By Anna Noble
Content warning: mentions of rape.
With life slowly returning to ‘normality’, the UK government have a new problem: normal reality. Everyday issues such as an overstretched NHS, or a criminal justice system at breaking point, can no longer be put on standby in favour of dealing with the pandemic. With few answers on how to address such significant issues in society, the government appear to have adopted a new policy: shift the blame.
Boris Johnson caused outrage recently by blaming the court backlog plaguing the criminal justice system on “do-gooder” defence lawyers. Yet this could not be further from the truth. Dominic Raab and his predecessor Robert Buckland have also blamed solely the pandemic for creating the court backlog. It is true that the pandemic undoubtedly made the situation worse. A case is now considered lucky if it only faces a two-year delay until it is heard in court; three or even four years is now not uncommon. Yet the pandemic has also provided a convenient excuse, which arguably tells only half a story.
The criminal justice system has been at breaking point for a long time. The backlog of cases was significant even prior to the pandemic, when criminal cases would already routinely wait up to two years to be heard. In March 2020, The Law Society Gazette reported that figures from October-December 2019 showed that the number of outstanding cases had increased by 13% from 2018, causing the biggest backlog of cases since 2017.
The Ministry of Justice has also had its budget cut in real terms by 25% in the past decade. The impact of this cannot be dismissed in terms of real world consequences. It should also be considered that crime has on average increased since 2010, yet the total number of prosecutions has decreased. This has meant historically low prosecution rates, particularly for crimes such as rape. In 2020, less than one in 60 cases lead to a defendant being charged. Fewer still resulted in prosecution.
Rape prosecutions have statistically been falling for the past half-decade. The Guardian reported that the year up until March 2020, prior to the first lockdown, the Crown Prosecution Service (CPS) prosecuted and convicted fewer people for rape than any other year on record, despite reported cases rising. In real terms, this meant that in the year of March 2019-2020, with 1000 prosecutions, fewer rapists were prosecuted in comparison to 2018, a statistic that the Victims Commissioner for England and Wales, Dame Vera Braid, called “utterly shameful”.
Cuts to the CPS must also be appreciated as contributing to court backlog and falling prosecution rates in 2018/19. Statistics provided by the House of Commons Library show that there were 5,684 full-time equivalent CPS staff in post in 2018/2019, whereas in 2010/2011 this figure was 8,094. This is a reduction of 29.8%. Access to legal aid also reduced by 35% (over a third) between 2010/11 and 2018/19, with many defendants now finding that they do not qualify. Some have been forced to represent themselves in court as they cannot afford legal representation. This is concerning as it raises issues about whether such defendants will get a fair trial and questions of ‘equality of arms’ before court.
It is clear from the statistics that there are deep flaws and failings contributing to the current crisis within the criminal justice system. Austerity and a decade of cuts have impacted the justice system and left it vulnerable to the impact of the pandemic.
Further, it seems disingenuous for Boris Johnson to blame defence lawyers for lowering prosecution rates and causing a criminal backlog by producing a “a spurious or otherwise reason why the defendant might have thought consent was given”. The job of a defence lawyer is to represent their client and offer an alternative explanation of events to that of the prosecution. Johnson, in effect, is criticising lawyers for simply doing their jobs. This is concerning. In doing so, Johnson is arguably attacking the very notion of a free trial and the presumption of innocence until proven guilty.
Lawyers united to condemn Johnson’s comments. A whistle-blower and author who goes by the pseudonym ‘The Secret Barrister’ wrote on Twitter that Johnson was a “liar” and that the “chronic delays in criminal justice are not caused by the defence, nor by [Covid-19]”, but instead by “this government’s savage cuts to every part of the criminal justice system”. The former president of the London Criminal Courts Solicitors’ Association, Johnathan Black, echoed this sentiment, arguing that whilst Johnson and the government blamed lawyers instead of reflecting on their own failings, “we have no chance of sorting this mess out.”
The government needs to recognise that the criminal justice system is practically collapsing because of chronic underfunding under Tory governance. Their attempts to shift the blame seem blatant and surely cannot be accepted.
Image: Shark Attacks via Flickr