The Secret Barrister: Stories of the Law and How It's Broken

by The Secret Barrister

Or this departure from orthodoxy, from a friend’s trial: ‘We weren’t sure whether to believe the defendant or the complainant. We find the defendant guilty.’ And, my personal favourite, which I took home with me from the heart of rural Wales and will treasure forever: ‘Well, we’ve had a think about it, and we reckon you probably did it. You did, didn’t you? Go on. No? Well we think you did.’

In the twenty-first century, when no government worth its political salt will voluntarily pledge expenditure on something as headline-unworthy as the lowest criminal courts, the same attitude persists. It’s just the underclasses who are affected. Except, of course, it isn’t. It’s anyone who is accused of a criminal offence. Anyone who witnesses an offence. Anyone who is a victim. And anyone who values liberty.

For many witnesses I meet, like Matthew our mugging victim, criminal proceedings must feel like a near-permanent suspension of time. They wait months for the police to investigate. They wait for a charging decision. They wait for the trial to be listed. They wait for the trial date to come around. They wait all day at court only for the trial to be adjourned. And they are then sent home to wait again until the next date. And repeat.

What we have here, the public was solemnly told by ministers, represents the most expensive and generous legal aid system anywhere in the world. And it’s getting more and more expensive. Fat-cat solicitors and swaggering ruddy-nosed barristers are gorging on taxpayer cream, cackling as they speed away from court in their open-top BMWs to quaff legally aided Dom Pérignon 1966 after a half-day spent pulling the wool over a jury’s eyes in the service of some child rapist. And it is only right, the ministers and their tame tabloid nodding lapdogs echoed, that in straitened times, we take sensible steps to address this imbalance by reducing expenditure while ensuring that those who need legal aid still have access to it. This we can achieve by making those fat cats squeal. In 2011, the Ministry of Justice prepared for battle. Identifying legal aid as a politically vulnerable target for some quick savings, it fumbled in its knapsack and withdrew what would come to be its most potent weapon in keeping the public onside against the inevitable wails from lawyers. From that day forth, every single Ministry of Justice pronouncement was squired by the same mantra: ‘We have the most expensive legal aid system in the world.’ As the title quotation demonstrates, so potent was it that, long after leaving ministerial office, MoJ alumni cannot help themselves from telling anyone who will listen that the per capita cost of legal aid in the UK is the highest in the world. The only problem is ...

it’s getting more and more expensive. Fat-cat solicitors and swaggering ruddy-nosed barristers are gorging on taxpayer cream, cackling as they speed away from court in their open-top BMWs to quaff legally aided Dom Pérignon 1966 after a half-day spent pulling the wool over a jury’s eyes in the service of some child rapist. And it is only right, the ministers and their tame tabloid nodding lapdogs echoed, that in straitened times, we take sensible steps to address this imbalance by reducing expenditure while ensuring that those who need legal aid still have access to it. This we can achieve by making those fat cats squeal. In 2011, the Ministry of Justice prepared for battle. Identifying legal aid as a politically vulnerable target for some quick savings, it fumbled in its knapsack and withdrew what would come to be its most potent weapon in keeping the public onside against the inevitable wails from lawyers. From that day forth, every single Ministry of Justice pronouncement was squired by the same mantra: ‘We have the most expensive legal aid system in the world.’ As the title quotation demonstrates, so potent was it that, long after leaving ministerial office, MoJ alumni cannot help themselves from telling anyone who will listen that the per capita cost of legal aid in the UK is the highest in the world. The only problem is that this claim was entirely, provably untrue.

The word ‘game’ hangs in the air. Because that is often what adversarialism amounts to. It does not seek to take a cool, impartial look at all available evidence. It does not calmly invite differing interpretations of a comprehensive fact-gathering exercise.

On a more sinister note, Ministry of Justice research published in 2016 purported to demonstrate an association between ethnicity and the likelihood of a prison sentence in the Crown Court. Under ‘similar criminal circumstances’, the odds of imprisonment for offenders self-reporting as black, Asian and Chinese or other were higher than for offenders from self-reported white backgrounds (53 per cent, 55 per cent and 81 per cent higher respectively).8 These statistics should be treated with caution, as the analysis suffered from significant limitations (particularly in its definition of ‘similar criminal circumstances’);9 however I would not suggest that such trends do not exist.

How do you persuade him to put down his arms, cut his associations and gamble his life on a rigged roulette wheel for the prize of a law-abiding suburban existence that he thinks people like him can never win? While the courts do their best to wrestle sensitively with these imponderables, the mood music outside the court buildings spun by media and political DJs is one-note: prison. Prison for all.