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.
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.