Swift And Sure Justice: It Doesn’t Add Up (Or “August And Everything After”)

Swift and Sure Justice: The Government’s Plans for the Reform of the Criminal Justice System proclaims that,

“Magna Carta asserted that “To no one will we refuse or delay right of justice.” Justice delayed is justice denied, especially to the victims of crime.”1

The author, Nick Herbert MP, goes on to say that cases in the magistrates’ courts take an average of five months from offence to sentence and that this delay is unacceptable

After all, during the disorder last August, everyone involved in making the system work worked together and some cases only took hours from start to finish.

Nevertheless, the white paper records that those who worked together were police, prosecutors and courts.  Ignoring the idea that the courts were working “together” with police and prosecutors like some sort of nostalgic return to the “Police Courts”, it’s almost as if no defence lawyers were involved at all.

In reality, defence solicitors and members of the junior Bar were putting in the hours and making sure that when the courts were free to deal with their lay clients, their lay clients were fully advised, details had been taken to allow courts to take pleas and sentence with confidence that justice was being done.

The delays

Defence lawyers know that one of the main reasons why summary cases take an average of five months between offence and sentence is that police arrest, interview and re-bail for weeks (sometimes months) before charge.  A court will not get its hands on such cases until weeks after the offence.

One of the greatest myths about the various “swift justice” initiatives over the years has been that defence lawyers want to slow the process down.  The “Stop Delaying Justice” initiative went so far as to state this as fact.  It is simply not true.

Here’s the reason: the quicker a defence solicitor is paid on a case that will only ever amount to a lower standard fee, the better.  Fewer letters will have to be written.  Fewer telephone calls will need to be fielded.  Fewer hours will need to be spent waiting at court (for which there is no payment in such cases).

Solicitors want adjournments like fish want bicycles. They want to go to court, do their job, get their firm paid on it and move on.  Cash flow has never been more important to these firms.

The proposals

The proposals in the white paper are that this pattern of courts opening seven days a week and working earlier in the morning and later into the evening should become the norm because the public expect justice to be that quick now.

To this end, Her Majesty’s Courts and Tribunals Service (HMCTS) and the Legal Services Commission (LSC) invited solicitors to attend meetings at the their local courts so that they could be told the plans for rolling-out the pilot schemes across the country.  The Bar was not invited but I gate-crashed.

In Manchester, the assembled lawyers were told that this was not a consultation; it was a meeting to tell them what was going to happen.  Courts will open on Saturdays for overnight remands and, where there is a plea of guilty, the Probation Service/YOS will prepare a report that same day and the sentence will be passed.  It will be business as usual.

On Sundays, only one court will sit and it will take as long as it takes.

Court staff, Probation and YOS staff and the CPS staff will all being paid extra for attending.  That’s taxpayers’ money but it’s alright because it’s what taxpayers want; swift and sure justice.

The LSC confirmed that there will be no extra payments of any sort to defence lawyers attending.  They guard the public purse and are not paying a penny more than they pay now.

The white paper focusses on the potential benefit to “victims and witnesses” who, it supposes (and only that as there is no data cited) may benefit from being able to come to court at weekends or in the evening.  However, it was made clear by the HMCTS spokesman that there was no plan to include trials within the weekend lists but that may change depending upon the success of the pilot scheme.

If trials were to be included, one might expect costs to rise all around.  The taxpayer and defence lawyers would suffer tremendously for the sake of a minor increase in speed of the system.  Moreover, this would be hard to justify when satellite courts and even courtrooms within the city’s courthouse are closing during the existing working day.

The Devil is in the detail – or lack thereof

What was far more revealing was what the spokespeople from HMCTS and the LSC did not know.

They did not know what would make this pilot a success.  I was promised that the success criteria would be available prior to the pilot starting.  I will publish this through Northpod Law (www.northpod.co.uk) if it is provided.  Obviously, a pilot scheme would not make any sense if those running it had no idea what they were hoping to achieve, would it?

The possible benefits were said to be cost-savings and expediency.  That was all HMCTS had to say.

Those present at the meeting were told that there has been no estimate made of costing this pilot.  A little digging reveals that HMCTS believe that costs of the pilot will be minimal but that there may be increased costs if the scheme becomes the norm 2.

Actually, an estimate of some of the costs involved can be found via the MOJ website. In fact, the MOJ recognise that,

There may be costs to practitioners through changes to their day-to-day working practices and remuneration for out of hours working. For example, increasing hours in a court and paying court and CJS agency staff accordingly, (both traditional and virtual courts) may incur costs. Saturday and Sunday courts might incur additional costs from overtime costs for CJS agencies which will be assessed and considered. This may also include YOTs (if youth cases were to be included in any pilot) and the probation service.

What of these costs to practitioners?  We know that there is no more money to pay staff for attending.  Not only will firms receive no extra money but they will incur significant extra costs.  The costs of staff overtime or unsociable hours pay, administrative staffing and, if things get busy enough, the costs of extra staff will all have to be met from the firms’ budgets.  Those budgets have already been decimated by successive legal aid cuts under this and previous governments.

What about the risk of further costs for struggling firms who put pressure upon their staff to work these extra hours?  Those firms may well find that they face constructive dismissal or unfair dismissal claims from staff that cannot or will not allow this unilateral change to their contracts of employment.

The MOJ claims3 that it is not aware of any potential problems with discrimination and equality legislation except, possibly, in relation to religious belief.  Observant Christians, Muslims and Jews may well have a problem with the new hours.  They should not be disadvantaged in the workplace as a result of this pilot.

Moreover, single parents (mostly women) are likely to face difficulties in rearranging their working hours.  Those who are sole practitioners are in even more difficulties.  Such lawyers will be obliged to pay agents to cover the work (and lose money hand over fist) or to pay for childcare with no more money coming in to cover it.

Not just single parents will be affected.  Working seven days a week will severely cut into the quality time working parents have with their families.

Given the potential disruption and impacts on sustainability of the legal aid supplier base that will be caused by this pilot, one must go back to the purported aims of this scheme – costs-saving and expediency – and assess whether this can be justifiable.

Put another way, is it worth potentially crippling already-damaged solicitors’ firms and risking an effective collapse of a service as valuable to the public as legal aid defence lawyers for the benefit of 24 hours faster appearances at court and the unlikely prospect of saving a small amount of money?

The truth of the matter appears to be that courts are being used as a political football once again.  Whilst nobody would object to the notion of swift justice, if the cost of it is so high in terms of money and in terms of sustaining a system that has protected the individual from the State for hundreds of years, I believe that people will find this a step too far.

If the LSC wants to remunerate the hard-pressed suppliers of legal aid services properly then there may be volunteers to help the Government in its aims but whilst such totally unjustifiable inequity exists between civil servants and those lawyers, this scheme cannot be allowed to be anything more than another failed initiative.  It can go on the same shelf as the failed IT systems, the blundered tendering systems and so on.

I, for one, will not be accepting publicly-funded work on Saturdays and Sundays as I do not believe that I am required to under the cab-rank rule.

I will tell anybody who listens why solicitors are right to take a stand, too.  A quick glance at the comments on the Manchester Evening News story about this demonstrates how little the public understands about the reality of the criminal justice system and this a PR war – make no mistake.

The Bar and the future

As for the junior Bar, the invidious position facing newer practitioners will be that they need to the work to pay off their student loans, professional development loans and set-up costs but will be angering many solicitors for taking the work and so jeopardising their practices in the longer term.

My concern for this scheme’s consequences is that more defendants may find themselves unrepresented and denied their own justice.  That would cut costs but would fundamentally undermine the public’s long-term faith in the justice system.

That is not a criticism of the legal profession; it is a firm statement in support of it and a firm affirmation of the proper aims of the administration of justice.

I hope that this scheme in Manchester fails in a similar way to that in which similar schemes around the country look set to.

To quote a provision of Magna Carta that is actually still in force (the Minister’s is not),

“We will sell to no man, we will not deny or defer to any man either Justice or Right.

Useful links

  1. http://www.justice.gov.uk/downloads/publications/policy/moj/swiftandsurejustice.pdf
  2. http://www.justice.gov.uk/downloads/publications/policy/moj/swiftsurejusticeia.pdf
  3. http://www.justice.gov.uk/downloads/publications/policy/moj/swiftandsureeia.pdf
About the author
Benjamin Knight is a barrister at Central Chambers specialising in Criminal Law. You can read Benjamin’s chambers entry by clicking here.