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September 22, 2016

Our justice system – the finest in the world?

In this best of possible worlds, everything is for the best

This panglossian view of justice suffuses the new “vision” from the Ministry of Justice Transforming the Justice System: “Across the world, the fairness of our criminal trial and the history associated with iconic courts such as the Old Bailey are celebrated”.  The paper implies that the courts are currently extremely efficient and effective and that the implementation of digital systems is going fine. The judiciary and the government simply want to make the courts better still.

Unfortunately evidence from the twittersphere suggests the criminal courts often descend into chaos, if not farce.  I recently heard that cases are regularly adjourned in London because prisoners are not brought to court on time, or at all.  Often prison transport arrives at the prison at the right time, but the prison can’t produce the prisoner because they can’t actually find them.  Cases are also delayed because the prosecution is not ready.  So the system is definitely ripe for transformation.

The “vision” paper is really a synthesis of reforms which are underway or already announced.  But I have a couple of challenges.  In April Transform Justice published a report on unrepresented defendants in the criminal courts.  It confirmed both that there is a significant minority in the Crown Court (7%) and magistrates’ courts (c15%), and that these court users receive little little help in negotiating the system. There is no acknowledgement of this new and growing problem in the paper. It says “all participants in a case, from the judge to the jurors, the Crown Prosecution Service and the defence, legal advisers and court staff, will soon become ‘digital by default’”, but actually unrepresented defendants are excluded from the new digital system. While lawyers (in theory) receive all the relevant papers online in advance of the case, those who represent themselves get them in the post if they are lucky.  In most magistrates’ court cases, the unrepresented defendant is handed a bunch of papers at the door of the court, on the day of their trial.

It’s in relation to online cases that there may be other problems with these plans.  The idea is that in many minor criminal cases people should be able to do some or all the case online.  But our research suggests that many unrepresented defendants do not understand whether they are guilty or innocent in legal terms – whether they have a valid defence – and certainly don’t understand the full implications of each option.  So there are huge risks in pressurising people to plead online.