'British Justice' Does such a thing still exist?

For those of you who, like me, that always held an innate faith in ‘British justice’; but who have been either unaware of the effects of changes that have taken place over the last two decades or so, I thought it might be useful to explain.  Many people might not be too concerned, perhaps they might believe that they are things that are never likely to involve them; or maybe they imagine that there is no smoke without fire and those that find themselves caught up in the legal system deserve everything they get.  However, I hope that this edition of my blog will help to explain why I think that every single one of us needs to be desperately worried by the steady and relentless erosion of what was once a legal system that was the envy of the world.

What follows in this blog is a layman’s explanation of what has happened so far.  It is very long and you may not want to read the whole thing but perhaps cherry pick bits which you find informative.  I anticipate being bombarded with criticism (constructive I hope) by those in the legal profession because I am bound to have got a few things a bit wrong, and if I have I made glaring mistakes I will revisit and edit accordingly.
To put my concerns in context here are a couple of examples: 

·         Imagine yourself and your wife returning to your car after a night out to the cinema or restaurant, as your walk through the high street a group of young people a bit worse for wear through drink spill out into road and bump into you and your wife.  A tussle ensues resulting in an injury to one of the youngsters, the police are called and you are accused by the youngsters of being the aggressor.  The police become convinced that you are at fault and you end up charged with an offence.  Your wife is the only witness in your defence, all the youngsters tell the same story, there are no other witnesses and CCTV is inconclusive.  A criminal conviction would mean the loss of your job, potentially leading to your house being repossessed, moving to rented accommodation and your children having to change schools.  Because of your income and your assets (your house) you are not entitled to legal aid meaning your only options are to defend yourself, or to sell your house anyway to raise funds for your defence.

·         Imagine finding yourself fighting for the custody of your children, either because of divorce or separation; or worse still because of false accusations of abuse and the state want to place them in care or for adoption.  The Family Courts in this country are notoriously one-sided when it comes to matters involving children and without qualified representation your chances of successfully fighting your case are extremely low.

My campaign is not only to address the issue of miscarriage of justice when the innocent are convicted, but also of when the guilty are acquitted or not prosecuted in the first place as a result of a poorly resourced and badly damaged criminal justice system.
Below is a list (not exhaustive) of changes made during the last two decades:

Beyond all reasonable doubt

At one time anybody arrested and brought before a court could expect that a guilty verdict could only be returned if the magistrates or jury believed the accused was ‘guilty beyond all reasonable doubt’.  In fact a judge would even remind juries of that before they retired.  Sadly that is no longer the case.  Now juries are asked to be ‘sure’ of someone’s guilt.  ‘Sure’.  What does that mean?  ‘I’m sure I locked the front door when I left home’; ‘Are you sure you would prefer ice cream instead of apple pie?’   Whatever it’s literal meaning, the word’s context is blurred in common usage.  In my view a jury being asked to make decision that will affect the life, livelihood and possibly liberty of not only of the accused but possibly his family, need to be absolutely certain as to what burden of proof is required, and in that regard ‘sure’ doesn’t hack it.

Innocent until proven guilty

The concept of innocence until proven guilty has been around since Roman times and in theory it still exists in UK law although in some circumstances it becomes moot and ineffective.  I am not a lawyer but I will try explain.  Often when police or CPS decide to prosecute they won’t just do so on the basis of a single charge they will take what I call a ‘shotgun’ approach by choosing a number of occasions when a single offence may have been committed (sometimes without even specifying dates), or they may claim that an offence was committed a number of times (once again without specifying dates).  In 2003 the law was changed to allow prosecutors to introduce evidence of ‘bad character’ (in other words previous convictions) to help convince juries of guilt.  In and of itself may not seem too much of a step, but coupled with a ‘shotgun’ prosecution it can be used like this.  The jury are told that if they find a defendant guilty of one charge they may if they can also convict on others if they wish, even if the accused has a previous exemplary record.

The right to a defence lawyer (Legal Aid)

Anybody who has previously read my blog will have heard me go on about this before but in spite of all the campaigning, the (MoJ) Ministry of Justice and the Lord Chancellor roundly proven to have consistently lied about just about everything in this regard, have gone ahead with many of the changes.  The result is that when anyone who is charged with an offence the likelihood of them being given government funded lawyer is very remote.  Those people who are extremely poor may get one.  The very rich will not need one because they can afford to pay for the best.  Everyone else will either have to represent themselves or possibly sell their home to pay for one.

Like it or lump it the law is expensive.  It is very fashionable to believe that all lawyers are wealthy and they charge too much etc; however, that is simply not the case in criminal law, or in family law for the most part, amongst those representing parents in custody battles for example.  Running a solicitors’ firm or a barristers’ chambers is an extremely expensive business and lawyers do not get paid for many of the things they do preparing for a court case, many of their attendances at court, their travelling time and expenses, or for their time when they are waiting around for a case to be called.  The expense of running their offices can be enormous what with compliance safeguards, salaries of support staff, professional fees and property leases.   The changes brought about by this government have made the business of being a lawyer unviable for many and some of the best among them are leaving the profession, (Currently I understand, the government is paying approximately £45 per hour for a solicitor, which has to pay his/her secretary, receptionist, rent and overheads for much of their work. Less than most people pay their garage mechanic.).  The effect of all this will mean to those with legal aid and even some that can scrape together enough money to pay for their defence in court may only get a poorly qualified lawyer working on a zero-hour contract for a company like G4S.

If the attrition of highly qualified professional lawyers continues then there will be a shortage of suitable qualified lawyers to replenish the judiciary when retirements occur.

The right to remain silent

Most people will be aware of the removal of an arrested person’s absolute right to remain silent.  Now if a person remains silent when questioned that could be used by the prosecution in court to indicate guilt.  Without professional advice as to whether giving a commented interview is advisable or otherwise, an arrested person could easily say something which might appear to indicate their guilt even if that were not the case.  Although at present people still get a lawyer to represent them at a police station.  If these changes are allowed to reach their logical conclusion the quality of that representative, in terms of their qualifications and experience, is certain to deteriorate.

Disclosure of evidence

Disclosure of evidence to be used in a trial by the prosecution to the defence is an essential component of a fair trial.  This process is usually reciprocal.  It should be remembered that it is not within the mandate of either the police or the prosecution to ensure that evidence that which might go to indicate innocence should be gathered or presented in court.  Therefore another essential part of the process is that evidence and documents that are not to be used in the trial is also exchanged.

This government has massively reduced funding to the (CPS) Crown Prosecution to such an extent that they are so understaffed that more often than not now unused material is often either not produced until the day of the trial or in many cases not at all.  This continues to happen even after directions from a judge to the CPS to facilitate disclosure.  When this occurs the chances for a fair trial are severely damaged and the opportunity for a miscarriage of justice are greater.

Right to appeal
In some cases convicted persons may have the right to appeal a judgement and when this happens it is important that the person should be represented by a qualified lawyer with things as they stand now this may no longer be the case.

The right to be treated humanely in prison

Winston Churchill once said that you measure the degree of civilisation of a society by how it treats its weakest members.  Amongst the most vulnerable are those in prison.  It might be a popular view that people in prison are there because they have committed a crime and that is their punishment, but the imprisonment (i.e. the loss of liberty is their punishment) they are not sent there to be held in a secure place in order to facilitate additional punishment.  This is ignoring all the other aspects regarding rehabilitation whilst incarcerated.  There is little point in sending people to prison only for them to come out a more accomplished criminal than they went in.  People must be given an opportunity for redemption if the cycle of recidivism is not to continue.  Ignoring the absolute truism that the number of unjust convictions is rising exponentially for the reasons given above.  The Prison Service is now so starved of resources that overcrowded and under-staffed prisons are the rule rather than the exception.  Over the last few months barely a week has gone by when a report of a prison in crisis has not been published by HM Inspector of Prisons.  Suicides of prisoners are rising, violence against other prisoners and staff is increasing and so is the incidence of disorder.  Rehabilitation courses, which are mandatory before release in some cases, are often unavailable meaning that prisoners overstay their sentence sometimes by months or even years (at a cost of £40,000 pa to keep someone in prison).  Prisoners are be denied access to books from friends and relations, and routinely locked in their cells 23 hours a day; how is any of that expected to rehabilitate anyone or prepare them for life on the outside. 

Another of the Justice Secretary’s brainwaves has been split up the (NPS) National Probation Service.  Ostensibly, this was to improve the way it operates except the first effect was actually to make things a great deal worse.  The initial action was to divide the service in two; with the ‘most serious cases’ remaining with the NPS and the remainder to a number of ‘charities’ who will have bid for contracts.  This was privatisation by another name and the word charity was clearly a euphemism for outsourcing company.  Staff to be transferred to the new ‘charities’ were picked from a hat without their consent (always a good way to motivate people).  On the week that the initial change took place, the computer system designed to deal with the new arrangements crashed and irretrievably wiped the records of a huge number of probationers.  This resulted in hundreds of recently released including some dangerous criminals going about their business unsupervised by the NPS.  The chaos created by the MoJ’s ineptitude has yet to be resolved and nothing appears to be being done to resolve it.

Family courts
Most of what I have been saying relates to criminal proceedings but of course the Tories and Mr Grayling began his war against justice in the Civil Courts removing the right to legal aid representation for most cases.  There has been no legal aid in medical negligence case for a few years now and complainants have to rely on ‘No Win No Fee’ arrangements with a local law firm.  However the removal of a right to legal aid has been extended to include child custody, divorce, domestic abuse, trafficking and other cases.

Judicial review

What happens if a government passes a law, introduces regulations or takes any action which is in itself illegal.  Until recently an individual or an organisation could apply for legal aid to argue a case with sufficient merit for a review of that matter in the court, this would be called a (JR) Judicial Review where a challenge may be made to the way in which the decision was made.  JRs are an extremely costly affair and legal aid is essential if a person or organisation of limited means is to be given the opportunity to have those decisions tested; however, the right to legal aid in these circumstances is being removed.