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The criminal justice system is grinding to a halt, and the problems go far beyond just the recent legal aid cuts
The criminal justice system is collapsing but no one seems to care. I know what some people will be thinking: here we go, another criminal lawyer bemoaning his or her lot; another plea for more money for legal aid. Well, yes. But the malaise in the criminal justice system now goes much deeper than that. For the vast majority of cases, it doesn’t work anymore: it staggers on from day to day, avoiding calamity because of good will or good luck. It relies on the fact that many people outside its confines will never experience what it’s really like (and when those people do, such as the odd former cabinet minister, they can hardly believe how badly it works).
The ‘system’ is in danger of turning into a ‘process’, with successive governments keen on turning it into a conveyer belt to prison. The Crown Prosecution Service, court staff, and defence lawyers are all overworked and under-resourced to breaking point.
‘Successive governments have been keen on turning the criminal justice system into a conveyer belt to prison.’
A couple of examples from the last few months:
•In one of my local magistrates courts, we had listed a matter several times for non-disclosure. There didn’t appear to be an argument that we were not entitled to this material, but we couldn’t get the CPS to respond. The attitude of the district judge was: ‘What do you want me to do about it? If I make an order, they won’t respond. This is summary trial; get on with it.’ Summary justice, indeed.
•In a crown court trial, where the court had ordered disclosure, and we made several attempts to speak to the CPS, I put a ‘read receipt’ on the email to the CPS, so it would notify me when the email had been opened. Instead, the response I got was: ‘Your email has been deleted without being read.’ This was three weeks before a two-month trial.
I am not speaking here for the ‘union of defence lawyers’, here to castigate the CPS and the courts. I recognise the same fallibilities on our own side. Defence lawyers, me included, will say that there is a pressure to slash the care and attention that we give to our own cases. Something more fundamental is at stake here: the idea that all of us are part of a public service, with our own roles to play; and that the same system of justice should exist, no matter what the social status or means of the victim; no matter what the social status or means of the defendant.
It is that idea that seems to have broken. A US lawyer recently remarked that a guilty rich person has a better chance of acquittal than a poor innocent person in the US. I rather fear that we are moving in the same direction. The big cases in the UK are still meticulously prosecuted, defended and overseen by the courts. The problems are lower down the food chain. The chronic underfunding of the CPS, the proposed privatisation of probation, and the legal aid reforms make for a cocktail that will do nothing to ensure fair trials for defendants, justice for victims, or rehabilitation for offenders. It undermines the very things that we want for our criminal courts.
‘A US lawyer told me a guilty rich person has a better chance of acquittal than a poor innocent person in the US. I fear we are going the same way.’
Nowhere can the erosion of the rule of law be better seen than the (as I write, forthcoming) Global Law Summit held, with government blessing, to mark the 800th anniversary of the Magna Carta. The Magna Carta is perceived as embodying ancient personal liberties. The celebration has been treated as a business networking opportunity for modern day business barons rather than the document Lord Denning described as ‘the greatest constitutional document of all times.’ That is why wealth managers and firms that advise on tax avoidance are attending the celebration, not legal aid lawyers. I was pleased to support the Justice Alliance’s boycott. It is cynical beyond belief to market the rule of law while it is collapsing around you.
I am under no illusions though that money alone can solve these problems. In my former role as a councillor, I have been lucky to be involved in other areas of the public sector, health, local authorities and education. I can honestly say that nothing is as dysfunctional as the criminal justice system. We need a fundamental re-think about what we are doing, be it by a Royal Commission, or another route. So rather than concentrate on rhetoric of ‘victims’ rights’, or slashing legal aid, we need a radical approach – will anyone be brave enough to tackle it?