If you want​ to appeal against a guilty verdict given by a crown court jury you first have to seek permission from the Court of Appeal. For permission to be granted, a judge has to be satisfied there is an ‘arguable case’ that the conviction was ‘unsafe’. If so, the appeal is heard in full by a panel of three judges. The latest figures show that in 2016-17 the court received 1305 applications for permission to appeal, and dealt with 850, refusing permission to 695 (82 per cent). It heard 215 appeals, and allowed 78 – 36 per cent of those heard.

The total number of applications and of successful appeals represents a tiny proportion of the tens of thousands of convictions in the crown court every year. This might mean that the system is nearly perfect, fulfilling the ‘overriding objective’ stated in the Criminal Procedure Rules: ‘that criminal cases be dealt with justly’, ‘acquitting the innocent and convicting the guilty’. Or the figures could be disguising deeply rooted problems in the system.

That is the way it looks to those of us who work in the system’s lower reaches, and to the House of Commons Public Accounts Committee, which found in 2016 that ‘the criminal justice system is close to breaking point.’ Things have got worse since then. There have been several well-publicised cases recently in which the Crown Prosecution Service or the police failed to disclose critical information to the defence, with the result that the prosecutions had to be dropped. Alison Saunders, the outgoing director of public prosecutions, maintains that budget cuts of about 23 per cent between 2010 and 2015 have not affected the CPS’s performance. In fact, the failures of disclosure are symptomatic of a system that has been cut so far that it can no longer be relied on.

Criminal justice has long been a sandpit for policy-makers, with the political imperative being always to appear ‘tough on crime’. It would be unfair to blame one man for the present state of affairs, but for casual ineptitude no cabinet minister comes close to Chris Grayling, lord chancellor and justice secretary between 2012 and 2015. His hostility to public funding helped put access to justice out of reach for those who need it most urgently, but cannot pay for a lawyer. He and his successors (David Gauke is the fourth justice secretary in three years) failed to resist the cuts that by 2020 will have reduced the Ministry of Justice’s budget by 40 per cent in a decade, and have already caused it to lose many of its senior and most competent civil servants. Legal aid has been stopped entirely in many areas of law, including most medical negligence claims, employment law, non-asylum immigration law, housing cases, and most welfare benefit claims and divorce cases, even those where children’s welfare is an issue of concern. Prison budgets have been cut by about 30 per cent. Grayling stopped prisoners receiving books. He cut the numbers of prison officers. He hived a large part of the probation service off to private companies, several of which have performed poorly and have had to be saved from going bust by the taxpayer. His legacy is the violence and anarchy that reigns in many prisons today. At the same time, the fees paid to lawyers for handling cases that still remain within the scope of legal aid have been reduced to the point where the choice is doing the work at a loss or not at all.

At the start of his brief tenure as lord chancellor in 2015 Michael Gove got the diagnosis right when he said that the UK has a two-tier justice system in criminal law, favouring the rich at the expense of everyone else:

The waste and inefficiency inherent in such a system are obvious. But perhaps even more unforgivable is the human cost. It is the poorest in our society who are disproportionately the victims of crime, and who find themselves at the mercy of this creaking and dysfunctional system. Women who have the bravery to report domestic violence, assault and rape. Our neighbours who live in those parts of our cities scarred by drug abuse, gangs and people trafficking. These are the people who suffer twice – at the hands of criminals and as a result of our current criminal justice system.

Unfortunately, there has been no improvement since then. The blogger and anonymous author of The Secret Barrister: Stories of the Law and How It’s Broken (Picador, £16.99) exposes as a sham the claim that victims are at the heart of the system. They turn up at court, but the court has overfilled its list, and so they have to return months later, when the same thing may happen again. Some give up, and defendants go free by default. The government would rather waste everyone’s time than pay to keep enough courts open to hear cases without unreasonable delays. The House of Commons Justice Committee reported that 55 per cent of witnesses or victims would not be prepared to take part in criminal proceedings again.

In 2016-17, while the Court of Appeal heard its 215 appeals, magistrates’ courts dealt with 1.38 million defendants, about 94 per cent of all criminal cases: those that do not qualify for jury trial or where the defendant has chosen to have his case heard in the lower court. The Secret Barrister calls magistrates’ courts the Wild West, feeling that the quality of justice, both procedural and substantive, is poor, especially as dispensed by the amateur and inadequately trained lay justices who do most of the work. The volume of cases and the cost of contested trials puts pressure on these courts to extract guilty pleas as rapidly as possible. The procedure rules stipulate that there should be no more than two hearings for cases heard in magistrates’ court – one for the plea to be taken, and one for trial or sentence. Adjournments are seldom given. The prosecution has to provide the defence with ‘initial details’ of the case ‘no later than the beginning of the day of the first hearing’, which invariably means on the day. These details are often incomplete and inaccurate when compared with the witness statements – the actual evidence – on which they are based. There is precious little time for the defence advocate to give advice and take instructions before the case is called, when it will be prosecuted by a CPS lawyer who may have received the twenty or so files for the day’s cases a few minutes before the sitting starts, leaving almost no time for discussion with the defence or for thinking about the case.

The sentencing procedure in the magistrates’ court and the crown court penalises those who fail to plead guilty at the first opportunity by reducing the ‘discount’ of one third off the standard sentence to (at best) 10 per cent for a late plea. It’s hard to disagree that people who have committed offences should plead guilty, and should be discouraged from spinning things out. But in a period of austerity, the pressure on defendants to plead guilty in a hurry risks injustice. If material that may undermine the prosecution or help the defence is not given, the risks multiply.

The people in charge of the system look obsessively at throughput, and count up the number of guilty pleas (expressing anxiety if they dip) and the number of cases listed. Things which should also be measured but aren’t include the hours wasted when private security firms fail to bring prisoners to court on time, or at all; the cost of the privatised interpreter service sending the wrong interpreter, or none at all; the time lost when jurors have to leave court to buy lunch because the catering has been stopped; even the number of ceilings falling in. I could go on. The people in charge know about these tedious problems, but resources are too limited for an effective response. Things that can’t be measured include the effect on a victim of domestic violence if the prosecution drops the case against her abuser due to incompetence. Or the extent to which a trusting relationship between lawyer and client requires time and personal contact – a twenty-minute slot in a video link booth will not do.

The senior judiciary, who make the rules and set most of the operational policy, have responded to austerity by having a go at running the system on the cheap. The one significant financial outlay has been on the long-overdue digitisation of case papers, but the Treasury insists that this cost must be met by the sale of court buildings. That means people will have to travel longer distances, at greater expense. For many of those caught up in criminal justice, a bus fare (if there’s a bus) is a significant outlay. And for some young defendants and witnesses in the cities, crossing areas where hostile gangs operate is a dangerous prospect. Lines of accountability are blurred, as in so many of our outsourced public-private entities. The churn of ministers means that no one is in office long enough to get a grip.

The Secret Barrister has become a surprise bestseller. He or she can be forgiven occasional flights of angry rhetoric (‘sentencing of offenders often amounts to a giant confidence trick’), because sentencing law has indeed become so opaque, even to the professionals, that the basis for a particular sentence is almost impossible for anyone to understand. A recent lord chief justice said that ‘hell is a fair description of the problem’ of interpreting some sentencing statutes: amendments and repeals encrust original provisions like barnacles. This is a campaigning book, written by a true advocate, and thanks to an initiative by the Criminal Bar Association, every MP has received a free copy. They need to read it and take action.

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Vol. 40 No. 21 · 8 November 2018

All criminal lawyers will agree with Francis FitzGibbon’s condemnation of our dilapidated criminal justice system and with The Secret Barrister, whose book he recommends to MPs (LRB, 11 October). ‘They need to read it,’ he says, ‘and take action.’ What action? No one expects the government to provide our adversarial system with the resources it needs. The action we should take is to make it less adversarial. There is much we might learn from our Continental neighbours. As John Langbein asserts in The Origins of Adversary Criminal Trial (2003),

European criminal procedural systems became hybrids of European and English, but they retained their defining feature, the principle that criminal courts must have the duty and the authority to seek the truth. In England, by contrast, the well-meaning reforms of the 18th century that resulted in adversary trial had the effect of perpetuating the central blunder of the inherited system: the failure to develop institutions and procedures of criminal investigation that would be responsible for and capable of seeking the truth.

It is because they are more efficient at discovering the facts that Continental jurisdictions have fewer people in jail than we do. (Germany imprisons half as many.) Europeans understand Beccaria’s old maxim that it is not the severity of the punishment that deters so much as the certainty of detection and conviction.

The right action would be to professionalise the magistracy and improve policing. There would be more resources for investigators, who would be accountable to and directed by a specialist judiciary. Investigation would be more thorough. Police would not be writing off great swathes of minor crime. Then we might begin to get prison numbers down and ensure that when prisoners finish their term they are better equipped for life outside. And, no less important, we would avoid many of the problems associated with the disclosure of exonerating material – problems that are inevitable in an adversarial system.

Richard Lomax
London SE3

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