The Secret Barrister

by The Secret Barrister

  But the harm caused by pursuing weak cases is real, and acute. It is horribly difficult prosecuting sex cases. They are often compounds of the most combustible elements in the prosecutorial spectrum: extremely serious and distressing allegations; usually limited evidence beyond the word of the complainant; the complainant themselves may well be vulnerable and damaged and may have a personal, criminal or medical history which impinges upon their credibility. These cases usually invite media attention, plus there is the historical weight of state failure to act in previous such cases, and there is enormous public pressure to improve upon conviction rates perceived as historically paltry.

  For all those reasons, it is imperative that only viable prosecutions are pursued to trial. Giving a complainant ‘their day in court’ is not an abstract administrative process. It means dragging a potential victim of child sexual abuse through the years of interminable delays of the court process. It means compelling them to re-live, in public, freshly uprooted agonies that they thought were buried. It means subjecting them, in full view of their loved ones, to hostile cross-examination into the most intimate spaces of their personal and sexual lives. It means tearing through families, forcing parents and grandparents and children to take sides in traumatic adversarialism from which there is no hope of reunion. It means risking the burning anguish of a not guilty verdict which, no matter how many times you reassure them otherwise, they will forever carry as ‘proof’ that they were not believed.

  Doing that is only justifiable, as a matter of fundamental morality as much as policy, if there is a realistic prospect that the state will secure a conviction. Any consideration that dilutes or interferes with the primacy of that assessment is bogus. It is to appropriate the complainant as an instrument in pursuit of another aim for which the criminal courts are neither intended, nor suited.

  The criminal courts are not, for example, about catharsis, or giving a victim their day in court, or providing closure. If those emerge as fortuitous by-products of the trial process, so much the better, but the likelihood, from experience, is that the overriding emotion at the conclusion of a complainant giving evidence will be relief or regret, not celebration. Counsel are not counsellors. Cross-examination is not therapy.

  Nor is the court designed as a tool for engineering statistics pleasing to CPS senior managers, or the politicians and special interests who bring their own agendas to bear on the independence of the prosecution. It should not be filled with unfeasible cases to virtue-signal to an inherently anti-defendant media Just How Seriously We Treat This Type of Thing. Not least as the one thing guaranteed to wash out conviction rates is a flood of weak cases.

  The court’s ultimate function is unitary. It is to test state accusations of guilt. That’s all the apparatus is set up to do. It tests the credibility of the evidence that the state brings in support of its case, and it asks the tribunal of fact one single question: are you sure of guilt? If the prosecution does not consider that it has a realistic prospect of succeeding, or that it is not in the public interest to prosecute, that must trump all else.

  And although I don’t for a moment expect those truths to be delivered by prosecutors to complainants in such stark terms, I do think it right that they, particularly those setting policy, internalize and act on those basic truths, instead of compromising. Being a prosecutor, as a wise colleague once told me, isn’t about being popular. Less still, in the words of an even wiser judge, is it about bloody civil service targets.

  The judge’s solution to our impasse was ingenious. He directed that the CPS District Prosecutor attend court to explain his decision in person. Sure enough, no sooner had those words left my lips and whizzed down the receiver did the curt reply spring forth: ‘Look, just offer no evidence. Goodbye.’ After months of head-thumping wrangling, sensible instructions were finally forthcoming. But it took the threat of having to leave the snug confines of his office, enter the den of the criminal courts and publicly justify his decision, to make that jobsworth apply his mind to the genuine interests of the victims and the public. This is far from an exceptional tale. And, I would come to learn, far from an exceptional course taken by the judge.

  Not long after, a colleague was prosecuting an allegation of racially aggravated common assault. The defendant had already been convicted of a spree of violent armed robberies and was awaiting sentence, which couldn’t go ahead until this new matter was concluded. In between relieving jewellers of tens of thousands of pounds’ worth of bling, he had slapped his girlfriend and called her a ‘white bitch’. He admitted the assault. He would not admit using those words. Racially aggravated offences being of particular importance to CPS statisticians (notwithstanding the nil effect it would have on sentence in light of the armed robberies), there was no way, my friend was told, this could be dropped. Not even if the complainant agreed.

  As in Ryan’s case, when the apoplectic judge was informed of the Crown’s position, he demanded an inperson explanation from the regional CPS bigwig. And, again, no sooner had the request been communicated than, strangely enough, an ‘ad hoc review’ immediately concluded that maybe, just maybe, proceeding to trial wasn’t in the public interest after all.

  Victims v Defendants

  The filthy little secret that we hide from victims is that the aspects of the criminal process that often trigger the greatest distress are those that arise not by accident, but by design of the adversarial trial system that pits state against defendant. And this dynamic is worth considering further. Because amid the thud-thud of the Victims First march, there will be vulnerable people believing that the source of this trauma can easily be moderated. And crowd-pleasing snake oil politicians emptily indulging those misapprehensions, or worse, seeking to crudely realize them, with little understanding of the damage that they thereby do.

  The difficulty begins when the state appropriates what is to an individual an essentially private dispute. From that moment, the fate of the victim and the state are tightly bound – although as we have seen above, it is far from an equal relationship. The victim is formally stripped out of the litigation; the indictment is headed ‘Regina v Jones’, not ‘Smith v Jones’. The state determines whether to initiate proceedings, the parameters of any litigation and whether, at any stage, to silently discharge two bullets into the case and bury it at sea. The victim is no longer a victim; she is, in the properly neutral language of the court, a complainant. The existence and extent of her suffering will be doubted, the subject of debate and analysis by strangers; her agonies reduced to writing and legally pasteurized into admissible, artificial evidence. Her involvement is both peripheral and central; she is not represented – the prosecution barrister is not ‘her barrister’; she will not be permitted to watch any of the pre-trial proceedings nor the trial itself until she has given evidence; and her views on what should happen at sentence are immaterial. Yet she will personally carry the success or failure of the proceedings. Her evidence will usually be crucial; she will be compelled under pain of imprisonment to attend court to deliver it. And, if the verdict is not guilty, she will feel responsible. No matter how many times I or any other prosecuting advocate assures her that a not guilty verdict does not mean that a jury has disbelieved her – often the verdict is a reflection of other weaknesses or inconsistencies in the prosecution’s case – I will see in her eyes, as I see in the eyes of hundreds of others, that she doesn’t believe me.

  ‘The threshold for a guilty verdict is so very high,’ I try to console a complainant after her alleged stalker is acquitted. ‘It’s not a reflection on you; it’s a reflection on us, the prosecution.’ But as the formula falls from my lips, it is plain she is not buying it. My entreaties cannot and will not help her find peace, or help her sleep. I’m just the wigged babbling fool who failed to catch her tormentor.

  But more than that, being bound to the state also means that the victim is forced to play by the state’s rules, which hold at their heart a fundamental commitment to individual liberty. T
he state retains the power upon conviction to deprive a defendant of his freedom for any period up to and including his whole life. The greatest risk in this litigation is therefore borne by the accused; hence the centrality of the burden and standard of proof. Unlike in civil proceedings where only money is at stake and the burden is on the claimant to prove their case ‘on the balance of probabilities’, the potential for loss of liberty demands that a higher standard be imposed on a criminal prosecutor. They must prove their – and the complainant’s – case beyond reasonable doubt. The defendant has to prove nothing. We agree that guilty people should walk free rather than the innocent be convicted. That is why, if we know one of two people did the deed but cannot be sure which one, we let both go free, rather than locking up both knowing that it guarantees we get the right man.

  The complainant has to share that burden, and its consequences, in deference to our first principles. It regrettably follows that genuine victims will exit the process feeling that justice has been denied. That the verdict was wrong. But, save for the cases where the case has not been prosecuted competently, the only way to improve this state of affairs for the complainant would necessitate an incursion into the rights of the accused. Which would mean more innocent people are convicted.

  The same zero-sum equation applies to the adversarial trial process. The defence advocate, instructed that his client is innocent, will at every turn be trying to undermine the credibility of the prosecution evidence, and therefore the complainant. Her honesty, accuracy and integrity will be questioned. If her evidence contrasts to the slightest degree with other evidence in the case, she will be accused of unreliability, or lying. If her evidence is wholly consistent with the others, it will be because she has connived with her fellow witnesses. If she mis-speaks, or contradicts herself, it will be held up to the jury as proof positive of her inherent uselessness as a witness of truth. If she breaks down in sobs, these are crocodile tears; a cynical performance for the jury.

  It is this part of the process that understandably holds the greatest fear for witnesses. And it is the part that is guaranteed to see a defence barrister’s face plastered across the tabloids when her guilty client is convicted and her earlier cross-examination of the distraught complainant is held up as the cynical effort of her client to evade justice for his sick acts. But while often the witness will be truthful, and the defendant a lying guilty scoundrel, on occasion the witness will be lying. Or genuinely mistaken. Improving the experience of the witness by softening the edges of the adversarial process may mean that those lies or mistakes go unexposed. And that innocent people are locked up.

  There are of course proper limits on the way in which witnesses, and in particular complainants, may be challenged in court. Questions must be relevant. Advocates are barred, both by law and professional ethics, from pursuing lines of questioning or adopting demeanours designed to intimidate or humiliate witnesses. Vulnerable witnesses are eligible for ‘special measures’, allowing them to give evidence in court from behind a screen, or in certain cases over a video-link, to improve the quality of their evidence. Defendants cannot themselves cross-examine complainants in sex cases; if they are self-representing, a lawyer will be appointed by the court to act for them for that purpose.

  But where we stray beyond that and interfere with the ability of the defendant to properly challenge the complainant’s evidence, we are impeding him from challenging the prosecution. It sounds like a circumlocutory way to make a simple point, but I fear this self-evident truth has been relegated, if not forgotten completely, in the stampede to Put Victims First. Testing a witness’ evidence can sometimes not be done without robust challenge by the defence barrister. It is in those testy courtroom exchanges, as the sweaty witness becomes panicked, tied up in their own lies, that the jury sees the glint of truth escaping.

  If, as we often hear suggested, certain lines of relevant questioning were prohibited in sensitive cases to spare the complainant’s distress, the defendant would be deprived of challenging the prosecution evidence with the same vigour as he will no doubt be challenged by the prosecution barrister. Imbalance would result, and vital defence points, key to an acquittal, may not emerge in the evidence.

  An illustration of this clash of interests made front pages in 2016, in the case of the professional footballer Ched Evans. His original conviction for rape was quashed on appeal after fresh evidence emerged relating to previous sexual behaviour of the complainant, and with the assistance of this evidence he was acquitted at his retrial. Questions about a complainant’s sexual history are only allowed in tightly controlled circumstances following a change in the law in 1999,23 and only where to not allow the evidence would result in the jury reaching an ‘unsafe conclusion’. The Court of Appeal ruled that, in the exceptional circumstances of the case, the evidence and questions should be permitted. The reaction, from media, commentators and politicians, was as fevered as it was uninformed. This decision was falsely, but repeatedly, cited as establishing a dangerous precedent that women could be gratuitously asked about irrelevant matters of sexual history solely to discredit them in the eyes of the jury. The complaints were made almost entirely by people who didn’t understand how the law operated, or why it was applied in the way it was in this particular case, and who didn’t seem to care. Rather, they perceived a victim who had suffered an (undoubtedly) unpleasant and invasive experience in a sex trial, and decreed that Something Must Be Done. This Something, in the mind of Labour MP Harriet Harman, amounted to preventing defendants from ever applying to rely on evidence of a complainant’s previous sexual history, a measure proposed as an amendment to a Bill in 2017.24 It hadn’t occurred to her to ask why the law allows such evidence in exceptional circumstances. She hadn’t paused to consider, for example, that some of the grimmest cases involve sexual allegations made by very young children who have previously been abused. When, say, a troubled, confused seven-year-old girl makes a complaint against her teacher in the horrific detail that can only be gleaned from direct sexual experience, the prosecution will suggest to the jury that the allegation must be true; how else would a child so young know so much? But if the child was appallingly abused by her uncle at the age of five, this would provide the innocent teacher with an answer. Harman’s Law however would strip him of this vital evidence. The complainant’s comfort would be paramount. The impact upon the fairness of proceedings to the defendant, and the real risk of an unsafe conviction, would simply not matter.

  And I fear that this captures the spirit of the times. Much of what has developed in recent years to accommodate witnesses – particularly the toolkits and training provided to advocates questioning child witnesses or witnesses with learning needs – is sensible, humane and proportionate. But when Putting Victims First means rebalancing adversarialism in the complainant’s favour, and tilting the scales away from the defence, I worry. The test I think, in all such cases, is to put yourself in the shoes of the falsely accused. What restrictions on your ability to mount your defence are you content to accept to permit your accuser an easier ride? But as with so much when it comes to these debates, the underlying assumption is that it will never be me.

  6. Defenceless and Indefensible

  ‘To be an effective criminal defence counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesman for the despised and the damned.’1

  Clarence Darrow (1857–1938)

  The Bar, and the criminal Bar in particular, invests its members with the glorious illusion of self-importance and gritty, doughty glamour. The role of the trial lawyer evokes the romantic myth of those historical and literary crusaders for justice whose swashbuckling advocacy and fearless derring-do capture the imagination of every popular retelling of a criminal case. Being a defence barrister satisfies that needy compulsion to take centre stage, to play the action hero in the story of somebody else’s life. To be a defence barris
ter is to let the taste of the improbable acquittal linger coquettishly on the senses, before turning to your grateful, innocent client in the dock with the wink that says, Told You It’d Be Fine. It is to be greeted outside the swinging courtroom door by the ecstasy of vindicated relatives, patting you vigorously on the back and telling you that your voice, your genius, alone was the difference between the service of justice and its miscarriage. It is to tip your wig, and wryly reply to raucous, dizzy laughter: In the nicest possible way, I hope I don’t see any of you ever again; and sweep into the embers of sundown with the misattributed words of Clarence Darrow playing against the swell of a John Williams soundtrack.

  The daily reality is obviously nothing of the sort. You’re more likely to be sitting in a urine-soaked cell with a career burglar demanding to know why his fucking co-defendant got unpaid work while he got three years, and listening politely at how the last fucking brief he had would’ve fucking got him off and what do you fucking mean there’s no chance on a fucking appeal? But that is the story we spin for ourselves. We justify the neglect of our families and the ruin of our social lives with the soothing reassurances to our ego, bolstered by pop culture, that we Rumpoles, and what we do – trial advocacy – are what justice is all about.