Tuesday, 10 September 2013

The Terrifying Prospect of the Future for British Justice

Up to the point when my daughter (a partner in a firm specialising in criminal defence and prison law) first explained the proposed changes to Legal Aid funding to me, my opinion of British justice was that the system was relatively robust but, like everything, open to failings from time to time.  This confidence was in spite of an incident in which someone close to me became a victim of some of those failings.  However, since becoming involved with the Save UK Justice campaign and listening to the anecdotes from my daughter and reading some of those told by other members of the campaign I have formed a completely different opinion.  I have been forced to re-evaluate my attitude towards changes that have been made over the years, my opinions formed as a layman from information available in the press.  Reading the tales of those in the legal profession, those on the periphery and the opinions of knowledgeable commentators has given me an entirely different perspective. 

It is apparent to me that miscarriages of justice of one sort or another are now almost commonplace and not just an occasional aberration.  As successive governments have come to power over the last 20 years or so waving metaphorical banners and claiming to be the party of law and order, or whatever; changes have been made to our criminal justice system have eroded any claim we ever had to be a land free and fair to all.  These politicians make sound bites about being tough on crime and/or tough on the causes of crime but when they come to power they make profound changes to the legal justice system like shooting from the hip with scant regard to their macro effect.  Whilst seeming to address one aspect of criminal behaviour or other, little thought has been given to justice; or how it would be assured that innocent people would not fall foul of laws and themselves become victims.

Our governments have lost sight of the fact that there are two sides to justice (hence the scales of Lady Justice) or the fact that she is blind to represent she holds no favour.  Many solicitors working in criminal law estimate that 50% of the clients they deal with are innocent, and are neither cautioned nor charged.  If the Lord Chancellor’s proposals go ahead then those few people left who are entitled to a Legal Aid lawyer, will only get one with a financial incentive to persuade them to plead guilty.  The lawyer would get the same fee for a contested trial as he/she might get for short hearing where the accused pleads guilty.  Now I don’t care what protestations the Secretary of State for Justice says but that is NOT justice for either client or lawyer.

So what happens if someone becomes a victim of a miscarriage of justice?  Well they won’t be entitled to Legal Aid representation so the likelihood is the sentence will prevail even if that is a prison sentence.  There are numerous examples where people have been exonerated after having spent years in prison for crimes they did not commit.  If the proposed changes had been in place then almost of them would probably still be behind bars.

To misquote Thomas Jefferson, until recently there were certain truths that I held to be self-evident:

·         In a trial someone would need to be proven guilty beyond all reasonable doubt.

·         People were to be considered innocent until proven guilty.

·         It was a police duty to investigate crimes and gather all relevant evidence that might prove by whom they were actually committed.

·         That although each political party may have its own view about how to go about governing the country they would always act in what they believed are our best interests.

Unfortunately, none of those things are now true.  It was once the case that having heard all the evidence, closing statements by the defence and prosecution and after a summing up by the judge, he/she would caution the jury that in order to issue a guilty verdict that they should be sure beyond all reasonable doubt.  Now apparently the judge will now only ask them to be sure.  But what does that mean?  ‘I’m sure he did it.’, sounds awfully like ‘On the balance of probabilities he did it.’  The latter are the words used in civil litigation, supposedly a lower burden of proof.

How about where a defendant of previous good character is charged with more than one offence?  Because of changes which now allow evidence of poor character to be introduced by the prosecution, the jury may be told that if they find the defendant guilty of one offence they can assume guilt of the others if they want to.

We like to believe that when the police investigate a crime it is their function to catch the culprit(s) and to charge those responsible for its commission.  However, it is looking increasingly like they see their function as finding someone who might have committed the crime and to gather evidence that might go to prove that is case.  In other words to disregard witnesses or evidence that might put doubt upon the police case; or to withhold contrary evidence in the disclosure process.  I’m not suggesting that this is always the case but it seems to occur often enough for there to be a serious cause for concern.  There may be political pressures that cause that to be the case but the effect remains the same.

The effects of these three things are serious enough but when taken into account alongside the fourth one, the consequences for British justice are enormous.  This government is first in recent history to make a deliberate and concerted effort to dismantle our Criminal Justice System.  The changes that are proposed include making Legal Aid unavailable to many and unaffordable to all but the obviously innocent.  Reducing those cases eligible for judicial review to almost none.


The list of potential outcomes is long and frightening:

·         The almost complete destruction of the criminal bar.  That would mean a massive reduction in qualified barristers to prosecute as well as defend.

·         Over time there will be less and less people qualified to become judges.  I can’t imagine how future governments will deal with that.

·         The loss of anything up to 1600 small solicitor firms with a long and respected record of service.  Thousands of highly qualified professional people and their support staff out of work.

·         Legal Aid lawyers will only be available from big companies such as G4S, Serco, Tesco and the Co-op.  Many of these companies are already completely discredited from other government contracts that they have failed to administer either competently or honestly.  These will be paid the same for a straightforward guilty plea as for a long protracted trial.  Giving the lawyer a financial incentive to persuade the accused to plead guilty even if that need not necessarily be the right thing to do.  These ‘lawyers’ would not necessarily be the same qualified people that have done this kind of work in the past, but possibly paralegals, people who have attended a 12 hour weekend course in advocacy.

·         Miscarriages of justice will become even commonplace because people will be represented by poorly qualified advocates; or will represent themselves in court.  Lack of representation will prevent people from successful arguing for an appeals in many cases.

·         Courts are already struggling under the weight of cases that need to be heard due in no small part to programme of court closures introduced by this government.  This situation will be severely exacerbated by the increase in court time caused by poor advocacy and self-representation.

·         From time to time the government makes a decision or brings into force laws or regulations which are contrary to natural justice or are in themselves in conflict with other existing law.  In such circumstances people can request a judicial review where these things can be independently considered by senior judges and put aside if found to be unjust or incorrect.  The government’s proposals would make it almost impossible for an individual to get such a review and totally impossible for groups or charities to do at all; leaving the government of the day to act with impunity.

These latest changes are a terrifying attack on the freedom and democracy of this country if allowed to go through I don’t know how this government intend to exploit them but the potential for misuse by future governments is incalculable.

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