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.

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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.

 

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.