The limits to equality – access to justice and scandal

University of 51�� Chancellor Nazir Afzal's lecture examines inequalities in access to justice and how treatment in the legal system could be made fairer for all.

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Thank you so much for all of you attending and also those of you watching online, who include Thalia's family in Montego Bay, Jamaica.

You can rest assured that's where most of us would like to be tonight, but nonetheless welcome to you as well. It's a real pleasure to be able to share a few of my thoughts on this. My thoughts have germinated, I think, in the last decade or so.

I left prosecuting in 2015 and one of the reasons I left prosecuting was I felt that every prosecution was a failure because somebody had been harmed to get to me and I wanted to move more into the sphere of prevention and ultimately trying to see whether we could actually improve the system that I was part of.

That in itself is the problem, that we call the criminal justice a system rather than a service because when you have a system you're only focused on process, how things are done, you know, arrest, charge, conviction, sentence… that kind of thing.

Rather than the people in it, the humanity which I think is missing and we're going to hear undoubtedly from people I've taught this afternoon around when it goes wrong and it does go wrong more frequently than perhaps we appreciate. When I first became a lawyer a long time ago, 1989, one of my first cases, or first group of cases I was dealing with was the West Midlands Serious Crime Squad, which is police officers that were, there's no other way of putting it, they were fitting up suspects.

They were writing confessions for them on statements and then submitting it and I worked for a firm of solicitors called Glaziers who back then were doing some great work in miscarriages of justice and I learned my trade working with my partners and others in that field and recognised then that there was more needed to be done, but again I focused entirely on prosecution when I moved into prosecution and I didn't realise what it was that was happening in our system.

Additionally, you know, I worked in central London for 20-odd years, pretty much early on in my career as a prosecutor we had Stephen Lawrence's terrible murder and the immediate aftermath of that or the lack of an aftermath, namely no prosecution for 15 years. That I think in itself again was a steep learning curve for all of us around it, perhaps justice doesn't follow automatically. It needs some actual, you know, something being done about it rather than expecting somebody to do their job and I think we, I can't have this conversation without, I'm not going to be party political because we're in a general election but to try and describe where we are now as a country when it comes to our justice system, we have a broken justice system. It is broken in every respect.

We have lost half a million years of police experience. That’s 20,000 police officers times 25 years. We've lost 600 courtrooms, we've lost 800 police stations, we've lost thousands of probation officers and victim support workers, there is poor morale throughout the system, the lowest public confidence I think in my 30 years in working in the justice system, the conviction rate for sexual offences you know is 1.8%, turn it around, that means 98.2% of those accused of sex offending will not be charged with a crime. There have been increases in domestic abuse, increases in violence against women and girls, low police detection rates, online fraud is going unpunished, hate crime is going up, knife crime is going up, prisoners failing to rehabilitate, the longest time, now, ever, from offence to charge in all of my years, the highest delays in trials being finalised, the highest backlogs in trials being heard and NGOs are suffering because they just don't have the resources.

That's where we are right now. So when we're discussing, as we are discussing what's wrong with our system, we have to recognise where we are right now is not going to make it any better because if anything it's going to make things worse.

And I tried to understand or try to appreciate, I have the good fortune Thalia, I know worked with the Grenfell families, so did I. I carried out the review of London Fire Brigade culture about 18 months ago and I had the privilege of meeting the Grenfell families and I saw in them, 72 people, 72 families, quite frankly, who felt that the country had let them down and there was nothing that would come from that, and we've, what, seven years in now and to date there has not been one person arrested, never mind charged. And so they wonder about accountability.

And that's the question that I keep asking myself is whether or not there really is accountability in our system. And of course the experience of people like the Grenfell families, like the Hillsborough families, like the infected blood families, you know, you can go on and list them.

You know, the disproportionate or unfortunate use of joint enterprise, there are so many different ways in which miscarriages of justice occur, where people are brought into the system and the system just follows the process without anybody saying stop, let's have a look. And of course, then it links into something I know others will touch on this afternoon, is that the accountability must come from a legal duty to tell people what's going on.

You know, we often use the firm, why aren't there any whistleblowers? You know, why should there be whistleblowers? The system itself should call itself up to scrutiny. There should be, as we, undoubtedly we'll discuss, a duty of candour, where people are mandated to speak up about what's going wrong in their systems. Right now, as I speak to you, I'm now carrying out the independent review of the Nursing and Midwifery Council, and my report is due on the 9th of July, would have been a couple of weeks earlier, but there was something happening on July the 4th, which has delayed that.

But again, you've got, and that is the world's largest regulator, 808,000 nurses and midwives, and you will hear, unfortunately, I can't give you more detail, that had there been a duty of candour, had whistleblowers been protected, we wouldn't be where we are today, and where the NMC is today.

So what's wrong? What's wrong with our system? There's so much wrong.

There is an inequality of arms. So there are those who, you know, we talk about legal costs being really expensive, we're then reliant upon people working pro bono, people working for nothing.

Legal costs are expensive, the high legal fees that we have are preventing low income individuals from obtaining representation. That can't be right. At the same time, the state or these large institutions, such as the Post Office, have all the resources.

I'm assisting somebody, I can't talk about, against somebody in power right now, and that person in power has said in no uncertain terms to this person, I have all the means at my disposal to keep this going forever, and you haven't.

And that shouldn't be right. There should be an equality, an equality of arms to enable people to be able to represent themselves, or be represented through that. Before that, there's the access to legal aid itself, the access to legal aid has been struck down over the last few years.

It's now, there are so many unrepresented defendants appearing in our courtrooms, and they are what they're doing, they're often pleading guilty because that's the easiest thing to do. You'll hear more about that later from Tom.

Race and ethnicity is another challenge when it comes to inequality.

You are nine times more likely if you're a black person to be stopped and searched by police than a white person. You are as a black person, more likely to be arrested, more likely to be charged, more likely to be convicted, more likely sentenced to prison than a white person on the same evidence in this country. Well, that surely can't be right.

Then we've got the more general things around language barriers. You know, we've had a massive impact on the availability of interpreting services. So many cases fail now because the interpreter is not there, or on many occasions I've seen judges and district judges and magistrates say to the defendant "we can adjourn this case to get you an interpreter, but let's go ahead anyway".

And that person doesn't understand a word that's been said to them. I could talk about gender bias. Again, I don't have enough time, but you have to recognise it.

We do recognise it, I mentioned the 1.8% figure when it comes to victims of sexual violence. That there is a bias in the system when it comes to women and the way that they're treated, and a lack of understanding from legal professionals really about what's happening within the family, what's happening when it comes to sexual violence, what's happening when it comes to domestic abuse.

One in four women in this country suffer domestic abuse, one in five women in this country suffer sexual assault, two women every week are killed by their partners and ex-partners, ten women every week take their own lives because of the abuse they're suffering.

But I can assure you that judges, magistrates, professionals in the system don't routinely consistently know what they're dealing with. And they don't seek expert advice and guidance and support when they should do. And where they look for it, the NGOs aren't there anymore, or the NGOs aren't properly funded. I'm the patron of nine women-led NGOs all working in this field, and they spend probably half their time trying to fundraise. I'd rather they spend 100% of their time trying to help the victims that they are meant to be supporting or they are supporting.

Then there is the geographic inequality, the rural versus urban. If you're living in a rural environment, say in Cumbria, I remember when I was Chief Prosecutor for Northwest England, in Cumbria we, as in the Ministry of Justice, closed lots of magistrates' courts. It made it a 50-mile journey for some people to travel to a magistrates' court for a hearing, with no transport, nothing like they could have on the tube in London. So you have those kinds of issues which undoubtedly will impact upon them. And of course when you're in a close- knit community in a village somewhere in whatever part, the reality is if you make an allegation against your partner, for example, this is a real case, everybody in the village tries to dissuade you from going ahead. And that's another issue that we just don't have any research on or we have any understanding of. Infrastructure, I've touched on it, there isn't any infrastructure in remote court when it comes to access to justice in certain large parts of our country.

There's the other inequality around educational awareness. There's legal literacy in this country, I'm afraid is really low. That's why you see people on social media saying the law says this, when it doesn't.

And they go to social media when they don't have the means themselves to know what the law should be or they wait for Martin Lewis to tell them on his programme or something. You know, what we need to have is access to information. You should have access to information. It should be legal literacy in your curriculum, enables you to understand from a very early age what your rights are, potentially what you could do differently, where you can seek guidance and seek support. We thought we solved disability access. You go to any courtroom in the country and think about how difficult it is for somebody who's disabled to be able to access either the courts or the legal offices.

The accommodation itself outdated. So many of our courtrooms in this country, they've got roofs leaking. They're falling apart. And the idea that somebody who's got disability can come in and do so without being impeded is absolute nonsense. So we've got significant issues there around simply the way we treat disabled people in our system. Never mind how the prisons deal with them. Immigration status, I can't go without mentioning immigration status. We still have no recourse to public funding for so many people, particularly women who are suffering abuse.

They don't have the ability to access legal services for free. And that means that, again, the perpetrator can abuse them knowing that's the case. And there are fair repercussions because of immigration status. If you are the victim of modern slavery, technically, you are the victim. Therefore, you should be treated as a victim and you be provided with support. But they're frightened and undoubtedly should be frightened given the public discourse that if they come forward, they will simply be deported from the country and the perpetrator who's put them in that position will undoubtedly walk free.

And of course, immigration law itself is complex. I thank God I'm not doing immigration law but that changes like every other week. Criminal justice bills every year, literally. There's tinker. There's tinker with the criminal law like nobody's business. And the promise of a Rural Commission that was given in a 2019 manifesto, by the way, never came off.

And so we're still tinkering with the legal system. But all that does is make it even more complicated for the average citizen, never mind the average citizen, for the average lawyer.

The youth and elderly, young people, not only are they subjected to potential national service, they're also being told to literally suffer. They undoubtedly are treated poorly by the services that were there for them aren't there anymore. Children's services, youth services are struggling to provide all manner of support both to the victims and to those accused.

And the system has a lack of understanding, really, of particularly youth issues. But also, elderly, the elderly themselves have additional barriers which are not being faced. And there's technological, technological barriers. The digital world, now these days, more and more post-COVID, you know, will do the hearing on Zoom. What the hell is Zoom? I don't have Wi-Fi. You know, all those kinds of things that we seem to think that we've taken for granted. Digital technology is not there. The infrastructure is not there. The system, you know, when I tried to bring in digital printing 12 years ago in the CPS, I did. I said, what we would do is we'll send our file digitally to the court. The police said, no, no, we can't do it. We'll have to send you a paper copy. The judge said, we need a paper copy too. The whole idea, just, no, but the system wasn't working as a system. And I'm afraid that's still the case. Every element of digital technology seems to take forever when it comes to the criminal justice system or the justice system more generally.

And of course, I mentioned internet access or lack of it. And we need to expand all of these services. You know, I'm a very strong believer whether you like it or not in live streaming of all court cases. But for those there were clearly there were vulnerable victims or or vulnerable victims or witnesses. I think unless you shine a light on what happens in our courtrooms, you don't know what's happening in our courtrooms. I think that would be the game-changer to my mind about, you know, when we talked about, when Tom talks about his experience in the Post Office scandal is one way of putting it, the hard words, harder words I would use, in many of you, it was a television series that suddenly got the government to take this seriously because they saw a visual representation of what happens.

Yet others have been writing about it, talking about it for months and years and years and years yet it didn't seem to have the same traction. I think that by shining a light, literally a visual light, on what happens in courts is the answer. When I talked about, I wrote about it in the Times a few months ago, a lawyer contacted me and said, "Nazir, if I want to be an actor, I'd have gone to RADA".

And he totally misunderstood. It's not about him, it's about you, the citizen, the public gallery, which is where you're meant to go, you don't go. They're empty. You don't know what happens in your name and my personal view is that you should have the access to do so. Now, two minutes, I will finish in two minutes by giving you some of the answers. Expanding legal aid, pro bono work needs to be celebrated. I would say it should be mandated for legal firms. Some of them do it, some of them pick and choose where they do it. Daugherty Street don't, they do the good ones.

Most of them simply pick and choose the sexy stuff and the other stuff that needs to be done. Anti-discrimination programs, I've held so many judges to account. I've got judges struck off because of their abuse and their racism in a courtroom, but that's handful. There is hardly any accountability for judges and lawyers and those in law enforcement when it comes to implicit and cultural competency. The diverse representation is not there. I, 20 judges approached me five years, four or five years ago. They can't speak. I had to speak on their behalf. They said that they're being bullied within the judicial profession, that there's nobody speaking for them and they, and they, it's quite simply because the system itself isn't diverse enough. Simplified legal processes, more alternative dispute resolution, more mobile courts, more legal clinics, greater usage of technology, more accessible facilities, more community education, more school programmes, more multilingual resources, more interpreter services, greater support for NGOs, please.

They are the backbone of our legal system, of our representation and our citizens' experience, more community legal clinics, more integration of services rather than working in silos, better data collection so that you know where you are and how bad things are and whether improvements are happening. I will assure you that there will be another miscarriage of justice in five minutes time. There will be another tomorrow and there will be another day of tomorrow and maybe Sunday is a day off but no, Monday they'll be one. The point is the system is broken. The point is I have no confidence that the people that are meant to be running it are running it for your benefit, the citizen, and that's why we have to hold their, well, hold their feet to the fire.

We've got to present them with the answers but also ensure that they respond to our questions and we've got to shine a light on what's going on and not allow the terrible scandals and the thousands and tens of thousands of people that are suffering day in, day out because of the misuse of our system. We need to ensure that they are listened to and the system works for all of us.

Thank you.

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The limits to equality – access to justice and scandal

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