The English and Welsh legal system is one of great history and importance in the development of legal principles across large parts of the globe. Seen from both a criminal and civil law perspective, it is held up by many as the gold standard and in many ways the template for less aged jurisdictions.
The protections and freedoms of the Briton in his court system is ensured by several constitutional safeguards. The upholding of right of Habeas Corpus for example, which large majority parliaments have struggled to infringe in the shadow of even terrorist threat, shows that it is a system which has an enduring central balance. The separation of powers which underpins this, Executive, Legislature and Judiciary, is politically unquestionable for the most part, and politicians in the UK tread lightly here for they know that it a principle which the citizen prizes incredibly highly.
The move towards European integration has demanded that the Union itself has a converging policy for judicial affairs, and central to this policy is an implied parity of justice across the European Union. By inclusion of the Charter of Fundamental Rights in the Lisbon Treaty, the intent was to set the standard in such areas at a parity that was at least an acceptable minimum under which justice could be relied upon. But has it been altogether successful?
Assessing Judicial Effectiveness.
One potential indicator in assessing the dedication of the nation state to operating an effective judicial processes, is the manner in which it funds the process itself. When looking at the budget allocated to the Justice system across the EU and further, the European Commission for the Efficiency of Justice report 2014, shows a great disparity across the EU nations. Britain, while not being the highest spender (figures exclude the cost of public prosecutions), is one of the higher spending nations, and certainly above the average. It’s spend is proportionately very high, over 40% of its total budget, to financial aid of the litigant or defendant. We know that with the reduction in the spend on civil litigant support in the legal aid system, that this relates to a very high degree of spending on the legal assistance of criminal defence.
By comparison, all apart from Norway spend a lower proportion of their budgets on legal aid, but Denmark, Sweden, the Netherlands, Finland and Ireland all spend fairly high proportions, over 20%, on legal aid. At the other end of the spectrum, Romania, Poland, Malta, Greece, Bulgaria, Spain, Slovenia, Lithuania, Latvia, Italy and even Austria, spend less than 10% – many of these under 5%.
This would tend to indicate a difference in the balance of public policy priorities between the states – where some have a large funding priority to the prosecution by the state or to the court system itself, but less so to the individual defendant or litigant. In the common law systems such as the UK, there are a smaller number of very qualified judges, and therefore a lower courts wages bill for example, but the defendant is well represented at all stages at the cost of the state in many cases. Inquisitorial systems of course have different structural costs. But how does this imbalance affect the access to justice, and to a reliable defence for those without significant means?
Access to Effective Justice.
Fair Trials abroad reports a mixed picture across the EU nations in regards to access to effective justice, and access to a lawyer on detention in particular. Pre Trial detention in some EU states causes particular concern, especially where there is a lack of legal aid or long process due to failure of the courts to pursue matters promptly post detention.
Bulgaria for example, comes in for particular criticism from the US state department in regards to pre trial detention. It complains that prosecutors in Bulgaria bring charges into a heavily backlogged system without sufficient evidence. Where the judicial system acts a check against this error, the Judge must refer the case back for further evidence collection and presentation, but at this point the defendant is still deprived of his liberty. To make this situation worse, the low amount spent on legal aid in Bulgaria means that the defendant will have difficulty in accessing any public defence aid while incarcerated. This would not be the case in the UK, where the defendant should be afforded fairly swift justice, with full legal representation.
Michael Shields’ case highlighted the lack of rigour in the Bulgarian legal system, as was widely reported in the press. His was case of mistaken identity, via an identity parade process which would not have been allowed under UK law. Evidence that he was in his hotel, asleep at the time of the incident he was charged for was ignored by the courts, and there was a total absence of forensic evidence. He was fortunate that he had been allowed to serve his sentence in the UK, thereby allowing the then home secretary Jack Straw to intervene (eventually), and Shields was granted a pardon after four years of incarceration for a crime he knew nothing of.
In the 24 months to March 2016, Romania was held to be in violation of Article 6 of the European Convention on Human Rights 19 times, and Article 5 in a further 9 instances. Again, issues of pre trial detention loom large in Romania’s very ineffective legal system, and access to legal advice is again poor. Fair trials abroad note many cases of alleged brutality to extract evidence or confession, which has then been made admissible in court. The US state department notes that “Major human rights problems included Police and Gendarme mistreatment and harassment of detainees”. Prison conditions are also exceptionally poor in Romania, and that the Council of Europe’s Committee for the Prevention of Torture has registered allegations including acts regarded as torture of imprisoned persons as recently as 2012. These include beatings, use of electric shock and stress positioning. The independence of the Judiciary is now also under threat, and political interference is also noted.
Greece, although it has a better record that Romania under at the ECHR with only 8 cases decided against it in the same period, also suffers significant problems with pre trial detention and access to legal representation. What have been described as ‘Chronic delays’ in the courts, an average of 50 months taken to reach a criminal trial verdict, are described in a study by the World Bank. The dire financial mess in Greece has led to concerns of judicial corruption.
The case of Michael Turner, extradited to Hungary in 2009, is shocking in that it is fairly clear that Westminster magistrates court was ‘mislead’ into granting extradition on the basis that the case was ready to go to trial. EAW requests are designed for trial, not for incarceration for investigative purposes. Eventually, after an extended period of alleged mistreatment he was released without charge, only to be hauled back to Budapest in 2012 – to be found guilty of a trivial fraud of £12,000, which he is appealing. His sentence, non custodial. He suffered months of imprisonment in substandard conditions for a crime punishable only by a fine in Hungarian law.
Even long standing Western EU members are not entirely free from issues though. Austria merits a mention on the Fair Trials International website due to poor police practice in terms of issues that would be covered by the Police and Criminal Evidence Act 1984 – namely that they are not cautioning subjects correctly with regard to right to legal representation. France was also held to be in breach of the ECHR in regards to detention and trial 25 times in the 2007-14 period.
Conversely, the same organisation criticizes the UK in only one respect:
Unjust Extradition from the UK under the European Arrest Warrant.
Protection of the citizen
This paints a worrying picture. The common law system in place in the UK, the separation of powers and the independence of the judiciary, ensure that our system conforms to the highest standards. It is not perfect, but it is built and constituted on the correct foundations. While it seeks to protect the citizenry from the worst elements amongst us through use of a police force and prosecution service, it also seeks to protect us from the will of any government which tries to extend state power beyond the constraints of the law.
Our parliamentary system is also strong, in that we have a committee structure and a revising chamber which has a tendency (with some exceptions of course), to modify or even weed out bad laws at the drafting stage. This again, makes it more difficult for government to extend the power of the state for its own ends. Even with the constraints on spending that have been imposed in recent years, our spending on public defence is the highest by percentage anywhere in Europe, and only outspent by Norway. Many of the countries to which we subject UK citizens simply on request, have none of the evidenciary safeguards afforded by legislation that has been in place here for over 30 years.
Yet despite this, we are asked to accept the EAW on the basis that the ‘aim’ is that all the legal systems across the European Union will someday be in some kind of parity. At the same time, the enforcement process for this parity is creating only the tiniest impact. In some areas, it might be argued that the direction of travel is contrary to that which is desirable as the political scene shifts.
The UK courts must once again be able to differentiate between the standards of justice offered in different jurisdictions, and refuse to extradite to countries under which fundamental rights cannot be guaranteed. At the same time, the presumption to extradite must only be upheld under the 1957 European Convention on Extradition where there is a demonstrable standard of Judicial transparency and independence, and where there is real doubt the right to call for evidence must be restored.
Justice must be equal for all in the UK, it is the fundamental principle in a free society. We must not outsource responsibility for this to other nations in respect of our own citizens or those who seek refuge here. It is not the role of the nation state to offer up its people for summary injustice.