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Ed Vickers KC

Barrister, Red Lion Chambers

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It is abundantly clear that the fundamental problems that exist across the criminal justice system in 2024 cannot be solved without significant political and financial commitment

The ‘promise’ of a Royal Commission

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The ‘promise’ of a Royal Commission

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Ed Vickers KC, a Barrister at Red Lion Chambers, asks which political party is going to have the courage to acknowledge the extent of the crisis in the criminal justice system and act to find solutions?

An eye-catching policy of the Conservative Party election manifesto is to re-introduce some form of National Service. The detail, so far, is sketchy. But voters will have to wait a long time before they can see how in practice such a scheme will work. That is because the Conservatives have said that they will establish a Royal Commission to work out how such a scheme would work, including the types of ‘service’ and the rewards or penalties for compliance or non-compliance. Two questions follow: is this the appropriate use of a Royal Commission; and, can the Conservatives be trusted with such a promise?

The backdrop

Voters might want to recall the last time that the Conservatives promised a Royal Commission before deciding whether this promise is worth the paper it is printed on. In 2019, the Conservative election manifesto promised a Royal Commission on Criminal Justice. It stated that, in addition to creating 10,000 more prison places, it would ‘establish a Royal Commission on the Criminal Justice process’ (fact check: the ‘usable operational capacity’ of the entire prison estate on the day after the 2019 election was 85,197, holding 83,376 prisoners; on 24 May 2024 it was 89,014, holding 87,089 prisoners). Readers will remember that the then Prime Minister, Boris Johnson, was returned to Downing Street with an increased majority. Despite frequent questions to successive government ministers in parliament and elsewhere as to when the Royal Commission would be established, and the assurance of justice minister Lord Wolfson telling the House of Lords in 2022 that that the government was ‘absolutely committed to the delivery of this key manifesto pledge’, the promise was quietly dropped in 2023, by Dominic Raab, then Lord Chancellor and Secretary of State for Justice. The reason a junior minister gave in parliament was that the government ‘recognises the opportunity that a royal commission could present to look at structural questions in the criminal justice system’ but ‘we think it is right that, following the pandemic and the [Criminal Bar Association]’s disruptive action, we focus on delivering recovery priorities over the coming months’. With the ever-increasing backlog of cases in the court system, the inability of the Crown Prosecution Service (CPS) to find prosecuting counsel to prosecute rape cases, and the strain of prison overcrowding leading to the early release of prisoners in Operation Early Dawn, voters will have to decide for themselves whether the abandonment of the government’s promise to establish a Royal Commission to concentrate on ‘recovery priorities’ has worked out.

The use of a Royal Commission

A Royal Commission is now a rarely-used tool in the UK, although in parts of the Commonwealth, notably Australia, it is often used to good effect. It is an alternative method of finding solutions to a political issue from the now more common public inquiry or a report by a parliamentary committee. Its purpose is to establish a committee of specialists and experts with powers granted by royal warrant to conduct a detailed investigation and make recommendations to address specified issues raised in its terms of reference. The Domesday Book, commissioned by William the Conqueror in 1085, is said to be the first Royal Commission. The subject matter of subsequent Commissions has ranged from defence of the realm, capital punishment, the Poor Laws, the British Museum, the environment, trade unions and sewage disposal. It has been a tool of government used in successive centuries (most visibly in the 19th Century), sometimes cynically with a view to kicking an awkward political can down the road: on occasion the Royal Commission has not published its report before being disbanded, or, as with the Wakeham Commission into reform of the House of Lords, has not been implemented. But often there is a more positive result with the government accepting the recommendations and introducing appropriate legislative change. Examples of the effectiveness of Royal Commissions in the 20th Century can be seen in the Royal Commission on Criminal Procedure (established 1977), which prompted the introduction of the Police and Criminal Evidence Act 1984 and the establishment of an independent Crown Prosecution Service by the Prosecution of Offences Act 1985.

The most recent Royal Commission into Criminal Justice was in 1991, chaired by Viscount Runciman. The Runciman Report (published in 1993) was established in an attempt to restore public confidence in the criminal justice system following a number of high-profile miscarriages of justice (in the immediate aftermath of the quashing of the convictions of ‘the Birmingham Six’). Its terms of reference were, inter alia, to examine police investigative powers and the treatment of suspects, the use of expert witnesses and forensic science at trial, matters of evidence and procedure, pre-trial and continuing case management, a review of the correct approach to disclosure, and the approach of the Court of Appeal to miscarriages of justice and appeals more generally. The Commission’s recommendations in relation to correcting miscarriages of justice were adopted in full and led directly to the establishment of the Criminal Cases Review Commission by the Criminal Appeal Act 1995. But, whilst it made recommendations about the role and powers of the Court of Appeal, its pithy observation that ‘we are all of the opinion that the Court of Appeal should be readier to overturn jury verdicts than it has shown itself to be in the past [and] the court should be more willing to consider arguments that indicate that the jury might have made a mistake’ may have fallen on deaf ears. However, even though full implementation of all its recommendations did not occur at the time, the report fuelled a continuing debate which has led to subsequent procedural or legislative change, as seen in the development of PACE Codes, the Criminal Procedure Rules, and the disclosure of unused material in criminal cases.

What could a Royal Commission achieve in 2024?

The problems facing the criminal justice system are legion and deep rooted. Should a commission cover everything, or focus on the most pressing issues? Those to be considered must include: policing – restoring confidence (especially of women and minorities) in the police, including a review of search, stop and arrest powers, and accelerating charging decisions; solving the unacceptable backlog of cases in the courts, particularly those involving vulnerable victims, witnesses and defendants; the underfunding of legal aid (especially in rape and sexual offences, and the recruitment/retention problem across the legal profession); the funding and effectiveness of the Probation Service in supervising non-custodial sentences and post-release prisoners, together with more effective rehabilitation of drug addicts and recidivist offenders in prison; and tackling the consequences of chronic overcrowding and the physical condition of the prison estate.

It is abundantly clear that the fundamental problems that exist across the criminal justice system in 2024 cannot be solved without significant political and financial commitment. As the Bar Council has pointed out when calling for a Royal Commission into the criminal justice system, the piecemeal sticking plaster approach of recent years has failed. The Labour Party Manifesto promises generally ‘to fix the Criminal Justice System which after 14 years of neglect is broken’, but it does not promise a root and branch review. Whether or not a Royal Commission is the most appropriate mechanism to find lasting solutions is perhaps not the question. The pressing question is: which political party is going to have the courage to acknowledge the extent of the crisis in the criminal justice system and act to find and fund long-term solutions? Until that is answered, the electorate should perhaps pause before deciding which party is best for ‘law and order’.

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