The Secret Barrister: Stories of the Law and How it's Broken.
Macmillan, 2018.
A fascinating and disturbing look at the human cost of the UK criminal justice system and how we ended up with it, by a junior barrister specialising in criminal law.
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All societies have rules surrounding the behaviour of its members and sanctions when rules are broken. Crimes are the gravest breaches of social codes, which the state cannot leave to individuals to privately arbitrate. If a state is not seen to be capable of dispensing justice, people may start to dispense it themselves.
The UK system. Once arrested and charged with an offence, you are sent for trial at either a magistrate's court (who deal with 94% of criminal cases) or a crown court. Summary offences (motoring offences, common assault, minor public disorder) can only be tried in a magistrates court; the most serious 'indictable only' (murder, rape, possessing firearms, serious violence) can only be tried in a Crown Court. Other cases (burglaries, drug transactions, semi-serious violence and some sexual offending) can be held in either court.
If someone pleads guilty, there is no trial and the judge will assess the specific crime and the legal options for punishment, the evidence relating to the offense, and any mitigating circumstances, and pronounce the sentence. Sentencing includes community orders, alcohol rehabilitation orders and compensation orders, in addition to imprisonment.
Other countries have other systems. In Belgium an investigating judge directs the police to gather evidence and then assesses it; defense questioning is conducted through the judge; there is no jury; there would be a month's wait for the judge's decision. In Saudi Arabia, the accused is in a closed courtroom, with no lawyer; retribution might be physical; if a homicide, the perpetrator could evade execution by paying blood money to the victim's family.
The author feels that justice is about being fair to all parties - defendant, victim, witness and to the public. It's fair that
# rules are agreed democratically (and not imposed arbitrarily)
# that you know the rules before you are punished for breaking them
# if you break them the procedure is the same for everybody
# that you are judged independently and by the same standards as your peers
# you have access to a fair court, refereed by an independent judge who ensures the law is correctly applied
# that those judging you are ordinary people unconnected to the case and able to return any verdict they see fit
# the public prosecutor brings a case where the law and public policy dictate it should (and not simply where an aggrieved party can afford to prosecute)
# the defendant has access to legal advice of the same quality as the Crown
# that all are presumed innocent at the start and are only convicted when we are sure of their guilt
# that the guilt are properly punished and where possible rehabilitated. The author also feels that when everything works as it should, our criminal justice system is one of the best in the world.
Direct contact with the criminal justice system changes lives forever, families can be broken, children separated from parents and people imprisoned for many years. Miscarriages of justice do happen on occasion, either failing the victim or imprisoning the innocent.
Serious criminal cases collapse on a daily basis because of avoidable failings by underfunded and under-staffed police and Crown Prosecution Services. This means, for example, that accused and victims can wait years for a hearing, courts can stand empty due to slashed budgets, lawyers are forced to juggle multiple cases, and defendants may be excluded from publicly funded representation.
Cases in magistrates' courts are heard either by District Judges, who are legally qualified full-time judges, or magistrates (justices of the peace), who are volunteers with no legal qualifications, only minimal training and unlikely to reflect the ethnic and social backgrounds of the defendants. Having delivered a guilty verdict, district judges and magistrates also set the sentence. The author asks whether we should move to simply having District Judges.
Barristers instructed to prosecute or defend a case may only receive the case files on the day of the trial, and often the paperwork is minimal.
Anyone can be wrongly accused of a criminal offence, when error, malice or a twist of fate convinces the police and CPS that you've broken the law. You sensibly decide you need legal representation but due to your income you are not eligible for legal aid, so you need to borrow or mortgage to afford the private fees of firms and barristers who specialize in these cases. But the total bill will run into six figures. At the trial you are acquitted, but though you have been found not guilty, the state refuses to reimburse you. It will give you a modest contribution to your legal costs, but you have to find the rest - from your pension pot? selling your house? How we got to this point is by government lies about the cost of legal aid.
The Ministry of Justice in 2011 stated that the UK had the most expensive legal system in the world, using this claim to cut back on legal aid -
but this claim was entirely and provably untrue. It was based on the costs of justice systems in just eight countries ( England & Wales, France, Netherlands, Germany, Sweden, Australia, New Zealand and Canada. The survey did show that per capita, E&W did spend more on criminal legal aid but the legal systems of the eight countries differed so much it was impossible to compare them directly. France and the Netherlands are inquisitorial systems. Sweden and Australia had established 'public defender' models with state-employed lawyers providing criminal defences, so little use of private providers. In E&W the bulk of the costs of criminal proceedings are borne by prosecution and defence and far less on the court budget. In other jurisdictions, costs met here by legal aid are allocated to different departmental accounts. The comparisons were therefore misleading and pointless. The National Audit Office 2012 report also compared international criminal justice systems, and concluded that the average total annual public budget allocated to all national courts, prosecution and legal aid as 0.33% of GDP. The figure for the UK was also 0.33%; more than Lithuania but less than Monaco.
The MofJ also suppressed the fact that per capita, E&W brought twice as many prosecutions as any other country. The MoJ report only included data up to 2007 and that of the NAO only up to 2008. As of 2010 the number of prosecutions started to decline. Another point is that the Treasury dictates that VAT is paid on all legal services, including legal aid, so the VAT is paid by one government department to another - but the MoJ still includes this in its headline figure. legal aid firms may gross large amounts, but these are used to pay staff, rent and business expenses. Tabloid figures for lawyers earnings are usually based on several years work.
In 2014, the budget announced a cut of 1p on duty on a pint of beer, and a freeze on duty on cider and spirits; the cost to the taxpayer was £300 million a year. The cut in legal aid, which increased the risk of innocent people going to prison, was £220 million a year!
Rules of Evidence are complex and emerged piecemeal from the 18th century. They aim to confine what is put before jury or magistrates is only what is relevant to the issues, and to eliminate lower quality evidence such as hearsay as being more likely to be unreliable. Other exclusionary rules are aimed at avoiding undue prejudice to the parties. The evidence called by each side is selective and partial. But cases ought to be judged on the evidence and not on the sharpness of the lawyer.
The truth is that the CPS is attempting to deliver justice at barely two pence per day per capita. Digitization is starting to make a difference, but evidence and disclosure still need to be reviewed, documents still need to be obtained and uploaded, and cases still need to be managed. This requires people - and money.
We may have a various services and posts to support victims. but the sad truth is that only 55% of people who have been a victim or witness in criminal proceedings would be prepared to go through it again due to the failings inherent in the current system. And ministers and media alike rarely acknowledge that this is due to under-resourcing and under-staffing.
Working on a case for the defence, a barrister must follow the Bar Code of Conduct: if a client says they did something, the barrister cannot say in court that they did not. While the barrister cannot reveal this to the court as the client enjoys legal priviledge, the barrister cannot present a positive case they know to be untrue. But if the client asserts they are innocent, even in the face of overwhelming prosecution evidence, the barrister must present the defence to the best of their ability.
Sentences are often out of kilter with public expectations and the same criminal behaviour can be dealt with entirely differently in alike cases. There is a lack of clarity in what the sentence is intended to achieve. The media and social media, rarely acknowledge that offences often have specific prison terms mandated, and that there are Sentencing Guidelines for judges to follow. Then time spent in prison on remand in many cases will effectively reduce the term given by the judge. While a free press is necessary, argument supported by half-truth and misrepresentation is bad for society. 'Walk free' is used to describe a suspended sentence with conditions attached (e.g. unpaid work, curfew, drug treatment, etc.) and the judge's stated reasons for the suspension is not reported.
The UK imprisons people at a higher rate than anywhere else in Western Europe (146 per 100,000 as against 76 in Northern Ireland, 57 in Sweden and 38 in Iceland). Our current prison model does not focus on rehabilitation. Most of our prisons are overcrowded, and violence is common, as are prison deaths, which include suicides. As estimated 20 to 30% of prisoners have learning difficulties, and the majority have literacy skills of an 11 year old. Over half of women prisoners and over a quarter of men report being abused as children. Prisoners have higher rates of mental illness, drug and alcohol abuse and are homeless, than the rest of the population.
The Court of Appeal is where unsafe convictions are quashed. In some cases a retrial is ordered and they are reconvicted. But how do we put things right for the wrongly imprisoned? There is no public acknowledgement of failure or apology. If years have passed you may be jobless, friendless and have mental trauma, and there is no institutional support. Few people are successful in getting compensation for wrongful imprisonment, due to the tight restrictions. (In 2016 it was announced that there would be a more generous compensation scheme for rail passengers whose trains were delayed by more than 15 minutes!]
Public legal education in the UK has historically been poor. There is now a move to include the fundamentals of law in citizenship classes in schools, and legal representative bodies and charitable bodies work with many schools. Reaching the wider public is more difficult, as the public tend to wrongly pick up ideas from US legal and crime dramas. Political tinkering has left criminal law in bits and pieces, in thousands of different statutes and statutory instruments, which are then interpreted by common law court precedents. And the government free website
www.legislation.gov.uk is dangerously out of date. By contrast, Canada has a unified criminal code, combining all criminal law and rules on procedure in a single document.
Another problem is that most of us think 'it will never be me'. But while some of those convicted go on to a career of crime, others are people who have made a mistake.
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My thoughts: Sadly the Conservatives have a history of cutting funds to public services, up to the point where the public outcry is large enough, then they promise to address this and get public applause, but somehow the money is never enough to get back to historical levels of funding, and they fail to see that (as with nurses and doctors) you cannot instantly produce additional, properly trained professionals.]
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