Perhaps #TheLawIsBroken, but money alone won’t fix it

Lawyers need to stick up for the principles that underpin our justice system.

Luke Gittos
Columnist

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The Law Society, which regulates solicitors in England and Wales, has published a new report into the ‘crumbling’ justice system. The report cites ‘under investment’ leading to ‘failures at every stage’ of the court process. It recommends updating the means test for legal aid to keep in line with inflation and abolishing ‘floating’, ‘block’ and ‘warned lists’, in which cases are held in a queue to take place at a particular court without necessarily being heard (much as airlines tend to overbook seats on the basis that not everyone will show up). It also recommends an increase in legal-aid fees.

The report follows a successful negotiation by the criminal bar for a modest increase in fees paid to prosecuting barristers. It also follows the success of the anonymously authored bestseller The Secret Barrister: Stories of the Law and How It’s Broken, which explores how the justice system is failing in the face of underfunding. The Secret Barrister… has even popularised the Twitter hashtag #thelawisbroken.

The problem with the justice system today is not really to do money, though. Many lawyers and their clients would welcome the end of warned lists, in which defendants are left unsure about whether their case will be heard in the course of a given week. But a lack of public spending is hardly a problem unique to the law. Public spending has flatlined as a whole since the 2008 financial crisis, and there are many areas other than the law, such as housing or healthcare, in which the public might want to see increased investment first.

The real problem is a political one. In recent decades, the foundations of the justice system have been slowly and steadily undermined in favour of increased efficiency and reducing the stress of attending court for complainants. As the principles of the system have been eroded in the name of efficiency, as the historic position of the defendant in the trial process has been undermined in the name of the victim, it has become easier to justify decreases in public spending.

That is why the starting point of today’s apparent funding crisis should really be traced back to the victim-centred justice movement, which emerged under New Labour. The same government that was responsible for significant increases in public spending arguably set the stage for today’s apparent funding crisis. When the then home secretary Jack Straw began his assault on defendants’ rights in 1998, he was setting the stage for an onslaught that would continue into the new millennium. Already by 1994, Section 34 of the Criminal Justice and Public Order Act had diluted the right to silence by introducing the caution. This meant a defendant’s refusal to answer questions could be held against him later in the trial process. The Criminal Prosecution and Investigation Act of 1996 ended the right of a defendant to ‘ambush’ the prosecution, and introduced mandatory advanced disclosure by the defence. The Criminal Justice Act of 2003 ended double jeopardy and extended the use of ‘bad character’ evidence. These changes are now a settled part of our system, yet they represented significant attacks on the historic position of the defendant in the courtroom.

More recently, the place of the defendant has been undermined by the politicisation of particular offences. Statistics around rape and sexual violence in particular have been weaponised. Complaints that ‘too few people are being convicted’ of certain offences make the trial process, and its participants, feel almost surplus to requirements. It is hardly surprising that the government feels happy paying lawyers less when criminal trials are portrayed as stressful inconveniences on the way to a conviction.

Lawyers need to put their heads above the parapet. They need to engage in the political world that the justice system inhabits. This means standing up for the foundations of our adversarial system when they come under attack. It means defending jury trials. It means consistently defending the presumption of innocence. It means being willing to fight back against moves to dilute the rights of clients in favour of greater efficiency or for a more comfortable experience for their accusers. Perhaps #thelawisbroken. But we will need to address the attacks on defendants’ rights if we are to have any hope of fixing it.

Luke Gittos is a spiked columnist. His new book, Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, is published by Zero Books. Order it here.

Picture by: James Cridland, published under a creative commons license.

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

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Comments

Marvin Jones

25th June 2019 at 3:35 pm

The human rights asinine laws are a get out of jail free card for all law breakers, from illegal migrants, to terrorists and almost all BAME law breakers. Article 8 itself will protect the most brutal, heinous act by an illegal from being deported, ever. Nasil Adir the millionaire owner of Polly Peck, who fled to Cyprus after a serious fraud crime, came back several years later to stand trial and was granted legal aid, why? The law is an ASS, and the human rights is the rear of the ASS.

Mark Bretherton

21st June 2019 at 12:42 pm

I see it as much a problem that many in the legal system are TOO political. The enthusiasm for many judges and QCs to push a left liberal ideology and to see themselves as above parliament means that they have poisoned the well of public support against the obvious injustices in the legal system.

James Gatehouse

21st June 2019 at 9:43 am

The premise of this article is absolutely correct. Politicians have created a far more unjust society by tinkering with legislation and undermining basic human rights. Often this has been carried out behind the slogan of, “fairness”. New Labour was the worst offender, but the modern Conservative Party has not covered itself in glory on this one, either.

There’s nothing fair or just about today’s system and yes, lawyers need to stand up and be counted. Trouble is I’ve just read an article about millennials elsewhere in this journal and the signs are not promising that the future is in any way bright, if what’s in it is accurate.

Mike Stallard

21st June 2019 at 7:16 am

About time too! The EU has made absolutely sure that the Common Law beats a retreat before continental practices (jury, assumption of guilt, extradition). We need to regain our justice system. Shame on you barristers and lawyers!

Michael Lynch

20th June 2019 at 11:37 pm

Never mind money, the law has been steadily politicized over the last few decades. No longer autonomous, politics instructs on who and what deserves equality under the law. If you are a poor, white working-class girl then you can forget it. The Police have already been caught red handed by issuing edicts that underage white girls are engaged in consensual sex with middle aged Pakistani men. The Police have effectively stopped upholding the law without fear or favor in Britain; something they are supposed to swear to carry out under oath. However, if you are a Muslim girl returning from Syria you can expected plenty of financial aid with your appeal. Furthermore, the media go Barmy over the rights of a man (Assange) who endangered the lives thousands of military personnel and yet say little about the rights of a man to a fair trial for merely filming outside of a British court. He was even locked up without due process! I grew up in a country where my rights to presumption of innocence where cast in stone. A place where a rich man could no more murder me with immunity as I could him. That was true equality under the law, but this has now disappeared down the rabbit hole of political correctness.

Chris Hanley

20th June 2019 at 10:48 pm

Feminism has reversed Blackstone’s ratio:
‘It is better that ten innocent persons suffer than that one guilty escape’.

gershwin gentile

20th June 2019 at 7:07 pm

“which explores how the justice system is failing in the face of underfunding”

Apart from the fact that the Justice system had plenty of money to go after innocent people. Like Cliff. But they didn’t go after Lord Janner. Even though there was plenty of evidence for a prosecution. Maybe #thecpsisrubbishandistheretoprotectthenoncingleft would be a more apt #.

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