Reviewed by Paul Magrath
Thanks to a well-supported crowdfunding campaign, copies have been provided for all MPs. The book has remained in the Sunday Times top ten bestsellers list for nearly six months. It has received a large number of glowing reviews and a lot of attention in the legal and also the general press. But, satisfying and even financially rewarding as all that may be, one imagines none of this would please the author more than for the book to have some effect in remedying the ills which it describes.
And they are ills. The justice system is like a patient in A & E, forced to lie on a stretcher because there are not enough trolleys, waiting seven hours for an X-ray to ascertain just how badly broken they are, and likely to pass away before a drip feed of emergency funding can save its life.
Oh come on, now: is it really that bad? Well, bits of it certainly are. And it would be a shame if the author’s anatomising of the problems turned into a premature autopsy.
So what are the problems? Each chapter considers a different stage in the odyssey of a case from initial consideration by a magistrates’ court, via the trial itself to conviction, sentencing and appeal. At each stage there are problems, and while some are inherent in the system or the way it’s currently managed, most of them could be solved or improved by better funding and support from government.
What follows is partly a navigational aid and partly a picking up of some key points. It is not a substitute for reading the book, which combines eloquence with anger in prose designed for lay readers as well as lawyers. It is a book for everyone, and everyone should read it. Especially your MP.
Justices of the Peace are given hardly any training before being allowed to decide, in a bench of three advised by a legally qualified clerk, on issues affecting the liberty of the subject (or, in family law, the future life of a child). ‘Why is ours the only legal system in the world that empowers volunteers to send their fellow citizens to prison?’ Because, fundamentally, it is cheaper. Moreover, JPs are here to stay:
‘This hangover of thirteenth century parochial peace-keeping, far from being gently put out to pasture, is re-engineered as our turbo-charged, armoured vehicle of justice for the new millennium.’
Under proposed efficiency reforms, more contested cases will be eligible only for trial by magistrates, with fewer of the outcomes being eligible for appeal; and more uncontested cases will be dealt with away from public gaze under the ‘single justice procedure’ (with its ‘echoes of the eighteenth-century Petty Sessions convened in JPs’ living rooms’).
The chapter on (pre-trial) remand and bail is headed ‘Imprisoning the innocent’. The justifications for locking someone up before they’ve been tried for the alleged offence are that they might fail to attend court, re-offend or interfere with prosecutions witnesses. Most defendants are given bail, but some 70,000 defendants each year are remanded in custody, at an estimated cost of £429m. One in seven of them (so about 10,000) will eventually be acquitted, but receive no apology for their ultimately unjustified incarceration.
Given these facts, and the stringency of the legislation, you’d think more care would be taken over bail decisions, but most are ‘taken at speed on the basis of incomplete, and sometimes wholly inaccurate, information’.
‘Walk into any criminal court in the land, speak to any lawyer or ask any judge, and you will be treated to uniform complaints of court deadlines being repeatedly missed, cases arriving unprepared, evidence being lost, disclosure not being made, victims being made to feel marginalised and millions of pounds of public money being wasted. And, as a consequence, every single day, provably guilty people walking free.’
The reason for all these failings is, quite simply, ‘a chronic lack of staff and funding abetted by successive cynical governments’.
A particular issue (as had been prominently reported in the news) is disclosure of evidence, notably in relation to the increasing proportion of cases involving sexual allegations, where computer data and social media content can make a critical difference to the trial, yet often are not properly reviewed.
‘It is the witness box that plays centre stage in the theatre of the courtroom…’ Yet all too often a victim (or more properly a complainant, or alleged victim) is made to hang around for hours, sent away because a court is not available, or told the case has collapsed and their time and anxiety has been all for nothing. That is something all the political hot air about Putting Victims First cannot solve.
The truth is that victims and witnesses are not put first, where the interests of the courts, the prosecution and the defendant must all be balanced in a system that has been crippled by cost-cutting and court closures. Not surprisingly, ‘Nearly half of all witnesses surveyed said they would not be willing to take part in criminal proceedings on a future occasion.’
The chapter on the role of the defence upends a couple of popular assumptions.
First, despite the rumpled glamour sometimes attributed to defence barristers, the really critical role is the ‘often grim and thankless job’ done by the solicitor:
‘They take your instructions, apply for your legal aid, advise on the evidence, instruct the right barrister, instruct expert witnesses, take witness statements, visit you in custody if you’re not on bail, chase the CPS endlessly for vital disclosure and handle and every-growing Everest of paperwork on your behalf.’
However, the good work they currently do is being threatened by funding cuts and by the rise of unscrupulous ‘vulture solicitors’ who poach clients from the conscientious ones just to harvest the fees.
The second popular assumption is over the role of ‘gamesmanship’ – taking advantage of every loophole in the law and every slip-up by the prosecution in a bid to get your client off. ‘I struggle to accept that this is just part and parcel of the adversarial procedure,’ the author admits. While ‘the avoidance of the conviction of the innocent … must be the most important principle, it is not the only one’. So something like being asked to assist the court in identifying the issues ‘does not strike me as anathema’. That said, it does not necessarily mean doing the prosecution’s job for them, such as chasing up the CPS for undisclosed material, especially when a fixed case fee means such work is usually unpaid.
Thanks to tireless efforts by Ministry of Justice spokespersons, and their willing megaphones in the tabloid press, the myth of the ‘fat cat’ legal aid lawyer, lapping up the cream of ‘the most generous legal aid system in the world’, is well established. But while legal aid rates of pay are now often below the national minimum wage for the long hours worked, the author is not afraid to point out that the myth might once have had some historical justification. Back in the 1980s, ‘criminal legal aid was a bit of a gravy train’. Barristers could bill by the hour and assessors would ‘waive through excessive guesstimates’. Since the late 1990s successive governments have cut the largesse, so that the fees now paid rarely reflect the actual work done.
One of the most iniquitous consequences of the recent cuts is what the author calls the Innocence Tax. This is the cost which someone not quite poor enough to have their defence entirely funded by the state must bear, to ensure they can defend themselves against a charge of which they end up being rightly acquitted.
In the past, a defendant who had been acquitted could recoup the costs of their successful defence. Now, however much you may have spent on your representation, the most you can get back is the inadequate rate at which legal aid would have been paid, had you been eligible for it – a fee considered so inadequate by the Bar Council that it has ruled a barrister is not obliged to take a case under the Cab Rank principle (which otherwise precludes a barrister turning down work, however distasteful, other than for reasons of unavailability or lack of expertise) because it is not a ‘proper professional fee’.
The annual sum saved by introducing this tax on innocence turns out to be substantially less than the cost of knocking a penny off the duty on a pint of beer, the ‘bonanza’ (to use the tabloid adjective most often applied to legal aid) which the government proudly announced in its next budget.
The Trial on Trial
Less than one per cent of criminal prosecutions are tried in the Crown Court (as opposed to the ‘wild west’ of the magistrates’ courts) and even for those that are, the assumption that the adversarial system remains, as it is often touted, ‘the greatest guarantor of individual liberty there is’ is subjected to some pretty tough scrutiny in this book. Quite apart from the way it is broken in so many ways, the more disturbing question is whether our adversarial system, even when it works as intended, is really any better than the more inquisitorial system adopted by civil law jurisdictions.
The author examines and compares the key features of both approaches and concludes that, for all the flaws of the adversarial system, we would not be better off replacing it with an inquisitorial one. The key problem with the inquisitorial system is its reliance on the state to get things right. ‘Can it really sensibly be suggested … that the state would organise its affairs better without an adversarial counterweight correcting its omissions?’
The failings of the state in this regard do not stop at the shortcomings of an under-resourced prosecutor (the CPS) or the problems with privatised forensic services or the target-driven bias of police investigations. They go right to the top, and the way government policy and funding is continually distorted by tabloid-pleasing talk of being Tough on Crime and a continual urge to cut the price of justice.
‘Prison works’ the mantra goes, though there is in fact ‘no proven causative link between higher prison numbers and lower crime rates’; and our ‘national fetish’ for incarceration ‘has seen the England and Wales prison population soar by 90 per cent since 1990’. Meanwhile, the ‘average prison sentence for indictatable offences has increased by over 25 per cent in the last decade’. Ill-informed and misleading tabloid criticism of sentencing means successive governments, keen to be thought ‘Tough on Crime’, though reluctant to throw money at the problem, have been hesitant to try alternative sentencing options, usually depicted as ‘soft options’ in the press, let alone a more comprehensive rethink of penal policy.
Add to that the ‘incoherence’ of our sentencing laws: some 1,300 pages of primary and secondary legislative provisions together with ‘hundreds of sheets of Sentencing Guidelines and thousands of Court of Appeal judgments’. No wonder a former President of the Supreme Court, Lord Phillips once observed that ‘Hell is a fair description of the problem of statutory interpretation’ caused by certain sentencing provisions. R (Noone) v Governor of HMP Drake Hall  UKSC 30,  1 WLR 1743 at .
While accepting that the law on sentencing is difficult even for lawyers to understand, the author is critical of the press’s habit of manufacturing outrage over sentencing decisions (e.g. to complain that they are little more than a ‘slap on the wrist’), without bothering to ascertain the full facts of the case or to report the sentencing remarks of the judge (who may well have been precluded from handing down a more commensurate sentence by ill-considered legislation).
The author’s assertion that the ‘esoteric workings of the Court of Appeal (Criminal Division) rarely flicker onto the public radar’ may be subject to very slight revision in the light of the recent ITV documentary Inside the Court of Appeal. Nevertheless, the fact remains that, apart from a few high profile cases (where you tend to see the cheering victors paraded for the press outside the Royal Courts of Justice in the Strand), there is generally ‘a conspicuous absence of fanfare’ over the correction of state error, either in wrongly convicting defendants or in getting the sentencing wrong.
‘Of the 625 unsafe convictions quashed by the Court of Appeal between October 2011 and September 2016, you can probably count on one hand the number that received attention outside the law reports.’
And if you have been wrongly convicted? Don’t expect any sort of compensation unless you can prove, beyond reasonable doubt, that you were in fact innocent all along. In other words, your reversal of fortune can only be corrected by a complete reversal of the burden of proof. This should perhaps be considered another facet of the Innocence Tax.
The author concludes with a meditation on the difference between law and justice. We have the one, but we don’t always have the other. We tell ourselves complacently that we have the fairest system in the world but we’re in serious danger of losing it. The law is a mess, and what there is cannot readily be discovered because resources for public legal education are so poorly supported. (We at ICLR heartily agree and are doing what we can, pro bono, to remedy the problem.)
Politicians don’t appear to understand the laws they have made, nor are they prepared to devote public money to improving either the laws or the system that enforces them. But the picture is not unremittingly bleak:
‘For all that the preceding pages might reasonably be interpreted as a counsel of despair, there is much that is fundamentally good about our justice system. The underlying principles, accidental and incoherent though their evolution may have been, have been exported around the globe for good reason: the presumption of innocence and burden of proof, the right to a fair trial, the right to independent legal representation, equality of arms, an independent judiciary, non-partisan tribunals of fact and the other fiercely debated, non-exhaustive aspects of the rule of law on which our present settlement is premised, all stand as self-evidently necessary to our instinctual conceptions of justice. And our loyalty to those principles is often absolute, in theory if not in execution.’
Though the system is broken, it is a good system and could, with the right funding and resources, be the source of national pride that the Ministry of Justice – with its vapid ‘Legal Services are Great’ promotion – thinks it is. But this book should be a warning to the Ministry, to put its money where its mouth is, and make sure the system really is worth the puff they are giving it.
The book has clearly touched a nerve in the reading public. Let’s hope it can now touch the actual brain of the government.