YLAL London Minutes - 10.01.2017

On Wednesday 10 January 2017, Young Legal Aid Lawyers (YLAL) hosted Penelope Gibbs, director of Transform Justice and Claire Dissington, head of the youth department at Edward Fail Bradshaw and Waterson, to discuss the topic 'What Price Criminal Justice: Is Austerity Causing Miscarriages of Justice?'

A shorter summary of this meeting was published on The Justice Gap here. YLAL is grateful to Katie McFadden for preparing this detailed summary and the shorter article for The Justice Gap.

The topic of miscarriages of justice has been publicised recently in the high profile cases of Liam Allan and Issac Itiary. In these cases, failures to disclose key evidence held by the police very nearly resulted in miscarriages of justice which would have changed the lives of Allan and Itiary more than their experience of the criminal justice system already inevitably has. Following the publicity surrounding these cases, the CPS has announced that it will review all pending rape prosecutions. Disclosure failures are not an uncommon occurrence: in July 2017, an investigation found widespread failures in criminal evidence disclosure, with disclosure schedules found to be “wholly inadequate” in almost a quarter of cases.

The issues surrounding disclosure have been linked to austerity and whether budget cuts - to police forces, the Crown Prosecution Service and legal aid for defence lawyers - have negatively impacted upon the safety of convictions.

Gibbs and Dissington tackled the issue of austerity and miscarriages of justice, discussing a wide range of specific issues: from disclosure to unrepresented defendants, from digital court reform to appeals; in addition to the general impact of austerity upon peoples’ lives and how this may lead to increased involvement in the criminal justice system.

Gibbs explained that, unlike other departments such as health, the Ministry of Justice is an unprotected department. As the government’s austerity project was implemented, this therefore resulted in savage cuts - if government plans go ahead, there will have been a 40% cut in real terms between 2011 and 2020.

However, Gibbs noted that there is still money in the system - it is just being directed away from legal aid and courts budgets and towards other areas. For example, the digital courts reform project has been a key area on which the government has been willing to spend, including spending £30 million to Price Waterhouse Cooper for management consultant services for the project. She recommended that we must bear this in mind: there is money, but the government is making the decision to spend it in different places.

Gibbs moved on to discuss three key areas in which her concerns regarding austerity leading to miscarriages of justice has arisen: unrepresented defendants, digital court reform, and appeals.

Gibbs stated that there tends to be media focus upon individuals who are unrepresented in civil courts - for example, in family proceedings - however, the plight of unrepresented defendants in criminal courts is less publicised. At least 30% of defendants in the magistrates’ courts appear unrepresented. One of the main contributors to this occurrence is the introduction of an income threshold for legal aid purposes in magistrates’ and Crown courts in 2006 and 2010, respectively. An additional change is that legal aid is now only available for certain cases in the magistrates’ court.

These changes have led to some individuals having no right to legal aid, even where they are at risk of imprisonment. Research shows that unrepresented defendants achieve worse outcomes than their represented counterparts - they often plead guilty when a lawyer would have advised them of a viable defence; or they plead not guilty when the evidence against them is very strong (and are therefore likely to receive a stricter sentence if convicted). 

Gibbs explained the impact throughout the trial process: as the matter proceeds, the disadvantage to unrepresented defendants just increases - they don’t know what witnesses to call, how to cross examine witnesses; they don’t even know what disclosure is, never mind what their disclosure rights are. This applies throughout the trial process and up to sentencing - unrepresented defendants do not know how to mitigate their sentences and therefore end up with a harsher sentence than they would have otherwise been given.

Gibbs moved on to discuss the impact of digital court reform - particularly the use of videolinks and online courts - on the potential for miscarriages of justice. Gibbs’ concern is that this will increase miscarriages as there is significantly less contact between the individual and their advocate. The opportunity for the legal representative to take full instructions from their client is limited: with 15 minutes generally allocated, although delays often result in significantly less time being available.

Gibbs noted how these changes impact vulnerable people the most - lots of people find it very difficult to communicate properly via videolink. This generally results in two reactions: either defendants completely disengage from the process, or they react badly - shouting, and walking out - as they are frustrated by the difficulties in communication.

A study by the Ministry of Justice in 2010 trialled the use of video-links from police stations to court rooms, for first appearances. As this was a pilot project, legal aid was granted to all defendants involved, regardless of their means. Nevertheless, of those who appeared via video-link, 45% were unrepresented for their first appearance. This study also found that a defendant appearing via video-link is more likely to enter a guilty plea, and is more likely to get a prison sentence than a person who appears in person.

The government has been promoting digitalisation in a wide-reaching manner. The proposed Courts Bill, which has since been scrapped, contained a provision for ‘mobile-pleas’ which would have allowed those charged with a crime – including children from the age of 10 - to enter a guilty or a non-guilty plea on their mobile phones. Gibbs speculated that these moves appear indicative of the government moving towards the removal of plea hearings entirely.

The final topic discussed by Gibbs in detail was the appeals system. She advocated for a proper appeals system which ensures that individuals can properly access their rights to challenge unfair convictions or excessive sentences. She spoke specifically about appeals from the magistrates’ to the Crown Court, where there is an automatic right of appeal, and how although appeals against conviction have remained relatively stable, appeals against sentence have decreased significantly. One contributory factor to this decrease may be that, on appeal, a sentence can be increased, and a defendant may be ordered to pay costs if they are not successful.

Gibbs concluded that austerity is a complicated matter, but definitely has an effect upon miscarriages of justice. Amongst issues such as the low salaries of legal aid lawyers, there are many other examples of where cuts are occurring, which are creating a system in which miscarriages of justice happen with increasing frequency.

Dissington took a broad approach to the ways in which austerity can cause miscarriages of justice. She highlighted the fact that austerity has caused police stations to shut down, cuts in the CPS budget, the move towards digital court systems, cuts to probation services, the dire state of prisons, and defendants who are denied legal aid.

She moved on to speak passionately about how austerity impacts on society as a whole, thereby increasing peoples’ involvement in the criminal justice system. For example, austerity has affected the NHS, welfare benefits, schools and social services. These cuts have impacted upon the whole of society, causing increased rate of poverty. Poverty leads to crime. Therefore, austerity has led to increased involvement in the criminal justice system.

For example, cuts to school budgets leave teachers more overworked and therefore less capable of dealing with children who present more of a challenge - for example, those with undiagnosed learning difficulties. As the teacher is unable to dedicate the necessary time to properly support the child, the child is more likely to be excluded, thereby leaving the child with even less support and intervention. An exclusion on a child’s record makes them less likely to get into a different school and their education suffers as a result. A cycle of poverty and poor education means that this child is more likely to become involved in the criminal justice system.

Dissington focussed upon the impact which recent changes to the justice system have had on the daily lives of criminal defence lawyers. She explained how she is expected, on a daily basis, to provide clients with advice on what they should say and how they should plead on their first days in court, without having received proper disclosure - this can be as little as a short summary of the Crown’s case, drafted by police, which is included in the initial disclosure.

She spoke of how she specialises in representing youth defendants and a lot of her work is regarding sex offences – for example, two underage young people having consensual sex - and how children are frequently kept on bail for years, until the charges are eventually dropped. If children are detained, they are sent to detention and training centres. Dissington queried the efficacy of these centres, raising concerns at the lack of training provided, citing a recent inspection of these centres, which found that not a single youth establishment inspected was found to be a safe establishment.

Dissington moved on to discuss other issues in the criminal justice system - the means test for legal aid eligibility, the current state of the law of joint enterprise, the use of criminal behaviour orders; and how removing these would lead to a fairer justice system. She also discussed institutional issues, such as the racist prejudice inherent within the current system - for example, in stop and search, as highlighted by the Lammy Review.

On disclosure issues, in addition to concerns about the amount of information disclosed prior to an individual being expected to enter a plea, Dissington stated that the required safeguards are already in place - the prosecution are required to disclose all evidence which undermines the prosecution case or supports the defence case. In order to prevent miscarriages of justice, the rules need to be properly followed, which – clearly – they currently are not.

Dissington raised concerns about the future of the criminal justice system. She asserted that, even if it was properly funded, these issues would not go away, as they have now become inherent aspects of our justice system.

Dissington spoke of how when a child is arrested, they face the full force of the state against them. She asserted that a miscarriage of justice occurs every time a child or a vulnerable person is locked up. Austerity destroys people’s lives. The pressures of austerity lead to further crime: more people both perpetrating and being the victims of crime.