Justice Through The Looking Glass: Class and the Corruption of Law by Unsound Robin
It took around 15 minutes for the barrister to realise. Nobody else did, except me. It felt like one of those dreamlike states wherein you open your mouth and wave your arms but nobody notices. The longer it goes on, the more the inner turmoil swells to busting point, but you can’t burst. It’s a court room. I simply didn’t know when I’m allowed to speak or not. Nobody tells you.
‘Your worships, it is usual that we don’t refer to the complainant as “victim” until the facts of the case have been established’. The wave of relief was incredible. Justice is back on track. A fair hearing after all. My mistake in that brief moment of relief was in not realising the mere utterance of the term “victim” indicated that minds were made up before I stepped into the court room. I stood no chance.
I’m a pretty intelligent person. That much was established in court. But the compliment didn’t serve me well, as my intelligence was used against me – as was everything else in this world – to demonstrate that I’d done it. ‘You’re an intelligent man aren’t you?’ came the prosecution’s question. How does one answer? I can’t say no, because my status indicated I was. Yet I knew that if I could demonstrate I was stupid then, according to the logic of the prosecution, it would have undermined their case. But as with the designation of the word “victim”, it would probably have done no good, as minds were made up.
Whatever one’s knowledge, understanding and intelligence, nothing prepares a person for the sheer surreality of the court process. I thought I knew about it a bit. Indeed I’d written about law before, but it’s a little like death – you have no idea what it’s really like until you experience it yourself, and by then it’s too late. While one may assume that the court seeks to find “the whole truth and nothing but the truth,” from the inside you realise, a court is simply a pantomime.
That much was explained by the lawyer who prepared my case: ‘I’m sorry, it’s not about truth. We have an adversarial system, it all comes down to which account is believed’. And there it is, each side tells a story, and whichever story seems most likely is the one that is believed. Characters are constructed, events selected, evidence rejected and the story created in accordance to the prosecution’s selections.
Such an arrangement is all very well if there’s a level playing field, but it isn’t. While state prosecutors are indeed under-funded and over-worked, defendants are left to their own devices. If you earn less than £2500 per month before tax you might get legal aid. Over that and you have to find the money yourself, which can easily reach tens of thousands of pounds. If you do get legal aid, it’s a pittance, hardly enough to cover direct legal expenses, let alone do any further research, evidence gathering and the like.
Legal aid is at the heart of injustice. It clearly indicates the disadvantage the poor face in the criminal law system. Even if you do get it, you’ll necessarily receive a lesser defence than a wealthy person. It is perhaps indicative of contemporary political incoherence that for all the protests against austerity and chants of ‘no justice, no peace’, the cuts to legal aid passed without note, aside a few protests by lawyers.
The reporting of these cuts in the main focused on greedy lawyers or persons found guilty who’d received aid . In the first instance, legal aid cases are neither profitable nor appealing to many lawyers. In the second, at the point of being awarded legal aid, everyone is supposedly innocent, so such posthumous declarations as to the injustice of legal aid are nonsensical.
Most importantly, though, legal aid isn’t about lawyers and their income. That’s a diversion. Legal aid is about the ability of poor people to be able to defend themselves against allegations. One would hope that in the future people will look back at today and ask why people thought it was okay to have a legal system wherein access to justice was so dependent on wealth.
Even if there was a levelling of resources, there are deeper issues. Report after report has for decades explained how the judiciary is the most elitist profession there is. The Social Mobility and Child Poverty Commission reported that in 2014 71% of senior judges were privately educated and 75% went to either Oxford or Cambridge. Much attention has been given to gender and ethnic diversity in the judiciary but the elephant in the room is class.
In a sense it’s even worse with the “lay-judiciary”. In the lowest courts, the magistrates have no legal training. They are volunteers. I didn’t find this out until I had to witness the chaos that is a magistrates trial. Rules seem to be made up as they go along, points of law not recognised, and arguments not understood.
The idea of the magistracy is not a bad one, for those who seek to ignore class. The magistrates court is supposed offer trial by one’s peers, a great democratic tradition, in which the experts have been ejected and replaced by reasonable ordinary people from one’s community guided by simple common sense.
Yet as with any aspect of volunteering, one has to have the resources in place in order to volunteer. Working class people working two or three jobs to pay the rent and feed the kids are hardly in a position to give up time to site in court day after day. And so of course half of Magistrates are over 60 years old, more than 90% are white, and they are overwhelmingly drawn from middle-class professions
Their “common sense” from which cases are considered is not the common sense of a young black man in Tottenham, nor that of a labourer in Tyneside, let alone that of a precariously housed single mother forced to steal food for her children because of social security cuts. Magistrates are rarely the peers of those standing trial, which is a fundamental flaw of that system. So even if there was the expectation that magistrate trials are procedurally fair, there’s a substantive disjuncture between its theory and practice that fundamentally fails the interests of justice.
Once we begin to consider the lifeworlds of the accused we find that very often their modes of articulation may be an additional burden to overcome. It’s been well known since at least the 1960s, with the work of Basil Berstein (1971) and his colleagues at the Institute of Education that class determines linguistic code – either as “restricted” working class code or “elaborated” middle class code.
Dominant institutional codes tend to function on the latter code, so the closer one is that that language, more clearly one will be understood. Anecdotes abound that might be laughed at by lawyers, judges and magistrates, and indeed readers of this article: “so e stabbed the chavy six times in the leg, weren’t malicious voe”, “all I dun was smashed up the caravan wiv a machete, I mean everyone does it once innit?”. I get it. I understand what they mean. But of course such modes of articulation and explanation don’t go down particularly well within the “normal” middle class linguistic codes of court.
Once we understand how language reflects cultural and economic context we can understand how legal processes are constrained by particular circumstances, or a “hegemonic moment”. While courts are expected to apply the law, they are also expected to reflect the “public concern”. Of course this nefarious term effectively refers to the concerns of the media at a given time.
When magistrates enacted “justice” after the 2011 riots they gave out a total of 1800 years in prison to people accused of breaking the law during that time – “rioters” as they are referred to. The initial response saw a 70% imprisonment rate for those found guilty – against a normal rate of 2%, with sentences issued between 25% and 40% longer than normal. We are told that this reflects the public concern about the riots, and served to teach a lesson to anyone thinking of emulating such behaviour.
There was little chance of kids from the estates overturning the conception that the riots were “pure criminality”, and of course no room for aetiological explanation. The language used to articulate the riots in the corporate press was shared by politicians, broad sections of the public and therefore the courts. They defined, framed and prosecuted on this basis.
The point here is that there is no neutral language, no neutral legal point of view. Politics, economics, class, culture all affect the capacity for legal reasoning. Accordingly vast swathes of society are systematically disadvantaged, which quite clearly generates systems of prosecution, punishment and incarceration that reflect this disadvantage.
- 12% of prisoners are black, against 3% of the population.
- 20-30% of all offenders have a learning disability
- 47% of prisoners have no qualifications
- 21% of prisoners need help reading and writing
- 41% of male offenders were excluded from school
- 68% of prisoners had no job before custody, 13% have never had a job
- 15% of prisoners were homeless before custody, 9% were sleeping rough
On one hand, as critical criminologists have done so well to explain, there are strong social explanatory factors for criminality. However, at the same time the inadequacies of procedural judicial practice ensure that these factors are compounded. The accused are efficiently processed by a system that more often than not has pre-determined one’s guilt.
It was only in the process of my court case that I was informed magistrates courts have an 80% conviction rate, followed by the frustrating “should have gone up the road, mate”. When in my case prosecution evidence had not been presented my barrister called for more time. The response from the clerk to the court was “we have to balance the interests of efficiency with the interests of justice”. I shuddered. I wanted to tell them “What? That’s my fucking life that you’re playing with!”
But that’s the political economy of magistrates courts. They are the bargain basement of the court system, the ones in which there is the least justice. Indeed they’re not sites for the administration of justice as opposed to the administration of law. The ideals of procedural justice from Kant (1788) to Habermas (1992) and John Rawls (1971) seem not to figure in the UK system. Substantive matters ensure the procedure is simply not attainable at any level.
The wretchedness of the criminal law system is brought into clearer perspective when one considers “post-justice”. Post “justice” ensures that the chance of rehabilitation and reform is not a priority. The assumed anger of the baying mob has been subdued. Social ostracisation, media shaming and ultimately a criminal record makes future employment even more difficult. Therein punishment for a specific crime extends well beyond the sentence. For those who serve time there’s even less hope. The prison gates open and the convict spat out.
If the ex-prisoner is lucky, they might receive £46 on release to carry them through the near future. That’s £46 with no home, no job, no career, no reputation and very little chance of reintegration.
It makes simply no sense that a record should carry beyond a flawed system and a flawed punishment. One is marked for life. What then become of the options open to the convict? Stacking shelves in Tesco? Ticket collecting on Virgin trains? Either the punishment fits the crime or it doesn’t. To inflict destitution on destitute people may satisfy the Daily Mail but it serves no further purpose than whipping a slave.
Berstein, B. Class, Codes and Control: Volume 1 – Theoretical Studies Towards A Sociology Of Language (1971)
Habermas, J Between Facts and Norms (1992)
Kant, I Critique of Practical Reason (1788)
Rawls, J. A Theory of Justice (1971)