Joseph Green provides insight into the key topics discussed at this week’s meeting of the BPP discussion group, Reimagining Criminal Justice.
Reimagining Criminal Justice is a discussion group made up of students at BPP who are interested in criminal law and the justice system. We meet fortnightly to talk about topics such as prison reform/abolition, transformative justice, community sentences and diversion schemes, policing and more. We also discuss the implications of the current justice system on the most vulnerable in society and suggest ways we can influence positive change going into the future. Anybody is welcome to join.
We have regular meetings every other Wednesday. Our next meeting is Wednesday 16th June at 7:30-9:00PM and the following will be on the 30th June. If you are interested in joining, you can fill out this survey
What did we talk about this week?
The Secret Barrister describes the cuts to legal aid as an “innocence tax”? What is meant by an ‘innocence tax’, and is this description correct?
We followed the story of an individual (of modest means) who managed to absolve himself of various false accusations of him committing sexual crimes. His legal fees came out at just over £100,000 by acquittal, after the CPS dropped the case. It illuminated the potentially destructive consequences the legal system can have on someone who does not have the financial means to afford a robust legal defence. Somebody whose income sits above the threshold of £40,000 per year will not qualify for legal aid, but the burden of the cost for proving innocence can still destroy their life.
As a group we had some trouble reconciling the use of the term ‘innocence tax’. Of course, within the phrase is imbedded an ironic twist, that nobody should have to pay or prove anything to show their innocence. Innocence is the starting point, and to pay anything simply displays the impenetrability of fair justice. It was agreed that ‘fee’, or ‘premium’ would be a more appropriate descriptor than ‘tax’, as most people will never be accused of a crime and therefore will not contribute to the costs of someone else’s legal fees. It was however, agreed that the Secret Barrister is correct in principle. Where there is innocence to be proven, there is money to be paid, undermining the accessibility of equal justice.
“Access to Justice is fundamental, but we also have a responsibility to ensure taxpayers’ money is used wisely.”The current borderline for legal aid in Crown Court cases is an income of £37,500/year (though this figure is substantially lower elsewhere). Is legal aid for the middle class a good use of taxpayer money? Should the bar be higher or lower than it is now? Should we offer legal aid to the very wealthy, like we offer NHS care to the rich?
Comparisons were drawn between universal healthcare and the lack of universal accessibility to justice. Whilst there was unanimous agreement on the raising of the threshold within the group, there was also an acknowledgement that legal aid cannot, and perhaps should not, be fully available for every individual. In an ideal world, fair justice should be readily available for everybody; but given there must be a limit at some level on taxpayer’s money, many in the group felt that particularly rich individuals should not qualify for legal aid.
There was also some suggestion of making legal aid more readily available for serious crimes, following the proposal that those are the crimes which cause the most destruction to the innocent if wrongly convicted. Others rebutted this, pointing out that the realities of the justice system meant that even petty crimes can be very destructive. The stain of a criminal record, the introduction to the penal system and into criminal gangs are all consequences for those convicted of ‘lesser’ crimes. It was also mentioned that a disproportionate number of Black, Asian, and minority ethnic (BAME) individuals are prosecuted for these petty crimes, and so changing the threshold to accommodate legal defences at the higher end of the spectrum could rightly be called out for yet again neglecting those who are already worst affected by the system.
Since 2012, legal aid has been totally removed in other areas of the law, like welfare benefits cases and employment cases at tribunal. Outside of criminal law, are there any areas where we should always offer legal aid? Are there any areas of the law in which we should not offer legal aid?
There was a consensus that legal disputes involving the state would almost always necessitate legal aid, i.e., criminal cases, human rights claims, judicial review and administrative decisions. On the opposite end of the spectrum, we categorised disputes between corporations as not qualifying. We felt it was important to consider who could afford legal aid and in what circumstances, in principle, it should be provided. We felt that more resources of the taxpayer should be funnelled towards cases where individuals can have, or have had, their liberty deprived.
Another point was raised with regards to legal aid in divorce proceedings. Perhaps the more traditional view supports the idea that these situations are private matters and therefore should not qualify for legal aid. However, a counterclaim arose that, because of the power imbalance which all too frequently occurs between a separating couple, legal aid is more valuable than it first seems. Where one is a rich and powerful individual with plenty of access to sound legal advice and the other is not, the result of proceedings could be life-changing and catastrophic for the weaker party.
Lavinia Woodward committed GBH against her partner but avoided immediate imprisonment because she was a “promising” student at Oxford University. Should external facts about a person’s life make a difference to their sentencing?
There was an initial repulsion around the idea of anybody being granted leniency in their sentencing due to their ‘potential’ at a top-tier university and subsequent career. It begged the question amongst the group of whether the life and freedom of this individual matters more because of their place at university.
On the question regarding external factors having an impact on sentencing, we agreed that in many cases this would be appropriate, and even essential. But we thought that this particular example highlighted some of the biases which perpetuate inequality within the justice system. The point was mooted that similar to the way that the CPS decide to prosecute, consideration of the public benefit must be at the forefront of the judge’s mind; a promising student at Oxford would likely go onto a promising career (and in theory, apply her promising talents in the real world).
But again, do we want to be part of a justice system that leans its favour towards one’s job prospects? Moving down the timeline, do we want to be part of a system where lower-class professions are penalised during sentencing for not ‘contributing enough’ to society as those with a higher pay grade?
22% of the women supported by Women in Prison (WiP) are homeless. WiP’s manifesto states that homeless women or those living in serious poverty should not be imprisoned for offences like theft. Should a person’s socioeconomic circumstances or assigned sex at birth make a difference to how they are sentenced? What about other protected characteristics such as race or nationality? Do our intuitions on the Lavinia Woodward case contradict our intuitions about WiP’s manifesto?
Intuitively, we were sympathetic towards the idea of absolving homeless women of imprisonment for theft offences. The circumstances of those that sleep on the streets are very desperate. Like the previous question, the answer was a strong yes amongst the group. So, the socioeconomic properties of a person’s livelihood are something for the judge to consider. But with regards to assigned sex at birth, nationality or race, the group unanimously agreed that to adjust sentencing depending on these factors would cause more problems than it would solve.
It was pointed out that these particular facts of one’s identity can shape one’s circumstances, but one’s circumstances cannot shape these facets of one’s identity. When determining sentencing, to allocate a higher fine or custodial sentence to somebody due to their non-circumstantial background (their race or gender specifically and in isolation) could itself lead to discriminatory practices and further exacerbate the inequalities felt from the justice system.
Image credit: Rafesmar., CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0, via Wikimedia Commons
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