Mark Cotter QC

Mark Cotter QC

Barrister, Specialising in General and Financial Crime at Five St Andrew's Hill

The crisis in the criminal justice system has become an unprecedented emergency

Less than two weeks ago the Chairman of the Bar, Amanda Pinto QC, asked the government for more investment in legal aid and an immediate suspension of the closure and sell-off of criminal courts. Instead, the Chancellor gave us investment in rape counsellors, tougher community sentences and a new Domestic Violence Court.

Repeated governments have deliberately closed their eyes to the gradual breakdown of the very fabric of the Criminal Justice System in England and Wales. Instead they have chosen to champion populist measures that give the impression of positive action.

Rape counsellors are welcome but do not solve the systemic issues in processing and trying the ongoing avalanche of complex and sensitive sex cases. Insufficient court sitting days and serious delays are combined with underpaid and demoralised lawyers who feel the government simply does not value them – the same prosecution and defence lawyers that the complainant will deal with face-to-face at court, when the case eventually gets there.

Packed to the rafters

Tougher community sentences have also been promised, utilising new technology such as tags that can detect alcohol consumption by the wearer. Reading between the lines, this is a way of avoiding sending defendants into a prison estate packed to the rafters with sex offenders and those convicted of serious violence. There is literally no spare capacity.

Selective reporting by the press often gives the impression that British criminal courts are a “soft touch” on sentencing. In fact, prison sentences have been getting increasingly severe for decades and the trend looks set to continue with a government desperate to be seen as tough on crime.

However, irrespective of sentencing policy, the criminal classes have had it easy for a long time as police, legal and court resources have been stretched to the limit and beyond. 

Domestic Violence Courts

Domestic Violence Courts are to be piloted at great expense. Domestic violence is an issue that can result in concurrent family and criminal court proceedings, with both courts litigating the issues and imposing sanctions.

It makes sense to conjoin the litigation of these issues into a single court but it will be interesting to see how it is funded. At present the daily rate for a legally aided QC in a child-care case is double the rate paid to a QC acting in a high-profile murder trial.

This is a genuine emergency. Even when the crisis subsides, there will be insufficient court rooms to manage the backlog because the government has sold off large numbers of court centres for development. 

Structural crisis

None of this will solve the structural crisis in the Criminal Justice System. Low pay and poor working conditions have created a legal recruitment and retention crisis.

If this is not stemmed, there will a dearth of talent in the system. Lose good lawyers and you lose efficiency and, even worse, correct outcomes.

You lose a talent pool from which to recruit future judges and the confidence of those who come into contact with the system. That system has been unimaginably damaged by the recklessness of governments over the last 15 years and now it has to face its biggest crisis in a generation.

Irrespective of sentencing policy, the criminal classes have had it easy for a long time as police, legal and court resources have been stretched to the limit and beyond. 

State of emergency

On Tuesday 17 March, in the face of the coronavirus, the Lord Chief Justice directed that an attempt must be made to conclude all ongoing jury trials. It was further directed that no new trials would commence with a time estimate of more than three days and that these trials must be managed in such a way as to apply the public health guidance.

On the ground, the legal profession had little confidence that it would prove possible to achieve compliance with these directions.

By the following Monday, many substantial ongoing trials up and down the land had been abandoned, including the trial of those accused of murdering PC Andrew Harper. By Wednesday, it was ordered that no new jury trials were to commence.

The process of trial by jury has now been temporarily suspended. Magistrates Court trials and most other hearings have also been halted.

This means that hundreds and hundreds of Magistrates Court trials and jury trials, including large multi-defendant cases, are piling up in a huge backlog on top of the large backlog that already existed. In many of these cases the defendants are being held in custody.

This is a genuine emergency. Even when the crisis subsides, there will be insufficient court rooms to manage the backlog because the government has sold off large numbers of court centres for development. 

In reality, none of the measures introduced by the Chancellor in the Budget on 11 March 2020 now seem likely to occur. Surely the money will need to go elsewhere, such as into legal aid and keeping more courts open – just as the Chairman of the Bar requested – to deal with the huge backlog of cases that will swamp the system and be felt in full force once the coronavirus has subsided.

https://www.5sah.co.uk/barristers/mark-cotter-qc

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