Despair

Despair: a word that suffers from its overuse, but which nails the mood of the criminal Bar and those who work in the Criminal Justice System (CJS).

“CJS” itself has become a term rather akin to the historian’s definition of the Holy Roman Empire: not Holy, not Roman, and not an Empire. As the saying goes, justice, so delayed, is denied. The assertion of “system” is laughable. And, arguably, the most “criminal” aspect of the CJS is how far down the pecking order it has slipped when it comes to funding. Once proud, the Courts of England and Wales are leaking, hurting, failing.

For the past few months my inbox and that of many criminal practitioners has been inundated with brutal emails informing us that this long-standing case or that 5-year old fixture will no longer be accommodated by the Court because there are insufficient sitting days. With the casual stroke of a ministerial pen the government has again seen fit to limit the days the Crown Courts can sit in order to meet the Treasury’s burden. In so doing, it both reflects and institutionalises the myopia that afflicts the CJS and makes its very title the stuff of Orwellian newspeak.

Where to begin? To borrow from the Irish, well if you want to get there I wouldn’t start from here, if I was you. But it’s a fair question, what do we want our CJS to do?

In a simple sense we want the guilty to be convicted and the innocent to go free. But even at that basic and essential ambition, we fail. Delays burden every participant. Victims of rape face an average of 710 days between their complaint and the conclusion of proceedings according to Stephen Parkinson, the new DPP. Rape Crisis has it at 839 days. That’s an average which disguises what we all know: because of Custody Time Limits those on remand will, understandably, have their cases prioritised, meaning that many bail cases take far longer. Delays deter and have a continuing and damaging impact on the lives of complainants and defendants and their kith and kin.

The working lives of criminal practitioners are small fry in this context, but we matter, because without us justice cannot be done. According to the Criminal Bar Association 64% of RASSO (Rape and Serious Sexual Offences) prosecution counsel will not reapply for their “ticket”. So, the reduction in sitting days, in counsel available, conjoin to make these incredibly serious offences almost un-triable. To no one’s benefit.

Looking through a wider lens the problems become even graver and, in the absence of political will and public support, more insoluble. The prisons are full. This has finally become widely accepted. The proposed solutions are not, however, reflective of a desire to meet the challenge. Deporting foreign prisoners (which we have done for decades), letting people out early (which makes mockery of Sentencing Guidelines that pretend not to opine on “days behind the door” but must , if they are to make any sense) or just not putting people on trial for years cannot hope to address the problem. 

We have a Prisons Minister in James Timpson (whose appointment was met with great sighs of relief and some rare enthusiasm by practitioners) who is on the record as opining that one third of prisoners should not be in prison at all and another third could be released with the right support mechanisms in place. Right, so surely we will soon see a reduction of the prison population by two thirds? As Alex Chalk (former Justice Secretary, Lord Chancellor and member of the criminal bar) stated, it costs £500,000 to build a prison place, £47,000 per annum to fill it and less than £10,000 a year to support those convicted in the community. He went on to note that half of those who serve sentences of 12 months or fewer go on to commit further offences. In his gentle way he was diametrically and violently disproving Michael Howard’s dictum that “prison works”. 

Those at the Criminal Bar know that no such nirvana awaits, at least not imminently. Instead, our diaries are shot to bits, daily. Bristol Crown Court (which has 10 courts and an embarrassment of riches when it comes to judges and Recorders) will run three trial courts and one “admin” court during parts of the first quarter of 2025. This is reflected across the jurisdiction. It is the bidding of those who count the pennies and fail to observe the pounds pouring into the sewers. It is immiserating. Small wonder that those who have sought practice at the criminal bar question their sanity and newcomers reverse their direction in ever greater numbers. 

There are those blessed few, like Sir Brian Leveson, who advocate for “intermediate courts” and have a view based upon District Judges and lay Magistrates that belies decades of experience. The notion that juries can be dispensed with and replaced by those who deliver summary justice is without merit. That all such decisions have the automatic right of rehearing in the Crown Court is suggestive as to the real level of confidence in them. Expedience is not the lover of justice but its fool. Just as delay defeats the ends so speed defeats its purpose. Trying to bandage the criminal process in summary hearings is akin to insisting that complex heart surgery be resolved by a quick chat with the pharmacist. You might be lucky, or…

A decade or so ago the government had a wheeze to try and cut the sinews of the criminal bar by trying to employ counsel as public defenders. They soon discovered how cheap they had it. If this continues then we will all pay an unjustifiably higher price for what we call criminal justice.