Bad law reporting and a public dangerously disconnected from criminal justice

I have today written a piece for Legal Cheek, in which, like a stuck record, I bemoan the standard of public legal education and tabloid law reporting, and submit that the public should be outraged by the justice system — but not for the reasons they think.

If this sounds like your sort of thing, the article is here.

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9 reasons why this vile murderer should be given taxpayers’ cash to sue the government

Just a quick one. A number of people online were yesterday disturbed by this tweet from court reporting Twitter account @CourtNewsUK, relating to Michael Adebolajo, one of the two murderers of Drummer Lee Rigby:

The story has been picked up by The Mirror, which gasped with similar horror that a “top judge” has “insisted [Adebolajo] should be given taxpayer cash to pay for his court fight against the Ministry of Justice.”

The anger has burned through the night and looks set to smoulder for the rest of the day, Radio 4’s Today programme finding space for a mention among its bulletins. And I understand why. On its face, this appears an instinctively unjust state of affairs. A High Court Judge loftily calling for yet more taxpayers’ hard-earned money to be poured into the pockets of a man guilty of unspeakable savagery.

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But scratch beneath the surface, and you quickly see that there’s more to this story than the tweet suggests. For a start, no decision has been made to grant Adebolajo legal aid for his personal injury claim against the Ministry of Justice, which arises out of injuries he sustained while being restrained by prison officers. Indeed, personal injury practitioners will correct me if I’m wrong, but I understand that legal aid for claims of this type is vanishingly rare. And proceedings are still at an early stage; today’s hearing at which the judge’s comments were made was a preliminary hearing. Details are scant. It is not clear whether the claim has any merit at all; whether it will run to trial, or whether it will be struck out as entirely frivolous.

But let’s suppose that the claim is heading for a trial. And let’s suppose the judge’s comments above were fairly and accurately reported in their full context [SPOILER – they were not, and we’ll come to that]. Here, resuscitating a thread I posted yesterday, are my thoughts on why legal representation should be made available to Michael Adebolajo, at taxpayer cost if need be:

  1. Any trial will take far longer if he is not legally represented. The conclusive experience of the courts is that legal proceedings involving unrepresented parties take far, far longer than when lawyers are instructed. The reason is simple – law and court procedure is hideously complicated. It cannot be – despite what some DIY law websites will tell you – be mastered through Google. Unrepresented litigants, even those who are impressive experts in their own professional fields, will make errors and cause delays. Lawyers are trained to hone in on the issues of law and fact that best support their case. Litigants-in-person may not appreciate their best points, or how to concisely argue them, or how to apply the law. Judges loyal to their judicial oaths are required to assist litigants as best they can to ensure fairness, but this all takes time. The experience of the family courts, in which 34% of cases now involve unrepresented litigants on both sides since legal aid cuts in 2012, bears witness to this.
  2. Any trial will be far more expensive if he’s not represented. This follows logically from 1. The more court time that is taken up dealing with a case, the greater the cost to the court, and ultimately, if the money can’t be recouped from the losing party, the taxpayer. Providing legal aid will usually save money in the long run, as lawyers will (a) advise the client robustly if the claim is devoid of merit, potentially avoiding the need for any further hearings; and (b) ensure that any trial is conducted much quicker, and therefore much cheaper, than if the individual was self-representing.
  3. The experience for the witnesses will be much more unpleasant if he’s not represented. Have you ever watched a sadistic criminal cross-examine a witness in court? Put another way, would you like to be cross-examined by a wild-eyed terrorist blundering his way through a series of irrelevant and potentially abusive questioning over several hours, punctuated by interruptions from the judge shepherding the questioner back on track? Or would you rather be cross-examined for 20 minutes, politely (and slightly ineffectually) by me, with my natty court dress and solemn demeanour? The prison officers who are the subject of the allegations by Adebolajo will have to give evidence and be cross-examined by someone. For their own comfort and dignity, I’d be prepared to chip in for this to be done professionally. Which brings us to the next point.
  4. The allegations are serious. Adebolajo claims that the prison officers held him by the head and arms in such a manner that he lost two teeth. If he is right, the truth is far more likely to emerge if his case is presented, and the questions are asked, by a trained professional.
  5. Convicted murderers have rights. Our darker selves might secretly welcome the news that a convicted murderer has had a good roughing up. No more than he deserves, right? But the mark of our civilisation is that we hold ourselves up as better than the people who harm us. We do not descend to vengeance, much less vigilantism. For what he has done, Adebolajo will be imprisoned for the rest of his life. That is his punishment. It does not follow that public servants have carte blanche to use unlawful violence against him. As despicable as we may find him, we cannot let his actions degrade our basic standards of justice. If we do, he has won. Therefore if his rights are breached, he is entitled to a remedy. It may not taste nice. But the rule of law does not require that justice be dispensed only to people we like.
  6. There is a wider issue of public safety if he is being truthful. Aside from Adebolajo’s rights, there are also the rights of other prisoners to consider. If he is truthful, and prison officers have used unlawful force against him, this needs addressing. Because prison officers are not just in charge of the Adebolajos of this world, but many other prisoners who, by nature or circumstance, are inherently vulnerable to abuses of power. And some of these prisoners will be remand prisoners awaiting criminal trial. They have not yet been convicted of an offence, and some will never be. There are innocent people in the charge of the state in our prisons. They deserve an environment where they are not subject to gratuitous state-sanctioned violence.
  7. Adebolajo will not be “given taxpayer cash” whatever happens. The beloved tabloid trope envisages giant, Wheel of Fortune-style novelty cheques being proudly handed over, or oodles of cash being ladled into wheelbarrows and delivered to Adebolajo in prison, for him to fritter as he sees fit. This is a nonsense. Any legal aid granted would be paid – at modest rates – directly to regulated solicitors and barristers. There is no financial benefit to Adebolajo at all. If we start from the premise that he has no money, and so will not be able to pay for legal representation come what way, the options are stark: either he doesn’t pay and is unrepresented, with the consequences above; or he doesn’t pay and is represented in some form, whether under a conditional fee agreement (“no win, no fee”), by lawyers acting for free (pro bono) or through legal aid. We don’t know the details, but the judge who does appears to think that only the latter is a viable option at this time.
  8. The law is for the benefit of us all. As the Supreme Court was at pains to point out to the oblivious Ministry of Justice when recently ruling employment tribunal fees to be unlawful, court cases do not only matter to the parties involved. I’ll leave the articulation of this point to Lord Reed:ED5B7877-8DF4-4B9E-AF62-6788697419CBEF549A28-9FDD-401E-B9AE-B90811A0C157C045B493-201C-4163-8BDC-266582F788FAD8CEEB25-B763-4E8A-889C-407412406379
  9. The outrage isn’t that Adebolajo might be granted legal aid, but that so many others are denied the legal aid and help they need. This is borrowed in its pithy entirety from a tweet by barrister Douglas Lloyd (@DouglasLloydUK). There is certaintly an argument of disparity and unfairness here; but not the one upon which most are alighting. The devastation of legal aid and soaring increase in court and tribunal fees over the past decade have served to exclude vast swathes of mostly poor and desperate people from the justice system. This case raises questions – but distracted by our own uncritical rage, we are asking the wrong ones.

Putting the above together, I think there’s a compelling case for saying that justice – to all involved – is best served by having this man legally represented. Legal aid may or may not be granted; I do not know enough about this field to opine. But if it is, it will not be a taxpayer-funded privilege lavished on an ungrateful terrorist; it will be a sensible and restrained direction of public funds towards ensuring that justice is served to all involved – government, claimant, prison staff, prisoners and taxpayers.  Which, when one looks at the judge’s comments in context, is exactly what he was saying:

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Guest Post by CrimeGirl: The fallacy of the fat cat legal aid lawyer

In the coming months, the tabloid “fat cat legal aid lawyer” staples are likely to re-emerge and recur with a vengeance, following the Ministry of Justice’s plans to slash legal aid fees paid to criminal law solicitors. In the din of misinformation that will be honked out by the MoJ to distract from the legal profession’s concerns, the truth may become estranged. This could have devastating consequences. If you are wrongly accused of a crime, your guiding light will most likely be a legal aid solicitor. Their importance to the functioning of our justice system is shamefully overlooked and underreported.

The Secret Barrister is delighted to publish this exclusive guest post by barrister, former duty solicitor and fellow anonymous legal commentator, CrimeGirl, who explains the reality of life for solicitors on legal aid.

 

@DefenceGirl

@CrimeGirl

One of the basic tenets of the Criminal Justice System in England and Wales is that every person being interviewed under caution by the police, no matter how rich or poor, is entitled to free and impartial legal advice.  As I used to tell my clients, even Richard Branson is entitled to free representation in the police station.

For each case the Legal Aid Agency pays the lawyer a fixed fee.  Those fees vary for some nonsensical reason depending on the location of the police station (or nearest police station).   When cases are not prosecuted, the case ends there, with that fixed fee.   On average it is circa £170.  That is all the firm receives for the totality of the work they put in.  For every police station lawyer working today, there will be numerous cases every week that are resolved by way of an ‘out of Court disposal’ such as a caution, or are dropped altogether.  Preventing charge in an appropriate way is an extremely positive result for the client and something that I took great delight in achieving.

Year on year, the number of arrests has dropped.  You will see this spun in the news as “crime falling”.  Be assured that crime is certainly not falling.  The number of individual criminal acts is not accurately reflected by the way those acts are recorded.  Custody stations across the country have seen greater than 30% reductions in footfall following a concerted effort by forces to achieve fixed targets.  The knock-on effect of this alone has been devastating for Solicitors and Barristers alike.

On top of that, a sizeable chunk of cases end at the police station.  Each case that resolves without charge culminates after its own hefty workload.  Children falsely accused of serious offences, removed from school, where Solicitors have intervened with the investigation on numerous occasions.  Countless vulnerable adults arrested for offences never capable of being made out on the available evidence, necessitating solicitors to attend the police station on multiple occasions, and who call their solicitors no less than thirty times over the months their cases go on.  Lengthy letters to custody sergeants and inspectors protesting length of bail and onerous bail conditions, threatening more formal legal action if they are not amended or relaxed.

Some of those files will comprise detailed reviews of statute and Court of Appeal or Supreme Court cases, lengthy letters to senior officers raising complaints, representations on points of law, or letters to other Solicitors requesting assistance in ancillary legal challenges.  Others will contain identity procedure attendance notes, multiple pages of written disclosure, defence witness statements and documents provided by the client to assist in preparing their defence.  They will include correspondence from employers, divorce paperwork and screenshots or emails from former partners, all of which need to be considered in detail so that the client can be advised whether or not the contents needed to be disclosed to the police in order to bring about a faster resolution to the investigation.

How much are Solicitors paid for all of this work?

Having worked for or on behalf of many differently sized firms with legal aid contracts, I can confidently say that all clients are defended robustly with a view to fending off a potential prosecution.  Every file attracts that paltry £170 I referred to above.  That £170* covers at best two hours of work, three letters and four or five phone calls.  It is the norm however for it to become a huge financial hole, representing a considerable overall loss in terms of spent fee earner’s working hours, calls and correspondence.

It bears repeating.  Every police station attendance is now considered a ‘loss leader’.  It is hoped  that remuneration may  occur in the future, either the client will be charged or if the best possible result happens and charge is avoided, one hopes, a word of mouth recommendation through excellent client care will materialise.

How can criminal defence solicitors survive in these circumstances?

The only way that firms or criminal departments have stayed solvent without taking on privately paid work is due to larger Crown Court litigator fees.  Each case that results in charge attracts funding under a representation order payable on a fixed fee basis, and when those cases are larger and more complex, (such as cases with lots of defendants at the Crown Court) that fixed fee rises.  When there is a huge amount of evidence for lawyers to read (more than 10,000 pages) the fee rises significantly.  That does not mean that those cases are ‘well paid’.  Let us not become distracted by the fallacy that any publicly funded criminal work is properly remunerated.  It is not an argument that is worth repeating here.  Larger litigator fee cases come closer to properly remunerating those who conduct them, than the smaller cases do, while remaining in stark and depressing contrast to remuneration available in any other area of law involving the same volume of work.

Those large cases are rare.  They come around infrequently and when they do arrive, Crown Court Judges have become accustomed to splitting large groups of defendants into smaller cases and putting pressure on defendants to plead guilty early, before evidence is served, with promises of sentence discounts. That cutting, pressure and re-organising reduces the financial value of the cases significantly.

The government is now proposing to reduce the amount of money it is willing to pay Solicitors and Barristers for those higher page count, more complicated cases.  No proper justification has been offered for doing this.  Lawyers still need to read every page of evidence in every case.  Failing to do so is negligent.  Relying on automatic computer processes to read evidence ignores the fact that documents are frequently hand-written and scanned, and omits the chance for human error in typing the evidence prior to service.  I say it again, failing to read every page is negligent.

The losses sustained by Solicitors at the police station and in the Magistrates’ Courts, and by Barristers  who fall into a loss by properly preparing poorly paid Crown Court cases are not properly balanced by the larger cases.  All cases should be remunerated fairly.  However, those larger cases go a way towards keeping firms and Barristers afloat financially.  The criminal justice system has already been slashed to the bone.  Police station fees have been reduced.  Magistrates’ Court fees have been cut.  Crown Court fees have been lowered.  Less people are being arrested.  All this after no rise in almost two decades, despite vastly increased living and business costs.  So many individual cases are routinely being driven into losses that criminal lawyers’ (particularly at the more junior end) are now very poorly remunerated.

Trainee Solicitors in crime can expect to earn between minimum wage and £18,000 a year.  When they qualify they can expect little over £24,000 nationwide.  Solicitors with up to seven years post qualification experience can expect to earn up to £32,000 a year, and all this comes bearing huge student debt and bank loans to fund their qualifications.  Paralegals are routinely paid between £13,000 and £20,000.  Even the most passionate believers in justice are deterred.

Great people are leaving the profession and almost no one is choosing to join it, which is a problem for the future.  It is our children and the most vulnerable people in our communities who will suffer.  With any further cuts whatsoever, we can be satisfied that the criminal justice system will collapse entirely.

As a law abiding tax payer you might think legal aid is an unnecessary expenditure, you never know when you might need it. No one plans to be falsely accused of a crime – just as no one plans to be a victim.

*Save for those that attract the “escape fee”.  Escape fees require many hours of attendance at the police station by the Solicitor in interview and equate to circa 4 x the standard fee.  These are rare, occurring only in complex and serious indictable only offences and almost always result in a positive charging decision. (I think it requires more than twelve hours and remember that you still aren’t remunerated for every hour you spend there).

You can (and should) follow CrimeGirl on Twitter at @CrimeGirl. 

Why we need legal aid for the worst people in society

Recently, I’ve noticed an increase in the number of people getting cross about legal aid. I don’t know whether this can be causally linked to the backing tracks expertly laid down by our new Lord Chancellor, adopting the smooth jazzy beats of her pre-predecessor Chris Grayling to create a steady percussive “legal-aid-bad, legal-aid-bad” filtering through her more recent public pronouncements. Or whether it is linked to the influx of legal aid scare stories pumped out of the Ministry of Justice’s favourite tabloid antagonists. Or whether, like the tide, anger over legal aid is perennial, dipping out of eyeline only temporarily before its inevitable resurgence in deference to the gravitational pull of the moon. Or, for those of the Douglas Carswell Academy of Astronomy, the sun.

But whatever the cause, it’s always dispiriting to see the Legal Aid Monster rear its mythical head, not simply because the call for its restriction threatens my narrow self-interest (DECLARATION: I have fed and clothed myself thanks to legal aid), but because it again reinforces how poor a job we in the system are doing in explaining to people why legal aid matters.

The Legal Aid Monster. Or Honey Monster. I forget which.

The Legal Aid Monster. Or Honey Monster. I forget which.

This morning I have enjoyed a spirited exchange of views with a Twitter user who I understand to be involved with or linked to the police, whose views on criminal justice I always enjoy hearing (particularly the anonymised Tweeters with the liberty to speak freely about the chaos in which they are forced to operate, such as @InspGadgetBlogs and @ConstableChaos). Quite often, we echo each other’s despair at the non-workings of the system; sometimes, police officers offer an insight into problems that barristers don’t see first-hand, but which inform the issues that we deal with in court. Today, by contrast, my partner and I came at the issue of criminal legal aid from the polar extremes. I think there’s not enough of it, and that people are often left without adequate (or any) representation; he thinks that there is far too much, and that it should be removed entirely from repeat offenders.

His view, I speculate, is one that might prove popular with people fortunate enough to have avoided the criminal courts. He is certainly not the first person to have expressed it to me. But it’s a view which, with respect, is based on a fundamental misunderstanding of the purpose and function of criminal legal aid.

 

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Let’s start with the proposition that legal aid should be “for the needy”. A lot turns on that definition, but it is employed above in contradistinction to “career criminals with multiple convictions”. So I infer that by “needy”, the writer means “not guilty”. Or at least, “not guilty very often”. Which is problematic. For me, legal aid should be available to anyone whom the state accuses of a criminal offence. Like healthcare or education, it should be a universal civil right. You don’t choose to get ill or be born, so healthcare and education are provided by the state. You don’t choose to be accused of a criminal offence, so you should have the right to properly funded legal advice and representation when the state engages you in criminal litigation. Of course, some people invite criminal proceedings by committing the offence, but we only know that once proceedings have started and guilt has been admitted or established. I have no problem in principle with recovering the cost of legal aid and/or criminal proceedings from convicted defendants who have the means, but the flaw in the “legal aid for the innocent” argument is that you need the former before you can determine the latter.

Why do I say that? Surely, channelling the mantra of the magistrates’ court, a defendant knows whether he’s done it? Well, he may know that he’s done something. But knowing whether he’s committed the specific criminal act alleged by the state is something else entirely. He may know, for example, that he pushed past the shop assistant, nipped behind the counter, tried to grab money from the till but in fact grabbed a tenner that (unbeknownst to him) a customer had just put on the counter to pay for some cigs, and then grabbed the cigs and threw them to his mate (unwittingly striking him in the  eye and blinding him) before running off and accidentally knocking over a wonky display of uber-breakable glasses on his way out. But, as law undergraduates would be asked in this funhouse of an exam question, who is guilty of what? Is the first defendant guilty of theft? Burglary? Robbery? An attempt at one of those? If so, who is the victim? What level of assault is he guilty of, if any? Is he guilty of criminal damage if he didn’t mean to knock over the display? What of his mate? Is he guilty as a joint principal or an accessory? Or is he guilty simply of handling stolen goods? Or receiving criminal property? And what difference would the various permutations of charges make to his sentence?

My adversary suggested that a career criminal would know just as well as a lawyer which offence he has committed. My response was that his having attending a dentist once a year for 50 years does not qualify him to conduct root canal surgery. If I’d had more than 140 characters, I’d have posted the paragraph above. Criminal law is complex. It’s not something that can be absorbed by proximity. And it matters that it’s done right.

It matters because, whether you’re a nice or a nasty person, you should not be convicted of an offence that you have not committed. Not only because it offends fundamental notions of fairness and justice, but because once we accept wrongful convictions as an acceptable bargain in a cost/benefit trade-off, we endanger not just the individual but wider society.

If, as the commentator suggests, we remove legal aid from repeat offenders, we put them at the mercy of the prosecution agencies. It will not simply be a case of a defendant mistakenly pleading guilty to robbery (maximum sentence life imprisonment) when he is in law only guilty of theft (maximum sentence 7 years), but of defendants, unqualified and unable to present their own defence, being convicted of offences of which they are wholly innocent. Because the police do arrest entirely innocent people. And the CPS charge them with the wrong offences. And the only obstacle to a lengthy, undeserved prison sentence is a defence solicitor or barrister, challenging the prosecution case, testing the factual and legal correctness of the allegations and fighting their client’s corner. Without a lawyer, a defendant is often a sitting duck.

And if there were a system where the police, under pressure (as they are) to improve clean-up rates and buff their statistics, knew that charging repeat offender Big Dave with a burglary would see him being denied legal aid, whereas charging first-time offender Small Steve for the same offence would result in a defence lawyer fighting his case, there is a mighty incentive in place to pin the crime on the man with two arms tied behind his back, irrespective of the evidence. While most police would not, some would bend to the  temptation. Some already do.

We would thus roll into a system that encouraged prosecutorial malpractice. The wrong people being convicted, and the even wronger people – the real burglars, thugs, rapists – getting away with it.

Legal aid for career criminals isn’t a treat or privilege to personally enrich them. It is a safeguard that ensures, as best we can, that when the cell door slams shut, society has satisfied itself that the person inside is the person who is guilty of the offence. Removing legal aid in such cases may satisfy some primal urge to vengeance, or natural hostility towards those who repeatedly breach our social and criminal codes, but it makes us no safer, saves us no money, and, in the long run, would make our streets a far more dangerous place.

The new Justice Secretary – does it matter that she’s not a lawyer?

So, as anticipated, our new Prime Minister has favoured punishing disloyalty over rewarding competence and sent Mr Gove and his ambitious, compassionate prison reforms to the naughty back benches. This morning has brought a transfer-deadline-day-style frenzy to Legal Twitter, anticipation and trepidation converging as rumours and supposition threw up name after name as possible new Secretary of State for Justice and Lord Chancellor. All it needed was Theresa May leaning out of her Range Rover window teasing Sky Sports with a, “Well, we’ve got a little bit goin’ on ‘ere and there, but who knows?”

Theresa May

Theresa May

Stretching the analogy, perhaps the biggest disappointment is that established incompetent and gold-plated tit Mr Grayling didn’t get to play the role of Peter Odemwingie, driving 300 miles all pumped up with a misplaced certainty of being hired only to be cruelly turned away at the door. But he has not been let back near the levers of justice, and for that, at least, we must all be grateful, although anyone reliant on a functioning public transport system should probably prepare for 4 years of taxi rides.

So not Grayling. Nor, to the despair of several (including me), the lawyers’ favoured choice of Dominic Grieve Q.C., a serious heavyweight silk whose defenestration as Attorney General ranks among David Cameron’s most petty, stupid decisions. Anna Soubry, who has recently practised as a criminal barrister, would also, I’ve suggested, make a fine Justice Secretary, having the advantage over her three predecessors of actually having seen the inside of a criminal court in the past decade. But again, love unrequited.

Instead, Mrs May has opted for Liz Truss, an MP of six years with a background in management accountancy and particular political interests in education and free enterprise. She has no legal training, nor has she any ministerial experience in the Ministry of Justice, having instead hopped from junior minister at Education to Secretary of State for Environment, Food and Rural Affairs. It is right to note that from March 2011 to September 2012, she was a member of the Justice Select Committee, although Philip Davies‘ continued presence confirms that membership is no proof of intelligence, reason or compassion, the three qualities  required above all in the most underestimated and undervalued cabinet role.

My instinctive reaction to Ms Truss’ appointment, therefore, was one, to put it politely, of disillusionment, as, for a third successive time, the historic office of Lord High Chancellor of Great Britain, charged with upholding the independence of the judiciary and ensuring the provision of resources for the efficient and effective support of the courts, has been entrusted to a politician who has, to my knowledge, no experience of the courts or judiciary in action. Similarly, when one considers the brief for the concurrent role of Secretary of State for Justice, there is little among Ms Truss’ contributions in the House of Commons to suggest a zeal for prison reform or court modernisation. Indeed, as Twitter has been quick to point out, her most outspoken contribution on the subject of justice appears to be when she proudly announced that the milk in UK prisons would henceforth all be British, returning to a theme the subject of which inspired a performance which some cruel trolls suggested did not augur well for her advocacy skills.

But, having had the day to reflect, is that fair? Why does it matter that Ms Truss is not a lawyer? Does it matter?

A brief history lesson, if I may. Lord Chancellor was, until the passage of the Constitutional Reform Act 2005, a multi-faceted office starting out in medieval times as secretary to the King, and gradually accumulating a weird and wonderful collection of executive, judicial, ecclesiastical and Parliamentary functions. By 2003, the Lord Chancellor’s duties included being head of the judiciary, in which capacity he attended Cabinet, being responsible for appointing judges, acting as effective Speaker in the House of Lords, and having responsibility for criminal legal aid. In the case of Lord Irvine, he also sat as a judge in the judicial House of Lords. Appointment to the role was therefore considered the pinnacle of a distinguished legal career, rather than the preserve of ambitious politicians. (see Gee, G. What are Lord Chancellors for? [2014] Public Law 11).

While there were plainly benefits to having the independence and interests of the judiciary upheld and represented in government, you have possibly spotted the rather startling contravention of the separation of powers inherent in the Lord Chancellor’s office, allowing him to sashay between sitting as a judge, attending cabinet and holding sway in the House of Lords. And so in 2003, the government abolished the Lord Chancellor’s department and installed the LC in the newly-created Department of Constitutional Affairs, with the intention of abolishing the post of LC altogether. Due to Mr Blair having uncharacteristically taken this decision without any consultation whatsoever, people got quite cross and various committees were set up to consider the various constitutional implications. The denouement was the Constitutional Reform Act 2005, whereby the LC’s responsibilities as head of the judiciary and House of Lords speaker were stripped and transferred to others, and the power to appoint judges was diluted by the establishment of a Judicial Appointments Commission. In 2007, the Ministry of Justice was created, with responsibility for prisons and other bits that the Home Office were keen to get rid of, and the role of Lord Chancellor was thereafter conjoined with Secretary of State for Justice.

Up until 2012, the role continued to be performed by senior, experienced lawyers. However the removal of the judicial function meant that, technically, legal knowledge was no longer strictly a requirement. Rather, section 2 of the Constitutional Reform Act 2005 merely requires that the Lord Chancellor be “qualified by experience”, defined as follows:

2 Lord Chancellor to be qualified by experience

(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

(2) The Prime Minister may take into account any of these-

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.

(3) In this section “qualifying practitioner” means any of these-

(a) a person who has a Senior Courts qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b) an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary;

(c) a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland

So, strictly speaking, the Prime Minister “may” take into account the above, but also may not. S/he may in fact choose to appoint a block of stilton wearing a fez or, to even lesser benefit, Chris Grayling MP, the first non-lawyer in post since the 1600s. And this is where the problems began, because Mr Grayling was, and I’m sure remains, an ambitious man. He is no lawyer, no jurist and no philosopher – he is very much the epitome of a career politician, who has bounced from portfolio to portfolio, having his knuckles rapped for untruthfulness and incompetence at almost every turn, and upon entering office, saw an opportunity to assume the role of renegade outsider boldly taking on the vested interests of the legal system. He slashed legal aid like nobody’s business – aided by entirely dishonest campaigns against publicly-funded lawyers – splurged public funds on defending his unlawful policies in court, and in so doing exposed the irreconcilable tension between his self-image as an Osborne-pleasing austerity advocate and his Lord Chancellor’s oath to ensure the provision of resources for the efficient and effective support of the courts.

It was against this background that in 2014, the  House of Lords considered whether a grounding in law ought to be a prerequisite to the role. The House of Lords Constitution Committee concluded that, while it was not strictly necessary for the Lord Chancellor/Justice Secretary to be legally qualified, it would plainly be “a distinct advantage” for them to be so, and recommended that the government ensure that at least the permanent secretary at the Ministry of Justice be legally qualified. In a giant slap to the face to Grayling, whose policies were routinely held in judicial reviews to be unlawful – and whose solution to this problem was, rather than just acting lawfully, to try to stop the use of judicial reviews – the Lords further recommended that the Ministerial Code and Lord Chancellor’s oath be amended to remind all of the Lord Chancellor’s duty to uphold the rule of law. The government pretty much laughed in the face of the report, and here we are today.

And if that’s where the story ended, I’d unhesitatingly conclude that the experiment with a lay Lord Chancellor had been tested to destruction. But then enter Michael Gove. Also a non-lawyer, but one who from the outset made clear that he was not merely seeking to mend bridges where Grayling had burned them, but to learn, respect and embrace the constitutional and societal gravitas of his twin roles. He stopped picking fights with professionals. He seized upon prisons – simply concrete punishment cubes to his predecessor – and resolved that their overdue reform, and the transformation of the prospects of those within, would be his legacy. He overturned policy after regressive policy – from book bans to the Criminal Courts Charge – set down by Grayling.  He was by no means perfect – his failure to properly reform legal aid or employment tribunal fees stand as but two examples of enormous flashpoints that his early departure has allowed him to evade. But I, at least, while not agreeing always with everything he said or did, allowed myself to believe that he recognised his lack of firsthand knowledge of his new subject area, and rather than, as did Grayling, trumpeting his ignorance, listened carefully to professionals (experts, eh?) and treated his office not as a rung to better things, but as the career zenith it was for Lord Chancellors of yesteryear. As if it was – and indeed, it may transpire to be – his last, defining contribution to public life.

So yes, I would have preferred the role to go to someone whose profession has been chugging towards this last stop before retirement, unbeholden to the vagaries of political caprice, rather than a young MP with her eyes, one fears, on bigger, brighter things. I would, given a choice, opt for someone who has been in the trenches, who has sat in urine-stained cells with an addict smashing his face against a chair as you try to take instructions while a Crown Court judge loftily bellows for your attendance upstairs. Who knows what it is to be a partner in a legal aid firm one delayed LAA payment away from going under. Who has a lifetime’s worth of legal and constitutional wisdom to infuse into their political decisions.

But if Mr Gove has taught us anything, it is that it is only right and fair to  pause and see what Ms Truss has to offer. Whether she is going to, as was reported happened at Environment, offer her department as a sacrificial cow in the post-referendum austerity era, or whether she is going to stick on her ceremonial wig, take soundings from experts and tell Theresa May that enough is enough, the courts are crumbling, legal aid is cut through the bone, the CPS is starved and the rule of law and access to justice are becoming rhetorical shells, and that root-and-branch reform and replenishment of the criminal justice system – from police station through to release from prison – is something she is going to physically fight for at every cabinet meeting, even if the consequences are that she is politically blacklisted from the Party, and higher office, for the rest of her career.

Because if that’s the kind of Lord Chancellor Ms Truss is going to be, fearlessly faithful to her oath of office, immersing herself in the law, doing right and fearing no-one, I don’t think I’d mind that she doesn’t have a law degree. And I don’t think my colleagues would either.

One final, tangential observation – Ms Truss has already in Parliament fallen for the myth of the “most expensive criminal justice system in the world”. I would respectfully recommend that, if she wants to get off to the best possible start, educating herself as to the reality, and resolving to act upon it, would be among the best things she could do.

It’s official: the Criminal Justice System is broken, and no-one seems to care

Friday 27 May 2016. The day on which the following events were deemed worthy of historical record on the front pages of the English press:

dailystar independentexpress ft guardian mail metro mirror telegraph thesun times

It is also the day, you may be interested to know, that the criminal justice system was officially declared “close to breaking point”. Not by me or my kindred professional complainers, but by Parliament. The House of Commons Public Accounts Committee today published a report, “Efficiency in the Criminal Justice System”, in which the very first line is:

“The criminal justice system is close to breaking point.”

Easy pickings, one might think, for magpie subs struggling to summon a splash on a topic of public interest beyond facile comments by a fame-chasing wannabe TV bimbo, or something that happened on Britain’s Got Talent. [If that sentence had been pasted closer to the first two front pages above, that joke might have worked. As it is, we’ll move on and pretend nothing happened. But just so you know, that could have been something really special.]

But no-one took the bait. Notwithstanding that the facts of the report would have been available, and known, prior to last night’s print deadlines, the tumbling of justice was apparently considered not of general interest. Let alone worthy of usurping Johnny Depp’s divorce.

In truth, much of what’s in the PAC report is drawn from other non-reported reports, and there is nothing new to surprise those stuck festering in the system. The procession of complaints can be recited rote by anyone involved with criminal justice, like a contestant trapped in a Groundhog Day version of the Generation Game conveyor belt:

  • Unacceptable delays – months, years – in cases getting to trial;
  • A consequent enormous backlog of serious criminal cases;
  • Gross inefficiencies in preparing and reviewing prosecutions;
  • An overall system that is both underfunded and overstretched;
  • A lack of accountability;
  • “Cost savings” which simply shunt costs from one part of the system to another;
  • Callous treatment of witnesses and victims;
  • Insufficient judges, CPS staff and court sitting days to manage the caseload;
  • No credible plan by the Ministry of Justice to use its court buildings efficiently – e.g. £100,000 was recently spent on installing new windows at Torquay magistrates’ court even though the MoJ intended to close the building down;
  • No thought given to how defendants, jurors and witnesses might physically get to court once the MoJ has closed down all the smaller rural courts, and they have to travel 100 miles without access to regular public transport.

Those familiar friends all feature for express criticism in the report, to which I might add, for completeness, the mischief caused by interpreters not turning up, prisoners not being brought to court, legal aid being removed from middle-class defendants, the disastrous privatisation of the Probation Service and the omnipresent shadow of CPS disclosure failings. And of course many, many other prizes, none of which present as novelty to lawyers, defendants, victims or witnesses.

But to those fortunate enough to currently find themselves outside the criminal process, who may one day, through the vagaries of fate or circumstance find themselves dragged screaming into the system, either as the victim of a crime or accused of one, this surely has to be big news? It cannot be a story that peaks at item 3 on the Today programme 7am bulletin, before being folded and put away in a drawer until the next revolution of this relentless cycle of despair.

It deserves more. It deserves anger. Passion. Rage. Frustration. Umbrage. Indignation. Shock, awe, outrage, hysteria – everything that social media is accused of being, and often is, our entire society should be right now. Because a functioning justice system is vital to a functioning society. It is as crucial as health. Education. Economic policy. Because without proper justice, the social contract by which we all live crumbles. I cringe as I write this because of its sixth-form general studies simplicity, but plainly somewhere in our society there is a blockage. And people have stopped caring, beguiled by an implicit cocksure certainty that the courts – and crime in particular – is something that only affects Other People.

Early on in my career, due to CPS failings, a defendant got bail. He went on to kill. I have seen – we have all seen – provably guilty people walk free, and not-guilty people locked up. There’s no use in squealing for extra bobbies on the beat if nearly 40% of the wrong-uns they catch don’t have their cases reviewed by the CPS, and as a consequence don’t get justice. There’s no point in reporting an assault where you’re going to be cross-examined on the minutiae of that day two years after the event, with the inevitable gaps and inconsistencies in your truthful account providing the key to your tormentor’s acquittal. And if you are accused of something you didn’t do, for which you could lose your job, your home and your liberty, it’s too late at that point bemoaning the delay in your case being heard, the failure of the CPS to disclose crucial material that would secure your acquittal, or the injustice of a third, fourth or fifth adjournment of your trial because the MoJ refuses to keep open enough courtrooms.

Criminal justice matters. If the House of Commons had published a report that opened with the conclusion, “The NHS is close to breaking point”, that would be headline news. Editorials would be screaming for ministerial accountability. If the report concluded that the Department for Health had “overstretched” hospitals and “exhausted the scope to make further cuts” – and yet the DoH insisted that a further 15% would be cut from the budget by 2019/20, no-one would believe it. The injustice – the human casualties of this macabre, sadistic approach to administering a fundamental pillar of developed nationhood – would be the headlines. Their stories, their misery, their pain.

Not Alesha f**king Dixon.