Law 5: State of the law

When I wrote “Brexit and Reform” in the summer of 2019, I knew of the cuts to Legal Aid and strike action by the criminal bar. However, I did not know the full extent of the difficulties the legal system faces in England and Wales.

During my commutes, lunch breaks, and other sundry hours, I read Under the Wig, by William Clegg QC, The Secret Barrister, by anonymous, and In Your Defence, by Sarah Langford. I suspect I would not generally agree with the political views of these three authors in the round, but I generally agree with their values regarding the legal system and their analysis of the problems it currently faces.

I generally deal with civil, rather than criminal, law (although some of my work touches on the other side). Although I have observed a trial in the Crown Court as a court of first instance and have also observed an appeal from the magistrates’ court in the Crown Court, my experience of the workings of the criminal justice system is somewhat limited. That being said, I have some anecdotal experience that confirms to me the immense workload the Crown Prosecution Service (CPS) seems to be under.

Access to justice is an important issue and one that needs to be considered in both detail and broader perspective. People of different ideologies may disagree over the best ways of tackling the root causes of disputes and social problems, but it is hoped that most people would generally agree to the following points:

  • The courts should (generally) be a measure of last resort;
  • Cases should be tried by competent individuals with regard to both determination of fact and determination of law;
  • There should be adequate resources disposed to Her Majesty’s Courts and Tribunals Service (HMCTS) so that people are not waiting inordinate amounts of time for cases to come to trial (both civil and criminal);
  • The CPS and police should be provided with adequate resources so that as much evidence as possible is procured and properly assessed in time for both the prosecution and defence to prepare their cases properly and to make adequate submissions to the court in respect of admissibility and case management generally;
  • The criminal law ought generally to be easily accessible and as intellegible as practicable so that the average citizen has a working knowledge of it at a basic level;
  • The prison service ought to have adequate resources to avoid the problems of overcrowding, suicide, fights, and drugs, and to make better efforts towards the rehabilitation of offenders;
  • Better efforts must be made to re-integrate offenders into society;
  • Some matters ought not to be classed as criminal offences (or even civil wrongs).

A great deal of criticism is squarely levelled at the state, but there are also considerations for private groups and individuals to ponder. Reform of our legal system needs to be considered in the context of the broader malaise that affects our societies.

The problem with a view that focusses too much on money is that it is myopic. Roger Scruton, Lord bless his soul, was aware of this, and this was one of the reasons he identified as a conservative, rather than, say, a libertarian.

He was aware that some things cannot be valued in pounds and pence, and that society has traditionally reserved certain aspects of life from the economic sphere. In considering why we need a justice system that works properly, we must consider our duty to justice, regardless of the cost, and the importance of using all means available to build as healthy a society as is possible in this age (but without the naivety that adherents of dominionism espouse).

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