Will justice win or lose?

The Secret Barrister has to dig deep to find the few scraps marked ‘justice’ but unearths four things we can learn from the parties’ pledges

General election manifesto launches often cast the criminal justice system in the role of the naughty child of Christmas lore. 

Not for us the funding presents lavished on the ‘nice’ professions; instead perennially badly behaved lawyers eagerly tear off the wrapping paper only to find at best an empty box, at worst a lump of coal for which we’re expected to pay.

Nevertheless, this year if we dig around hard enough it’s possible to find lurking at the bottom of the dank stocking a few scraps marked ‘justice’ for us to get our teeth into. Herewith some of the highlights from the Conservative, Labour and Liberal Democrat manifestos that suggest the legal system hasn’t been entirely forgotten, and which give an indication of where we might expect to be heading post-9 June:

1. Legal aid into the long(ish) grass

While Labour and the Lib Dems both commit to abolishing the employment tribunal fees introduced in 2013, the wider question of access to justice is put on hold. Labour goes the furthest in pledging to reintroduce funding for the preparation of judicial review claims and to review the existing legal aid means test, but will only ‘consider the reinstatement of other legal aid entitlements’ after Lord Bach’s Commission on Access to Justice publishes its recommendations.

The Lib Dems will ‘reverse the massive increase in court fees’, and conduct an ‘urgent’ review of the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), but solid commitments to reinstate the provision of legal aid removed by LASPO are thin on the ground. The Lib Dems are, however, the only party specifically to address criminal legal aid funding, proposing an intriguing (if vague) promise to ‘secure further funding for criminal legal aid from sources other than the taxpayer’, including ‘insurance for company directors’ and ‘changes to restraint orders’ arising under the Proceeds of Crime Act 2002.

Meanwhile, the sole mention of legal aid in the Conservative manifesto arises as part of a tub-thumping pledge to ‘restrict legal aid for unscrupulous law firms that issue vexatious legal claims against the armed forces’. What this amounts to in practice is not specified. However, families bereaved by public disasters will benefit from the introduction of an independent public advocate to act for them at inquests.

Sadly, although not surprisingly, none of the manifestos find room to contemplate the long-term shape of criminal legal aid funding. And while increased police numbers are thrown around with pride, the underfunding of the prosecution services tasked with bringing allegations to trial remains elephant-shaped and unreferenced. Oblique references to the need to ‘modernise’ the criminal courts suggest a fervent, almost touching, faith in digital technology as the panacea to years of critical underfunding of the courts and prosecution agencies.

2. Victims 25 – defendants 0

Each of the three parties offers their own pitch to victims of crime, coupled in each instance with a troubling, albeit predictable, omission to mention the rights of the defendant in criminal proceedings. Indeed, while the word ‘victim’ appears a combined 25 times throughout the three manifestos, ‘defendant’ does not feature once. The conflation of ‘victim’ with ‘complainant’ is a similar recurring theme.

All parties agree that victims’ entitlements to information and levels of service, currently distributed across various codes of practice, should be enacted as enforceable statutory rights, and all identify penalising hate crime as a priority. The Conservative manifesto cues the continuation of the aborted Prisons and Courts Bill, promising a (presumably national) roll-out of pre-recorded cross examination for child complainants and complainants in cases of ‘sexual violence’. That this is pledged as a given before the pilot scheme scheduled for September 2017 has even begun suggests that this will be forced through irrespective of the practical and listing challenges that this may present to the buckling criminal courts. Specialist training for publicly funded advocates undertaking cases involving serious sexual allegations, and an extension of the Unduly Lenient Sentence Scheme to allow for a wider range of sentences to be referred by the Attorney General, are also proposed, and appear in principle entirely sensible.

Labour promises a raft of measures aimed at tackling domestic violence, including appointing a Domestic Violence Commissioner, removing the fee payable by complainants to doctors for certification of their injuries, and prohibiting cross-examination of complainants of domestic violence by their alleged abuser in family proceedings, presumably as per the Prisons and Courts Bill. Its manifesto is silent on whether it supports Harriet Harman’s proposed amendment seeking to alter s 41 of the Youth Justice and Criminal Evidence Act 1999 so as to prohibit any evidence of a complainant’s sexual history being adduced in criminal proceedings. This proposal, which would inferentially disallow such evidence even where, in the view of the trial judge, to do so would lead to an unsafe conviction, is born of a fundamental ignorance of how s 41 presently operates in practice, and it is to be hoped that the manifesto’s silence on this point is indicative of the party’s recognition of the folly of the idea.

Meanwhile, there is potentially something to fear in the vagueness of the Lib Dems’ promise to ‘review the investigation, prosecution, procedures and rules of evidence in cases of sexual and domestic violence’. The ‘rules of evidence’ deemed in need of review are not identified, although one supposes they are unlikely to be those presently operating against the defence.

3. Prison doesn’t work: except when we think it does

All parties agree, to varying degrees, on the need to improve the appalling conditions in our prisons and to reduce re-offending rates. The Conservatives undertake to pursue the oversight reforms in the Prisons and Courts Bill, increase prison places and reform training and recruitment of prison officers (while notably omitting any concession over the current overcrowding and understaffing crises). The Howard League’s criticisms – that these measures are insufficient and will still not restore staffing levels to the pre-cuts figures – do not appear to have cut ice.

Unsurprisingly, Labour and the Lib Dems feel able to offer a less euphemistic picture of the prison estate, both castigating the prison system as overcrowded and underfunded, and both committing to reduce the use of prison. Labour purports to recognise prison as a sentence of ‘last resort’, pledging personal rehabilitation plans for prisoners and 3,000 extra staff (whether these are additional to those promised under Conservative plans in unclear). However, it is curious to note that scattered throughout the Labour manifesto are pledges to increase sentences for certain criminal offences. ‘Making it an aggravated offence to attack NHS staff’, for example, and ‘toughening the law against assaulting workers’ in the fields of ‘age-related sales or ticketing arrangements’ suggests two things: first, a failure to understand that the Sentencing Guidelines already provide for a victim’s status as ‘working in the public sector or providing a service to the public’ to be treated as an aggravating factor; secondly, a reflexive reach for ‘more prison’ as the solution to often deep-rooted social problems. That many of those guilty of assaulting NHS staff will exhibit problems with mental health or substance abuse, for example, renders a lengthier theoretical sentence largely pointless.

This is curious, because otherwise, both Labour and the Lib Dems acknowledge the overlap between mental health provision and penal policy, and both envisage a greater role for restorative justice; Labour in dealing with youths, and the Lib Dems across adult criminal justice as well.

On rehabilitation, all three parties agree nebulously to improve community sentences, and Labour and the Lib Dems both state an intent to review Chris Grayling’s disastrous reforms to the Probation Service, and the widely criticised system of Community Rehabilitation Companies (CRCs) responsible for monitoring and rehabilitating low and medium-risk offenders.

4. Sex, drugs and Lib Dems

Without doubt, the most radical proposals for reducing prison numbers can be found in the Liberal Democrat manifesto. There would be a presumption against ‘short custodial sentences’ and a revisiting of intermittent – evening and weekend – custody, introduced by Labour in the Criminal Justice Act 2003, piloted but then repealed before being brought into force. Victims of crime will be granted a right to request a restorative justice outcome instead of a custodial sentence, although the scope of this ‘request’ is undefined. Some 16,000 convicts would be taken out of the criminal courts altogether, with prostitution decriminalised and the sale of cannabis legalised and regulated. Simple possession of controlled drugs would no longer be imprisonable, with offenders diverted to treatment or education, or subjected to civil penalties. The unworkable and ineffective Psychoactive Substances Act would also be repealed.

The paradigm shift of moving drug users out of the criminal courts and into the remit of the Department of Health would be an innovative, overdue way of decreasing the burden on courts and prisons while presenting a fighting chance at improving rehabilitation rates. It is disappointing that the most wide-ranging and pragmatic policy across the three manifestos is, for entirely political reasons, unlikely to be realised.

Contributor The Secret Barrister, Independent Blogger of the Year, The Comment Awards 2016, thesecretbarrister.com

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The Secret Barrister

Winner of Independent Blogger of the Year, 2016 Comment Awards, the Secret Barrister is a junior barrister specialising in criminal law and blogs at thesecretbarrister.com.