Leveson: Explosion of criminal justice legislation
Failure to make criminal practice – whether for the prosecution or the defence – an attractive career choice will have “long term and detrimental consequences” for the quality of justice, the president of the Queen’s Bench Division has warned.
Delivering the inaugural Criminal Cases Review Commission (CCRC) annual lecture, Sir Brian Leveson also expressed concern that investment in technology might reduce the number of lawyers employed by the Crown Prosecution Service (CPS).
Sir Brian referenced the Law Society’s recent warning that criminal defence solicitors are getting older without a new generation coming behind them, and added that many chambers have not taken on new tenants to undertake criminal work either.
He said: “Funding is at the core and although I do not comment on the present issues between the profession and the Ministry of Justice, if we are to maintain quality standards now and in the future, it is critical that this work must both be seen to be, and must actually be, an attractive career option for practitioners entering the legal profession.
“More than that, if we are to maintain the high quality of our criminal judiciary in the future we need to ensure that high-quality solicitors and junior criminal practitioners continue both to enter this area of practice and to stay within it.
“Any failure to act to reverse this situation today will have long-term and detrimental consequences for the pursuit of quality criminal justice in the future and will inevitably impact on the work of the CCRC as failures in the system are exposed, far too late.”
Another current problem with the system was an “explosion of criminal justice legislation [that] has overwhelmed us all”.
Between 2007 and 2015, there were 25 statutes dealing with criminal justice taking up 1,737 pages in Halsbury’s Statutes of England, Sir Brian said, “which amended much of the earlier legislation and is so complex as to have become almost inaccessible even to the most able of lawyers”.
He continued: “That says nothing about the numerous amendments to earlier legislation, some brought into force, some not and nothing about the torrent of secondary legislation also creating a myriad of offences.
“This complexity inevitably takes time and effort to unravel with resultant cost, appeals and doubtless leading to references to the CCRC. Parliament must consider how far this improves the safety of the citizens of this country.”
The problems facing lawyers, as well as the police, were a question of resources.
“The question is: do we have the resources for the Premier League, for the Championship or non-league football? Resources determine, or at least affect, quality.”
Noting the fall in the CPS’s budget, Sir Brian said: “Of course, technology can and does continue to improve the way we work and it does lead to savings. If, however, it means that there will be fewer lawyers and fewer paralegals, it is inevitable that less time will be spent on each case.
“In turn, that may mean that it will not be possible to achieve the objective that, in each case, there is an identified CPS lawyer who is available to speak to a defence solicitor to resolve issues and make progress in the case. That is how litigation is resolved in every other area of law.”
The high-profile problems with the disclosure of unused evidence in criminal trials, and the possible solutions, highlighted “a common thread, a golden thread perhaps”, Sir Brian said.
“There is no single criminal justice system. It is a system of systems: a normative system, with Parliament and the courts determining the nature of criminal law; a preventive, detective, and investigative system operated by the police; a prosecutorial system, operated by the DPP and Crown Prosecution Service; an adjudicative system, made up of, and requiring effective access to, legal aid, the legal profession for defence representation, and the courts; and, a punitive and rehabilitative system operating with the Prison Service.
“As with any ecosystem, its vitality is a product of the effective interaction between its constituent parts and of their individual vitality. A structural weakness in their interaction, a fundamental weakness in any one or more parts, will undermine the system as a whole.
“Cures to problems in one part of the system may have an adverse impact on the operation of other parts of the system or on the system as a whole.
“Reform should not be viewed in isolation. It needs to be a co-ordinated, cooperative endeavour. If it is not we run the risk of compounding problems or creating new ones. Where that happens our ability to secure procedural justice will be compromised, and we may then increase the possibility of error.
“Our pursuit of criminal justice is one therefore that requires us to consider the vitality of each part of the system. It requires us to take all proper steps to ensure that if the system is as strong as its weakest part, we do not countenance the weakening of any particular part.”
Achieving this may require reconsidering the delivery of criminal justice “from first principles”, he concluded, at each stage of an investigation asking the question: “Is this the best way to secure the truth and to minimise the possibility of error?”
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