Some mornings, I think I’ve woken up in a parallel universe. It happens all too often these days. If only the parallel universe was, say, the 1950s America of Grease, or the 1950s Britain of Miss Marple. Sadly, these days it always seems to be a parallel universe where our system of justice is being denigrated, dumbed down and dismantled by some of the very people you’d think would be manning the barricades to save it.
This week, yet again a story circulates about a proposal to limit the circumstances in which an accused person can choose to be tried by jury. Shockingly, the difference is, this time the proposal apparently comes from the senior judiciary.
Yes, you read that correctly. THE SENIOR JUDICIARY. What planet are these people on?
(Pic: first featured in Legal Cheek http://www.legalcheek.com)
You expect this from politicians. A few inconvenient or embarrassing results from the High Court against whichever Government department is being challenged for whatever particularly ludicrous scheme, and they want to curtail every court’s powers.
You expect this from sections of the media. A few high profile cases involving “beasts” or “monsters” who the editors don’t consider received a long enough sentence, and they’re calling for a return to trial by combat.
PRESS 1 IF YOU WANT TO BE SENTENCED TO THE DUCKING STOOL. PRESS 2 FOR THE STOCKS. PRESS 3 IF YOU ACTUALLY WANT TO PLEAD NOT GUILTY AND BE ON HOLD AD INFINITUM BECAUSE IF THE POLICE HAVE CHARGED YOU, WELL, YOU MUST BE GUILTY, RIGHT?
But you don’t expect it from the senior judiciary.
The cat was let out of the bag at a session of the Justice Select Committee earlier this week, which featured among other worthies the Senior Presiding Judge, Fulford LJ. (He still hasn’t taken me up on my offer to either accompany me to court to see how our criminal justice system is being torn apart, or duke it out with me in our robes in Chancery Lane, but that’s another story.) It’s a lengthy session but well worth a watch: see the link to Parliament TV here.
The Powers That Be (and magistrates) have been banging on about this proposal for years, but it’s only recently – with the publication of the Leveson Report, for example (see link here) – that senior judges have become evangelical about the issue. And that’s really got the goat of those of us who actually have to practise in the criminal courts.
For those not familiar with the current rules about how and why you can exercise your right to a jury trial, I’ve blogged about this before and could bore for England on the topic. See my previous blog “Once Law Was Sitting On The Bench, And Mercy Lay A-Weeping” here.
I used to go to the magistrates’ court daily, when I first started at the Bar. In my entire legal career I have never once advised a client who really intended to fight a trial to choose to have that trial in the magistrates’ court if they had a choice. These days, by all accounts the magistrates’ court is like the Wild West, where the rules of evidence and procedure have apparently gone sailing out of the window, sacrificed on the altar of expediency and austerity.
PRESS 4 IF YOU WANT TO PLEAD GUILTY. PRESS 5 IF YOU WANT TO PLEAD GUILTY BEFORE YOU’VE ACTUALLY COMMITTED THE OFFENCE, IN ORDER TO GET AN EVEN LOWER SENTENCE AND SAVE THE COURT TIME AND MONEY. PRESS 6 IF YOU HAVE THE TEMERITY TO WANT TO PLEAD NOT GUILTY (BUT DON’T WORRY, WE’LL PROBABLY CONVICT YOU ANYWAY).
When this story featured in The Times and other national media this week, my Twitter timeline exploded with tales of unfortunate Defendants’ experiences in the magistrates’ court. What about the court which said, according to blogger The Secret Barrister (check out his excellent blog here), after hearing a trial: “Well, we’ve had a think and we reckon you probably did it. Guilty.” (Which is interesting, when the standard of proof was still supposed to be for the tribunal to be satisfied so that they are sure of guilt in order to convict. But hey, that doesn’t seem to matter!)
Concerningly, this apparent race to increase the amount of work dealt with in the magistrates’ court comes at a time when the MOJ are in the process of closing 91 (count ’em) magistrates’ courts. So quite where the excess capacity will be found to house the increase in such trials is another matter. Or how those appearing in such trials – whether as witnesses, Defendants, professionals or magistrates themselves – would be expected to actually get there in the first place when there’s now likely to be about one magistrates’ court per county. In the Parliament TV session, the Justice Ministry’s hatchet man Shailesh Vara (surely the most reptilian individual in Government?) seemed to consider this wouldn’t be a problem, but this is a bloke who seemingly doesn’t consider that us plebs are deserving of a working justice system at all. Watching him slime his way through the committee session actually made me want to barf.
Those viewing the committee session will know that a judicial delegation from Lagos was watching as invited guests. They must have been wondering how it could be the case that Britain’s criminal justice system has plummeted so far into Dumbeddowndom.
At the same time, the proposals to dumb down almost the entirety of the civil courts continues apace. As well as hiking court fees up to the extent that only Russian oligarchs or Government departments are able to afford to actually go to court, another senior judge has come up with a jolly wheeze – having most civil cases go online! What price open justice, eh?
In an article in the Law Gazette last month (16.5.16, link here), the architect of the plan, Briggs LJ, cheerily set out his pitch which, when you look at it, signals the end of any pretence that the Little People will be able to access a standard of justice which could be considered anywhere near acceptable. You know that the writing is on the wall when you read the words “consultation” and “stakeholder” in the first paragraph of the article. Doom.
So what does he propose? It sounds like some sort of fast food ordering system.
“The creation of an Online Court will enable civil disputes to be litigated by people without lawyers, in those areas where (under the existing regime) the cost of using the service currently offered by lawyers is disproportionate to the amount at stake.” Apparently, the tipping point is £25k, which sounds like a reasonably sizeable money dispute to me. Surely he’s not suggesting that everyone with a dispute of that size or under should dispense with lawyers altogether? Or that lawyers should be doing the job for nothing? I’m not sure what reaction you’d get if you took that approach with, say, the work of plumbers, but I’d wager that it wouldn’t be a polite one.
Not surprisingly, the reaction from professionals was less than favourable, and this week Briggs LJ was back in the Gazette trying to explain how this new digital utopia wouldn’t offer a second class legal system to the undeserving public (see link here). Well, of course it won’t – it will offer a third class one!
And apparently, the design of the new system will “create algorithms for extracting information from potential litigants at the triage stage” and “it is also likely that case officers, who will be the first human point of contact for litigants in the online process, will be legally qualified”. Note the word ‘likely’. Not guaranteed. And qualified to what level? Professionally? Done law A level? Read some Nutshells a couple of weeks ago? Watched Judge John Deed a couple of times?
If the Government has anything to do with it, and is having to pay salaries to these case officers, I think you can guess where this is going. What’s the betting this set-up will be outsourced to someone like G4S or Capita, and all these case officers will be on zero hours contracts, and reading from a script over the phone like when you have to call NHS 111? (And we all know what a success that’s been.)
But wait, there’s more. On the question of what would happen to elderly or vulnerable people who might have difficulty accessing the gleaming new facility (not everyone has a computer or wifi access, you know), apparently there’s nothing to worry about. “Support services will be made available, possibly staffed by law students.” So that means, um, people who are completely unqualified? Truly, we are entering an era where our country’s justice system would be worthy of some far flung banana republic!
PRESS 7 IF YOU HAVE LOST YOUR CASE. PRESS 8 IF YOU HAVE LOST THE WILL TO LIVE. PRESS 9 IF YOU THINK THIS GOVERNMENT HAS LOST SIGHT OF THE VALUE OF OUR JUSTICE SYSTEM.
Why are some of our senior judiciary apparently rolling over and having their tummies tickled by the MOJ and HMCTS on this? Why can’t they grow a pair and stick it to these Government departments and Parliamentary committees and TELL THEM THAT YOU ACTUALLY NEED PROPER FUNDS TO RUN A FAIR AND ROBUST JUSTICE SYSTEM FOR EVERYONE? You hardly need to turn into Buster Gonad to be able to get that point across, surely?
There are some things you just take for granted, when probably you shouldn’t. Like having water (hot or cold) available on tap when you want or need it. Like the lights or all of your electrical gadgets coming on at the flick of a switch. Like having opposable thumbs, which is why we can write, paint, cook, hold things and is the reason we’ve evolved to the top of the food chain.
(Pic above with thanks to the fabulous Cravendale Cats: http://www.cravendale.co.uk)
Having the right to choose trial by jury, should you be unfortunate enough to be accused of an offence, is one of those. Having access to a properly robust system of civil justice is another. We sleepwalk into getting rid of these at our peril.
PRESS * IF YOU WANT FRIES WITH THAT.