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If you’re lucky, you’ve likely never given much thought to the criminal justice system.
Outside of pursuing a career in the field, it’s something most people would choose to avoid. Unless you’re brought into it as a criminal or a victim of crime, why would you give it much thought? We know it’s there, we hope to never have to use it, but if we have to then we trust that the system will work as it’s supposed to. But does it?
“From my daily experience in the criminal courts, the criminal justice system is on its knees,” says The Secret Barrister, an anonymous lawyer currently working in the British courts. “There are problems we see at every stage of the criminal process, and what terrifies me is that most of the general public don’t know the first thing about it.”
The issues facing the criminal justice system are many, varied, and in The Secret Barrister’s eyes, pose a very real danger to the stability of criminal justice in this country. It seems that while we were going about our lives, the pillars of our criminal justice system have been weakening; some left to crumble, others taken to with a hammer, and the threat of total collapse is not an empty one.
The Innocence Tax
One such problem is what The Secret Barrister calls the Innocence Tax. Before 2012, everyone was eligible to receive legal aid if they were charged with or became a victim of a crime, regardless of their financial status or background. Between 2012 and 2014, however, the government changed this.
“They introduced a means test,” says The Secret Barrister. “If you have a joint disposable household income of £37,500 or more, if you and you partner have that after tax between you, then you’re not entitled to a penny in legal aid. What that means is then you have to pay privately, and private fees for any barrister, even criminal barristers, can be very expensive.
“If you are then found not guilty by a court, if you have your trial and the court says, ‘You were wrongly accused, not guilty,’ you are only entitled to recover your legal fees at legal aid rates. The difference between low legal aid rates and the private rates you’ve paid, you have to foot that yourself, out of your own savings or by selling your house.”
Earlier this year, a GP was falsely accused of being part of a paedophile ring. Due to his considerable savings, he was ineligible for legal aid, and was forced to spend £100,000 on his own legal defence. When the charges were dropped, he received only £7,280 in compensation, leaving him out of pocket to the tune of £93,000.
The system is not just failing the public it was built to serve; it is failing the professionals who work in it, and in some cases, the professionals are failing their profession. There is a minority among solicitors, “vultures” as The Secret Barrister describes them, that prey on vulnerable defendants, tempting them into their firm with promises of guaranteed acquittals, then once they’ve got the money, hang their client out to dry.
“I was unfortunate enough when I was very junior to be instructed by a firm who did this,” says The Secret Barrister. “There was one case in particular where I was defending a young girl, barely out of her teens, accused of an offence of violence and public disorder.
“She maintained that she was innocent and that the security staff had misinterpreted what was happening. She said, ‘It’s on CCTV, there’s a CCTV camera that captures everything.’ She told the solicitors this months ago, and they’d done nothing.
“I was instructed the night before trial, which isn’t uncommon as a barrister. She told me this, and I made enquiries, but by that date the CCTV had been deleted and no was longer in existence. She was ultimately convicted, and it was horrible. I don’t have anything to go on other than my own gut feeling, but I don’t think she was guilty.”
And what of the good, honest, hardworking professionals that turn up to work every day with the best intentions? As The Secret Barrister sees it, they’re the only reason we still have a functioning criminal justice system.
“The only thing that is keeping it hanging together on a day-to-day basis is the goodwill of the people involved,” they say. Everyone is working around the clock, beyond their contracted hours for free, to try and keep the system running, and it only barely does because of that.
“If the people involved decided that they’re simply not willing to continue to go above and beyond in these conditions for no pay and for no recognition, then I think the system would grind to a halt.”
The final straw
As it stands, the system is at breaking point. Currently the Criminal Bar is embroiled in a dispute with the Ministry of Justice over legal aid; the government has already cut 40% from the budget and is looking to cut deeper. This is, The Secret Barrister says, the final straw.
Why isn’t this a national outcry? How did something as sinister as the Innocence Tax slip by without our noticing? Why are we not worried that the foundations of justice are being chipped away?
“We as a nation tend to not worry about it, because we don’t like to think it will ever directly affect us,” says The Secret Barrister. “Criminal justice is for criminals, that’s what we assume. But that is a complete fallacy, because anyone can be a victim of crime, and anyone can be wrongly accused of a crime. Those of us that work in the system see that every single day.”
Most of us will never come into contact with the criminal justice system, and thankfully so, but as the young woman who was failed by her vulturous solicitors shows, it can happen to anyone. And as the falsely-accused GP attests, the consequences of a failing system can be life-changing, even life-ruining.
Is there hope for the future? Where can we put our faith if not in the system? For The Secret Barrister, it’s clear: “I have faith in the people in the system.”
“I have faith that almost every single person who is still working in criminal justice, who hasn’t been driven out because they can’t make a living or haven’t been made redundant because of court and CPS redundancy cuts, does their absolute best each and every day to keep the system functioning. I would trust that they would do what they can.”
The Secret Barrister: Stories of the Law and How It’s Broken is available now from Amazon and Audible.
