The Secret Barrister
Page 5
This feeds into the core identity of the Bar: its independence. The majority of criminal barristers are self-employed practitioners operating out of clusters of offices known as ‘chambers’ (or ‘sets’), originally in the fifteenth century housed in the Inns of Court in London, but nowadays spread throughout the country. The Inns of Court – Lincoln’s Inn, Inner Temple, Middle Temple and Gray’s Inn – are our professional associations. A barrister must be a member of one, and it is at the Inns’ ceremonies that Bar school graduates are ‘called to the Bar’. Standing in the heart of London’s legal district, sweeping across the west boundary of the City of London from Holborn through to Temple, the Inns are, for the uninitiated, perhaps best described as a cross between an Oxbridge college and Hogwarts. Great vaulted gothic halls, libraries and chapels, and sprawling acres of rare, capital green squares have evolved from monopolistic providers of barristerial training and accommodation to a softer hybrid of continuing education and administering professional discipline. And, of course, dining. Which is important, because, believe it or not, in order to qualify as a barrister in this country, a condition is that, as a student on the postgraduate £20,000-a-pop Bar Practical Training Course (as it now is), you have to attend your Inn and eat twelve meals. I kid you not. A fundamental requirement of membership of the oldest advocacy tradition in our legal history is that having ploughed yourself into a £32k professional loan (including interest),25 you must ingest heavily subsidized haute cuisine twelve times.26 And people say we’re out of touch with the modern world.
Chambers house anything from half a dozen to several hundred self-employed barristers, and are designed to allow sole practitioners to pool knowledge, wisdom and overheads, such as rent and staff. The most important of these are the clerks. Clerks are our pimps. They get the work in to chambers, schmoozing solicitors and prostituting barristers to ensure that everyone’s diaries remain full, and that cases are covered. And the chambers system underpins that fulcrum of independence. The theory is that barristers are beholden to no one. Our advice to our clients can be objective and robust, and we are not dependent on favour or goodwill, least of all that of the state, in dispatching our duties. If you are accused of a crime, or if the state wishes to prosecute someone accused of a crime, there is a cadre of independent advocates and consultants always available to help.
Oh, and the horsehair wigs? They, like the black gowns which barristers adopted when mourning the passing of Charles II, are simply a relic of Restoration fashion. While wigs and gowns have been removed from civil and family courts and the Supreme Court in the name of modernity, the criminal courts cling on. For my part, I rather like court dress as a social leveller, a sort of school uniform. It also offers a veneer of disguise in those rare but unsettling cases where a defendant you have spent an afternoon dismantling in cross-examination decides to wait outside the court building to offer a review of your performance.
Taking a step back and surveying the courtroom from above, trying to be as disinterested as I can, when these constituent elements are all pieced together, I think we have something special. Lying beneath each fragment, each procedural development and each incremental extension of the accused’s legal rights, is what, for me, the notion of justice is about. And that is fairness. To me, fairness is rooted intractably within what we mean when we talk about criminal justice. Fairness to the defendant. Fairness to the victim. Fairness to the witnesses. And fairness to the public. When we cry that an outcome or a procedure is unjust, we tend to mean that it’s not fair. I shall neatly sidestep the approaching criticism that, in so defining, I am guilty of substituting one abstract, indefinable concept for another, by appealing to what I hope we would all agree are shared understandings of the overlapping terms.
The Rule of Law27 is fairness. It is fair that, as declared by Magna Carta, everybody from kings to gentry to peasants are equally bound by the law. It’s fair that the rules are agreed by democratically elected representatives and not imposed arbitrarily by the monarch. It’s fair to know the rules before you’re punished for breaking them. It’s fair that, if you’re accused of breaking them, the procedure is the same fair procedure available to everyone else, and that you’re judged independently and by the same standards as your peers. It’s fair that you have access to an unbiased court, refereed by an independent, highly qualified judge, who ensures that the law is correctly applied. It’s fair that those judging you are unbiased ordinary men and women, unconnected to the case, at liberty to return whatever verdict they see fit.
It’s fair that a public prosecutor, shielded from the heat of the complainant’s grievance, brings a case where law and public policy dictate that it should, not simply where an aggrieved party can afford to prosecute. It is fair that a defendant has access to legal advice and representation of equal calibre to the Crown, including a fearless, independent advocate to ensure that his case is not diminished for want of his own eloquence, education or other social capital; and, where he says that he is innocent, to fight using all lawful means to persuade a court that the case against that man is not proven.
It is fair, given the highest of stakes at play, that we presume that all persons accused are innocent, and do not convict, and subject them to life-changing punishment, unless we are sure that they committed the crime. It’s fair that those who are convicted of causing harm to others are properly punished and, wherever possible, rehabilitated. It’s fair that the jury should base their verdicts on sound evidential bases, rather than prejudice, speculation or rumour. It’s fair, ultimately, that the guilty should be convicted, and the innocent acquitted, but, where doubt prevails, that we exercise it in favour of the accused.
Our adversarial system, when it works, is perhaps the greatest guarantor of individual liberty there is. The miscarriages of justice that have been avoided and righted over the last century have almost without exception been so as a consequence of fearless, independent advocates and litigators relentlessly challenging the power-laden assumptions of the state in the service of their client’s cause: the barrister who exposes, through forensic cross-examination, the conspiracy of corrupt police officers fitting up their client; the solicitor who pursues the DNA analysis that proves the state has got the wrong man; the prosecutor who reviews the unused material during a trial and honourably discloses to the defence the key that sets the defendant free. There’s a reason why ascending tyrants always round up the lawyers first.
I really can see why our criminal justice system, as curiously evolved a mongrel of a system as one might hope to find – one which, even the official website of the English and Welsh Judiciary admits, is ‘contradictory’, ‘confusing’ and which ‘it is doubtful [. . .] anyone asked to design a justice system would choose to copy’28 – is still widely regarded as one of the best in the world. When it works, I would tend to agree.
The problem is that often it doesn’t. As we shall see, despite the grand principles at its heart, at nearly every stage of our prized system of criminal justice we see things going badly, and preventably, wrong.
Let’s begin where all criminal prosecutions start their lives. To do so, we need to rewind from the Crown Court setting. For the first station in the voyage of every criminal case lies in a far less grandiloquent location: the Magistrates’ Court.
2. The Wild West: The Magistrates’ Court
‘There is, I verily believe, no people’s court on either side of the Iron Curtain or anywhere in the world which is as representative of the responsible elements of society as the lay bench of England and Wales.’
Lord Hailsham, 1984 AGM of the Magistrates’ Association1
Kyle slumped amidst the swelling noise of the waiting area and impatiently banged the split rubber of his soles against the backrest of the chair in front. This had the unintended result of awaking its slumbering, but invisible, occupant, who, cuddling his tin of Special Brew in his anorak and reeking potently of urine, had been sprawled across three seats, apparently sleeping off the eff
ects of the previous night.
Whether this man had a case listed before the magistrates that morning, or was accompanying a friend or simply enjoyed the hospitality of the one public space where society’s unwelcome can pass a day, sheltered from the elements, without interrogation or risk of being moved on, was not immediately clear. At some point that morning, a harried usher would pop out of Court 4, ask the gentleman which case he was here for, and, upon getting no coherent reply, would swiftly move on under the assumption that, whoever he was, he was not her court’s problem, and his implicit leave to doze would be extended.
Three police officers, their radios buzzing, strode past cradling polystyrene-clad coffee, negotiating the scores of recognizable ne’er-do-wells spilling out of the rows of screwed-down seating. One officer swerved to avoid a woman swinging a bulging Morrisons carrier bag over her head as she directed imaginary sky traffic with gusto, and the constables darted into the safety of the police room at the far end of the lobby, where they could sip Americanos in peace until troubled by the prosecutor to give evidence in their trial.
The hubbub of gathering souls was getting too loud for Kyle to think. An indecipherable tannoy directed someone of some name to go immediately to see someone else of another name at the cells. Solicitors bearing chunky files swept past the rows of chairs, calling out the familiar names, which were quickly matched to the familiar faces, that they would be representing that morning. These shouted names were harmonized by the chorus of the ushers, springing out of their respective courtrooms like cuckoos to summon the next unfortunate on the list.
A man with a gleaming head, zipped-up tracksuit and giant curved scar stretching from his forehead over his scalp and ceasing just below his nape, was accosting each suit that walked by: ‘Are you the duty?’ ‘’Scuze mate, are you the duty?’ ‘Love, you ain’t the duty, are ya?’ A probation officer, starting her delayed 9 a.m. appointments for pre-sentence reports, squeezed past him and into the Probation Office, followed by a candid youth bravely wearing a fashion T-shirt bearing the slogan, ‘Weekend Offender’.
At the furthest corner of the lobby, an ostensibly more respectable crowd assembled outside the door to the traffic court; a businessman in Armani, flanked by his privately paid road traffic solicitors, fidgeted nervously, the soundness of his multi-thousand-pound investment about to be tested to destruction before a foul-tempered District Judge.
Kyle gazed around for his solicitor and absent-mindedly dragged his bulging Adidas carrier bag back and forth along the floor by its drawcord. Inside were the bare essentials – tracky bottoms, T-shirt, underwear, deodorant, family photos – that his brothers said he would need at the Young Offender Institution to which he was heading after today’s hearing. At only nineteen years old, Kyle now appeared at the magistrates’ court with the same regularity as he had at the Youth Court up to the age of eighteen, and well knew the score. The magistrates had taken pity on him after his last car radio theft – the sixth of his career – and had imposed a community order with eighty hours of unpaid work six weeks ago. Having been found in the passenger seat of a ‘borrowed’ VW Golf barely a month later, Kyle was prepared for the spell in custody that was now looming. He just wanted the hearing over and done with, so he could check out of this human zoo, excuse himself from the present company of junkies, wife-beaters, drink-drivers and the otherwise socially dispossessed and meet up with his mates on the inside.
A man from British Gas flashed his identity card at the usher outside Court 2, and was promptly escorted straight inside, his application to the magistrates for warrants to disconnect the energy supplies of errant non-payers taking precedence as first order of business. As he stepped through the doorway, his escorting usher waved away a perspiring, onrushing barrister staggering under the weight of a dozen double-stuffed files, who was pleading to nil effect that they were the prosecutor allocated to this courtroom and simply had to get into court. Their desperation was palpable, as if they were being chased by a swarm of flying deathmonkeys, salvation from which lay just beyond the threshold.
This prosecutor was me. And I was desperate. I was the junior gopher instructed to prosecute all the cases listed in Court 2 that day – the so-called ‘prosecution list’ – and, having had the four-foot stack of files comprising the papers for today’s seven listed trials in my custody for less than ten minutes, was seeking refuge from the attentions of the seven defence solicitors vying for my attention and demanding answers which may, or, more likely, may not, lie within these unread, disordered Crown Prosecution Service files. I knew that, in fifteen minutes’ time, I would be summoned into court before three magistrates expecting me to be in a position to start the first trial, and as yet I didn’t even know what any of the cases were even about, let alone what my questions for the witnesses would be. With every pokey meeting room in the building either arbitrarily locked or occupied by defendants giving instructions to their briefs, the courtroom itself was my best and last bet for a few uninterrupted moments to read the damn files. Denied, I’d have to wing it. Somehow I was going to have to stand up in court and prosecute trial after trial, examining and crossexamining witnesses and making devastatingly persuasive arguments of fact and law, without knowing what the hell I was talking about.
I soon learned that I’d fit right in.
Welcome, ladies and gentlemen, to the magistrates’ court. This, the lowest court on the criminal rungs, is where all2 criminal cases start their lives. If you are charged with a criminal offence, this apparent replica of an inner-city A&E department on a Saturday night is where your journey begins. If your case is sufficiently serious, it will be dispatched from here to the more civilized and structured Crown Court to live out its days in front of a jury (assuming you do not plead guilty), and your sojourn before the magistrates will not extend beyond a single, brief ‘first appearance’. Those offences deemed fit for summary (magistrates’) trial – your low-level assaults, thefts and driving offences – remain in the lower court to be case-managed and, at some point in the future, tried before the magistrates, or, as they are referred to interchangeably, Justices of the Peace (JPs).
While most of us probably think of jury trial as our most common criminal tribunal, 94 per cent of the 1.46 million individuals brought before the magistrates each year3 will never see the inside of a Crown Court. Their cases, from first appearance through to – if they plead guilty or are convicted after trial – their sentence, will be dealt with at one of approximately 150 magistrates’ courts dotted across the land, and their fate determined most likely by three out of 17,500 serving magistrates;4 volunteers with no formal legal qualifications but the power to determine both rulings of law and findings of fact, and to send their fellow citizens to prison for up to a year.
That last sentence may have taken you by surprise. Unqualified volunteers in charge of law and justice? A little history is probably needed for context.
In 1195, Richard I decided to commission good and lawful men to act as custodes pacis and keep the local peace. Since that time, volunteers from the landed gentry have sat in judgment over the lower orders, their office later formalized in law by the Statute of Westminster 1361. These Justices of the Peace were not expected to be learned in the law, in contrast to the judges who sat in the King’s Court and the assizes on the Circuits and presided over serious criminal trials with juries; rather, JPs would knock heads together and dish out plain speaking and patrician overbearing to the local riff-raff, as well as administering the smorgasbord of eclectic local governmental duties they accumulated over the centuries.
JPs’ original peace-keeping obligations restricted their involvement in the criminal law to restraining, chastising and imprisoning ‘offenders, rioters and all other barrators [frauds]’ who in their judgment had disturbed the king’s peace. But incrementally their powers increased.
From the fourteenth century, JPs began to preside over an emerging second tier of criminal court, known as Quarter Sessions (so-called beca
use it sat in the locality four times a year). Quarter Sessions tried ‘misdemeanours’ – less serious offences – to alleviate the burden on professional judges sitting with juries in the assizes. Like the assizes, allegations in the Quarter Sessions were tried by a jury, but JPs, rather than professional judges, chaired proceedings. The assizes and Quarter Sessions were combined to form the modern Crown Court in 1971.
From around the 1730s, a third tier of criminal courts emerged: the Petty Sessions, where JPs formally sat to deal with, among other things, peace-breakers, fine-defaulters and bastardy examinations. ‘Formally’ is probably putting it a little strong; until the beginning of the nineteenth century it was not uncommon for the ‘court’ to be held in a magistrate’s living room. It was at that time, however, that the extension of magistrates’ powers kicked in. From the 1820s, magistrates found themselves subject to a procession of new laws formalizing, recording and regulating summary proceedings, and, in return, the jurisdiction of the Petty Sessions was expanded to take some of the work of the Quarter Sessions. Criminal offences that could only previously have been tried in front of a jury, such as larceny, could now be tried by magistrates alone, with the consent of the accused (consent would often be given due to the magistrates having lower sentencing powers than the Quarter Sessions).
Throughout the nineteenth century, as industrialization swept in and the volume of criminal work increased, the list of offences which could be tried swiftly and inexpensively by magistrates grew. In the twentieth century, not only were more offences reclassified as ‘triable either way’ – suitable for either summary trial or jury trial – but some were made mandatorily ‘summary only’ and so the defendant’s right to elect trial by jury was removed altogether.