Tim Kiely is a criminal barrister at Red Lion Chambers. In this new blog, he explores what’s next for criminal justice in the wake of Sir Brian Leveson’s independent review of criminal courts, part 1 of which was published this week.
There seems to be an eternal tension in the government’s attitude to issues of crime and justice.
On the one hand, the crisis in our prison and wider justice system is clear, and it would make a sizeable difference to the health of both our judicial and social fabric to ensure that as few people as possible are criminalised to begin with.
On the other hand, if you don’t use the sledgehammer of criminalisation to crack the nut of every social problem that comes across your desk, you will run the risk of being called “soft”, of not taking the concerns of the public seriously.
The recommendations of the latest Leveson Review, published this week, are addressed to that wider crisis, and are appropriately far-reaching. The diagnosis is clear: for years, systemic underinvestment in the infrastructure of criminal justice has been allowed to run alongside ever-increasing criminalisation. The results are plain: cases wait years to come to trial; the legal profession is shrinking from the bottom upwards; prisons are overcrowded to the point of collapse.
Indeed, such is the extent of the crisis that the Review’s recommended funding increases are only the start: a battery of wide-ranging reforms are proposed to the way in which the police and the courts operate, which taken together would represent some of the most dramatic changes to the system in recent times.
It is worth noting that not all the proposed measures will be welcomed by barristers and solicitors. In particular, the removal of the right to jury trial for a number of offences including stalking, assaulting an emergency worker of possessing indecent images of children, has already caused some concern among criminal practitioners.
Members of the Criminal Bar Association, the Law Society and others have already voiced some apprehension about treating the use of jury-less trials as, in Richard Atkinson’s words, a ‘silver bullet’ solution. There is the potential for diluting the ability of defendants to receive a fair trial by overemphasising speed of disposal, particularly where there are disturbing racial disparities already acknowledged in previous reporting.
Building in a greater commitment to Out of Court Resolutions (OOCRs) from the training of police officers upwards is also an evidentially well-supported measure of keeping people from becoming further criminalised, albeit one which can be expected to attract much comment from those who want the government to wield its sledgehammer.
One might suggest, however, that in the context of the omni-crisis outlined above, keeping petty crime and low-level theft from taking up time and space in the courts is, if nothing else, a more effective use of limited resources. Other measures which might be more transformative in the long run, like audio-recording in the Magistrates’ Courts or increasing credit for early guilty pleas to 40%, should also not be sidelined in the rush for flashier, headline-grabbing measures.
Ultimately though, it ought to be possible for a mature democracy both to secure the right to a fair and rigorous trial process for those seeking to vindicate their rights in law, and also to find ways to deal with widespread social problems other than through the narrow prism of criminal justice.
It’s time to decide: does the government simply want to equip the system to churn through criminal cases faster, as more of them come down the pipe? Or does it want to create a society in which we have fewer criminal cases to deal with in the first place. If nothing else, this review clears some welcome space to consider these issues. It is time to think again about what it means to live well under the law and to keep the public safe.