Justice delayed is justice denied: The recent strikes by criminal law barristers

It has been hard to miss the publicity surrounding the recent strikes involving barristers specialising in criminal law. These strikes have been about the structure and levels of remuneration for defending suspects alleged to have committed criminal offences. The vast majority are funded by Legal Aid. The structure and levels of legal aid are controlled by the Government.

Over the last decade, I have represented many families whose loved one has been seriously injured. There is often a considerable overlap between the criminal justice system and the civil justice system.

Unfortunately, due to cuts in the public sector, obtaining evidence from the police or Health and Safety Executive takes a significant amount of time, sometimes years. These delays can prevent the civil case from proceeding in any material way, particularly if the circumstances are not clear. There are ways to try to address these delays but it is right to acknowledge that in most cases the courts abide by the principle that the civil remedy for the individual should follow any criminal sanction which the state wishes the courts to impose. In other words, the criminal justice system is given greater predominance because it protects our communities, rather than a specific individual’s rights. That is little comfort to a family who have suffered the devastating consequences of a loved one being grievously injured.

Court closures

A lack of funding in the criminal justice system has also led to court closures, a limited number of judges, and prolonged waiting times. It is not uncommon for defendants in serious injury cases to adopt the position that they cannot deal with the case materially until the evidence has been received and the criminal trial, if applicable, has concluded. This substantial delay can cause significant hardship to injured families and preclude vital opportunities to engage in rehabilitation, which is generally far more effective in the initial period after injury.

To contextualise this, I give an example which is based on real life cases. 

A husband and father is grievously injured in a road traffic incident. There had been a head-on collision on a dual carriageway. There is a dispute about exactly where in the road the collision occurred. The husband cannot remember what happened as he has sustained an acquired traumatic brain injury. He was unconscious at the scene and was placed in an induced coma when he arrived at hospital. 

Fortunately, after being in hospital for seven months, he survives. He has three young children and a wife; they rely upon him financially. There is an independent witness. The police take the position that they cannot release her details until the conclusion of the criminal trial. 

The police also arrange for a collision investigator to attend. They prepare a report. However, the police are of the view that they cannot release that report, or any other documentary evidence, until the end of the criminal trial. 

The insurer cannot investigate liability as they are in the same position as we are. The High Court in the civil proceedings refuse to order the police to provide disclosure as they do not want to jeopardise the criminal proceedings. 

The husband waits for three hours and then receives the police evidence. This is after the criminal trial has completed. At this stage, the insurer starts to fund rehabilitation. Although this is an unusual example, it is increasingly likely, depending upon the stance adopted by the High Court, that justice delayed in the criminal proceedings will be justice denied in the civil proceedings in the future.

Find out more about Irwin Mitchell's expertise in supporting people and families affected by serious injury at our dedicated serious injury section.