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

by The Secret Barrister

their duty to investigate is explicitly broad, and they are obligated to investigate all reasonable lines of inquiry, including those that point away from the suspect’s guilt

Even post-charge, the police are required to maintain an open, enquiring mind and exercise neutrality in the disclosure process, as described earlier, to

I can do no better than directly quote Sir Richard: this policy ‘perverts our system of justice and attempts to impose upon a thinking investigator an artificial and false state of mind’.25 It ‘has and will generate miscarriages of justice on a considerable scale

I think the best we can hope for is that the jury can determine enough from the evidence to answer the question, on the evidence, are we sure that the defendant is guilty of this criminal offence? To ask more than that of the criminal process, to suggest that by reconfiguring the system and restacking the deck in favour of the state we will more easily arrive at a neatly rounded, objective truth, is beyond ambitious. It is a pretence.

In Spain, juries deliver verdicts in five parts: a list of facts held to be established; a list of facts held to be not established; a declaration of guilty or not guilty; a succinct statement of reasons for the verdict, indicating the evidence on which it is based and the reasons supporting the establishment (or not) of relevant facts and a record of all events that took place during discussions, avoiding any identification that might infringe the secrecy of the deliberations.

the formulation of William Blackstone – It is better that ten guilty persons escape than one innocent suffer

Outbursts of emotion, even from first-time defendants facing a lengthy prison sentence, are rare. On that front, special mention must go to a defendant at Chelmsford Crown Court in August 2016, who, upon receiving his eighteen-month sentence for racist abuse, told Judge Patricia Lynch QC that she was ‘a bit of a cunt’. Her Honour’s reply – ‘You are a bit of a cunt yourself’ – was a little naughty, but also, in many ways, everything that could be said.2

Tiredness and hunger have also been shown to be relevant. An American study published in Psychological Science in December 2016 suggested that on ‘sleepy Monday’ – the day after the switch to daylight saving time – sentences imposed by judges were 5 per cent higher than on any other day of the year.

In 2012, the sentencing expert Robert Banks examined 262 randomly selected Court of Appeal cases and found that in ninety-five – that is 36 per cent – unlawful sentences had been passed by the Crown Court. That’s not simply that the Court of Appeal thought that the sentences were too long; rather the Crown Court judge had done something that they did not have the power to do, or had not done something they were legally required to.

We can either keep rising numbers of prisoners in humane prisons that serve a purpose beyond warehousing, for which the Exchequer – ultimately you, the taxpayer – must pay through higher taxation; or we can shift paradigms and explore evidence-based policy from abroad that would see the use of prison radically reduced, and non-custodial, restorative and rehabilitative alternatives envisaged not as a ‘get-out’ but

If Dostoevsky was right, and the degree of civilization in a society can be judged by how it treats its prisoners – those who have been justly convicted – an equally valid test is surely how it treats those who are wrongly convicted, and have suffered manifest injustice at the hands of the state. On this count, I fear, we do not acquit ourselves well.

When in August 2016, the Attorney General’s office proudly boasted that ‘more than 100 offenders had their prison sentences lengthened’ by the Court of Appeal under the Unduly Lenient Sentence scheme in 2015,11 the government found no space to mention, for balance, that over roughly the same period nearly ten times as many sentences (997) were reduced by the Court of Appeal as manifestly excessive or unlawful.

In many respects, the released innocent is worse off than the released convict, the latter of whom will at least have a measure of institutional assistance with their reintegration. A probation officer will help those on licence to access services for accommodation, or mental health support.

Unless the ‘newly discovered fact’ proves beyond reasonable doubt that you did not commit the offence, you will be excluded from the scheme. Which is a frankly impossible standard to meet. You are asking people to prove a negative.

And this attitude, to me, strikes at the heart of the entire purpose of our criminal justice system. It uproots what we all understand by innocence and guilt, and erects artificial reconstructions of those terms for the sole purpose of saving the government money.

In October 2016, reborn as Secretary of State for Transport, Chris Grayling announced that he was introducing a new, more generous compensation scheme for passengers whose trains were delayed by fifteen minutes. It was only fair, he said, to ‘put passengers first’ and to ‘make sure that they receive due compensation’ for inconvenient events outside their control.18

The Inspectorate of Probation even found that some CRCs were instructing staff not to take any action against offenders who breached their community orders, as under the ‘payment by results’ contract

This has been an endemic problem not just for the public but for practitioners and the courts. In a Court of Appeal case in 2008, barristers had relied upon legislation downloaded from the official government website, only for it to be spotted as the court was ready to give judgment that the legislation was out of date and no longer applied. The court condemned as ‘lamentable’ the position that ‘there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic.