Take (what they say) with a pinch of salt: Engaging in Empirical Research to Understand the Parameters of the ‘Quality’ in ‘Poor-Quality Defence Lawyering’

Abstract

The criminal defence lawyer is an essential component to the equality of arms, due process, the enforcement of the prosecution’s burden of proof, and to the right to a fair trial. Despite this, little attention has yet to be paid to what the different qualities of legal defence assistance—whether adequate, effective, sufficient, etc.—actually amount to. This article presents the methodology and results from a comparative empirical legal study on the quality of criminal defence advocates in England & Wales and Belgium. The study presented, and the wider PhD research to which it forms a part, seeks to construct a theoretical framework by which poor-quality (insufficient) defence representation may be identified, understood, contextualised, addressed and remedied. To this end, the empirical research undertaken and outlined in the article which follows focuses on a particular source of information: the data acquired from semi-structured interviews held with defence practitioners about their (own) perceptions, opinions and experiences of the quality of defence representation.

The article discusses the extent to which lawyers are a reliable source of data and the usefulness of empirical research as a means by which legal theory may be developed, articulated and tested. If, for example, quality lawyering is to be defined in the hope of demarcating “sufficient” quality from “insufficient”, then it is both natural and necessary to involve the subjects of this research, the lawyers. A qualitative empirical study which utilises constructivist grounded theory and critical realism is, this article suggests, one means by which this delineation may be ascertained, one which also seeks to contextualise the data obtained whilst acknowledging the role and effect of the researcher in question.