The Secret Barrister

by The Secret Barrister

  Jay’s case is one that will stay with me until I retire. Not because of the nature of the allegations against him; their horror is sadly matched by their ubiquity in the Crown Courts. Nor because he was the first acquitted client whose protestations of innocence I found, on that deeper, forbidden, personal level, difficult to accept. But rather because the circumstances of his case, and of my role in it, taken together probably summon up to a layperson a flesh-and-blood illustration of a system not working. Of adversarialism as an impediment, rather than a conduit, to justice.

  Broken down to its bare essentials, on the basis of everything I saw in that case, and everything I heard at trial, I think Jay repeatedly raped his children from school age to adulthood. And my efforts helped secure his acquittal.

  To restate some of the professional and ethical basics: I of course didn’t know that Jay was guilty. He never admitted as such; indeed, his instructions remained a firm ‘Not Guilty’ from the moment he strolled into the conference room, reeking of stale cigarettes and Brut, and wedged his giant rolls of belly awkwardly into the chair at the opposite end of the table. Had he ever admitted to me, or to the senior barrister leading me, that his two daughters were truthful when, aged twenty-four and nineteen, they attended a quiet suburban police station to calmly report that their father had raped and sexually abused them from the age of five, I would not have been able to defend him in the same way.

  My duties are strictly set out in the Bar Code of Conduct: if a client tells me that they did something, I cannot positively assert in court that they did not. Contrary to popular conception of defence lawyers as lying slyly in cahoots with their clients, privy to the details of their guilt but dishonestly presenting a picture of positive innocence to the trusting jury, professional ethics are clear. My overriding duty is to the court. While the client enjoys legal privilege – and so I won’t reveal it to the court if he confesses his guilt to me – I cannot present a positive case that I know not to be true. Were I to do so, I could be hauled before a disciplinary hearing and disbarred.

  Therefore, where a client confessed, the only way I could continue to act would be if he decided to plead guilty, or if he maintained his not guilty plea but instructed me to ‘test the reliability of the evidence’ without advancing a positive case that he was innocent. This would mean that I was in effect defending him with an arm tied behind my back. I could gently probe the evidence of the witnesses by drawing out inconsistencies and asking the jury, ‘Are you sure of guilt?’ But I couldn’t suggest to a witness that they were lying, or submit to the jury in my speech that my client did not do the alleged act. If the client wished to nevertheless advance a positive defence, I would be, in the jargon, ‘professionally embarrassed’. I would have to withdraw, and he would have to find a new barrister to whom he could give fresh instructions of innocence.

  But where a client maintains his lack of guilt, in spite of what may be overwhelming prosecution evidence, I am obliged, having robustly advised him on the likelihood of conviction, to present his unlikely defence in as persuasive and attractive a way as possible. This is in practice the day job. Defending not just the indefensible, but the patently ludicrous. Inviting a jury to consider that, maybe, black is not, as the prosecution so outlandishly claim, black, but might instead be, if you squint hard enough, a shade of something if not white, then at least not a million miles away from grey. Maybe, as I in one of my earliest trials had to sincerely put to three unimpressed magistrates, the six independent prosecution witnesses who saw my client merrily carrying a stolen television to his car, had suffered a collective onset of poor vision and faulty memory. And that the crystalline high-resolution CCTV footage supporting the witnesses’ identical accounts was not crystalline enough to make the court sure.

  And this is key to adversarialism. The prosecution will be presenting their case as persuasively as they can, whatever views the advocate might privately hold about the witnesses’ credibility. Equality of arms requires that the defendant has his case, irrespective of whether his advocate believes it, put before the court with the same articulacy and force. That, after all, is the legacy of the eighteenth-century barristers elbowing their way into the trial process and incrementally enlarging their roles. The accusatorial system, which involved the state – usually a citizen prosecutor assisted by the investigating magistrates we met earlier – versus an unrepresented defendant singing for his supper, gave way to professionalized adversarial trials, with lawyers taking centre stage in their presentation of the competing cases.

  In practice, this exercise involves not simply the presentation of an alternative case, but the demolition of your opponent’s. That is the core of defence strategy. My pupilmaster would often say that prosecuting is constructive and defending is destructive, and while not always true, the proposition is generally sound. A defendant will often have a positive case to advance (usually either ‘it wasn’t me’ or ‘it never happened’), and will usually wish to give his own evidence and call defence witnesses in support of his ‘case’, but there is no burden on him to prove anything. If his lawyers can do enough damage to the prosecution case, that may be enough to establish reasonable doubt in the jury’s mind and secure the precious Not Guilty.

  In Jay’s case, the nature of the allegations meant that destruction was our primary strategy. Allegations of non-recent sexual offences make for extremely difficult cases for many reasons. For the defence, a particular hurdle is that, due to the passage of time, it is often impossible to recall specifics of what one might have been doing on a given day, and thus to meet the allegations head on. In some jurisdictions, there are statutes of limitations which prevent criminal proceedings being brought after a certain period of time, for this very reason. But in England and Wales, there is no such bar. It is increasingly common to see defendants prosecuted for alleged offences said to have occurred forty or even fifty years ago, even though it presents an immediate difficulty when trying to ‘disprove’ the prosecution allegations.

  So when Jay’s eldest daughter, Mysha, claimed that back in the late 1980s her dad took to coming into her bedroom on the nights that her mum was visiting relatives, removing Mysha’s nightie and engaging her in progressively sinister ‘secret games’, all Jay could say was: that never happened. This is not the type of case where appeals could be made for defence witnesses, or even where Jay could point to a specific date and provide an alibi to disprove Mysha’s account. When the younger daughter, Tamara, made near-identical allegations of acts committed against her, the problem only doubled. In such a case, attack is not just the best but the only form of defence.

  Which is where I came in. Being at this stage not sufficiently senior to be doing cases of this gravity on my own, I was instructed as a ‘junior’ advocate to support the ‘leading’ barrister, George. The division of labour was neat and crisp – George handled ‘the big picture’, namely strategy and the advocacy, while I, apparently, was ‘the details monkey’. The reason that the legal aid certificate was exceptionally extended to allow George the privilege of my companionship was due to the volume of unused material generated by the prosecution during the investigation, and which fell to be disclosed to the defence as potentially helpful to our cause. My role was to comb through the floor-to-ceiling boxes of mostly handwritten, yellowed 1980s/90s local authority records and dig out anything that might conceivably help us at trial.

  In historic sex cases, disclosure of local authority records is a necessary but messy component. The sad reality of such cases is that the families have often, for various reasons, previously come to the attention of local authority social services or children’s support services. Jay’s wife, Farah, had a long history of alcoholism, and the girls had spent their childhoods bounced back and forth between the family’s squalid, unkempt home and a sequence of foster carers. The history of Social Services’ involvement with the family stretched over fifteen years, the official records of which lay in local authority archives. One of the first
jobs for the CPS is to obtain such material and inspect it to see whether any of it either supports the prosecution case, or might reasonably assist the defence.

  Why are these records so important? For the prosecution, it’s because they might contain evidence of contemporaneous complaint. They might show, for example, that Mysha said something apparently innocuous to a social worker in 1996, which in the light of what is now alleged is highly significant. Or even, as is not uncommon, that she reported the allegations years ago but was ignored or disbelieved in accordance with the zeitgeist.

  For the defence, Social Services’ records can be helpful because they contain something that undermines the complainants’ credibility. The records might show that, at the time that they were supposedly being abused, they not only made no complaint, but were recorded by eagle-eyed social workers as behaving in a way entirely at odds to what one might ‘expect’ from an abused child. Or the records might point to a possible defence witness. Or there might be reports of the complainants having been compulsive liars. Or, the silver bullet for the defence, there might be reports of the children having made similar, provably false complaints in the past.

  Obtaining the material is not a straightforward process. Records might by now be incomplete or missing. If, as was the case with Jay, the family moved between a number of local authority areas, there will be paperwork buried in the administrative webs of several different public bodies. Local authorities may also have merged or restructured over time; children’s homes may have closed, or private agencies may have provided some of the services. Invariably, it will emerge from the records obtained that there exists yet further relevant material, such as education, medical or counselling records. Or documentation generated in the course of family court proceedings, which has its own complex legal dimension. The practicalities of gathering all relevant material can be fiendish. Once the prosecution has unwrapped what they believe to be the last Russian doll in the sequence, they could be staring at tens of thousands of pages of records. If they are diligent in their duties, they will carefully examine the full extent of the records, and be properly selective in what they disclose, dutifully applying the disclosure test – i.e. whether the material is reasonably capable of undermining the prosecution case or assisting the defence. In practice, one finds that the prosecution tends to either disclose far too little, leading to repetitive requests from the defence for documents which one can infer are clearly relevant, or disclose far too much, lazily dumping all manner of records, some of which might help the defence, but many of which are neutral or irrelevant. In theory, with material of this type, the judge should act as second filter to scrutinize the disclosure process. Sometimes, the less motivated, or those lacking in time, will just reach for the rubber stamp.

  Which was where we found ourselves with Jay. After a little early constipation in the disclosure process, we – or I – were now looking at a prosecution mega-dump. Every day, it seemed, a new box of unpaginated, barely legible documentation landed in chambers, to the evident dismay of the junior clerk who had to lug it up six flights of stairs to what George grandiosely referred to as ‘the War Room’. It was in reality a cupboard with a tiny desk now walled by seven-foot-high turrets of precariously stacked boxes, where I would while away every moment that I was not in court for the three months between my instruction and trial.

  The brief was simple: identify, mine and polish every atom that would help us show the jury that these two girls were lying fantasists. By painstakingly scrutinizing every recorded interaction between the children and the state over two decades, it was possible to piece together a chronology of individual incidents which, taken together, could be refracted in the courtroom as two lifetimes of dishonesty and unreliability.

  Every time one of the girls had told a fib at school, or regaled a foster carer with a tall tale, or denied being the one who pinched a biscuit from the tin, or in any other way acted in a manner that could be spun as evidence of untruthfulness, it went in my schedule. When it emerged that Mysha was admitted to hospital at age seventeen with a severe psychiatric disorder, every recorded instance of hallucination, confusion or inconsistency was carefully tabbed and entered into the chronology. On another occasion, a thirteen-year-old Tamara had climbed out of the bedroom window at her foster carer’s house to spend a night drinking with an older man. The missing child report containing the silly, false name she instinctively gave to the police when they found her, before quickly admitting all, was duly weaponized. No mis-step or human frailty was too small or too insignificant. And there was a lot. Not all of this would ultimately go before the jury – the judge has to be satisfied that ‘bad character’ evidence meets the statutory tests – but much of it did.

  There was dynamite lurking within the records, too. Each girl had made previous allegations of sexual abuse against other men, some of which were provably false. Mysha had told a primary school teacher about a fictional neighbour who she said had touched her. Tamara had made repeated false complaints of violence against her foster carers. Aged thirteen, she told a school nurse that she was having sex with a nineteen-year-old, and then denied it, and then repeated it to other friends. She had faked a pregnancy, and then a miscarriage.

  There are two interpretations, of course. One is that these were two untrustworthy fantastists, habitual liars from a young age who would lie to get their own way, or for attention, unable to see or care about the consequences for others, and who had carried their propensity for untruthfulness through childhood, adolescence and beyond. The second is that they were damaged, abused children. All children tell fibs about taking biscuits. And blame things on their siblings. And lie about going out when they’re teenagers. If children are horrifically and gruesomely abused by their father from a young age, they can break. They can act out for attention, send out flares, lose their sense of self and their grip on the reality of their nightmare. Each and every instance of their deviant or disordered behaviour might be traced back to that original, unspeakable, ultimate breach of trust. Every disprovable claim made against other men becomes, under this light, a cipher for what was being done to that little girl by her dad.

  But the first is the tapestry that you weave when defending. That is the essence of adversarialism. Each side has its ‘case theory’. Ours was that Jay was a good dad doing his level best with a drunk wife and two demonical, lying, fucked-up kids. And every strand of evidence has to be twisted and threaded so as to fit in with that theory. You shine a fog light on each tiny imperfection in the opponent’s case, and carefully deflect any weakness in your own. For evidence which contradicts your case theory, you have two options: destroy it in cross-examination, or try, lawfully, to hide it from the jury.

  Cross-examination

  The true purpose of cross-examination, it is suggested in Archbold, the leading criminal practitioner text, is ‘to elicit answers to matters of fact’.1 I would respectfully suggest that this is only half the story: the main purpose is to cause the witness to say what you, the advocate, want them to say. And, in so doing, to improve your client’s case. Where your case is that this particular witness is a lying hound, cross-examination serves a further utility: to destroy that person’s credibility.

  The order of witness examination goes like so. The party calling the witness will conduct the examination-in-chief, asking open questions designed to elicit all the relevant information contained in the witness statement. No leading questions are allowed at this stage. No, ‘It’s correct that this defendant robbed you, isn’t it? [WINK WINK]’ is permitted. No one in an English court is going to actually say the word ‘objection’, but your opponent will stand up with a concerned, furrowed frown and calmly say, ‘Your Honour . . .’, prompting an immediate judicial reprimand for your breach of protocol.

  Cross-examination, by contrast, is the art of the closed, leading question. While I do not hold myself up as an authority on the art, usually blustering my way through trials while gawping enviously at the sk
ills of my opponent, I’m familiar with the theory. And the exercise is not about extracting truth, or assisting the jury in having as much information as possible before them. It is about leading the witness to the answer that you think you can manipulate them into giving.

  The tactics are drilled into you at law school. Keep questions short and closed. Give the witness minimal room for manoeuvre or free-form speech. You want a yes or no answer. Don’t ask a question if you don’t already know what answer you’re going to get. The theoretically perfect cross-examination is a series of short questions, the final of which forces the witness to give only one answer – the answer you, the advocate, desire.

  Undermining the credibility of a witness is rarely difficult. Trials are held many months, sometimes years or decades, after the event. They will also take place at least several months after the witness has given their first account to the police in the form of their witness statement. The witness statement is a delightful tool for chipping away at a witness’ credibility. It does not stand by itself as evidence, as we insist in criminal trials on oral evidence; a witness can refresh their memory from their statement, but all their evidence must be given live. If a witness gives an answer in evidence that differs in any way from something said in their witness statement, that right there is your first easy example of how defective this witness has proved herself to be. If the witness, confronted by the smirking advocate brandishing her contrary statement, immediately corrects her evidence to fit with the statement, she’s making it up as she goes along. If she suggests that the police officer composing the statement must have made an error (as the police occasionally do), the witness is theatrically guided to their signature on each page of her statement, while the tutting advocate asks, wide-eyed and pious, what else in her signed witness statement the witness didn’t bother to check for accuracy.