By Fraser Barnstaple
Jeremy Bentham commented in the 19th century that when the cost of litigation is too great, entry to the system becomes a lottery to which only those with a golden ticket (money) can gain access. Unfortunately, the current state of the Criminal Justice System (CJS) means this rings true today, which highlights the need for change. This post will consider the CJS in the narrow sense, concerning three main branches- judiciary, legal profession and court systems, rather than in the broader sense which also pertains to the police and prison systems.
This post will propose a part-privatisation of the CJS, whereby the court system is privatised, with the judiciary and criminal legal profession remaining state-funded.
Is the State adequately financing the CJS?
Legal Aid has seen several cuts, most notably in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which introduced a stricter means test to qualify for free representation and an ‘innocence tax’ for successful defendants. Other cuts have also resulted in a decline in advocate fees and CPS funding, which has severely strained the criminal bar profession and impacted the recruitment and retention of criminal lawyers. Furthermore, the court systems have lacked adequate funding, resulting in many court closures and a backlog of cases estimated to last for several years.
The CJS is, evidently, inadequately funded but the situation is even more serious. The right to access to justice is enshrined within the European Convention of Human Rights (ECHR), Article 6. However, the strict legal aid means test inevitably denies justice for some who cannot afford representation. Additionally, a long waiting time caused by the case backlog delays ones’ right to justice. These run contrary to the principles contained in the ECHR. Therefore, the need for change is palpable.
The criminal legal profession must remain state-controlled because there is no feasible way of creating or maintaining a privately funded one. Third-party funding, for example, would be very difficult to obtain for defendants. Litigation funding through private insurance schemes is possible but raises various ethical issues, such as the potential exclusion of individuals who lack the funds or awareness to purchase legal insurance. This could deny justice for the less advantaged and thus be contrary to Article 6, ECHR.
Similarly, the judiciary must also remain state-funded. Historically, judges were paid per hearing which conflicted with adjudication principles because judges were encouraged to have a personal interest in the speed of the case. A privatised judiciary risks bringing this back. Furthermore, a core principle of the UK judiciary is independence from external pressures, both political and private. A private judiciary would have to balance its usual functions alongside profit considerations. One potential concern is that this would amount to selling justice, as prohibited by Magna Carta, Clause 40. Although selling justice as described in the Magna Carta relates to the principle of justice, not the systems, privatising the judiciary would amount to selling justice because justice as a leading concern for judges may not be preserved when competing with profit.
For the above reasons, full privatisation of the CJS is not feasible. Instead, society can instead afford partial privatisation.
Therefore, a potential solution to the current crisis is the privatisation of the third branch of the CJS- the courts and tribunal services. The proposal is to privatise the entire court system. This would be necessary because of the inability of the criminal courts to make a profit on their own. The profits made from the civil courts, including the lucrative commercial courts, could be used to subsidise the criminal court. Therefore, the system will be funded through court fees, primarily from litigation in areas of civil law. Concerns that the court should be free of any external interests are understandable. However, the current state of the CJS is dire, and concessions have to be made to ensure justice is provided. The benefits of the market could be used to increase the courts’ efficiency and reduce the backlog. Furthermore, the money saved from funding the courts could be reallocated to the CPS, judiciary and legal aid. One concern is that the reliance on court fees to fund the court system would mean they increase to a level that denied access to justice for those who cannot afford higher court fees. This piece proposes that the money saved from privatising the court system could be partially reallocated to increase legal aid and provide a mechanism for those in financial need to access justice. Therefore, this would not be selling justice in the way Magna Carta Clause 40 meant, because the principle of justice can still be achieved. Selling the courts does not mean selling justice. It is facilitating justice.
Additionally, the Anti-social Behaviour, Crime and Policing Act 2014, s180 provided a provision for the courts to charge enhanced fees above the cost of the service. Therefore, the courts operating on a profit-making basis is not an entirely new concept and has not been seen to ‘sell justice’.
Potential privatisation of the HMCTS (one far wider than proposed here) was leaked to the press in 2013, which provides some useful discourse. The initiative was estimated to save the Ministry of Justice £1billion a year which, as discussed, could be reallocated to other components of the CJS. However, Lord Judge stressed the need for a private court system to “operate in the public interest”. One way to ensure private investors do this is to create a regulatory body, whose task would be to ensure this objective is respected. Furthermore, it was recommended that the government should have duties and powers to intervene should the new system fail, which should be adopted here.
Another consideration is how an independent judiciary would fit into this. When two sporting teams play one another, they do so at a privately owned venue, but with the game under management from an independent referee provided for by a governing body. This referee is free from the profit motivations of the venue. The judiciary could mirror this. They could also be given a role in the organisation of the new system to foster integration. These suggestions facilitate the coexistence of the judiciary and privately-owned court system.
The state of the CJS is damaging access to justice through its inefficiency and barriers to entry. The proposed privatisation of the courts is necessary to preserve and rejuvenate the CJS. It would be a facilitative act, which could benefit wider society by improving access to justice and changing the system from the lottery Bentham criticised to an open platform.