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“In the criminal justice system, class still matters, perhaps even to defence lawyers.”

Posted on 31st August 2017

Lady Justice is often depicted wearing a blindfold. The blindfold represents impartiality – the ideal that justice should be applied without regard to wealth, power or other status. However, austerity politics is playing on class divisions in the UK to test this ideal to its destruction. It can only be hoped that the election in June will prove to have been the beginning of the end of austerity in the UK.

If we are honest, class has always been a factor in the criminal justice system. It is always slightly surreal to hear the clipped accents of Oxbridge-educated professionals – solicitors, barristers and judges – as they deal with offenders in the Crown Court. It gives a sense that the purpose of the criminal justice system is to regulate the behaviour of those who are poorest in society.

Two examples in the last few months highlight this particularly well. First, the Oxford University student, Lavinia Woodward, who has avoided an immediate prison sentence despite unlawfully wounding her boyfriend during an alcohol- and drug-fuelled row. The judge indicated that this ‘extraordinary, able young lady’ may avoid a prison sentence because of the impact on her career in medicine.

Second, the conclusion of the saga of the shameful prosecution of Kato Harris. In that case, Harris, who had been a teacher at an independent school, was accused of sexual assault by a former pupil.

The unused material in the case revealed that the complainant’s wealthy parents had instructed a former senior Crown prosecutor and a former police deputy assistant commissioner who had subjected the CPS to enormous pressure to prosecute.

Following his acquittal and the costs application that followed, the judge recognised that third-party pressure may have resulted in an improper decision to charge (as otherwise there were clear evidential difficulties in the case).

Status and wealth, granting privileges that are not available to other defendants or complainants – we are on a dangerous path here. Class still matters, perhaps even to defence lawyers. Is it possible that middle-class clients are treated differently and demand different levels of service? Empathy risks outweighing professionalism. There is a challenge for defence lawyers as to whether they ‘try harder’ when the client seems a bit like them.

Defence lawyers game the system as well. They know that the more they can present their client as middle class and the more middle-class character references they can offer, the better they are likely to fare in front of judge or jury.

The culture and history of class divisions in criminal justice is now augmented by the pressures on legal aid. Driven by commercial realities, we are confronted as a profession with the need to ‘develop private work’. I understand the demands and imperatives of this but I am also clear about our responsibility as a profession to offer the very best service to our clients: legal aid or private; rich or poor; middle class or not.

It is the very essence of legal aid and the very fabric that holds the public sector together. We must provide a quality service as it benefits us all. That applies across the public sector.

We should not create service ghettos, where there are poor services for poor people while the rest of us can look the other way and pay. Society does not work like that. We share our space and are interconnected with each other – this is the basic instinct of humanity.

If Grenfell shows us anything, it is the dreadful consequences if the state does not live up to those ideals but disregards the poor. But it also shows the capacity of people to respond together as a community.

In terms of health care, Nye Bevan memorably said that: ‘Illness is neither an indulgence for which people have to pay nor an offence for which they should be penalised but a misfortune, the cost of which should be shared by the community.’ The justice system should have a similar ethos: a cost shared by the community and a system that serves all.

This article first appeared in Legal Action Group in July 2017.

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