Chambers and Partners
General & Serious Crime Overview 2019
Contributed by Paul Morris, Ellen Peart and David Hardstaff of BCL Solicitors LLP
It has been another tumultuous year for the criminal justice system of England and Wales, with court closures, rising crime and a fall in prosecutions. Funding continues to be a recurring issue for both prosecutors and defence practitioners, with extra funding announced for the Crown Prosecution Service (CPS) and the Ministry of Justice's (MoJ) hotly anticipated review of the legal aid scheme expected in 2020. While not a bumper year for new law, the last 12 months have not been short of legal drama, with the almost private prosecution of Boris Johnson MP, and the meteoric rise to the top of the charts by an anonymous barrister, known only by their robed rabbit avatar on Twitter.
News and developments
In November 2018, Max Hill QC took over from Alison Saunders as the Director of Public Prosecutions. While Saunders’ tenure ended amidst controversy relating to the CPS's handling of disclosure failings in a number of widely publicised cases, Hill's first year in the post has been dogged by plummeting levels of rape prosecutions. In spring 2019, the CPS confirmed that charging rates have dropped to their lowest level since records began despite the number of rapes reported to the police continuing to rise. It is hoped that the announcement of £85 million of additional funding for the service will enable it to respond to the increasing complexity and size of the caseload that it faces.
There have been renewed concerns over access to justice following the MoJ's announcement that it is planning to close 77 more courts over the next seven years. The reason cited for the closures is the ongoing consolidation of the court estate; however, some have questioned whether the court service is selling off the family silver. £124 million has already been generated through the closure of 127 sites in England and Wales since 2015. Despite this windfall, many victims, defendants and witnesses are having to wait up to a year for a trial date at court centres where half of the courts are now routinely sitting empty as a result of the MoJ's analysis of the current backlog of cases.
The MoJ has announced a 'comprehensive' review of criminal legal aid schemes, due to be completed in 2020. Commentators have highlighted the potentially irreversible damage to the profession through the continued failure to get to grips with funding and the need to modernise legal aid to reflect the realities of practice. Data published by the Law Society has highlighted the falling number of criminal solicitors in many parts of the country, leading to 'advice deserts' and suggesting that new talent is deciding against a career in criminal law. Access to representation at the police station made the news in mid-2019 following the temporary shutdown of the Defence Solicitor Call Centre online portal. The online portal allocates duty solicitors where requested by detainees in police custody and individuals being interviewed voluntarily, an entitlement under the Police and Criminal Evidence Act 1984. Practitioners have expressed fears that the shutdown could have risked miscarriages of justice.
Amidst all the doom and gloom, the anonymous barrister blogger, The Secret Barrister, has done more than most lawyers and commentators combined to raise awareness of the perils faced by the criminal justice system. Their book, 'Stories of the Law and How It's Broken,' remained in the Sunday Times Top 10 Bestsellers list for 24 weeks, reaching many who have no prior experience of the law. The book's wit and accessible style has done much to highlight the importance of access to justice.
With the full consequences of Brexit yet to be understood, concerns have been raised that the UK's position outside of the European Union could render the country vulnerable to exploitation by international criminals keen to take advantage of the reduced capability of domestic law enforcement. By far the biggest Brexit-related criminal case of 2019, however, was the attempted private prosecution of Boris Johnson for the offence of misconduct in public office relating to comments made in the lead-up to the 2016 Brexit referendum. After a successful application before Westminster Magistrates' Court to issue summonses against Johnson, the High Court blocked the prosecution, finding that the District Judge had erred in law.
The Johnson case has brought private prosecutions into the limelight at a time when pressure on the criminal justice system has undoubtedly contributed to their popularity as an alternative to reliance on the state. Against increasing calls for much needed regulation, 2019 saw the launch of the Code for Private Prosecutors. The aim of the code, devised by the Private Prosecutors' Association, is to provide a "benchmark for best practice in the conduct of private prosecutions." As adherence to the code is voluntary, its impact remains to be seen, particularly in cases where adherence may not be to the benefit of both parties. As private prosecutions become commonplace, the industry will no doubt seek to respond to demand. Some believe that this will result in greater opportunity for those seeking justice, whereas critics warn of the increasing development of a two-tier justice system.
The past year has seen fierce debate surrounding privacy in the criminal justice system, both from the perspective of complainants and individuals under investigation. In an effort to ensure the preservation of potentially relevant digital evidence, complainants in cases involving sexual offences have been asked to surrender their mobile phones to investigators so that the contents can be downloaded. The measure, introduced in the wake of a number of highly publicised cases involving disclosure failings, has been likened to a "digital strip search" and argued as unlawful by campaigners and civil liberties organisations. Police and prosecutors have warned that if prevented from being given access to mobile phones where potentially relevant, investigations may not be pursued. The issue has highlighted the continued tension between the need to ensure proportionality in investigations and the expectation on the part of suspects that all reasonable lines of enquiry will be followed.
Calls have continued for the anonymity of those accused but not convicted of alleged sexual offences. The issue continues to divide opinion with those in favour arguing that the mere association with an alleged sexual offence can have such devastating consequences that measures should be implemented to protect suspects. Some have argued that any statutory protection should be extended beyond cases involving alleged sexual offences to cover other allegations. The shutdown of Gatwick Airport following multiple drone sightings saw the identification of two suspects who it later transpired had nothing to do with the incident. The pair were left traumatised after the publication of their names and photographs, resulting in intense media interest and online abuse.
As the industry and institutions that form the bedrock of the criminal justice system face new and more severe challenges, to describe the next 12 months as anything other than critical would be an understatement. All are agreed that the system is in need of urgent modernisation if it is to keep up with the challenges posed by technology and changes in society. This arguably presents an opportunity to ask deeper questions about how, in the 21st century, justice should be delivered and be seen to be delivered. Examples such as the increasing recognition of modern slavery as a defence and moves to ensure that domestic abuse is properly understood through the proposed Domestic Violence Bill reflect changing attitudes. However, without significant investment in the criminal justice system, there is a risk that the objectives of such initiatives may never be realised.