A video blog series exploring current issues in the criminal justice system
Commons Sense 04 - ‘under the radar’ injustices
An allegation of fare evasion is one of the most common interactions many people have with the criminal justice system. With the advent of technologies that allow people to ‘tap in’ with debit or credit cards, as opposed to buying a paper ticket or using a pre-paid card (such as the Oyster card in London) – it has probably never been easier, on certain modes of transport, to buy a ticket to travel.
Alongside this, the government has shifted the process for people who are accused of fare evasion so that it has never been easier for them to enter Guilty pleas online and in some areas of the country, via a new scheme called the Single Justice Procedure. The Single Justice Procedure is where a single magistrate deals with adult summary-only, non-imprisonable offences for “guilty” pleas and “proof in absence” cases. The magistrate sits with a legal advisor outside of a court room without the defendant or prosecutor being present, for cases such as speeding, vehicle excise duty and fare evasion. According to HM Courts and Tribunals Service, these cases account for about 850,000 of the total cases per annum.
There are, however, a multitude of circumstances in which someone may not have had a valid ticket for travel on a particular occasion but the wider reasons for this may mean that it is not in the public interest to prosecute them for a criminal offence. It is very difficult for people to know, without legal advice, whether their individual circumstances mean that such issues should be raised on their behalf instead of them being criminalised. Unfortunately, as things stand, it is unlikely to be viewed as being ‘in the interests of justice’ for such people to be granted Legal Aid, in order to support them to receive that advice.
In addition, many fare evasion cases are not brought by the state prosecutor, the Crown Prosecution Service, but by private prosecutors such as rail companies or transport bodies like Transport for London. These private prosecutors often seek their legal costs from the individual they are prosecuting. This can mean £225.00 legal fees being claimed from the accused person for a failure to purchase a £1.50 bus ticket.
In the drive for efficiency, the triple combo of the Single Justice Procedure, a lack of legal aid for individuals, and high legal fees being claimed by private prosecutors have meant that people are being penalised disproportionately and unnecessarily. These ‘under the radar’ injustices do not attract a lot of scrutiny or attention given the low level nature of the offences involved. However, in our view, the criminal justice system itself risks being undermined in the eyes of the public where people feel they are being are criminalised with a lack of substantial and significant scrutiny.
Commons Sense 03 - How to help your vulnerable service users in the criminal justice system
Our first community criminal justice training event took place on 22nd November, and it turned out to be a thought provoking and inspiring morning. Members of a diverse range of organisations – from youth work foundations, to disability rights organisations and homelessness charities – came to Lambeth to find out about how the criminal justice system works in relation to their vulnerable service users, and to share their own experiences and objectives.
Over tea, coffee and pastries, we heard from three speakers with special experience in the field: first on was our own co-founding solicitor Rhona Friedman, who gave an account of the state of criminal justice today. We then heard from Dr Penny Cooper, who gave expert insight into how intermediaries can help vulnerable defendants engage with the investigation and trial process. Finally, barrister Zeenat Islam gave a rousing call to arms on giving young people the knowledge and support they need to face the youth justice system with confidence – only through understanding their rights, she argued, can young people begin to feel empowered enough to engage properly with the process.
Inspiring the confidence to engage was also a key factor for the attendees themselves. A clear take-away point from the event was that one of the most powerful ways to help vulnerable people is for service providers to engage with the police, prosecutors and courts. Whether that be attending police interviews as the appropriate adult, providing written character witness statements or simply attending court to provide support on the day of trial.
Discussions between attendees after the presentations proved to be just as valuable as the training itself. Sharing stories, contacts and strategies is essential if we are to build the networks and coalitions necessary to help bridge the gap between ‘the law’ and the community.
With future events and projects like this one, the work to forge closer relationships, and share vital knowledge, will continue. We envisage that creating a criminal justice hub of useful contacts, easily accessible legal representation and increased resources for understanding the system, will help vulnerable people – indeed everyone – get the justice that they are entitled to.
You can access our Short Guide to the Criminal Process, listen again to the speakers’ talks, and download the slides from Zeenat’s presentation here: www.commons.legal/resources
Commons Sense 02 - Creating a Community Criminal Justice Hub
On 29 January 1993, the shadow home secretary stated “we should be tough on crime and tough on the underlying causes of crime.” This became one of the most famous political phrases of the 1990s marking the beginning of a new era of political triangulation or the Third Way as Tony Blair advocated “moving the debate beyond the choice between personal and social responsibility.”
25 years on, a full quarter of a century, and it seems criminal justice has been going backwards, not forwards. For defence practitioners and defendants, the hope and expectation of a state, led by politicians, achieving real progress soon is seemingly slim.
So we’re exploring how the potential of collaboration between civil society organisations and criminal lawyers offers some semblance of an opportunity to make criminal justice, including the rehabilitation of offenders, much better.
Commons is based in Lambeth and we are engaging South London community groups and civil society to find out how our combined services and skills can be put to more use to better help those in need.
Lambeth is one of the most densely populated parts of the country, with one of the most ethnically diverse populations in the country. Recent figures estimate that 43% of the population is BAME, and 38% of the population was born outside the UK. Lambeth’s demographic is skewed towards the young with around 45% of the population under 30 years of age. Whilst 37% of people in Lambeth live in the highest category areas of deprivation in the UK. In terms of mental health, 37,600 Lambeth residents (out of a total population of 318,000) have a common mental disorder, while 1.26% of people are registered with their GP as having a severe mental illness. First time entrants to the criminal justice system are on the increase, while re-offending rates among young people remain high, as does gang-related violence.
These factors all contribute to the challenges that Commons is dedicated to addressing. Despite battles with rising rents and rates and a difficult economic environment, Lambeth is an emerging hotbed of innovative thinkers and leaders in community engagement. As an example of this, we are working in partnership with a local mentorship scheme to assist a 19 year old Lambeth resident, who is overcoming an extremely difficult childhood and adolescence, to link him to the skills, education and employment opportunities he will need after his case.
We believe the role of the collective or community, as opposed to just individuals or society, has an emerging potential for progress for those involved in the criminal justice system.
Commons Sense 01 - Disclosure
For our first Commons Sense we thought we would shine our (rechargeable) battery operated torch of truth on an under reported, little discussed issue in the criminal justice system; disclosure.
Alright, we have come a little late to this party, too late even to scuttle in and out leaving our unwanted Lambrusco of opinion on the side table of whataboutery. It seems everyone from Jerry (Jeremy) Hayes to Jeremy (Jerry) Wright has had their say.
As a public service we thought we would helpfully distil what everyone (we agree with) has been saying about failures in disclosure:
- they have been happening for years
- they don’t just happen in sex cases
- they don’t just happen in London but in every criminal justice area in every type of case every day
FWIW we don’t agree with the Director of Public Prosecution view that there is no one in prison as a result of a disclosure failure because that’s statistically really, really improbable.
Why is this happening? A combination of mindset, training, cut backs, design of the legislation and growth in digital evidence. Yes it is all of those but we also think underpinning it all is:
a) a retreat in attachment to fair trial rights in the face of instrumentalism (i.e. what’s in it for me if I disclose this evidence?),
b) a zero sum mentality ( If I disclose you may win and I may lose ), and
c) a technocratic fetish for the costs spreadsheet (doing it properly costs too much money and you know austerity…)
If you go on Twitter, you can hear from police officers who rail against the hurdles put in their way to stop them doing the disclosure job correctly. The vast majority of Crown Prosecution Service lawyers are committed to their role as officers of the court with all the positive obligations that entails.
But there is also something about the way organisations, charged with the most coercive powers of the state, operate now that facilitates a low cost, low morality decision-making process. This could be straight from the I, Daniel Blake landscape of withheld benefit payments for the destitute, fitness to work tests for the dying and the hostile, cut and paste send - them – back - to – where – they – came - from asylum approach of the Home Office.
Commons Sense says redefine police and prosecutorial roles to incorporate an ethical attachment to fairness and an understanding of the havoc the state can wreak when its powers are misused. Reinforce this with ongoing training. Discipline those who fall short, and prosecute failures if need be.
You can call this applying human rights or in a post-Brexit world, you can sell it as a reinvigorated sense of fair play, a new commitment to traditional British values, if that’s your thing. Whatever you call it, a new ethos of fairness can only work in a criminal justice system with less slashing, outsourcing and suppressing, and more investment, attention and transparency.
We will return to these themes in future Commons Sense tackling the issues of the day which may include but are not limited to
• The inexorable v The inflexible: the dying days of patriarchy and flexible court hours
• Problem: increasing number of wrongful convictions. Solution: make appeals harder
• Problem: decreasing number of out of court disposals. Solution: make getting legal aid harder
• Designing out the Defence: Robo tech v the rule of law aka dropping the shiny bauble of tech from a great height into the crumbling nest of justice crushing the dull looking but life affirming eggs stamped ‘Article 6: expiry date 2018’ aka Fair Trial Rights go splat
• “But that’s five times more than my monthly mortgage payment! ”: Are Crown Court legal aid contributions legalised extortion ?
• Performative punishment the wig and the dock: If it ain’t woke don’t fix it
• “Surely your client knows whether they did it? “aka Managing out the burden of proof
• Hey HM Courts Service! Inception output? That’s a thing?
And most importantly
• Blackstones v Archbold: Who cares?