The Criminal Justice System Lottery: A Solution

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 Solution

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.

 

Summary

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.

UCL JLAP Book Drive

By Emilia Kechagia

On 30 November 2021, UCL JLAP completed their first book drive of the academic year in association with the International Book Facility. The books are due to be shipped to Sierra Leone. The ILBF provides good quality second hand legal textbooks, donated by the UK legal community, to not-for-profit organisations in need of legal research resources across the globe. In the past eight years, the ILBF has sent over 20,000 law books, including student textbooks, legal encyclopaedias and law reports, to organisations in over 35, across Africa, Asia, South America, Europe and the Caribbean. Additionally, the ILBF has partnered with other organisations for specialised donations, including for example the establishment of a new library for prisoners in Uganda.

 

We collected more than 40 books, ranging from textbooks on Criminal Law and Contract Law to guides into becoming a barrister. We would like to thank everyone who participated in our efforts in the past months; students, academics, practitioners and alumni. Your excitement and generosity throughout is much appreciated.

 

‘It was a really heart-warming and rewarding experience. Seeing students coming into lecture theatres with bags full of books to donate made us all appreciate the value of such initiatives, which ultimately brought us closer as law students and peers’.
Emilia, President

 

JLAP Event: Immigration in the Time of Brexit

On the 23rd of November, UCL JLAP held its first panel event of the year centred on immigration in the time of Brexit. Attended by over 25 participants, it was an engaging discussion that focused on the changes as a result of the immigration policy and the possible ramifications towards the humanitarian rights of asylum seekers. The guest speakers were Dr Ingrid Boccardi and Sheona York.

Dr Ingrid Boccardi is a Lecturer of EU Law at UCL Faculty of Laws. Her research areas mainly focus on the development of EU Migration Law and Policy, EU Citizenship, and Home and Justice Affairs. During the event, Ingrid commented on the surprising absence of radical changes in EU Asylum reforms. Interestingly, the current situation appears not to have deviated from the former policies introduced in accordance with EU law. The conclusion reached was thus that the more things change, the more they stay the same.

A solicitor in the Kent Law Clinic, Sheona spoke about her interest in research areas that concern the removability and statelessness of asylum seekers. Upon emphasising the potential of the EUSS principles in ameliorating the hostile environment of migrants, she ended with a powerful remark that calls for political acceptance of the long-standing reality that the vast number of unlawful migrants cannot be feasibly expelled.

Amidst the evolving political climate, the major overhaul of EU immigration law continues to engender impassioned academic debates. It was an honour for UCL JLAP to channel the speakers’ insights and the overall success of the panel event points towards more future collaborations.

 

Watch a recording of the event here

A Masterclass in Advocacy with Tribunal Judge Nicholas Easterman

By Nathan Ong

Event organised by Iben Vagle

 

On 3 November 2021, the UCL Student Pro Bono Committee hosted Tribunal Judge Nicholas Easterman at Bentham House, where he conducted a bespoke Advocacy Masterclass session for UCL Laws students in attendance.

Tribunal Judge Nicholas Easterman is a Diversity and Community Relations Judge (DCRJ) located in the First-Tier Tribunal Immigration and Asylum Chamber (Hatton Cross).

 

Judge Easterman’s Masterclass
Here is a summary of the tips provided by Judge Easterman:

Signposting: It is useful to give your listener an idea of what you are going to say, so that if they lose attention, they can pick it up again quite quickly. “Tell them what you’re going to tell them, tell them, and then tell them what you’ve told them.”

Written advocacy: Written advocacy is just as important as oral advocacy. Judge Easterman also related a story about a bright pupil who introduced the skeleton argument to him, at a time when prosecutors did not have anything prepared. The effectiveness of this was proved when large chunks of that skeleton argument was eventually read out in the judgment, showing how much it contributed to convincing the judge.

Tailoring your approach: One should have a different approach for different contexts. If something is expected, conform to those expectations. For example, what you say in front of a Magistrate would differ from what you would say in front of a District Judge; and what is said in front of a jury is certainly not what you would say in front of a Crown Court Judge. They require different approaches to persuading. At first instance they may be less interested in the nice legal points, while at appeal that’s all that they will be interested in. “Horses for courses.”

Knowing where you are and why you are there: Knowing where you are helps you pitch the right argument and knowing why you are there prevents you from arguing a moot point. For example, in a criminal case, if your client has plead guilty to theft, you should not appear before the court and argue that they were not dishonest, because they cannot not be dishonest, since the offence of theft requires dishonesty. That would be an example of not knowing where and why you are there. One should not address a court with something that could not possibly run – that would ruin not only your credibility, but also the credibility of your client’s case. For example, one should explain why the case is important, and the consequences if it does not pass.

Skeleton arguments: Should be brief and complement the oral points you are going to make. The flesh should be in your oral submissions, and the skeleton argument should provide the structure for them.

To be persuasive, you have to be realistic: If one is going outside the normal parameters, acknowledge it and be courteous about it. If you do not acknowledge when you are going outside the normal parameters, the judge will most likely conclude that you do not know what you are talking about. “There is no harm in asking for the moon, but at least… explain in advance that you know it is outside the normal parameters.”

Looking and listening: It is helpful if one is able to read the judge’s body language. Maintaining eye contact is important. It helps you understand how people are responding to you. If you can see that someone disagrees with you on a point, it is important to address their doubts and try to bring them around.

Brevity and preciseness of language: Brevity is better than loquaciousness. Be concise and clear, and use words that you mean to use, rather than try to find a longer or more impressive word that does not actually convey the meaning you wish to convey. Judge Easterman gave the humorous example of a man wishing to buy knives and forks, and while meaning to use a more impressive word (i.e., utensils), instead asking for testicles.

Oral advocacy: Speak at a speed that enables listeners not just to hear, but to comprehend what you are saying. Tapping your foot/finger behind your back may be a way to keep a tempo. Pausing for a moment is not a bad thing, and if you do happen to “dry up”, do not worry, and just ask for a moment to find yourself before continuing. Pitch your voice when speaking to people far away. Your submissions should form a chain.

 

Judge Easterman said at the end of the session that “it [was] a pleasure to be back [at UCL], trying to inform such an interesting group of young UCL lawyers”. The UCL Laws students in attendance also found the session gratifying, with Jack Furness commenting that “it was insightful – a window into the real-life practicalities of court and courtroom advocacy”, and Annika Melwani sharing that she had “never spoken to a judge before – so it was a fantastic insight into how it works and how someone in his position actually thinks!”

 

If you missed the event, you can find the recording here: https://web.microsoftstream.com/video/b4fbbc38-9627-49fd-b0fc-f90c64a6bfd8

 

Tribunal Judge Nicholas Easterman
The masterclass session

The UCL-KCL Pro Bono in the City Event

By Anna Kam

 

The UCL CAJ Student Pro Bono Committee held its first collaborative event with King’s College London Pro Bono Society and the UCL Law Society on 28th October 2021, which concerned pro bono work that is done at city law firms. This is the first time the 3 societies have worked together to organise an event, and its aim was to expose our members to different areas of pro bono work undertaken by law firms in the city. The theme for the panel was international reach, and much of the discussion was centred around international efforts by firms to tackle issues relating to the refugee crisis, racial justice work, responses to the pandemic and many more.

We had 4 speakers coming from different firms to discuss their pro bono initiatives: Ms. Aditi Kapoor, the Pro Bono Legal Officer at Allen & Overy; Ms. Yasmin Waljee, the International Pro Bono Partner at Hogan Lovells; Mr. Sam Harris, a Lawyer at Clifford Chance, and Mr. Daniel Adeyimi, a Representative from DLA Piper. They each spoke in turn of the pro bono work done at their respective firms, followed by a question-and-answer session afterwards.

 

Aditi Kapoor (Allen & Overy)
Aditi spoke about the firm’s many pro bono initiatives, including their anti-racism and racial justice work. The work the firm has done is incredibly wide-ranging, from preparing race-equity resource guides for pro bono workers, to analysing systemic racism to understand where prejudice and discrimination comes from and advising on policy and legal changes needed to respond to the Black Lives Matter movement in the broader criminal justice system. Aditi gave us insights into the future of pro bono work, and she believed that there will be an increased amount of work in ESG (Environmental, Social, and Governance) as well as in business and Human Rights practice in law. She opined that it is an “interesting time to consider law firm pro bono work” and encouraged UCL students to consider pursuing pro bono work after graduating, just as she did.

 

Yasmin Waljee (Hogan Lovells)
Yasmin shared the core importance of pro bono work at her firm. In particular, she drew attention to the international program that serves NGOs, communities, and people in need around the world, and the fact that much of their work seeks to encourage sustainable development in line with the United Nation’s sustainable development goals. She talked about the firm’s recent work with the Paralympic Committee and African nations, which seeks to break down stigma associated with people with disabilities through broadcasting Paralympic Games held in Tokyo to different countries. She encouraged students to pursue pro bono work and left us with an insightful motto that she resonates with: “There are two great days in life: the day that you are born and the day that you know why”.

 

Sam Harris (Clifford Chance)
Sam worked on Clifford Chance’s refugee support scheme, which seeks to help represent individual asylum seekers through NGOs. In seeking to apply for refugee status, an individual has to show that it is physically unsafe to return to their country of origin, so Sam and his colleagues would help put together reports on country-of-origin information in order to demonstrate to the relevant authorities it would be dangerous for them to return. Sam also spoke about the fact that legal aid solicitors are overstretched, without capacity to cover aspects of asylum claims, and he advised us to reach out to smaller NGOs, as well as sole practitioner legal aid solicitors for impactful pro bono work. Addressing future trainee solicitors, he suggested that doing pro bono work would help in many ways, an example of which is that one could get more extensive experience drafting through writing reports, even when they are in a transactional seat.

 

Daniel Adeyimi (DLA Piper)
Daniel spoke about his experiences managing a project in Afghanistan and working with other law firms on future legal ways out of the country. Despite being quite new to the firm, Daniel has been involved in a lot of immigration law-related pro bono issues and has enjoyed working with different firms internationally, in collaborative efforts to assist with migrants.

 

A Question from the Audience
The informative session ended with a question-and-answer session with the participants. One of the questions asked was regarding the effects of the Covid-19 pandemic on pro bono work at firms.

Yasmin suggested that the pandemic has brought opportunities in pro bono work, as clients and lawyers become used to communicating through zoom, meaning that international matters can be approached more easily. Sam also echoed Yasmin’s observation, but he noted that the pandemic had been very hard on the charities. For example, staff have had to be furloughed and many charities had to stop operating in the pandemic, and this caused detrimental impacts to their clients. Daniel felt that the lack of in-person meetings with clients made it hard to form a connection, but he believed the pandemic has opened opportunities for more people to benefit from pro bono work, and the “increased connectivity with technology will be positive moving forward.”

 

Reflections of the Evening
The presentations by our speakers were extremely insightful and allowed our participants to understand the important role of pro bono work in city law firms. It changed my understanding of working in a law firm, as I learnt that you could still participate in meaningful projects to benefit the wider community, whilst working simultaneously in deals or cases. I am amazed by the impact generated the pro bono initiatives in law firms, and it has certainly prompted me to think of the ways I could also make changes through volunteering to help others out.

A Series: Public Interest Careers Pt 7 (JLAP Interviews)

Sir James Michael Dingemans

Interviewed by Sahana Karthik 

Sir James Michael Dingemans, styled The Rt Hon Lord Justice Dingemans, is a Court of Appeal judge, who was recently appointed as the lead judge for International Relations with effect from 26 February 2021. He was appointed to the Court of Appeal in 2019, has been the Vice President of the Queen’s Bench Division since February 2020 and previously served as a High Court judge. Having grown up as a naval child and residing in a multitude of countries such as Singapore, Gibraltar and Scotland, his Lordship stresses the imperative nature of a global perspective.

Continue reading “A Series: Public Interest Careers Pt 7 (JLAP Interviews)”

A Series: Public Interest Careers Pt. 6 (JLAP Interviews)

Zaki Sarraf
Interviewed by Majd Mansour and Sahana Karthik
Zaki Sarraf began his career as a paralegal at Descartes Solicitors before securing a competitive internship as a Legal Protection Caseworker with the United Nations Refugee Agency. He then moved on to work as a Legal Advisor for St Andrew’s Refugee Services and as a Senior Caseworker for Duncan Lewis Solicitors, specialising in Public Law and Human Rights.

Continue reading “A Series: Public Interest Careers Pt. 6 (JLAP Interviews)”

Reflections on Access to Justice for Transgender People in India

By Shivani Dewalla 

Our arrival unto the world is marked by “their” presence. Marriages would be incomplete without “their” performances, “their” blessings. The halt at the traffic light is one of the most likely places to spot “them”. But why is it that their presence is only restricted to such occasions? Why are they not present in our classrooms? In our offices? Why are they not our neighbours? Or our friends? “Their” existence and conditions are synonymous to the English idiom ‘elephant in the room’; they exist but they are seldom part of our daily conversations, daily life. In fact even if this article ends without naming “them”, it will not be a task for the readers to identify them- such is their pervasiveness in the Indian society.

Continue reading “Reflections on Access to Justice for Transgender People in India”

Webinar: The Criminal Justice System in Crisis

By Melissa Manley 

The UCL Student Pro Bono Committee held its first termly panel event on 14th of October to talk about the UK’s justice system and the impact of the coronavirus pandemic with three specialists. The discussion centred around Legal Aid, Sentencing and Punishment of Offenders Act 2012 which removed more than £350 million from the legal aid budget and has led critics to claim that the court system is overstretched to breaking point.

Continue reading “Webinar: The Criminal Justice System in Crisis”

Clash of the Titans: Students v Academics Fundraising Debate for Kalayaan

By Isabel de Leon

On the 21st of January 2020, the Centre for Access to Justice Student Pro Bono Committee held its first Academics vs Students Debate Fundraiser. This event was organised in support of Kalayaan, a small London-based charity that works to provide practical advice and support to, as well as campaigns with and for, the rights of migrant domestic workers in the UK. In light of this, the motion for the debate, kindly contributed by Natalie Sedacca, was as follows: This House would make homes that employ domestic workers subject to labour inspections”.

“This House would make homes that employ domestic workers subject to labour inspections”.

Continue reading “Clash of the Titans: Students v Academics Fundraising Debate for Kalayaan”

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