The Secret Barrister

by The Secret Barrister

  And of course, you want your case in front of a good judge. If the quality of criminal advocates and solicitors diminishes, the pool from which Crown Court Circuit Judges are plucked dwindles. And so too the pool of Circuit Judges from which High Court justices are picked, and Lord Justices of Appeal and eventually Supreme Court Justices. We are already feeling the pre-tremors as Crown Court and High Court vacancies lie unfilled due to, in the words of the chair of the Judicial Appointments Commission, ‘a serious shortfall of suitably qualified applicants’.7 The dip in competence won’t be immediate. It may not even be perceptible. But the effects will be felt. The senior judiciary are the people whose wisdom underpins our democracy. Their judgments, in the High Court, Court of Appeal and Supreme Court, have immediate, real-life effects, not only to the applicant or appellant in front of them but to the defendants, victims and public in millions of criminal cases in which precedent is applied. Our constitution relies upon the judges to ensure that government acts in accordance with laws passed by Parliament, and to intervene when the state overreaches to infringe our freedoms. A diminution in quality among the judiciary ultimately diminishes us all.

  The race-to-the-bottom in criminal justice thus stretches all the way to the top. Every component of the system is infiltrated to some degree by negligent, reckless or malicious maladministration. Of itself, this is hardly unique; professionals in every other area of public life could no doubt regale at similar length legitimate complaints of underfunding and managerial or ministerial incompetence. But where I fear law differs, to return to my opening theme, is in how seldom the failings are echoed outside our tiny professional bubble; and, on the rare occasions that a scandal in justice is dragged into the spotlight, in how fleetingly and superficially the scrutiny endures.

  When photographs are released of patients lying on trolleys in hospital corridors, the parlous finances of the NHS fill the front pages, double-spreads, op-eds and vox pops, as commissioning editors scramble to amplify the horror stories of real-life victims of our distorted political priorities, seeking the counsel of professionals stuck in the system. Working our way down the hierarchy of needs, near-comparable excitement is whipped up by crowded classrooms, overworked teachers, social care crises, immigration, transport strikes, welfare reform, pensions, low pay, the merits or demerits of Brexit and footballers’ exploits.

  Twenty thousand leagues under that we see the justice system. Occasionally we might all swoon on the temporary intoxication of just and righteous anger at a judge’s (usually misreported) comments when imposing an insufficiently heavy sentence on some unlovely villain, or by the decontextualized figures of legal aid expenditure, or, as in late 2017 and early 2018, when disclosure errors are unmasked in rape cases involving young, photogenic, middle-class defendants, but little else registers. Coverage of high-profile criminal trials will come and go without anyone pausing to notice the bodies of adjourned cases piling up in the court corridors, or the regular denial of justice to victims of domestic violence, or the indignities doled out to all – witnesses, defendants, jurors – who involuntarily encounter the system and are expected to bend to its vicious incompetence and caprice.

  In an age where repetitive bursts of spontaneous public outrage are key to feeding the twenty-four-hour news cycle, it feels like too much to ask that a few more drops be squeezed out for our pet cause. But it shouldn’t be. The public should be outraged. In every crumbling, decaying magistrates’ court and leaking Crown Court in the land, we see every day the law’s equivalent of untreated, neglected patients on hospital trolleys. And every day it is met by a wall of silence.

  It follows, inevitably, that if people are not aware of the problems, they cannot be expected to meaningfully contribute to proposed solutions. And herein greater dangers lie, for it is against this backdrop of apathy that far-reaching reforms, such as the Innocence Tax, can be presented as the answer to a misunderstood question and swiftly imposed to little opposition, their true intended effects only becoming apparent after the event.

  I don’t fool myself that universal engagement is possible, or even desirable – complex justice reform is not the stuff of prime-time TV or viral web sensations. But we must be able to do better than we presently are. It must be possible, given the human interest lying at the core of the system and flowing through the capillaries of every criminal case, to inspire a little more interest in what’s going wrong, and what is being proposed to solve it.

  So what is the blockage? Why is justice, its destruction and its purported patching-up of so little consequence to so many of us?

  For what it’s worth, I think the answer is threefold and interlinked.

  Public Legal Education

  Firstly, public legal education in our country has historically been appalling. Upon arriving at university as a law undergraduate in the early 2000s, I knew nothing about the justice system other than what I had erroneously gleaned from American TV. Everyday social interactions reveal that I am far from alone. A distressing number of my educated, professional friends genuinely understand my day to involve strutting around a courtroom barking ‘objection’ while spinning deliberate lies to a jury as a judge in a full-bottomed wig twirls his gavel. Despite having the phrase ‘guilty beyond reasonable doubt’ ingrained in our vocabularies from an early stage, the notion that I might be defending someone who is genuinely innocent rarely seems to be entertained in my conversations with non-lawyers. That there may be serious faults with criminal justice is not even countenanced, unless and until, of course, someone attends jury service, after which their reforming zeal exceeds even my own.

  The starting point is school education, and on this front, after many years of justice campaigners thwacking their drum, progress is finally being made. Citizenship classes on the national curriculum aim to teach young people about the fundamentals of the law and operation of the justice system. Legal representative bodies and charitable organizations work with many schools to bring practitioners directly into classrooms, encouraging participation in and developing critical thinking about the law. There is a visible emphasis on justice education that was entirely absent from my comprehensive education two decades ago.

  However, school-level education is only the first, and probably easiest, step. How to reach the wider public is the grander conundrum. While charities and the legal profession run a series of community outreach programmes, these will realistically touch only a tiny percentage of the population. Institutional and cultural change is needed.

  We could start with the law itself. Given that it is a fundamental requisite of the rule of law that a citizen be able to know their legal rights and obligations – ignorance of the law providing no defence to criminal liability – it is correspondingly a fundamental defect that our law is incomprehensible and inaccessible to swathes of the populace. Criminal law statutes, many of which hark back to the Victorian age, are often linguistically impenetrable. Non-stop political tinkering has left the general criminal law piecemeal and incoherent, dotted throughout thousands of statutes and statutory instruments. These are interpreted and refined by many more thousands of common law court precedents, in the judgments of which judges spool their unique form of English over scores of pages, never failing to use a hundred words where one would suffice. How a person charged with a simple criminal offence, such as theft, is expected to begin to negotiate their way around the laws of evidence and procedure that will govern their fate is a mystery.

  In 1998, Lord Bingham, then Lord Chief Justice, echoed nineteenth-century calls for a unified criminal code, drawing all criminal law and rules of procedure together in a single document, as exists in Canada. Twenty years later, there is no code; just even more mass-produced, disparate criminal legislation. Even if a unified criminal code is too much to ask – and it shouldn’t be – Parliament could at least help by decelerating the rate of legislating and by ensuring that all future statutes and instruments comply with the Office of Parliamentary Counsel’s ‘Good Law’
initiative, which strives to keep new legislation as straightforward and plainly expressed as possible, with a similar edict handed to judges when writing their judgments.

  And as a bare minimum, Parliament should ensure that the entirety of the updated law of the land is freely and immediately available to its constituents. The government’s free website www.legislation.gov.uk is hopelessly, dangerously out of date. Resources are simply not made available to update its contents as quickly as Parliament bashes out new law and amends existing statutes – so many pages are marked with a disclaimer that there are ‘outstanding changes not yet made by the editorial team’. At the time of writing, basic criminal statutes were years out of date, including those relating to matters as essential as the use of reasonable force in self-defence8 and driving disqualifications.9

  This has been an endemic problem not just for the public but for practitioners and the courts. In a Court of Appeal case in 2008, barristers had relied upon legislation downloaded from the official government website, only for it to be spotted as the court was ready to give judgment that the legislation was out of date and no longer applied. The court condemned as ‘lamentable’ the position that ‘there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic.’10 Over a decade on, up-to-date legislation remains out of reach of the public, including those tossed outside the scope of legal aid and forced to teach themselves.

  When it comes to case law, the position is no better. Traditionally, the state has made next to no effort at all to publicize judgments of the High Court or Court of Appeal. If, representing yourself on a fraud charge, you want to check what the Court of Appeal has said about the interpretation of ‘dishonesty’, for example, you are reliant either on expensive commercial providers, hard copies of the law reports in select libraries, or the charity of the British and Irish Legal Information Institute (BAILII). While BAILII does a wonderful job in bringing the online transcripts of many judgments to the public, its limited means prevent it from providing a comprehensive database of all judgments, and there is neither the search functionality of commercial legal databases, nor the commentary that appears in commercial law reports to assist the reader in quickly identifying the significance (or not) of the court decision. While the MoJ has now contracted BAILII to publish new judgments, BAILII is still dependent on charitable donations to meet its modest £160,000 per annum running costs, and there is no indication that the MoJ will furnish funds to ensure that all judgments, present and historic, are uploaded and made available to search with comparable ease to commercial providers. The MoJ is content to throw crumbs at a charity in lieu of funding meaningful public access to the law, an utterly embarrassing spectacle for a self-styled exporter of democracy and the rule of law.

  Political and Media Accuracy

  In 2016, an overdue All Party Parliamentary Group (APPG) on Public Legal Education was founded. One would hope that it identifies making the law available its top priority.

  This APPG might also wish to consider whether its colleagues in the House ought to be a little better-informed and more honest in their public pronouncements. Pontificating on criminal law presents an easy and often irresistible opportunity for lawmakers to register political credit, and many views expressed often appear tailored to tickling party political G-spots, rather than achieving any nobler aim.

  There will always be a backbencher ready to denounce the ‘outrageous’ headline legal aid expenditure on a grisly case, implying to constituents that the civic safeguard of determining guilt through a fair trial is just an unnecessary inconvenience dreamed up to fill the boots of lawyers. When a judge is crucified for passing a sentence, rarely does a politician have the courage to step into the firing line and point out that the full facts are unknown, and that most sentencing decisions are constrained by factors outside a judge’s control. Far better for the constituency newsletter to pick up its pitchfork and join the villagers on talk radio calling for judicial heads to roll. Strengthening the hand of the prosecution in the name of victims’ rights is a cause to which most will happily sign their name. Publicly campaigning for the rights of the accused is left to us, the legal aid leeches pushing to put more paedophiles on the beat.

  Dissembling about the law to gain support for amending it is a particularly prevalent, if hardly new, sin. We looked earlier at Harriet Harman MP’s proposal to outlaw all questioning and evidence of a complainant’s sexual history. To push this agenda, Ms Harman gave quotes to the press alleging that the present legal test for allowing sexual history evidence to be admitted11 was ‘based on the notion that there are two sorts of woman – a woman who is to be believed, who is virtuous, and a fallen woman who has had previous sexual activity and is not to be believed.’ Furthermore, she suggested that the law allowed such evidence to be admitted where ‘it is of no evidential value.’12

  Now if true, Ms Harman’s campaign would be entirely proper. But it wasn’t true. Not even a bit. Firstly, no evidence, sexual or otherwise, is ever admissible in a courtroom unless it is relevant and of ‘evidential value’, and sexual history evidence is only admissible where not admitting it might lead to the jury reaching an unsafe conclusion. Secondly, more egregiously, the entire purpose of the legislation Ms Harman was trying to change was to eliminate from courts the very ‘notion’ that she attacks. If it appears to a judge that the defence are applying to rely on sexual history evidence to attack a complainant’s credibility – for example to evoke the myth that ‘unchaste women’ are less worthy of belief – the statute expressly disallows it. If such things were indeed happening in criminal trials, the problem would have been that the existing law was not being applied properly by the courts. It was entirely fallacious to claim that the legislation permits such things, and therefore had to be changed. Harman’s Law was a straw man argument of jaw-dropping audacity, the known effect of which, as we saw earlier, would have been serious miscarriages of justice.

  Sometimes, our elected representatives will not even bother to lay the groundwork; they will simply run straight to the Commons with a private member’s bill drafted on a crisp packet seeking to vanquish whatever chimera excites them today. In March 2016, the ‘Send Them All Back Bill’ – yes, really – proposed by Philip Hollobone MP13 aimed to provide for automatic deportation for any foreign national convicted of a criminal offence for which a prison sentence was theoretically available. This includes, as one might imagine, a lot of criminal offences, most of which never see anyone imprisoned. The upshot was that the Bill, which fortunately foundered, would have automatically deported a foreign national who had been living blamelessly in the UK for twenty years and took their daughter out of school to go on holiday.14 Or someone who kissed their partner in a public toilet.15 Or took a can of beer onto a coach headed to a football match.16 Or tweeted an MP to tell him he was a flipping ninny for devising probably the world’s stupidest law.17

  How, we might reasonably ask, can the public be expected to have an accurate understanding of criminal law when their MPs go to such lengths to misunderstand, misrepresent and abuse it? Why would someone take the time to acquaint themselves with the principles of a legal system which, their representative assures them in the newspapers, is so plainly an ass?

  And the subject cannot pass without a brief mention of those newspapers, whose grasp of the law – from the nuance through to the basic facts – appears looser each day. The financial strangulation of local journalism and dedicated court reporters means that national news outlets frequently rely on incomplete press releases from the police, or partial accounts from the victims, or the mis-transcribed, unverified shorthand of a rushed cub reporter. Throw in a choice quote from a conveniently outraged MP, and you have a Twitter storm brewing before anyone has paused to double-check the premise of the controversy.

  Basic concepts – such as the distinction between ‘not guilty’ and ‘innocent’ –
are misunderstood or wrongly parsed. No sub-editor will intrude on their star columnist’s copy approval when she reacts to an acquittal in a sex case by illogically calling for the prosecution of the complainant as ‘a liar’. Sentencing remarks are rarely obtained in full before an out-of-context quotation is used to whack a judge. Occam’s razor is tossed out of the window, it being far easier to sensationally condemn on limited information than to find a legal expert to offer a calmer, more mundane explanation. ‘How was this person convicted/acquitted?’ readers will be urged to scream, without the outlet having meaningfully reported the evidence on which the jury based their decision.

  Against this backdrop, the decline of public understanding becomes clearer: if the law is inaccessible, and you depend for your information on unreliable sources, confusion and disengagement are unavoidable.

  It Will Never Be Me

  But thirdly, and finally, I fear that we struggle to inspire passion for criminal justice because of complacency. People do not feel invested because they don’t think the system directly affects them. Try as I might to elevate criminal justice alongside health and education, it’s a doomed mission. We know our GPs, and visit our hospitals, and see teaching standards reflected in our children’s school reports. With criminal justice, for most people most of the time, we’re talking in the abstract. We may feel empathy for battered victims on the news, tut loudly at the news that the Metropolitan Police are only solving 6 in 100 burglaries,18 and gobble Netflix documentaries on miscarriages of justice, but unless crime comes for you, kicks down your door and howls in your face, there will always be that thin layer of protective film between you and the system.