Criminal justice: past the brink
Despite Government claims to the contrary, our criminal justice system is at breaking point.
Recently, Rory Stewart, Minister of State at the Ministry of Justice, stated in the House of Commons that "The British Legal System has for 1,000 years had reason to pride itself on being one of the best legal systems in the world".
Echoing this, Lady Justice Hallett, one of the country's top Judges, said in a recent interview that the English Justice System is hanging onto its reputation as the best in the world by its "fingernails".
Lady Justice Hallett's comments were made at a time when criminal justice barristers had threatened a mass walk-out over cuts to their fees and when the Law Society had warned that defence solicitors in criminal cases are in danger of facing extinction because the government has progressively and savagely reduced legal aid payments to criminal defence lawyers.
Sadly, the ability of Government Ministers, Senior Judges and Commentators to pedal the sad and unrealistic myth about how wonderful the criminal justice system is in this country, is wearing thin.
The evidence for such an assertion is difficult to find. The reality is that the system is at breaking point. All who work in the criminal justice system know full well that there is a crisis and if it is not addressed, then the entire system is going to fail catastrophically.
The police will be unable to investigate cases that are reported to them, the Crown Prosecution Service will not be able to deal with the cases that the police send through in an effective and appropriate way and those cases that do manage to find their way to Court will stand a fair chance of collapsing.
This is not a scary warning of what may happen – it is what is already happening. There are daily reports of scandals over disclosure and multiple other failings and the consequence of it is that wrongful convictions are occurring daily and very many prosecutions fail to get anywhere near to Court.
According to the spending watchdog, the National Audit Office, the CPS spent £21.5million in 2015, preparing cases that were never heard and whilst the innocent are convicted and in many cases, sent to prison for long periods of time, the guilty fail to be prosecuted – what sort of world-beating criminal justice system is this?
Following Tony Blair's famous game-changing speech in 2002 in which he said that he intended to "rebalance the Criminal Justice System in favour of the victim", the criminal justice system has suffered body blow after body blow.
Zealous governments of all persuasions have produced legislation by the bucket full, aimed exclusively at increasing the conviction rate whilst simultaneously and quite savagely destroying the Court Service, the CPS, the Police and the Legal Aid System. This has inevitably led to the prisons being full to breaking point.
Over a short number of years, the criminal justice system has been systematically devalued and the once robust and independent structure, which valued Human Rights and the Rule of Law above all else is being swiftly dismantled.
In the last seven years, the MOJ budget has been cut by 38 per cent. The MOJ has endured deeper cuts than any other government department since 2010 and is requested to find a further £600million in savings by 2020.
By anyone's reckoning, this is unsustainable when all involved are day in and day out required to do more for less. The recent scandals over disclosure failings are just one example of the wider crisis in the criminal justice system, but it has brought into sharp focus the fact that the system cannot survive much longer with its present level of funding and with the morale of all who work within it at such a low point.
All of this has been set out very eloquently in a recent book "Stories of the Law and How it is Broken" written by The Secret Barrister, which provides a chillingly accurate, articulate and scary analysis of the current state of British Justice. Everyone interested in this extremely important subject should read it as soon as possible.
Some 20 years ago, following the Birmingham 6 and the Guildford 4 cases and in response to the recommendations of the Royal Commission on Criminal Justice many parliamentarians of all parties heaved a huge collective sigh of relief when the Criminal Cases Review Commission (CCRC) was established and began work in earnest from its offices in Birmingham.
With the CCRC up and running, parliamentarians by and large abandoned the important work that they had previously done on miscarriages of justice and handed this over to the Commission, hoping that the new body would solve, once and for all, the re-occurring problem of wrongful convictions in this country.
In my constituency postbag, I regularly received letters from prisoners, and from friends and relatives of those convicted, asking me to take up their case. Most set out in painstaking detail, all the various facts and information and asked me to support their case that they had suffered a wrongful conviction.
In this country, we have a long and proud tradition of parliamentarians using their platform to raise awareness of miscarriages of justice. The pages of Hansard are full of speeches by honourable members in support of constituents who have suffered or allegedly suffered a miscarriage of justice.
However, MP's were rarely in a position to investigate the rights or wrongs of the alleged offence and we were all delighted that the CCRC was going to be able to investigate and review such cases in forensic detail independently and objectively and send cases back to the Court of Appeal that had merit.
The CCRC has recently celebrated its 20th anniversary and sadly, in my opinion, it has completely failed to solve the problem of how we deal with miscarriages of justice in this country, and it has completely failed to live up to expectations. This is due in part to being slowly and incrementally denied vital resources (it has also suffered savage cuts to its budget since 2010), but perhaps more importantly, was born into an entirely subordinate relationship with the Court of Appeal.
During the CCRC's life, the Court of Appeal has systematically bullied and undermined the CCRC to such an extent that it is now too timid and too paralysed to make referrals to the Court. The result is that last year, it only referred 0.77 per cent of cases and many are now calling for it to be abolished. Given what I have said about the current state of the criminal justice system and the number of wrongful convictions that are occurring on a daily basis, this would be a disaster.
Having "reviewed" nearly 22,000 or so cases during its twenty-year existence, and having spent many millions of taxpayers' money in doing so, the CCRC has only referred 634 cases, a sizeable number of which are minor cases, first heard in the Magistrates' Court or sentence-only cases. The percentage of cases referred has been pitifully small, declining from an annual average of around three per cent to last year's unbelievable figure of 0.77 per cent.
If you are a victim of a miscarriage of justice in this country and are languishing in one of HMP's failing institutions, no doubt suffering overcrowding and countless other realities too grim to specify, I would suggest that hoping for a "speedy or successful application to the CCRC" would be pretty forlorn. Given all of the cases which the Commission has apparently "reviewed" and rejected since 1997, many of which are now sadly fossilised and forgotten, most commentators believe that it is inconceivable that such a large number were so lacking in merit that they did not warrant a referral to the Court of Appeal.
Those politicians, lawyers, journalists and campaigners who know many of these cases in depth are well aware that a wrongful conviction has occurred and are dumbstruck at the Commission's failure to refer cases where there exists, very clearly, serious and profound questions about the integrity of the conviction.
In the recent parliamentary debate, Rory Stewart, made reference to research in the United States, which has estimated that between 2.3 per cent and five per cent of those who are in prison, have suffered a wrongful conviction.
Applying those figures to the UK would mean that somewhere between 2,000 – 4,000 people in prison at any one time may well have suffered a wrongful conviction. This is an alarming statistic, which we should all take very seriously, particularly when contrasted with the fact that in the last year less than 1 out of every 100 applicants to the CCRC had their conviction referred back to the Court of Appeal. This is very depressing for those 1,500 or so people who apply to the Commission each year.
To conclude, we have a criminal justice system that is at crisis point, and where it is evident and obvious that innocent people are being convicted and in some cases the guilty are going free.
For those who have been convicted, the only path open is to make an application to the CCRC. If that fails, as time after time it appears to be the case, then there is nothing left and the whole purpose of establishing the CCRC – the first such review body in the world, will have failed.
In response to the crisis in the criminal justice system and the obvious failings on the part of the CCRC to address and remedy wrongful convictions, to learn lessons from why miscarriages of justice occur and to avoid them happening again, I have recently been involved in establishing an All Party Parliamentary Group (APPG) into miscarriages of justice. The APPG will examine the failures of our criminal justice system and try to prevent and/or deal with wrongful convictions and to investigate the reasons why such wrongful convictions occur and to put in place mechanisms to avoid their recurrence.
This is a crucial time for the criminal justice system and Parliamentarians have a vital role to play in focussing upon and being educated in the way in which the CCRC and the Appellate system works. The aim will be to provide a bank of research evidence, which will enable us to advocate reform in law and policy and to hold Ministers to account for the failures in the administration of justice.
The APPG will also lobby for an increase in resources. Austerity has been very bad for the criminal justice system. The Ministry of Justice budget must be increased and spending on the CPS, on the police and on criminal defence must be prioritised.
Justice is not a cheap commodity. If we do value justice in this country and want our justice system to be one for which we can be justifiably proud, we need urgently to provide it with the resources that are required.
Repeating endlessly, the empty mantra that our criminal justice system is the best in the world, is limp, pathetic and quite frankly dishonest and should not be repeated any longer without hard evidence to support such an assertion.
If we do want our justice system to be the envy of the world, then we must give it the resources that it needs and put in place the legal mechanisms which will enable justice to be delivered to all who have to face the criminal justice system in whatever capacity they encounter it.
This article was co-authored by Barry Sheerman MP & Glyn Maddocks. Barry Sheerman is Labour MP for Huddersfield and Chairman of the miscarriages of justice APPG. Glyn is the Founder Trustee of Centre for Criminal Appeal (CCA) and an experienced Appellate and Criminal Cases Review Commission specialist solicitor.
