Letters roundup - 3 February 2020

Justice is criminally unbalanced

We now hear that the Crown Prosecution Service, having had its bonanza of an extra £85m last year, is embarking on a campaign to recruit 390 new prosecutors. This campaign seems to be an aggressive one and is targeting solicitors by the use of headhunters using profiles on LinkedIn.

Those practising in criminal defence are on the whole an aging population. We have many areas where the duty solicitor scheme is teetering on the point of collapse. In some areas it has collapsed. The Law Society ‘heat map’ clearly demonstrates this.

So where are the new Crown prosecutors to be found? The CPS will doubtless be hoping to recruit from the criminal defence community or from HM Courts & Tribunals Service – areas which are severely stretched at the present time.

The effect this will have on the justice system is likely to create a significant imbalance. Those in the defence community have seen little or no rises in remuneration since the implementation of the 2006 Carter proposals. We have seen young solicitors leave the criminal defence sector in droves. In my practice I have recently experienced the loss of two younger members of staff who feel the government does not value the work they do.

Government needs to wake up and understand that this imbalance cannot and must not continue. There needs to be a radical overhaul and improvement to remuneration for criminal defence solicitors. If there is an imbalance in the criminal justice system it has an impact on the rule of law and upon the fairness of the trial process. The British justice process is in the public eye, and in the eye of those who visit this country with their legal issues because they feel we have a fair and just system of law. If our criminal justice system ceases to be fair and creates an imbalance, then we can expect those from overseas to notice this and begin to question whether the English justice system is one where they want their disputes, be they civil or whatever, dealt with. 

There are countries such as Singapore waiting to step into the breach and take on the civil and mediation work that flows into the City and which is worth billions of pounds. If we start to lose that work because of the perceived unfairness of our judicial system it will have a drastic effect upon the economy.

I therefore hope that politicians will take heed. Historically, criminal defence practitioners have been asked to do more and more for less and less. This cannot and must not continue. While in some respects I am pleased to see that the CPS can now recruit more staff, alongside this needs to come an acknowledgment from central government that there has to be a balancing exercise that will benefit those doing criminal defence work.

I hope that the Criminal Legal Aid Review will come forward with some positive proposals which are acted upon. My fear is that if we continue as we are, the public will be very poorly served (if at all) when it comes to needing criminal defence solicitors.

My second point is that without a thriving criminal defence sector, be it at the bar or with solicitors, where are future judges going to come from? This is not the time for government to fiddle while Rome burns, but it is time to try to ensure that some balance is put back into the system.

Ian Kelcey

Senior partner and head of crime, Kelcey & Hall, Bristol

Playing politics with the judiciary

Gazette editor Paul Rogerson rightly writes of ‘the very obvious threat to the independence of the judiciary’ in his 13 January leader.

It can be striking where such contrasting stances (p13 of the same issue) on this vital issue are taken by two senior figures well known to me, Sir Geoffrey Bindman and His Honour Judge Nicholas Webb.

Geoffrey (in my view rightly) shares the trepidation of so many of us over the clear political ambition to neuter our most senior judiciary in the aftermath of the principled, unanimous and widely commended ‘prorogation’ ruling. That was not the first occasion when the government of the day, for its own dubious and factional reasons, had sought to circumvent the rule of law and due process. 

By contrast, Webb calls for all judicial candidates to have come up through the ranks of barrister or solicitor-advocacy, so by definition disqualifying some candidates of inherent and exceptional merit, such as Baroness Hale. I am against him in that,and maintain that calibre and unwavering independence of action can scarcely only be the province of practitioners.

As to the notion of ‘core’ rather than ‘politicised’ degree subjects, it is government attempts to frustrate the proper exercise of judicial discretion which ‘politicise’ the process. Artificial attempts to restrict categories of legal study are misguided. 

Malcolm Fowler

Solicitor and higher-court advocate (retired), Kings Heath, Birmingham

Mediation pitfall

Your 27 January cover story promoting the benefits of mediation in family matters fails to point out the severe detriment that mediation can pose for victims of domestic violence and their children. 

Official figures show an estimated 2m adults aged 16-59 experienced domestic abuse in 2017/18. Women were around twice as likely to have experienced domestic abuse as men. These estimates do not take into account the context and impact of the abusive behaviours experienced. Research suggests that when coercive and controlling behaviour is taken into account, the differences between the experiences of male and female victims become more apparent. 

In 2018, there were 90,871 divorces of opposite-sex couples in England and Wales, most petitioned by women with the most frequent ground ‘unreasonable behaviour’ – the ground under which domestic violence and abuse falls.

A mediator has a professional duty to evaluate the appropriateness of mediation, taking into account factors such as domestic violence and child abuse. The article however quotes one practitioner as saying: ‘Self-evidently, resolving family and matrimonial issues by agreement…will always (my emphasis) be beneficial for a couple or for any children they may have’.  This is manifestly untrue and dangerous in setting a presumption for petitioners for whom mediation is an inappropriate avenue. Domestic violence and mental health experts advocate against mediation owing to the potential for ongoing abuse and manipulation through this process.  Bringing couples together for mediation can lead to disastrous consequences. 

Solicitor and abuse survivor 

Name and address supplied