The Secret Barrister
Page 34
It is only ripped off, and the weeping sores exposed, at moments we dare not dream of. We don’t want to think about being a witness to our husband’s stabbing. Or supporting our wife through her rapist’s trial. Or receiving the phone call reporting that our straight-A son’s exam celebrations got a bit lairy and ended in him taking his mate’s dad’s Jag out for a spin, wrapping it round a lamp post and killing his three passengers. Or our grandfather being accused of sexually abusing young boys as a Scout leader in the 1950s. Such things don’t happen to people like us. The criminal courts are not the place for people like us. Legal aid isn’t something that is ever going to affect people like us.
But such things do. The criminal courts are. Legal aid is. There is comfort in the popular tableau of criminal courts as a revolving door of society’s most unlovely, and the statistics do not lie; most offences are committed by established criminals. Much of my professional life is spent flipping through conviction records of defendants with a lengthier acquaintanceship with the courts than I will probably ever accrue. And some of these will be nasty lags trying to game the system, and the thought of public money that could be diverted towards schools or hospitals being spent on proving their obvious guilt is instinctively galling.
To focus on this, though, is to fall twice over into the rhetorical trap of those who have brought the criminal justice system to its knees. Firstly, the fallacy demands that we ignore the many people – around 137,000 in 2016 – who each year enter the criminal justice system having never been in trouble before.19 Some of these will be rum coves for whom this marks the first rung on a career ladder leading to exponentially more serious criminality and correspondingly longer prison sentences. Many, however, will be good, imperfect people – our family, friends, neighbours and workmates – who have made a mistake. People like us. Forgetting this is to forget our roots; our common human interest in a system designed not as a production line for damning the irretrievable, but as a means by which we all deal with each other, fairly, justly and humanely, when one of us is accused of falling short.
Secondly, it is that word – ‘accused’ – that we are also encouraged to overlook. Many first-time entrants to the system will be innocent and will emerge from the other side with their reputation intact. Also blameless will be some of those aforementioned Obviously Guilty Lags, who have been wrongly identified, assumed guilty by association or, in the worst cases, fitted up by police officers taking a shortcut by pinning it on the usual suspects. And their wrongful conviction matters not just as a point of principle, but, if the case has to be made in less woolly terms, of practicality. You do not want the police nabbing just a burglar when your home is ransacked. The common play of burgling a house, waiting for the contents to be replaced and then going back for seconds, means you want the police to get the right one.
That we are all equally dependent on working justice, even if we do not envisage ever having to directly engage it, is the message that I fear we have lost somewhere along the way. We have allowed the dehumanization and othering of ‘criminals’ to psychologically divorce us from something we in fact own. We don’t grudgingly fixate on the cost to the NHS of disease or injury sustained through lifestyle choice; we instead apply an empathetic, or at least pragmatic, There But for the Grace of God. We want better treatment and more resources for people we don’t know, however unpleasant or undeserving they may be, for that very reason. Any health secretary venturing that having ‘one of the most generous health systems in the world’ was a self-evident justification for slashing the budget year-on-year, closing hospitals and removing certain types of people from free healthcare altogether, would not survive the day. The pain of others, we would instinctively recognize, is our own.
My naive, hopeless hope is that we might one day reimagine functioning, accessible criminal justice as a comparably vital policy of universal insurance. That somehow, from somewhere, we will enjoy a collective cognitive shift, in which we start viewing criminal justice, the courts and legal aid as not just for bad people rightly accused, but good people wrongly accused, bad people wrongly accused, good people rightly accused, and everyone in between. Dreaming the improbable, it might be that in such a utopia we contemplate diverting political attention and public funds towards the criminal justice system, with the unabashed intention of improving something the first principles of which we claim to proudly hold central to our national identity. Maybe we could find ourselves even growing to love it.
We should. For all that the preceding pages might reasonably be interpreted as a counsel of despair, there is much that is fundamentally good about our justice system. The underlying principles, accidental and incoherent though their evolution may have been, have been exported around the globe for good reason: the presumption of innocence and burden of proof, the right to a fair trial, the right to independent legal representation, equality of arms, an independent judiciary, non-partisan tribunals of fact and the other fiercely debated, non-exhaustive aspects of the rule of law on which our present settlement is premised, all stand as self-evidently necessary to our instinctual conceptions of justice. And our loyalty to those principles is often absolute, in theory if not in execution.
And there are the people. The brilliant, magnificent people. The police officers risking their lives to protect those of us who snipe light years from the front line; the CPS prosecutors and caseworkers persevering in the face of critical under-resourcing and valiantly pushing those rocks up those hills; the defence solicitors trekking to police stations at 11 p.m., and then again at 4 a.m., and then to court at 9 a.m., and then the office at 5 p.m., and home at 10 p.m. to start the cycle again in the thankless service of society’s voiceless; the judges and magistrates, each day carrying the burden of taking instantaneous life-changing decisions in the full glare of the public; the forgotten, vital court staff chaperoning the wobbling mine train along the rickety rails; the probation staff and prison officers doing their best to save the unsaveable and in so doing keeping us all safer as we slumber; I dare say even some of the barristers deserve a mention. All of these people, and many more I have omitted to list, each morning step through the crumbling portico and onto the wastelands to toil, under intolerable restrictions to no clamour or acclaim, usually far beyond their obligated hours, to preserve an edifice of a justice system. They do so with an indefatigability, gallows humour and unremitting commitment to public service that makes my job, for all its many frustrations, a privilege.
The building blocks are all there for something truly exceptional. And perhaps, it occurs to me, this is why it is so difficult to raise excitement. The superiority of the way we do criminal justice – not like those crazy Americans – is culturally ingrained. If people learn one thing about our justice system, it’s that it’s the Best in the World. Pushed to substantiate they may well falter and gabble something about Magna Carta, but the narrative at least is drummed home. Maybe these unexamined narratives lead to false assumptions, and a failure to contemplate the disconnect between what we tell ourselves about our legal system and our understanding of how it operates in practice.
Ultimately this takes us back to the distinction, drawn by William Gaddis at the chapter’s dawn, between law and justice. We have a legal system. Properly tended, cherished and resourced, faithful to our celebrated core principles, it is also a justice system. But the synchronicity is not guaranteed. If principles of justice are neglected, you are left muttering Gaddis’ opening line. A Frolic of His Own drew a bleak distinction between a self-obsessed, avaricious legal profession out for itself, and shared, neglected notions of justice. I have no standing to disagree with his taking fire at 1990s US litigation culture; I would in fact agree that the law, both in the US and in our country, has historically often found itself out of step with justice, the fault lying as frequently with those within the system – the lawyers and judges – as with the framework. But in 2018 England and Wales, I would suggest that the disconnect between criminal law and justice lies
elsewhere. It is not the enemy within, betraying our ideals of justice; instead we should beware the enemy outside. Today’s danger is not the actors but the director; the state moving the pieces and pulling the strings, in the haphazard choreography explored over these pages.
The end result, nevertheless, is the same. When we lose sight of justice, it unfastens and floats away, leaving us with a nominal legal system; but not a justice system.
Until we recognize and embrace this, it is hard to see how and from where the impetus will arise for anything to improve. The record will be stuck on repeat. The wrongful convictions, collapsing prosecutions, investigative failings, underfunded defences, abiding delays, repetitive adjournments, errors in disclosure and institutional insouciance will continue to be bemoaned in robing rooms; analysed in legal and academic echo chambers; ignored by those for whom the vagaries of fate have not yet led to the courtroom door; and suffered in silent darkness by those the system exists to protect.
In its own modest way, I hope that this book drags us a little further as we bend and stretch towards the light.
Notes
Introduction: My Opening Speech
1. For those uninitiated with this 1990s BBC treat, contestants, including an aggrieved Lionel Blair, would air their grievances in a mock courtroom chaired by ‘Judge’ Julian Clary. The ‘clerk’ was Captain Peacock from Are You Being Served? It was quite something.
2. Sarah F Brosnan, ‘Justice-and-fairness-related behaviours in nonhuman primates’, Proc Natl Acad Sci USA, 18 June 2013; 110 (Suppl 2): 10416–10423, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3690609/
3. House of Commons Public Accounts Committee, ‘Efficiency in the Criminal Justice System’, 23 May 2016, http://www.publications.parliament.uk/pa/cm201617/cmselect/cmpubacc/72/7202.htm
4. House of Commons Hansard, ‘Crown Prosecution Service: Funding’, 11 January 2017, vol 619, col 147 WH https://hansard.parliament.uk/Commons/2017-01-11/debates/3CCEE460-C6B8-44B5-A7C3-677947ECEA19/CrownProsecutionServiceFunding
5. R (Henderson) v Secretary of State for Justice [2015] EWHC 130 (Admin), http://www.bailii.org/ew/cases/EWHC/Admin/2015/130.html
1. Welcome to the Criminal Courtroom
1. United States v Rabinowitz, 339 US 56 (1950) at US 69.
2. Most of us spend our entire time at parties saying ‘that’s only in the American system actually’ because their crime dramas have been so culturally pervasive.
3. European Justice, ‘Rights of Defendants in Criminal Proceedings in Belgium’, https://e-justice.europa.eu/content_rights_of_defendants_in_criminal_proceedings_-169-be-en.do?member=1 [accessed 6 June 2017]
4. Human Rights Watch, ‘Saudi Arabia: Court orders eye to be gouged out’, 9 December 2005, https://www.hrw.org/news/2005/12/09/saudi-arabia-court-orders-eye-be-gouged-out
5. Peter O Nwankwo, Criminology and Criminal Justice Systems of the World: A comparative perspective, Trafford, 2011.
6. Ibid.
7. John Hostettler, A History of Criminal Justice in England and Wales, Waterside Press, 2009.
8. Although the introduction of the common law by Henry II introduced greater consistency, it was only in the nineteenth century that court precedents hardened into binding authorities in the sense understood by modern lawyers.
9. Geoffrey Rivlin, Understanding the Law, Oxford, 2000; Theodore FT Plucknett, A Concise History of the Common Law, Butterworth, 1956; Judy Hodgson (ed), The English Legal Heritage, Oyez Publishing, 1979, cited at https://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/
10. With the very rare exception of cases involving either exceedingly complex fraud or where a jury has been tampered with, in which instances the law provides for a judge alone to try the allegations.
11. People who have a defined ‘mental disorder’; people on bail for a criminal offence; people who have received a prison sentence in excess of five years; and people who, in the last ten years, have completed a prison sentence or a community order are not eligible. Judges can also discharge anyone deemed ‘not capable’ of acting as a juror; for example a person not able to speak English.
12. Administration of Justice (Miscellaneous Provisions) Act 1933.
13. ‘The Trial of William Penn and William Mead, at the Old Bailey, for a Tumultuous Assembly’ (1670) 6, Cobbett’s State Trials (1661–78: Charles II), col 951, at col 963.
14. Geoffrey Rivlin, Understanding the Law, Oxford, 2000; Theodore FT Plucknett, A Concise History of the Common Law, Butterworth, 1956; Judy Hodgson (ed), The English Legal Heritage, Oyez Publishing, 1979, cited at https://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary
15. Hostettler, op. cit., p.127.
16. Quoted in R v Connor & Others [2004] UKHL 2, per Lord Steyn at [7].
17. R v Ghosh [1982] QB 1053. With exquisite timing, as this book was going to print the Supreme Court gave a ruling in a non-criminal case which appeared to overrule Ghosh and redefine dishonesty. Academics are split on whether this has an immediate impact on the criminal law, but it is likely that this will be addressed by the Court of Appeal (Criminal Division) soon. (Ivey v Genting Casinos (UK) [2017] UKSC 67.)
18. It was not ever thus, however; prior to 1898, the accused was only allowed to give an unsworn statement in his defence, putting him at something of a disadvantage.
19. ‘The History of the CPS’, http://webarchive.nationalarchives.gov.uk/20070205205701/http:/www.cps.gov.uk/about/history.html
20. See the Royal Commission on Criminal Procedure (Philips Commission) 1978, http://discovery.nationalarchives.gov.uk/details/r/C3028
21. Some barristers are qualified to undertake ‘public access’ work, where members of the public can directly instruct a barrister without going through a solicitor, but this is very rare in the criminal context.
22. See John H Langbein, The Origins of Adversary Criminal Trial, Oxford University Press, 2005.
23. The Statute of Westminster I, 1275.
24. Woolmington v DPP [1935] AC 462.
25. Natwest Professional Trainee Loan Scheme, Illustrative Example for loan of £20,000 at fixed rate APR 8.90 per cent, http://www.natwest.com/content/personal/loans/professional/downloads/AppForm_college_of_law.pdf [accessed 17 June 2017]
26. In practice, some of these twelve ‘qualifying sessions’ can be met by attending courses, lectures and residential weekends at the Inns of Court. And the era of compulsory dining is under threat from proposed reforms. See ‘BSB training plans could curb role of Inns – including compulsory dinners – and end 12-month term for pupillages’, Legal Futures, 4 October 2017, https://www.legalfutures.co.uk/latest-news/bsb-training-plans-curb-role-inns-including-compulsory-dinners-end-12-month-term-pupillages
27. For greater discussion of the scope of the Rule of Law than space here allows, see AV Dicey, Introduction to the Study of the Law of the Constitution, 8th ed, Macmillan, 1915; Thomas Bingham, The Rule of Law, Penguin, 2010.
28. ‘A History of the Judiciary’, https://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/
2. The Wild West: The Magistrates’ Court
1. Cited in A Gifford, Where’s the justice? A Manifesto of Law Reform, Penguin, 1985.
2. Save for the very rare occasions where a ‘voluntary bill of indictment’ is granted by the High Court, which allows proceedings to begin in the Crown Court. This is exceedingly rare, but I include it in the endnotes to stave off pedants.
3. In 2016, 1,456,177 defendants were proceeded against at magistrates’ courts. 99,952 were ultimately convicted, acquitted or sentenced at a Crown Court. Ministry of Justice, ‘Cri
minal Justice System Statistics Quarterly, England and Wales, 2016’ (final), figure 1.1, 18 May 2017, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/614414/criminal-justice-statistics-quarterly-december-2016.pdf
4. As of April 2016. See House of Commons Justice Committee, ‘The role of the magistracy’, 17 October 2016, https://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/165/16502.htm §1.1.
5. Again, there are certain exceptions where there are related and more serious offences which are to be tried in the Crown Court, and some summary offences can be tried in front of a jury alongside those. Section 40 of the Criminal Justice Act 1988.
6. For adults, at least. The Youth Court has the power to hear ‘indicatable only’ cases involving under-eighteens.
7. Roughly 94 per cent remain in the magistrates’ courts, around 5 per cent plead guilty or have their case dropped at the Crown Court and the remaining 1 per cent maintain their not guilty plea and have a jury trial.
8. Except in the case of magistrates sitting at the City of London Magistrates’ Court, who wear fur-trimmed gowns.
9. National Audit Office, ‘Efficiency in the criminal justice system’, March 2016, p.10, https://www.nao.org.uk/wp-content/uploads/2016/03/Efficiency-in-the-criminal-justice-system.pdf
10. Including formal Criminal Procedure Rules and initiatives such as ‘Stop Delaying Justice’ and ‘Transforming Summary Justice’.
11. Bartle, ‘Historical origins of the stipendiary magistrate’ (1995), 159 JPN 126.
12. Cited in P Derbyshire, ‘For the new Lord Chancellor – some causes for concern about magistrates’, Criminal Law Review (1997), Dec, pp.861–74.