In Britain now, the richer you are, the better your chance of justice

Justice in Britain, a country that boasts it all but invented the presumption of innocence and trial by jury, is becoming a matter of money. We’re going the way of the United States and building a market-based rather than a rights-based system; where the rich have every advantage and the jails are filled with the black and the poor.

It hasn’t happened yet, but allow me to clutch some straws from the prevailing wind. Last week, Southwark crown court began hearing the case of Das insurance company against its former CEO, Paul Asplin, who it accuses of passing business to companies in which he had a financial interest. He is pleading not guilty and the case continues. Whatever the verdict, one feature already stands out: Das is bringing a private criminal prosecution. So are many other companies. Britain now has its first firm of private prosecutors: Edmonds Marshall McMahon, set up by former government lawyers. They realised that cuts to specialist crime teams meant many fraud cases could not and would not be pursued by the state. The demand for their services is so strong they are receiving six inquiries a day.

What applies to the prosecution applies to the defence. Chris Daw is a criminal barrister the wealthy go to when they are in trouble. It is nearly always worth pleading not guilty, he says, particularly if you have money. True, you will get a longer sentence if found guilty, but what are the odds? You can afford to call expert witnesses who can contest every piece of evidence and you are up against a harassed and underpaid representative of the Crown Prosecution Service and a hacked-back police force.

The greatest fiction of crime drama is that detectives and lawyers have time. The brilliant lawyer finds the evidence that breaks open a case. Chief Inspectors Lewis and Barnaby have their sergeants and constables to hand. They investigate one crime, not two, three or a dozen simultaneously. Crime drama’s popularity is usually explained as an escapist desire for a neat resolution when the criminal is caught. But it also reveals a naive belief in a justice system that no longer exists or maybe a yearning for a better past. As it is, the police do not have the resources to go through evidence or combat knife attacks or do anything much except contain rather than combat crime.

The Tories, once “the party of law and order”, say there’s no evidence that the collapse in police numbers has allowed crime to flourish, an argument that if reduced to absurdity would justify the abolition of the police service in its entirety. No one who is burgled, mugged or raped expects with any certainty that the criminal will be arrested. Even if they are, the CPS has lost a quarter of its budget and a third of its staff since austerity began, while in London prosecutors are given just one hour to review a case. In these circumstances, it is inevitable the guilty will go free.

I don’t blame companies for launching private prosecutions. As fraud has become a virtually risk-free crime, I can only cheer them on. Nor do I believe wealthy clients should not have access to lawyers who can force the state to prove them guilty beyond reasonable doubt. But we used to have a rights-based system where everyone could expect a competent defence and victims of crime could have a faint but not far-fetched hope of seeing their alleged abuser arrested. We are moving with remarkable speed towards market justice where the rule of law depends on the size of your bank balance. Or as Chris Daw puts it, once “you could be homeless in the UK and still be represented for murder by a top QC”. Now we are turning American. The rich have the best and the rest risk having “bumbling” representation; the OJ Simpsons are acquitted and the poor are convicted.

As if to prove the point, criminal defence lawyers have been boycotting legal aid cases in the crown court since 1 April. In a display of solidarity born out of fury at government propaganda about fat-cat lawyers, they are refusing to represent potential clients. There are fat cats aplenty in commercial law, where average pay for partners can reach £1.5m. But in criminal law, the law that matters to most people, a pupil starts on £12,000, makes about £25,000 after three years and about £56,000 at their earnings peak, from which they must deduct the costs of their chambers and all the other bills that come from self-employment. After 20 years of cuts, they are striking and leaving.

Graduates laden with debt are not enticed by criminal law. Women cannot cope with long hours, low returns and the cost of childcare. (Their exodus from the profession, incidentally, turns all the pious calls from politicians for more women judges into so much rubbish.) So great is the disillusionment that the Law Society warns that lawyers able to defend suspects may soon not exist in large parts of Britain.

Talking to Angela Rafferty from the Criminal Bar Association, I sensed the idealism among lawyers that they were, for all their faults, delivering justice waning just as I imagine the police’s belief that they are engaged in an honourable defence of law and order is vanishing too.

British attitudes to justice are harsh. Every government knows it can neglect the prison system and cut legal fees. Hardly anyone says that taxes should rise or that the NHS should lose funds to repair the damage. Yet the public does not want the police withdrawn from the streets or the guilty to go free or the innocent to be punished. But what the public wants and what the public gets are different matters. We are well on the way to a society that will be able to boast it offers the best justice that money can buy.

•Nick Cohen is an Observer columnist