The process is an ass!


Birmingham magistrates court. Picture by Ell Brown under a Creative Commons licence.

Lawyers in the UK have posed some serious questions about the way judges and the Crown Prosecution Service (CPS) have handled the cases from last week’s riots, with major concerns around due process.

The vast majority of the defendants will be on legal aid. Given that the Legal Services Commission has been underfunded for the last decade this massive influx of cases will put even more pressure on a system already on the brink of collapse. With such large numbers of defendants, many have received only a phone call from a duty solicitor. Lawyers have expressed concern that the waiting time to see a solicitor could potentially lead to detainees opting not to be represented in order to go home sooner.

Another area of concern is around the pressure on the CPS to deal with these cases as quickly as possible leading to rushed decisions to charge defendants, rather than bail them pending investigation. This leads to questions around evidence gathering and disclosure. Given that these cases are being dealt with so quickly, and the thousands of hours of CCTV footage, hundreds of witness reports and other evidence sources the police need to go through, the reliability of the evidence has come into question.

Much of the evidence will have come from police who were on the scene. But, given the circumstances, the police will not have been able to make detailed notes until much later. As has been seen in the past with the Ian Tomlinson case, this can lead to discrepancies in police accounts. With courts operating around the clock to process defendants and the pressure on the CPS to move things forward as quickly as possible, the ability of solicitors to properly advise defendants could be hampered. Due to the speed at which cases are being sent to court, evidential disclosure from the CPS prior to court appearance may not have been sufficient in some cases to allow defence solicitors to properly advise their clients.

The disregarding of sentencing guidelines by magistrates raises concerns that solicitors will bring cases to appeal, further prolonging them and potentially leading to cases being overturned or sentences reduced. This also raises questions of human rights. Courts are charged with delivering justice and ensuring sentences are proportionate to the crimes. If they are allowed to throw this out of the window based on public perception then this is becoming dangerously close to mob justice.

That councils are evicting entire families because of the acts of a single member amounts to collective punishment, historically the preserve of an occupying army. During armed conflict, collective punishment is considered a war crime and is a direct breech of the Fourth Geneva Convention governing the protection of civilians in times of war. Article 33 of this convention states: "No protected person may be punished for an offense he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited."

While we’re not living under military occupation in the UK, one would hope that the same applies to citizens in times of peace. I’ve never really bought the "we're living in a police state" line touted by many radical leftists but with international conventions and domestic law so readily thrown aside to placate Daily Mail readers and new and potentially more dangerous powers for police on the horizon, I find myself wondering what lies ahead for the UK.

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