Hanging in the balance
How could ‘the party of law and order’ have inflicted such savage damage on the justice system – and what are they going to do to fix it? Steve Boggan attempts to find out
When, after a two-year struggle to clear his name, Pawel Uczciwek stepped from the dock a free man, words of vindication ringing in his ears, he should have felt more elated – more relieved – than this. He had suffered death threats, public humiliation and social media-shaming when he was wrongfully accused of a racially motivated hate crime. He had become used to people at work treating him with suspicion and to long sleepless nights bedevilled by stress and anxiety.
He had imagined the worst outcome – a two-year prison sentence. Instead, his innocence was proclaimed loudly, unambiguously, by his trial judge, Rajeev Shetty, at Blackfriars Crown Court in central London. Yet, still, this did not feel like justice.
“It seems to me that this case and the allegations against you are a colossal waste of time … and I am sorry you have had to go through it,” the judge said to him. “But, in any event, at least you can see that the system is fair and, at least, has worked in your favour. All right?”
Somewhere hidden in that question might have been an apology on behalf of the criminal justice system, but sometimes apologies are not enough. In Uczciwek’s case, which was so badly conducted that it was simply thrown out, it certainly didn’t make up for the legal aid shortfall in the costs he was awarded, a shortfall increasingly referred to by lawyers as the “innocence tax”, a sometimes-crippling figure that prevents many people from fighting to clear their name.
It wasn’t enough to make up for the shambolic prosecution of his case. Neither was it enough to excuse the two years he had had to wait for his day in court, at least not in a country that is supposed to embrace the principle that justice delayed is justice denied. “It doesn’t feel like justice when I was wrongly accused, publicly vilified, forced to wait two years to clear my name … and then left thousands of pounds out of pocket for my troubles,” Uczciwek says.
His case is indicative of a justice system that barristers, solicitors, police, probation workers and prison officers say is on the verge of collapse after 10 years of “savage” cuts in funding.
Last month, the depth of those cuts was exposed by the Bar Council, which represents barristers in England and Wales. It wasn’t the first to do so – all sections of the justice system have long been warning that the cuts had gone too far – but it was the most recent and it demonstrated the problem in a novel way; it personalised it by working out how much the government was prepared to spend on each and every one of us to keep us safe and to guarantee our right of access to justice, a right first enshrined in the Magna Carta in 1215. The figure was just 39p per person per day. Compare that with the £1.66 per day per person spent on defence and £6.16 per day on the NHS.
According to the Bar Council report, Small Change for Justice, funding for the justice system in England and Wales was cut by a massive 24 per cent in real terms between 2010 and last year. However, when an increase in the population of 7 per cent during that period is taken into account, it becomes a reduction in spending of 29 per cent per person.
The figure for the Crown Prosecution Service – which is supposed to pursue justice on a victim’s behalf – was a cut of 39 per cent. For the Legal Aid Agency – which is supposed to provide a financial safety net when we need access to justice – it was 37 per cent down. And for policing, possibly the frontline service whose absence we first notice, the cut was 27 per cent.
“When the Bar Council asked me to take a look at spending on justice, I had assumed it would have been roughly in line with the growth of the economy – which was about 18 per cent since 2010,” says Professor Martin Chalkley, the University of York economist who co-authored the report. “I was surprised to see how wrong I was because funding had been cut savagely, by 24 per cent over 10 years. But when I started looking at the numbers per person, I was actually staggered – it was down by 29 per cent. I kept asking colleagues, ‘Did you know that? Were you aware of that?’ and the answer was always ‘No’. People just couldn’t believe it.”
With most Crown Courts not sitting because of Covid-19, the situation is growing worse, with a backlog of almost half a million unheard cases. However, the coronavirus should not be used as an excuse. The rot had set in long before anyone had fallen ill with the disease.
Here I was, engaged to be married to an African woman, and people were calling me racist
Uczciwek, a 31-year-old construction manager from east London, got sucked into the system on 15 July 2017. He and his fiancee, Yolaine Mossimi, 30, were travelling home on the London Underground after a night out when three women began making rude comments about Mossimi.
“I think they had a problem because I am white and Yolaine is black,” says Uczciwek. “One of them called Yolaine a ‘bed wench’ and they were all making racist comments about white people. It was very unpleasant. We got off the train at Baker Street and I was walking down the platform thinking Yolaine was behind me when I heard a commotion. I turned around to see that the three of them had surrounded her. I ran back and got myself between Yolaine and the three. One of them tried to push her towards the tracks, and I stopped that. All I was doing was protecting my fiancee.”
What subsequently happened would send Uczciwek’s life into a spin for two years. One of the women had taken a picture of him and went on to use social media to accuse him of Islamophobia and trying to pull off her hijab. The picture and accusation went viral, and so did the responses.
“I never attempted to pull off her hijab,” Uczciwek says. “I was just protecting Yolaine. We were very shaken up, but we went home and tried to get over it.”
Then, the next day, he got a call from a friend who asked if he had seen Twitter. “I had a look and was horrified,” Uczciwek says. “There was a complete Twitterstorm. People were calling me a violent racist. Here I was, engaged to be married to an African woman, and people were calling me racist.”
On 26 August, Uczciwek and Mossimi made a voluntary statement to the police and countered with allegations about the women’s behaviour. They heard nothing and so assumed the affair had gone away until, on 27 April 2018 – a full eight months later – Uczciwek received notification that he was being charged with racially aggravated assault.
In his case, the prosecution was brought by the British Transport Police because the incident took place on the Underground. There may have been any number of reasons for the delay in charging Uczciwek. When it comes to delays in investigations, cuts in officers and staff numbers are usually the cause.
The number of police officers in England and Wales fell by 21,732 between 2010 and 2018, according to Home Office figures. During the same period, about 600 police stations were closed in England and Wales, according to the House of Commons Library, making it ever more difficult to report crime face-to-face with a police officer. Victims are now expected to report crime by phone or through the internet, meaning interactions with officers are becoming the exception.
Whether this contributes to a sense of “us and them” in some sections of the community is a moot point. However, it could be a factor in a huge rise in the number of attacks on police. Last year, there were more than 30,000 assaults on police officers, with more than 10,000 of them resulting in injury – a figure up by 27 per cent on the year before.
We all know the whole criminal justice service – the whole system – has been neglected for far too long, and that has consequences
Last September, prime minister Boris Johnson announced a plan to recruit 20,000 new police officers over the next three years. Good news, you might think. Well, not really.
“When retirement and people leaving the service are taken into account over the three years, the government would actually have to recruit 56,000 people to achieve a real increase of 20,000,” says John Apter, the national chair of the Police Federation, which represents 120,000 officers. “And that would only take us back to the same levels we had in 2010.”
The promise of more officers was welcomed, as was a pledge to introduce harsher sentences for people who attack emergency service workers. But Apter says his members need help, and they need it now.
“It’s been pretty desperate for us,” he says. “We all know the whole criminal justice service – the whole system – has been neglected for far too long, and that has consequences, whether it’s the probation system, the courts system, prisons or policing. That has a wide-ranging effect and ultimately, the people who suffer are generally the victims and the wider public.”
After being charged, Uczciwek’s legal problems had only just begun.
“It was horrible to find out through the mail that I was to be charged with a hate crime when I had done nothing wrong,” he says. “I had to tell the HR people at work and I felt as if people were talking about me as the hate-crime guy. I lost sleep and my levels of stress went through the roof. It was terrible for Yolaine, too. On social media, people talked about the black girl dating the white racist. I got phone calls with death threats. There would be people who would call and say ‘I know where you live’. I run a small business on the side and some people found that online and emailed insults to me. One even called me a Nazi.”
At least, he thought, now he would be able to clear his name quickly and get on with his life. But he was wrong. He was now trapped in a system that is a shadow of its former self.
Between 2010 and last year, 162 of 323 magistrates’ courts were closed down in England and Wales. This means that up and down the country, large numbers of defendants, victims, witnesses, their families and lawyers, must travel farther and farther distances – at greater costs – to see justice done. And because all criminal cases, no matter how serious, begin at magistrates’ court, this is causing delays across the whole system.
At the end of March, before the effects of Covid-19 had had time to make an impact, the backlog in magistrates’ court cases was at a five-year high of 325,903. In 2010, it took an average 121 days from offence to sentencing in magistrates’ courts; by 2018, it was taking 157 days.
Eight out of 92 crown courts – where more serious cases with jury trials are conducted – have been closed since 2010. Eighteen out of 83 dedicated tribunal buildings have shut down. Ninety of 240 county courts – where civil matters are heard – have been closed. And 17 out of 185 family courts are gone.
At crown courts, the backlog in March, again before the effects of the Covid-19 lockdown, stood at 40,173
cases, up 21 per cent since the year before. Yet the number of days allocated for judges to sit to hear trials had been cut to save even more money as the backlog of unheard cases grew. According to Amanda Pinto, QC, chair of the Bar Council, the number of sitting days in 2018-19 were 97,400; for 2019-20 they had been planned at 82,700.
“The question is, how do people access justice?” says Pinto. “What has happened over the past 10 years, with the complete devastation in funding, is that if you are accused of a crime or if you are a witness to a crime or a victim of one, the delays and the inadequacies in funding for the whole system, including the police, mean that you are unlikely to get a quick result, if you get a result at all.”
Pinto says she believes courts have been closed and sitting days reduced because, farther back down the line, cuts in funding for police and the Crown Prosecution Service were expected to result in fewer people being charged and fewer cases coming to court.
“Courts were shut to save money,” she says. “There was an outcry [among lawyers] last year because we could see the backlog was growing. By the end of last year, the backlog in crown courts was 37,434 and in magistrates’ courts about 300,000. Those numbers have now grown to around 41,000 and 484,000 respectively. In the most serious criminal cases, there was a deliberate decision not to have courts sitting, and with a backdrop of police being underfunded, [the government] expected that there would not be so many people being charged and prosecuted, so you might say it was cynical. That is precisely why an additional 4,500 Crown Court sitting days were announced earlier this earlier – it was an acknowledgement that the system cannot cope.”
The lack of available courts and days that judges sit in them, means that cases are often double-booked so that none of those days is wasted in the event of a trial not going ahead because of an administrative problem, a witness not turning up, and so on. This means that many hearings are cancelled on the day, a costly waste of time and money for everyone involved.
This happened to Uczciwek several times, so it was 30 September last year before his case went ahead at Blackfriars Crown Court. The incident that sparked off his nightmare had taken place on 15 July 2017. He had suffered under a cloud of suspicion for 807 days before being given the opportunity to clear his name.
When you have to break the news to innocent clients that they won’t be getting all of their costs, it is devastating for them
On day one of the hearing, one of the three women admitted under questioning that she had not seen Uczciwek trying to pull off the complainant’s hijab. On day two, neither of the other women turned up for the case and the judge threw it out.
“It shouldn’t take more than two years for a person to be able to prove their innocence and move on with their life,” says Uczciwek. “And one of the worst parts is finding out that even though you have paid UK tax all your working life, and you are found not guilty, legal aid won’t cover your costs.”
The legal aid system was introduced in 1949 to ensure access to justice was available even to the most vulnerable in society. At various times, as many as 80 per cent of adults were entitled to claim it. However, in April 2013 that all changed, at a stroke, when the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) withdrew it from whole swathes of civil matters – ranging from child custody and housing to debt, welfare and immigration. Today, around one-third of all child custody cases involve people representing themselves because they can’t afford a lawyer.
In the year before Laspo was introduced, legal aid assisted people involved in 574,000 civil cases. The next year, just 173,600 claims were approved. In 2010-11, spending on criminal and civil legal aid amounted to £2.2bn. By 2018-19, it had fallen to £1.6bn.
This has resulted in what lawyers call “legal aid deserts” – whole areas of the country where no lawyers are specialising in areas of law, such as housing, because it is no longer viable. Last year, the Law Society published a map (which you can view here) of England and Wales that showed large parts of the country did not have a single housing specialist who could help people facing eviction or repossession. This, in turn, was leading to homelessness that might otherwise have been avoided.
When Laspo came in, there were 94 law centres and agencies up and down the country giving free legal advice to often desperate people. Cuts in spending hit those too. Last year, in answer to a parliamentary question, the Ministry of Justice confirmed the number had fallen to just 47.
More pertinent to Uczciwek’s case, Laspo overturned the principle that people found innocent could reclaim all their legal costs. Instead, they are now reimbursed at legal aid rates that are much lower than costs in the real world. In Uczciwek’s case, this amounted to less than one-third of what it had cost to defend himself. He does not want to say exactly how much his “innocence tax” bill was, except that it amounted to “thousands of pounds”.
Kerry Hudson, Uczciwek’s solicitor and the president of the London Criminal Courts Solicitors’ Association, says: “When you have to break the news to innocent clients that they won’t be getting all of their costs, it is devastating for them. They have often been through the most stressful and psychologically
damaging experience of their lives and waited unfair lengths of time to clear their name, and then they are hit with costs for having done nothing wrong in the first place. But the delay to Pawel’s case isn’t unusual. I currently have a client accused of death by dangerous driving and one of stabbing, and both have been waiting for more than two years to have their cases heard. If you believe that justice delayed is justice denied, then you can’t call that justice, and it’s becoming the norm.”
This is largely because of changes to the law introduced in 2017 under which police forces were allowed to use an instrument called “Release Under Investigation (RUI)”, instead of releasing a suspect on bail. When a person is released on bail, conditions can be imposed upon them such as where they must live, whom they must not contact, and so on. This is usually for an initial period of 28 days, but it can be extended up to three months or longer if ordered by a magistrate.
However, with RUI, there are no such conditions and so it has become favoured by overstretched police forces because it gives them more time to investigate with fewer resources. Between 1 April 2017 and last October, RUIs were used for 322,250 suspects – all released unconditionally – and 92,098 of these were being investigated for violent or sexual offences.
“RUI is resulting in more and more cases going unheard for longer periods of time,” says Hudson. “Two years isn’t unusual anymore. It puts enormous pressure on suspects, because they are in limbo for increasing lengths of time, and on victims, because the suspects are out there with no conditions. That can be very frightening for them.”
Restrictions in legal aid payments have affected lawyers, too – and this, in turn, is having a damaging effect on the public’s access to justice. Criminal legal aid payments to solicitors have not increased since 1998, a period during which MPs have enjoyed an 81 per cent increase in their salaries.
This means that not enough newly qualified solicitors are choosing to practise criminal law to sustain the needs of future defendants. As a result, the number of criminal duty solicitors – those available to help when a person is first arrested (for free) – has been dwindling. So, too, have whole criminal practices according to Simon Davis, the president of the Law Society.
“If you have been arrested and are detained at a police station, you have the right to see a duty solicitor free of charge if you don’t already have one of your own,” he says. “This is the person who is going to give you your initial advice – either that you need to plead guilty, express remorse, accept your punishment and get on with your life, or that you should plead not guilty and go to court to clear your name.”
The problem, Davis says, is that it is growing increasingly difficult for people to be given access to duty criminal solicitors because there are fewer of them with each passing year. The rates for such work have not increased since 1998 – and they were even subjected to an arbitrary cut of 8.75 per cent in 2014 – so, he adds, criminal practices are struggling to break even and many are running at a loss.
“Duty criminal solicitors are often called out in the middle of the night and they work long hours for a fixed fee – sometimes as little as 12 hours for £180-200,” Davis says. “Pay for this kind of work is now so very low that young lawyers see this branch of the law as offering few opportunities. Only about 2 per cent of them move into this field after their training and this means that the average age of criminal defence lawyers is rising to the extent that if this trend continues, there will be some parts of the country where an arrested person might exercise their right to free legal advice, but there aren’t any solicitors available.”
The average age of criminal duty solicitors in England and Wales is now 47, according to the Law Society. Across most of Wales and large swathes of Yorkshire, Lancashire, Merseyside, Cornwall, Somerset, Devon, Northumberland, Greater Manchester, Hampshire, Dorset, East Sussex and many other areas, between 60 and 70 per cent of duty lawyers are aged 50 or over. In Worcestershire, Norfolk and Suffolk, there are no criminal defence duty solicitors aged under 35, only two in the whole of Devon and one in west and midWales.
In a submission to parliament last year, the Law Society warned MPs: “In five to 10 years’ time, there could be insufficient criminal duty solicitors in many regions, leaving individuals in need of legal advice unable to access justice. This could have a catastrophic effect on the criminal justice system as members of the profession retire and leave a shortage of experienced practitioners, impacting on access to justice and on valuable police time.”
The perception among some people is that lawyers are fat cats, but in truth those working in legal aid firms are struggling to stay afloat, working long hours for poor pay
Davis says the very future of some parts of the legal profession is under threat because they are increasingly seen as unsustainable. “If you were to ask almost any senior lawyer what branch of law your son or daughter should go into, they would say ‘Don’t go into criminal law’ and that is truly shocking,” he says. “The perception among some people is that lawyers are fat cats, but in truth those working in legal aid firms are struggling to stay afloat, working long hours for poor pay.”
A review of legal aid fees and provision was supposed to have been published this year, but it has been delayed by the pandemic. Solicitors and barristers argue it must recommend urgent increases in funding and payments to avoid a mass exodus from the profession. A recent survey of barristers found that 38 per cent were thinking of leaving law altogether.
But what if Uczciwek had been found guilty and sent to prison? Would his journey through the criminal justice system have seen any improvements?
According to Mark Fairhurst, the national chair of the POA, the trades union for prison, correctional and secure psychiatric workers, austerity has affected this sector as badly as all the others in the justice system. “In a word, it’s been horrendous,” he says. “We’ve lost over 7,000 frontline staff out of about 26,000, while during the same period the rate of assaults on our members has increased by more than 300 per cent. We’ve had budget cuts of around £950m as a result of austerity, voluntary exit schemes for our most experienced staff and the closure of about a dozen prisons.
“Conditions for prisoners have deteriorated, not least because in 2013, prison facilities management – so, repairs and so on – were outsourced to Carillion, which went bust, then to Amey Plc. We used to do repairs and maintenance in-house, but now there are tens of thousands of repairs outstanding and it’s costing the taxpayer hundreds of millions of pounds more. This has all been unnecessary and unwarranted, and it has made our job much more difficult – what do you say to a prisoner whose toilet has been backed up for a week without a repair?”
According to the Ministry of Justice, rates of reoffending between 2017 and 2018 had fallen by 0.5 per cent to 28.7. However, Fairhurst says this level is high and remains so because of a lack of commitment to rehabilitation.
He says: “If the government was serious about rehabilitating prisoners, they would have to invest much more heavily in the prison service and the other public services that combine to make us a better society. At the moment, we’re not able to give the most vulnerable people in our care – those with mental health issues and physical disabilities – the help they need.”
As we near the end of this journey through the broken justice system, there is a glimmer of hope that at least something in one part of it is likely to improve in the near future. In June, the government decided to bring back privatised sections of the National Probation Service into public control. In 2013, against advice from probation specialists, the then justice secretary Chris Grayling put the supervision of about 70 per cent of ex-offenders in the hands of private companies.
Last year, a review of the policy conducted by Queen Mary University of London concluded that it had been an “unmitigated disaster” that had resulted in a failure to protect the public from ex-offenders. The Public Accounts Committee estimated Grayling’s doomed experiment would cost £467m to put right.
I asked Robert Buckland, QC, the secretary of state for justice, a series of questions aimed at finding out how “the party of law and order” could have inflicted so much damage on the justice system, the police, the legal profession and what, specifically, he was going to do about fixing them.
He didn’t answer my questions, but his press office issued this statement: “We are committed to restoring confidence in the justice system and providing the biggest increase in police funding in over a decade as part of our plan to put 20,000 additional officers on the streets. Over £1bn is being spent to reform and modernise courts, £85m for the CPS to manage caseloads and hundreds of extra prosecutors are being appointed. Together, with work to build more than 13,000 new prison places and establishing more courts to help address the backlog, we are taking action to deliver justice and keep the public safe.”
These promises fall a long way short of what all sections of the system say they need – serious investment and the political will to rescue a justice system that was once the envy of the world, and successive generations may come to regret that.
As Professor Chalkley, the author of the Bar Council report says: “Most of us will go through life without ever coming into contact with many aspects of the justice system, but it protects us all and provides redress for the victims of crime. So much of what we do relies upon justice as a basic underlying structure, and without it there is chaos.”
So much of what we do relies upon justice as a basic underlying structure, and without it there is chaos