If our electricity supply fails, we know immediately, and complain. But some important services are less visible. We only discover how badly social care works when we have a relative in need. Or the state of the ambulance service when we have an accident and the ambulance doesn’t arrive. And most of us never have to think about the criminal law.
We all need a proper system
Although one person in seven will be a victim, and many more feel the effects, most of us only know the criminal law from television. But we all rely on it to ensure that victims and accused are properly treated. Both guilty and innocent deserve proper expert advice, and prompt decisions. Without it we are all less safe, the guilty are free to reoffend, and all of us risk being punished for things we didn’t do.
Because most of us never experience it, the criminal law is a low priority for politicians. There are always cheap votes in calling for tougher sentences, and more police, but most voters have no idea whether there are enough courts, solicitors and barristers, and whether people accused of crimes, and the victims of crime, are being properly dealt with.
The system is failing
But the system is not working. Backlogs were rising before the pandemic. Now there are 60,000 cases waiting to be heard. On average, serious cases now take two years to come to trial, and some rape cases take five years. Victims live in suspense, and suspects are “released under investigation”, back in the community.
Last July, the Law Society said that:
“Due to many years of underinvestment, our criminal justice system is crumbling. Things are going wrong at every level and every stage. It’s become a nightmare journey through the system for the accused, for victims and for solicitors alike.”
Since the Conservatives came to power in 2010, police numbers have been cut by 21,000, while CCTV and mobile phones have multiplied the volume of evidence. So investigations take a long time, and disclosure of evidence to the defence may come too late for proper preparation.
Because of pressures on the system, cases are regularly double booked or rescheduled at less than 24 hours’ notice. However, barristers are paid on the completion of the trial. So the barrister who has spent hours preparing the case may not be available, and thus not paid for that work, while her replacement has to prepare a case overnight.
There are other problems too. Since the Conservatives came to power in 2010, the Crown Prosecution Service budget has been cut by a third. Government has closed half the courts in England and sold off many. Some surviving ones are falling apart. In 2020, trials at the Old Bailey were suspended because a blocked toilet led to the water being turned off. Despite some improvements in technology, many people, victims, accused, witnesses and lawyers now find it more difficult and expensive to get to court to be heard.
But perhaps the biggest problem is the supply of lawyers.
Criminal law doesn’t pay
Some lawyers are rich. But most criminal lawyers are not. Unlike almost all other occupations, criminal lawyers have seen their earnings actually fall: solicitors by 8 percent since 2007, and criminal barristers by 28 percent over the last 20 years. Now, a newly qualified criminal barrister can be earning less than the national minimum wage.
So the numbers of solicitors and barristers willing to take on criminal work has been falling rapidly. During the Covid pandemic, 83 percent of barristers, who present cases in court, incurred personal debt or used up personal savings to survive.
And because of a shortage of solicitors, barristers are having to take on preparatory work. As one criminal barrister in Norfolk said,
“In court, I used to always have a solicitor sitting behind me. He had prepared the case, briefed the client, and had all the files to hand. I could concentrate on making the case to the Court. Now I usually have to do this all myself”.
A belated review
In 2018 the government promised an independent review. When it was finally completed, in December 2021, Sir Christopher Bellamy reported that,
“after years of neglect … I see no practicable alternative to properly funding, and reinvigorating, criminal legal aid”. “Absent a substantial increase in funding, there is a high risk that the system will simply be unable to cope”
He recommended a minimum increase of £135 million a year in funding, just to restore the position a decade ago.
In response, the government announced a 15 percent increase in fees. Initially this was welcomed, but when it became clear that the real figure was only 9 percent, and that barristers would not see the money until 2024, many withdrew their support.
Striking is not something which comes naturally to lawyers, but in April, 2,500 criminal barristers began industrial action. They will no longer cover for colleagues who are unable to appear because another case has overrun. The result will be much more disruption and delay in the system.
Why this matters
We often boast that Britain is a country committed firmly to the rule of law. But in reality, the system continues to collapse, although few voters will see the effect, at least in the short term.
But our security rests on this. If people lose confidence that their case will be heard promptly and fairly, they will not come forward. Every time an innocent person is wrongly convicted, a criminal goes free to offend again. Criminals will prosper, and we all become a little less safe. For a more detailed account of these issues, try the “Secret Barrister”.