Is The State Financing The Criminal Justice System Properly?

The Times, in conjunction with One Essex Court, have been running a legal essay competition since the mid 90's. The years question always revolves around human rights, and often themed to reflect recent news stories, invoking debate around many contentious issues such as Brexit, the role of morality in law, the rights of the press and how they intertwine with the right to privacy, access to justice and extradition. This years question was about how the UK criminal justice system is funded. It started by citing a quote from the Magna Carta before asking applicants to reflect on whether the system is properly funded, and if not how it could be and what this would mean in terms of possible ramifications. Of course, there are rules to the essay competition, such as the 1,000 word limit, but overall it allows for a great degree of individuality in response. As such, I decided to enter the competition this year, as I found the question to be rather thought provoking; it certainly couldn't have come at a better time, with the horrid backlogs in courts, the lack of funding and the system seemingly lacking a captain to steer it in the right direction. I thought that I would include my submission on this website so that it may be shared with others, not necessarily for any one particular reason but more so to help create discussion and the sharing of ideas regarding this very important topic.

“To no one will we sell, to no one will we deny or delay right or justice” Magna Carta Clause 40: Is the state financing the criminal justice system properly and, if not, is privatisation a possible solution? Would this mean selling justice?

With governments the world over being scrutinised over their handling of the pandemic, here in the U.K. the criminal justice system has been the subject of scrutiny; and rightly so. To detract attention from this, the Chancellor has announced that the Ministry of Justice is to be handed £900m over the next year to help clear up the backlog of cases, including £477m to help with ‘covid recovery’. Let us not forget, however, that the government underspent by £440m after the pandemic prompted lockdowns, so this is an act more akin to setting up a glitzy seasonal shop window than refurbishing the whole store. Perhaps it wouldn’t seem quite so insulting to the profession if the reality of being a criminal barrister wasn’t so dire; or if the warning signs that the foundations of the system are crumbling at an alarming rate were as elusive as Houdini, but in truth the struggles of the criminal justice system have been in front of the government’s eyes for years, illuminated by a vast neon sign to add insult to injury. For example, 22% of junior criminal barristers and 50% of criminal QC’s have left the profession in the last 5 years, specialist chambers tenancies have been reduced by a third, over 500 lawyers recently wrote to the Courts and Tribunal Service to make it clear that their livelihoods have been obliterated by the governments neglect and their goodwill has now run dry, and many newly minted criminal barristers have been found to be earning less than minimum wage. The question which must be answered then is not, I feel, whether the criminal justice system is funded properly – any sentient being can clearly see it is not – but rather what can we do about it?

One proposed solution is to privatise the system. Bizarrely, much of the current literature on this almost exclusively concerns the privatisation of prisons, despite prisons only accounting for a small percentage of penal estate, with seemingly little concern over how else privatisation could impact the criminal justice system. To this end, there is some evidence that staff are more tightly controlled, and that there is better punishment and rehabilitation performance overall, in PFI prisons; not to mention that there seems to be a correlation between improved performance in public prisons as a result of the healthy competition. In a more general sense, it must also be remembered that privatisation has taken place within many other professions and organisations – schools, hospitals, universities for example – with a great success rate. Even as far back as 2003, when PFI deals were still in their infancy, a CBI investigation found that private companies had done extremely well to take on and deliver core public goals, despite PFI deals still engendering much controversy at the time. Given that we know that privatisation can efficaciously treat the cause and the symptoms in failing professions and organisations, and that in the context of the legal system can be practical and efficient for prisons, then why aren’t we actively trying to expand this to other realms of the criminal system? Surely, through the lens of a largely parsimonious government, a government which is the maker of this crisis through extraordinary austerity, an opportunity to increase the capabilities of the system, save the livelihoods of those passionate about upholding and implementing the full extent of the law, and solve its financial woes ought to be grabbed with both hands?

Indeed, privatisation of the courts was on the government agenda back in 2013, partly because it would have saved the MoJ £1billion a year. At the time, many Judges were concerned that ending the current system, which has been in place since the Magna Carta, would erode independence. To combat this, the courts were to be placed under a Royal Charter. Amid protests of concerns over human rights violations resulting from privatisation, and many deeming the proposal akin to ‘selling justice’, the plans never came to fruition. However, the former concern is intriguing as the Human Rights Act (more specifically section 6(3)(b) for those questioning the rationale) provides that even private companies can not act in a way which is incompatible with a Convention right when carrying out functions of a public nature. Furthermore, regarding ‘selling justice’, Lord Goldsmith described Sundaresh Menon’s prize winning ICCA keynote speech as ‘apt’, a speech in which international arbitration was described as an ‘industry’, a ‘free market model’, and a ‘wholly consensual mechanism…….a privatised system of law’, before adding that it’s ‘indubitably a service industry……..to meet the needs of its consumers’. Irrespective of its relation to domestic criminal law, does this not sound the trumpet for an evolution of legal systems the world over into a privatised model, one which has incontestably been effectively serving its purpose in international arbitration at least? Moreover, it is worth remembering that criminal law is relevant to other types of law, such as arbitration law, more frequently than ever before, owing to the impact it can have on both the solution to the dispute and the arbitral proceedings. This is especially true given the international proliferation of cases, which to some extent has resulted from overregulation of domestic rules. It seems important, therefore, to employ a method of running and administering justice through criminal law which is reliable, effective and, with the modern worlds climate of fast justice being needed and overcrowding in prisons, court backlogs and probation services on their knees, somewhat autonomous.

Perhaps Dr Anna Kotova surmised it best, asseverating that privatising criminal justice institutions is ‘inherently complex, both ethically and practically’, but so is risking the rule of law not being upheld; a cornerstone of British justice which has rarely been so perilously close to being subjugated and made a pariah. With the government hellbent on ignoring the issue and narrowing access to legal aid, privatisation may be the only way to restore accountability and the right of easy access to justice.