The reason for this post is that some commenters responded to yesterday’s post as if my primary purpose were to impose blame on lawyers for their role in the facilitation of slavery, torture, imperialism, police brutality and so on.
Lawyers were only doing their job, the responses went, and so it was rather unfair of me to blame them.
All they were doing was advising on the law, and that is what is lawyers do.
I was being unfair, the response averred.
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Such a protest is, in my view, to confuse positive and normative statements.
The existences of slavery, torture, imperialism, police brutality, and so on, in any organised society does – as a matter of positive fact – require the involvement of those who make and deal with laws.
This is simply because such things can only exist in an organised society if they are permitted – or at least recognised – by law.
And in modern societies, there is often a distinct profession for those who practise in laws: lawyers.
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Whether any lawyers – individually or collectively – should be regarded as culpable for recognising or permitting activities is a separate and distinct argument to the one advanced in yesterday’s post
There may, for example, be a ‘cab rank’ rule which obliged lawyers to make submissions to court that they personally did not agree with.
Or the world-view of the time and place may have meant that, say, slavery, torture, or imperialism were not morally contested – and so it may be that it would not be historically fair to regard the lawyers enabling such activities as being especially culpable.
But even taking such normative points at their highest, there remains the positive and undeniable fact.
That is the positive fact that slavery, torture, imperialism, police brutality, and so on, can only exist in any modern society because they are facilitated by those who deal with and practice in law.
And this remains true – even if we can excuse (or find excuses for) individual lawyers who participate(d) in recognising or permitting such activities.
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This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.
One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).
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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.
An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.
That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.
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For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.
Either such practices will not be prohibited or such practices will be positively facilitated.
In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.
And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.
Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.
And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.
A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.
None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.
Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.
And such liberal and progressive laws and lawyers should be celebrated.
But.
It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.
And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.
All that liberal and progressive laws and lawyers are taking away are what other laws and lawyers provided in the first place.
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The myth of the libertarianism of Boris Johnson, the prime minister of the United Kingdom, endures.
ANALYSIS: Libertarian Johnson follows instinct in a big bang unlock. He had promised a ‘cautious but irreversible’ route out of lockdown, but with Delta variant now spreading uncontrollably, he’s taking a big gamblehttps://t.co/vo37ZcvoAi
By ‘myth’ I mean that it is a thing that has narrative force, and which some people believe to be true, but it is a thing that is ultimately false.
Johnson is, of course, a political libertine, in that he believes rules – and indeed laws – are for other people.
His government attacks the independent judiciary, the impartial civil service and diplomatic corps and the public service broadcaster, as well as disregarding the speaker of the house of commons, the electoral commission, the ministerial adviser on the civil service code, the panel on appointments to the house of lords, and so on.
And so on.
If his government can get away with weakening or eliminating a check or balance, it shall do so.
It will not be told by anyone what to do.
The politics of Kevin the Teenager.
And this defiance is no doubt the basis of the decision of the government to relax the lockdown, despite various warnings.
Members of the government, and their political supporters, are fed up with being told what to do – especially as the impositions are for the benefit of others.
But.
Is this restless defiance ‘libertarianism’?
Is there a coherent vision of limiting the power of the state vis-a-vis the individual?
This is a government which is seeking to disenfranchise people:
Today the Government is presenting the Electoral Integrity Bill to the House. This Bill will contain provisions for Voter ID. Voter ID will potentially disenfranchise thousands of people. It is an illogical and illiberal solution to a non-existent problem
There is also, of course, the similar myth of the prime minister’s liberalism – that he, like Donald Trump, is really at heart just a metropolitan liberal.
Yet many in his cabinet – Priti Patel, Oliver Dowden, Robert Jenrick, Elizabeth Truss – merrily play with the fires of culture wars and the politics of social division and confrontation, rather than promoting the politics of inclusion and solidarity.
The prime minister does not mind or care.
By any serious definition of libertarianism and liberalism this government is neither libertarian nor liberal.
There is no general approach to limiting those with state power to the benefit of those who are affected by state power.
Instead we have a government with occasional twitches and jolts against state power while over time accumulating as much power as possible for the executive and dismantling or dismissing any entity capable of saying ‘no’.
The general approach of this government is authoritarian – though this authoritarianism can be set aside when the power of the state would be for the benefit of others.
There are many words for the general approach of the prime minister and his government, but ‘libertarian’ is not one of them.
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Over on Twitter, the educationalist and head teacher Katharine Birbalsingh set out in a thread her thinking about school rules.
So as to reduce the scope for any misrepresentation, here is the thread in full:
Why are school rules good?
Because as society has laws, schools need order.
Otherwise bullying/harassment. Lord of the Rings.
Parents want lovely schools but you won’t get them without rules or intense selection.
And yes, your kid needs to follow the rules too 1/6 THREAD👇🏼
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
But we don’t enforce silence or sitting up straight in society, so why in schools?
Our prisons are packed. We remove permanently those who won’t obey laws.
Schools can’t/won’t do that for most part.
They need a way to ensure a culture of order or the weakest get trampled 3/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
While more funding is always nice and some teachers aren’t up to the job, the main thing that makes a school good or bad is its CULTURE.
And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.
Unless you have a selective intake. 5/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
It is like teaching a toddler to say thank you or please.
‘You don’t get the chocolate until you say thank you.’
That’s a rule most parents teach and insist on over years until the habit is embedded.
It is the same for sitting up straight or not hollering in corridors. 6/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
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My immediate response to this earnest exposition was to tweet that it was priceless that a thread about academic standards started off by confusing Lord of the Flies with Lord of the Rings.
This was what would have been called in the days of the school standards urged, a ‘howler’.
And this howler prompted treasured memories of Alan Partridge’s Hot Topic:
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Caller: ‘Well I enjoyed the Hobbit more than “Riverdance”. And I think that lots of boys on an island killing a fat boy is not so enjoyable as Gandalf, with a long white beard.’
Alan Partridge: ‘Okay, if you’ve just joined us, we’re talking about who is the best lord. “Lord of the Rings”, “of the Dance” or “of the Flies”. That’s tonight’s “hot topic”.’
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Katharine Birbalsingh was not amused:
Your rudeness and pettiness is also priceless although more disappointing. Mine was a slip. Yours was not.
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
And so, as a courtesy, and with my immediate point having been made, I deleted my tweet.
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But as a further recompense for my irksome tweet, I thought I should set out some thoughts about ‘rules’ – in schools and elsewhere.
After all, this is a blog about law and policy – and laws are rules, and education policy is a policy.
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One important quality that rules should have is, as Katharine Birbalsingh avers, consistency.
But there are other important qualities.
Another important quality of rules is credibility.
If a rule seems daft – indeed absurd – then it will be difficult for the individuals affected to take the rule seriously.
And if a rule is not taken seriously, people will tend not to comply with the rule, and those charged with enforcing the rule will tend to avoid enforcing it.
So, for example:
‘But we don’t enforce silence or sitting up straight in society, so why in schools?’.
The reason why those rules would not be enforced in society is because they would be daft rules, and they would be derided.
There are enough problems in getting people to comply with the legal rules that do exist:
‘Our prisons are packed.’
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Another important quality of rules is that they are proportionate and just – both in their nature and in their enforcement.
But a problem with strict rules – especially those with onerous sanctions – is that there can be no restraint on those enforcing the rules.
The enforcers become the bullies.
Power tends to corrupt, as some old liberal once said, and absolute power corrupts absolutely.
And so we come to the crux of Katharine Birbalsingh’s argument:
‘…the main thing that makes a school good or bad is its CULTURE. And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’
[Block capitals in the original.]
One way of thinking about this proposition is to replace the word ‘school’ with the word ‘society’:
‘…the main thing that makes a society good or bad is its CULTURE. And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’
In this recasting, you have what is the essence of illiberal totalitarianism.
Your rights are restricted, but it is only for your own good, and to protect you from the Other.
Given that the thread jumps from points about schools to those about society, it is not (I hope) unfair to set out this transposition, and its implications.
Back in the context of a school (or indeed any particular institution within society), the imposition and enforcement of strict rules can be the means by which the few (those who impose and enforce rules) can indeed ‘ruin it for the many’ (those who have to comply with those rules – or else).
Strictness as an end in and of itself can be as much a means of bullying of the ‘many’ as what the strictness purports to address.
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Now we come to the hobgoblins on the beach.
The schoolchildren in Lord of the Flies.
These are the horrors – the marooned turnip-ghosts – from which we need to protect our children.
If adults do not step in, it will go all Lord of the Flies.
https://www.youtube.com/watch?v=3jFqhjaGh30
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A good response to Katharine Birbalsingh’s point here is this tweet:
Slip aside, does it not strike you that your point is undermined by the fact that the children in Lord of the Flies had attended schools with strict discipline?
— (no offence to Imagine Dragons, who suck) (@country_jim) July 3, 2021
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Lord of the Flies is one of those books about which anyone who knows of it will have an opinion about it.
And often that opinion will have been formed (or imposed) at school when it was a set text.
There is, of course, not one ultimately correct view of any literary text.
(This is where literature perhaps differs from law, where the conceit is that each legal text has an ultimate correct meaning – ho ho.)
In her thread, Katharine Birbalsingh was positing (or was intending to posit) the island in Lord of the Flies as the world of lawlessness – the anarchy, the chaos that every small-c conservative fears:
‘Because as society has laws, schools need order. Otherwise bullying/harassment. Lord of the [Flies].’
Of course, one of the places in our society which are nearest to the anti-ideal of this lawlessness, where bullying and harassment are rife are, well, prisons:
‘Our prisons are packed. We remove permanently those who won’t obey laws.’
And, other than a few dozen full-life sentence prisoners, the intention is that all convicts – over 80,000 of them – are to return to society after this experience of bullying and harassment.
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The counter-argument to Katharine Birbalsingh’s thread is that the imposition and enforcement of strict rules as an end in themselves can become a means of the ‘bullying and harassment’ that she claims to want to avoid.
Or the rules may become discredited and thereby pointless.
The important qualities for any body of rules are consistency (on which she is right) but also credibility and proportionality.
Otherwise the rules become part of the problem, and not part of the solution.
Rules are crucial – and as a law and policy commentator, I would say that wouldn’t I, else I would have nothing to commentate on – but their strictness is not an important quality.
Credibility and fairness are far more important than strictness.
Rules are an essential means of moderating power relationships – and they prevent those with power from injuring or exploiting those without power.
The principle of the rule of law means that legal rules bind the mighty as well as the weak.
And so to function properly rules need to have legitimacy, and not just firmness.
For, when rules lose their legitimacy…
…it all goes a bit Lord of the Flies:
‘“We’ll have rules!” [Jack] cried excitedly. “Lots of rules! Then when anyone breaks ’em–”
[…]
‘Jack was the first to make himself heard. He had not got the conch and thus spoke against the rules; but nobody minded.
[…]
‘“The rules!” shouted Ralph.
‘“You’re breaking the rules!”
‘“Who cares?”’
Who indeed.
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A legislative programme geared to make a certain sort of person grin and clap and cheer about ‘owning the libs’.
But it is not just about mere superficialities – it is in substance a multi-pronged attack our liberties.
The prime minister is not only taking back control of when there will be general elections, the government is making it harder for people to vote.
The government is also making it harder for government decisions to be challenged in court, and it is making it harder for anyone to protest about any of this.
Five years ago, senior members of the governing party affected to want to give effect to the ‘will of the people’.
But, as is often the case with authoritarian populists, the supposed mandate of the people was only ever a convenient rhetorical device for ever-greater central control.
And the sorry state of our politics means that the government will probably get away with this.
There may be opposition in the house of lords – and some measures may be open to legal challenge.
Yet, even with the few remaining checks and balances in out constitutional arrangements – this is what the government does as the next step after ‘taking back control’.
The impression is that Brexit was not about liberation, but about creating a political culture where the opposite of liberation – imposed authority – became more entrenched.
Our post-Brexit polity is now looking very dismal and depressing indeed.
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Few appeal cases keep on being news a few days after the judgment has been handed down.
The parties, of course, will keep an interest as they decide what, if anything, to do next; lawyers will consider any legal or procedural point of wide import; specialists and experts will take due notice of any significant development.
But general news value of an appeal decision diminishes rapidly, and soon it will be as old news as a football result.
But the Post Office appeal case has been different.
If anything, many people – this blogger included – are taking more of an interest in what happened.
In part this is because of the detailed judgments – and so some relentless investigative journalism.
The more one looks at the case the more worrying the case becomes.
All sorts of professionals – not just the senior managers – appear to have been caught up in the attempt to oppose the exposure of what happened.
And as the eminent blogger on law and legal ethics Richard Moorhead asks over at his blog: where were the lawyers?
The easy way of addressing the question of what were the lawyers doing is to aver that lawyers are not decision-makers, they only advise and so on.
But that old stand-by of an excuse does not quite work with issues, such as disclosure of documents and duties to the court, where the decision-making is done by lawyers rather than clients.
Something very wrong happened, and for a long period, and because of the decisions made of many people.
And the wider question becomes: where else are such commercial-legal scandals and cover-ups where there has not been a success in bringing it to light?
Perhaps not ones where there have been a mass of prosecutions, but where there has been co-ordinated attempts to prevent transparency, scrutiny and accountability.
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After every miscarriage of justice there is the question of how the wrong was possibly allowed to happen.
And often the miscarriage comes down to the evidence before the court.
In essence: the court is presented with evidence that [x] is the case, and unless that evidence can be undermined then the court will be satisfied that there is guilt beyond reasonable doubt.
The evidence can come from police officers. or from an ’eminent’ expert witness, or (as with the Horizon scandal) an IT system.
In a criminal case a court is presented with substantive (-looking) evidence on one side of the scale and nothing – other than perhaps bare denials – on the other side.
And so the scales tip to one side.
To dislodge such (on the face of it) compelling evidence is a difficult task.
To an extent the situation is alleviated by the obligation of the prosecution to disclose relevant evidence, and not just the evidence on which they are relying on.
To an extent the situation is also alleviated by a prosecutor assessing the soundness of the evidence before bringing any prosecution.
To an extent proper preparation for trial from everyone involved – judge, prosecution, defence – should be a safeguard.
And the main safeguard, of course, is (or should be) the forensic process itself.
Evidence – especially evidence which comes from supposedly authoritative sources – should be relentlessly tested for its cogency.
There should not be mere nodding-along in deference – whether to a police officer, a ‘respected paediatrician’ or a ‘robust’ computer system.
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But.
Disclosure exercises are sometimes not easy – or cheap.
A properly resourced prosecution authority is not cheap.
Proper case preparation is not cheap.
And skilled in-court lawyering and cross-examination is not easy – or cheap.
For justice to be served, however, requires all of this is done well – which requires funding and other resources.
Else the court will be prone to placing the wrong weight on evidence before it.
Or as techies put it: Garbage In, Garbage Out.
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(The civil cases were when those affected sued the Post Office – the criminal appeals were challenges to the criminal conviction in prosecutions brought by the Post Office – the distinction explains why there have been two channels of litigation in this scandal.)
The first – favourable – impression is that the judge who dealt with the civil cases did a magnificent job of judging, both in terms of case management and of the substance of the case.
It is an outstanding and forensic piece of work, by a (rare) judge at ease with both technology and the law.
Paragraph 929 is a judicial classic.
The judge is a credit to the judiciary.
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But.
That civil judgment is from late 2019.
The criminal convictions were quashed yesterday.
And the wrongful convictions date back to 2003.
This means there has been a wait of, in some case, nearly twenty years for justice.
However commendable the 2019 civil judgment and the 2021 criminal appeal judgment, there is little or no room for legal self-congratulation at these delays.
Part of the delay can be explained, of course, by the Post Office seeking to contest the cases as long as possible, defending their ‘robust’ system.
Another part of the delay can be explained by the internal Post Office decisions to, in effect, cover up or ignore what happened.
But whatever fingers can be pointed elsewhere, this is a stark example of the failure of the criminal justice system – and it is a systemic failure given how many were falsely convicted.
And so a close look is needed at what, if anything, could be done to stop such injustices again – especially (as is one of my bugbears) the right and power of certain self-interested entities to bring private prosecutions.
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One or two people have complained about the the legal fees in this case.
It would appear that the lawyers for those unfairly accused and convicted had an immense legal job in taking taking on and defeating a well-resourced Post Office insisting that their system was ‘robust’.
To dismantle such a case so that one could even have the material and evidence before the court that would enable Mr Justice Fraser to be able to make his judgment was an extraordinary task.
That the lawyers who did this successfully were remunerated should not be controversial.
And had the Post Office not contested the cases – and, as the court averred, insisted that the world was flat – then the costs would have been substantially less.
Sometimes lawyers can be fairly blamed for costs – but not, it would seem, in this case.
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There should also be a shout out to the investigative journalist Nick Wallis, who has both covered and uncovered a good deal of the scandal – and you can support his work and buy his book here.
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This is an appeal judgment that will (or should) sound through the generations, as a detailed description of how the criminal justice system can go wrong.
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But.
It would be an error to dismiss it as just a grand example of ‘the computer says no’.
Computers, like any automatic processes, will be prone to faults.
The problem was not so much the Horizon software but a sequence of horrible, deliberate decisions made by human beings – about whether to bring prosecutions, to contest civil cases, and to avoid the disclosure of relevant documents.
Every single manager involved in these prosecutions and in opposing appeals are far more culpable than any of the poor defendants.
Yet, unlike the defendants, the Post Office managers are not (generally) named in this judgment: they have their gongs and their pensions and their self-serving supposed exculpations of ‘lessons learned’.
So damning is this judgment that, no doubt, every person reading it will have a view on which of their legal and political opinions will be affirmed by the judgment.
For this blog, the damning Post Office judgment affirms that private prosecutions are generally a bad thing – whether they are brought by the Post Office or anyone else.
Some organisations – and individuals – enjoy the swagger and the bluster of being able to bring (and threaten) cases aimed at criminalising and penalising others.
But as the noted jurist Benjamin Parker averred: with great power comes great responsibility.
And the power to criminalise and penalise others is one of greatest powers and responsibilities of all.
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Lawyers often boast of being ‘fearless’.
Prosecutions should be – genuinely – fearless: but being fearless including being free of the fear of not proceeding with the prosecution because of the reason of embarrassment.
For, as the damning Post Office judgment shows, it was the fear of embarrassment that meant that things were not said and disclosed that should have been said and disclosed.
The damning Post Office judgment also shows what will happen when the power and the urge to prosecute is free from any checks and balances.
It shows what will happen when defendants do not get the materials and the advice that they need so as to be properly defended.
Yes: the appeal points to the dangers of automation and computerisation – but the appeal points harder at the dangers where managers and other decision-makers hide behind automation and computerisation.
And the delay in this appeal judgment – ten or so years after the miscarriages of justice – also shows the inefficiency of a criminal justice system that can often be so quick to impose criminal liability in putting right things when they go wrong.
Nobody – other than the defendants – come out of this judgment well.
Not least the criminal justice system itself.
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Anyone who knows and cares about the criminal justice system in England and Wales knows that the system is collapsing – and that the word ‘system’ is itself hardly still applicable.
On the face of it, however, this presents a paradox.
For we have a government – with loud and shouty political and media supporters – committed to ‘Law and Order!’.
You would think that a government with such a stated priority would ensure that the substance of policy would have some correspondence to the rhetoric of its politics.
You would be wrong.
For, as this blog has averred elsewhere, there is a distinction – a dislocation – between the politics and the actuality of the criminal justice system.
It is easy for a politician to get claps and cheers with demands for ‘tougher penalties’ and ‘crackdowns on crime’!
Time-poor political reporters will type easily about ‘new laws’ and ‘longer sentences’ and so on.
And voters will nod-along, as they are fooled into thinking some useful thing is being done.
But there is no point having tougher and tougher penalties, and longer and longer sentences, and more and more laws, if the criminal justice system itself is not working.
As the former attorney general Dominic Grieve sets out in this article, the reality is that the system is halting and crashing.
Part of the problem is lack of cash – and for the the reasons Grieve submits.
But another part of the problem is a lack of policy seriousness – an assumption that it ultimately does matter that the criminal justice system comprises a motley of inadequate court buildings, demoralised staff, badly let contracts, ancient IT systems, health and safety horrors, a general lack of safety for everyone involved, and a general drift of the system towards discharging greater re-offending, and not less.
If you invited a demon to devise the worst possible state of affairs in the criminal justice system the current situation is pretty much what you would get.
But: ‘new laws’ and ‘longer sentences’ and ‘tougher penalties’ and ‘crackdowns on crime’!
Slogans that are like loose gear sticks and brakes, not attached to any other part of the vehicle.
Perhaps the only consolation is that such an absolute system failure tells against England and Wales becoming, in practice, an authoritarian state.
But it is not only authoritarian states that need a functioning criminal justice system – modern liberal democracies need working criminal justice systems too.
And so we have a system that should satisfy nobody – other than of course, dishonest purveyors of easy criminal justice solutions: fraudsters of modern politics.
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