I have written something for The Guardian about our politicians’ rush to create new criminal offences protecting statues. The piece can be found here.
“I haven’t met the defendant, Your Honour,” I tell a screen in my kitchen. Silence. “Can… can you hear me?” My words echo through the judge’s laptop in a courtroom three miles away. I hear them again in prosecution counsel’s dining room. My client, who has never set eyes on me before, sits in a prison just a few streets from my house. He stares at new faces on digital screens and blinks. His prison link is separate to ours. Someone has perched his screen in front of a second laptop in the hope his voice will carry across two devices and into my kitchen. When he speaks, he sounds a million miles away. He might as well be.
Long-predicted changes have arrived in our courts by necessity and at speed. Court staff have worked miracles with limited resources, judges have been patient, everyone has tried their best. Lockdown has spurred us into action and will revolutionise the system as we know it. We ought to be open-minded and recognise that the Luddite days of resistance are behind us. Some civil proceedings may be transformed entirely. Unnecessary assembly at court should be confined to history. We will save time, save money and be better for it. Once the technology improves, and it is about to, there will be questions to answer. Is this still a sticking plaster? Or is this the new normal? The answers will depend not on what the technology is capable of – but where we choose to draw the line.
As I look at my client – a mile, a prison wall, and a microphone away – I try to pinpoint why it feels like there is a barrier to communication. Is it just the improvised technology? That will improve. I remind myself that GPs hold sensitive appointments by telephone and on the internet. Court videolinks are not new. So why then, in certain circumstances, does online feel like second best?
Our job as courtroom advocates, bewigged and gowned, often takes centre stage. This is the front-of-house business of criminal lawyering. But it is backstage, early in the morning and late in the afternoon, where the most challenging advocacy takes place. In windowless conference rooms and dank cell areas across the country, difficult decisions are made and delicate conversations are held.
These are the moments when voices need to be heard.
Meeting a vulnerable complainant and finding the right words with the right tone. Speaking to a bereaved family at a sentencing hearing with professionalism and care. Being in the same room to negotiate compromises that deliver justice for a victim and a community. Looking a defendant in the eyes and delivering unwelcome advice that cannot be ignored by pressing a button. Watching for voice patterns, breathing rates and unspoken signs of agitation. Noticing the nail crescent imprints on a nervous clenched hand. It is managing the head-in-hands frustration, the raised voices and the unspeakable sadness of those we sometimes encounter. Sometimes, it is just hearing the heartache in the silence. It is spotting when someone may need an interpreter, an intermediary or their asthma inhaler. It is being able to navigate the fine lines between fear, confusion and bravado. It is the ability to speak to a 13-year-old obsessed with TikTok in the morning and an anxious pensioner in the afternoon. It is everyone in between. It is taking our strange, archaic language and distilling it into manageable chunks of reality. It is drawing the jury with a crayon and colouring them in to explain a majority verdict to a child. It is a judge reassuring the parties that they have as long as they need – as long as the building is open – to resolve a case. It is answering the difficult questions in a decent way: “What should I pack for my son if he is sent to prison?”
Those are not legal skills, they are human. It follows that they are not legal objections to mass online litigation – it is more delicate, more nuanced than that. These are the occasions when the way we communicate matters – not just the fact that we are communicating at all.
Recent events have required compromise and pragmatism. Once we safely emerge from the lockdown, we will need to identify the circumstances where online hearings can help and when they hinder. Which of our old habits were good and which were bad? Do certain tasks need to be perfect or do they just need to get the job done? Technology will help the criminal courts to streamline and to simplify. It is long overdue. We should be open-minded to improvements in technology, to new ways of working and to giving it a fair try. But lockdown has made me realise that it is not just whatwe do that is important – it is also how we do it. An anonymous Circuit Judge wrote recently about their digital experience in the family jurisdiction. They remarked that when we deliver justice “how we go about it as well as the bare fact of it being delivered, really really matters”.
Stripped bare of human interaction, I have found the job unrecognisable. The tasks I usually perform are changing. Some of them are online now. Some of them will be online in the future. But some of them, I hope, will always stay “in the room”. We will need to draw the lines of our new landscape with care.
My client gazes at a screen of strangers as his case is adjourned. We choose a date in the future when we hope that something, anything will have changed. Our microphones are unmuted, our volume is up – but can the people who matter most really hear us?
Joanna Hardy is a criminal barrister. She tweets @joanna__hardy
- 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.
- Please share this blog post with everyone you know.
- 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
- 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
On Tuesday evening, the RSA (Royal Society for the encouragement of Arts, Manufactures and Commerce) hosted an event, “Why Criminal Justice Matters“, at which a panel of industry experts (plus me) discussed the plight of the criminal justice system, and what can be done to remedy its failings.
The discussion was chaired by Joshua Rozenberg QC, and the panel featured:
- Penelope Gibbs, Founder of Transform Justice
- Angela Rafferty QC, Chair of the Criminal Bar Association
- Jonathan Black, Partner at BSB Solicitors
- Nazir Afzal, Former Chief Crown Prosecutor for Northwest England at the Crown Prosecution Service
- Me, via live Twitter feed.
It was a thoroughly enjoyable event, and I am extremely grateful to all concerned for their participation and support. Tickets sold out quickly, I’m told, but for anybody who wasn’t present and didn’t catch the live-stream, the event can be watched for free here: