The Kafkaesque nightmare of British justice
Criminal barristers are fed up with the state of their profession. Credit: Peter Macdiarmid/Getty Images   
Summer reads 2019 Series

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Kafka, like Orwell and Dickens, belongs to that select band of authors whose name has become an adjective. “Kafkaesque” is a term most often used to describe an overweening bureaucracy or system that traps an unwitting individual in an illogical, nightmarish maze, governed by complex forces beyond his or her control. I suspect that as Kafka is more widely and heavily evoked as an adjective, the detail of what he wrote is less frequently considered. We think we know what he says. We’ve got the gist.

There is, however, perhaps no other author who catches so keenly the confusion and distress of individuals who have lost all confidence – and sense of their own rights – in a system that appears to be operating according to its own unknowable rules, which are riddled with failings so familiar that they are now factored into expectations.

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The Trial, in particular, is acutely relevant to our current age, in which our criminal justice system – once internationally renowned – is in a deepening state of crisis. Meanwhile, away from courts, informal ‘trials’ with inconstant rules and outcomes have become a frequent feature of both social media and company policy.

These latter ‘trials’ – although they lack legal force – nonetheless have the power to ruin a life: to destroy an individual’s reputation, to sink current and future prospects of employment, and in some especially bleak cases to push those involved towards suicide.

The Trial, written in 1914-15 and first published posthumously in 1925, begins with the line: “Someone must have been telling lies about Josef K., for without having done anything wrong he was arrested one fine morning.” Thereafter, K. finds himself immersed in an interminable and terrifyingly hazy case in which he is the defendant. There is something particularly chilling about such an opening line, because precisely the type of event it describes is familiar from immediate UK history.

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The fantasist and paedophile Carl Beech has recently been jailed for perverting the course of justice – “telling lies,” indeed – by falsely alleging that a string of public figures were involved in a paedophile ring reportedly characterised by rape, torture and murder. Beech’s testimony was given weight by the senior police officer in charge of the investigation who declared his evidence “credible and true” on national television without awaiting the outcome of the ongoing investigation.

In the face of Beech’s unsubstantiated accusations, a lifetime of service to the state apparently counted for nothing. One of those accused by Beech was Field Marshal Lord Bramall, a hero of D-Day, who – in a searing recent interview with Dominic Lawson – described the circumstances of discovering that he was a suspect in an ongoing investigation.

He was having breakfast in March 2015 with his late wife Avril, who was then in the advanced stages of Alzheimer’s disease, when two police officers arrived at the door. They said: “Accusations have been made.” He asked: “Against whom?” They answered: “Against you.” In Lord Bramall’s words:

“All they would tell me was that 40 years ago I had abused an underage male. And at that moment they showed me a warrant, and 20 policemen in overalls came in and they searched this house for 10 hours.”

His lawyer later found out the charges, which included the most lurid accusations, such as “supervising the torture of small boys on Salisbury Plain”.

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Lord Bramall lived long enough to see Beech imprisoned, although his distressed wife did not. Nor did Leon Brittan, the former Home Secretary: he died of cancer before hearing that his name had been cleared.

Paedophiles do exist, of course, and so do paedophiles in positions of public trust. Allegations from complainants need to be properly investigated. What distinguished the Carl Beech case from other cases – what made it worthy of a Kafka plot – was the willingness of the police to court publicity while openly abandoning due process and the essential principle of ‘innocent until proven guilty.’

Those caught up in Operation Midland had both the misfortune and the good luck that it unfolded in the public eye. Misfortune, because their status amplified the pain and shame of being stained with such appalling allegations, and good luck because it ensured that the case was at least subjected to press scrutiny and their exoneration was decisively publicised.

Yet it begs the question: how many more injustices are routinely pursued, largely unseen, against those who have few resources with which to counter them? The protections of our criminal justice system have long been intended to guarantee that all accused are treated equally in the eyes of the law. But those protections have been steadily eroded on a number of fronts. Kafka’s imagined world creeps ever closer.

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In January this year, The Law Society submitted a parliamentary briefing on a “criminal justice system in crisis”, which it argues has been caused by “years of underinvestment and neglect”. The challenges it cited included increasing shortages of duty solicitors; a restrictive means test for legal aid; inefficiencies in the system; more and more courts being closed; and crucial evidence often not being disclosed.

To take but a single example, the role of criminal duty solicitor – the person you can call for professional advice if you are being held in a police cell – is now so badly paid that younger lawyers are refusing to go into it. The youngest duty solicitor on the Isle of Wight is now 55 years old. She is understandably concerned about what happens to the rights of suspects once she retires.

The rates that criminal barristers are paid for undertaking legal aid cases are often less than £100 for a day’s work, out of which they must pay travel costs and fees to chambers. Many are finding that – despite an extensive education, for which they have usually incurred sizeable debts, and working long hours – they cannot afford even a modest mortgage out of their professional salary.

Young barristers are therefore leaving crime work in their droves for commercial or corporate practice. There is no area of the law in which the stakes for the individuals concerned are so high; yet those lawyers who remain in criminal law see cases being postponed and court buildings and their machinery crumbling.

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It is impossible to avoid the suspicion that the ongoing underpayment of criminal barristers and solicitors, the degradation of the infrastructure in which they operate, and the squeezing of public access to legal aid itself, is driven by an unspoken but resolute political intent. In one passage in The Trial, Kafka describes the surreal and miserable conditions in which the Advocates (those who represent defendants) work:

“It wasn’t saying too much if the Advocates called these conditions scandalous. Complaints to the authorities had not the slightest effect, and it was also strictly forbidden for the Advocates to make any structural repairs or alterations at their own expense.”

The narrative voice offers the reasoning for this situation:

 “Still, there was some justification for this attitude on the part of the authorities. They wanted to discourage defending counsel as much as possible, the whole onus of the Defence must be laid on the accused himself.”

Does this sound a fanciful translation from fiction, if applied to our current circumstances? Perhaps not when one considers a policy that is already in place, dubbed ‘the innocence tax’. Those who are above the threshold of legal aid funding – in the magistrates’ courts, anyone with an annual household income of £22,325, and in the crown court, above £37,500 of disposable household income – are currently compelled to fund their own defence privately, often at a considerably higher rate than legal aid fees.

Should they then be acquitted, however, the government will only reimburse them at legal aid rates (a deliberate policy: before 2012, they were allowed to claim back “reasonable costs”). This can leave people, after acquittal, with a large outstanding fee which in some cases has led to bankruptcy or the loss of life savings.

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The former Commons deputy speaker Nigel Evans experienced this personally, when he was acquitted of charges of rape and sexual abuse but lost his life savings in the fight to clear his name. He has since said:

“People don’t see people like me as victims, and there’s a sense that it could not happen to them. That’s what I thought too, but it’s completely wrong. There’s nothing easier than someone falsely accusing you of a crime.”

It has long been accepted that if one has the misfortune to be wrongly accused of a crime, a conviction is disastrous. Now, thanks to the ‘innocence tax’, so too might be the aftermath of acquittal.

Our legal system is the ultimate guarantor of individual liberty. It should be the last line of protection against the arbitrary persecution of the state, individual malice, and the passing mores or prejudices of wider society. The law should be broadly immune to contagious emotions or fashionable ideology.

Today, legal independence seems more necessary than ever, as the shifting traps of judgement and taste that are laid by social media – the complex blurring of private and public life – can have life-altering consequences for the unwary.

In June this year, for example, a 54-year-old disabled grandfather, Brian Leach, was fired from his job at Asda for posting an anti-religious skit – which mocked both Christianity and Islam – by the comedian Billy Connolly on his Facebook page. Asda, which itself sells Billy Connolly DVDs, said that he had breached the company’s social media policy. Leach was summarily dismissed, despite having deleted the post and apologised for any potential offence to colleagues.

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That the behaviour of the police can also be influenced by perceived public mood was evidenced by Operation Midland: it is widely thought that the misplaced eagerness to find Beech’s testimony “credible and true” was in part a reaction to the bad publicity generated by the acknowledged previous failure of the police themselves to investigate sexual abuse allegations properly in relation to Jimmy Savile and others.

Recently the police also appear to be taking a worryingly keen interest in patrolling lines of opinion and argument – resulting, for example, in a bizarre case being brought earlier this year by West Yorkshire police, Essex police and the CPS against Miranda Yardley, a self-identified transsexual, for ‘harassment’ allegedly motivated by ‘transphobia’. It is worth noting that while Yardley, the defendant, was and is transsexual, the complainant was not trans, but a ‘trans ally’: the origin of the complaints was a spat on social media.

District Judge John Woollard dismissed the case against Yardley in a one-day hearing, saying there was simply no evidence, and awarding costs to the defence. In his blunt summary: “There is no case and never was a case,” something that neither the police nor the CPS were apparently able to perceive within a ten-month investigation.

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Meanwhile another recent development has been worrying solicitors, who witness clients increasingly trapped – like the unfortunate Josef K. – in a legal limbo without apparent end: the rapid rise of the phenomenon of ‘released under investigation’ (RUI). Criticism of the pre-charge bail system – in which suspects were endlessly bailed and re-bailed without their case being resolved – led to bail being widely replaced with RUI.

This is arguably much worse: unlike with bail, there are no fixed calendar dates whereby suspects can discover the progress of their case. Instead, a suspect’s relationships, studies or career must be placed on hold while the case stagnates or inches forward. The suspect will be notified at some point of the case’s direction, but he or she will have no idea of exactly when that might be, and nor are the under-resourced police under any formal obligation to tell them within a given time-frame.

When the Law Society Gazette ran an article on RUI recently, anonymous solicitors spoke below the line of their own experiences. One read: “I’ve had one client RUI for 25 months and counting and the case is not yet even at the stage of being sent to the CPS for a charging decision. That will be a minimum of another four months, so the case might yet break the three year mark in due course.” It goes without saying that such delays also grievously affect the lives of complainants.

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For those of us who are not routinely involved with the criminal justice system, such stories crop up troublingly and drift away again. They do not touch our lives – until one day, perhaps, they do indeed affect us or our loved ones, with catastrophic consequences.

Yet something is going profoundly awry with the justice system in the UK, and if it is not understood and addressed as a coherent picture – which it is – it will have deeply corrosive and long-lasting effects. Start, if you like, with reading or re-reading The Trial, and then listen out for its many echoes today.

Those echoes keep on coming, right up until the miserable moment of Josef K.’s death. Two men in frock coats and top hats come for him eventually, officials of the state with malign intent, and K. asks himself: “Where was the Judge whom he had never seen? Where was the High Court to which he had never penetrated?”

One man holds him down, one stabs him, and then K. watches them watching him die: “’Like a dog!’ he said: it was as if he meant the shame of it to outlive him.”

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Well, we must all be wary of hysteria and exaggeration. Frock-coated officials are certainly not stabbing suspects to death in the UK today. Yet still those stubborn little echoes persist – “like a dog!”.

An inquest jury concluded this July that the death of Rafal Sochacki, a 43-year-old Polish national, on 21 June 2017, was most likely due to him being subjected to excessive heat. Sochacki had been arrested on an extradition warrant and was being transported in a prisoner-escort services van, a task outsourced to the private company Serco, on one of the hottest days in central London for over 40 years.

The van stopped outside Charing Cross police station, holding Sochacki in a cell inside the vehicle for 50 minutes with the engine and air conditioning turned off. He was then taken to court at 10am, soaked in sweat, and put into a very hot, unventilated cell: the air conditioning at the court had not worked for weeks, and mobile air-conditioning units were proving ineffective.

Rather like K., in fact, he never got to see the judge or the court. Having been noted as behaving oddly and erratically, he was finally found unresponsive in his cell at 2.45pm, having died of severe heatstroke and hypertensive heart disease.

And it is strange, because when I read about the circumstances of Sochacki’s death, my very first thought was that there might have been a greater public outcry if a dog had been treated in this way.