Disclosure was a ticking bomb ready to explode. For years lawyers campaigning against legal aid cuts were advised by sympathetic reporters that they needed real examples about real people. Whilst we all had clients who could say that their fates would have been different ‘without legal aid’ only a handful were willing to relive their experiences publicly.
Leroy Skeete, Raphael Rowe and others spoke at various rallies. The Justice Alliance used a selection of talking heads for the excellent “I am for justice” campaign. This symptom of our rotten crumbling justice system did not manage to resonate. The Ministry of Justice was able to end each article with the mantra about the generosity of our legal aid system and thus the concerns of the public who were not related to lawyers or defendants was satisfied. It was a public argument that has been very hard to win although the Bach commission with the late Sir Henry Brooke as its vice chair began to make some progress in raising the alarm over the post LASPO-landscape.
On Tuesday 30th January as the legal profession were leaving their tributes to Sir Henry in the virtual condolence book that appears to have evolved on Twitter, something appeared to signify a change. A major development on the Brexit saga was displaced as the lead story on News at Ten by the disclosure scandal in the case of Liam Allan, a middle class student of criminology.
Allan could so easily be in Highdown Prison serving the early weeks of a five year sentence. The Crown Prosecution Service has accepted a failure on their part and apologised. In essence a first admission by a government agency that there are failings within our justice system.
But no admission from DPP Alison Saunders that there are likely to be others not so fortunate as Allan and the three cases that followed him over December and January.
How many other Liam Allans are there? Whilst sexual offences capture attention due to a strange cocktail of tabloid voyeurism and ‘it could happen to anyone’ disbelief, there could be thousands wrongly convicted and sentenced to non-sexual offences who will struggle to have their names cleared. Those will largely be defendants accused of so called volume crimes, less serious offences of violence, ABH and low level drug dealing.
These defendants have recently struggled to access legal advice for their cases due to the cuts in legal aid rates and the lack of solicitors with time and resources to attend to their cases. I am aware of firms no longer willing to place themselves at risk by taking on cases they simply cannot afford to conduct properly. Those defendants who are fortunate to have lawyers to fight their corner see their lawyer’s complaints about lack of disclosure usually treated with scant respect by judges and magistrates who indulge the CPS failings, their overriding aim being to process the case.
Then there are the defendants who although not imprisoned are summarily convicted without the benefit of representation. Penelope Gibbs’ recent study for Transform Justice illustrates the volume of unrepresented defendants appearing before the courts (here).
There is a near invisible scandal of those that are convicted and lose their character and subsequently employability without the benefit of expert advice in relation to disclosure. How can unrepresented defendants possibly be equipped to challenge the Crown Prosecution Service on their duties to disclose?
Before the Criminal Procedures Investigation Act 1996 tightened up disclosure regime the presumption was always in favour of disclosing. The notion is a simple one, if material is held about an individual they should know about it.
Recent experience must surely now demonstrate that we need to return to the previous regime ‘unless it is genuinely not in the public interest to do so’. After all what have the prosecution got to hide these days?
Jonathan Black is a partner at BSB Solicitors
- Disclosure’s ticking time bomb - 1st February 2018
- It’s not the lawyers. It’s the system - 14th September 2017
- Flexible courts and local justice - 1st June 2017
- What’s so good about pro bono? - 15th May 2017
- If defence firms are barred from holding LAA to account, who will? - 12th August 2016
- Gary Bell needs to retract his ill-informed views about ‘venal’ solicitors if he wants our confidence - 7th June 2016