Seeing the criminal justice system as infrastructure

The damning insights into the parlous state of the UK’s criminal justice system by the Secret Barrister are caused in part by a public and political class with little regard for the essential public good that the criminal justice system delivers. With that in mind, re-branding of the criminal justice system as ‘essential public infrastructure’ might emphasise the many good and essential contributions a functioning criminal justice system makes to our society as a whole. The reference to ‘infrastructure’ also de-emphasises its constituent parts which currently have an (albeit undeserved) negative connotation in populist media – legal aid, lawyers, criminals – and focuses on the public benefit of an overall system which functions effectively.

Secret Barrister Book Cover

‘Stories of the Law and How It’s Broken’, written anonymously by ‘the Secret Barrister’ (herein SB – for want of further particulars), gives a damning account of the UK’s broken criminal justice system. SB chronicles wrongful convictions, delays and administrative errors that would be laughable if they did not so painfully affect livelihoods. The cracks appear to stem from a deep, sustained lack of funding across every aspect of the criminal justice system over several decades. The cuts affect not only the legal aid rates to criminal barristers like SB, but to clerks, judges and magistrates, criminal solicitors (not to be confused with their well-to-do commercial colleagues), administrative staff, caseworkers, social services, the police and prosecutors. Almost universally, every participant in the system has repeatedly been required to do more with less, resulting in the perhaps unsurprising but nonetheless horrible injustices described by SB.

The funding failures have many causes. Amongst them SB points to a public, media and political culture which places little value on the positive role of the criminal justice system.

Like all products with a damaged public reputation, perhaps that system could do with a re-branding: The criminal justice system could be considered, akin to our electricity, roads, rail, waterways and internet, a piece of essential public infrastructure.

Referring to legal system as ‘infrastructure’ is not entirely novel. Gillian Hadfield, in ‘Rules for a Flat World’, introduced the term ‘legal infrastructure’ to describe the legal materials we can use to help govern our relationships. She includes within that umbrella term legal education, the civil court systems, dispute resolution, regulation and regulatory bodies, professional legal regulatory framework, research and the legal services markets. Whilst Hadfield’s work focuses primarily on civil law – the law that governs our contracts, intellectual property, employment and property relationships we need to run businesses and engage in commerce – the term could rightly extend to the criminal law as well.

The criminal law system ticks all the boxes that that come to mind when thinking of “infrastructure”: a common resource; something we all rely on; something foundational, that we build our lives, businesses and economies on top of; something that connects us and that, if destroyed, would leave us isolated and impoverished.

As SB points out, the criminal law system affects us all. It is likely that we all, at some stage, are involved in the criminal system as a defendant, a victim, witness or family member. Even if we never see the inside of a court room, we all rely on the system’s proper functioning to provide the safe, stable society that we want to enjoy outside of it. It is a common resource – we decided centuries ago that we did not want justice done at the hands of the mob, but rather by a professional, centralised and properly resourced justice system. If it disappeared or was suffocated into incompetence, a core foundation of our social stability, safety and collective flourishing would be destroyed. And just like the potholed roads and burst water pipes of physical infrastructure, the criminal justice system slowly crumbles when not properly maintained, as well chronicled by SB.

Re-branding of the criminal justice system to ‘essential public infrastructure’ might help re-frame its importance in the public eye. Politicians rarely lose votes promising to invest in a new road or rail project. Big ticket infrastructure spending brings ‘jobs and investment’ and is often seen as a win-win, ‘creating jobs’ and providing a lasting asset which increases productivity.

Similarly, I can envisage politicians successfully campaigning on a promise to invest in essential legal infrastructure. The reference to ‘infrastructure’ de-emphasises its constituent parts which currently have an (albeit undeserved) negative connotation in the public eye – legal aid, lawyers, criminals – and focuses on the public benefit of an overall system which functions effectively. They would not sell a vision for more public money on lawyers, or legal aid, or caseworkers or prisons specifically. But rather for more investment in the criminal justice system as a whole. It emphasises the number of jobs it creates. It emphasises that the final product makes everyone’s lives better in the long run – the Police can do their jobs, the right person is found and promptly prosecuted, the victims and families are treated fairly, the punishment fits the crime, criminal are reformed, addictions and neglect are treated before crimes are committed and after punishment is applied. As a result, our society is safer and fairer for all.

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