In twenty-first-century criminal litigation where liberty is on the line, matters of law, not just fact, are decided by volunteers armed with absolutely no formal legal knowledge or training
Magistrates, and the quality of justice that their courts engender, are very much The Future. This hangover of thirteenth-century parochial peace-keeping, far from being gently put out to pasture, is re-engineered as our turbocharged, armoured vehicle of justice for the new millennium. And, try as I might, I cannot accept that the arguments in favour withstand the slightest scrutiny.
This is the position in which roughly one in seven remanded defedants – over 67,000 people in 2016 – find themselves. Nearly 15 per cent of remanded prisoners are acquitted or not proceeded against. And, among this number, as it happened, was Rio. He was acquitted. The jury did not accept Lori’s claims, and Rio was found not guilty on every count. The time spent on remand was something he was just expected to aceept, forgive and forget.
To me, this cannot be right. It can’t be fair, on the most fundamental level, that the state can sweep in, turn your life upside down and waltz out again, like a remorseless, localized tornado, without so much as an apology.
Back in the mid- to late twentieth century, the burden of proof was not merely sacrosanct but absolute. The prosecution had to prove its case. The defendant was entitled to say nothing, do nothing, and simply wait until the trial to see if there was a chink in the prosecution chainmail through which a cunning solicitor or barrister could fire a silver bullet.
In a series of High Court decisions from 2006 onwards, cherished totems of the cunning defence lawyer were demolished one by one, held to be contrary to the spirit and letter of the New World Order.
It bears repeating. you can be prosecuted by the state. You can be refused legal aid and forced to pay privately. You can be found not guilty of any criminal offence. And the life savings that you have exhausted in the process of defending yourself will not be refunded.
We thus have the theoretical pantomime of a private prosecutor falsely accusing an innocent person of a crime, bringing a case to trial, losing and walking away financially restituted, while the innocent, victorious defendant is forced to sell his home to pay the cost of his acquittal.
The consequences of the Innocence Tax are exhaustively threefold: the cost of justice will fall; more innocent people will be financially ruined; more innocent people, forced to self-represent, will be convicted. There is nothing else. These reforms, like so many others, care nothing for the quality.
A grim report by the charity Transform Justice included a case study in which a man wrongly accused of an offence of criminal damage ended up paying more to be acquitted than he would have paid by way of a fine had he simply pleaded guilty. Again, such instances are not accidents, they are designs of our system. And they exist because no one gets elected promising a better justice system. Just a cheaper one. Other things matter more.
On 19 March 2014, two months after the Innocence Tax took its current form the government in the Budget proudly announced a 1p cut to duty on a pint of beer, and a freeze to duty on cider and spirits. The cost to the taxpayer of this largesse was estimated at £300 million per year. The figure that had to be cut from criminal legal aid, that could not be avoided, that meant it was necessary to punish the wrongly accused and increase the risk of innocent people going to prison, was £220 million per year.
As I say, it’s a matter of priorities.
Prison s we presently do its an expensive way of making bad people worse.
Here you can find my review of The Secret Barrister.