#Thelawisbroken? The problem with the funding debate

The law society have published a new report into our ‘crumbling’ justice system. The report cites ‘under investment’ leading to ‘failures at every stage’ of the Court process. It recommends updating the means test for legal aid to keep in line with inflation and abolishing ‘floating’ and ‘warned lists’. It also recommends an increase in legal aid fees. The report follows a successful negotiation by the criminal bar for a modest increase in fees paid to prosecuting counsel. It also follows the success of the Secret Barrister’s bestselling book ‘Stories of the Law and How it is Broken’ which tells stories of how the justice system is failing in the face of underfunding. The book has popularised the Twitter hashtag #thelawisbroken.

Under investment is a problem. Many practitioners and clients would welcome the end of warned lists, in which defendants are left unsure about whether their case will be heard in the course of a given week. But underfunding is hardly a problem which is unique to the justice system. Housing spending is at a record low. Those working in the health service often complain of chronic under funding.   

The real problem is a political one. In recent decades, the foundations of the justice system have been slowly and steadily undermined in favour of increased efficiency. As the principles of the system have been eroded, the argument that it should retain its funding have been undermined.

These attacks began in earnest with the victim centred justice movement, which emerged under the New Labour government. When Jack Straw described defence lawyers as part of the ‘defendants rights lobby’ in 1997, he spoke to a climate in which defendants were coming to be seen as a mere inconvenience in the trial process. There are many examples of reforms in the 1990s which undermined the position of defendants in the trial process. In 1994, Section 34 of the Criminal Justice and Public Order Act diluted the right to silence by introducing the caution. This meant a defendant’s refusal to answer questions could be held against him later in the trial process. The Criminal Prosecution and Investigation Act of 1996 ended the right of a defendant to ‘ambush’ the prosecution and introduced mandatory advanced disclosure by the defence. The Criminal Justice Act of 2003 saw the end of double jeopardy and the extended the use of ‘bad character’ evidence. These changes are now a settled part of our system, yet they represented significant attacks on the historic position of the defendant in the Courtroom. None of these changes were taken up as political causes by the legal profession. It is hardly surprising that calls for more funding are often seen as self-serving by a sceptical public.

Lawyers need to put their heads above the parapet. They need to engage in the political world that the justice system inhabits. This means standing up for the foundations of our adversarial system when they come under attack. It means defending jury trials. It means consistently defending the presumption of innocence. It means being willing to fight back against moves to dilute the rights of their clients in favour of greater efficiency or for a more comfortable experience for their accusers. Perhaps #thelawisbroken. The harder point to recognise is that a broadly apolitical profession may have played its part in breaking it.

Editorial Comment