The Bar Council has now published its ”Manifesto for Justice” in the context of the current General Election Campaign. It is short and to the point. It identifies six Core Values of our Justice system, describes how each of them is under threat and calls upon the next Government to undertake remedial measures.
In this blog I will concentrate on two of them.
Two of the six Core Values are:
II Legal excellence: by valuing standards of excellence in judges, in legal practitioners, and all who serve the administration of justice.
III. Stewardship: by making proper investment in the infrastructure of justice – in court staff, buildings and administration, and by not charging excessive fees to those who want access to courts and tribunals.
How these core values are under threat:
II. Judges and lawyers who serve the public have become less valued of their expertise and skills. For example, even before the press attack, a survey revealed that fewer than half judges (43%) felt appreciated by the public and virtually none felt valued by the media (3%) or by government (2%). Legal Aid lawyers have suffered 30% cuts over 10 years – more than any other sector providing public services.
III. Although investment in technology is being made, the infrastructure is creaking. Court buildings are being closed and those that remain are insufficiently maintained. 31% of judges have concerns about the poor physical quality of court buildings. Court staff and court administration have suffered from a lack of investment. 64% of judges are concerned about low morale of court staff…
What the Bar Council calls upon the next Government to do:
II. Provide appropriate funding which recognises the value of the judiciary and those who work for the administration of justice so that standards of excellence can be achieved. Solicitors and barristers who were once prepared to undertake publicly-funded work are choosing not to do so because the rates of pay have become so low. So the quality of judges and of lawyers who work in public service in the future is at risk, and the quality of justice will suffer if nothing is done to reverse this. The standards of our justice system should not be allowed to fall.
III. Invest in infrastructure. The previous government secured £750m worth of investment in IT on the basis that technology would make savings. Such investment is welcome and we must continue to modernise the justice system. But savings must not be made in a way which compromises the fairness of trials or at the expense of necessary human contact and the delivery of justice in open court. Existing court buildings must be maintained and modernised so that they become work places that are fit for purpose for all court users and provide suitable places for the delivery of justice to our communities.
I cannot believe that an “old-style” Lord Chancellor, such as Lord Hailsham, Lord MacKay or Lord Irvine, would have permitted his party’s General Election Manifesto to say nothing about any of this.
One of my most depressing recent experiences has been to read and listen to the evidence given to Lord Bach’s Commission about what is now going on in our criminal courts. This is insufficiently well-known, except by those who have to endure the problems day after day. I published a blog last year, in which I summarised the evidence given by the Criminal Law Association and the London Criminal Court’s Solicitors’ Association. This year’s evidence was, if possible, even more depressing.
Francis FitzGibbon QC, the chair of the Criminal Bar Association, has just written about a case in which a Crown Court trial “floated” for 4 days before it had to be adjourned because there was no Judge or jury available.
[I add the comment that none of the lawyers would receive any remuneration for preparing the case for trial or for freezing their diaries for four days.]
In another Court, he said, two serious sex offence cases could not go ahead because there were not enough prosecutors from the CPS’s Rape and Serious Sex Offences Unit (RASSO).
[Just think what impact this must have had on the lay people at the centre of these cases who were being told that they had to go away and wait for a further undefined time until the process again thought it could accommodate them].
In another, he said, a broken thermostat turned the building into a sauna, the (outsourced) contractor did not attend, calls to HMCTS didn’t help and the jury had to be sent home, twice.
Last week the Bach Commission heard of one case in which everybody had to turn up at a Crown Court for a complex criminal trial on at least four occasions, only to be sent away for another six months each time, because the court had not made the necessary arrangements to accommodate it. It is now three and a half years since the defendant was charged and he is still awaiting trial.
We also heard how judges are encouraging defendants to plead guilty on their first appearance (to take maximum advantage of a discount on sentence for an early plea of guilty) in ignorance of the fact that although the Court received the prosecution evidence by email in good time, the defendant’s solicitors either received it at the last moment or had not yet received it at all.
In a recent blog on judicial morale I quoted an extract from a recent speech by Angela Eagle MP, in which she said:
When I was recently called to do jury service, I got the chance to experience at first hand the current state of our courts. The jury canteen had to close down because it malfunctioned, the ladies’ toilets malfunctioned, the water machine malfunctioned and the computers malfunctioned, meaning that juries could not even be chosen. Despite the fantastic and very patient work of the employees of the court system, the whole thing was a mess, and it was in need of substantial financial investment.
This elicited the following comment from a barrister on the North-East circuit:
She is of course correct; but what I find really galling is the tone of surprise. Why should the state of our criminal courts, which is hardly a recent development, come as a shock to our elected representatives? Why is nobody looking? Politicians are frequent visitors to hospital wards, but I have never seen a constituency MP visiting any of the courts I frequent. It should not have taken jury service for Ms Eagle to pay a visit to her local Crown Court. The problems are here to be seen, but no one is looking, and when the alarm is raised, no one is listening.
And it is not only the way trials are being organised, or the courts’ infrastructure is suffering from a lack of maintenance. There is also the problem that as the relevant law and procedure is being made more user-friendly for complainants in historic sex offence cases there is now a growing cohort of cases in which the defendants are now serving long prison sentences for offences they are absolutely adamant they did not commit.
I have often published blogs about this problem. In March I attended a moving church service in St James’s Piccadilly which had been organised for the friends and families of those who are adamant that they were “falsely accused”, or ”falsely convicted”. At the end of the service there was a forest of lighted candles as an outward and visible sign that they were not being forgotten.
Today there has been a powerful contribution to this debate by the small unit at Cardiff University that has specialised in “miscarriage of justice” cases. They say:
“A typical week brings us another letter, email or phone call from a desperate prisoner or their relative or friend requesting our help to address a conviction for sexual abuse which they say was based on a false accusation. Invariably they describe how and why it could not have happened, how the accuser’s story was inconsistent and how the accuser’s actions do not fit with that of a victim. There may be ‘common sense’ reasons why it can’t be true: how can a father repeatedly rape his five-year old daughter while her mother sleeps through the event in the same bed. Unbelievable? Yes, but that’s a real story and a real conviction.
What should we say to these people?
How do we tell them that none of this means anything once you are convicted? How do we tell them that if the only evidence is the word of the accuser(s) then there is virtually no way we can find new evidence for an appeal because there never was any evidence beyond the accusation and the word of the complainant? The accusations are usually so unspecific in terms of time, and sometimes even place, that having an alibi is a non-starter. ‘The events occurred numerous times between 1996 and 2003,’ may be typical. There never seems to be any record or evidence of physical injuries to match the accusations.
I have had the same experience. But there is no evidence within the Conservative Party manifesto of any inclination to study this problem and to try and put things right. Strong and stable leadership does not recognise there is a problem here at all.
We have now travelled a long way from the 18th century world of Thomas Blackstone in which
“the law holds that it is better that ten guilty persons escape, than that one innocent suffer.”
But how much further do things have to slide before our elected Government realises that one cannot just go on slashing the resources available to the courts and the criminal justice agencies?
It does not look, however, as if any of all this is going to be a live issue in the current Genera Election campaign.
P.S. What follows is the rest of Francis FitzGibbon’s blog. I did not intend to reproduce it here, but as it casts a useful light on other problems plaguing our criminal justice system, I am content to leave it here.
“Such a waste of money. This is why the CBA says to politicians and anyone who will listen that investment in IT isn’t enough. Accumulated cuts have brought criminal justice to its knees. The people aren’t there to do the work and the fabric is collapsing. This is not the way to make things right for victims of crime.
Put HMCTS’s pilot scheme to one side, and consider the ungoverned practice of ‘flexible operating hours’ that currently plague many advocates. At a meeting of the Bar Council on Saturday, people spoke of: a Magistrates Court that sat till 9pm before giving a decision; a Crown Court that repeatedly listed a case at 7.15am; the tendency of Judges to sit beyond 1pm but restart before 2pm, while video link conferences are arranged during the lunch break; listings at 9.15 and not before 3.45.
Extreme examples, or a pattern of disregard for the people who attend Court because they have to, as Judges, advocates, staff, or participants in cases? For reasons already aired in previous messages, we are firmly of the view that the HMCTS scheme will not help. The CBA is not about featherbedding its members or interfering with our professional duties to Courts and clients. We believe that unreasonable hours and conditions for all those who work in the criminal courts do not serve the public interest.
How reliable is a verdict reached at 9pm? Do tired and demoralised advocates give a better service than fresh and well-motivated ones? Should we tolerate people quitting the profession because they cannot combine their care responsibilities with the tyranny of Court hours and the inadequate pay they get? We think that a well-run court system would have at least the following working practices as standard:
- No warned lists.
- Shorter and fixed sitting hours, with exceptions only when the need arises.
- Listing arrangements that genuinely recognize advocates’ availability.
- A cut-off time of day for sending and receiving emails relating to on-going trials.
- Catering facilities for all Court users in all Courts.
These are hardly revolutionary things to ask for.”