We are wholly opposed to almost all the proposals suggested yesterday by Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice David Lammy. Whilst we welcome any increase in sitting days, and additional funding for those seeking to become barristers specialising in criminal work, we consider that the proposals to increase magistrates’ sentencing powers, removing the right of defendants to elect jury trial, removing the existing rights of appeal from magistrates’ decisions, and the institution of judge-only trials for serious offences are ill-informed and abhorrent.
Trial by jury, as was acknowledged by Sarah Sackman, Minister of State for Courts and Legal Services, only last week, is a cornerstone of British justice. David Lammy said in 2020 that, “Criminal trials without juries are a bad idea. You do not fix the backlog with trials that are widely perceived as unfair.” He appears wiser then than yesterday.
We acknowledge that the criminal justice system is in crisis. Successive governments have failed to respond to repeated requests from all concerned to properly fund all parts, such that there are now so many failings that much of taxpayers’ funding is wasted. However, things have not yet been destroyed, such that a little more funding would not be able to restore much of what used to be a world-respected beacon of justice.
Legal aid funding (across Magistrates Courts and Crown Courts, for solicitors and barristers) is presently at about £2b per year. Running the courts costs a similar figure. Prisons cost considerably more. Whilst no one would suggest that the proposed additional funding of £550m over three years to victim support services will not be well spent, a similar amount spent on the current system would be transformative for victims of crime and those wrongly accused in removing delays. In comparison, the winter fuel payment costs £1.3b per year and the announcement last week on National Insurance contributions and pension salary sacrifice schemes is expected to raise £4.7b in 2029/30. Given its importance to a properly functioning state, the criminal justice system is not expensive, but failing to properly fund it has major repercussions.
It is right that the so-called “backlog” (or open caseload) in the Crown Court is in the region of 80,000 and rising. The counting is a blunt tool, as long trials with multiple defendants and many witnesses are given the same value as a simple sentencing exercise. The three main factors are the previous governments insistence of reducing sitting days in the years leading up to the Covid pandemic, safety restrictions during that time, and a refusal to follow independent advice to increase legal aid funding. Despite a slight increase following “strike” action, there remain too few criminal practitioners, meaning that many listed trials are still ineffective because suitably qualified practitioners cannot be found to do the work at current fees.
The origins of jury trials are much debated, with some claiming they predate the Romans and others pointing no further back than Henry II in the Twelfth Century. What is beyond debate is that for generations trial by jury has been considered the acme of criminal justice. It has been variously described as “the foundation of our free constitution,” “the greatest blessing which the British Constitution had secured for the subject,” “the bulwark of our liberties,” and “a safeguard against oppression and dictatorship”. Lord Devlin was not exaggerating when he described it as “the lamp that shows freedom lives.” It is not perfect, and has evolved over the years, but no better system for determining guilt or innocence has yet been found. It puts members of the public, with their pooled experiences at the heart of criminal justice. They and they alone are those best placed to determine questions of reasonable belief in consent, whether a police officer is truthful, whether one’s actions exceeded self-defence and whether someone acted with dishonesty. Such questions are of utmost gravity to all accused, whether it is their first offence, or whether the result will mean an even longer sentence than last time.
Above all, juries form a trusted mechanism. Defendants and witnesses may not agree with verdicts, but they can see a process has been followed. They have placed themselves in the hands of their fellow citizens and by and large accept the results. The same is not the case when a judge alone is deciding on guilt. Although sentencing follows a predictable pattern, in cases where there is a hearing in which a judge hears disputed evidence to determine level of guilt, disgruntlement almost invariably follows.
That is not to say that magistrates do not play an important part in the system. Volunteer magistrates, with limited training and assisted by legal advisers deal with minor offences (which of course make up the bulk of cases) well. However, they typically take only a day or half-day away from their work and family to attend court. Arranging longer hearings is difficult and the magistrates courts have their own problems, with an open caseload rising and approaching 350,000. Salaried District Judges (formerly called stipendiary magistrates) also play a valuable role, although there are relatively few applicants for such roles. However, they only deal with relatively minor offences and checks and balances are maintained by an automatic right of appeal to a tribunal made up of a judge and at least one lay magistrate. Removing that right of appeal is a drastic and unnecessary step.
A recent experiment with temporarily increasing the sentencing powers of magistrates failed abysmally. Despite their training and legal assistance, they passed so many immediate sentences of imprisonment of such length that it had to be stopped rather than dealing with individual appeals.
It is a cause for concern that the criticisms made of the first part of Sir Brian Leveson’s “Independent Review of the Criminal Courts” have been ignored by the government. He recently defended his proposals by stating, “more money and sitting days will not solve this,” but went on to say that in order to reduce the backlog without adopting his proposals, more money would need to be spent on more judges and more barristers which appears to completely undermine his argument. Rather than listening to the voices of those familiar with the courts, the government is suggesting going much further than any of the proposals in the report. Even more concerning is that the proposal has been made without waiting for the second part of his report, which crucially is supposed to detail a consideration of efficiencies in the process. This is evidence that it is not any perceived efficiency or savings which are behind the proposals, but something ideological.
It is all very well to mock those accused of crimes by suggesting that they are merely trying to prolong matters in the hope that witnesses will withdraw. However, it is not fair to criticise those who are seeking the fairest possible trial when they are unjustly accused. There are those who make false allegations and are glad that defendants are remanded in custody or subject to onerous bail for as long as possible until the truth emerges. The correct response is to put the appropriate resources into the criminal justice system for the good of society, not to make assumptions about unproven accusations.
Due to historic lack of funding, courts are already booking trials in 2029. Head of Crime, Andrew Wilkins, recently had a trial involving an allegation of rape of a 10-year-old child fixed for 2029. In the same week he had a serious sex trial adjourned to May 2027, only to find he already had another similar trial in his diary for the same date. With barristers and judges already booked so far in advance, it is hard to see how there will be capacity to conduct trials in a different division.
Andrew Wilkins said, “Many of us at Cornwall Street feel very strongly about these plans. Several of my team have raised the prospect of refusing to do any further work in a system which they did not feel was still fair or just. Others have raised the prospect of early retirement altogether. As self-employed barristers, who are typically paid only at the conclusion of a case, reducing the backlog would be in our financial interests. However, all of us have chosen criminal law over more lucrative areas of practice and we wonder who will remain to do the work in years to come. I can see the proposals actually increasing waiting times due to lack of personnel to conduct the trials properly. It risks undermining respect for the rule of law and thereby causing chaos, but it is not too late to step back.”
In short, what is needed to save criminal justice and confidence in the system is not a tearing up of ancient rights and liberties, or a reduction in public participation, but rather a relatively small additional investment. Currently the plans are only proposals. Primary legislation will be required. It is to be hoped that the government will see sense or that members of both Houses of Parliament will act in accordance with their duties to the country.