The Secret Barrister

by The Secret Barrister

  The role of barristers in this misery is, I have learned, not widely understood. Mostly the fault for that lies with us. For professional advocates, we do a strikingly bad job of explaining what we do, or why it matters. In a nutshell, criminal barristers are first and foremost advocates, presenting cases in court, usually the Crown Court, on behalf of either the prosecution or the defence. In practice, the job also requires the skills of a social worker, relationship counsellor, arm-twister, hostage negotiator, named driver, bus fare-provider, accountant, suicide-watchman, coffee supplier, surrogate parent and, on one memorable occasion, whatever the official term is for someone tasked with breaking the news to a prisoner that his girlfriend has been diagnosed with gonorrhoea.

  My daily fare is eclectic and erratic. Usually I will be prosecuting or defending in jury trials, but some days are peppered with other, shorter hearings: opposing a bail application for an alleged arsonist here; advancing mitigation at the sentence hearing of a heroin dealer there. Sometimes I’ll be doing my own cases, sometimes covering for colleagues who are stuck elsewhere.

  It is unpredictable, irrational, adrenaline-infused mayhem every second of every day, where the only certainty is uncertainty. Hearings and trials overrun, find themselves suddenly adjourned or are listed immediately without warning, making it impossible to say with confidence what you will be doing or where you will be in four hours’ time. Your bones ache, your shoe leather disintegrates bi-monthly and your shoulder creaks from dragging your suitcase laden with papers, books, wig and gown between courts and cities. You can become inured to the blood-spattered underbelly of the human condition; unmoved by the mundanity of yet another ‘bog standard’ stabbing, or desensitized by the unending parade of sexual abuse. You are at best a part-time family member and a fair-weather friend, expected by the courts to abandon holidays, weddings and funerals at a judge’s command. An early night sees me home at 8 p.m. A late night is the following morning. Throw in the industry-wide ‘perks’ of self-employment – the perennial insecurity, the fear of work drying up, the absence of sick pay, holiday pay or pension, the fact that legal aid rates can work out at below minimum wage – and the criminal Bar is in many ways an intolerable existence.

  But it is also irresistibly special.

  In an age where juries have all but disappeared from civil courtrooms, criminal law is the last vestige of the pure advocacy tradition, where the power of persuasion and force of rational argument, its significance augmented by the historical trappings – the mode of speech, the splendour of the courtroom, the ridiculous Restoration-hangover horsehair wigs – is the tool by which liberty is spared or removed. The attraction to an egotist with an insatiable desire to hold centre stage – a description applicable to the near-entirety of the Bar – is plain; but for me, and most criminal barristers I know, there is a greater, overarching reason for choosing this path: crime is where the stakes are highest.

  The worst that happens if you lose a case in civil or commercial law is that you lose a lot of money, or fail to win money. If you lose a family law case, you might lose your children. In a repossession case, you could lose your home. These are all significant, sometimes life-changing events. But if you lost a criminal case, up until 1965, you could lose your life. 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. Loss of the freedom to live with those you love, to work in your job, to provide for your family; the abrogation of the pursuit of happiness, the pausing of your existence, for a period determined by the overbearing power of a state largely uninterested in the consequences for you or your family, is a price whose value only those who have paid it truly know.

  And those of us criminal hacks who hawk our wigs and gowns from court to court across the land do so, spending long hours sifting through the very worst of the human condition, because of a fervent, some might say naive, faith in the rule of law and our role in upholding it. If criminals avoid justice, the loss is not only felt by the victim. The danger created by harmful behaviours going uncorrected presents a significant threat to the individual liberty of us all. 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.

  It is for these reasons that it is not hyperbolic, I honestly believe, to suggest that working criminal justice, and our role prosecuting and defending criminal allegations, is essential to peaceable democratic society. It is when people feel that justice is denied that they are at their most indignant and rage-filled; it is in the gaps between justice that antidemocratic, subversive urges can take root.

  This is why I consider what I do on a day-to-day basis to be not just a privilege but a civic responsibility. And it is for the same reasons that the current state of our criminal justice system should terrify us.

  Because despite the noble principles underpinning the system, despite its international prestige, its intellectual craftsmanship and the very real blood, sweat and tears spilt in its ponderous cultivation, my still-tender years exposed to the grim reality have taught me that the criminal justice system is close to breaking point.

  Access to justice, the rule of law, fairness to defendants, justice for victims – these fine emblems which we purport to hold so dear – are each day incarnated in effigy, rolled out in the Crown and magistrates’ courts and ritually torched.

  Serious criminal cases collapse on a daily basis because of eminently avoidable failings by underfunded and understaffed police and prosecution services. The accused and the alleged victim can wait years for a trial, told their cases are ‘adjourned for lack of court time’ for a second, third or fourth time, notwithstanding the brand new courtroom, built at significant public expense, sitting empty down the corridor due to slashed court budgets. The wrongly accused wait until the day of trial, or perhaps for eternity, for the state to disclose material that fatally undermines the prosecution case. Defendants can find themselves represented by exhausted lawyers able to devote only a fraction of the required time to their case, due to the need to stack cheap cases high to absorb government cuts. Some defendants are excluded from publicly funded representation altogether, forced to scrape together savings or loans to meet legal aid ‘contributions’ or private legal fees, failing which they represent themselves in DIY proceedings in which the endgame is a prison sentence. The bottom line is that victims of crime are denied justice, and people who are not guilty find themselves in prison.

  And what astounds me is that most people don’t seem to care. Or even know.

  On the day after a parliamentary report published in May 20163 began with those nine damning words – the criminal justice system is close to breaking point – not one single newspaper thought it more newsworthy than repetitive scare stories about migration or, in one case, a confected ‘scandal’ over Britain’s Got Talent.

  When Karl Turner MP tabled a parliamentary debate over the parlous underfunding of the Crown Prosecution Service (CPS) in January 2017, his litany of sobbing CPS staff and collapsing prosecutions – the things that we in the courts see every day – was attended by a meagre handful of MPs, and met by a virtual media blackout.4 When the courts upheld government initiatives to deprive the wrongly accused of their legal fees,5 there was no clamour. Just deafening silence.

  If the criminal justice system were the NHS, it would never be off the front pages.

  I find it impossible to reconcile this collective indifference, because it is plain that innately we all do care. We know that from the green ink letters to the editor when a paedophile gets a ‘soft sentence’ or ‘early release’ from prison, or the police fail to investigate serious allegations of sexual abuse or, worst of all, when
the wrong person is convicted. We know from popular culture – from our Serials and Making a Murderers and our Innocence Projects – that the ideal of justice, and in particular criminal justice, can be perhaps our greatest unifier. But something somewhere has clearly gone wrong.

  I think it’s traceable to the failure of the establishment – and us, the professionals in the system – to properly explain to the wider public how the criminal courts work, why they work the way they do, and why that is a good or bad thing, which has led to a catastrophic dissonance in public understanding. What a jury, or what the public, gets to see is but a pinhole view of the system. There is far more happening behind the scenes, or unreported in magistrates’ and Crown courtrooms, closeted in comfortable anonymity and about which the people we serve simply don’t know.

  This is why I have written this book. I want to shine a light on what really goes on, to take you into the rooms you never get to enter; but more than that I want to explore why we should care, and to illustrate what happens when we don’t.

  I’m probably not the sort of barrister usually invited to publish a book. I am not reliving a CV bursting with the great and weighty cases of our time. I profess no particular specialism or expertise in my field. I am not an academic. I am not a jurist, a philosopher, an historian or a scholar. I am as much a stranger to the gilded upper echelons of the legal system as they are to me. But I have spent the best part of a decade prosecuting, defending and advising on behalf of my fellow citizens, and I wanted to write this book while I am still a relatively fresh face to this warped game, before the delicate balance between idealism and cynicism tips too far. I write anonymously because it buys the freedom to be candid; to call upon my own personal experiences, and those of others, to illustrate the first-hand tales of justice and injustice that play out every day in courts throughout the land.

  This book is loosely structured following the life of a criminal case, from the first appearance before a magistrates’ court, through to trial in the Crown Court, sentence and appeal. And it considers, at each stage, how justice works, and, more importantly, how it often doesn’t.

  I will also do my best to explore some of the questions raised along the way; in particular common public concerns that we in the system should perhaps be better at answering. Why should the taxpayer fund legal aid for career criminals? How can you defend someone who you believe has raped their own child? Does our system of adversarial justice, pitting the state against the accused in a winner-takes-all war of attrition, do more harm than good? Is the sentencing of criminals just a giant con on the public? And the one overarching question of my own: how, if we truly value criminal justice, have we allowed our system to degrade to its current state?

  Certain details of the cases that follow have been changed to preserve the identities of those concerned; however the core of each reconstruction – the incompetence, the error and the malice – is all too true. The examples cited are not special. They are not the stories that make the news. They are not the miscarriages of justice that engender Twitter storms or provoke magazine confessionals or inspire true-life cinema. They are the ordinary tales of injustice that stalk the criminal courts; the fleeting, repetitive diminishment of human dignity that crosses the path of the jobbing criminal hack.

  My perspective is necessarily limited, and my role entirely incidental; but I hope it is nevertheless of value.

  A working criminal justice system, properly resourced and staffed by dedicated professionals each performing their invaluable civic functions, for the prosecution and the defence, serves to protect the innocent, protect the public and protect the integrity, decency and humanity of our society. This should be a societal baseline. Not a luxury.

  Most of you reading this will never expect to be plunged into a criminal courtroom – never expect to hear the constabulary knock on the front door, never expect to be a victim of crime, never expect to be accused of a crime you didn’t commit. But the one thing I have learned about criminal justice is that it doesn’t discriminate. Anyone can be reeled in. And if you are, whether you’re giving evidence against the man who hurt your child, or swearing blind to a jury that that pedestrian stepped out in front of your car without looking, you want the system to work.

  When it doesn’t, the consequences can be unthinkable.

  1. Welcome to the Criminal Courtroom

  ‘It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.’

  Mr Justice Frankfurter,

  United States Supreme Court, 19501

  To an extra-terrestrial touching down outside a city Crown Court, our way of resolving disputes where an individual is alleged to have breached our central social code would be unfathomable. Get two people with plummy accents, stick them in black capes, shove horsehair wigs on their heads, arm them with books of rules weighing as much as a grown pig and use them as proxies to verbally joust in front of a bewigged sexagenarian in a big purple gown, while twelve people yanked off the street sit and watch and try to make sense of it all and decide who’s in the right. The winner gets nothing. The loser gets locked up in a concrete box.

  To those earthlings not intimately acquainted with the English and Welsh criminal justice system, this spectacle is probably only marginally less bizarre. At this stage, it is therefore worth taking a moment to examine it a little closer. Before looking at how and why criminal justice may not be working, we need to explore how it should be working. Let’s go back to that opening scene with our enormous-bicepped Mr Tuttle and quickly consider the elements within the courtroom. What exactly is taking place? How did we come to choose this ostensibly absurd routine as our vehicle for crime and punishment?

  Let’s start with the accused himself, slouched stony-faced in the dock.

  The Accused

  Mr Tuttle punched his neighbour in the face after a disagreement about a border between their properties, something that happens all over the world and has happened throughout history, and which means under current English and Welsh law he stands charged with ‘assault occasioning actual bodily harm’. He was arrested by the police following the neighbour’s complaint, interviewed in a police station with a solicitor and, after the police investigation produced sufficient evidence for the Crown Prosecution Service to authorize a charge, was charged. As he denies that he is guilty, he is being tried.

  This particular offence can be tried in either a magistrates’ court or a Crown Court. We’ll come back to this distinction later, but what’s important at this point is that Mr Tuttle has exercised his right to have his guilt determined in a Crown Court by an independent jury of his peers, who will know nothing of the case before coming to it. The twelve jurors will observe and listen to the evidence and arguments presented by the two competing sides, prosecution and defence, and will be directed by the judge on the applicable law, before retiring to consider one question: can they be sure that on the evidence the offence is proved beyond reasonable doubt? If guilt is proved, the maximum penalty the state can impose is a period of imprisonment, in this case up to five years.

  As discussed, although culturally ingrained as the default mode of trying alleged crimes, this process is far from universal.2 While we have exported our treasured form of adversarial, state-versus-defendant justice around the world, usually at the end of the barrel of a colonial musket, many other countries do things very differently. The most commonly cited distinction is the rough divide between Anglo-American adversarial proceedings, and Continental, Napoleonic-inspired inquisitorial proceedings.

  If Mr Tuttle were being tried in Belgium, for example, he would find that he was party to what felt like an inquiry rather than a contest. As this is not a particularly serious allegation, he would fall under the jurisdiction of the middle ‘tier’ of the court system where the investigation is often placed in the hands of an investigating judge, who directs the police to gather evidence and then assesses it in a mostly
paper-based trial process. Mr Tuttle’s lawyer’s role in challenging the prosecution witnesses would be minimal, with any questioning being conducted through the judge. There would be no jury, and he would have to wait a month following his trial for the judge’s decision.3

  If he were being tried in Saudi Arabia, he could expect to find himself in a closed courtroom, with no lawyer, charged with a qisas (‘retaliation-in-kind’) category of Sharia crime for which a judge might order an unpleasant form of physical retribution. Had Mr Tuttle’s victim been unfortunate enough to lose an eye in the assault, the court could order that Mr Tuttle’s eye be gouged out.4 On the plus side, had this been a capital case of homicide, Mr Tuttle could evade execution by paying diya, or blood money, to the victim’s family.5

  In our courts, Mr Tuttle could have avoided the stress of a trial by pleading guilty. Even if there was no other evidence against him, his confession to a criminal offence would be gladly banked by the English courts. However in Japan, unless the state had corroborative evidence, Article 38 of the constitution would prevent him being convicted even if he gave a full and frank confession.6

  Put simply, without diving into a full-blown international comparative analysis, our familiar system is not the only way to deal with Mr Tuttle. Nor has it been the way our country has always tried the Tuttles throughout history.

  In Anglo-Saxon England, the notion of trying a criminal allegation on the evidence simply did not exist. Until the tenth century there were no formal courts; instead wronged parties were encouraged to settle blood feuds with the accused by payment of wergild – blood money. From the mid-sixth century, the king handed down laws, or ‘dooms’, supplemented by local customary law. As Saxon kings gradually took a greater interest in enforcing the law, certain offences, such as treason, homicide and theft, were taken out of the scope of private settlement between the parties and into the hands of the king. Come the tenth century, if a citizen were accused of breaching either the king’s law or local custom, he would be dragged by his accuser before a monthly community court and, unless he could find sufficient ‘oath-swearers’ to attest to his innocence, would have his guilt determined by trial by ordeal.