The Big Issue: Why The Law Is Broken

I’ve written a piece in this week’s Big Issue on the crisis in our criminal justice system.

The article can be read online here, but if you are able to grab a paper copy and donate to a brilliant cause, I’d urge you to do so.

Advertisements

Did this kitten really conduct a criminal trial by itself… and WIN?

I am informed that one of the liberties you can take as a writer with a (undeserved and long-suffering) loyal following is to indulge in a little creative sleight of hand. One might, for example, in an effort to gain wider attention for a mundane-sounding issue, attach a ludicrous and unrelated clickbait headline to draw in the unwary – possibly including a shareable photo – with quiet confidence that you’ll be forgiven once the Greater Good of your evil plan becomes apparent.

original

Let’s put that theory to the test.

Because, and this will surprise you, there is no kitten conducting criminal trials (or at least not winning them). The cat in the photo is not a registered practitioner. Instead, now that you’re three paragraphs in, we’re going to talk about the Ministry of Justice Single Department Plan.

Stay with me – we’ll be quick. Anger is conducive to brevity. This is the document published today setting out the MoJ’s “priorities” for the year ahead. The four key objectives are identified as:

  1. Provide a prison and probation service that reforms offenders
  2. Deliver a modern courts and justice system
  3. Promote a global Britain and the rule of law
  4. Transform the department

Of themselves, these objectives are inoffensive enough. Indeed, what the plan says about prisons has much to recommend it, particularly the emphasis on tackling reoffending through a focus on education and employment opportunities for prisoners. We’ll overlook for now whether bold solutions to improving prisons such as “preventing and disrupting serious and organised crime in prisons” are really solutions as much as vaguely-defined objectives. And whether any strategy to “ensure a sustainable prison population” can sensibly say nothing whatsoever about the steady increase in the average length of custodial sentences imposed by the courts. Those are quibbles for another day.

Because the silence that rings the loudest is that surrounding the dismal state of the criminal justice system. While, true to form, the MoJ trumpets its digital court modernisation programme at every turn (a counterpoint to which was provided the other week by the early progress report of the National Audit Office pointing out that said programme is already behind schedule, has “unresolved funding gaps” and will not deliver the benefits that the MoJ has claimed), much less is said about the problems that have forced criminal barristers to take urgent action and caused the entire system to grind to a halt. Below are just a selection, with the “Single Department Plan” response in bold.

  • The dilapidated state of our court estate is a matter of national shame. Ceilings are literally leaking human waste and falling in mid-trial. Courts all over the country now have no catering facilities – defendants, witnesses, jurors and lawyers are required (some under threat of imprisonment) to spend the day in a building where the public cannot even get a glass of water.  Nothing beyond a vague pledge to “continue the modernisation of our courts”.
  • The widespread scheme of court closures means that many people now have to travel several hours to reach their local court. Close even more courts: “Use fewer, better, more flexible court buildings more effectively for the benefit of citizens.”
  • The Crown Prosecution Service has lost a third of its staff since 2010 through budget cuts of over 25%. The problems this causes to the competent prosecution of cases is covered at length in the press (and in Chapter 4 of my book). No mention, save for a vaguely declared ambition to “improve the experience of victims of crime within the criminal justice system”.
  • Disclosure – the vital part of the criminal procedure where the police and prosecution provide the defence with material in their possession which could help establish someone’s innocence – remains a shambles. As a result, innocent people risk convictionNo mention.
  • The Innocence Tax continues to strip the homes and life savings away from innocent people wrongly accused of criminal offences. If you have a modest joint household disposable income, the state will refuse to give you legal aid, force you to pay privately for lawyers, and then when you are acquitted will refuse to fully reimburse you for your fees, potentially leaving you out of pocket to the tune of hundreds of thousands of poundsNo mention.
  • Legal aid rates, cut by around 40% in real terms, continue to force local solicitors’ firms out of business. Bright young people are either deterred from joining the criminal Bar, or forced out after a few years of earning below minimum wage. No mention.
  • Court listing practices continue to operate to please MoJ statisticians, to the detriment of victims, witnesses and defendants. People are dragged to court for their trial (thus allowing a court listing officer to say that the trial has been listed) only to find that their case cannot in fact be heard due to courtrooms sitting empty, as the MoJ won’t pay for judges to hear the trials. Trials are therefore adjourned repeatedly, sometimes until witnesses lose faith entirely and walk away from the process. No mention, save for a vaguely declared ambition to “improve the experience of victims of crime within the criminal justice system”.
  • Chris Grayling’s policy to deny victims of miscarriages of justice any compensation for years wrongly spent in prison continues to bite. Unless you can prove your innocence, you do not get a penny. No mention.
  • The number of unrepresented defendants in criminal proceedings is on the rise, and judges have expressed their concern in a report which the MoJ tried to hide (over which the MoJ has now been reported to the Information Commissioner). No mention.

All of these share a common diagnosis: they are the result of the unparalleled cuts that the Ministry of Justice budget has suffered since 2010 – 40% will have been slashed by the end of the decade.

What does the MoJ’s Grand Plan for 2018/19 say about this? Does it acknowledge the problem? Does it vow to fight the Treasury for the funds that the system desperately needs if it is not to collapse altogether?

Not quite. The MoJ promises instead to:

Maintain a continued tight grip on departmental finances

Which really says it all. This is not a department with an interest in improving the quality of justice. It is a cabal of ideologues playing financial chicken, tossing vulnerable people onto the motorways of fate with little care for the outcome, as long as they can boast to their betters about the tightness of their fiscal grip.

As of Friday, the criminal Bar will be withdrawing the goodwill on which the justice system runs. Documents such as this from the MoJ, making quite plain how utterly unimportant they consider our criminal justice system to be, make me seriously consider just walking away entirely.

 

No Returns: A non-lawyer’s guide

Last night, following an intriguing debate in the House of Commons in which members displayed the full gamut of understanding of criminal justice, MPs voted to bring forth the “cost neutral” changes to the way barristers are paid on legal aid, which in some cases amount to cuts of 40%. (Technically the Commons voted against Labour’s motion to annul the statutory instrument heralding the new Advocates’ Graduated Fee Scheme, but that’s more of a wordy opening sentence).

This marked the latest step in the ongoing dispute between the Criminal Bar and the Ministry of Justice. More details are here, but in short we say that the criminal justice system is desperately underfunded and requires immediate and significant investment (there’s some book or other that goes into more detail). Part of this – but only a part – relates specifically to legal aid rates, on account of how we think it’s a bit unfair that junior criminal barristers are often working 80-hour weeks for rates sometimes working out as low as 50p per hour, and are concerned that bright young barristers are being forced out of the profession. The Ministry of Justice is firmly in This-Is-Fine-Dog-meme-mode, and is pressing ahead with its plans to (a) further “reform” criminal legal aid (by shuffling the deckchairs in such a way as to amount, in some complex cases, to a 40% cut); and (b) do absolutely nothing about the chronic underfunding of the courts, Crown Prosecution Service, police, Probation, prisons and many other decaying limbs of the criminal justice system.

this-is-fine-meme-625x350

Presently, criminal barristers are not accepting any legal aid cases under the new fees scheme (which has applied since 1 April 2018). Today, in the face of governmental refusal to take the issue seriously, matters have escalated. The Criminal Bar Association has recommended to its members that, as of Friday 25 May 2018, they implement a “No Returns” policy. If you are a non-lawyer who follows legal types on Twitter, you may well have seen criminal barristers enthusiastically discussing this topic, but without necessarily understanding what it entails.

In a nutshell, a barrister’s work falls into two camps: First, there are cases on which a barrister is instructed in their own name (a solicitor calls the barrister’s clerks and asks specifically for a particular barrister). Secondly, there are “returns”. The reality of the courts, in particular the criminal courts, is that things rarely go to plan. In crime, numerous unstable elements – disorganised defendants and witnesses, the understaffed CPS and police, unreliable private contractors failing to bring prisoners to court, broken video link technology, absent interpreters, sick jurors and so forth – compound with resultant ubiquitous chaos. Trials overrun, or cases are suddenly listed without warning by a judge wanting to raise an urgent issue with the parties, or the court decides for its own convenience to move a hearing to a different date, and frequently the instructed barrister is not able to attend. What presently happens is that a colleague who has a gap in their diary, usually from the same chambers, agrees to accept the case as a “return”, and steps into the breach to cover. This usually happens between 4.30 and 6pm the night before the hearing, when it becomes clear that the instructed barrister is stuck, and their clerks desperately shuffle everybody’s diaries to arrange cover and accommodate the work, often with a spiralling domino effect.

In practice, accepting returns is often an unrewarding task. You are basically required to master an entire case – which can take several hours – at very short notice, and (unless it is a trial) for very little to no pay. Covering a “mention” for a colleague – that’s an umbrella term for a hearing covering a multitude of sins, which can last anything from 5 minutes to 6 hours, depending on the particular issue that needs thrashing out and how long the court keeps you waiting – pays £46.50 plus VAT if you’re prosecuting. And if you’re defending, you get £87 (which is paid to you by the instructed barrister). Gross figures which, after deductions, amount to between £20 – £40. If you’re travelling to a far-flung court, as the most junior practitioners are often required to (it’s not pretty at the bottom of the barristerial food chain), your train fare will often exceed your fee for the day.

So why do we do it? The first reason is self-interest; particularly when you are very junior, and are trying to build a reputation so that solicitors and the CPS will send you work in your own name, returns make up the bulk of your practice. For more established practitioners, returns fill gaps in your diary that arise when a trial you had listed is suddenly taken out of the court list the night before and kicked 6 months down the line because the court discovers it does not have any judges to hear the trial (a depressingly regular occurrence, and an abominable way to treat witnesses, victims and defendants).

But the second reason we accept returns is tradition; as a professional courtesy. We recognise that, if we didn’t volunteer to help out when our colleagues found themselves required to be in two places at one time, the courts would come to a halt almost overnight. No progress would be made on any case at any mention hearing, unless and until the instructed barrister became available to attend. Trials would be called on with no advocate to prosecute or defend. Defendants due to be sentenced would have no prosecutor to open the case, or no defence advocate to advance mitigation. Chaos would be piled upon chaos.

So, in what judges refer to (rather fawningly, usually when trying to get you as an advocate to agree to do something for free) as “the best traditions of the Bar”, barristers just accept that part and parcel of the job involves picking up other people’s mess, at very short notice, in order to help an under-resourced and madcap system maintain some semblance of order. We do so out of goodwill; we are not required to. (So low have legal aid rates fallen that barristers, usually professionally bound by the “cab rank rule” to accept instructions on any case, are not required to accept legal aid cases on account of the Bar Code of Conduct deeming the rates since the mid-2000s to be not a “proper professional fee”). We accept returns out of a sense of duty.

It follows that deciding not to accept any returns is a serious step. The impact will be instant, and it will be significant. Trials will not be able to go ahead. Mention hearings, plea hearings and sentence hearings will be listed and no barrister will be available to attend. We take absolutely no pleasure in this. But, like junior doctors forced to the streets by the mendacity and vandalism of Jeremy Hunt, we feel that we have no choice. It will place a particular financial burden on the most junior in our ranks, deprived of their regular £46.50 gruel, and as a profession we will do what we can to support them. It will inevitably have an impact on those who rely upon the courts; for this we are sincerely sorry.

But the Ministry of Justice is not listening. It is burning your criminal justice system to the ground and cutting adrift those, usually the most vulnerable, who depend upon our courts. And it is incumbent upon us, in the best traditions of the Bar, to speak up for unpopular causes to our own financial detriment. Even a cause as unpopular, and politically unloved, as the fate of our justice system.

Guest Post: The Secret BPTC Student on legal aid cuts and the criminal Bar

I am delighted that a current law student, and soon-to-be criminal pupil, has taken the time to write the following explainer on the ongoing dispute between the criminal Bar and the government over legal aid fees and the funding of the criminal justice system. A point which would be easy to lose – and which, more importantly, the Ministry of Justice hopes will be lost – in the clamour is that this is not simply about lawyers’ fees. The Ministry of Justice’s new legal aid pay rates for advocates (“Advocates’ Graduated Fee Scheme”), which amount in practice to a cut of up to 40% in complex cases, is simply the final straw. Our argument is that criminal justice across the board has been subjected to financial cuts unrivalled in other government departments, with the result that every aspect – from the police to the Crown Prosecution Service to legal aid to the crumbling fabric of our courts – is on its knees. Something has to change. This is the message that needs dutifully repeating to the public, as the below post emphasises. It also contains a very kind plug for my book, which I am obviously going to support.
 
The Criminal Bar is taking direct action as a result of new legal aid cuts. This post explains why action is being taken and why everyone should care about it. 
 
Since 3 April, 90 criminal chambers (at the time of writing) have refused to take on new government funded legal aid cases; this means that defendants will be unrepresented in the Crown Courts (where the most serious cases are tried). Such action could bring the courts system to a halt – a matter not lightly embarked upon. 
 
Action is being taken because the criminal justice system is in crisis.
 
Chronic underfunding of the criminal justice system has resulted in: 
  • cases not being heard for months if not years after an incident, 
  • victims and witnesses unsupported through the process, 
  • defendants on low incomes go unrepresented (being ineligible for legal aid),
  • police fail to disclose vital evidence until the 11th hour, 
  • prosecutors given only 15mins to prepare trials in the Magistrates’ Courts (where most cases are heard),
  • despite the backlog of cases, judges are unavailable to hear them and courts are being closed,
  • the prison estate is in meltdown, with violence and drug use soaring each year,
  • the probation service fails to appropriately manage offenders in the community, 
  • some forensic labs operate without proper certification, affecting the reliability of scientific evidence presented in court, 
  • and in one incident, part of the ceiling of a Crown Court fell in. A terrifyingly apt metaphor for the current state of our justice system. 

The most likely result of a broken criminal justice system? Miscarriages of justice.

This is not theoretical. 

On 27 March 2018, the Chief Inspector of the Crown Prosecutor Service gave evidence to MPs on the Commons Justice Committee. He approvingly quoted from a report (by the Criminal Cases Review Commission), which stated that, “…disclosure failings were the single most frequent cause in the steady stream of miscarriages of justice.” 

Miscarriages of justice have already occurred. You might be its next victim. And the situation is about to get worse…

From 1st April, legal aid rates have been cut by approximately 30%. This is on top of previous cuts to legal aid. Why should anyone care about this?

The principal consequence is that it makes it more likely that guilty people will go free and innocent people will be imprisoned. 

Barristers are independent, self-employed individuals who represent clients at court; as a result, they must prepare for cases during the evenings and at weekends, often at low rates or sometimes for free. Currently, the average yearly earnings for a junior criminal barrister starting out is around £12,000 gross, less than the minimum wage. 

As a result of these cuts, swathes of the bar will no longer be able to survive in practice, with women, those from BAME backgrounds and those at the most junior end bearing the brunt. If the bar remains a profession where only those with wealthy parents can afford to enter, it will neither become representative of the people nor will it guarantee high quality advocacy. Moreover, judges are predominantly drawn from the bar and their judgments have enormous impact upon the country. We need talented advocates who are representative of our society, at all levels of expertise, in order to ensure a fair justice system. We must retain our advocates and call for proper funding of the system as a whole.

As the late Sir Henry Brooke said, “This is not about money for lawyers. The liberties of England are at stake.”

 

Lawyers are taking action to save the criminal justice system. Please support them. 

How you can support our criminal justice system:
  1. Please share this blog post with everyone you know. 
  2. Please buy and read a copy of The Secret Barrister’s book ‘Stories of The Law and How It’s Broken’. It will both inform and entertain you about the crisis in our justice system. No legal knowledge needed. Published only two weeks ago, it has made the Sunday Times best sellers list, been quoted in Parliament, and lawyers have crowd funded to send a copy to every MP. Available on Amazon at: https://www.amazon.co.uk/Secret-Barrister-Stories-Law-Broken/dp/1509841105
  3. Write to your local MP. Let them know that their copy of the Secret Barrister’s book will be arriving; ask them to put it at the top of their reading list and ask them to take action to save the criminal justice system.

The Secret BPTC Student

CrowdJustice Campaign – Alert your MP to the state of criminal justice

I am thrilled to be part of a brand new CrowdJustice campaign, launched today, aimed at shining a light on the crisis in the criminal justice system. The Criminal Bar Association and Young Legal Aid Lawyers are asking for pledges to raise funds so that every single Member of Parliament can be sent a copy of Stories of The Law and How It’s Broken and a copy of the Young Legal Aid Lawyers report on Social Mobility in a Time of Austerity. The frightening reality appears to be that too many of our elected representatives are oblivious to the parlous state of our under-funded, under-resourced criminal justice system. This campaign hopes to change that.

For my part, I shall be donating royalties raised by this campaign to the wonderful Bar Pro Bono Unit.

For more information, please see the CrowdJustice page here:

 

Bad law reporting and a public dangerously disconnected from criminal justice

The criminal law has long had an image problem.

Partly, the fault is internal: the ridiculous costume; the alienating hybrid of legalese and obsequious formality that renders court hearings nonsensical to anyone in the public gallery; the impenetrability and inaccessibility of updated statute and case law; the historic failure of those of us in the system to lawsplain to those outside how justice works and why our founding principles are so important.

But part of the problem is broader: the refusal of successive governments to provide any meaningful legal education in schools; irresponsible and inaccurate news reporting; and legal illiteracy indulged and expounded by politicians using the law as a cheap crop to beat their hobby horse of choice.

The result has been inevitable. Centuries of compounded negligence have culminated in a disconnect between the criminal justice system and those it purports to serve. And most days it feels as if it’s getting worse. No longer are rabble-rousing mis-reports of legal stories confined to a day’s news cycle before being scrunched around tomorrow’s cod-and-chips; the rags are now frequently doused in the kerosene of social media and sizzle with white hot rage for days, weeks and even months on end.

While I don’t pretend that this is a problem confined to criminal law, it is often the tales of “soft sentences” and “putting criminals’ rights ahead of the victim” that burn the brightest. The formula is predictable: there will be a headline attack on an “out of touch” judge (pictured, for enhanced ludicrousness, in their ceremonial wig), with a decontextualised snippet of the judicial remarks and a gaping absence of informed fact or sober analysis.

Broken-Justice-System

And over the past twelve months, we’ve suffered 365 Groundhog Days of these. The case of Ched Evans kicked things off, with outlets eager to report the outright untruths of politicians suggesting that this case set a dangerous precedent allowing complainants in sex cases to be gratuitously humiliated in court over their sexual history. A campaign to not just reform section 41 of the Youth Justice and Criminal Evidence Act 1999, but to issue a blanket ban on any questions about sexual behaviour, is still being propelled by several MPs. It matters not that to do so would result, inevitably, in vital defence questions being prohibited and innocent people being convicted. A straw man effigy of section 41 has been hoisted onto the bonfire along with the presumption of innocence, with Harriet Harman proudly holding aloft the matchbox.

A run of sentencing “outrages” has followed.

The man who beat his wife with a cricket bat and was spared jail, because the judge deemed that the victim was “not vulnerable” (except the judge didn’t say those words, and it wasn’t the reason for the custodial sentence being (initially) suspended). The paedophile released only five years into a 22-year prison sentence (except it wasn’t a 22-year prison sentence, and he served longer than five years). Lavinia Woodward, the Oxford undergrad whose gratuitous bikini shots accompanied the squeals of horror that this rich white girl had been spared prison for stabbing her boyfriend, just because the rich white judge thought she was “too intelligent” to be locked up. Was that the reason she was spared jail? Did the judge ever say those words? Are any more rhetorical questions needed?

Rarely, if ever, is the reader informed of the Sentencing Guidelines and case law that constrain judges as to their approach in these cases, and which explain certain terms deployed in the sentencing remarks. Rarely are those remarks published in full — a flaw in the channels of official judicial communications for sure, but also the responsibility of those trained in shorthand in the press gallery. And rarely is there any voice of expertise explaining the apparently inexplicable, or offering a counterpoint to the incitement to fulminate.

Sometimes, of course, decisions will be made in court which do horrify, and for which there is no sensible justification. But most often, a straightforward, prosaic explanation exists. It’s just not reported. Neither editor nor politician will deal in full facts, whether through ignorance or malice.

The greatest tragedy is that if, instead of scything the low-hanging, rotten fruit the reporters reached a little higher, they would find that there is so much in criminal justice for their readership and Twitter followers to get angry about.

There’s the obliteration of legal aid, cutting the middle-classes out of publicly-funded legal assistance if they are wrongly accused of a criminal offence. There’s the ‘innocence tax’, which means that if, having been refused legal aid, you pay privately for your defence, you are not allowed to reclaim your full fees even if acquitted. Everyone in the system can speak for hours about the stack-em-high, sell-em-cheap model of warehouse justice in the magistrates’ courts, which is being rolled out in the crown courts under the euphemism of glorious efficiency. Disclosure — the means by which most innocent people secure the key to their escape — is found by report after report to be an abomination due to a hybrid of poor training and insufficient resources at the cut-to-the-bone police and Crown Prosecution Service.

But these problems evade meaningful public scrutiny, perhaps through ignorance, or perhaps because it’s simply far easier to report, and get angry about, a pervert getting help in the community rather than rotting in our violent, suicide-ridden prisons.

Public legal education is needed now more than ever. The Solicitor General, to his credit, appears to recognise this. His new Public Legal Education Panel is a start. Something needs to change if the public are going to have a hope of recognising where the real problems in justice lie; and who, in reality, poses the greatest threat to their rights. The thing about criminal justice is that, for all too many people, the realisation of how far basic protections have been eroded only dawns when it’s too late.

This article first appeared on Legal Cheek, and is available here.