CBA Monday Message 04.12.17

I was the vice-chair of the Bach Commission and the author of most of the “must-read” appendicesto its report. When I spoke about its work at the Bar Conference I said nothing about our findings on criminal justice.  Today I have been asked to remedy this. The subject is particularly topical, given the imminence of the Government’s announcement about the future structure of the AGFS.[i]
 
The report itself touched only lightly on criminal justice issues.[ii] This was because many of the serious defects we found turned to a great extent on the failings of other agencies, crippled as they are, too, by savage cuts.  We contented ourselves by suggesting changes to the financial eligibility rules, by recommending more generous treatment for acquitted defendants who were refused legal aid, and by expressing very deep anxiety about the ageing profile of criminal defence practitioners.
It was in Appendix 5 to the report that I brought to life the effect of the evidence we received. Bill Waddington, an immensely experienced Hull-based solicitor,[iii] set the scene:
 
“What works and what doesn’t work in the present Legal Aid scheme? Well, what works I think I can answer in one line which is that the defence side of things works. I am not sure that anything else works in the system at the moment. The Prosecution side fails, I think, almost completely in everything they try to do. This isn’t because of the quality of the staff, but I think it is lack of resources, I think it is maladministration, I think it is constant changes imposed on them and so on. The Court system is probably at the lowest ebb, I think, that I have ever seen it in all my years, in that it’s slow, it’s cumbersome. Listing in the Crown Court is just a complete and utter farce. It has never been very good, but nowadays it is absolutely appalling. It is all geared around box ticking, because cases have to be listed within a certain period of time and if they are listed. then the box is ticked. It doesn’t matter if they subsequently come out of the list, because the box is ticked, because it was listed within the specified time frame.”
 
One research study found:
“What is clear is the cost to justice – interviewees had witnessed unrepresented defendants not understanding what they were charged with, pleading guilty when they would have been advised not to, and vice versa, messing up cross-examination of witnesses, and getting tougher sentences because they didn’t know how to mitigate.”
 
And all this in a so-called court of justice.

None of this will come as any surprise to CBA members. But the debate must now be broadened. By an accident of history expenditure on justice is unprotected, unlike both health and education, two comparable attributes of a civilised society.  On present projections annual public expenditure on justice will have been cut by 40% in real terms between 2010 and 2020.  The Government justified its recent decision on the LGFS[iv] by saying it was a “short-term measure in order to relieve the financial pressure on the Ministry.”  Both the Lord Chancellor and his Permanent Secretary have spoken recently about the practical effect of the MoJ’s lack of protection. The ghastly conditions in our prisons are just another testament to their department’s current powerlessness to do what is right for those to whom it owes a sensitive duty of care.

I do not know enough about AGFS to make any useful comment except to say that it is clearly high time it was reformed in the light of experience, and that new money must be introduced.  Seen in isolation, more money for lawyers is not a cause with which to rally the troops, but something has to be done to reverse the assault on a system of criminal justice that was once the envy of the world.
I stopped hearing criminal appeals 17 years ago, after nearly 40 years’ practical experience of the criminal courts in one form or another.[v] Although I had heard talk of how much things had deteriorated, some of the evidence we heard was a complete eye-opener.  I felt a bit like Rip Van Winkle waking up in a foreign land. In one case last week nobody could be found to prosecute in a three-day appeal to the Crown Court because the fee on offer was so miserly. At the same time a gifted young law graduate with debts of over £50,000, who longs to be a solicitor doing criminal legal aid defence work, told me he has just lost yet another job as a paralegal because his employers’ profit margins are now so tight following the LGFS ruling.

I have always been an optimist.  I cannot believe that things will not get better, so long as more and more people get to know the Bach Commission’s findings. Members of the CBA, and everyone else who cares about these things, must do all they can to get the message across.  Things are so bad now that few are opting to become criminal defence lawyers – in the country that sired Thomas Erskine and Marshall Hall, Norman Birkett and Jeremy Hutchinson and their successors whose skills I used to admire when I tried murder cases on circuit long ago.

This is not about money for lawyers.  It is the liberties of England that are at risk.
 

Sir Henry Brooke