justice


How a defendant accused of serious crimes is treated at court reflects the basic moral principles of a society. There are two important aspects of the trial of Josef Fritzl in Austria – its transparency and its fairness. Both of these principles are tested to the limit.

The reporters in the Fritzl trial can only stay for part of the proceedings. The court provides edited extracts from the case at the end of each day. As a result, the public cannot find out exactly what happened in that dark dungeon, except as disclosed by the court. There appear to be two reasons for restricting the journalistic reporting from the court. Firstly, his grandchildren have to be protected from public intrusion. Secondly, the court did not want the trial to turn into an exercise in voyeurism. Whilst these concerns are understandable, there are other solutions which do less damage to justice. The children involved have already been given new identities. It is not the trial alone which brought them publicity. The fear about voyeurism is misplaced – the issues raised by the case are of wider public concern both nationally and internationally. The press reporting is not so much salacious as horrified.

The story of incestuous family incarceration is so shocking that any civilised society needs to ensure that it cannot happen again. The trial is of only one man, but the public will be concerned about the role that the authorities may have played. The perception is that Austrian society still has too many institutions that cannot be questioned. What were social services doing? Surely it was implausible that so many babies could appear from a daughter who has run away? Maybe the authorities do have something to hide. The best way of counteracting this perception is to bring all the facts into the open. Furthermore, the public needs to understand how a determined and devious character like this can develop. It is essential to get the full story from the protagonists – the defendant and the victim (“victim” rather than “alleged victim” because Fritzl has pleaded guilty to most counts). There is no substitute for their own words.

Fritzl is termed the “Incest Monster” by the Austrian press. Whether this description prejudices the outcome is unlikely since the judge will have seen the material beforehand in a less emotional setting. It is perhaps easier for a professional judge to deal with this media claims than it is for lay members of a jury. Meanwhile, throughout this process, the defence attorney has complained that he has been vilified for representing Fritzl and threats have been made to his life. His public appeal to treat Fritzl as a man and not as a monster has fallen on deaf ears. Fritzl is a man who acted as a conventional father for his upstairs family whilst treating his dungeon family despicably. He has not tried to evade conviction by claiming mental illness. The hardest thing to accept is that Fritzl is a man not a monster, albeit a man of moral contradictions.

Advertisements

Our criminal justice system achieves a very high conviction rate. Magistrates courts deal with around 1.75 million defendants a year. Only 10% of these are contested. The prosecutors have got better at weeding out the cases for which they are unlikely to secure a conviction. The overall conviction rate is so high (c.99%) that the Ministry of Justice does not publish it in the court statistics. In the Crown Courts, where the more serious cases are heard, over two-thirds of defendants plead guilty. However, of those that plead not guilty, 61% are acquitted.

Those who want to be tougher on crime can point to the increasing number of convictions. The police would say that they have no interest in taking an innocent person to court. They act on the presumption of guilt. Those who favour the importance of human rights can point to the high acquittal rate. They are activated by the presumption of innocence. The presumption of guilt is compatible with the presumption of innocence because they are held by different institutions: prosecutors and courts respectively. The presumption of innocence is a legal device whereby the burden of proof is placed on the prosecution.
The DNA database is said to undermine our civil liberties. However, it is not apparent that it strengthens the presumption of guilt. There will be more convictions since more perpetrators of crime may be detected. There will also be more acquittals since DNA is capable of absolving the accused as well as providing compelling evidence for the prosecution.
More pressingly, the presumption of innocence can be eroded prior to the trial if the evidence is gathered unfairly, thus undermining the requirement for a fair trial. Investigators can take short cuts or break the rules. The rules of evidence are notoriously complex in common law countries like the UK and USA. Defendants should only be left to represent themselves in the most straightforward and minor of cases. Where liberty or livelihood is as stake, then a professional defence is essential. For those who are unable to pay for their defence, which is most people before the courts, adequately funded legal aid is essential.
The problem is that those who set the budget for legal aid are influenced by those who see the criminal justice system as a kind of conveyor belt driven by performance targets. It may only be when we get too many miscarriages of justice that there will be any political change of heart.

Legal costs used to be based upon hours but this does not provide an incentive for lawyers to be time-efficient. Costs escalated. Managing legal costs involved squeezing down the scale of the work or the hourly rate of pay. Hence, purchasers of legal services shifted to alternative remuneration models with contracts for fixed or formula-based fees.

One of the enabling factors for this shift has been the availability of legal cost databases. Using statistical techniques, thousands of individual legal transactions can be summarised into a formula. Packets of work are identified: a law case is assigned standard amount of time. If the volume of cases is large enough then a “swings and roundabouts” argument can be made. Losses on one case can be made up by gains on another case. This is an economy of scale and leading to the demise of smaller legal practices.

Packetisation is suitable for transactional activities such as conveyancing. However, when it extends into the criminal justice system there is disquiet. As crime, and expenditure on crime has risen, publicly funded lawyers have to work within tighter case budgets. The UK already spends more per capita on criminal defence than any other country in the world and there is no political appetite to increase expenditure. The scope of criminal legal aid has been progressively reduced. Soon those facing jury trials will be subject to a means test.

Quality inevitably suffers when the time spent per case is limited. Less time is spent with the client. Elaborate case preparation is precluded. Clients may feel pressured to accept a solution that they do not really want. The delivery of justice is changing to be more affordable. The question is whether this changes the nature of justice – a question to which I will return.