Justice in the dock
The innocent are convicted, the guilty go free and magistrates are untrained, claims an anonymous barrister in an excoriating exposé of our legal system
THE LAW THE SECRET BARRISTER (Macmillan £16.99)
There is power to anonymity. If you conceal your identity, for whatever reason, there’s simply so much more you can say. You may not get the acclaim or the kudos for saying it, but your freedom to say it is absolute.
The Secret Barrister is the pseudonym of a jobbing barrister — possibly male, possibly female — who really doesn’t like what has been done to the justice system, and what is still being done to it.
This book, like one or two nowadays, started as a blog but, unlike most blogs, this one was read by a lot of people and won awards. For whoever he or she is, The Secret Barrister can write. Among bloggers, this is unusual, to say the least. Among writers generally, it’s less common than you might imagine. Among barristers, it’s close to miraculous.
The very phrase ‘ Secret Barrister’ suggests something a bit larky and satirical, full of jokes about wigs. But this is a serious, if not solemn, book, in which SB (as I think we’ll call him/her) patiently explains the justice system we have, and then delineates precisely how it has gone wrong. It’s a damning piece of work. everyone who has any interest in public life should read it.
SB’s first point is that we, the sort of people who might read this book, take it all for granted. ‘I imagine few of us devote much, if any, time to thinking critically about our criminal justice system; to considering how and why we have this particular way of doing justice, or reflecting on the impact it has upon the thousands of people — defendants, witnesses and victims — who pass through the system every year.’
Compare it with the way we all talk endlessly about the NhS, or about schools. ‘And this I find odd; because criminal justice affects us all.’ DoeS
it, though? Most of us, in our cosy middle- class bubbles, assume we’re not very likely to get much closer to the Crown Court than watching repeats of Kavanagh QC.
‘The law, as it stands, is the province only of the very rich, who can afford the vast sums it now costs to hire a lawyer, and the very poor, who can call upon legal aid. We in the middle assume we are safe from this process, so we think no more about it. We’re even quite good at getting out of jury service: a regular dinner-party boast.
But amid this complacency, the system is in crisis. The Crown Prosecution Service is a mess. over the past eight years it has lost more than a third of its workforce. one- quarter of prosecutors have been sacrificed through voluntary redundancy schemes in an aim to meet expenditure cuts of 27 per cent imposed since 2009-10.
‘I’ve seen some of the best people leave, seizing their golden ticket to another civil service post where there’s a fighting chance of managing their caseload, without the stress of trying to achieve the impossible dream of running a national prosecuting agency for less than it licences costs to to pensioners.’ give free television
SB doesn’t name names. But he/ she does say the Justice Ministry is considered low priority by the Government, a soft target for cuts.
The upshot is that two things are happening regularly that shouldn’t: innocent people are being convicted, and the guilty ones are going free. SB is damning about magistrates’ courts. Magistrates are
untrained volunteers, equipped only with goodwill, and sometimes not even that. And yet 94 per cent of all criminal cases are decided at magistrate level. What other country in the world outsources so much of its judicial decision-making to people without training, but who often belong to the right golf club? None. It’s only us. The Government is mainly concerned, it seems, with throughput in the courts, with ‘getting the numbers through the door and out again, as inexpensively possible’. framed as SB justice’. calls and this swiftly ‘roulette as In 2015, an inspection found that nearly one in five charging decisions made by police was wrong, and nearly one in ten made by the CPS was wrong too. That could be you who’s charged wrongly. Worse, it could be me. Because that’s when the Innocence Tax comes in.
Suppose you are wrongly charged with something. You go through the courts, you are refused legal aid, you spend £100,000 on a lawyer, you are found not guilty. You then try to claim back from the Government all the money you spent on legal fees. But you can’t. Because in 2012 the rules were changed. SB talks of ‘reforms snuck on to the statute book by stealth’. And no one knows anything about it.
This is a book of some brilliance, clearly explained, cogently argued. I’m not sure it’s ‘hilarious’, as someone says on the cover; in fact I found it positively depressing at times, and such wit as there is generally of the mordant variety. Its main distinguishing quality, though, is its absolute reasonableness.
It could so easily have been a party political rant, and it’s anything but. The book has clearly been written to be read, and maybe it will be, by someone who can actually do something about all this.