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

by The Secret Barrister

I am the kind of jobbing, workaday junior practitioner whom you may find representing you if you suffer the twin misfortunes of being accused of an everyday criminal offence, and

Ours is the trade in human misery; the grotty little cousin of the finer, more civilized, more commercial tributaries of the law.

And while we have left behind our tradition of sanctioned bodily violations, dismemberment and killing, we have supplanted it with the deprivation of liberty, a punishment capable of encompassing all of the losses above and far more beyond.

Simply put, if enough people don’t believe the state to be capable of dispensing justice, they may start to dispense it themselves.

The only proven maxim for barristers is Beware the Nodding Juror, as a juror who bobs and smiles enthusiastically as you hammer out your closing speech will invariably be the one who delivers the verdict that crushes your case.

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled. Nor will we proceed with force against him except by the lawful judgment of his equals or by the law of the land. To no one will we sell, to

For example, a key ingredient to proving offences under the Theft Act is dishonesty, the legal test for which requires that the defendant acted in a way that was dishonest ‘according to the ordinary standards of reasonable and honest people’, and that the defendant knew that his conduct was dishonest by those standards.

In 1791, in a trial at the Old Bailey, celebrity barrister du jour William Garrow sternly told the judge that ‘every man is presumed to be innocent until proved guilty’. This was the first formal articulation of what would, in 1935, be described by the Court of Appeal as ‘the golden thread’ running through the web of English criminal law22 – the presumption of innocence, and the burden of proof.

The truth is that the entire case in favour of magistrates’ courts, as we currently run them, is a sham. There is little sustainable rationale for their existence in principle, and no justification whatsoever for the way in which these courts operate in practice. There is no excuse for the amateur, sausage-factory paradigm of justice and ‘that’ll do’ complacency that pervades 94 per cent of criminal cases, other than that most cynical political trinity: it’s cheap, it’s the way we’ve always done it and no one who votes either knows or cares.

‘was a leading question.’ The defence solicitor and I look at each other, and then to the legal advisor, who very gently reminds the magistrate that cross-examination is, since time immemorial, a series of leading questions.

Inevitably, when you have a recruitment system which prizes whether you ran a tombola over your capacity for legal analysis and critical thinking, you will end up with a disproportionate number of successful candidates whose ability to make correct inferences, recognize assumptions, make deductions, come to conclusions and interpret and evaluate arguments is lacking, to

want

If you think the defendant might have done it, the defence barrister hams it up for the jury, he’s not guilty. If you think he probably did it, he’s not guilty. If you’re almost sure he did it, he’s not guilty. Only sure will suffice for a guilty verdict, ladies

The magistrates’ court

Why is ours the only legal system in the world that empowers volunteers to send their fellow citizens to prison?

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

in less than 25 per cent of cases do the police and CPS fully comply with their statutory disclosure obligations (meaning that potentially exculpatory material is not given to the defence);

R v McCulloch – ‘R’ standing for ‘Regina’, as standard for all cases prosecuted in the Crown’s name

only 55 per cent of people who have been a victim or a witness in criminal proceedings would be prepared to go through it again.

The National Audit Office reported in 2016 that the backlog in Crown Court had soared to 52,000 cases, an increase of 34 per cent in two years,

But the number of trials listed as floaters in a single building, where it is clear that most of them have no hope of finding a home, is a victory for listing statistics over basic human decency.

If you were a criminal mastermind trying to design a system to deter victims of crime from engaging with the authorities, you

Two thirds of Crown Court trials do not progress as planned. In some areas of the country, the proportion of ineffective trials is as high as four in five.

this feeds into the CPS failing to follow their victim policies in one third of sex cases,

in two thirds of cases where the victim has alleged serious sexual abuse, the CPS can’t even afford to send a proper Victim Letter of adequate ‘quality, content

said, in the strongest terms, that we knock this on the head. His barked reply disclosed the root of our stalemate: ‘What about our statistics?

public policy will require that some prosecutions, where there is evidence to support a charge, nevertheless ought not to be brought – for instance, in certain heartbreaking cases of assisted dying, or cases where a defendant is so infirm that a prosecution would be oppressive.

Securing the best interests of these vulnerable, repeat victims of abuse may require compelling them to cooperate with a trial process they profess no desire to enter.

A review in 2016 concluded that RASSO units were misapplying the evidential test even more frequently than general CPS lawyers.

It means risking the burning anguish of a not guilty verdict which, no matter how many times you reassure them otherwise, they will forever carry as ‘proof’ that they were not believed.

Counsel are not counsellors. Cross-examination is not therapy.

It should not be filled with unfeasible cases to virtue-signal to an inherently anti-defendant media Just How Seriously We Treat This Type of Thing. Not least as the one thing guaranteed to wash out conviction rates is a flood of weak cases.

Indefensible

To be a defence barrister is to let the taste of the improbable acquittal linger coquettishly on the senses, before turning to your grateful, innocent client in the dock with the wink that says, Told You It’d Be Fine.

The stereotype holds that lawyers are fabulously well off. You may well know a lawyer, or of a friend of a friend who’s a lawyer, who is fabulously well off. If so, I offer you an iron-clad guarantee that they are not a criminal lawyer.

For all that work, the solicitor will be paid a single fixed ‘police station attendance’ fee of roughly £170. If that sounds a low gross figure for what might amount to twenty hours’ work, it’s because it is. In the words of a solicitor I know, every police station attendance is now considered a loss-leader

it cannot be right as a matter of principle that a decision on liberty is viewed as a loss leader.

In its robust response to a government consultation in 2014 setting out further proposed fee cuts, the Bar Council made the following submission: Statistics published by the World Bank state that in 2011 the United Kingdom spent 9.3 per cent of its GDP on health, whereas Romania spent only 5.8 per cent. The government does not use those statistics to argue that England and Wales must reduce its health spending to match that of Romania. Rather, there is pride that an excellent health service is provided; there should be equal pride in relation to the provision of excellent access to justice.6

While still the poor relations to commercial and civil brethren at the Bar, crime did use to pay, and

By cutting DCOs, by definition the government has deemed that ‘reasonably sufficient’ and ‘properly incurred’ legal

The Innocence Tax’s philosophical underpinning can only be read one of two ways: either as an inversion of the presumption of innocence, a sly wink to our worse selves that an accused is always in some way responsible for his being corralled into the justice system. Or it is a concession that though accused people may well be genuinely innocent, so little does the average voter understand or care about the criminal courts that rampant butchery of the rule of law can be gotten away with unscrutinized.

My duties are strictly set out in the Bar Code of Conduct: if a client tells me that they did something, I cannot positively assert in court that they did not. Contrary to popular conception of defence lawyers as lying slyly in cahoots with their clients, privy to the details of their guilt but dishonestly presenting a picture of positive innocence to the trusting jury, professional ethics are clear. My overriding duty is to the court. While the client enjoys legal privilege – and so I won’t reveal it to the court if he confesses his guilt to me – I cannot present a positive case that I know not to be true. Were I to do so, I

This is in practice the day job. Defending not just the indefensible, but the patently ludicrous. Inviting a jury to consider that, maybe, black is not, as the prosecution so outlandishly claim, black, but might instead be, if you squint hard enough, a shade of something if not white, then

For the defence, a particular hurdle is that, due to the passage of time, it is often impossible to recall specifics of what one might have been doing on a given day, and thus to meet the allegations head on. In some jurisdictions, there are statutes of limitations which prevent criminal proceedings being brought after a certain period of time, for this very reason. But in England and Wales, there is no such bar. It is increasingly common to see defendants prosecuted for alleged offences said to have occurred forty or even fifty years ago, even though it presents an immediate difficulty when trying to ‘disprove’ the

When, inevitably, the evidence of these two poorly educated, psychologically vulnerable women diverged on the exact words used and precise dates, times and movements of that day, this, we crowed, shows that they’re making it up. When they differed in their evidence, it was because they were tripping up in their own lies. When they were eerily similar in what they said, it was because they were in cahoots.

This is a paradox at the heart of the jury system. It is not for those twelve to decide whether evidence is reliable, or whether it is fair to take it into account. We fear the jury’s human weaknesses, while simultaneously lauding its innate and unimpeachable sense of fairness. Is this tenable? Or does this all add up to a picture of incomplete information being put before an admittedly irrational tribunal?

Tactical manoeuvres by the parties further limit the jury’s access to relevant information. A key question of an opposing witness may deliberately not be asked by a seasoned pro, aware that her case is stronger without Schrödinger’s cat’s welfare being confirmed.

The Schedules of Unused Material that were supposed to be drawn up by the police were ‘wholly inadequate’ in 22 per cent of cases. The CPS was failing to pull the police up on these obvious failures, and 33 per cent of CPS files examined by the inspectors were marked ‘poor’. In over half of cases, CPS lawyers provided no explanation for their decisions as to what should and should not be disclosed to the defence. Audit

It

In another, the same medical practitioner was asked to examine both the suspect and the complainant in the same case. Had the suspect’s DNA been found on the complainant’s intimate swabs, this would have presented prima facie compelling evidence that sexual activity took place, but the actions of the forensic medical examiner would have entirely compromised any such finding. There would have been no way of knowing whether the DNA was transferred by direct contact between the complainant and suspect, or indirectly by the examiner.