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 CONSEQUENCES
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.
