The Criminal Justice System

Subject: The Criminal Justice System
Original: April 2020
Revised: June 2020
Author: Mark Collins
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The Secret Barrister has written extensively on this subject (The Secret Barrister: Stories of the Law and How It's Broken), revealing many of its limitations and shortcomings. He has identified numerous ways in which justice is not being given to many and countless people have experienced serious breaches of their human rights, simply due to the limitations of the whole system.

The limits arise from two main pressures: inadequate funding and archaic processes no longer fit for purpose. Austerity has severely reduced budgets for all aspects of the criminal justice system, from the police, to the courts, the probation system and prison service. Anyone who is a suspect, witness or victim of crime is poorly served as a result.

Many people are convicted when innocent and many guilty people go free. Too many people receive absurdly disproportionate sentences, either too harsh or too soft and many people involved are treated very badly as a consequence. Many processes are grossly inefficient and many simply do not work any longer.

How I Have Found It

In my own experience, court cases are often far longer and drawn out than necessary. I was a witness in a criminal prosecution of a financial crime, ie insider trading. I was only too aware that my evidence had little or nothing to do with the need to prove guilt and I was amazed that the case took 3 weeks in the crown court.

It also made me think in particular about how the jury would view the proceedings and how much they were able to follow what was going on and how much they could possibly be engaged in what was being said. In particular I kept thinking to myself when my evidence was heard on the first day, how it would have any relevance to the jury after 3 weeks of what must have been for them, interminable boredom. I could not believe the jury system could work at all.

In an insider trading case it seemed to me the case boiled down to one very simple issue: did the defendant communicate with his accomplice the ‘inside’ information. Almost everything else that was discussed was taken as read and as established fact that both sides would not repudiate. Why not start the case with a statement of fact? This would be a version of events as agreed by prosecution and defence and undisputed, so that the jury would understand what was established and what had to be shown in order to prove guilt in the case.

I was also very much concerned about the evidence. What sort of level of evidence would be needed to determine within reasonable doubt the guilt of the defendant. A lot was at stake: his liberty, his career and profession, and quite possibly his family and home, so it seemed to me that there should be a threshold that has to be reached before there was adequate evidence. This is not for the judgement of the jury as they cannot understand the relevance of evidence. For example, identification evidence is often proven by many studies to be unreliable, but juries are likely to see it as highly dependable and convincing as it is human. On the other hand, technical forensic evidence is often extremely compelling in reality, but because juries often have limited scientific knowledge and understanding the will dismiss it more readily.

Should there be someone in the court to direct the jury to understand the relevance of the evidence and to what extent it can be relied upon to prove anything one way or the other? In my experience, the case was decided on what I saw to be circumstantial evidence alone. Evidence that was entirely open to more than one explanation and none could be said to be proven above any other. Such situations where in reality the threshold for reasonable doubt has not in fact been met is all too common.

The other consequence of the protracted length of the case was that all the professional people involved were clearly stretching it out to increase their fees, which in the end were astronomic, because they were met by insurance. Just like the dentist who advises that tooth requires filling or the garage mechanic who insists the brakes need replacing.

Small Claims Court

My other court appearance was in the Small Claims Court. Plenty of information is available online regarding the workings of the court and it is clear the idea is to ensure:

  1. The process is kept simple such that it can be conducted by anyone without legal training;
  2. It should be cheap and straightforward to limit the costs to the parties as well as the state;
  3. The burden of evidence is lifted so there is more trust in the judgement of the court;
  4. It should aim to settle small claims fairly for the benefit of the parties, providing a course of action short of a full legal proceeding.

We made a claim against someone for recovery of monies owed. The case was quite simple and supported more than adequately with written evidence. The sum was less than £10,000, for which the online guidance tells us the case would be processed by documentation only. However, it became far more arcane.

We had a hearing in Cambridge, for which the other party failed to appear, followed by three more hearings, some distance away in Northampton. Each of these subsequent hearings was two hours or more.

The judge presiding over the first hearing in Cambridge would not permit me to speak for my son, despite the online rules making it clear that I should be permitted to do so. The judge in the further hearings in Northampton had no handle on the case whatsoever, failed to keep any sense of relevance to the evidence being presented and permitted the other party to ramble endlessly issuing insults, inexactitudes, hearsay, and pure character assassination of myself and my son, without any evidence and with no relevance to the case in hand.

Originally, we were the claimants, but throughout we were made to defend ourselves against this onslaught of abuse.

I dread to think the cost to the nation of these two cases alone. If only I thought the outcome was worth it.

The Criminal Justice System - update June 2020

As The Secret Barrister described in such eloquent terms in his book, the criminal justice system was already on its knees following the years of austerity. On top of this, the provisions for dealing with the coronavirus outbreak have significantly increased the pressures on the system, with delays in courts stretching into years. It is impossible to believe that justice can be delivered if all parties in any criminal case are forced to wait such protracted times and equally difficult to see how victims of criminal activity, especially sexual assaults, are likely to want to put themselves through such a torture with a uncertain outcome.

A massive upgrade to the system and radical reform is desperately needed if we are to have any hope of achieving any form of justice. With such scant regard for true justice, how can the State expect to uphold the law?

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