This book is interesting for three distinct reasons. First, it adds to the developing literature on what is clearly a crisis in criminal justice in the UK. Secondly, it deploys Bourdieu in a manner that illustrates the value of his work in breaking out of a false dichotomy of either voluntaristic individualism or institutional or structural determinism. These two contributions are consciously made and expressly the aim of the author. Thirdly, and unselfconsciously, the study throws a light on the problem of making a practical ‘virtue ethics’ approach to modern legal professional practice.

The slow crisis in criminal justice has several aspects. The funding of defence lawyers through legal aid has been inadequate for many years and concerns around sustainability of services for defendants are explained in the first report of the Criminal Legal Aid Advisory Board.Footnote ¹ The Law Society has provided guidance for firms to try to ensure they do not inadvertently enter into contracts to provide criminal legal aid that are uneconomic.Footnote ² However, the underfunding is not limited to legal services for defendants.Footnote ³ The Crown Prosecution Service (CPS) has seen years of real funding cuts,Footnote ⁴ and there has been a substantial programme of Court closures across the country.Footnote ⁵

Bourdieu is probably best known for his concept of ‘cultural capital’, an idea he uses in exploring class distinctions.Footnote ⁶ His work sees what he calls the ‘social field’ as being created by the actions of social actors over time, actors who in turn are affected by the social field which they respond to by developing a ‘habitus’ or way of being as individuals.Footnote ⁷ Thus, his work avoids viewing either social institutions and structure or individual actors as determined by the other – it rejects such a binary analysis because each forms and is formed by the other. It is this feature of Bourdieu that led Thornton to adopt his approach in his research.

Virtue ethics as an approach to ethical – or unethical – conduct has become increasingly influential across the common law world in scholarship concerned with professional education, training, and practice.Footnote ⁸ It is usually based on the work of Aristotle in the common law world, but there are also important traditions of virtue ethics derived from Indian and Chinese traditions.Footnote ⁹ One problem with a virtue ethics approach is that it rests upon a developmental view of the character of an adult, a development that is conditioned by innumerable environmental influences. This can make it difficult to operationalise for an educational or other policy intervention. At this point the richness in similar but different approaches across world traditions becomes a problem.

Thornton does not notice that his approach to the formation of professional habitus, informed by Bourdieu, illuminates what virtue ethics would describe as the formation of character. Thus, as is argued below, his work holds a value that the author has not identified.

Thornton interviewed, either face-to-face or by telephone or video call, 50 professionals working in criminal justice legal roles acting for defendants or the prosecution. The interview data was divided for analysis into several sites of action: the police station; the magistrates’ court; and the Crown Court. There was no prosecution presence at the police station and the relevant material was solely concerned with representatives of defendants who provided advice to defendants. For both the Courts defendant and prosecution lawyers were present and were represented among the interviewees.

He subjected the interviews to content analysis by sites of action, and identified the main themes for interpretation of them. In all sites these included pressures on time, inexperience of many practitioners, and a threat of burnout or exit from the field of practice. Behind both time pressure and the deployment of inexperienced personnel were direct financial difficulties, due to levels of legal aid funding for defence and through cuts to resources agreed with the Treasury for prosecution – hence the framing of the book as criminal justice in a time of austerity. Burnout and exit from the field were in turn due, at least in large part, to the pressures on time and prevalence of inexperienced practitioners in the field, which was a marker of its low status.

Thornton used his analysis of these interviews, and a thorough knowledge of, and use of, the existing literature to inform his description of how practice has developed over the period of the policy of austerity adopted by recent British governments. The book devotes separate chapters to each site of practice and focuses on previously identified threats in each site: the possible inadequacy of legal support to counterbalance the impact of the site’s architecture of power at the police station; the adequacy and correctness of plea advice at both magistrates’ courts and Crown Courts.

The pressure on time caused by inadequate funding were present at all three sites but were most acute at the police station, which defence practitioners saw as unprofitable but necessary both in the interests of justice and to find new clients for more remunerative work. Time pressure had a serious impact in the magistrates’ courts, which were not sufficiently profitable to sustain a legal practice but provided some cash flow. Finally, it was less severe at the Crown Court, which was the only site which did generate profit and was therefore essential to any sustainable practice in criminal justice.

Throughout all sites of practice Thornton found time pressures tended to produce extreme restrictions on the availability of personal support, which he termed ‘tender loving care’ or TLC. Practice was more transactional and even performative, and less relational, for legal aid funded defendants, and some interviewees contrasted what they could offer to privately funded clients when explaining what was not available to those reliant upon legal aid. Across the two courts, preparation was under constant pressure and as a result was often not adequately performed by either defence or prosecution.

A particular problem was identified for defence legal support in Youth Courts, which suffered even more acutely with problems of inadequate funding and dominance of practice by inexperienced personnel. This in a field that was often more complex than other areas of practice, and on occasions dealt with serious crime and serious impacts upon defendants.

Thornton also engaged with the question of how information technology – specifically, remote provision of legal advice – might impact upon the field, and especially upon defence work. This topic was rather thrust upon him as his research spanned the period of Covid lockdowns and the use of remote techniques, at the police station and across both courts.

As noted above, to understand what his interviewees and the literature described, Thornton deployed the work of Pierre Bourdieu. He sets out the relevant parts of Bourdieu’s theory with special emphasis on the social field and how it structures individual habitus. He used Bourdieu’s concepts to analyse the data gathered, taking the field of legally-aided criminal legal practice as the relevant social field.

The deployment of Bourdieu highlights the interactive nature of economic and professional structures with individual professional practice. Thornton argued that he could thereby avoid either an overly structural analysis in which lawyers’ behaviour is determined, or an overly individualistic account which reduced the behaviours of professionals to manifestations of character. He framed this need for a more interactive account in terms of an objectivist and critical versus a subjectivist and justificatory tendency in the literature. Habitus is shaped by the social field but also shapes it in turn. Applying Bourdieu shifted the focus from evaluating the professionalism of lawyers towards trying to understand how and why practice evolves as it does, and the consequences of evolving practice norms for those caught up in the criminal justice system.

Thornton applied Bourdieu to each site of practice in a reiterative fashion after describing the site and his findings for defence and – where applicable – prosecution. In doing this, he deployed the concept of ‘hysteresis’ to powerful effect. Hysteresis is the experience of one’s cultural capital being out of alignment with one’s social field. Time and again Thornton illustrated how this is the subjective mechanism through which the field impacts upon practitioners – driving them towards either exit or adaptation to the demands of the field. Habitus is moulded by the experience of being out of alignment with the field and, as individuals leave or adapt, the field shifts, thus generating more hysteresis for those who remain committed to practices and values unaligned to the realities of the field.

It is this aspect of Bourdieu’s theory – the shift in practice and values brought about experientially over time – that most clearly links with virtue ethics. Virtue ethics encapsulates a long tradition of seeing ethical practice as less an intellectual position and more of a practice of life. It is an approach to ethics that pivots away from rules or commands and towards attention to how habit, one’s habitual way of acting and responding to the world, shapes ethical character.Footnote ¹⁰ As set out by Aristotle and developed by Moses Maimonides, classic Western virtue ethics emphasise this recognition of the importance of habitual behaviour in ethics, and the importance of such habitual conduct has been recognised by contemporary ethicists.Footnote ¹¹ Bourdieu’s concept and use of habitus emphasises the habitual and often unconscious nature of people’s behaviour. When Thornton considers the potential for the habitus of lawyers to generate unethical conduct – unethical, as the interests of a defendant client may be subordinated to the interests of the lawyer – the resonance with this aspect of virtue ethics becomes apparent.

If we start with a statement by Maimonides:Footnote ¹²

We see that he ascribes ethical character to practice, and he argues that practice arises from the common practices of a person’s society. Repetition itself – habit – produces ethical conduct, and not intellectual pondering of what ethical principles would demand in everyday life.Footnote ¹³ This mirrors Bourdieu, who recognises that ‘different conditions of existence produce different habitus’. Different practices produce different character traits (habitus), which structure how the world is seen and how people act, which in turn becomes the conditions which generate habitus:Footnote ¹⁴ ‘The habitus is not only a structuring structure, which organises practices and the perception of practices, but also a structured structure.’ Both approaches recognise that character/habitus is built up from acting over time in a social context, is not wholly conscious, and that it affects perception, or what is noticed, as well as intellectual judgement, or what is considered to be good, or right, or beautiful.

Thus, we can understand how practice in a time deprived, undervalued, and complex field such as criminal justice in a period of inadequate resourcing, can generate unethical character traits and behaviours. Habitus or character is a condition, not a decision, and it channels perceptions and reasoning, rather than being governed by conscious reflection and reasoning. Thornton refers to this quality as the way practice decisions feel like common-sense or just the way that things are. To illustrate from interviewee comments on advice on plea in the Crown Court:Footnote ¹⁵

And:Footnote ¹⁶

The decision on plea is not straightforward and might be thought of as ethically indeterminate. However, that is the most dangerous situation in which to have financial pressures that present an incentive for advice that might be against the interest of the client. Although interviewees tended to see other practitioners as being swayed by the personal interest in advising to plead not guilty,Footnote ¹⁷ the capacity to not pay attention to the weight of self-interest (as in the first quotation above) or to rationalise self-interest (in the second quotation above) is genuinely capable of fuelling self-deception.Footnote ¹⁸

As Thornton argues, the effect can be even more elusive as the very uncertainty that generates the subjective freedom to manoeuvre ethically in line with self-interest can be generated by the understanding by the practitioner of the field, his habitus.Footnote ¹⁹ This problem of the invisibility of the ethical stress of normal conduct within a specialist field of practice is not unique to criminal justice in austerity,Footnote ²⁰ but this is a field that generates a dangerous set of pressures upon legal professionals and the quantitative evidence that does exist suggests that financial incentives do affect advice.Footnote ²¹

Thornton makes it clear that austerity funding, or inadequacy of funding, has deleterious effects upon both the defence and the prosecution. One strength of the book is that it shows that the problems are systemic problems for the criminal justice system. The underfunding of criminal justice has led to a glacial crisis, as noted by the Audit Commission in 2024:Footnote ²²

The Commission also noted that a Ministry of Justice plan to reduce the backlog over four years from 2021–2025 was unrealisable on the updated projections of the Ministry.Footnote ²³

On an individual level – the level at which defendants, and victims, witnesses, and legal professionals encounter the system – the consequences are depressing and distressing levels of neglect of the physical environment, and a higher degree of unpredictability of outcome.

Interviewees noted the physical decay at both magistrates’ courts and Crown Courts. In reference to the magistrates’ courts:Footnote ²⁴

And for the Crown Courts:Footnote ²⁵

In short: an environment that is demoralising for everybody who has reason to attend. An environment that suggests criminal justice is a low priority in modern Britain. Unfortunately this apparent neglect of justice is not merely skin deep. The risks of injustice face both defendants and victims, in the words of one defence solicitor:Footnote ²⁶

The use of Bourdieu helps us to understand the difficulty facing any attempt to improve the current situation. The habitus of practitioners shapes the field and simply introducing better funding will not restore practices to the state they were in before austerity cuts ravaged criminal justice. This can be illustrated by the reactions of some practitioners to the measures for remote working introduced during the Covid crisis, a subject Thornton discusses in Chapter 6 of his book. For time-pressured defence lawyers, and as noted above that is all defence lawyers, remote working led to great efficiencies, cutting out travel time and waiting around at police stations or courts. With an austerity habitus that accepts that TLC is unaffordable on legal aid and preparation must be done on the run, remote working was an opportunity:Footnote ²⁷

The governing imperatives of austerity practice continue to shape behaviour, as the system and circumstances change. Therefore, one predictable consequence of alleviating the underfunding by lifting fees will be opportunistic behaviour by lawyers who can make more money by continuing with the time-saving practices that they were forced to adopt in order to survive under austerity. Practice is not infinitely plastic and capable of manipulation by funding agencies; it is both intelligent and habit based, both collective and individual.

The provision of criminal justice by the state is an essential practice if popular support for the rule of law is to be maintained. Although Thornton does not place his research in such a frame, it remains a very illuminating account of how far current state provision of criminal justice is from any justifiable model. It also helps us to understand that, even if the political will is forthcoming, there will be no easy fix for a decade of neglect. His use of Bourdieu enables Thornton to shift away from a discourse of justification or blame and towards a discourse of cause and effect. It also, it is argued above, enables his research to be integrated into an older and important approach to ethical behaviour generally known as virtue ethics, and helps to operationalise the insights of virtue ethics for social science scholarship.