Blind to justice
In less febrile times, the police’s behaviour in Operation Midland ought to be a national scandal:
- a failure to understand that the police’s job is to investigate, properly and thoroughly, allegations not announce that they are credible simply because they would like them to be true or to gain publicity or to make up for their failure to investigate other child abuse allegations;
- a failure to provide all the relevant information to the court when obtaining search warrants;
- wasting public money paying someone else to investigate the complainant;
- a lack of urgency (especially concerning given both the age of the allegations and the alleged perpetrators)
Then, when it all falls apart, a failure to investigate the the officers concerned, declaring, without even bothering to interview them, that there was no basis for any disciplinary action. Instead, senior officers have gone onto better jobs. Rewards for failure, indeed. Who do they think they are? Bankers?
This is not an isolated incident though it is a particularly egregious one. It is as if the police have forgotten what their basic function is: to investigate allegations of crimes. Not to provide therapy to the alleged victims; not to determine the truth of the allegations – that is for the judge and jury (or magistrates) at a trial; not to get publicity and make themselves look good.
And in this failure they are aided by the Ministry of Justice which seems not to understand some of the basic precepts of the criminal law: innocence until proven guilty, for instance. If you give guidance saying that the term “victim” rather than “complainant” must be used, that the “victim” must be believed, then you are assuming what you are seeking to prove. How can that be fair to the defendant?
It cannot be said often enough that the job of an investigator is to take an allegation seriously by investigating it properly but that this is not the same as believing it, unless there is evidence to back it up. Anyone not understanding this pretty basic concept has no business calling themselves an investigator. Ruthless and cold it may sound, but sentimentality is a very bad basis on which to make policy and nowhere more so than in the criminal law.
But it is not just with the police that problems arise. Pretty much all parts of our criminal justice system are under stress, under-resourced and failing to deliver as they should: –
- The process of disclosure of evidence – both for cases before magistrates and jury trial – is inadequate, with the police unable to review the mass of electronic/social media communication, something which has came close to causing serious miscarriages of justice for men charged with rape.
- The hamfisted way the new Director of the CPS went about clarifying the disclosure requirements, managing both to annoy women’s groups unnecessarily while failing to deliver a clear message about the importance of obtaining evidence, regardless of how upsetting this might be.
- The very slow process of sending cases to trial – defendants are being told now that their cases will not be heard until summer 2020 – as a result of under-funding of the courts system.
- There are judges available to sit but courts are closed to save money. In some cases, matters are simply not going to court at all.
- The virtual unavailability of legal aid, both because of a very restrictive means test and because the rates are so low that few lawyers are choosing to do such work. This affects anyone involved in a legal process such as an inquest, as the families of those killed in the London Bridge terror attacks have found out.
- The “innocence tax” whereby an innocent person only gets their costs reimbursed at the lower legal aid rates not what they actually paid, leading to them losing their savings or being made bankrupt.
- A lack of duty solicitors available to those arrested and thrown into a police cell. Those first hours and what is said/not said are often crucial. And yet in parts of the country there is no-one available to help.
- The very long delays while people are released under investigation with no idea when a decision will be made and with no obligation on the authorities to tell them, a form of purgatory while lives are put on hold.
- Privatised forensic services which are on the brink of collapse, inadequate and risk causing miscarriages of justice.
Don’t imagine that matters are better at the high end of criminal work. The SFO continues its long-established tradition of never living up the promises made by those in charge of it, its latest difficulties relating not just to failures at court but to a report detailing a toxic bullying culture within the organisation.
The FCA’s record on the criminal side has hardly been stellar. And then are the prisons and the probation services. One example will suffice: Feltham Young Offenders Institution, a place so troubled that the government has stopped sending anyone there following a recent independent inspection.
The legal system has few friends. There is an assumption that it mostly deals with the criminal and the feckless. Few politicians care about them. It has no “Aaah” factor. Most people hope never to encounter it. Those who are caught up in it are generally appalled by the experience. It has been in recent years put in the care, if that is the word, of politicians with little knowledge about it and little willingness to learn, let alone to fight to make it better.
For 6 years from 2012 to 2018, no lawyer was deemed worthy to be Minister of Justice, the choice instead falling on Chris Grayling and Liz Truss, about whom the word “second-rate” would be an undeserved compliment. Michael Gove spent much of his time undoing the damage caused by his predecessor. Few Ministers lasted more than a year. And who was responsible for the police? Well, one Mrs May, followed by Amber Rudd and Sajid Javid. Enough said.
Lawyers, however eloquent they may be on behalf of their clients, are generally hopeless at explaining why law and justice matter to anyone other than fellow lawyers. But our legal system does matter, very much indeed. There is no more important function of the state than the maintenance of law and order.
Crucial to that are a competent police force, a legal system which works and in which equality under the law and access to justice are not simply empty phrases, prisons which are something other than a breeding ground of violence and hopelessness and a probation service which works. All these aspects matter not just one of them.
The rule of law is not simply an airy phrase: it is the reality of a state able to keep its citizens safe, a state able to apprehend criminals, a state able to dispense justice, a state able find the right balance between the rights of the innocent and the guilty, a state able to enforce its laws, a state able to punish fairly and provide the hope of rehabilitation for those who have paid their dues.
The Government has announced that next week is “Crime Week” and that it will hire lots of policemen to make criminals feel terror. But unless it is prepared to fund all aspects of the criminal justice system properly, unless it is prepared to recognise that competence and professionalism are what matter not glib phrases more suited to a Chinese police official, unless it is prepared to listen to those who have been pointing out the failings and what needs to be done to correct and improve them and take action, tough-sounding announcements will mean little.
The rule of law in its widest sense is something of which Britain ought to be proud; it has probably had a greater claim than the NHS to be considered “the envy of the world“. But for too long it has been neglected, downgraded, ignored and managed by penny pinchers who know the price of everything and the value of nothing. Futile as this plea may be, it is long past the time for this to stop.