What is happening to our justice system? Every one of us, I’m sure, would agree that a court appearance for young children who are making allegations of sexual abuse is already extremely traumatic. It doesn’t need to be made any more so by the judicial process – yet that is exactly what is going on.
Last week a barrister of many years call described to me how just such a case of hers, involving children under ten, was recently postponed for the second time, this time just one day before the trial. I am withholding her identity in order to protect the children’s chances of getting a fair hearing on the third attempt.
The prospect of the trial had loomed large over them for two years, ever since the defendant’s arrest – one confessed to frequent nightmares about both the court and the defendant – and they were now desperate to get it over with. Twice, they had mustered their courage to appear, as the adults around them sought to calm their nerves, only for it to be suddenly called off.
Their barrister did not mince her words. She called it “a disgrace”. She did not blame the courts – since the trial gave way for equally serious and traumatic cases – but the fact that the Ministry of Justice kept cutting court staff, sitting days and judges. She herself had lost more than a week of diary time when the case was due to be heard, for which she would be paid nothing, but that was not the main source of her concern.
Fixtures, particularly those involving vulnerable witnesses, used to be “set in stone”, she said. But she had noticed a real change in the last 18 months: “where once fixtures were dependable, now they are simply not.” She told of another recent case of hers in which a trial involving a five-year-old alleged rape victim was pulled the day before it was due because no judge was available to hear it.
The barrister said: “I am ashamed of the state of our criminal justice system and the way it is racing to the bottom … I find it hard to look alleged victims and witnesses and defendants in the face when they ask me when trials will take place.”
I know a few criminal barristers, and they seem to me to be a pretty robust and pragmatic bunch. In the course of their prosecution or defence work they are regularly exposed to a side of life that many of us would find deeply shocking and disturbing, particularly cases involving rape or abuse. They are far from immune to such emotional responses, but they have to behave professionally, get on with the job, and attempt to be part of the machinery that delivers justice.
The vast majority care instinctively about access to justice for individuals who are in the most extreme circumstances: otherwise, as they are keenly aware, they could be earning far more money at the commercial bar.
Yet Chris Grayling, the Justice Secretary, has pressed ahead with plans to reduce substantially their fees, which have already been steadily cut since 1997. Any attempt at negotiation by the Criminal Bar Association has fallen on largely stony ground.
This isn’t a Left or Right wing issue. Criminal barristers are wide-ranging in their political views, but have never before found themselves – as they are now – united in such vociferous common opposition to government policy. Nor is the argument simply about fees, although many criminal barristers find it galling to be lectured on their shrinking earnings by Mr Grayling, who – unlike any member of the criminal bar – is on a hefty ministerial salary inclusive of full pension, sick pay, holiday and generous remuneration of expenses (which, as the 2009 expenses scandal demonstrated, he has not been remiss in claiming to the maximum).
Fees are certainly important, if their dramatic reduction means that able juniors – and others further up the profession – can no longer see any viable future at the criminal bar and simply leave, as many are now doing. But when such barristers also say they are fundamentally outraged and frightened for the wider future of justice in this country, and speak of being “ashamed” at the way the individuals within it are being treated, I’m inclined to believe them.
Mr Grayling appears to be engaged – against all common sense – in what has the trappings of a feverish ideological dispute with the Criminal Bar. The trouble is that I can’t quite say what his ideology is, beyond the energetic propagation of questionable statistics that result in crude and inaccurate headlines about “fat-cat barristers,” whereby a handful of high-earners are perpetually recycled to represent the profession as a whole.
Meanwhile, he is presiding over a landscape of intensifying judicial chaos which gives every promise of delivering an appalling set of false economies. The ultimate cost will not only be financial, but human, as the public loses confidence in the efficient and fair running of our justice system.
The courts themselves are increasingly pruned and overstretched, with fewer judges available to hear cases. The slashing of legal aid in cases heard in the family courts has resulted in an explosion of “litigants in person” attempting to argue complex points within a system they don’t fully understand – an outcome fully predicted by the judges’ council in 2011 – and costing ever more expensive court time.
Efficiency in the court system is fraying or – in some places – disintegrating: for continuing evidence from those who are directly immersed in it, just take a look at #MoJWaste on Twitter or the grim detail of the Court Delays website. Interpreters (outsourced to Capita) frequently can’t be found or don’t show up; defendants are late arriving at court from custody (outsourced to G4S, the company which recently admitted charging the taxpayer many millions for electronic tags which it never actually fitted). Meanwhile, everyone else hangs about, wasting time and money, while witnesses get jittery and faith in the judicial system ebbs away.
The criminal bar is taking direct action again today, and withdrawing from courts for a full working day (following their half-day walkout in January). They have also, for the first time in their history, announced a policy of not accepting “returns” – the cases which other barristers prove unable to do – a scheme which has long kept the system running by means of cooperation and goodwill. Criminal barristers are saying that they have to “protect justice from the state” and that the walkout is the only means at their disposal. They have reached the paradoxical point of desperation at which the only way they feel they can protect the justice system is to reveal what happens to it when they down tools.
How on earth have we reached this pass, where the representatives of justice and the state are in open opposition? Mr Grayling now appears inextricable from the complex disaster he has so energetically created. I wonder when Mr Cameron, so long aloof from the nitty-gritty of this argument, will realise that it is heading uncomfortably close to him, too.