JusticeWatch: The morning after the night before

The morning after the night before
‘With a sizeable majority secured, the eyes of the legal profession now turn to Boris Johnson and his government and how they intend to run the justice system,’ began an article this morning by John Hyde in the Law Society’s Gazette.

Chancery Lane said that ‘repairing the system and championing the rule of law should be priorities of the new administration, alongside negotiating a future trade deal with the European Union’.

‘Years of underfunding have led to crumbling courts, a crisis in criminal justice and growing numbers of vulnerable people refused legal aid and unable to enforce their rights.’
David Greene, Law Society’s vice president

‘There is no option left for any government but to invest properly and substantially in the criminal justice system from end to end,’ said Criminal Bar Association chair Caroline Goodwin QC. ‘To do anything less would be criminally reckless with all our lives – rich or poor, state or private, we are all in this together.’

Why lawyers are complicit in an unjust system
Writing for the Justice Gap yesterday, barrister Aarif Abraham makes the case for a radical defence of the justice system, fully funded and free at the point of delivery to those who need it.

The Law Society and Bar Council had suggested reforms to give people meaningful access to the justice system. ‘More radical action, however, is likely required and short of the prohibition of ‘bringing the profession into disrepute’ (though the government appears to have achieved that single-handedly) barristers and solicitors are not short of creative options,’ he argued; listing the following:

  • papers and submissions for court can be discreetly marked on their face as part unpaid (#PartlyUnremunerated #FullyUnremunerated);
  • a simple register (on Twitter or another platform) can keep a log of solicitors/barristers’ unremunerated work with a yearly IOU or bad-debt sheet sent to the Government for each hour that went unremunerated or under-remunerated against a reasonable, hourly benchmark-fee (#FairFeeJustice #PayforJustice);
  • lawyers can resist engagement, on a reasoned, transparent and articulated basis, with any further ‘modernisation’ reforms (such as online courts or flexible court opening hours) until the most serious/pressing modernisation occurs, namely – respect for basic access to justice, fair pay for fair work, and government adherence to international norms respecting the right to an effective remedy and fair trial;
  • mobilising, galvanising and organising to show the collective commitment by the entire legal profession to fairly remunerate publicly funded work – dozens of politicians signed up for #TakeYourMPToWork, a campaign that sees MPs visit law centres, courts and firms to learn about the justice system at the coalface – but return of briefs and sustained industrial action cannot be ruled out where a client’s urgent and immediate interests are adequately protected. Deferring action because of small government concessions is not sustainable – coordinated action today will ensure concerted and consistent responses tomorrow.

Lawyers ‘at a macro level’ could be criticised for ‘helping perpetuate an unfair and unjust system yet why they do so is plainly obvious,’ Abraham argued. Without representation, a person in need was ‘simply unable to represent their own best interests in a complicated/specialised court system with complex and intricate laws, rules, and procedures’. He continued: ‘Publicly funded, or more accurately, public interest lawyers do what they do because it makes a massive difference in an individual case – it should not but it does in our unequal, unfair and unjust society. It behoves us to think what would happen if they stopped.’

‘I am reminded of an old Eastern proverb that ‘the law is a fortress on a hill that armies cannot take nor floods wash away.’ It is undeniable that we ourselves are the masters of our own fate; no external agency (the EU, Council of Europe, UN, or anyone else) can deprive us of our commitment to ourselves whether they relate to rights or obligations. We alone are responsible for when the rule of law breaks down but just the same, the law will not be justice until we make it so.’
Aarif Abraham

Friends like these
McKenzie friends were ‘providing “worrying” advice’ which was ‘biased against courts and solicitors’, a university study has found (as reported in the Law Society’s Gazette).

The study, conducted by Dr Tatiana Tkacukova and Professor Hilary Sommerlad, looked at online advice provided on 170 Facebook threads by 30 McKenzie friends and found that online advisers ‘often delivered biased suggestions reflecting personal anti-court and anti-social services views’.

According to the report, McKenzie friends described family courts as ‘gender-biased’ and a ‘disgrace’ and, of all the material analysed, only one positive description of a judge was found.

In her inaugural speech as Bar Council chair, Amanda Pinto said she was ‘very concerned’ by the rising number of paid McKenzie friends who are ‘unregulated, untrained and yet demand money for their intervention – often from the most vulnerable litigants’.

Youth arrests
Data collected from Freedom of Information requests relating to more than 40 police forces showed 70,078 arrests of boys and girls aged 17 and under were made in 2018 (as reported on Children & Young People Now site).

‘This marked a decrease from almost 250,000 arrests made in 2010, according to the Howard League for Penal Reform, which conducted the research,’ the report continued. ‘Over the same period, the number of children in prison fell by 63 per cent, ‘it added.

The study found that the Metropolitan Police made 13,791 arrests of children in 2018, a 22 per cent reduction from 2017. Nearly a decade ago, figures for the Met were 70 per cent higher with more than 46,000 children arrested. Howard League chief executive Frances Crook, said thousands of children could now look forward to a ‘brighter future’ without their lives being blighted by police contact and a criminal record.

‘Police forces up and down the country have diverted resources to tackling serious crime instead of arresting naughty children. This will make communities safer, and the Howard League is proud to have played its part.’
Frances Crook

Judicial discrimination case
A district judge is suing the Ministry of Justice and two supervising judges for unconscious bias, harassment, victimisation, micro-aggression and discriminationafter a complaint was made against him by an appellant in one of his cases (also in the Law Society’s Gazette).

It was reported that Irwin Mitchell, representing Judge Nawal Kumrai, would argue at that the first-tier tribunal and district judge was treated unfairly by his supervising judges. It continued: ‘He became stressed and ill, and is now ‘at a real if not insurmountable, disadvantage in terms of seeking to progress his judicial career’. The firm says he was treated less favourably because of his race.’

About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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