Dan Newman and Roxanna Dehaghani
The criminal justice system of England and Wales is broken, according to the best-selling Secret Barrister. Decades of underfunding, exacerbated by the UK government’s austerity programme from 2010, have gutted the system posing great threat to access to justice.
To date, the debate on the problems of criminal justice have tended to focus on England and Wales as a jurisdiction, with little specific focus on Wales – whether, how and to what extent the criminal justice system is broken in this country. Academic scholarship on criminal justice in England and Wales tends to focus on England, and there has been scant research into the impact on Wales of successive UK government’s denigration of the criminal justice system.
The Commission on Justice in Wales have recommended the establishment of a Welsh legal jurisdiction, with criminal justice powers to be devolved as soon as possible. Wales may have its own criminal justice institutions for the first time in 500 years and thus there is a pressing need to understand the operation of criminal justice in Wales, and the issues and challenges.
However, little is often known about developments at a Welsh level: as Robert Jones has shown in his illuminating fact files on criminal justice topics such as sentencing and imprisonment, most data presented are not generally disaggregated and breakdowns can be difficult if not impossible to find in official publications, thus masking the specific challenges within Wales. Whilst the Ministry of Justice have recognised the value of collecting ‘Welsh-only’ data, pledging to make it more easily accessible on their website, access remains poor and disaggregated data held by the Ministry of Justice is frequently only become available through an FOI request.
One aspect of criminal justice that need to be understood in a Welsh context is legal aid. This is an entitlement to state-funded legal representation available for police stations and, depending on mean-testing and the nature of the offence, courts.
During the period of UK austerity, legal aid was cut by 8.75% under the coalition (having already been effectively cut under New Labour by 12%); the overall Ministry of Justice budget fell by 29%, the largest cut to any Whitehall department. Such cuts undermine access to justice as such access generally relies upon availability of criminal defence lawyers funded by legal aid to help suspects and defendants understand a confusing, hostile system where the state inherently has the upper-hand.
While England and Wales have both been negatively impacted by cuts to criminal legal aid under austerity, the cuts have been more pronounced on Wales than they have England. The Commission showed that total expenditure on criminal legal aid across England and Wales as a jurisdiction fell from £1,045 million in 2011-12 to £873 million in 2018-19 while, for Wales in the period 2011-12 to 2018-19, it reduced from £48.44 million to £36.10 million.
Thus, while the whole jurisdiction faced a real terms reduction of nearly 26%, Wales saw a larger real terms reduction of nearly 34%. The decline in criminal legal aid firms is a topic in which Wales could be lost amongst an official UK government dataset dominated by England.
Such can be seen in the table below, produced via Written Questions to the Secretary of State for Justice in 2019. It illustrates the decline across England and Wales and was widely used in social media discussions around the impact of cuts on criminal legal aid.
The figures are dramatic and show the problem for England and Wales, but give no idea of what the situation is in Wales – which is subsumed under the far larger partner in the unitary jurisdiction. In contrast, the following table, provides the information for Wales-only based on an FOI request that we made to the Ministry of Justice.
When compared, a 31.7% decrease in criminal legal aid firms across England and Wales can be seen but the decline was almost 8% higher (at 39.04%) in Wales. Further, the decline in offices was higher in Wales as compared with England and Wales – at 26.06% across the jurisdiction compared with 32.36% within Wales.
The result is that, for England and Wales, with a total population of 59.12 million there are 30.78 criminal offices per head of population. Wales has less with the 3.14 million population seeing 24.9 offices per head of population.
To judge by access to lawyers, the crisis in access to criminal justice appears to be more pronounced in the Welsh half of the England and Wales jurisdiction. We explore the implications in our recently published paper in Legal Studies – and, later this year, will consider the topic at length in a book with Bristol University Press.
We suggest that further research should also be conducted in Wales to consider how our communities experience the justice system, what can be done differently and what can be done better. Without engaging with the smaller – but no less important – part of the England and Wales jurisdiction, knowledge production, debate, and discussion are being stifled.