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16 May 2020

The Criminal Scandal of the Criminal Justice System

Tag(s): Current Affairs
As a boy I was fascinated by the Law, particularly the Criminal Law. I devoured TV shows like Perry Mason and the hilarious BBC series Brothers in Law based on the books by Henry Cecil. This passion turned into an ambition to become a barrister and I wanted to read Law at Oxford University. I therefore made sure I took the A Levels that were judged as the best preparation for this, i.e. English, History and Latin. I duly won my place at Oxford and got a good degree in what Oxford called Jurisprudence. However, by my third year, when I should have been applying to Law School for the next stage of my qualification to be called to the bar, I had decided not to fulfil my boyhood ambition. 

I had two reasons. First, the Law is dynamic and that is a good and healthy thing. It constantly changes, either by Parliamentary statute or through developments in Common Law as new cases present themselves to the judiciary. Therefore, to remain up to date a lawyer would need to spend a lot of time in the library and I had spent enough time in the library and wanted to get out and do something. The second was that I had spent a year in the United States on an exchange scholarship and had developed a travel bug. I did not want to commit the whole of my working life to a single circuit like London or Manchester. And I was right as I later went back to the USA to work and then on to Chile where I met and married my wife. I have transacted business in over 40 countries.[i]

However, I never lost my belief that the British system of criminal justice was the best in the world. Until now. The Secret Barrister is a junior barrister specialising in criminal law, and the author of the award-winning blog The Secret Barrister writes for many newspapers and the Huffington Post. In 2016 and 2017, the Secret Barrister was named Independent Blogger of the year at the Editorial Intelligence Comment Awards. In 2018, the Secret Barrister was named Legal Personality of the Year at the Law Society Awards. In 2019, they were named in The Lawyer magazine’s ’Hot 100’ list, the first ever anonymous figure to be included.

Their first book The Secret Barrister: Stories of the Law and How It’s Broken[ii], was a Sunday Times top-ten hardback bestseller for 24 consecutive weeks’.  In the book, the author outlines what actually happens in English courtrooms today as opposed to what most of us think happens. Most of us never see the inside of a court room but if we for some unexpected reason did find ourselves as the defendant in a trial we would expect a fair trial. As we have all watched shows like Perry Mason, Rumpole or Kavanagh QC we are familiar with the adversarial nature of a criminal trial. In a civil case one party brings a case against another whether it’s a contract dispute or a tort or a divorce. That too is adversarial but it’s one person or organisation against another. In a criminal trial it is the state against the accused.

Because of the current crisis there is an acute backlog of jury cases because no one has figured out how to maintain social distancing in a trial by jury. But the average English citizen probably feels instinctively that trial by jury is right and a defining characteristic of the English system of justice. We think of it as an ancient right, that an individual has the right, enshrined in law, to be tried by their peers. And they probably also think, that it is the state’s job to prove guilt. The defendant is not required to prove their innocence, though their barrister will certainly try to do this, if, for example, he can demonstrate that his client has an alibi, or that a witness for the prosecution is lying or mistaken.

But is this what is actually happening today, or is it just a myth that we’ve all believed in without question?

The stakes may be high in a civil case. If you lose you might lose some money, or some goods or in the worst case, the right to see your children. But in a criminal case the stakes may be very much higher. Up to 1965 you might lose your life. And in any serious case you might lose your liberty. The Secret Barrister describes how despite the noble principles that underpin the system, despite the international prestige, their experience is that the criminal justice system is close to breaking point. Access to justice, the rule of law, fairness to defendants, justice for victims, are each day incarnated in effigy, rolled out in the Crown and magistrates’ courts and ritually torched.

But it’s not just this anonymous barrister who says this. The House of Commons Public Accounts Committee produced a report in May 2016 entitled “Efficiency in the Criminal Justice System” and it began with the words “The Criminal Justice System is close to breaking point” but not one single newspaper thought it particularly newsworthy and certainly less so than a confected scandal over Britain’s got talent!

All criminal cases start in a Magistrate’s Court and of the 1.46 million individuals brought before the magistrates each year only 6% are referred to a Crown Court where they will find a jury to decide their fate. There are about 150 Magistrates’ Courts and a case will be decided by three of the 17,500 serving magistrates. These worthy citizens are volunteers but few if any have formal legal qualifications. Criminal cases today are divided into three categories. The least serious ‘ summary only case’ offences – motoring offences, common assault, minor public disorder – can only be tried in the Magistrates’ Court. The most serious ‘indictable only case’ offences – murder, rape, possessing firearms, serious violence and so forth – can only be tried in the Crown Court. In between these two extremes are open ‘triable either way case’ crimes – e. g. burglaries, drug transactions, semi-serious violence and garden-variety sexual offending, and they can be heard either in the Magistrates Court or the Crown Court and the first appearance is used to determine which venue is most suitable. But in the open ’triable either way case’ cases the defendant has the right to elect to go before a jury in the Crown Court.

Over the years there have been many attempts to speed up the system and reduce its cost. There have also been attempts to diversify the types of people who become lay magistrates. But the majority still come from a different stratum of society than most of the defendants who come before them and statistically they are more likely to find in favour of the Crown. In 2016/7 the Crown Prosecution Service (CPS) prosecuted 52,140 trials in the magistrates’ Court of which 64% resulted in conviction. Over the same period, the CPS prosecuted 14,967 trials of which 52.2% resulted in conviction. In other words, you have a 23% better chance of being acquitted in the Crown Court.

The first thing a defendant will ask his barrister is “Am I getting bail?” This decision is taken by magistrates with advice from the police. If bail is not granted the defendant is remanded in prison. At this point in time no one has decided if he is guilty. But he goes to prison anyway. This could easily be for six months or so. Then comes the trial and in 2016 15% of remand prisoners were acquitted or not proceeded against. The state makes no apology or compensation.

Various bodies can bring a prosecution but the overwhelming majority of prosecutions in England and Wales - 588,021 in 2016-7 – are brought by the CPS. This organisation is chaotic. Court deadlines are repeatedly missed, cases arrive unprepared, evidence gets lost, disclosures are not made, victims are made to feel marginalised and millions of pounds of public money are wasted. As a result, every single day probably guilty people walk free.

And then there is the victim. Because of the chaos in an increasingly underfunded justice system they are often kept waiting for months, even years, before they can come to court to give evidence about their shocking experience. They get little if any support and for most their appearance in the witness box will be the first time they have seen the inside of a courtroom. Despite various initiatives by governments of all colours only 55% of peole who have been a victim or a witness in the proceedings would be prepared to go through it again.

The relentless slashing of legal aid is undermining the long established principle that everyone is entitled to a proper defence. Key to that defence is the role of the solicitor in gathering evidence, preparing a brief and advising the client of his options such as guilty pleas. But publicly funded solicitors are dying out as they cannot make a living. The popular image of lawyers is that they are fabulously well paid. This is no doubt true of top corporate lawyers advising on tax and other financial issues but it is absolutely not the case with criminal barristers and solicitors.

The author describes the problem of the innocence tax. This applies to people who are wrongly accused of some criminal offence but are in the middle income bracket; they are not so poor as to be able to claim legal aid but nor are they so rich that they can afford to pay for their own defence. You may succeed in your defence but you might lose your house to pay the costs.

The English system is founded on adversarialism. This is different from the Inquisitorial system found in several European countries.  In adversarial caess both the prosecutor and the defender are looking for a result by throwing as much doubt on their opponent’s case as possible. This is not the same as seeking truth. In the inquisitorial system the public prosecutor is seeking truth and will present that truth in a court of law once his case is complete. Traditionally we English have believed our system to be superior but we should recognise that it is very capable of producing distorted results.

However, on balance the author reached the conclusion that it is a myth to believe that the state will always be impartial. The state under both systems is capable of bias, this can be institutional or at the level of the presiding judge.

Sentencing is another minefield. There are thousands of pages of legislation that cover sentencing guidelines.  80% of the British people believe that sentencing is soft and almost certainly the opposite is true. Clearly this is another area where prejudice may influence a judge. We also know from masses of evidence that sentencing rarely achieves its objectives. In my coursework at university I studied Criminal Law and Penology and got to know the different rationale for sending someone to prison. The reasons range from a desire to punish, the need to deter others from similar crimes, and the need to rehabilitate the criminal. It is this last rationale where society fails absolutely. Most prisoners will commit further crimes on release. Our prisons, which must be regarded as part of our criminal justice system,  are just as badly underfunded as the rest of the system and are a disgrace.

If Dostoyevsky was right, and the degree of civilisation in society can be judged by how it treats its prisoners – those who have been justly convicted – an equally valid test surely is how it treats those who are wrongly convicted, and have suffered manifest injustice at the hands of the state.

On this count the author fears we do not acquit ourselves well.

When cases go to appeal they very rarely succeed.  99.87% of all convictions in 2016 were upheld. But when someone who has been wrongly convicted and has been imprisoned for many years is finally released after a successful appeal the state again makes no apology and no compensation for that loss of liberty.

In this blog I have barely scratched the surface of the content of this excellent book and indeed the author says pretty much the same about their own work. They haven’t had time to consider all the problems in the youth sector and particularly the serious problems of the dismantlement of the probation service. While there have been many complaints about what has been described as the austerity programme of the coalition government and indeed there were cuts to other public services what is surprising about the criminal justice system is how little this has been covered by the media while there is endless coverage of the NHS which has not in fact had cuts to its funding.

The media has been preoccupied with the Brexit question with the effect of leaving out proper public discourse about many other vital questions. Now the coronavirus problem has pushed even Brexit to the margins as public debate is now really only taking place about the admittedly highly challenging question of how to balance the needs of the health service and others in fighting the virus with the need to ensure that we don’t kill the economy with even worse results. But in this blog I hope I’ve shed light on what I regard as another grave failing of the state; the appalling mismanagement and negligence of the criminal justice system in all its elements.

[i] I have visited another 35 purely for pleasure.
[ii] The Secret Barrister: Stories of the Law and How It’s Broken Macmillan 2018 London

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