The Liam Allan case is the tip of the iceberg
In December 2017 there was a considerable outcry following the case of Liam Allan, a middle class white man studying criminology who had been charged with rape. Crucial material was not disclosed or properly reviewed by the police which totally undermined the case against the defendant and the case was dropped. The Director of Public Prosecutions apologised, an enquiry into disclosure is to follow, the police were slammed, and the issue was raised with the Prime Minister in the House of Commons. Even the Daily Mail got in on the act and other cases have also been dropped since.
Throughout all of this I have a felt a burning anger about the reaction – particularly that of the government. Of course, as most defence lawyers have pointed out the Allan case is the tip of the iceberg. Disclosure issues affect many criminal prosecutions throughout the country day in and day out. This has conveniently gone unnoticed until now by the mainstream media despite the frequent complaints by practitioners at all levels.
Senior police officers went on the radio following this case stating that it is fortunate that we have so many safeguards in place in what is the most robust justice system in the world, they described checks and balances, and the many safeguards in place.
However, is this really true? I will return to the disclosure issue later but let us properly review the state of the justice system under this government.
Most of the courts are in a terrible state. There are leaking roofs, defective heating, locked confidential consultation rooms where it is impossible to get access. There is a complete lack of catering, lavatories with no seats and tannoy systems which frequently break down.
Each year the liberty and reputation of hundreds of thousands of people is decided in court. Victims of crime have to relive the distress of what happened to them in these conditions. Witnesses often new to the justice system get an eye opening introduction to the criminal justice system. Defendants spend hours waiting for their case to be dealt with. Lawyers and court staff have to work in these conditions. The crumbling court estate is a true sign of the state of our justice system and where it figures in this government’s priorities.
Of course, it does not end there. Access to justice has been hugely restricted. Victims of domestic violence have had to face their aggressor in court without representation. Legal aid for housing cases has been hugely restricted. Those subject to unlawful benefit case decisions go unrepresented. Employment Tribunal fees were initially hugely increased deliberately excluding many of those who need redress. Eventually this was ruled unlawful and reversed.
Consequently, when the Prime Minister stated on December 20, 2017 at Prime Minister’s Questions that it is ‘important we look at this again to make sure we are truly providing justice’, I did not know whether to laugh or cry at the sheer hypocrisy. If ever a government had demonstrated their ambivalence about providing justice, it was this one. Indeed on January 8, 2018 we now have our fifth change of Justice Secretary in seven and half years. This is hardly indicative of the government giving justice priority. There is no stability or continuity.
A few years ago, I represented a young Bengali man. He was applying for asylum here, his family circumstances had been dire abroad, but he had an uncle in the UK who was trying to help him. He was vulnerable, of low intelligence, with poor language skills. He was alleged to have been involved in a prostitution ring. It became clear very early on that he was innocent and had himself been exploited. We pressed for disclosure of various items and it was only on the first day of trial that the officer in the case turned up with a new schedule of material that the Crown had not even seen and arguably might have affected even the decision to charge.
The case was subsequently dropped, the defendant a man of good character had spent five months at Pentonville Prison. He refused to complain or sue as he thought it would affect his application for asylum.
There are many other examples of this type of case. Of course, it is easy to blame the police, but when Home Secretary Theresa May imposed police cuts so savage that in 2017 a drive was launched to tempt retired officers back to work to cope with the skills shortage that ensued. Across the country many police stations have closed or are open for much shorter hours leaving police deserts in areas of each borough.
This government has systematically devalued our justice system dismantling a robust and independent structure and replacing it with something that does little more than pay lip service to the word justice. They have sold off different parts of the system with little reference to quality. The probation service is in disarray, local justice has been abandoned in many areas as valuable parts of the court estate have been sold off. In the meantime rather than improve the conditions of the courts which remain this government is instead making justice less human and more remote spending a great deal of money on an online system so that more and more justice can be dispensed with electronically. Many millions of pounds are being spent on the pursuit of an electronic system whilst the human element, the essence of what justice is about is in decay.
As the government purports to take the lessons of Allan seriously they simultaneously make further unsustainable legal aid cuts to those solicitors who represent the likes of Allan and others and who are described as one of the safeguards in the system. The government has reduced payments for the more serious complex cases, the ones where in fact greater forensic analysis is needed. Let’s hope the Law Society challenge to this further cut is successful because we cannot rely on the current administration and its civil servants to be the guardians of our justice system. Judge them by their acts, they are not those of a government interested in defending the rule of law. The Ministry of Justice budget has been cut by 38% in the last seven years. The Crown Prosecution Service has also been savaged by cuts. Whilst there are always benefits to technical development the justice system is ultimately about people, ensuring that there is a fair and robust system in place to deal with criminal and civil matters. It is there to protect victims, defendants and different parties in all types of litigation.
An acknowledgement that there is an issue with disclosure and we must have an inquiry or whatever is simply not enough, and is just another temporary plaster over a widening crack.
Extending a system that is at breaking point (piloting extra court hours) is not the answer. We need a proper and honest public assessment of what is going in our justice system starting from the police availability and accessibility and ending at the point where justice should be dispensed at the court. Those who work at the coalface and those who experience the system from start to finish must be the source of such a review. The new Justice Secretary is David Gauke, a solicitor. It is helpful that a lawyer has been appointed but he must be prepared to listen. Police officers should be allowed to speak freely as should every other agency in the system. Victims, witnesses, jurors, lawyers Judges, Prison staff should all be asked for their input. In reality we all know the truth, our system is in meltdown, but to have any hope of a rebuild this has to be the starting point. Whilst this is carried out no further cuts should be carried out to any funding in the system.
We want a fair accessible justice system, not an electronic cheap version which is not justice at all.
Paul is managing partner at Edward Fail Bradshaw & Waterson in East London and former president of the London Criminal Courts Association