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‘Our criminal justice system is quite literally being held together by duct tape — action is needed now’

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Fundamental change is required to avoid a ‘complete collapse’, warns solicitor advocate Ben Brown

It has long been asserted that our legal system, and in particular the criminal legal aid system, is the “finest in the world”. It is a cute soundbite, but having spent a decade at the coalface of criminal justice, I can quite frankly tell you; that notion is laughable.

Last month the Law Society published a shocking report which highlighted the crumbling state of our court buildings. Among the issues were asbestos, mould, seats and carpets held together by duct tape, leaking raw sewage, broken heating, and courts where disabled court users are unable access parts of the building. These issues, whilst wholly unacceptable, are sadly only one small aspect of a — now literally — crumbling justice system.

Defendants and victims are now routinely waiting years for justice, which is completely unacceptable, more so in cases involving serious violence or sexual abuse. There are significant delays in even the most routine cases. In March 2023 I am due to appear in a Magistrates’ Court trial relating to a simple matter of driving without due care and attention — a matter which took place in March of 2021.

There are almost 75,000 criminal cases now delayed as a result of continued backlogs and some trials are now being listed in 2024. Cases are collapsing due to the failures of an overworked, underfunded and poorly managed Crown Prosecution Service. Adjournments and wasted hearings are commonplace. Court directions and the Criminal Procedure Rules are routinely circumvented and treated as optional, often with impunity. Courts have been closed up and down the country, with many defendants and victims having to make long journeys to access justice. The majority of police investigations now fall into the ether and even the most routine charging decision can take months.

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There is little to no communication or constructive dialog between the defence and the crown, particularly in cases before the Magistrates’ Court, or those sent by the police for a charging decision. Youths, and defendants with mental vulnerabilities are routinely being failed — criminalised rather than helped. The CPS are routinely represented in the Magistrates’ Court by prosecutors not empowered, or willing, to make decisions or exercise a modicum of common sense. Often, the only mechanism to focus minds and have a case properly reviewed and managed is to elect trial at the Crown Court where possible, further burdening an overworked system.

The tragic case of the Killamarsh murders has now triggered a review of how probation officers handle cases. Prisons are full, with inmates now being held in police cells as an overflow measure, and the rate of deaths in custody is the highest it has ever been.

There are failures and immense difficulties across every organ of our criminal justice system. How the system has not yet collapsed is beyond me. Taking stock of the above — a bit of asbestos seems rather insignificant.

The state of criminal defence is equally dire. The “fat cat” image peddled by the tabloid press could not be further from the truth — some criminal barristers are now being paid the equivalent of less than the National Minimum Wage.

In 2018 the average age of a criminal duty solicitor was 47; this rose to 49 in 2021. There are fewer graduates embarking into criminal defence than ever before — and perhaps with understandably good reason. No one goes into criminal defence for the money, but even genuine passion and a vocation has its limits, and is often overshadowed by a derisory salary that has not risen since the 1990s. That perhaps best explains the recent mass exodus of lawyers seeking an alternate practice area. Since 2007, over a thousand criminal defence firms have closed their doors.

In what should have been a turning point in 2018, HM Government recognised the serious concerns about the long-term sustainability of criminal legal aid. In response, it commissioned the Independent Review of Criminal Legal Aid led by Lord Bellamy KC. The Justice Secretary Dominic Raab went on to completely reject the advice of his government’s own review. The Law Society has now warned that there is no future for criminal defence solicitors unless the recommendations made by Lord Bellamy’s review are immediately implemented.

Whilst disregarding the advice of its own independent review and failing to ensure money is available for a properly funded criminal defence system, the government seems perfectly content to spend £300 million on rolling out the common platform case management system — a system so ineffective, useless and administratively burdensome that 97% of court legal advisors voted to stage mass walkouts over its inception.

The message to the justice secretary cannot now be any clearer — our criminal justice system is no longer the envy of the world. Rather, it is on a cliff edge. Urgent action and fundamental change is needed to avoid a complete collapse. Not at some arbitrary point in the future, but now.

Ben Brown is a solicitor advocate, Law Society elected council member for criminal defence, and former Crown Counsel to St Helena, Ascension and Tristan da Cunha.

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16 Comments

Rotundus of Counsel

Awful as it is, it’s still better than that which you will find anywhere else in the world.

One of the problems on the CPS side is that defence make overly burdensome disclosure requests that makes the CPS job virtually impossible.

Nowadays the simplest of cases requires the CPS to download and review tens of thousands of pages of electronic data from mobile phones belonging to
the complainant or the defendant just in case it contains something that assists the defence.

That takes time and person hours that the CPS just can’t afford.

Before smartphones, this wasn’t a problem. That is where the time and resources are being wasted.

Then we have the page count battles where defence demand that the Crown serve (as opposed to disclose) tens of thousands of pages of raw data (most of which is computer code) in order to boost the fee.

The system could be streamlined if the CPS were removed of their burdensome obligations to review all of the electronic data and instead defence be required to submit specific search terms that could automate the process.

Likewise, it should be standard that defence have an electronic copy of their own clients device disclosed so they can do any searching themselves, with only reasonable time doing so being billable.

Finally, as we have had a pandemic, all cases over 3 years old where there is no prospect of a custodial sentence should be amnestied to clear the backlog.

That and reopening of mothballed courts.

Oh and scrap Common Platform- it’s crap!

Just a few suggestions to be getting on with.

Maybe not

Yes, amnesties of thousands of accused who are likely to be criminals is a great proposal for a Tory government wanting to throw red meat at Red Wall Brexit types.

Pond

And your proposed solutions are…?

Life

You seem to have missed the point completely.

Paddington

Since 2010 the government has chosen to abandon funding capital investment, as a long term cost, to divert taxpayer funds to benefit retired voters who turn up in their droves to vote Tory. The triple lock and the increase in NHS spending relative to education spending show that clearly. Crumbling infrastructure is everywhere, not just the courts, and there is no political incentive to remedy it. HS2 is the obvious exception, but that was done to try to win marginals in outer Birmingham and south Cheshire.

There are obvious costs savings in the justice bill such as by capping publicly funded rates of criminal defence work at the cost of 5 yr PQE or so. The state needs only to provide a lawyer not a highly paid Rolls Royce defence team. Better still stop funding of the private bar and set up a public defender system, if that could be run more cheaply than the current set up.

anon

Funny thing is that there’s nothing to prove that a barrister from a public defender system would be ‘worse’ than one working from a Georgian townhouse in Temple.

There are so many capable advocates with Oxbridge degrees or very high 2.i’s who don’t get pupillage simply because the places aren’t available. Why would public defenders be less academic or less capable than any other advocates?

If it really were about ‘muh access to justice’ and ‘hoomaan rites’, criminal barristers would be badgering the government for any way to train more advocates to deal with the very real backlog in the courts.

Perhaps they just want to preserve a system that allows their own kids to be able to work from Georgian townhouses too?

Tom_82

Great article which bluntly lays bare the dire state of criminal justice in our country. Will the government give a s**t? Doubtful.

Very funny

The Government is too busy criminalising strike actions and criminalising the act of gluing oneself to a wall.

Your humour is odd

How oddly phrased. The proposal of the government on strikes in the new bill is to provide for minimum service levels for a range of public services, as permitted by article 11 ECHR and aligned with the legislation of most of the larger EU economies. You can glue yourself to your own wall with impunity or anywhere where the property owner is happy for you to get such kicks. Strengthening the sanction for those that choose vandalism of art and trespass as a means of protest is an entirely appropriate response as far as the vast majority of voters is concerned.

Anonymous

I couldn’t agree more. We need change now.

Bomkchivk

What does “collapse” look like? And if we don’t know that, could it already have collapsed?

There is no crisis

“Collapse” and “crisis” are just MSM headline fodder to generate the perception of fear.

Eyeroll

“The “fat cat” image peddled by the tabloid press could not be further from the truth — some criminal barristers are now being paid the equivalent of less than the National Minimum Wage.”

Some of the most attention-seeking criminal barristers on Twitter complaining about their court fees make no secret on Twitter of the fact that they happen to be married to commercial barristers.

They EARN, but don’t LIVE on what they earn. They continue at the criminal bar because they have multiple income streams between their wealthier partner/parents/inheritances or investments to pay their bills.

However embarrassing, that is the truth. There are huge numbers of criminal barristers who come from privileged backgrounds and aren’t living in poverty just because they earn as much as a teacher.

Sushiroll

The figures peddled in the strike were carefully aimed at the first three years when aged debt builds up. After that criminal barristers obviously earn enough, as there is plenty of supply in the recruitment market.

Steve M

I’d like to give a shout out to Barristers’ Clerks who are the unsung heroes of this mess.

Every day they are having to play a massive game of Tetris with the diaries to ensure that as many cases as possible actually have a barrister to represent one side or the other.

They are the ones who are up against inflexible Courts who won’t allow CVP for a ten minute PTR because counsel is engaged in an over-running trial elsewhere, and get flack for over-loading barristers’ diaries because there simply is no one else available.

They are the ones ringing around fifty plus other Chambers (often without success) to get that hearing covered because otherwise it will be adjourned.

They are the ones ringing around their counsel to see if anyone can cover a Bench Warrant at ten minutes’ notice (where a person’s liberty is often at risk) to “help out the Court”.

They get no thanks and never get a mention.

Criminal Barristers’ Clerks – you are the heroes of the Criminal Justice System in 2023.

I salute you all!

Archibald Pomp O'City

What a nonsensical comment. Barristers’ clerks are well paid and do not need regular public tummy-rubs to validate their existence. There are numerous comparable roles in every industry one can think of, from Executive Assistants to Director-level managers to air traffic controllers, all of whom perform sustained acts of intense and nuanced coordination on a daily basis. They are not “heroes” of the systems they work in – at least, not by dint of their roles, and I cannot believe that their roles are thankless. I bet they get thanked daily in the average workplace. Yes, they deserve a mention, but they are not trodden-on in the manner your comment implies.

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