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Andrew Male
November 2016.
128
Why do we still have miscarriages of justice?
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While we still have an independent judiciary, we still have miscarriages of justice because we still have individuals who are prone to withhold evidence, we still have mistakes made in obtaining evidence or failing to obtain evidence, and with the current disclosure regime that has the potential to get much worse. 

The current disclosure regime, this drive to get cases brought before the court quickly, leads to people pleading guilty without knowing the case against them. In the 1980s and 90s we had a series of famous miscarriages of justice, the Guildford Four, the Birmingham Six, Judith Ward. As a result of that, the courts ruled that the defence should have access to all material used during the course of a police investigation. 

"Legal aid is important because it provides representation against the state, because there is always an inequality of resources between a legal aid lawyer and the crown prosecution service."

There were then suggestions that the defence were going on‘fishing expeditions’. My view was that that material was always there to help the defence and ensure a fair trial. Then they introduced legislation that said the defence had to show why they wanted such material, and over the course of the last twenty years there have been politicians and members of the tabloid press calling for a “rebalancing of the scales of justice”, claiming that the scales of justice were unfairly balanced in favour of the defendant (or “the criminal” as they would call them). 

So there has been political pressure to introduce act after act, legislation after legislation, to supposedly rebalance those scales, to the extent that those scales have now tipped the other way, in favour of the prosecution, and from the pressure to plead guilty, to the pressure to disclose the case, to the pressure to meet with direction of the court whilst limited by resources, in terms of legal aid, has become huge. 

We’ve got to remember that legal aid is important because it provides representation against the state, because there is always an inequality of resources between a legal aid lawyer and the crown prosecution service. There is also a growing, worrying convergence between the prosecution authorities and the Ministry of Justice who grant legal aid. One ensures that the individual receives the funds for their defence and one is responsible for prosecuting that individual and there’s a danger that there is too close a relationship between the two. Therefore, we need to ensure a separation of those powers.