Advice on Criminal Appeals: The New Machinery"
11975] Crim.L.R. 364; (July 3, 1974) Law Society's Gazette 650.
45 Ibid.
appeal and assistance in drafting the grounds. At first the new
machinery was optional, but in July 1976, after it had been in
operation for two years, a directive was issued that in future the
new procedure should be followed in all cases.4 7
This seems to me a good example of the value of empirical
research as a tool of reform. A defined problem was posed by the
Lord Chief Justice's pronouncement. Investigation showed that the
system was not working as it should. Those with relevant interests
participated in detailed discussions as to what might be done about
it. A new system was introduced, at first on a voluntary basis, and
after two years running in, by order. Would that matters always
proceeded in so orderly a fashion.
Empirical studies have played a part in the promotion of change
in a variety of contexts. Bail studies (including those by L.S.E. law
students) were part of the background that led to the setting up of
the Home Office Working Party on Bail which in turn led to the
Bail Act 1976.48 Studies of the unmet need for legal services from
the late 1960s onwards 49 helped to form the climate of opinion
which led to the promotion of law centres, duty solicitor schemes,
legal advice rotas in Citizens' Advice Bureaux, and to a general
consensus, in evidence to the Royal Commission on Legal Services,
that more ways must be found to provide legal services for the
disadvantaged. The campaign for the establishment of the Royal
Commission on Legal Services was triggered by the publication of a
survey of lawyers' earnings in the Crown Courts. 50
Empirical studies have also, on occasion, served to dampen as
well as to fuel campaigns for reform. Study of who gets acquitted,
and why,51 helped to bolster opposition to the 1972 proposals of
the Criminal Law Revision Committee for changes in the criminal
justice system. 52 The C.L.R.C. itself, though it deliberated for'no
less than eight years, neither undertook nor commissioned any
research. The new Royal Commission on Criminal Procedure, by
contrast, has in hand various research projects on aspects of the
way the criminal justice system operates. This may prove a helpful
guide to its proposals. I believe, for instance, that research will show
47 Practice
Direction No. 2 of 1976, Taxation of Costs in the Crown Court,
Allowances to be made in respect of advice on appeal, July 26, 1976.
48 See, in particular, Zander, " Discovering Bail Applicants' Backgrounds " (24
August 1967) New Law Journal; Zander, "A Study of bail/custody decisions in
London magistrates' courts " [1971] Crim.L.R. 191; M. King, Bail or Custody (1971,
Cobden Trust).
49 See for instance, M. Zander and C. Glasser, "A Study in Representation,"
(1967) 107 New L.J. 815; Zander, " The Unused Rent Acts " (September 12, 1968)
New Society; B. Abel-Smith, M. Zander and R. Brooke, Legal Problems and the
Citizen (1973, Heinemann).
50 Zander, " Costs in Crown Courts--a study of lawyers' fees paid out of public
funds " [1976] Crim.L.R. 5.
51 Zander, " Are too many professional criminals avoiding conviction? A study in
Britain's two busiest courts " (1974) 37 M.L.R. 28.
52 Criminal Law Revision Committee, Evidence (General), llth Report, Cmnd.
4991 (1972).
501
that virtually no suspects rely on their so-called right of silence in
the police station.5" If this is broadly right, it makes it less likely
that the Royal Commission will repeat the error of the C.L.R.C.
in recommending that the right of silence should be abolished and
the caution reversed. 4 The C.L.R.C. was so savaged over the right
of silence that it lost its entire report over this one issue.5 5 If it had
done its homework, it would probably have avoided this sorry
outcome for all its hard work.
The advantages of conducting basic research seem so obvious that
it is surprising only that we have come to it so late. But it is also
surprising, perhaps, that it is still done by very few academic
lawyers. Sir David Napley, former President of the Law Society,
last year appeared to suggest that academics were paid to teach
students rather than to undertake research.56 But the duty to
undertake research actually forms part of the contractual obligation
of the academic, and empirical research is beginning to establish
itself as a respectable branch of academic study. I fancy that many
lawyers avoid such research because they fear the methodological
problems and have a horror of statistics. Neither reason is sufficient.
I myself always had considerable distaste for messing about with
figures and can bear witness that there is no truth to the belief that
in order to work with empirical data one must either like numbers
or have some formal training in statistics. One must, of course, be
prepared to master the basic elements of the discipline, but the
purposes to which lawyers need to put statistics are so relatively
simple in terms of the statistical methods involved that this really
presents no fatal obstacles.
One will, of course, still make mistakes, but the possibility of
occasional error is not a reason for refusing to attempt so valuable
a form of inquiry. (The possibility of error is, unfortunately, a
factor whatever one does.)
This, therefore, is a type of research that deserves to be more
actively pursued by academic lawyers, in fields of substantive law
as well as by students of the legal process. One of its satisfactions
is that it offers the opportunity to till virgin territory. To analyse
and rework judgments in the law reports no doubt has its pleasures,
but there is, I think, even greater gratification in actually making
a contribution to knowledge. It was Whitehead who said we should
avoid "a celibacy of the intellect which is divorced from the
concrete contemplation of the complete facts." Empirical research
is the business of developing new facts which may then serve as the
53 See now Zander, " The Investigation of Crime: A study of cases tried at the
Old Bailey " [1979] Crim.L.R. 203-219, especially pp. 211-212.
54 For discussion of this issue see Zander, " The Right of Silence and the
Caution," in Reshaping the Criminal Law, ed. Glazebrook (1978, Stevens), p. 349
and Evidence to the Royal Commission on Criminal Procedure, Pt. I, pp. 85-107.
55 See
Zander, " The CLRC Report-a Survey of Reactions " (October 7, 1974)
Law Society's Gazette.
56 The Times, October 12, 1977, Letters.
basis for such contemplation. Another advantage for an academic
is that students can sometimes be involved in the process 61
7-to the
mutual benefit, I believe, of the research and of legal education.
Of course empirical research is by no means the only way of
promoting change in the legal system, but I have found that it is
often an effective one. In terms of the impact it makes, one small
inexpensive study which produces some relevant statistics is often
worth dozens of wordy and disputatious articles or memoranda.
On the other hand, it is obvious that there are severe limitations
to what any individual researcher can achieve. He is limited in
terms of resources, and time, but even more in that he may be
denied access to the body of material he wishes to study. This is not
the occasion to discuss the considerable range of obstacles placed
in the way of researchers, but it can be said that although things
are, no doubt, improving, the legal profession, the courts, judges
and magistrates, the police, probation officers and prison officials
are alike in still showing a marked lack of enthusiasm about
admitting, let alone welcoming, outside researchers.
For the reform of the substantive law we now have three official
standing bodies-the Lord Chancellor's Law Reform Committee
and the Home Secretary's Criminal Law Revision Committee, both
of which are part-time, and the Law Commission which is, of
course, full-time. All these bodies have, on the whole, been outstandingly
successful in getting their proposals implemented.5 8 None
of the three, however, has done much in the field of the administration
of justice or reform of the legal system itself. I believe that the
setting up of the Law Commission is the single most important
event of this century in the field of reform of the law. Is there not
a case for having a separate but parallel body to concern itself with
reform of civil and criminal procedure and the operation of the
legal system? It would not avoid the need to have occasional grand
inquiries by a Royal Commission or Departmental Committee on
some problem that required either a broader or more expert
membership than could be provided by a standing body. But a
standing body could perform an invaluable role in promoting
reform. The job should be given to a new body rather than to the
existing Law Commission. For one thing the Law Commission has
a distinct image and experience in the field of substantive law. It
would not necessarily be a suitable body to take on the very
different field of reform of the legal system. Also, if the job were
tacked on to the present tasks of the Law Commission it would
57 Published
studies I have done with students are ones on: bail (note 48 above, and
(1979) 129 New L.J. 108); knowledge of the Rent Acts (note 49 above); representation
in the courts (notes 37, 39 and 49 above); care orders in magistrates' courts (July 25,
1975) New Society, and misleading credit advertisements ((1966) 106 New L.J. 1034).
See also King, op. cit. note 48 above and Rights, NCCL. November 1976, p. 11;
and Stephen White [19711 Crim.L.R. 629.
58 See for instance the table at the end of the Law Commission's annual report
showing the fate of its various reports.
503
mean that legal-system reform would at best become the tail of
the dog-with little prospect that the tail would ever wag the dog.
In terms of priorities and potential impact on the citizen, procedure
and systems reform are, in my judgment, if anything, even more
important than reform of the substantive law. It would therefore
be wholly inappropriate to make this a subsidiary activity of an
existing institution. Far better to set up something tailor-made for
the task.
A possible model for such an institution might be the Vera
Institute of Justice in New York.59 Vera in fact is a private body,
but it derives the bulk of its funding from governmental agencies,
and foundations. It was established in 1961 with a small grant of
some $20,000 to investigate the possibilities of reform in the field
of bail and remands in custody. The extraordinary development of
its activities may be judged from the fact that its budget today is
currently over $4 million a year. Its main focus has been the
criminal rather than the civil justice system. In this field, brilliantly
led by Mr. Herb. Sturz 0 who, incidentally, is a non-lawyer, it has
pioneered a great variety of innovations and reforms.," It developed
improved systems for securing the release of defendants on bail
from police stations and the court. By getting the police to increase
the use of summonses rather than making arrests it saved tens of
thousands of man-hours of police time. It put together a scheme for
the rescue of derelict alcoholics from the prison-street-prison
revolving door into a medical and rehabilitation facility. The project
relieves the police and the courts of 95 per cent. of drunkenness
arrests in the Bowery District of New York. Vera's Court Employment
Project intervenes after arrest but before trial to find jobs for
accused persons and thus secure the dismissal of the charges against
them with the consent of the police, the victim, the prosecutor and
the judge. It has established programmes for the treatment of drug
addicts and experimented with new methods for handling juvenile
offenders in their own neighbourhood. It has found ways to save
the time of the police and witnesses by rationalising adjournment
procedures and speeding up pre-trial processes. It started a scheme
to provide practical help for victims of crime.
The modus operandi has always been the same. Some part of the
legal system is identified as apparently not working as well as it
should. Detailed research is first undertaken to analyse the precise
way the system in fact works. A new system is devised by Vera's
staff in close consultation with representatives of the agencies concerned.
An experiment is then undertaken to test the proposed new
59 The Vera Institute was founded in 1961 by Mr. Louis Schweitzer, a retired
New York chemical engineer who named it for his mother.
60 Now Deputy Mayor for Criminal Justice, New York City. Mr. Sturz was the
Director of Vera from its foundation in 1961 to 1978.
61 See Vera Institute of Justice, Ten Year Report (1961-71); and Further Work
in Criminal Justice Reform (1971-76).
system, usually over a substantial period, often of two or three
years. Funding normally comes from foundations or from governmental
agencies. During the experimental period careful monitoring
permits assessment of results. Modifications in the model are
introduced as the experiment continues. Eventually, after sufficient
experience has been developed the new system is taken over by the
government department concerned and Vera withdraws its team.
The pattern has been repeated over and over again. It works.
Vera's fame has spread far beyond New York. It has provided
technical assistance programmes in over a score of jurisdictions in
the United States and now has small offices in both Paris and
London. The London presence was established in 1974 at the
invitation of the Home Secretary, Mr. Roy Jenkins, and is funded
partly by the Home Office. The London office has concerned itself
primarily with problems of bail, supported work for former
prisoners and improvements in courts administration.
Vera's notable success over the years is, I think, founded on three
main elements. One is the careful research it undertakes both at the
outset of a project to analyse the problem requiring solution, and
subsequently in monitoring the actual experiment. Another is that
it maintains an uncommitted sceptical approach to the system and
is, therefore, free from the dogmatic or conventional thinking so
common in those who operate or run the system-in whatever
capacity. Thirdly, it has built up a reputation for being neutral as
between the participants in the system. It has worked to achieve
improvements for the benefit of all the main actors, the police, as
well as defendants, victims as well as administrators. The reputation
of not having any special axes to grind greatly strengthens the hand
of any reformer.
The methods used by Vera can be likened to those of 0. and M.
experts. But there are important differences. 0. and M. teams are
expert in systems management generally, whereas Vera has a
specialised knowledge of the legal system which gives far greater
authority to any recommendations it may make. But even more,
whereas the 0. and M. firm is mainly concerned with efficiency,
Vera is also, and perhaps even more, concerned with justice. This
gives it the impetus itself to initiate and promote reform rather than
merely providing consultancy services on request.
I believe that some adaptation of the model might be valuable
here. Vera's experience in London over the past four years has
already demonstrated the value of the concept. The Home Office
has recently renewed its contribution to the funding of the Vera
office and appears to regard the experiment as a success. The
question now is whether it should continue in the present form, as
a tiny one- or two-man London off-shoot of a New York office,
or whether we should not consider establishing a full English
505
equivalent of Vera (hopefully retaining some American involvement)
with the whole legal system as its field of concern.
It might, for instance, be possible to envisage an Institute of
Justice financed jointly by the Lord Chancellor's Department and
the Home Office, possibly with some contribution also from the
S.S.R.C. or private foundations. It would be important to establish
the Institute outside the government departments so as to give it
sufficient freedom of manoeuvre and the opportunity to act as a
catalyst for change which the departments themselves might lack
the will or energy to promote. The main purpose would be to add
the extra ingredient of an experienced and trusted outside agency
to put forward new ideas and to test them operationally. If they
work they can be adopted, if they fail they can be abandoned with
no loss of face for the government department concerned. An
institute concerned with reform of the legal system could be as
important in this field as the Law Commission in the field of substantive
law. It should also pay for itself many times over by
increasing the efficiency of the system.
I would make one further observation. That is that we have
become much more successful in recent years in institutionalising
dialogue and discussion. One example is the Law Commission's use
of working papers circulated for comment at an early stage of the
preparation of a final report. Another is the setting up of regular
meetings between those concerned with a particular field. Thus,
the leaders of the Bar now meet with the leaders of the Law Society
for the annual week-end at Bath.62 The National Association of
Citizens' Advice Bureaux has a quarterly meeting of its Legal
Services Group, where bureau organisers meet with representatives
of the Lord Chancellor's Office, the Home Office, the Law Society,
the Bar, the Legal Action Group, the Law Centres Working Group,
the Labour Lawyers, the Conservative Lawyers, etc. The Lord
Chancellor's Legal Aid Advisory Committee sponsors regular
conferences for those concerned with the legal services field.63 The
Law Society has recently established regular meetings with the Law
Centres Working Group. One of the chief benefits of such meetings
is that the individuals concerned get to know each other-and
thereby come to have a better understanding of each other's
positions. Secondly, the mere fact that such meetings take place
generates points for discussion which would otherwise not be dealt
with at all. It would not be worth specially convening a meeting for
many of the items on the agenda, but if a meeting is to take place
on a regular basis, much business of real value can be transacted to
smooth out problems of the operation of the system. Thirdly, the
very fact that the meetings are regular makes it easier to establish
62 Bar Council, Annual Statement (1977-78), p. 53.
63 See
for instance, 26th Annual Report on Legal Aid (1975-76), p. 73; 27th
Annual Report on Legal Aid (1976-77), para. 31, p. 68.
good working relations between individuals representing different
points of view. Where people meet only when a crisis of some kind
blows up they tend to negotiate from entrenched positions. Where
they meet regularly to discuss whatever items of business happen to
come up from time to time, the meetings are lower key and involve
less danger of the discussions becoming infected by antagonistic
attitudes. At the same time, the lowering of the temperature of the
discussions makes it easier for those participating to be persuaded
to accept some modification of their own point of view.
It is for somewhat similar reasons that I hope that the Royal
Commission on Legal Services will propose the establishment of a
standing advisory committee to provide a continuing review of
problems in the legal services field. " A Royal Commission is crisis
intervention-very necessary in certain rare circumstances, but not
something that can be contemplated more than once or twice a
century. The advantage of such a formidable inquiry is that it
forces everyone involved in that field of activity to respond with
immense expenditure of time and effort to a sudden call for detailed
evidence, which is then scrutinised by an independent group of
individuals consisting of both experts and non-experts. By the time
they have worked intensively on their remit for two or three years
even the lay members of a Royal Commission are likely to have
an impressive grasp of the problems. But when the report is
published they disperse and their hard-won, shared expertise is lost.
The report of a Royal Commission may be necessary to survey the
ground and to lay down guidelines for the short- and medium-term
future, but there would be great value in then having the continuing
year-to-year guidance of an informed and expert advisory body to
monitor developments on a longer term basis. There could then
develop the kind of constructive dialogue and interaction between
the advisory body and the vested interests in the field that has
existed, for instance, between the Lord Chancellor's Legal Aid
Advisory Committee and those concerned with the field of civil
legal aid.
In this narrow area the model has proved itself. I can see no
reason why it should not work equally well in the broader field of
legal services generally or, for that matter, why it would not have
much wider application still, for instance, in the criminal justice
field or, indeed, outside the field of the legal system altogether.
The object is to have some body or institution close to but
independent of the vested interests that can, over the years, acquire
the confidence of those in the field by being good at listening, by
making proposals that are regarded as broadly sensible, and by
mediating between the different factions. Such a body, if well
manned, may stimulate a steady rate of useful progress. Far better
04 See
further, Zander, Legal Services for the Community (1978), pp. 258-267.
507
to have gentle but steady progress than to lurch from one dramatic
and bruising grand inquiry to another.
All that I have said today, of course, is based on the assumption
that reform is a worthwhile objective. I am aware that for some this
is not so. On the one side there are those who feel that any change
is likely to be for the worse. These souls are too complacent for my
taste. On the other side there are those for whom reform is the
enemy of progress-the patching-up of a system that is so defective
as to be beyond redemption. I confess that I equally have never
been greatly sympathetic to this school of thought. Evolution has
always seemed to me preferable to revolution. One reason for this,
no doubt, is that contrary, perhaps, to the belief of some, I am an
unreformed liberal democrat with a distaste for precipitate change.
But another is that observation suggests that change is most likely
to be successful where it is achieved with the consent (or at least
the acquiescence) of those affected, after discussion and persuasion.
This virtually rules out revolution. No doubt there are situations
so desperate that revolution is the only way to proceed, but it can
hardly be said that the English legal system, granted all its faults,
is an example of such a case.
My experience is that where solid arguments can be advanced as
to why change is needed, change can often eventually be achieved.
Sometimes it even happens with remarkable speed. The process of
putting the case for change offers one of the best tests of
democracy and of the rationality of institutions and the people who
run them. One should not delude oneself into thinking that one will
ever bring any part of the system into a state of grace or perfection.
Worse, sometimes one's best endeavours go awry and honesty compels
the admission that the cure has proved worse than the disease.
But this should only spur further efforts. The challenge is to make
the system work better. Since there is considerable room for
improvement almost anyone with some interest in the system can
make a contribution.
MICHAEL ZANDER. *
* Professor of Law, London School of Economics