‘Walk into any court in the land, speak to any lawyer, ask any judge and you will be treated to uniform complaints of court deadlines being repeatedly missed, cases arriving underprepared, evidence lost, disclosures of evidence not being made, victims made to feel marginalised and millions of pounds of public money wasted.’ – The Secret Barrister.
The above quote from The Secret Barrister’s first book really sums up the myriad problems plaguing the criminal justice system.
Starting off with a historical context for how the English and Welsh criminal justice system evolved slowly over history into the form it now takes, The Secret Barrister methodically explores the various facets, the myriad problems, their apparent causes and most alarmingly why it is that the vast majority of the public don’t seem to care about any of it.
For the uninitiated The Secret Barrister is a junior barrister specialising in criminal law. They have amassed a not insubstantial following on Twitter, follow them @BarristerSecret, write a blog on various cases that appear in the media amongst other things (like the reasons for opting for anonymity). They also contribute to various media websites on matters of the law in high profile cases, like this explainer on the rather complicated hot potato case of John Worboys.
One of the really interesting things here is despite how fundamentally important the criminal justice system is to a democratic state, and how it can potentially impact on anyone in that state, it’s really rather surprising how little people really know about it. How many people not working within the system can honestly say they know the difference between a Magistrate, a Barrister, a QC and a Solicitor? How many people think that judges in English courts use gavels? How many think that a Barrister spends his days shouting “OBJECTION!” as a judge with a large ornately curled wig oversees things?
One of the first things that sets off an alarm is the revelation that magistrates that sit on Magistrates Courts, where they have the power to sentence people to a maximum of twelve months in prison, need no actual qualifications. If someone told me that six months ago I would’ve assumed they were making it up. To make matters worse there’s more and more pressure to push more and more cases through Magistrates Courts to save money. Saving money is a recurring theme throughout this expose of how the criminal justice system is, at best, running on fumes.
Whilst the revelations about magistrates courts, a ‘replica of an inner-city A&E department on Saturday night’ which deals with an eye watering 94% of criminal cases might cause alarm or surprise that’s just the starter on the menu here.
Other choice highlights being, lawyers dealing with cases they learn about upon arriving at court relying upon often incomplete files, evidence that goes missing somewhere between the CPS and the police if it was ever found to begin with, complainants that give up rather than waiting for their trial that’s been adjourned several times over several years to be rescheduled, shiny new court rooms (built with tax payer money) that remain locked and unused despite the backlog of cases due to cost cutting, predatory private legal firms that poach clients but then abandon them, private firms that fail to provide interpreters, or worse provide interpreters that aren’t fit for purpose, and possibly the most surprising of all that on some cases a legal aid barrister will in fact be paying to work so low is their hourly rate.
That’s just the tip of the sorry iceberg though and just some of the inevitable consequences when Justice is at the mercy of the state being fixated on doing things on the cheap.
There’s three things I’ve heard people talk about in a disgusted manner as they peruse the newspaper seeing an article related to the latest case that’s made the news, one is disbelief and outrage at some rapist, for example, ‘getting thousands of pounds in legal aid’, another is ‘soft touch’ judges ‘letting people get away with anything’ and the third is prisons ‘being glorified holiday resorts’.
The average person’s seething contempt for legal aid is seemingly built on a heady mix of misinformation from the media reporting things shorn of context to serve a political stance and the idea that they, or their loved ones, will never find themselves in court having to defend themselves because that only happens to other people. This is compounded by governments also playing their part in misinformation to curry favour with an electorate that increasingly thinks Something Must Be Done.
The seemingly abstract nature of the criminal justice system is why it’s not treated in the same way in the media as say the NHS, or Education, or any of a dozen other things that impact people’s lives.
Then there’s the absurdity of the ‘innocence tax’, whereby somebody can be accused of a crime, be aquitted, then find themselves having to sell their home to pay legal fees. How can that be right? You might ask, it’s because thanks to government mandated policy changes the state not only doesn’t have to refund all their costs but increasingly people will not qualify for legal aid as a direct result of policy changes. This means an exponential increase in the number of people representing themselves, which unsurprisingly means longer more drawn out trials because they don’t know what they’re doing, which cost the tax payer more, and also unsurprisingly doesn’t tend to go well for the self representing party.
But it get worse.
Legislation for sentencing for crimes is such a complex and labyrinthine affair that even judges sometimes struggle to understand things. With Mr Justice Mitting, on commenting on a High Court case in 2010, stating, ‘It is simply unacceptable in a society governed by the rule of law for it to be well-nigh impossible to discern from statutory provisions what a sentence means in practice’.
So it’s not really that surprising that crime reporting tends to cut away what’s considered the extraneous details around a sentencing. This speaks to a fundamental problem in the way crime is reported though. Shorn of context, detail, and importantly explanation, the public is lead to believe that criminals are indeed ‘getting away with it’.
As for prisons The Secret Barrister has this to say,
‘Stepping inside a prison will immediately quell any agreement you may have with red-top caricatures of holiday camps. Prisoners are locked up for up to twenty-three hours a day in filthy, dilapidated cells, in which they eat all their meals and use an unscreened lavatory in front of their cellmate. Cockroaches crunch underfoot, surrounded by broken glass, peeling ceilings, broken fittings, graffiti and damaged floors. Giant rats’ nests add infestation to the population. Drugs have flooded in as prison staff struggle to maintain order’.
After mentioning that HMP Leeds aka Armley Jail, The North’s own Colditz if you will, had been reported as being severely overcrowded and rife with drugs, violence and mental health issues, a friend commented “Good. They deserve it”. Which speaks to the seemingly commonly held belief that the only punishment for a crime must be incarceration and that empathy or compassion for the incarcerated is a rarity. The letters page of the Metro after a particularly awful high profile case, for example, will be full of lamentations about how much of a ‘soft touch’ the country is for not having the death penalty anymore.
But there’s more still as The Secret Barrister relates in horrifying detail how upon finding yourself wrongly incarcerated for several years if you’re lucky enough to actually be released via the Court of Appeal, which in itself is a rarity, you won’t get so much as a ‘sorry about that old bean’ from the state, nevermind any kind of financial compensation so you can attempt to piece the shattered remnants of your life back together.
The understanding and representation of the law and crime isn’t just a problem in the media, especially in newspapers given that local news reporting has all but gone the way of the Dodo, but this distorted perception is amplified even more when elected representatives demonstrate how they too clearly don’t understand matters of law, Harriet Harmon MP’s proclamations on the hot potato case of Ched Evans being a pertinent example.
The Secret Barrister has no love for MP’s who care not for the nuances of the law,
”Sometimes, our elected representatives will not even bother to lay the groundwork; they will simply run straight to the Commons with a private members bill drafted on a crisp packet seeking to vanquish whatever chimera excites them today’.
Given how genuinely dire things are it’s no surprise that 90% of the The Criminal Bar’s members agreed to effectively go on strike over the myriad cuts to legal aid amongst other things.
The other aspect bubbling away in the background of this sorry state of affairs is none of this makes being a criminal barrister, or any other role, in anyway appealing for people entering the maddening world of the criminal justice system after landing themselves in massive debt for the privelege .