The Secret Barrister
Page 32
Our system operates so that unless you can prove to the highest legal standard that you are innocent, no miscarriage of justice will be acknowledged. It creates a legal fiction as to what constitutes a ‘miscarriage of justice’, entirely at odds with our common understanding of the term. This much was recognized as long ago as 1994, before the scheme was further tightened, when Master of the Rolls Lord Bingham said of an applicant:
He is entitled to be treated, for all purposes, as if he had never been convicted. Nor do I wish to suggest Mr. Bateman is not the victim of what the man in the street would regard as a miscarriage of justice. He has been imprisoned for three and a half years when he should not have been convicted or imprisoned at all . . . But that is not, in my judgment, the question. The question is whether the miscarriage of justice from which Mr. Bateman has suffered is one that has the characteristics which the Act lays down as a pre-condition of the statutory right to demand compensation.17
As a consequence, we now have a stratum of purgatory populated by the dispossessed ‘nearly innocent’, whom we agree are victims of miscarriages of justice as ‘the man on the street’ understands the term, but who are expected to lump the consequences of their wrongful convictions as the price to pay for membership of our enlightened democratic society. It is difficult not to see this as an admission that, notwithstanding the traditions by which we set so much stock, we still bend to the no-smoke-without-fire whispers of our worse natures. Rather than accept and admit official wrongdoing, we set unattainable standards for victims of miscarriages to meet, and, when they inevitably fail, can reassure ourselves deep, deep down that this person didn’t really suffer. There’s a shade of grey. The system got the right person, we just couldn’t prove it in court. The state did not fail. No injustice was caused. Move along please.
And this attitude, to me, strikes at the heart of the entire purpose of our criminal justice system. It uproots what we all understand by innocence and guilt, and erects artificial reconstructions of those terms for the sole purpose of saving the government money. The state is told that, where the conviction it has secured against one of us is so undermined that no conviction could possibly be based upon it, it need not say sorry. The deliberate ruination of entire lives, where the burden and standard of proof that we cherish so noisily has been fatally compromised, can be shrugged off as not even worthy of apology. And again, it is something the state has given itself the power to do without anyone in the general public, save for the unfortunate Victor Nealons of our society, becoming aware; the casual cheapening and silent degradation of our most basic dignities.
In October 2016, reborn as Secretary of State for Transport, Chris Grayling announced that he was introducing a new, more generous compensation scheme for passengers whose trains were delayed by fifteen minutes. It was only fair, he said, to ‘put passengers first’ and to ‘make sure that they receive due compensation’ for inconvenient events outside their control.18
12. My Closing Speech
‘Justice? – you get justice in the next world, in this world you have the law.’
William Gaddis, A Frolic of His Own (1994)
James had it all. He was a junior doctor, recently turned thirty-three and well on the way to exceeding the predictions of professional greatness that had hovered over him since medical school. He was married to Nikki, a thirty-two-year-old teacher, and having recently bought their first home in a green-flecked suburb outside the big city, the two were making imminent plans to fill its small rooms with a much yearned-for family.
For James’ thirty-third birthday, Nikki booked a spot at an achingly hipster cocktail bar, where they could enjoy some ostentatiously expensive gin concoctions before dinner. As Nikki nestled into their booth, James, clean-shaven and wearing his red-chequered birthday shirt, wandered towards the bar. Jostled by the throng of noisy bodies either side of him as he waited, he eventually washed up at the counter. The multi-pierced barman took James’ order, and set about mixing two sloe gin fizzes. Feeling a sharp nudge to his right, James noticed that a worse-for-wear customer had elbowed his way to the front, and had barged his hulking frame in front of two women patiently queueing next to James. As he paid for his drinks and thanked the barman, James pointed to the women to indicate that they were next in line to be served.
What followed, James could not properly describe even by the time of his trial. He knew that something was shouted as he walked away. He knew that he felt a shove from behind, and that as he dropped to his knees, cutting his hands on the glasses as they smashed, punches rained above him. As the brawl took hold and spread like wildfire, James tried to crawl away from the bar, intent on getting to Nikki to get her away to safety. Trampled by the stampede and assuming that she must have made it safely outside, he dragged himself to the exit.
As he stumbled into the rain, he saw Nikki standing by a lamp post and breathed a sigh of relief. He walked over through the flashing sirens, pressing his hands together to stem the bleeding, but before he could reach her, a voice rang out. ‘That’s him – the one in the red shirt.’
Those words formed the strapline for the prosecution case. A baffled James was arrested, handcuffed and taken away, only learning at the police station the reason for his detention: the pushy man at the bar – Richard – had been struck to the face repeatedly with a broken glass, and viciously attacked while on the floor. The injuries, it would later transpire, were horrific – loss of an eye, multiple facial fractures and bleeding to the brain resulting in permanent damage. And what was agreed by the prosecution witnesses was that the man responsible was wearing a distinctive red shirt. Low-quality CCTV from above the bar showed an unidentifiable male in a red shirt forcing a glass powerfully into Richard’s face, and kicking and stamping on his head repeatedly as he fell to the floor. James was positively identified by one patron as being ‘the guy in red’, although not by Richard, who was unable to recall the face of his attacker.
The prosecution case relied upon the fact that the CCTV from above the bar showed only one male in a red shirt at the bar at the time that it was agreed James was there. The cuts to James’ hands were further evidence, they said, that he had held the glass as it smashed into Richard’s face. James’ insistence of non-involvement, of crawling away as the violence unfurled, was dismissed as a desperate lie.
Notwithstanding the rather patchy evidence of identification, an inexperienced CPS prosecutor, struggling to apply the Full Code Test and conscious that Richard’s case was being championed by a local and vocal MP angry about the scourge of alcohol-fuelled violence, decided that there was a realistic prospect of conviction, and James was charged with inflicting grievous bodily harm with intent. His disposable household income being over the £37,500 threshold for Crown Court representation, he did not qualify for legal aid and was forced to seek private legal assistance. Private rates of hundreds of pounds per hour were beyond him – he and Nikki were far from wealthy in any meaningful sense – and so he was forced to shop around for a deal, eventually settling on one of the few local solicitors’ firms not forced to close by the crippling legal aid cuts. He stumbled across the glass-fronted offices of Keres & Co., whose private rates, although steep, were comparably affordable. ‘The work starts here,’ the pin-striped, lime-tied Mr Keres beamed at James as he signed the five-figure cheque for payment on account. But in truth the work stopped there. Minimal preparation was done by Keres, or by the ethanol-scented barrister instructed from a local chambers, favoured as he would tip Keres a tasty portion of his legal aid advocacy fees in exchange for briefs beyond his competence.
On the day of James’ first appearance at the magistrates’ court, he and Nikki got up at 6 a.m. to embark on the two-hour drive to his nearest combined court centre, the local magistrates’ courts all having been closed and sold off as part of Her Majesty’s Courts and Tribunals Service’s ‘estate optimization agenda’. They waited from 9.30 a.m. until 6 p.m. for James’ case to be called on and sent to the Crown Court.
By his first appearance at the Crown Court the next month – another all-day wait at court – the CPS had served no papers, but with a resigned sigh the judge fixed a date for trial and gave various directions that all present knew were likely to be missed.
The evidence eventually landed, six weeks late, but disclosure was something else altogether. Keres and the booze-hound barrister made little effort to chase the prosecution; meanwhile, at the undermanned CPS offices, the Schedule of Unused Material was left woefully incomplete and only a fraction of the disclosable material was given to the defence. In the absence of a defence team pressing the CPS, it somehow became accepted that the exercise must have been completed and that nothing relevant fell to be disclosed.
Had all relevant material been scheduled, reviewed and disclosed, the defence would have been alerted to several key items. CCTV seized from the other end of the bar showed, from a wider angle, the outline of a second male in a red shirt, crawling on the floor away from the fracas at the moment that the first red-shirted man was glassing Richard. A completed schedule would also have alerted the defence to the existence of two independent witnesses at the bar, each of whom described the culprit as having heavy designer stubble. These accounts were recorded by two attending police officers who never gave statements, and whose pocket notebooks were never scheduled as unused material. Analysis of the glass fragments found on Richard’s clothing, conducted but again not disclosed, demonstrated that the type of glass was consistent with one of the bar’s pint glasses; a different glass type to that used in the highball gin glasses that James was carrying. None of this emerged.
When the trial date rolled around, the family attended in their Sunday best and waited nervously on the wooden benches in the court lobby. The trial was floating, and, as predicted by the barrister at 9.30 a.m., it floated into the afternoon and into an adjournment eight months hence. Eight months came; the adjournment this time was because a witness was in Spain, having been given the wrong dates by the Witness Care Unit. At the third time of asking, two years after James’ initial arrest, the trial went ahead.
It would be easy to blame the lack of preparation by the half-cut defence barrister for the result, but the CCTV played well with the jury. ‘The guy in red’ could only be James, the prosecutor crowed, and based on the evidence before the court, it was difficult to disagree. The guilty verdict was met by a stunned silence, broken only by a shriek of despair from Nikki as she fled the courtroom.
James bowed his head while sentence was passed. With his family and friends listening, the judge told James, in words to be printed in every national newspaper: ‘This was an unprovoked, sustained and wicked attack with a weapon, which left an innocent member of the public with life-changing disabilities. Notwithstanding your character references, this is an appalling act of drunken violence which requires a deterrent sentence.’ Thirteen years’ imprisonment was severe but not appealable, the barrister told James in the cells afterwards. An application for leave to appeal against the conviction and sentence was lodged half-heartedly, knocked back by the Court of Appeal, renewed and dismissed.
The private legal fees were substantial. Sniffing blood, the CPS had also applied for their own five-figure costs, a sizeable chunk of which were awarded. Their would-be-family home had to be sold. Nikki, forced to move in with her parents, visited James as he was bounced from prison to prison around the country, but time was cruel. The family they had put on hold started to feel like it might never materialize. Some marriages survive prison. James and Nikki’s, after four years of trying, did not.
Five years into his sentence, James in desperation approached the Criminal Cases Review Commission. The curiosity of this mild-mannered doctor having allegedly committed such wanton violence piqued interest, and an investigation kicked into gear. After nine months, the full extent of the disclosure failings at trial were finally uncovered. It was clear: it could no longer be said with any certainty at all that James was the attacker. If anything, the fresh evidence suggested strongly that he was not.
The prosecution had to admit that the conviction was unsafe when the case was referred back to the Court of Appeal, and the Court agreed. The conviction was quashed.
Aged forty-two, James’ liberty and reputation were finally restored, six years after his conviction. The financial punishment, however, was ongoing. Dismissed – fairly, in law – for gross misconduct upon his imprisonment and struck off by the General Medical Council, he was forced to seek private legal help to restart his career. While he could claim back some of his legal fees, the Innocence Tax prevented full recovery of his six-figure bill. As for the notion of compensation for the six lost years spent wrongly locked in a cell, James’ application was rejected out of hand. The fresh evidence did not prove beyond reasonable doubt that you are innocent, the officious response informed James in terms. While your conviction may be unsafe, and while you may have suffered a miscarriage of justice as the man on the street would understand the term, the legal test is not satisfied.
You, James was told, are not guilty, but not quite innocent enough.
James’ story, unlike the cases in the preceding chapters, is not real. But it could be. James could be your parent, your grandparent, your spouse, your sibling, your best friend, your child. He could be you. Every twist of systemic injustice is one that we see played out in the lives of ordinary people every single day.
In isolation, or even paired, the failings might be overcome or disguised on the road to a just outcome, but when they are not, or where multiple flaws are compounded, and a miscarriage of justice occurs, the devastation is quantified in human lives. This is the risk posed to the cast list in each of the half-million criminal cases churned every year, and the loved ones of those involved, and their loved ones, and theirs; all in some way affected. Each of us is as reliant on a functioning system as the other. Each of us is vulnerable to the flaws.
Equally plainly, each of these flaws is consciously enabled. Each is either deliberately designed – such as the Innocence Tax, or the restriction of compensation for miscarriages of justice – or is the product of populist, tough-on-crime, anti-defendant posturing, or betrays warped spending priorities whereby politicians persuade voters that 1p off a pint of lager is a better investment than a working justice system.
And this book offers only a severely cropped snapshot. Problems in criminal justice spill all over the margins. There has not been space to consider the scandal of youth justice, viewed and funded as an afterthought to the adult criminal courts, wherein vulnerable children accused of the most serious violent and sexual offences are tried on the cheap by magistrates, and prosecuted and defended even more inexpensively by often inexperienced advocates treating the Youth Courts as a training ground for the Big League.1
The list goes on. The tearing up of local probation service trusts in 2014 has been the disaster that was predicted. The supervision of low- and medium-risk offenders in the community – those carrying out a court-mandated community order and those released from prison on licence – was contracted out to private ‘Community Rehabilitation Companies’ (CRCs) who were paid by results, leaving a financially depleted public rump (National Probation Service) to deal with the high-risk crims. There has followed a stream of reports criticizing the woeful performance of many CRCs, repeating recurring complaints from demoralized staff. Two thirds of released prisoners did not receive sufficient help from their CRC in relation to accommodation, employment or finances.2 Probation services at a CRC in north London were condemned for having ‘unmanageable caseloads, inexperienced officers, extremely poor oversight and a lack of senior management focus and control’, which rendered the public ‘exposed unduly to the risk of harm’.3 The Inspectorate of Probation even found that some CRCs were instructing staff not to take any action against offenders who breached their community orders, as under the ‘payment by results’ contract a proven breach would incur a financial penalty.4
Meanwhile at the N
ational Probation Service, inexperienced, inadequately trained staff are monitoring ever-increasing caseloads of high-risk offenders in the community. One employee reported that the target culture had reduced him from seeing his offenders weekly for an hour to holding appointments once a month for an average twenty minutes.5 These are the institutions we entrust to supervise and rehabilitate the most damaged and dangerous among us. At twenty fucking minutes once a month.
Finally, it would be remiss not to spare a brief mention for the plight of my own unloved species. The criminal Bar, loath though we may be to publicly trumpet it and indecorous a boast as it may sound, is an irreplaceable public resource. Put aside the pantomime dress and the hangover Latin; distilled to its core principles, a cadre of independent, self-employed, expert legal consultants and specialist advocates, available for instruction to either prosecute or defend, without fear or favour, is a national asset. But it is one which all signs indicate will not survive. Judges have perceived a plunge in the quality of criminal advocacy in recent years, and the criminal Bar is an ageing profession, with fewer young members than in the past.6 The reduction of legal aid fees is pointedly cited as a factor deterring the brightest graduates from entering publicly funded crime, and there is no doubt that, once a tenant, the miserly starting pay – £12,000 gross per year – forces many out of the job in the first five years. I have seen it. I recognize that this may look like the most unattractive special pleading in pinstripes, but the simple fact is that the same factors that squeeze good solicitors out of publicly funded crime pertain to barristers of today and of tomorrow. The old guard, who fattened themselves on overly generous pre-1990s legal aid, scorching the earth and public perceptions for those of us who followed, will die out in the next decade or two. Those who will emerge from Bar school to fill their places are likely to be mostly those with independent financial means to supplement the gruel, unhelpfully reinforcing class stereotypes at the Bar, or those unable to cut it in a more lucrative specialty. And I’ll repeat – if you are wrongly accused of a crime, you want a good barrister to defend you. If you are the victim of crime, you want a good barrister to prosecute it.