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

by The Secret Barrister

That defendants, victims and, ultimately, society are being failed daily by an entrenched disregard for fundamental principles of fairness. That we are moving from a criminal justice system to simply a criminal system.

If there are too many wrongful convictions, or too few criminals getting their just deserts, the delicate social contract bonding us all to each other and to the state can swiftly disintegrate. Simply put, if enough people don’t believe the state to be capable of dispensing justice, they may start to dispense it themselves.

While wigs and gowns have been removed from civil and family courts and the Supreme Court in the name of modernity, the criminal courts cling on. For my part, I rather like court dress as a social leveller, a sort of school uniform. It also offers a veneer of disguise in those rare but unsettling cases where a defendant you have spent an afternoon dismantling in cross-examination decides to wait outside the court building to offer a review of your performance.

There’s a reason why ascending tyrants always round up the lawyers first.

Geoffrey Robertson QC offered a withering description of magistrates in his evidence to the House of Commons Home Affairs Committee in 1995, painting them as: Ladies and gentlemen bountiful, politically imbalanced, unrepresentative of ethnic minority groups and women, who slow down the system and cost a fortune.

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.

We agree that guilty people should walk free rather than the innocent be convicted. That is why, if we know one of two people did the deed but cannot be sure which one, we let both go free, rather than locking up both knowing that it guarantees we get the right man.