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The State of English Justice

Featured ArticleThe State of English Justice

“Oh dear, how sad, never mind.”  This is the almost sotto voce retort from anyone in power with responsibility for every aspect of the Criminal Justice System for the last 15 years.  They don’t care and they aren’t interested.  It’s not a justice system anymore because there is no justice.

The police aren’t coming.  If you are a victim of crime unless it is violence or sexual violence or perhaps drugs you are unlikely to see a policeman.  If burgled you will be lucky to see a policeman.  If you do, it is to give you a crime number to hand to your insurance company.  You are highly unlikely to see Scenes of Crime to take fingerprints or forensic evidence.  And, even if they do attend, then unless a culprit falls into their lap – blood at the scene giving a DNA match there will be, I can guarantee, no proactive police investigation.

The police are under resourced and under-staffed.

There are no votes in criminal justice.  And by the time there will be votes in it it will be too late.  It’s probably too late already but we, as a society, haven’t yet noticed or got angry enough collectively to make the politicians do something.

“Crime is down” heralds each Home Secretary.  What utter rubbish.  If you take a survey and only listen to those who agree with you then statistics and numbers can be spun any which way you want.  The respected National Crime Survey says crime is down – but if only 4 in 10 crimes is reported how can these conclusions be relied upon.  Think of the anti-social behaviour in the streets – parents aren’t doing anything and there is no deterrent by visible policing.  The Co-op recorded a 34% increase in violent assaults on their staff last year – 1325 incidents against staff.  No police response in 71% of them.  We pay in what we buy for the security guards in every supermarket or corner shop.

A personal experience was being threatened by a man in a car park – he threatened to stab me.  He fled when I phoned the police.  They had his vehicle registration number.  The officer who I spoke to acknowledged that he is known to them.  But the police recorded that as a neighbour dispute.  Not a crime.  I didn’t know him and he wasn’t my neighbour.  I pity the next poor person who really upsets him.

The types of crime have diversified with the use of technology – the internet and mobile phones – these are evidentially heavy cases and need manpower.  But the drunks on the street, the domestic abusers, the burglars, sex offenders, fraudsters, drug dealers and vandals all still need policing and investigating.  The only time there is a proper investigation is if there is a murder.

In a rush to make up numbers there are corners cut in terms of recruitment and training of new police.  Short training periods doesn’t allow for those with questionable judgement, motivation or morals to be weeded out.

So there are poorly trained questionable police out there.  The number of police and the quality and length of their training needs to be increased significantly – both need doubling nationally.

Don’t get me wrong there are some excellent, dedicated, honest, outstanding policemen out there but the proportion of bad apples is getting bigger – sometimes because of the pressure of time and volume of work they have to get a result – this leads to corners being cut, investigations not been conducted properly and sometimes deliberate hiding of evidence or lying to secure a conviction.  If they arrest you, they want to convict you – they are not interested in investigating it further, finding out if someone else is responsible or if you are innocent.  Accept nothing, Believe no-one, Challenge everything.  ABC.  The ABC of detective work.  In a recent trial I asked a detective about this and was told that that had been scrapped.  Not enough time to investigate possible alibis – not enough time to check if the person arrested and accused might be the wrong person.  They have made an arrest, they have points they need to prove to secure a conviction and that is what they look for.  If you are arrested these days you will have to prove your innocence.

Then comes the Crown Prosecution Service (CPS).  If any of you, dear reader, work at the CPS then you won’t like what is coming – but don’t blame me – look yourself in the mirror and tell yourself the truth.

Like the police there are good people in the CPS – but then there are the others.  I know of a prosecutor who joined the CPS having practiced exclusively in family law (not crime) for 4 years.  Appointed a Senior Crown Prosecutor – they accept that even after one year of CPS work and on the job training they really don’t know what they are doing.  And they are now on the RASSO (Rape & Serious Sexual Offences) team.  The CPS show little and poor judgment on cases, they will over-charge cases.  They will run cases to trial that have little or no evidence because they don’t want to be criticised in the media.  When they do make correct but difficult decisions (the appalling crimes of Valdo Calocane) they are criticised.  He is unwell – all doctors agreed.  He will never be released.  If he’d been sentenced for murder he would eventually be back on the streets.  But the ill-informed about the law and the press harry the CPS.  As a society we have to be careful about the balance between justice, punishment and emotionally charged vengeance.

At the other end of the scale the CPS will decline charge in cases where there is clearly sufficient evidence.  Or offer a community resolution (driver awareness courses) where a driver has caused damage and simply driven off – leaving the victim more out of pocket than the offender.

The general day to day dealings with the CPS are shocking.  In trying to communicate with them there is a general email address and it can be weeks before there is any response, if ever.

The CPS is no longer fit for purpose.  It has become an obstruction to justice not a facilitator of it.

Under the last LCJ the process of Better Case Management was introduced with date deadlines for both prosecution and defence to respond to.

On almost ever case I am involved in currently the CPS have failed to meet their deadline for serving the evidence and/or don’t serve the entirety of what they should.  They ask for an extension from the court and it’s granted.  If the defence are a few days late serving a defence statement (setting out their case so there is no ambush on the prosecution at trial) there can be a court hearing for non-compliance and threats from the court of wasted costs against the defence.  Fundamental principles – (1) the prosecution must prove their case and (2) a defendant has a right to silence.  The defence statement also sets out any disclosure requests or enquiries they would like the police to make – these are almost universally ignored by the CPS until the start of the trial.  Judges are bullying the defence and defendant to come up with a credible defence or there is unpleasantness and sometimes ridicule of their barrister in open court.  Some of the Judges seems to have forgotten what it is like with incalcitrant defendants who want to delay the day they finally have to go to prison as long as possible – despite there being a discount for pleading earlier.  Also juries do weird things.  Juries can and do acquit people in the face of overwhelming evidence – so some defendants want to take their chances with a jury – that is their right.

In trials Judges are overlooking failures by the CPS and are blind to some of their sleight of hand even when it is pointed out – and nowadays they rarely rule in favour of the defence on issues of hearsay or admitting evidence of others wrongdoing which might exonerate a defendant – the Judges need to get conviction rates higher.  Every summing up in a trial is a pro-prosecution recitation of the prosecution case with scorn on what a defendant has said.  For the prosecution there is the mechanism and infrastructure of the state – for a defendant a single solicitor and a single barrister.

There are people who are wrongly accused and on the nights where I’m not awake working generally these cases – the frustration and unjustness of them, keep me awake.  If someone is to be convicted it must be done fairly.  A conviction at the Crown Court is where that has to happen because the Court of Appeal don’t appear to be interested in justice.  A regular joke at the Criminal Bar now is that it should be called the Court of No Appeal.  Fewer cases being given permission to appeal and fewer appeals granted.

The Judges are under pressure to get the backlog down.  I don’t see why some get so stressed about it – they have a decent salary, an excellent pension, reading days, sick pay, annual leave – and the backlog, which they won’t single-handedly reduce, isn’t going anywhere.  In the last 2 months I have been in trials where the allegations date back to 2015.  Nothing to do with Covid or the barrister strike.  There simply haven’t been the courtrooms or Judges available to hear them – and now there is a shortage of criminal barristers.  But giving Judges a pay rise won’t sort the problem.  The Judges need to speak truth to the Ministry of Justice.

The same can be said for some of the those who engage and have engaged with the government over the last few years from the Bar – they are too concerned about their own career progression.  They fear they won’t be appointed a Judge if they rock the boat.  As per Abraham Lincoln “To sin by silence, when they should protest, makes cowards of men.”

Please don’t confuse loyal dissent with disloyalty – I know the Justice System has flaws – no system will ever be perfect but if we act like sheep we get a system run by wolves.  I want it to be better.

The situation is almost terminal – but it can be reversed.

The Criminal Bar is being overwhelmed with extra work brought about by endless new protocols and paperwork outside of the court – none of which we get paid for – on top of low fees generally and cuts in fees in real terms over the last 15 years.  No salary, no sick pay, no annual leave, no pension – we’re self-employed.  However, that does give us some freedom and criminal barristers are voting with their feet – leaving the profession in their droves and many of those remaining are refusing to do RASSO work.

The warning signs are all there – but I suspect that those responsible think we’re waving.  Believe me, we’re not – we’re drowning.

I’ll probably end up in Room 101 for the above – but with the way the system is currently it feels like I’m already there.

 

Charles Blatchford, Barrister at St Philips Chambers

The views expressed are the authors personal opinion

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