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If I Ran the Criminal Justice System

Document Cited authorities 2 Cited in Related
Vincent
DOI10.1350/jcla.2006.70.2.93
AuthorJames Morton
Date01 April 2006
Published date01 April 2006
Subject MatterOpinion
Standing Document..Contents .. Page1 OPINION
If I Ran the Criminal Justice System
James Morton
Just as the school football team of one’s youth was much better then
than it is now, it seems to me that, for all its faults, the criminal justice
system worked better then than it does now. And by ‘then’ I mean back
in the 1960s when I was first in practice. My view was rather reinforced
recently by ‘If I Ran Legal Aid’, a short article in Independent Lawyer
(Issue 32, November 2005) by solicitor-advocate, Natasha McDermott.
In it she looks at the problems of separate legal training, the high cost of
silk, and the operation of the courts in particular.
Looking back some 40 years, of course some things have improved.
Gone are the arcane rules that in general circumstances the prosecution
had the closing speech to the jury. There is now proper disclosure by the
prosecution. Back in the 1960s the best a defending lawyer could do
was, following the rule in R v Bryant and Dickson (1946) 31 Cr App R 146,
to ask for the names and addresses of witnesses whom the prosecution
did not intend to call. Given the speed with which cases were called into
the list this was very much a haphazard affair with, very often, the
names arriving after the trial had begun. There was no such thing as
advance disclosure. Occasionally one of the more robust stipendiary
magistrates would tell the prosecutor to let a defending lawyer look at
the file, but if the prosecutor held his ground the only compelling reason
for him to do so was not to incur the displeasure of the magistrate. It was
boxing blindfold. Nowadays, many will argue that the disclosure rules
have been so manipulated by the defence that they have become a bar
to swift and certain justice. There has also been the lamentable inven-
tion of the photocopier, possibly the single most delaying and expensive
factor in the criminal justice system.
One thing which changed for the better was that legal aid became
available for applications to a judge in chambers for bail. In...

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