Rabbit in the headlights
‘Some of them just sit there like a rabbit in the headlights and haven’t got a clue what’s going on,’ said one judge in hitherto concealed research into the plight of unrepresented lawyers in the magistrates’ court. The MoJ had apparently buried a 36-page report containing ‘explosive testimony’ from judges and prosecutors about the impact on the justice system of the rising number of people defending criminal charges without a lawyer, BuzzFeed’s Emily Dugan reported.
The report was leaked to the news site which had previously applied under Freedom of Information laws for its release last April only to be turned down by the MoJ. It then appealed and the Information Commissioner ruled that it should be released. It’s well worth reading the exchange Dugan had with the MoJ press officer insisting no such report existed. ‘The report sent was the one requested and it is in its entirety. There are no summaries nor are there any transcripts in the review,’ spokesman emailed.
The unpublished research says that not having a lawyer may create more hearings. ‘Quoting 2014 data, it points out that while 17% of defendants with no lawyer had two or fewer hearings, compared to 30% of those represented in court,’ Dugan wrote. ‘In analysis absent from the original summary, it says: “This suggests that legal representation may affect the number of hearings.”’
Something has gone very wrong
‘You might not care about striking lawyers – but you should,’ began Gaby Hinsliff writing for the Guardian. The article referenced the Buzzfeed article above. As well as a story in the Law Society’s Gazette about a family court case in Middlesbrough involving a father accused of raping his ex-wife and assaulting her son from a previous relationship. Apparently, neither parent was granted legal aid but neither could afford their own lawyer ‘so the judge ended up attempting to cross-examine them himself while court officials compiled makeshift bundles of evidence’.
Hinsliff wrote: ‘When the distressed mother said she simply couldn’t face going through it all again, the judge ended up finding most of her allegations unproven while noting in his judgment: “I am in little doubt that had one or both of these parents been represented, the fact-finding process and probably the outcome would have been very different.”’ It was ‘on these impossibly shifting sands’ that rested a decision about whether the father should see their daughter. ‘Yet all this has barely registered in the public consciousness, even though things are only likely to get worse later this month, when barristers are being urged to up the ante by instigating a policy of “no returns”,’ she said.
Something, in short, has gone very wrong. But it’s gone wrong in a part of the public sector that, unlike schools or hospitals, we don’t normally regard as public, that doesn’t tug at the heartstrings, that for most of us remains completely invisible – all of which encourages ministers to think they can ride this one out. Few strikes are solved by giving one side everything it wants. But even fewer are solved by hoping nobody notices
Aspiring barristers from a black and minority ethnic background were ‘still half as likely to obtain pupillage’ than those who don’t identify as BAME, reported the Law Society’s Gazette (here). According to new stats, 23% of BAME graduates on the Bar Professional Training Course obtained pupillage – a year-on-year increase of around 2.5 percentage points. However, the number was ‘still low when compared with white UK/EU domiciled BPTC graduates, of which 49.5% gained pupillage’.
Rogue immigration solicitors were ‘exploiting vulnerable migrants by charging thousands of pounds for legal representation’, the High Court has ruled – as reported by the Independent. A ruling found solicitors were instructing ‘paralegals and unqualified people to draft applications which fall “well below acceptable standards” and which judges must reject as “unarguable and totally without merit”.’
‘There’s a big problem with private solicitors charging a lot and then not delivering,’ said Pierre Makhlouf, assistant director at Bail for Immigration Detainees. ‘It’s not like you can start again, unless you’ve got a fresh claim and new issues, you’ve been shafted. You’re a failed asylum seeker. It’s a massive problem..
Guilty until proven innocent
So, here’s a question, I posed in the Times’ Brief: which part of our creaking, cash-strapped justice system has the suffered the deepest cut? The answer was ‘the tiny state-funded watchdog that was set up 20 years ago as the vital safety net mechanism in the wake of scandals such as the Birmingham Six and Guildford 4’.
‘The Criminal Cases Review Commission, massively oversubscribed and hopelessly underfunded, is just one more symptom of a failing criminal justice system,’ I wrote. ‘Last year the CCRC managed to refer just 12 cases, barely scraping into double figures. Typically, the Commission receives 1,500 applications a year but refers 30 cases back every year which, given an 86,000 plus prison population and the crisis engulfing our courts, seems a strikingly low figure.’
If #TheLawIsBroken, when are we going to start talking about miscarriages of justice? I asked.
I had a book out this week: Guilty Until Proven Innocent: The crisis in our justice system published by Biteback Publishing. The Guardian’s Owen Bowcott referenced it an article on a Supreme Court hearing which this week looked at compensation for miscarriages of justice in the cases of Sam Hallam and Victor Nealon. ‘When a conviction is quashed, the court of appeal does not reinstate the presumption of innocence,’ I said. ‘There is less state support for the victims of miscarriages of justice than for other prisoners.’
A miscarriage of justice is not a one-off event. The correct analogy is not so much a car crash but a serial motorway pile-up. First they are failed by the criminal justice system …. Then they are failed by the penal system. Finally, if their conviction is overturned then, like Sam Hallam, they are undoubtedly innocent – and yet not innocent enough.
I later wrote an opinion article about the case for the Guardian. ‘It is not just about compensation or reversing a mean-spirited piece of legislation,’ I said. ‘It goes to the heart of the integrity of our justice system, its reluctance to acknowledge its fallibility – and its failure to deal with the victims of miscarriages of justice fairly and humanely.’
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