Tuesday, 30 September 2014

The Tuesday Truth

This week’s Tuesday Truth is brought to you by Rhona Friedman Criminal Defence Solicitor  and co founder of Justice Alliance and Paul Harris former President of London Criminal Courts Solicitors Association and Managing Partner of Edward Fail Bradshaw and Waterson

Dear Labour Party - Its called a System for a reason

Eighteen months of anti-Grayling rhetoric from the Labour Party have been accompanied by the same period of fence sitting and stoic refusal to actually enunciate what your plan is for the entropic, necrotic, post Grayling Justice System. A system seriously diminished after LASPO and unsustainable fee cuts. In criminal justice there have been no fee increases since 1994 (if you don’t trust us to tell you that see Deloitte’s Report to the MOJ of May last year). You may have to ask quite persistently though as they tend to hide reports until a court tells them to disclose them.

We now hear from the Shadow Justice Minister Andy Slaughter (if you were misquoted Andy do let us know by the way) that a Labour Government would not reverse the cuts. Putting aside whether a trip in the Tardis back  to 2007 and 2008 and to a Conservative strategy meeting would tell us once and for all that austerity is an ideological and political choice to shrink the state rather than existential economic necessity, it appears that you may be unfamiliar with the nature of the Justice System and how it depends on both the rule of law and access to justice across all its component parts.  It is called a system for a reason. It is interconnected and interdependent. You cannot blithely decide to “save” some bits of it by policy or statutory reversals in Judicial Review, Conditional Fee Arrangements and legal aid for children and abused women in civil justice and then leave the criminal justice system in utter disarray and degradation.

Let us speak in terms that the modern politician understands; a lovely binary of the deserving and undeserving citizen. Victims good and Defendants bad. 

Hang on a minute, children and abused women are also victims in the criminal justice system. Sometimes they are also defendants. What to do? Votes are at stake. Shore up access to justice in the bits of the Justice System you think the general public can stomach and ignore the bits that you think the public aren’t that bothered about funding properly, the criminal justice system- police station investigations, trials and sentencing.

Practitioners invite you to walk a mile in our shoes and experience first hand the state of our criminal justice system in the Magistrates Court and Crown Court. These things happen every day in every court:

Victims (good) having their cases delayed for months because cuts to the courts budget mean there is no available court. This is bad by the way.

Victims (good) turning up to court to give evidence and being told to go away again because the private contractor whose main contracting duty is to bring the defendant to court has not brought them. This is also bad. 

Victims (good) turning up to court to give evidence to find that the privately contracted Capita interpreter can’t actually do the interpreting (ok the victim isn’t now quite so good because English isn’t their first language). Again though bad outcome. 

Victims (good) turning up to court to give evidence to be told to go away again because a key piece of prosecution evidence has not been served because of CPS staff cuts. Bad, bad, bad.

Victims (good) bumping into the accused on bail during the trial at the local Greggs because the court canteen has closed due to cuts and because of, yes cuts, there is no defence representative available to make sure the defendant maintains a discrete distance. Really not good.  

Victims (good) not achieving justice because there has been a flight of quality from the prosecutorial ranks.  Very, very bad indeed.

Defendants (probably bad until they are proved innocent in which case they become so careless that they have been prosecuted for something they didn’t do that if they paid privately they can’t recover the money they spent on their own defence) are on bail or remanded in custody for months because their trial is delayed for, well take your pick of the reasons cited above.  Not good.

Defendants (probably bad etc) being convicted for something they didn’t do because the CPS has not served undermining evidence or their defence teams are too under resourced and lacking in experience to plough through the unused for the key defence point or find the witness with the key recollection.  Not good at all, actually disgusting and terrible in equal measure. 

This, for those who remember the early 1980’s and 1990’s, is called a miscarriage of justice. Miscarriages of justice cost money to fix but even more importantly they cause human misery on an unimaginable scale and bring our Justice System into disrepute. They are on the increase and if you get in you may find that you have to do something about them because after a while they become impossible to ignore, Royal Commissions and Inquiries start and it all gets public and messy.  There will be damage to social cohesion because people see that only those of their fellow citizens with deep pockets get a fair trial.  People equate access to justice with fairness and the social compact between citizen and state, the executive and the political class.  Guess what, not just the Scots care about that.     

Why you should care? Well because fair trial, robust and rigorous defence and prosecution are central to the Rule of Law but because of the localised mess you may have to clear up. The “so stupid it beggars belief” MOJ plan to restructure the market, or “savage it” as their own barrister bizarrely, though accurately, described it in the High Court the other week, relies on a contracting plan so ill thought out that according to the MOJ’s own expert report the areas where the omnishambles will have the most deleterious impact are London, Greater Manchester, West Midlands and West Yorkshire. Your heartlands for now. 

Yours etc xxx

Message to the Profession (both parts)

The Labour Party’s lukewarm approach to legal aid demonstrates further it is essential that practitioners join either the London Criminal Courts Solicitors’ Association or the Criminal Law Solicitors’ Association. Both these organisations have led the campaign against the cuts and barmy restructuring for over 18 months. The Associations have taken the fight to the Government and on occasions to The Law Society and the Bar. They have fought a hearts and minds campaign so that for the first time there is a media understanding of the issues at stake and yes they have brought you a giant puppet of the Lord Chancellor fusing 60’s style agitprop with public street art.

The Associations now call upon everyone across the profession; solicitors, legal executives, barristers, clerks, District Judges and Judges to respond to the Consultation forced by their Judicial Review. Point scoring was attempted by the MOJ because of the fall off in responses to Consultation 2 even though in excess of 2,000 responses was still an impressive number. The first Consultation garnered 16,000 responses because client choice was to be eradicated in the post PCT world. We all won that fight but make no mistake client choice will exist in name only under the existing proposals.

In the Monday Message this week, the Chair of the CBA referred to both the successful judicial review brought by solicitors, holding the government to account, and the new consultation. We are grateful to individual barristers and chambers who contributed to the JR fund.  We welcome the Chair’s encouragement that barristers respond to the consultation and see absolutely no reason why individual barristers, barristers’ chambers, the Criminal Bar Association and the Bar Council cannot publicly denounce the two tier plan and individually and by cohort respond to the Consultation and speak out on behalf of this assault on the Criminal Justice System. This  is currently the most vital way to demonstrate common ground and unity.

1 comment:

  1. I like your prospective on court and representing defendants in criminal law. I heard a saying once, that the purpose of a judge is to separate the very stupid from the very evil. I think it's a good thing to keep in mind that most people that commit crimes are just good people who made bad choices. If you keep that in mind, it makes it much easier to see why having a criminal defense lawyer is a good idea.