The Secret Barrister: The law’s broken. Here’s how to fix it
Barristers are striking but every part of the legal process, from the police to the courts, is in crisis. We need a plan to restore justice
"The criminal justice system is close to breaking point ... Resource pressures mean that costs are being shunted from one part of the system to another and the system suffers from too many delays and inefficiencies. There is insufficient focus on victims ... The system is already overstretched and we consider that the Ministry of Justice has exhausted the scope to make more cuts without further detriment."
These were the words of the Commons public accounts committee in 2016. Six years on, the criminal justice system is not merely close to breaking point; it is broken — by more than a decade of cuts to every part of the process, from police investigations to the Crown Prosecution Service, from probation to prisons, from the courts to legal aid. Covid struck, closing courts; the digital world has made crimes more complex than ever.
This week crown courts will come to a standstill. Criminal barristers defending in legally aided cases have voted in unprecedented numbers for an indefinite walkout. This is in response to cuts, and in particular to the refusal of Dominic Raab, the justice secretary, to implement the urgent recommendations of a government-commissioned independent review of criminal legal aid.
Morale across the system is at an all-time low. Judges, crown prosecutors, defence solicitors, court staff, police, probation and prison officers are exhausted. A quarter of criminal barristers have quit in the past five years, creating a dangerous shortfall of specialists to prosecute and defend serious cases. Victims of crime and witnesses are turning their backs on a system that routinely fails them, breaching their trust with exorbitant delays. The
lives of the accused, whether guilty or innocent, hang in abeyance for years in our record court backlog. Reversing the cuts, while necessary, will only take us so far. Here is my seven-point plan for piecing together a shattered system.
Rethink suspects’ release
In 2017, in response to critical headlines about high-profile suspects spending years on police bail while police investigations dragged on, the government introduced restrictions on its use. The result was predictable: thousands of suspects — many potentially dangerous — were not bailed with conditions designed to manage their risk, but were instead “released under investigation” (RUI) for years without supervision. The horror stories of dangerous criminals offending while RUI are all too familiar to those of us in the criminal courts. While the government has recently sought to relax restrictions on police bail, to allow its use in more cases, this misses the point. The critical issue is delay.
First, we need statutory time limits on how long a suspect can be “released under investigation”, similar to the limits that we have with police bail. As with bail, there can be mechanisms for extensions, but only where justified. Investigative drift must be strongly disincentivised.
Second, all too often the root of delays in investigations is not the fault of the police; it lies in the nature of the evidence needed to bring a case to court. The huge amount of digital evidence stored on phones and computers has led to long queues of electronic devices waiting for months, sometimes years, to be examined. Cases involving digital evidence are frequently those where the risk to the public is highest: sexual and physical violence, especially in a domestic context. Turbo-boosting our depleted police digital investigation units is essential to reducing the time dangerous suspects are loose on the streets awaiting charge.
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Rebuild the courts ...
Between 2010 and 2020, the government closed or sold more than half of court buildings. This wrecked the tradition of rooting justice in the community, forcing victims, witnesses and defendants to travel for hours to their nearest court centre. It also contributed to a growing case backlog that is now at record levels.
Once they arrive at court, victims and witnesses can expect to find dilapidated buildings with leaking roofs, smashed lavatories, out-of-order lifts, broken heating and nowhere to get a glass of water.
And so we need to rapidly expand. We need to make fit for purpose the courts we have, and replace buildings that were shortsightedly sold. Nightingale courts — buildings temporarily hired to increase capacity during the pandemic — should have been made permanent, instead of being shut by Raab as the backlog grew.
... then open them
Once we have courts, let them hear cases. For years, the government restricted the number of days each year that courtrooms opened (so-called “court sitting days”), to save trivial sums on court staff. This led to the absurdity of judges sitting at home and courtrooms sitting empty, while trials were delayed due to a supposed “lack of court time” to hear them. It was this policy that caused the backlog that was then exacerbated by the pandemic. Even today, with a record backlog, as many as a third of crown courtrooms are closed on any given day. As long as there is a courtroom and a judge available, it should be in use.
Right to a timely trial
After years of delay at the investigative stage, the people involved can expect a further wait of six to 18 months for a crown court trial. When that day arrives, there is no guarantee it will go ahead — all too often, victims and witnesses will be told no courtroom is available, and the trial will be put off for another year. And then potentially again when the next date comes around. I have cases from 2018 still awaiting trial. How the witnesses or the defendant can be expected to give accurate evidence five years after the event is a mystery. We need a statutory right to a timely trial: no more than six months after charge where a defendant is in custody, and no more than 12 months where a defendant is on bail. If the state cannot without good cause try its citizens within a reasonable timeframe, its failures should not be indulged by the justice system. If unacceptable delay carried a tangible threat of prosecutions collapsing, the government would quickly reorder its priorities.
And where a trial is adjourned once because the court cannot accommodate it, it should be guaranteed a slot on the next occasion. A fixed date which will be kept, no ifs, no buts. It is the very least victims, witnesses and defendants deserve.
Acknowledge the innocent
For years our politicians have encouraged a conception of criminal justice as a production line: of the police arresting a guilty person, the courts convicting and a judge passing a sentence. The notion that an accused person might be innocent has been lost. An acquittal is seized upon as evidence of systemic failing, rather than a sign of justice working. As a result, the system penalises those who are acquitted. Not only is there no redress for the time spent in custody or on bail awaiting trial, but for defendants who are not eligible for legal aid, the state will refuse to pay their legal costs even when they are acquitted. It is a tax on the innocent.
The rot is worse when we consider those wrongly convicted, and who serve years in prison before being exonerated on appeal. It is now all but impossible for people in that position to secure compensation for the years of their lives lost. In 2020-21, not a single penny was paid out to those wrongly imprisoned. This is an affront to decency and justice, and emblematic of a system which refuses to acknowledge mistakes.
Invest in our future
Junior criminal lawyers today are the senior criminal judges of tomorrow. And we are losing them. Appalling pay and conditions are forcing junior solicitors and barristers out of the profession. A dearth of young criminal solicitors is creating a “demographic timebomb” and pushing up the average age of the profession. Criminal legal aid firms have nearly halved since 2010, and swathes of the country are “legal aid deserts”, with no specialist legal aid solicitors available.
Self-employed junior criminal barristers are grossing £12,200 a year for 60-hour weeks in the first years of their career, due to the legal aid rates fixed by the government. Criminal barristers have on average seen incomes cut by 28 per cent in the past decade, but even reversing that cut would not bring juniors’ earnings above minimum wage. We lost 40 per cent of them in the space of a year. There is no point in recruiting police officers or building more prisons if there is no one to prosecute and defend cases.
No more gimmicks
Politicians have a duty to engage sincerely and honestly with the public about our justice system. They must end the pretence that the only thing needed to fix criminal justice is “tougher prison sentences” and abandon headline-chasing gimmicks in favour of evidence-based policy. Reconfiguring the priorities of the system in favour of rehabilitation and crime prevention, and away from ever-lengthening custodial sentences served in dangerous, underfunded prisons, is a necessary first step. Removing powers of imprisonment from volunteer magistrates for less serious crimes and embracing problem-solving courts for drug offences are the type of radical ideas that a government serious about public protection would be discussing, instead of yet another demand to increase prison sentences for people whom our collapsing system can’t even put on trial.
The Secret Barrister is a working criminal barrister. Their latest book is Fake Law: The Truth About Justice in an Age of Lies (Picador)