The Secret Barrister lifts the lid on the state of criminal justice

Stories of the Law and How it’s Broken, by the anonymous author known as The Secret Barrister, describes the present appalling state of the criminal justice system and is one of those books which make you hate politicians. The decisions which underlie the conditions described in the book are the product of more than just budget-cutting; ideology and ignorance play their part, along with a cynical calculation about who votes for what.

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I recently took a cab from Fleet Street and was treated along the way to a diatribe from the driver about the income of fat cat lawyers. Unusually for me, I engaged in the discussion. What made him say that? “Well”, he said, “The place I picked you up from, that’s Freshfields. They all earn fantastic money”. I patiently explained that there was much difference between a glossy world-ranking commercial law firm and a criminal barrister hurrying from dilapidated court to dilapidated court. He seemed genuinely not have considered this. Unfortunately, I doubt that he will read SB’s book.

What he will do is vote. He will have read his newspaper’s latest attack on legal aid being “given” to some “obvious” crook (probably one with a foreign-sounding name), or on an apparently derisory sentence handed down by a judge, and he will share its editor’s faux outrage. The editor will have used the headline precisely to attract this kind of reader, and they feed on each other’s prejudices. Politicians of all shades will take note and conclude that they can attack the justice budget as much as they like. Very large numbers of people will approve; most of those directly affected don’t vote anyway; and most of the rest don’t think they will ever come into contact with the criminal justice system.

Let’s clear two things out of the way before I start. First, my taxi driver is an example of a type not a class, and his prejudices arise everywhere; I pick him as an example not to sneer at taxi drivers but because he is someone I came across at first hand and not merely by report. Second, in opening with the earnings of lawyers (and saying more about the lawyers below), I risk making the battle seem all about them. SB does a good job in explaining how the attack on lawyers’ earnings is only one part of a broader erosion of the criminal justice system. Governments and the Ministry of Justice have been skilful to present lawyers’ arguments as a matter of self-interest; the attack serves as cover for other derogations from the justice which we assume will be our right if we have to go to court in any capacity. SB’s book shows us that that assumption is false.

As the late and great Sir Henry Brooke said “It’s not about money for lawyers, but the liberties of England that are at stake”. You cannot preserve those liberties if there is no-one left to fight for them.

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Most of us would confidently assert (or at least assume ) that we will never fall victim to the criminal justice system. “Victim?” you ask. There are victims of crime (or complainants who claim to be victims of alleged crimes, as we should probably say down to the moment of conviction), and there are those wrongfully convicted, but no-one else is victim of the system, are they?

The depressing thing about this book is the clarity with which SB shows that many people beyond the complainant suffer needlessly at the hands of the CJS. And not just people; justice itself is a victim of cuts – cuts in police forces, cuts in the Crown Prosecution Service, cuts damaging the physical infrastructure of the courts and, not least, those cuts in the earnings of those who work day after day (and many nights as well) to ensure that the system keeps going, a reservoir of talent and goodwill which successive governments have drained without thought.

I can’t summarise the whole depressing catalogue, but here are some example:

  • The “Wild West” of the magistrates court, “this apparent replica of an inner-city A&E department on Saturday night”, and the “amateur, sausage-factory paradigms of justice and ‘that’ll do’ complacency that pervades 94% of criminal cases”;
  • the pro-prosecution inclination of many magistrates compounded by directions from above that they should get as many convictions as possible in the shortest possible time;
  • the lawyers presenting and defending cases on which liberty may turn who rely on files, usually incomplete, handed to them as they reach court;
  • the detention on remand of those yet to be found guilty, and who may never be found guilty, because “the state can sweep in, turn your life upside down and walk out again, like a remorseless, localised tornado, without so much as an apology”;
  • the evidence lost somewhere between police and CPS and court (if it was ever collected at all);
  • the complainant who gives up rather than come back for the third adjourned hearing of the trial of the man who allegedly assaulted him two years ago;
  • the witnesses, nearly half of all those surveyed, who would not be willing to take part in future criminal proceedings;
  • the CPD Divisional Prosecutor who insisted on a case going to trial (with all the expense that entails) because his statistics would look bad if it was abandoned;
  • the defendants dragged through the courts who successfully beat off the accusation against them but find that the state will not refund the costs which they incurred in the absence of legal aid;
  • the private companies who win justice-related work from ministers like former Secretary of State for Justice Chris Grayling (more on him below) but fail to deliver – to deliver prisoners to court or interpreters to hearings – because profits are more important than performance and because the MoJ has screwed up their contracts.

These are a random selection of the points which show that we face something more than the inevitable effect of budget cuts; the implicit contract we make with the state is broken.

Why does anyone do this work?

I follow several criminal lawyers (mainly junior barristers) on Twitter. They are intelligent, articulate people, many of them deep in debt after qualification, who could have taken their brains, their energy and their skills to more lucrative fields in the law or outside it. They have chosen to work in crime, rushing from court to court to prosecute or defend people whose activities are often repellant, rubbing shoulders daily with people whose lives involve making, taking and giving misery.

Once there, they meet every kind of block which indifference, incompetence and bureaucracy can put in their way. The result is that complainants, having been abused once by a criminal or a domestic partner, are abused again by the system; obvious villains are discharged as much through administrative failings as anything else, while innocent people get convicted – the “pile ‘em high, sell it cheap” approach beloved of management consultants is willing to accept a certain failure rate even at the cost of people’s liberty.

Why does anybody do this work? SB, like other practitioners, talks of how the work “can reaffirm one’s dwindling faith in our humanity, and society’s fidelity to our first principles”. I am usually sceptical of people who give this kind of thing as the motive for their work but, having read this book, I cannot see any other reason why anyone would put up with it.

Contrary to popular opinion and the glib and dishonest assertions of people like Chris Grayling, few barristers make a good living from criminal work. Even at the desperately low rates presently paid for legal aid (even now under attack again), many lawyers might aspire to cope with the government’s “pile ’em high and sell it cheap” approach to justice if the system itself ran efficiently – if evidence arrived when it should, if judges and courts were available and so on. It must be almost impossible to earn a decent living in circumstances where you have to chase constantly at every stage, where an entire day may be wasted unpaid while waiting for the state to do its bit, and where (as I often see on Twitter) lawyers have travelled to a distant court at their own expense to find that the hearing is ineffective so they go unpaid. SB is generally kind to the overworked and under-resourced Crown Prosecution Service lawyers and other players, less so to many with influence in the system.

Who will this book convert?

The book has been respectfully reviewed in the serious end of the press. SB has amassed 88,000 Twitter followers and skilfully whipped them up into support.

I am not optimistic that SB will persuade government, the real villain here, to take any notice. David Gauke, the current holder of the once-dignified office of Lord Chancellor and Secretary of State for Justice, was interviewed on the radio last week, and delivered bland non-committal answers when questioned on the parlous state of justice. Part of the problem, indeed, is that the Ministry of Justice has come to be a stopping-off point for ambitious ministers, a place where they can show how good they are at cost-cutting.

Gauke is not the worst of the recent holders of that office. Recent incumbents include Chris Grayling, a thoroughly nasty man, ideologically in favour of banging people up, ideologically in favour of reducing the role of the state even in this inevitably state-led area, ideologically in favour of giving out functions to companies whose business involves cutting costs as a priority. Grayling has the advantage for a politician that he is disarmingly indifferent to the truth. To support his deliberately false premise that we had “the most expensive justice system in the world” he cherry-picked as examples the top earning QCs engaged in long-running high-profile cases and firms of solicitors employing very large numbers of legal aid practitioners as if they were representative of the whole profession. He constantly quoted gross receipts; chambers fees, business expenses, travel costs and even VAT were lumped in as “earnings”. To its shame, the MoJ endorsed this line (indeed, some suggest that it invented it).

Michael Gove, the one recent incumbent who seemed conscientiously to try and understand his brief, might have made a difference if he had had the political nous to match his intelligence. Liz Truss was incompetent and stupid (Oxford degree notwithstanding) in equal measure, with ideology to match that of Grayling. David Lidington stayed barely long enough to find his way round the office, and David Gauke is assumed to have his sights elsewhere.

As I write, a crowd-funding operation is in hand to give a copy of SB’s book to every MP with royalties going to the Bar Pro-Bono Unit. I challenge David Gauke to open his copy at any page and attempt to justify what he finds there.

Conclusion

It is remarkable to win 88,000 Twitter followers by writing and tweeting about any aspect of the law, let alone one which most of us feel affects only other people. SB’s blog posts, often detailed, always timely, always easy-to-read, explain complex matters in straightforward language. To produce them, and then to throw in a book of 376 pages while doing the job described in its pages, is remarkable.

The book itself is simultaneously an easy read and a very difficult one – easy because the mix of history, anecdote, description and argument skips lightly from page to page, difficult because the subject-matter is depressing both at the level of the lives it describes and at the way the state treats the people unfortunate enough to tangle with the system.

SB has written a justification of the anonymity which cloaks his or her identity. I accept that justification unreservedly. I sometimes think of the marketing people who would weep at the sight of someone amassing such a following and perversely (as they would think) deliberately concealing their identity. I also look at the marketing efforts of most barristers and their chambers (“Our Mr X today secured the acquittal…” yawn, yawn) and think they might benefit from analysing SB’s success.

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There is a coda to all this. A report in yesterday’s Law Society Gazette reveals that HM Courts and Tribunals Service produced a surplus of £100 million in the last financial year. The only tangible benefit seems to be the new carpets which HMCTS is boasting about at some of the surviving courts. This, they said, was “to improve customer experience”. That word “customer” has been much used by failing organisations ever since the railways adopted it in the 1980s. Keep it in mind as you read SB’s despairing account of the state of criminal justice and the unfortunates who fall into its maw.

You can get Stories of the Law and How It’s Broken here from Amazon or, preferably, from most book shops, if they have not run out – there seems to have been heavy buying in the first couple of days after publication.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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