Fixing the shattered system

‘We want to protect the most vulnerable, and deliver better services for every citizen who comes into contact with the court system. We need a step-change in the use of technology to achieve this. And, by modernising the way court services are provided, we can also deliver far better value for taxpayers’ money. The first principle of any Conservative reform is to protect the most vulnerable.’

So wrote Dominic Raab MP in The Daily Telegraph in August 2017, when he was Minister of State for Justice, referring to the current court reform programme.

‘Walk into any criminal court in the land, speak to any lawyer or ask any judge, and you will be treated to uniform complaints of court deadlines being repeatedly missed, cases arriving underprepared, evidence being lost, disclosure not being made, victims being made to feel marginalised and millions of pounds of public money being wasted. And, as a consequence, every single day, provably guilty people walking free.’

So writes the Secret Barrister in Stories of the Law and How It’s Broken (Macmillan).

The Secret Barrister is writing about our criminal courts; but add reference to the impact of a large number of litigants in person, and s/he could just as easily be speaking not only about our magistrates’ courts but also our family courts.

The gulf between the vague sentiments of Mr Raab and the grim reality is yawning. If the government wants – as it should – to protect the most vulnerable, and to ensure that the experience of every citizen coming into contact with our courts is at even a minimally acceptable level, then it needs to stop kidding itself and the public that this can be achieved through technology or ‘modernisation’ alone. It cannot. It takes money.

Technology does not conduct investigations, or decide who should be prosecuted or brought before a family court. Technology does not support or represent individuals in distressing circumstances. Technology cannot conduct a fair and public trial. Decisions such as what inquiries to pursue, whether a verdict should be guilty or not guilty, and where the best interests of a child may lie, all require the exercise of careful, considered and fair human judgement, in working conditions that are conducive to producing the right or best answers. They may be aided or made more efficient by modern technology, but it cannot deliver them.

A fair and effective system simply cannot exist without enough skilled people, with enough time properly to perform the critical roles that can – and should – only be done by people.

The deeply inadequate funding of our courts and judiciary affects all parts of the system, including our civil courts, but the crisis is particularly acute in the criminal and family courts.

The reason is obvious. In crime and family, the state has a key role both in preparing and pursuing cases, and in funding the legal advice and representation that is essential to ensuring that the process is fair and justice is done. If the state does not provide enough money for each element, then the system cannot function. If it fails to do so in all respects, then collapse is inevitable, and justice cannot be done. That is where we now find ourselves. Add to this the especially high stakes, and the personal difficulties and vulnerabilities of so many of those involved, and the effects of that injustice are magnified.

The shameful state of our criminal and family justice systems should anger us all, whether we practise in those fields or not.

Many criminal barristers have decided that they can accept the situation no longer. They have decided to take a stand. They have not done so lightly, but with heavy hearts. We may be fiercely independent, but few are naturally inclined to militancy.

I ask you all to recognise what has brought them to this. It is not about selfish self-interest. The future of the criminal Bar and of criminal justice are inseparably intertwined. The fight is for both.

Whatever action they decide to take, each will make a considerable sacrifice. They will need your support, and to hear it. And if you are still not sure of how bad it has all become, get hold of a copy of Stories of the Law and How It’s Broken; and ask all your friends to do so too.

Will the government now see that the only true solution to the travails of our justice system is to ensure that it works as intended; and that this can only happen if we fund it properly? If we want a system in which the word ‘justice’ is a meaningful reflection of its outcomes, then they have no choice. No-one is asking for largesse: merely for what is sufficient and necessary for the basic fairness on which the legitimacy of the system depends.

The Lord Chancellor has been reported in The Sun on Sunday as having ‘vowed to work tirelessly to fix the shattered system – and [to] carry the can if he fails.’ He is apparently ‘determined to… make the criminal justice system fully fit for purpose’.

What should we make of this? Some may incline to optimism, and to hear in this a new Lord Chancellor facing reality. Others will look to the many precedents for a mismatch between words and actions, and may be reminded of the hollow answer given by another Lord Chancellor, Ms Truss, to a question from the Lords’ Constitution Committee in March 2017: ‘It is very important to a healthy justice system that people are able to earn a good living working as a lawyer.’

I am still inclined to be hopeful about Mr Gauke, unless and until my hopes are dashed, and even though his words may turn out to be no more than we have heard before about improving the system for victims. We desperately need this to be more than that: a desire not to tinker around the edges but to make the system work as it should.

Contributor Andrew Walker QC, Chair of the Bar