Open letter to the Lord Chancellor

Without access to justice there can be no rule of law

The following is a letter I have sent to our new Lord Chancellor today asking that she takes seriously the problems in the justice system. I do not expect a reply but I shall post one if it comes.

Dear Ms Truss,

Re: Criminal Justice System

Congratulations on your recent appointment as Lord Chancellor and Minister for Justice – I saw the photographs of you at the Royal Courts of Justice this morning and it inspired me to write to you about the appalling state of our Criminal Justice System, although I have very serious doubts whether this letter will ever find its way to you or whether it will be taken seriously if it does.

I am a solicitor, I work for myself representing people accused of motoring offences – particularly offences involving alcohol or drugs and vehicles, these are unglamorous offences such as drink driving. I have previously run a general criminal law firm that handled offences from people travelling on the railway without a ticket up to offences involving corrupt police officers, serious sexual offences and murder. We also did a little employment law and ran free advice days for local members of the public to come and get some free advice about their legal problems.

Since I qualified the CJS has become a gradually less fair place to be for those accused of crime – many of whom are innocent. This problem was exacerbated by the introduction of Criminal Justice Simple, Speed, Summary (CJSSS) that seems to have persuaded many in the CJS that doing things quickly is far more important than achieving justice. While justice should be swift it should also be just!

There are a lot of problems in the system such as constant cutting of legal aid rates (I gave up my legal aid contract in 2011/2 because the rates were too low then for a living to be made – I have no idea how anybody is still in business) and underfunding of the system leading to court buildings that are freezing in winter and boiling in summer. In many courts there are no facilities for advocates to work while waiting for their case to be called and nowhere for us to speak privately to our clients. I’ve even seen police officers drafted from the streets to assist the gaolers in City of London Magistrates Courts because they didn’t have enough staff to take prisoners to court!

In my opinion, the main thing causing unfairness in the system at the moment are the poor decisions being made by court staff, including judges and magistrates. I suspect that the cause of this is related to poor legal training, a lack of staff and general overwork within the courts. In other words, underfunding across the system. I’d like to take a moment to highlight four examples.

First two cases involving people who failed to provide a specimen of breath, neither of whom I represented at the time of their sentencing. One man failed to provide a specimen of breath at the roadside and was disqualified from driving for 18 months. So what you may think – he should have provided the sample.  The so what is that the sentence for this offence is 4 penalty points, not an 18 month ban! In his case, he did provide at the police station and was found to have no alcohol in his system. The second man was disqualified for 18 months for failing to provide a breath sample at the police station after he had been found in charge of his vehicle. In this case, the maximum ban that should normally be imposed in the most extreme cases according to the sentencing guidelines is 12 months. This means that in two separate cases that happened at different times in different courts there were two court employed legal advisors, two prosecutors, two defence lawyers and two judges (or six magistrates) who did not recognise that excessive sentences were being imposed.

In the third case, I represented a lady accused of drink driving. She insisted she was not guilty and, on the day of her trial, the Crown accepted that they could not secure a conviction against her and discontinued their case. I applied for a Defendant’s Costs Order on her behalf, which was refused. The District Judge gave his reasons that she might have been guilty anyway and he had a duty to protect public money. This is a decision made in complete defiance of the established law. But, the judge knows he can get away with it because very few privately paying defendants can afford to take their cases further than is absolutely necessary to get justice for themselves. I have no doubt that had this lady judicially reviewed this decision she would have won but she simply cannot afford to do so – this also highlights a problem with access to justice that faces millions of ordinary, hardworking people in this country.

The fourth case is one in which I acted but did not appear for the trial. The long and short is that the defendant was convicted. The barrister who represented him was outraged claiming that the magistrates had ignored huge problems with the prosecution evidence to reach their verdict – this is unimportant what is important is that we immediately lodged an appeal against conviction. However, the court refused to process the appeal because the defendant has not been sentenced yet. I asked the court to reconsider and pointed to the Criminal Procedure Rules. I received a response telling me that the rules say my notice of appeal must state the sentence and since I cannot do that until after the sentence is imposed the court cannot process the appeal. This is completely wrong and it is clear from the provisions quoted that the person who made this decision lacks the legal knowledge to understand the rules they are citing. FYI the rules are very clear that sentence needs only be stated when you are appealing sentence, which we are not doing. The court is clearly in breach of the Criminal Procedure Rules but, once again, there is nothing the defendant can do about it because he lacks the funds to judicially review the court’s decision. This is a problem with access to justice.

The four cases I mention are examples of problems I have personal experience of over the past few months. If the problems in the CJS are an iceberg then these four cases are merely the first inkling of trouble seen by the lookouts on the Titanic!

My impression of the CJS is that far too many people in it prioritise meeting KPIs, such as dealing with cases quickly, over achieving justice. This leads to injustice. I read you are a qualified accountant so let me put it into terms you will understand. The approach of many in the courts is akin to an accountant prioritising completing a company’s accounts over getting the accounts correct!

The response of many people, including magistrates and judges, to criticism is simply to say, “well if something goes wrong you can always appeal”. But this is not good enough for three reasons. First, courts should be aiming to get it right first time, every time. Secondly, the appeal courts are not there to provide a routine second chance, they should be used only in rare circumstances. Finally, many people will not qualify for legal aid, but they fall into a gap where paying privately is difficult if not impossible. Many of my clients find funding their defence difficult and the idea of appealing a conviction or judicially reviewing a decision is beyond their financial capability. Thus there is a deficit in peoples’ ability to access justice.

For those paying privately a big problem with them accessing justice is that they know that if they are acquitted they will not get their legal fees back. Thus they pay a significant amount of money to prove to the court and the world that they are not a criminal. This is a direct consequence of a government decision to limit the amount innocent people can get back to legal aid rates – legal aid rates are so low that the famous Cab Rank Rule, which requires barristers to take any case offered to them, does not apply to any work funded by legal aid! The result of capping the costs innocent people can reclaim means that many defendants will look at the cost of defending themselves versus the cost of being convicted and will enter a plea on a commercial basis of what will cost less rather than on whether they are actually guilty of the offence they are accused of committing. I have seen many defendants plead guilty on this basis! So much for the celebrated maxim that it is better to let ten guilty men go free than to convict a single innocent man.

This is just criminal law; I gather things are even worse in other areas of law. In particular, I read regularly that parents fighting for access to their children in the family courts are turning to fee-charging McKenzie Friends. These are people with no legal qualifications, no legal experience and no insurance should they make a mistake. Parents are using these people because they feel they have no other way of accessing justice because legal aid has been withdrawn from them. Now you may think, “why don’t solicitors just charge less?” The answer to that is that solicitors have tremendous overheads. I am required to carry £3M of insurance for every case I take – other solicitors will have higher insurance requirements depending on the work they do. Solicitors also have huge upfront training costs to qualify, large fees to regulators each year and ongoing professional training each year. Thus, it costs more to be a solicitor than it does to be a McKenzie Friend because of all the features that exist to protect consumers from us making mistakes!

I’ve now outlined a few of the problems that face the justice system. Many of the problems in the courts cause injustice and prevent people accessing the justice system altogether. These are not abstract concepts. For many of my clients a bad decision means the loss of their job and home. In the family courts an inability to access the courts and proper legal advice can leave children and parents unable to see each other for years on end. It means employees who are mistreated by their employers are unable to get justice – I see in the news just this morning that it has taken a Parliamentary enquiry to uncover the mistreatment of employees at Sports Direct. Failing to ensure ordinary people can get access to justice means that their lives are blighted for years to come, maybe even for ever.

You swore yesterday to uphold the rule of law. When people cannot access justice the rule of law is meaningless. I am asking that you take seriously the many concerns of the professions that you will hear during your time as Lord Chancellor. I ask that you look seriously at what is happening in our justice system and so something to stop the rot, which is already well set in. I ask that you stand up to the Treasury when they inevitably come looking for yet more funding cuts – no doubt to pay the £5k a day I read the new Ministry for Brexit will be paying to their lawyers.

You’ll have many advisers who will no doubt tell you that everything is great and more cuts can be made safely. They don’t know what they are talking about! Please listen to the professions – don’t be a Chris “Failing” Grayling who asks for the professions views, receives 14,000 responses telling him his plan is a bad one and who ignores all those voices and does it anyway.

I hope that you’ll be a good Lord Chancellor who acts to protect the rule of law and ensure that the ordinary man and woman on the street can seek the protection of the law. But, the truth is that I have long ago lost any faith in the politicians who inhabit Westminster.  Years of mismanagement of the legal system tells me not to expect much in the next few years.

I hope I am wrong.

Yours sincerely,

Nicholas Diable