I was at a conference held by the University of York on ‘Imagining the Impossible’ recently when someone in the audience asked how long it would be before the criminal justice system broke down (assuming it hadn’t already).
They were referring to newspaper reports of jury nobbling and witness intimidation, but what about the broader picture? I know it is easy to think it never rained during one’s childhood holidays, but there have been changes in the criminal justice system which have not been for the better.
As to the questions about jury nobbling and witness intimidation, the shorter the trial and the quicker it comes on, the less opportunity there is. That is self-evident. There is also the problem that witnesses get fed up with going to court and being sent away for another day, and that their recollections will dim as time passes. There is something to be said for the ‘empty chair’ hearings in some US states when, if the defendant doesn’t turn up for no good reason, the case goes on without them.
Are the best people being appointed as judges or are we in thrall to diversity? Then there’s the decline in legal aid; the bar has changed its cab-rank rule so that defendants in serious cases go unrepresented if barristers are not paid enough. The quality of representation will suffer in both the short- and long-term if advocates do not get a serious grounding in the lower courts.
Courts are closing and fewer solicitors are undertaking legal aid work, meaning that defendants have to travel far and wide to see a solicitor, let alone attend court.
Then there’s advance disclosure. With the rise first of the photocopier and now electronic devices, the mass of evidence to be turned over to the defence is overwhelming.
And what about no one being sent to prison for less than 12 months? Isn’t that an incentive to commit offences?
All this adds up to another Royal Commission. Nothing will come out of it but it should appeal to the government. Ministers can then say for the next few years: ‘This is something the RC is considering.’
James Morton is a writer and former criminal defence solicitor