A thousand years of legal and constitutional history is soon to be thrown away by the present Lord Chancellor as a by-product of his attack upon legal aid (Mr Grayling is a Lord Chancellor without any legal background).
The jury trial, has its origin in Anglo-Saxon times, and became an explicit right in one of the most influential clauses of Magna Carta, (Article 39). It was upheld as pre-eminent over the Government’s authoritarian interference with justice when the Crowns Star Chamber was abolished with an Act of Parliament, the Habeas Corpus Act 1640.
That Act provided:
‘WHEREAS by the great charter many times confirmed in parliament, it is enacted, That no freeman shall be taken or imprisoned, or disseised of his freehold or liberties, or free customs, or be outlawed or exiled or otherwise destroyed, and that the King will not pass upon him, or condemn him; but by lawful judgment of his peers, or by the law of the land.’
The proposed cuts to legal aid are so severe that they are unsustainable as the already hard pressed legal profession has made crystal clear through the unprecedented 18,000 responses to two MOJ consultations and as confirmed by the independent objective evidence which the Government itself commissioned but chooses to ignore despite its promise that the final decision would be ‘evidenced based’ – see HERE, especially the Otterburn and KMPG reports.
Legal aid practitioners are at breaking point and these cuts will break our entire system. The process of destruction has already begun. Here is what the impeccably constitutionally non-political Lord Chief Justice Lord Thomas of Cwmgiedd has said:
‘[It] was no good venerating old glories the country was no longer prepared to fund. Jury trials might have to be restricted to more serious offences than now. Even the traditional adversarial system, where each side’s arguments are tested to destruction by the other, might have to be suspended in important areas of law’.
In my view, Lord Thomas is neither speaking for or against replacing our internationally admired jury system with a continental inquisitorial system. He is simply stating the obvious. If the country will not allow access to independent defence lawyers by funding it, our international treaty obligations to the right to a fair trial will have to be achieved by another route which will ultimately lead to the complete professionalisation of justice by removing it from the people whether as Juries or as lay magistrates.
Of course, the slippery slope once embraced will end in total abolition of all jury trials. In truth the reason why lawyers are essential to our legal system is that (partly due to the complexities of modern life and parliamentary legislation) people are in need of professional guidance if embroiled in criminal accusations and proceedings. That is why legal aid was brought in by a generation of cross party politicians despite the financial sacrifices involved in recovering from the Second World War. Compare and contrast the present generation of politicians many of whom remain silent whilst our ancient liberties are thus dismantled.
Juries do not have a place in the foreign style inquisitorial system to any serious extent which is what was behind the Lord Chief Justices remarks. The British people love the democratic tradition of our Jury system and will be deeply suspicious of the professionalisation of the investigation and judgment of fact previously the domain of the jury by handing this entirely over to a Judge alone and the civil service.
Apart from the anti-democratic impact of removing justice from the people it will, without question, cost the country far more when we spend greater amounts on professional judges and their teams of back office civil servants doing the job of defence lawyers as legal aid collapses. UK expenditure on running the courts and on public prosecution in England and Wales is presently comparatively low, contrary to Government disinformation.
This is demonstrated in table 7.2 reproduced below, based on European Commission data. Look at how little we spend per capita on courts in our system as it heavily relies in the UK upon juries and lay Magistrates rather than the continental way of paying for professionals to judge fact. Plus a new inquisitorial system will have to be built from scratch with huge training and recruitment costs. Vast amounts of new Judges and their civil servants do not grow on trees.
The accusation made above of ‘Government disinformation’ is supported by evidence to the House of Commons Justice Committee back in 2011 which, based on European Commission data, suggested that “when the costs of courts, public prosecution services and legal aid are combined, the budget in England and Wales as a percentage of the GDP per capita is equal to the average.” We are 13th in Europe in terms of our expenditure.
The ‘spend’ has fallen even more since this recent report. The Justice Secretary’s civil servants know this and have confirmed as much. Look at the graph at the end of this article as to how we compare.
And here is the point. Professor Bowles told the House of Commons’ Justice Committee that “dramatic” changes would be required to bring about significant savings. Indeed his report concluded that: “[a] major overhaul of criminal law in England and Wales, including changes in the role of judges and legal representatives, would be needed” and “the investment costs of such reform would be huge.” (Ministry of Justice, International comparison of publicly funded legal services and justice systems, p32)/
So we lose our Jury system through lack of funding of legal aid and adopt an alien system of professionalised justice with the likelihood not only of massive disruption but also suffer a vast immediate increase in cost to the country through this imposition of a new system of justice.
But it is not only in the courts where the public will be abandoned by lawyers. The proposals reduce the number of police station duty firms to a handful in each county paying them a miniscule fixed fee (in Swale, Kent for example the cut is an astonishing 42%.) amounting to £22 per hour or less in real terms given the distances and time taken per case.
Firms of solicitors cannot afford to sustain this. Who could? Which plumber or electrician do you know who would do this level of remuneration? Without us who instructs barristers also suffering more cuts to the point when many are leaving legal aid work now?
Why do politicians and some sections of the media ignore the obvious mismatch between what they say about police abuses in the tragic Lawrence, Hillsborough, Birmingham six and Guildford four cases (and many other routine but shocking false confession criminal cases such as the Maxwell Confait and Stefan Kiszko cases) and even the way the police treated a cabinet minister Mr Andrew Mitchell, with how the Government is presently engaged in systematic dismantling of the very mechanism set up to protect the public from police abuse?
Why attack legal aid lawyers, the ‘watchers on the wall ‘and the guardians against police abuse? The cuts will cripple their ability to hold the police and Crown to account under the safeguards set up by the Police and Criminal Evidence Act 1984 which enabled the public to have access to legal advice when in police custody. Most people are not charged after arrest and many who are charged are then found not guilty mainly through the help of solicitors so this is an issue which potentially affects us all or our families and friends.
What would the post war generation of politicians say to the current generation if they had the opportunity to speak about the destruction of the jury system? What does the generation of politicians who introduced protections against police abuse in police stations say about the dismantling of the professions ability to provide this after these cuts?
Why are this generation of politicians sleeping whilst our British system of justice is taken from us? Will the British people forgive them for replacing it with an alien and more expensive system? With only a few honourable politicians bold enough to speak out, this is a terrible defeat for our country without a shot being fired or hardly a voiced raise in Parliament.
Is this the country we have become? A country where we lose our ability to stand up to state power and surrender our freedoms and rights not with a bang but with a whimper? The fight for legal aid is a moral fight about what sort of country we will become and how we will be regarded internationally. Will we be a nation where arbitrary state and police power is held partially in check only by a Government paid Judiciary or by a determined vibrantly independent legal profession appealing to the common sense and decency of a jury? The jury system depends upon expert legal advocates for both the Crown and defence help the jury decide upon the verdict according to the evidence. That is why the attack on legal aid is an attack on our jury system. It is also about our way of life.
Robin is a member of Robin Murray and Co and former vice chair of the Criminal Law Solicitors Association. He was a joint winner of the 2015 Legal Aid Lawyer of the Year Award for fighting the legal aid cuts