CL&JW: Criminal Justice System and “Hard Working Families”

Sleepwalking away from fair trials, John Cooper QC writes.

In many respects we have been sleepwalking into a complete realignment of the fundamental principles of our criminal justice system and it is not that the process has been recent.


If someone had told me 25 years ago that it would become acceptable for people to be tried by a Judge without a jury, that trials could be held in secret, that matters relating to a defendants history which did not even eventuate into formal criminal process could be held against him, to such an extent that a prosecutor once applied to place before a jury a red card received by the defendant in a football match or that what a person said against you could be put before a jury as hearsay without that person being called to be challenged, I would have considered it the stuff of science fiction.
 
Yet this is where we are now and the frightening thing is, it feels almost normal.
 
The loss of the right to trial by jury, to challenge your accuser even the undermining of the right to silence have, in many respects been stolen from us almost without a wimper.
 
It is not too difficult to understand why this has happened and it is for the same reason that the Government have been able to dilute the right of public access to representation with hardly a protest, until recently.
 
The reason is, the public do not consider that they will ever need the protection of these rights.
 
Juries, the right to open justice, to silence and to face your accuser are rights required by the guilty.
 
Somewhat perplexingly, “the guilty” are usually defined by the public as those who the police arrest, see, for example, the alacrity with which prison vans are abused as people facing trial are driven to court.
 
These are circumstances which are deemed not to effect “decent, hard working British families” in the nauseating language of some politicians. It is this perception which has enabled our criminal justice system to become one of the most prosecution/State leaning processes in Europe.
 
We can have little reassurance from the appellate system or from Judicial Review. Challenges related to inadequate disclosure are now unlikely to interest either body and the recent decision in Nunn seems to say that if you have got a problem then go to the over-burdened and under funded Criminal Cases Review Commission.
 
Finally, lets be clear about the future. “Hard working British families” are not interested in the erosion of principles which are deemed to protect “the guilty”. I suspect that if an Act was passed next week to reverse the burden of proof, most “Hard working British families” would support it.
 
The future battle ground, in my view, will be the jury system. We must wake up now and smell the coffee.
 
Professor John Cooper QC. 25 Bedford Row.
Consultant Editor CL&J. Twitter:
@ John_Cooper_QC
Named in The Times “Law 100”
Issue: Vol.178 No.29