The government has been reported to the Information Commissioner over accusations that it covered up the existence of a substantial report into judges’ and prosecutors’ experiences of people without lawyers in crown court.
BuzzFeed News revealed on Tuesday night that the Ministry of Justice had concealed the existence of a 36-page internal report that contained explosive testimony from judges and prosecutors about the impact on the justice system of the rising number of unrepresented people in criminal court.
The full report was leaked to BuzzFeed News after the MoJ released a brief, sanitised, six-page summary and claimed it was the full study. The research was commissioned by the government to review the impact of cuts to legal aid made in the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) and was based on in-depth interviews with 15 crown court judges and six prosecutors.
BuzzFeed News and others requested the report under Freedom of Information laws in spring 2017. The MoJ turned down the request, insisting the politically embarrassing research needed to be kept under wraps because it related “to the formulation or development of government policy”.
After the Information Commissioner stepped in and compelled the MoJ to publish the report, the document they released was described on its cover page as a “research summary”. In statements to BuzzFeed News, the department repeatedly claimed that the summary was the full and only report in existence.
In contrast, the full document leaked to BuzzFeed News, dated February 2016, is clearly titled a “report” and has footnotes, appendices, data and quotes.
Intentionally concealing a report that should be disclosed is a potential offence under section 77 of the Freedom of Information Act.
Shadow justice minister Richard Burgon, said the the situation looked “alarmingly like the government is trying to cover up a problem of its own making”.
BuzzFeed News is one of three parties who today reported the MoJ to the Information Commissioner for breach of FOI law.
Lord Beecham, who first called for the publication of the report in a written question in the House of Lords, told BuzzFeed News: “It’s pretty shocking stuff. It’s appalling. Nearly 14 months after I raised a written question in the Lords it has emerged that a report was commissioned and has been received but has not been released, with only a partial summary of its contents published. I’m now asking for the full report to be published without delay.”
Senior barristers, solicitors, and politicians were amongst those expressing their horror at the MoJ’s failure to disclose the true extent of its research.
Angela Rafferty, chair of the Criminal Bar Association, said: "Those who need legal representation should have it otherwise miscarriages of justice will occur on all sides. It is concerning that the MoJ doesn’t seem to have published the report about this in full. The broken justice system cannot and should not be swept under the carpet."
Law Society head of justice Richard Miller told BuzzFeed News: “This research contains very important information that should have been disclosed when it was first available. It takes on even greater importance in the light of emerging stories of more defendants appearing unrepresented as a result of escalating numbers of lawyers no longer willing to take on criminal cases.
“This situation is unprecedented and has been brought about because criminal defence solicitors and barristers are on their knees. Twenty years without any increases in fees, and a series of drastic cuts have pushed the criminal justice system to its limits.”
Penelope Gibbs, director of Transform Justice, who also put in an FOI for the original report, said she was “shocked” the research was not released in full.
She told BuzzFeed News: “The conclusions of the Ministry's research and that of Transform Justice are the same – that unrepresented defendants do not get justice in our criminal courts. Both reports made suggestions as to how to support unrepresented defendants better and thus avoid miscarriages of justice. But two years later, nothing has been done to improve the situation. Maybe that's why they've tried to suppress the report."
The situation comes as criminal barristers stepped up their protest against legal aid cuts. Barristers across England and Wales have already been refusing to take new cases as part of an action against changes to legal aid fees, as well as the wider crisis in the justice system.
BuzzFeed News is already aware of two people who have received prison sentences without representation in court – and given the underreporting of local court cases, the true figure is expected to be higher.
On Wednesday the Criminal Bar Association announced that participating barristers would be declining returned cases, in addition to any new work. These are cases that come up at the last minute where the instructed barrister is unavailable and an alternative is expected to step in if they are available.
The further action, which will start on 25 May, is likely to cause an even greater backlog in the courts. Barristers are hoping it will force the hand of the MoJ, which said in a statement that it was "surprised and disappointed with this escalation".
In the House of Commons on Tuesday evening, Labour's Richard Burgon said the unrepresented defendants report had only come to light as a result of "dogged reporting" by BuzzFeed News. He continued: "It highlights judges’ concerns about people representing themselves. … The obvious result of this is that some judges and prosecutors felt that those who appeared in court without a lawyer were more likely to be found guilty.
“The legal system should not be skewed towards wealthier people. Everybody who wants it should have access to proper legal representation if charged with a criminal offence. Justice should be blind. It should also not be based on the depth of people’s pockets. We now have criminal barristers forced to take coordinated action in refusing to take up legal aid work because of changes to the government’s funding scheme.”
The justice secretary David Gauke was questioned on access to justice by the Lords’ Constitution Committee on Wednesday. Lord Dunlop raised the issue of the report made public by BuzzFeed News.
Highlighting the “graphic comments from judges” about those without lawyers in criminal court, Dunlop asked Gauke: “What steps [are you] taking to improve access to justice for individuals and particularly those who come to court without proper legal representation?”
Gauke responded by saying it was “worth remembering” that in crown court “something like 99% of applicants for legal aid are successful, and that hasn’t changed as a consequence of the reforms that we’ve undertaken.”
The statistic, widely used by the MoJ to suggest that the proportion of people in court with legal aid has stayed the same, omits the fact that most people do not apply for legal aid if they are told they do not qualify. Almost all the people BuzzFeed News has encountered representing themselves in court since LASPO have never made a legal aid application because they were told they would fail the means test or that the area of law was no longer in scope.
Gauke also said that the review of LASPO, announced last year, would report by “the end of the year” despite earlier assurances by the department that it would be published in the spring, and then later, before summer recess.
A PM spokesperson said on Wednesday: "My understanding from the Ministry of Justice is that the freedom of information request was for a copy of the final report and that has been provided. ... If there are any more details I'd have to direct you to the MoJ but my understanding is they provided the report and that complied fully with the FOI request."
The MoJ has yet to respond to BuzzFeed News’ request for comment on the Information Commissioner complaint. On Tuesday evening, it claimed, wrongly, that the freedom of information request had been for the "final report".
In a statement to the Mirror on Wednesday, the department said the 36-page report – which it had previously said did not exist – was an early draft that had been edited down to six pages because it was too long and “didn’t meet the robust standards we have for research".
Emily Dugan is a senior reporter for BuzzFeed News and is based in London.
Contact Emily Dugan at firstname.lastname@example.org.
Got a confidential tip? Submit it here.