My sister is an imaginative gift-giver. When visiting England recently, she gave me a copy of ‘The Secret Barrister’ written by a barrister who maintains anonymity so that he-or she-can write freely on the many serious failings in the criminal justice system in England & Wales.

I read the 350-page book in just two days. I thanked the legal deities that I was not trying to make a living at the Bar in England & Wales where the annual net income for some newly qualified barristers compares unfavourably with employment in a job paying the minimum wage, which is about HK$80 per hour. Added to this, the high expectations of the barrister’s job were made impossible to meet in many instances because of systemic failings in the system.

The author’s basic complaint is that successive governments have downgraded criminal justice in pursuing budgetary economies to the point of its near destruction.

They have been able to do this because the general public have not been educated to appreciate that a fully-funded criminal justice system is quite as important as the National Health Service, the state provider of near universal free health care in the U.K., or an education system that provides a first-rate education for all children aged between 5 and 18. After all, the ‘law and order’ voices in the popular press says that the criminal justice system deals overwhelmingly with criminals and standing up for criminals’ is not a vote-winner.

So it is that the U.K. Government has been able to slash the justice budget by reducing the rates paid to barristers and solicitors doing criminal work, closing courts, privatising ancillary services, such as interpreting and providing custodial services to courts.

It has also saved money by curtailing some of the rights of defendants, such as the ability to ask for recovery of all the costs of maintaining a successful defence where there has been an acquittal and making it more difficult for a defendant to obtain compensation where there has been a wrongful conviction and it is clear that the defendant was innocent.

I detect some of the failings in the English system in Hong Kong but I do not want to go into them now. Instead I want to make the point that money spent on the criminal justice system is money well-spent and failure to invest in the criminal justice can have catastrophic consequences.

Why invest in the criminal justice system? Any well-ordered and civilised society will put a premium on ensuring that some fundamental social norms are maintained so that citizens can live knowing that the state will act if they are seriously harmed through the wilful acts of other citizens or their property is destroyed or taken away by others. The state ensures that these norms are observed by deploying police forces to protect against crime and to detect offenders.

It is the mark of a civilised society that if an important social norm has been broken such that a formal sanction is required, the task of deciding whether there has been a breach is left to an independent and impartial adjudicating body which also has the responsibility of imposing a sanction if a breach is established.

Explaining the deep social origins of law, the Eighteenth Century English jurist William Blackstone said ‘Law is the embodiment of the moral sentiment of the people’ meaning no one stands outside the law and all are involved, even if you are not directly concerned in legal matters.

In some legal systems the inquiry into whether a norm has been violated rests with a judge who has a responsibility to inquire into the facts and make a determination after being satisfied that all angles of the case have been covered and the state and the defendant have had their say.

In Hong Kong a judge presides over a contest between the representative of the state-the prosecutor-and the defendant who may or may not be legally represented. The adversarial contest-where each side has the responsibility to make a case before the judge and call evidence to support it-is the hall-mark of the common law system and differs from the judge-led inquiry system. It is also an expensive system.

In the adversarial system the state enjoys huge advantages over a defendant. Resources are virtually unlimited. It can retain the most-experienced advocates to present a prosecution case in court; other legal professionals are on hand to support the courtroom advocate; it can call on the police to collect evidence, even from outside Hong Kong and it can call upon scientific experts where evidence calls for expert analysis. Unless the defendant is wealthy, he or she has no access to this kind of support.

This evident lop-sidedness in resources is partly offset by legal aid. It should enable an accused to have access to a competent courtroom advocate backed by at least one other legal professional and, if the case requires it, access to expert assistance in certain cases, such as cases where DNA evidence may be disputed.

Why bother funding defence cases? In historical times there was no legal aid and accused persons without the means to retain a solicitor and counsel had to manage on their own to navigate the intricacies of criminal law and procedure.

The answer is to keep the system honest. The state invests a lot in presenting a case that will satisfy a judge and jury or a judge or magistrate on their own, that a person is guilty of an offence beyond a reasonable doubt. Even if the prosecuting advocate is scrupulously fair, errors and omissions, can infect a case from its outset. Mistakes can, and do, occur when a case is being put together by the police.

The Police may fail to record the observations of a witness at a crime scene because, to the police officer at the scene, what he or she has to say does not support a version of events which other witnesses put forward. Police officers may neglect to call for CCTV footage when it may provide evidence about who committed an assault. Sometimes these failings are down to inadvertence. Sometimes they are deliberate.
Police officers may sometimes take procedural short-cuts, particularly when they believe that they have got their man-or woman. They may fail to tell a person in custody that he or she is entitled to see a lawyer or, if the arrested person is a minor, may neglect to inform a parent or guardian that they may attend an interview at the police station. These omissions may have a bearing on the outcome of a trial because the rules have not been followed.

Legal representation is necessary to let an accused person know whether the evidence facing them really discloses that a crime has been committed by them or, if a case can be made out, whether it is so strong that the accused should seriously consider pleading guilty and gaining some credit from the court for not wasting its precious time with a not guilty plea.

If publicly funded criminal work is not adequately remunerated the consequences will be that the more able practitioners will migrate to better paid areas of work and the less able will take up their work. This will mean that cases will not progress as smoothly through the courts as the rules of procedure are meant to ensure that they do. The less able may be less conscientious and cases may not be prepared as thoroughly as they should be. This can result in innocent people being found guilty of offences to which they had a good defence.

This will also affect the quality of judges. Judges are recruited from the legal profession. If the less able barristers and solicitors undertake poorly remunerated criminal work then they will, in time, become the judges that try these cases. This is obviously not good for the Judiciary.

If you treat the criminal justice system like just some other public service-on a par with funding public transport for instance where budgets can be trimmed if times are hard, you are not delaying constructing a convenient highway or new ferry terminal.

You will be short-changing the public with what is more valuable than any transport benefit, namely access to an experienced professional who will test the opposing case to its limits and will give realistic advice all the way. You will be depriving them of the opportunity to participate in a contest on fairly equal terms which, if it goes the wrong way, may have life-changing consequences which include loss of liberty, loss of job and family heartache.

There is a strong case for educating the public more about the importance of a properly funded criminal justice system. Many people go through life without brushing up against the law, except for the odd traffic offence. They give it little thought. However, it is conceivable that, one day, you may be roused at home by police officers demanding entry and, upon letting them in, finding yourself arrested for an offence you did not commit. It is the worst nightmare for many people and they will be looking for a good solicitor or barrister to clear up what is a plain mistake in your eyes.

If that competent and experienced lawyer is not available because the government of the day thought that public money would be better spent on a fancy high-speed rail link for example, you will only then appreciate the importance of the criminal justice system. You will then know that it does not just to catch criminals. Innocents can be caught in its web too. Including you.

this is done

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About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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