22nd June 2015: 'The price of British justice...' » 2015 » Mobbsey's Musings » Paul Mobbs/MEI » FRAW

The Trial... of of injustice
"Don't fight it son. Confess quickly! If you hold out too long
you could jeopardize your credit rating."

The price of British justice – subjecting those without adequate means to 'trial by ordeal'

Paul Mobbs, "Mobbsey's Musings", Monday 22nd June 2015

Written for The Ecologist, published 23rd June 2015


One of my favourite films is Terry Gilliam's Brazil[1]. In the final scenes[2] a guard, strapping the hero into an evil-looking torture chair, advises him –

Don't fight it son. Confess quickly! If you hold out too long you could jeopardize your credit rating.

In Brazil, I always found the bizarre world of a repressive bureaucracy entertaining – in part because I've spent a proportion of my working life involved in public inquiries and regulatory processes where sometimes bizarre, self-justifying administrative actions are commonplace.

Unfortunately, I believe that such aspects of the film are fast becoming a reality in Britain.



From my recent discussions while touring around Britain, most people, it would appear, are not aware of what Government is doing to our justice system – and why that makes the events depicted in Brazil more 'real' than before.

Most of you will probably not understand what I'm talking about – until, that is, you become unwittingly enmeshed in the court process.

Last Thursday I spent a second day waiting in Marylebone Central Magistrates' Court – the result of a day[3] spent pressing for action on an issue[4] last March.

Looking around the waiting area, I was probably not like most of the people present. I wanted to be there! I wanted to defend my case.

Clearly though most of those waiting their turn on the court's roster of cases did not like being there. And as I had prepared my case, what I found myself doing was spending time observing my fellow defendants rather than worrying about the details of my own situation.

Queuing to inform the clerk of my attendance just before 10am, the line of people before me were representative of the problems within our justice system:

Some had been there before. Perhaps a number of times. They appeared to treat the experience with a nonchalant acceptance – of a process that was being impersonally done to them, and over which they had little or no control.

Some had legal representation. But as I watched the briefs dash backwards and forwards that morning – trying to deal with cases which they had very little time to examine (some were taking initial instructions just before entering court) – it was clear that justice was under pressure. And, as I listened-in to the hushed conversations around me, the clear emphasis of that pressure was to "plead guilty" if they wanted to exit this situation as quickly as possible.

Some have no representation. With trepidation, when asked for details by the clerk, they said the dreaded words, "I am representing myself". In particular I'm thinking of one, apparently ordinary woman in the queue who looked almost moved to tears. When she was told she could see the duty solicitor[5] for advice, her relief was palpable.

That said, under current Government reforms the number of duty solicitors is set to be cut by half[6].

I cannot fault the calm and courteous court staff, nor the hard pressed solicitors bustling around the building. They're trying their best to work within an imperfect system.

Increasingly though, and in a nod to the Medieval roots of our modern justice system, for most ordinary people 'the trial' isn't where a judge hears the facts. For those who do not have the means or ability to engage with this officious process, the whole legal process itself has become, once more, a 'trial by ordeal'[7].

Recently I have written[8] for The Ecologist about the Government's reforms to judicial review, and other parts of the general law – and how this will enable the Government to impose policy unchallenged.

Judicial review is of course, in terms of the number of all cases, a rare event in our legal process. Most everyday cases are summary offences[9] – such as traffic offences. The fact that such cases are more numerous magnifies the impact of the recent 'reforms', as they involve many times more people that the reforms to judicial review.

The most significant are the changes to legal aid[10], which began with the Legal Aid, Sentencing and Punishment of Offenders Act 2012[11]. As with the cuts to duty solicitors noted above, these changes[12] strike at the heart of our basic rights[13] to access the justice system.

One of the early impacts was the cut in funding for law centres, which gave free advice to the public. Many have been forced to close[14] as a result.

The Government's on-going project of legal aid reform[15] will leave many with no choice but to turn up at the court and, unless they have the money for professional representation, throw themselves into that ordeal unaided.

The most recent part of this long-standing Government strategy to reduce our participation in democracy has been the Criminal Justice and Courts Act 2015[16]. For me, this law enacts the most damaging of the reforms to date.

In the film Brazil, perhaps alluding to the real-world 'bullet fee' charges[17] made by executioners, one of the unjust means of oppression depicted are the charges for "information retrieval"; those detained must pay for their torture. Prisoners are even sold loans and other financial services while in detention to cover the costs of those fees.

That's not as far fetched as it seems. A few weeks ago John Oliver produced a brilliant exposé[18] of America's bail bond system – and how it disproportionately hits the poor, in effect creating a modern 'debtors' prison'[19] system. US courts routinely set bail and other administration charges out of all proportion to a person's income, and imprisons those who cannot pay.

Under the US justice system, pressure is put on people to plead guilty to crimes[20] they have not committed. That is because the immediate financial and practical implications of pleading their innocence are far worse than the punishment for the crime. That pressure is exacerbated by a lack of timely and adequate legal advice.

And for those without means, but who have the courage to plead "not guilty", that also leads to egregious miscarriages of justice[21].

I believe that is where the British justice system is heading, unless we do something to stop it.

Under the reforms ushered in by section 54[22] of the Criminal Justice and Courts Act 2015, in future, when a court hands down certain decisions, in addition to a fine you will now receive an administration bill – known as the Criminal Courts Charge[23].

The best way to think of this measure is as a 'poll tax' for the justice system.

Previously courts could impose costs orders as part of judgements – though the ability to pay was still assessed as part of that process. The new system gets rid of means assessments, and sets a fixed tariff for all cases irrespective of their specific complexity.

Rather like the American system, with its emphasis on cheaper plea bargains versus high-cost bail, this process is incentivized with significantly lower charges for those who immediately plead guilty. These charges are set under the regulations enacted[24] at the same time as the Act was commended in April 2015 – and are explained it the accompanying Department of Justice guidance[25].

Currently the 'Criminal Courts Charge' is set as follows:

And if you try to appeal your conviction to a higher court, and lose, you'll get another £150 bill on top of the above charges.

The way the Government has introduced this legislation is also, like the US system, guaranteed to hit the poorest the hardest.

Few outside of the legal profession appear to know of this issue today – but it is almost certain to become a significant concern once its implications have worked through the criminal justice system in a few years time.

Currently the fines imposed by courts are means tested. When you go to court you fill out an official form with details of your income and outgoings. When the court imposes a fine, it assesses your liabilities and sets the fine accordingly.

This varying scale can be considered 'just' because, for a similar offence, and reflecting a person's lifestyle and disposable income, everyone receives a fine which is set proportionately to their ability to pay.

Under the new system, the Criminal Courts Charge is not means tested[26] – the poorest have to pay the same as the richest. Both the Law Society[27] and the Magistrates' Association[28] have expressed a concern that the charge may encourage poorer defendants to plead guilty rather than risk the possibility of being convicted.

And in the age of the computer database, as is now becoming apparent in the USA[29], being pressured to plead guilty when you need not has consequences which can last a lifetime.

For those who cannot or will not pay, the Government will 'attach' their earnings, or benefits, through the tax system to recover the charge. This will pile-up further hardship for those on the lowest incomes[30] when there is already concern about the impacts[31] of the Government's austerity benefit cuts[32].

With cuts to legal aid, and the funding for duty solicitors at police stations and courts, the pressure for those who cannot afford[33] to contest a case will always be to plead guilty – irrespective of whether they are guilty of the offence or not.

Whether by design or not, we are on course to enact a system of justice every bit as unjust as the US system.

At the Government's behest, the courts are making it ever-more expensive to obtain justice. In effect, by introducing something akin to a 'poll tax'[34] for justice, they make it easier for the rich to escape their offences than it is for the poor to demonstrate their innocence.

This constitutes an administrative reversal of the traditional presumption of innocence[35].

In the case of dissent, however, to conscientiously say "no" to any Government enactment becomes more onerous for the individual. I say that as someone who has embarked on precisely that course of action.

Even a minor wilful infraction of the law becomes an expensive undertaking for those who feel compelled to act out of conscience.

Today we have a divisive Government, with an agenda which was not supported by a majority of the electorate. Be it austerity, or energy policy, or reform to the legal system – never have such regressive, wide-ranging and controversial changes been enacted in modern political history.

On the specific point I am challenging, I believe that the law is on the public's side – and that it is the Government who are breaking the law. But what I have discovered over the last two years, in pursuit of that case, is that there is a much more serious issue at stake here.

Through my past work[36] with those who have experienced what it is to live in a repressive country, I believe that we should all be gravely concerned about the Government's reforms to the justice system – and what they mean for our future well-being.

The true character of a democratic society, as Dostoyevsky stated, can be judged by entering its prisons. But what of the administrative processes before that? What does that tell us about the character of a nation?

What binds us together, more than a monarch or a ballot box, is a sense of shared justice; a belief that our safety and well-being lies within our allegiance to 'our' state, its values and its system of laws.

But what if the state becomes prejudiced, for overtly ideological reasons, against those traditions? What happens when it favours ideological assumptions over pragmatic evidence? Are we then necessarily called upon to defend those values through seeking to uphold them?

On that point, I believe we should all take note of the words of a significant figure within modern British political history, John Stuart Mill[37]

Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing.

Seriously, if you want to gain a detailed understanding of this issue – perhaps to express your personal opposition to these changes – find yourself a worthy and constructive method to put yourself through this process.


References:

  1. Wikipedia: 'Brazil'https://en.wikipedia.org/wiki/Brazil_%281985_film%29
  2. Youtube: 'Brazil Interrogation Scene'https://www.youtube.com/watch?v=NA9B6-s6r7Y
  3. YouTube: 'Arrest the Cabinet'https://www.youtube.com/watch?v=tc1ESFg4fkA
  4. Paul Mobbs/MEI: 'Fracktured Accountability'http://www.fraw.org.uk/mei/archive/fracktured_accountability/index.shtml
  5. Wikipedia: 'Duty solicitor'https://en.wikipedia.org/wiki/Duty_solicitor
  6. BBC News: 'Legal aid reforms – Solicitors lose duty contracts challenge', 18th February 2015 – http://www.bbc.co.uk/news/uk-31522509
  7. Wikipedia: 'Trial by ordeal'https://en.wikipedia.org/wiki/Trial_by_ordeal
  8. The Ecologist: 'Behind the Magna Carta spin, Britain's 'dictatorship of the 1%' is taking shape', Paul Mobbs, 11th June 2015 – http://www.theecologist.org/News/news_analysis/2904262/behind_the_magna_carta_spin_britains_dictatorship_of_the_1_is_taking_shape.html
  9. Wikipedia: 'Summary offence – United Kingdom'https://en.wikipedia.org/wiki/Summary_offence
  10. Department of Justice: 'Legal aid'https://www.gov.uk/legal-aid/overview
  11. Wikipedia: 'Legal Aid, Sentencing and Punishment of Offenders Act 2012'https://en.wikipedia.org/wiki/Legal_Aid,_Sentencing_and_Punishment_of_Offenders_Act_2012
  12. Guardian On-line: 'Open letter condemns legal aid cuts, calls on new government to restore justice', Owen Bowcott, 1st May 2015 – http://www.theguardian.com/law/2015/may/01/open-letter-judges-peers-restore-legal-aid-incoming-government-justice
  13. Liberty: 'Justice and fair trials'https://www.liberty-human-rights.org.uk/human-rights/justice-and-fair-trials
  14. Law Society Gazette: 'Law centres – Picking up the pieces', 1st September 2014 – http://www.lawgazette.co.uk/analysis/features/law-centres-picking-up-the-pieces/5042728.fullarticle
  15. Department of Justice: 'Legal aid reform'https://www.gov.uk/government/policies/legal-aid-reform
  16. Wikipedia: 'Criminal Justice and Courts Act 2015'https://en.wikipedia.org/wiki/Criminal_Justice_and_Courts_Act_2015
  17. Wikipedia: 'Bullet fee'https://en.wikipedia.org/wiki/Bullet_fee
  18. YouTube: 'Last Week Tonight with John Oliver – Bail'https://www.youtube.com/watch?v=eg2J36Mz5Cc
  19. Wikipedia: 'Debtors' prison'https://en.wikipedia.org/wiki/Debtors%27_prison
  20. Wikipedia: 'Plea bargaining in the United States'https://en.wikipedia.org/wiki/Plea_bargaining_in_the_United_States
  21. Democracy Now: 'Accused of Stealing a Backpack, High School Student Jailed for Nearly Three Years Without Trial', 1st October 2014 – http://www.democracynow.org/2014/10/1/accused_of_stealing_a_backpack_high
  22. Legislation UK: 'Section 54, Criminal Justice and Courts Act 2015'http://www.legislation.gov.uk/ukpga/2015/2/section/54/enacted
  23. Department of Justice: 'Fact Sheet – Criminal Courts Charge', July 2014 – http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/336085/fact-sheet-criminal-courts-charge.pdf
  24. Legislation UK: 'The Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015', SI.796/2015, April 2015 – http://www.legislation.gov.uk/uksi/2015/796/pdfs/uksi_20150796_en.pdf
  25. Department of Justice: 'Criminal Justice And Courts Act 2015', Circular No. 2015/01 (paragraphs 166-173), updated May 2015 – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/428204/cjc-act-circular.pdf
  26. Halbury's Law Exchange: 'The Criminal Courts Charge: a "tax on the poor" or making criminals "pay their way"?', 15th April 2015 – http://www.halsburyslawexchange.co.uk/the-criminal-courts-charge-a-tax-on-the-poor-or-making-criminals-pay-their-way/
  27. Law Society Gazette: 'Society outrage at 'back door' criminal court fees', 27th March 2015 – http://www.lawgazette.co.uk/law/society-outrage-at-back-door-criminal-court-fees/5047914.fullarticle
  28. BBC News: 'Court charge of up to £1,200 for criminals revealed', 27th March 2015 – http://www.bbc.co.uk/news/uk-32078676
  29. Wall Street Journal: 'As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime', Gary Fields and John R. Emshwiller, 18th August 2014 – http://www.wsj.com/articles/as-arrest-records-rise-americans-find-consequences-can-last-a-lifetime-1408415402
  30. Guardian On-line: 'Tory welfare cuts would hit poorest third of UK families, research shows', 14th June 2015 – http://www.theguardian.com/politics/2015/jun/14/tory-welfare-cuts-would-hit-poorest-third-of-uk-families-research-shows
  31. Independent On-line: 'Benefit cuts are already being blamed for the deaths of many vulnerable people, but there could be 60 more that we never hear about', 23rd December 2014 – http://www.independent.co.uk/voices/comment/government-benefit-cuts-are-already-being--blamed-for-the-deaths-of-three-vulnerable-people-and-there-may-be-60-more-9942735.html
  32. Guardian On-line: 'Austerity isn't 'good housekeeping': it's dogmatic, risky and unjust', Heather Stewart, 7th June 2015 – http://www.theguardian.com/business/2015/jun/07/austerity-isnt-good-housekeeping-dogmatic-risky-unjust
  33. Network for Police Monitoring: 'New court charges will have 'significant impact' on low-income protest defendants', 13th April 2015 – https://netpol.org/2015/04/13/criminal-court-charge/
  34. Wikipedia: 'Community Charge'https://en.wikipedia.org/wiki/Community_Charge
  35. Wikipedia: 'Presumption of innocence'https://en.wikipedia.org/wiki/Presumption_of_innocence
  36. Paul Mobbs/MEI: 'APC Participating With Safety Toolkit', March 2002 – http://www.fraw.org.uk/mei/participating_with_safety.shtml
  37. Wikipedia: 'John Stuart Mill'https://en.wikipedia.org/wiki/John_Stuart_Mill