The Secret Barrister

by The Secret Barrister

  Except, of course, it’s not. Not remotely. Because the vast bulk of the work in most criminal cases will be done not by the advocate creaming the credit at the end of the trial, but by the litigator. The solicitor. If you are charged with a criminal offence, your solicitor will be your guiding light from dawn until dusk.

  Their existence is critical to ensuring that the adversarial system functions as it should. And they are often underappreciated as much by the Bar as by the public. I couldn’t do what criminal solicitors do. I am fortunate to operate at several degrees of separation from the flesh and blood of my subject; by the time the brief reaches the barrister, the immediate horror of the allegations has been sanitized and packaged into a neat, dehumanized index of typed statements and two-dimensional photographs. The client will have had a few weeks to process his situation before he meets me; while he may still be distressed, the white-hot emotion of his visceral response to his predicament, often fizzing through the transcript of his police interview, has had time to cool. In that regard, much as I’d like to pretend otherwise, my services cannot really be described as front line. Whereas solicitors, like the police, very much are. They are the ones figuratively and literally rooting around in the dankest corners of the lives of those involved. It will be the solicitor who is roused at 3.30 a.m. to scurry to the police station to attend to the foaming, screaming crack addict caked in his girlfriend’s warm blood; to inhale the foul mingling of bodily fluids and take those first harrowing instructions as to what manner of depravity he acted out upon her and exactly how he delivered the fatal blow. It will be the solicitor parking her car on the city’s toughest estate as she trawls the neighbours for potential defence witnesses and returning to find her windows bricked in. She will be the one fielding hourly calls from the defendant’s traumatized family bellicosely demanding answers that she cannot provide. Not me. I just read about her efforts in dispatches.

  When defence solicitors are able to do their often grim and thankless job properly, it makes us all safer. The chances of the innocent being convicted, perhaps while the real culprit remains at large, are decreased. Good defence litigators keep the prosecution honest. And they keep the system honest.

  A good example of this relates to one of the central planks of the grand efficiency reforms that kicked in in 2016: the drive to increase early guilty pleas.

  As we saw earlier, one of the causes of scheduled trials not going ahead is defendants changing their pleas from ‘not guilty’ to ‘guilty’ at the last minute, often once they’ve learned that the prosecution witnesses have turned up for trial and conceded that the game is up. Tweaking the system to encourage such defendants to admit their guilt earlier, and spare the prosecution, courts and witnesses the cost of the matter proceeding to trial, is an ostensibly sensible way of smoothing those inefficiencies.

  To achieve this, courts require a defendant to indicate his plea – guilty or not guilty – at the earliest stage in the proceedings before the magistrates, and penalize those who delay entering a guilty plea beyond that date. Again, on its face not an objectionable course: pragmatic sentencing policy has long rewarded those who admit their crimes with a ‘discount’ of up to one third off their sentence, and incentivizing this to occur at the earliest stage of the criminal process should generate the greatest savings.

  But. But but but. We saw when discussing bail how little information is available to the defence at the first appearance. It often takes place within days of the alleged offence, while the prosecution case is still being built. The evidence against the defendant – the witness statements, photographs, medical reports and so forth – will often not have been passed to the CPS. All that the prosecution is required to provide at the first appearance is the often inaccurate MG5 police summary of the allegation; it is within the CPS’s discretion as to whether other evidence is ‘relevant to plea’ and should therefore be handed over. And all the observations made when discussing bail apply here, only instead of a temporary restriction of liberty, the solicitor is expected to advise on the potentially life-changing issue of plea.

  The justification is the tired mantra of the magistrates (and, increasingly, as a result of the ‘efficiency reforms’, judges) fired at the defence lawyer: ‘Your client knows whether he’s done it.’ Which in straightforward cases may be correct (‘Did you steal that apple, Dougal?’ ‘Yes ma’am, I did.’) but in others will be a fallacy. Sometimes, it will simply not be possible to advise a client on whether the prosecution case is made out in law, without seeing the evidence supporting the charges. Saying ‘a defendant knows what he’s done’ is like saying to a man in a GP’s office: ‘You know what’s wrong with you.’ He may know that his knee hurts, but how is he to say whether it is bruising, swelling, cartilage damage, pulled ligaments, a tear, sprain, twist, tweak or fracture without expert input? Now imagine the expert is asked to advise and diagnose without examining the knee. And then confidently recommend a life-changing course of action. That’s what solicitors are being asked to do every day.

  Let’s take an example. A drunk yahoo on an adjacent barstool shouts something threatening in your direction and moves as if he’s about to swing for you. You instinctively and pre-emptively hit him once to the face. He falls and thwangs his head on the floor. He later tells the police that he’s suffered a fractured jaw, and you are charged with inflicting grievous bodily harm, carrying a prison sentence of up to five years. At the first appearance, your solicitor only has your instructions – which amount to, ‘It all moved so fast, I thought he was going to hit me and I lashed out’ – and the police MG5 summary based on the complainant’s witness statement.

  The issue here is whether you were acting in reasonable self-defence. The key word is ‘reasonable’: if a court finds that you were honestly acting in self-defence, but went beyond what is reasonable, you would be guilty. Cue your question: what is reasonable? The assessment of ‘reasonableness’ is the type of intangible value judgement on which a legal expert’s opinion would be really quite useful. It would be invaluable, you might think, for a hardened veteran of such cases to advise on whether a court is likely to find for you or against you, before you admit guilt to a serious criminal offence.

  If it were me advising, I would be enormously uncomfortable recommending a plea based on the MG5 and your hazy, speculative recollection. I would want to see the complainant’s statement in full. I would want the statements of the other witnesses in the bar. I would want statements from your friends and family who saw what happened. I’d want the CCTV from the pub. I’d want to know a bit more about the complainant – let’s see if he’s the kind of brooding brute who would reasonably inspire terror, or if he’s a five-foot, eight-stone string bean. I would want every perspective on that split-second flashpoint before I advised you on whether, in my professional opinion, you are likely to succeed running self-defence, or whether you are best off by pleading guilty on the basis that you intended self-defence but went a bit far, and thereby maximizing your discount on your sentence. I’d also want, for good measure, the medical evidence supporting the yahoo’s claim of a fractured mandible, because if he’s being untruthful and it’s simply bad bruising, that ain’t grievous bodily harm, sunshine.

  But here’s the rub – if I want that extra material, we’re going to need an adjournment. And the new orthodoxy, as we saw when discussing magistrates, is No Adjournments. While we have already illustrated how this can operate against the prosecution, it operates equally as viciously against the defence. Whereas in the past a measure of judicial common sense was encouraged, and you could persuade a court to adjourn without indicating your plea to allow for that further, crucial evidence, now you will be forced to pin your colours to the mast. Plead guilty immediately, and get the lightest sentence. Or plead not guilty now, and then if you change your plea to guilty once the evidence has been served, take your punishment in the form of reduced credit on your sentence.2

  The consequence of strong-arming defendants
into early decisions is that people who may not be guilty of the charge – or of any charge – may feel pressured into pleading guilty. It is not merely a theoretical risk: the Court of Appeal has had to overturn convictions arising out of ‘early guilty pleas’ when the evidence has subsequently emerged and been shown to contradict the prosecution allegation.3 And the only discernible explanation for the inflexibility of the policy is to save the court and prosecution costs involved in producing the evidence. Early guilty pleas equal cheap guilty pleas. It does not follow, of course, that early guilty pleas equal correct guilty pleas. The forsaking of the latter maxim in favour of the former is, in my view, repugnant. The courts, and the senior judiciary tasked with bringing in the new age of reform, trumpet an increase in guilty pleas as a self-evident good. I wonder whether they ever ask themselves how many guilty pleas would be too many.

  But this all emphasizes the importance of good solicitors. Because solicitors have been central to challenging the operation of this policy, both at a higher level and at the coalface standing up to intransigent magistrates. Despite extreme pressure from courts to force solicitors to extract early pleas from their clients – for example, one London magistrates’ court in 2016 operated a policy whereby any solicitor who wanted to apply for an adjournment would be made to wait all day until the end of the court list – good solicitors have stood firm and made plain, in person and through their professional bodies, that they will not collaborate in this parody of justice.4 They have been relentless in resisting the state’s efforts to save costs by diminishing the core principles of our justice system. They defy the prevailing judicial orthodoxy that more convictions and more guilty pleas, rather than the quality of justice, are the benchmarks by which our system should be appraised. And they are succeeding in winning incremental changes to the procedural rules that permit the present imbalance.

  The importance of good, brave defence solicitors is further manifested at each stage of the criminal process. They take your instructions, apply for your legal aid, advise on the evidence, instruct the right barrister, instruct expert witnesses, take witness statements, visit you in custody if you’re not on bail, chase the CPS endlessly for vital disclosure and handle an ever-growing Everest of paperwork on your behalf. And they do their damnedest to gather evidence to persuade the prosecution to discontinue. One of my solicitors visited fourteen houses to obtain fourteen witness statements from punters who confirmed that, contrary to what two police officers had claimed, my client Nathan, the landlord of The Old Goat, had in fact been in a different room of the pub entirely when the violence at the bar broke out, and far from being the instigator was trying to keep his old mum out of harm’s way. The mistaken identification by the police officers was accepted by the CPS, who dropped the case before trial. Without his solicitor’s efforts, there might have been a very different outcome. He was a magistrates’ bench away from wrongful conviction, revocation of licence, and loss of home and livelihood. Such what-ifs often give me serious pause for thought.

  However. There is an iceberg ahead.

  The ability of publicly funded defence solicitors to do their job is under increasing peril. Prosecutorial and systemic inefficiencies and the correctives devised to address them together conspire to load resource-sapping burdens onto the plates of small and medium firms. In a sinister pincer, the relentless slashing of legal aid rates renders it near-impossible for many solicitors to remain financially viable. Meanwhile, their client base is under threat from a particular breed of unscrupulous vulture solicitor lurking in the shadows of the system. These crooks care not a jot for professional reputation nor the welfare of the defendant; they are parasites. They are the minority whose contempt for ethical and moral norms regrettably often defines the public perception of criminal defence lawyers. These firms poach unwitting clients with empty promises of guaranteed acquittals, cash payments and gifts. Once the client is signed up, they sit and wait to cash the legal aid certificate without doing any work on the case, either forcing the defendant to plead guilty or leaving him to swing in the breeze at trial. Their business model is stack ’em high and sell ’em cheap, maximizing the number of cases and minimizing the work actually done – a repugnant, but hideously rational, consequence of meagre fixed legal aid rates.

  While presently this rabble is in the minority, if good local firms, caught between an indifferent system and unregulated pirates, find themselves unable to stay afloat, a lacuna will emerge which may be filled by exactly the wrong type of outfits. The unwary first-time defendant reliant on publicly funded criminal defence will be in very real danger.

  Let’s look at how the unsustainable pressures on defence solicitors are operating in practice.

  Doing the Prosecution’s Job

  We’ve already visited the inefficiencies of the system in earlier chapters, and seen their impact upon the prosecution, courts and witnesses. But what we have not yet explored is how over recent years these have been reimagined not as the problem of the prosecution, nor of the court, but of the defence.

  Walk into any case management hearing – where pretrial issues are thrashed out – in any criminal courtroom, and you will usually observe two phenomena. First, the prosecution being castigated for failing to serve or disclose crucial material many months ago, in repeat defiance of multiple iterations of court directions. And second, the exasperated judge or magistrates, having listened to the prosecutor’s predictable homilies (‘It’s a regrettable oversight, Your Honour’; ‘I’m afraid I don’t have a satisfactory explanation to put before the court’; ‘Your Honour is aware of the straitened resources under which the Crown is operating’), recalibrating their artillery to take aim at the defence advocate and demanding to know what the defence have done to fix the problem.

  Why so, you ask? The prosecution brings the proceedings against the defendant; if it can’t get its act together and comply with basics such as serving the evidence on which the case relies, what concern is it of the defendant? Why does he not just silently sit back and, if the prosecution’s house is in disarray on the day of trial, take advantage by escaping lithely through a window? Why should he be under any obligation to mop up the Crown’s spillages?

  The answer lies in a cultural shift that has taken place over the last fifteen years or so, which has been codified in the Criminal Procedure Rules that since 2005 reign over criminal proceedings. Back in the mid- to late twentieth century, the burden of proof was not merely sacrosanct but absolute. The prosecution had to prove its case. The defendant was entitled to say nothing, do nothing, and simply wait until trial to see if there was a chink in the prosecution chainmail through which a cunning solicitor or barrister could fire a silver bullet. Often, the silver bullet would be a highly obscure and technical point of law; other times, it would be a point so crashingly obvious that the prosecution had assumed it was agreed and so had not adduced any evidence on it. Most commonly, these ‘ambush defences’ were deployed in the magistrates’ courts, often in trials of motoring offences, where the general lack of order and scrutiny proved fertile ground for such tactics to thrive.

  In the post-Criminal Procedure Rules world, things are very different. The ‘overriding objective’ of the Rules is that cases be dealt with ‘justly’, a proposition that includes:

  Acquitting the innocent and convicting the guilty, dealing with the prosecution and the defence fairly, respecting the interests of witnesses, dealing with the case efficiently and expeditiously, and also [. . .] dealing with the case in a way that takes into account the gravity of the offence, the complexity of what is in issue, the severity of the consequences to the defendant and others affected and the needs of other cases.5

  Additionally, both prosecution and defence are now under a duty to actively assist the court in that objective. A key component of this is that, after centuries of not being so required, the defence must clearly identify the disputed issues at the outset of proceedings. In a series of High Court decisions from 2006 onwards, cher
ished totems of the cunning defence lawyer were demolished one by one, held to be contrary to the spirit and letter of the New World Order. Defence lawyers were sternly warned:

  Criminal trials are no longer to be treated as a game, in which each move is final and any omission by the prosecution leads to its failure. It is the duty of the defence to make its defence and the issues it raises clear to the prosecution and to the court at an early stage.6

  And so, at the first appearance before the magistrates, the defence will be expected to specify what is disputed: the correctness of an identification, or the accuracy of scientific evidence, self-defence, the drugs weren’t mine and so forth. Attempting to obscure the issues, or raising an issue at the last minute in a nostalgic ambush, will attract not just censure but cost penalties against the lawyers. Plus the prosecution will be given the opportunity to reopen their case and fill the gap you’ve so cleverly spotted, so you gain no advantage whatsoever. If you fail to identify the issues in a Defence Statement in Crown Court proceedings, the jury can be told that they can hold that against the defendant when considering the issue of his guilt. Defence engagement is now key.

  There are conflicting schools of thought among professionals and academics. Traditionalists would argue, and have argued (normally unsuccessfully before the High Court), that this sea change offends basic founding principles of adversarialism, such as the burden of proof and the right to silence. No one chooses to be prosecuted; why should a defendant ‘identify the issues’ and give the prosecution a chance to build a stronger case against him?

  For my part, I’m a little less militant (or less principled, depending on your view). While recognizing the eminence of the burden of proof, I see no offence in trying to ensure that cases are determined on their evidential merits, rather than on the sharpness of the lawyer. If the prosecution evidence is weak, or if, despite multiple opportunities, the Crown has omitted to address holes in its case, a defendant should plainly be entitled to the benefit of the state’s failure. But where gamesmanship is deployed to catch the prosecution off-guard on a technical point of procedure, I struggle to accept that this is just part and parcel of the adversarial procedure. I think that the old way of operating was premised on a conception of justice as requiring solely the avoidance of the conviction of the innocent. Whereas I would submit, perhaps to howls of anguish from purists, that while that must be the most important principle, it is not the only one. As the Criminal Procedure Rules, and first principles, provide, the conviction of the guilty is of obvious secondary importance. And while I would never advocate a system that prioritized that over the acquittal of the innocent (for that way tyranny lies), requiring that the ‘game’ – even a game to which one participant is dragged rather than invited – be played by common rules designed to ensure a just outcome seems to me to be right. Rules that allow the court and the parties to engage with the real issues, and ensure that the proceedings are played cleanly by both sides, appear to be a proportionate means of achieving it. And if, as the Bar Code of Conduct tells me, my duty is to assist the court in the administration of justice, identifying the issues for trial does not strike me as anathema.