Featured image: Bethan Chinn.
In 2019, the former president of the Supreme Court, Lord Neuberger, warned of the “imminent breakdown” of the Rule of Law as a result of a collapsing legal system. A House of Commons Committee Report, released on the 15th January 2020, showed that over the past decade, the Ministry of Justice’s budget has been cut by 25%. The criminal legal aid budget has also fallen by 35% in the same period. Crime, however, has been rising. The committee questioned whether the criminal justice system is fit for purpose. The simple answer is no.
The House of Commons report was released prior to the pandemic, but coronavirus has only made the situation more desperate. The Criminal Court backlog now sits at 457,000 (100,000 more than before the pandemic). Similarly, there are 54,000 cases waiting to be heard by the Crown Courts. The percentage of prisoners awaiting trial has hit 15%.
In 2010, the average wait for a crown court case was 392 days. By the end of 2019, this was 525 days (34% more). Following the pandemic, the average has reached well over 2 years, with the BBC reporting that some trials will not start till 2023. For many crimes, this means a wait of at least three years. This will lead to situations where defendants spend more time awaiting trial than they would receive as a sentence if convicted. Not all of them will be found guilty. James Mulholland QC, chair of the Criminal Bar association in England and Wales, stated that some defendants have been held in custody for up to 18 months with no compensation offered if they are found not guilty. This threatens one of our most basic legal principles: the presumption of innocence.
The criminal backlog has also impacted the amount of crimes likely to be prosecuted. The Guardian reported in November 2020 that “only 7% of offending recorded by the police resulted in a prosecution”. The statistics on the amount of rape cases going to trial is frankly horrific. Prior to the pandemic, The Guardian reported that in 2019 rape prosecutions were at a 10-year low, falling by 38% in the 2018/2019 period alone, whilst reported allegations of rape had increased by 9% over the past decade. This needs to be addressed.
Criminal barristers have also found themselves in a precarious position. The media and the government over the past few months have tried to paint them as “fat cat” legal aid lawyers raking it in. This is far from the truth. The Secret Barrister (a barrister and activist who retains their anonymity through their ambiguous pen name) has pointed out that many junior barristers work at rates that work out below minimum wage. Similarly, the average take-home pay of a criminal barrister is £27,500; less than the average wage in the UK, which GQ estimated to be £30,420. Ultimately, criminal barristers (in particular public defenders) are overworked and generally underpaid. This undoubtedly impacts the quality of advocacy that defendants receive.
Victims of crime are also being failed by the criminal justice system. Budget cuts, limited legal aid, and huge delays between crime and trial are all incredibly harmful to victims. As James Mulholland pointed out to The Guardian, cuts penalise the innocent more than the guilty. Victims having to recount the trauma of an event that happened years before hinders their ability to move forward. Furthermore, the delays to trials and overall lack of prosecutions puts victims at risk of further harm - domestic abusers and rapists, for example, are statistically less likely to be convicted than they were a decade ago. Dame Vera Baird QC, the Victim’s Commissioner for England and Wales, has accused the criminal justice system of treating victims of crime as “bystanders”.
52% of victims surveyed were dissatisfied with the lack of support during the investigation. Just 10% of victims had contact with support services. The poor treatment of victims has meant that people are reluctant to report crimes or want to prosecute events. In 2015, victims did not support criminal proceedings in 9% of cases; by 2020 this figure was 24%. Victims can even be threatened with legal repercussions if they fail to attend court.
I have experienced the effects of our fractured justice system first-hand. To describe my experience as dismal would be to sugar-coat the experience.
My father was a domestic abuser. In 2012, my parents separated after my dad struck my brother so hard that he ended up in hospital. This marked the last time my father physically hurt us. Despite photographic evidence and a medical report regarding the incident, and my dad having confessed that he caused the injury, the police did not take action after my dad blamed my mum for angering him. This decision still infuriates me.
It was not until four years later (October 2016), after a complaint from a third party, that the police took notice and opened an investigation. They showed up at my school unannounced to pull me out of class, without informing my parents, as I was 16. It was half an hour before I was told why. I thought someone had died. I was then questioned alone about my father’s treatment. In the initial meeting I told them less than what social services had known for four years, less than the police had been told back in 2012. I have no idea what changed, what caused them to launch the investigation in 2016.
The crimes my dad was charged with occurred between 2002-2012 Whilst this may appear complex, it should be noted that all the evidence used at trial, had been made available to the police by December 2016. It was November 2018 before the case went to trial.
The wait was obscene. Two years may not seem a lot in the grand scheme of life. As a victim of abuse, it was deeply traumatic.
An investigation of this nature is all consuming. The wait was agonizing. I was told I had no choice but to give evidence against my father. Having to constantly recount the abuse paralysed my ability to move on. There was also a significant degree of uncertainty. After years of being denied justice, the most common question was: will they really believe us? For so long we had no idea what was happening, or what the outcome would be. Several times our case came close to being dropped. For a large portion of time it felt like being led blindfolded towards the edge of a cliff, not knowing if you were going to ever be allowed to stop. The process was draining and exhausting. The fact I was simultaneously completing my A levels and applying for Law schools meant I spent the two years in what is best described as survival mode.
Due to the length of the investigation and the time it took to go to court, my father was released; first pending investigation (for a year), then on bail. Initially there were no formal restrictions against him having contact with us, despite us having been dedicated as being at “high risk of fatality”. My mum had to apply for a non-molestation order but was denied legal aid because she owned our house, meaning she had to represent herself in family court multiple times in order to ensure the order remained. After my dad was finally charged, these restrictions were part of his bail conditions, but he broke them multiple times without consequence.
The trial occurred six weeks into my first term at university. This was disruptive. I did not want to go. I wanted to move on. I felt the trial should have occurred years beforehand. But I was summoned; I had no choice.
The trial itself was shambolic. Having done pre-trial visits at our local crown court, the backlog that the court faced meant that the day before the trial was due to start it was moved 20 miles away to a court that had been opened as an emergency, having not been in operation for over a year due to funding cuts.
The first day was complete chaos. The jury having to be bused from the original court went missing. When they turned up several hours late, it transpired their bus broke down. The court itself was damp and freezing. It had not been regularly used for so long, they struggled to get the heating to work. It was a cold day in November. The court ushers did not know how to work the video link technology crucial for the cross examinations. It also transpired that my father’s barrister had lost a significant portion of the defence’s case.
The second day was equally chaotic. My father, having finally found and reviewed his evidence, changed his plea to guilty for some of the charges last minute meaning the prosecuting barrister had mere hours to completely rewrite the case.
My father was sent to prison for four and a half years. I had not been prepared for that outcome; I was led to believe he would get a suspended sentence at most. The guilt of feeling like I destroyed my dad’s life was significant.
The court process left me physically and emotionally drained. I got through the rest of my year at university, then I had a breakdown. My mental health plummeted, and I was physically ill and exhausted. It took me over a year to fully recover.
I was the victim in this case, but the justice system left me feeling like I was being punished.
This is not a unique experience.
It is vital to note that the flaws are systemic to the whole justice system. The police, the CPS, courts: are all failing both victims and defendants, through delays, mistakes and the lack of prosecutions. They disrupt people’s lives and offer little support or compensation for when they get it wrong (something that has become increasingly common). The justice system is in dire need of more funding. Reinstating legal aid, funding support services for victims, decreasing the backlog in the courts: these all need to happen urgently. Furthermore, as suggested by Dame Vera Baird, a “victim’s law” should be implemented to give victims of crimes statutory rights to ensure they are treated well by the police and courts.
Chances are, if you ever have to have to have first-hand experience with the criminal justice system -- whether as a victim of crime, or a defendant -- it will be one of the toughest times in your life. The job of the criminal justice system is to provide justice and mercy and, above all else, to uphold basic principles in our society through the rule of law.
As it currently stands, the criminal justice system is not fit for purpose. It is failing defendants, barristers and victims. This is not the fault of coronavirus. The pandemic only widened decades-long cracks in the system. But it has left the system more desperate than ever.