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26 Oct 2015

Back to the Future: criminal law in 2015 and beyond

Recently, we were reminded that, in the 1989 film Back to the Future Part II, Michael J Fox’s character, Marty, travelled forward in time to 21 October 2015 when he read about his future son’s trial, conviction and sentence to 15 years in prison within two hours of his arrest. He was told by Doc Brown (Christopher Lloyd) that the justice system now worked much more quickly because all lawyers had been abolished.

Not all predictions about the future come true, but the seismic changes being brought to the English criminal justice system by savage cuts to the legal aid system, to the courts, to the prosecuting authorities and to the judiciary is changing it forever and may well cause permanent damage to its international reputation. There are considerable risks in taking short cuts when securing justice; risks for victims, suspects and those defendants who are acquitted (often at huge personal cost) as well as those who are wrongly convicted. Even those who are guilty suffer when poorly represented, sometimes by longer sentences than they might otherwise receive. Cheaper, quicker trials are not necessarily going to be fairer trials and in the end civil society everywhere will be the poorer; for the example we set enables other countries to follow suit more easily. Deregulation of the legal profession will also have an impact as fewer lawyers are required to supervise work previously done by senior lawyers.

Questions are now being asked about the rush to prosecute relatively large numbers of quite junior staff in headline cases attracting extraordinary levels of media attention and pressure for action. The prosecution of individual defendants on the back of criminal and regulatory settlements by banks, which are not well supported by rigorous and independent investigation by the prosecuting authorities, may not be justified. Equally, the rush to prosecute multiple individual journalists in the wake of the phone hacking scandal now looks to have been unwise in some cases. There have also been serious shortcomings in some of the historic child abuse investigations. Dispensing with trials for corporate crime in some cases will not necessarily be fairer either, although we still await the first of the much heralded English Deferred Prosecution Agreements.

The abolition of lawyers would save a lot of time, money and inconvenience. It has been argued that, for some politicians, the idea of a weaker or neutralised judiciary and legal profession is attractive and even desirable. We have now had two non lawyer Lord Chancellors. The last Attorney General was dispatched, it would seem, for being too strong on human rights. Sometimes it is easier to get rid of awkward lawyers who either do not toe the line or just won’t make the ‘right’ decisions. In other cases pressure may be brought to bear in a firestorm of adverse publicity.

All criminal cases require strong and independent investigation and prosecution decision-making. This requires experienced and respected senior lawyers and police officers to make their own decisions. Sometimes those decisions will be unpopular, but not every case can or should be the subject of a charge. Where a charge is brought, there must be sufficient resources applied to the case to ensure that it is fairly prosecuted. That requires, for example, experienced staff deployed to deal with the disclosure obligations of the prosecutor; that witnesses are properly interviewed; and that evidence is carefully preserved and presented.

The current debate around the privatisation of some areas of criminal prosecution work such as asset forfeiture throws up further serious questions of accountability and fairness. Compliance with the onerous duties of the public prosecutor does not come cheap, as would-be private prosecutors sometimes discover.

The work of the main prosecuting authorities is carried out under the superintendence of the Attorney General. This requires a delicate balancing act to ensure public confidence is maintained and that there is proper accountability to Parliament. Great care is needed to avoid political interference in the independent prosecution decision-making process, no matter how politically charged the case. The relationship between the Directors of the Crown Prosecution Service (CPS) and the Serious Fraud Office (SFO) and the Attorney General has been seriously tested in the last decade or so, notably in the BAE Al Yamama decision and more recently in a number of difficult cases involving politicians, from ‘cash for honours’ to Parliamentary expenses to historic child abuse.

Any dilution of the independent decision-making function of the prosecuting authorities presents a real threat to the quality of our system of criminal justice, which still commands general public respect. The public need to have confidence that where a prosecution is necessary and there is evidence to support it, criminal charges will be brought, but equally where more proportionate action short of prosecution is available, there may be the right outcome even if there is no ‘day in court’ for the victim.

There are some difficult questions about funding when it comes to the potential for political influence of the SFO in particular. A recent Parliamentary question revealed the SFO had received ‘blockbuster funding’ of approximately £25m per year in 2013/14 and 2014/15 on top of its annual budget of approximately £55m. Although some of that money was spent on defending civil claims arising from the bungled Kaupthing investigation, these numbers are very high as a proportion of the annual budget. It remains unclear to what extent it would be possible for the Treasury to deny funding to pay for a politically sensitive case. Parliamentary scrutiny of blockbuster funding for the SFO continues.

In the future, criminal lawyers will have to grapple with the increasing risk of political influence in the criminal justice system on a number of fronts, from publicly funded criminal legal aid to the funding of the prosecuting agencies themselves and the cases they are able to investigate. The criminal justice system may look very different. There may well be more cases and fewer qualified lawyers in court. Perhaps there will be wider privatised provision of public prosecution services through Alternative Business Structures (ABS); there seems even now likely to be some form of publicly funded legal aid paid for by a tax on large law firms.

There will certainly be more technology and there will still be trials; most still conducted in front of juries or perhaps tribunals with lay assessors. But the standard of criminal justice delivered will not look like that which we see today. Sentencing is likely to be more closely controlled with computerised sentence reckoners; even some prosecution decision-making may be susceptible to artificial intelligence applications. Without private funding it may become difficult to secure the services of a suitably experienced defence lawyer and the prosecuting lawyers may be no better in most cases. Perhaps even some defence cases will be presented by litigants in person using their own defence lawyer app on a court funded tablet device.

Hopefully things will be better than for Kafka’s Joseph K whose lawyer told him that: “the Defence was not actually countenanced by the Law, but only tolerated, and there were differences of opinion even on that point…”

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