The Intolerability of Criminal Law

Criminal Law is Intolerable.

A leading Barrister Mukul Chalwa warns in an article on the Secret Barrister blog that life at the criminal bar is becoming intolerable and the legal system is at breaking point. “It is not just that the fat has been cut from the bone, but huge chunks of flesh have been eviscerated,” he says. While the rich may still be able to afford a decent trial, everyone else must hope that they will never need to enter one of our dilapidated courts.

It is not only that the legal aid budget has been slashed by 40 per cent since 2010; the Ministry of Justice has seen deeper cuts than any other department in the last decade. The Crown Prosecution Service (CPS) has lost a quarter of its funding and a third of its staff, prisons have become hellholes and the police are struggling to keep up with losses to their forces of 20,000, diminishing their ability to investigate crimes properly.

Yet the chancellor, Philip Hammond, barely mentioned justice as he heralded an end to austerity in his budget this week. The Tories, once the party of law and order, don’t think it’s a vote winner. But when I talked to Chawla yesterday he said we should be afraid; the home of Magna Carta may no longer provide justice for all.

Many courts are now crumbling; more than 200 have closed and others lie empty without staff to service them. Even Southwark, the flagship criminal and fraud court, has tiles falling off the ceiling, carpets held together by duct tape and juries forced to bring their own sandwiches. American and European lawyers attending international fraud cases are stunned. Seen by some as overpaid vermin scuttling through the courts, criminal barristers are more likely to be broke graduates working 75-hour weeks, flogging round the country taking on the most nightmarish cases from domestic violence to child sex abuse images, modern slavery and abuse of the elderly. They may have to defend rapists and drug abusers as well as the vulnerable, coping with shattered reputations, relationships and lives.

Unless they have their own trust funds, it’s hard to sustain a career in which, after they have paid their tax, chamber’s rent, clerk’s fees, VAT, professional liability insurance and practising certificate costs, they could be earning less than the minimum wage and still have no pension, maternity and sick leave or holiday rights. Criminal law pupils start on £12,000 a year. Chawla and other heads of chambers have said they increasingly see barristers who can’t afford train fares to court because they still haven’t been paid. One experienced barrister received just £900 for a trial involving multiple victims and 15,000 pages of evidence.

It is easy to say that the next generation of judges should be more diverse, but that is impossible if barristers need to have a private income. No wonder many end up moving to more lucrative divorce or commercial cases. If they do stay in criminal law, they are increasingly frustrated. Overstretched police can’t investigate as many crimes any more, cases fall apart, witnesses don’t arrive and crucial details are not disclosed as they were never discovered. Murder rates are increasing but murder squads are being disbanded. Prosecutors are often given less than an hour to review a case, causing the Secret Barrister to observe that “if you are accused of a crime, there is a roughly 50 per cent chance that the prosecution hasn’t fully prepared for the first court hearing”.

This isn’t just about money, it’s also about new kinds of crime. The outgoing CPS chief, Alison Saunders, said this week that the justice system is cracking under the strain of online criminal activity. “Take one recent rape case where they met on Tinder,” she explains. “It took 600 police hours to go through the digital material.”

The home affairs select committee also suggested last week that police were struggling with technology as reported crime rose by 32 per cent in three years. The police are taking longer to prepare complex cases, meaning that 97,000 went through the crown courts in 2017 compared with 125,000 cases five years ago. Only one in 200 victims of fraud now sees the perpetrator brought to justice. At the same time there is huge pressure to take a tougher line on sex cases and historical abuse.

The British have an odd attitude to the law. They love crime series such as Inspector MorseSherlockSilk and Broadchurch but they seem to think police officers have weeks to solve crimes and that the guilty will always get their comeuppance in court. They don’t realise that none of this is true any more.

We may think it doesn’t matter — we will never be involved in fraud, violence, drink driving or sex offences — but we don’t know. There’s the teacher falsely accused of behaving inappropriately towards a pupil, the teenager drink driving one fateful night, the exhausted dad who texts home while on the motorway, the mother whose baby is starved of oxygen at birth. Few of us would ever want to appear in a criminal court on either side. But should we, or someone we love, be caught up in the legal system we want to believe that justice would be done. On the evidence before us today, it won’t.

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