Lord Sumption warns that a proper justice system is ‘not discretionary’

Lord Sumption

The Supreme Court justice, who will retire from the court in a fortnight, said in the keynote speech to the Annual Bar and Young Bar Conference 2018: “A court system which leaves criminal defendants to face the state’s prosecutors with no, or no adequate representation, is not a functioning court system. A court system which leaves defendants to foot the bill for their defence when the state has failed to prove its case against them, is not a functioning court system. A prison system comprising overcrowded and understaffed seminaries of crime is not a functioning prison system.”

The judge went on to criticise the bar’s response to the challenges it has faced, saying its tactics have not always been “wise” because the government cannot return to the “open-handed approach to legal aid that prevailed in the 1970s” as other forms of expenditure compete with legal aid.

He also gently rebuked the bar for running campaigns which would only work if it had strong support from the public, which “it does not”.

He added: “Most of the public believes that there is no smoke without fire, that people charged with criminal offences are almost certainly guilty, and that barristers are rich toffs who help their clients to avoid their just deserts. This is a travesty. But it is a deeply embedded prejudice which we have to reckon with. There have never been any votes in having a fair and properly functioning court system, fundamental as it is.

“Barristers will never have the kind of public support that nurses or teachers enjoy. This means that they cannot use the same campaigning methods. Public demonstrations with banner in hand and wig on head look ridiculous and are completely counter-productive.

“The bar’s only real weapons are to refuse to take instructions for inadequate fees; and to work on ministers who, however resistant, are at least likely to have a better understanding of the problem than most of the wider public, as this morning’s announcement shows.”