The Secret Barrister review – a justice system that is utterly broken
Many people think barristers strut around courtrooms barking ‘objection’. It is as wrong as assuming the UK justice system can survive recent cuts
A war crimes trial is stopped because the government has privatised the supply of interpreters, and the company selected cannot present any who are qualified. Two women, in all likelihood repeatedly raped by their father as children, are humiliated, dehumanised and ultimately disbelieved in proceedings in which they did not stand a chance. Thousands of people every year are convicted of crimes by magistrates whose qualification for dispensing justice is filling out a form, passing an interview, doing some charity work and being willing to sit for 13 days a year, with 18 hours’ worth of training. A man whose innocence should have been easily established in court is convicted of sexual assault because relevant evidence was not disclosed by the police. And meanwhile hundreds of hardworking, dedicated professionals are toiling in near impossible conditions.
This is a portrait of the criminal justice system in England and Wales today, as seen by the Secret Barrister, a criminal advocate who keeps his identity a closely guarded secret so that, he argues, he can be unrestrained in his critique. And unrestrained it is. The book is in part a guide to the system – a reminder of how few of us understand it – and in part a first-hand account of the personal dilemmas facing someone whose professional life is spent in and out of crown courts, police cells and prisons. It is above all a plea to rescue a justice system that has become utterly broken.
“Hell” is the word used by one supreme court judge. “Despair” is the experience of another in the court of appeal. Over the last near decade of austerity, justice has endured the deepest cuts of any departmental spending in the UK. Whole areas of law, including family, housing, immigration, debt and employment, have been taken outside the realm of publicly funded legal representation, leaving some of the most vulnerable people at the mercy of a system that is designed to be incomprehensible to even the most highly educated lay person.
Since 2010, 258 courts have shut across England and Wales. Rape trials have collapsed because police and prosecutors – all victims of the same, sabotaging cuts – have failed to disclose key evidence on which a fair and robust defence depended.
Some of this will come as no surprise. As a former criminal barrister myself, I expected this book to communicate how little we value the people and institutions so vital to our liberty. But what’s so powerful about The Secret Barrister is its ability to connect the dots – from changes to something as seemingly mundane as criminal procedure rules, to the state of prisons – revealing a picture that is more a commentary on society as a whole than it is on robing rooms full of horsehair wigs. In one of its most effective passages, the author points to platitudes about putting victims first, now such a staple of government rhetoric, contrasting them with the actual preference of political leaders, which is to offer taxpayers one penny off the price of beer rather than invest the equivalent amount into a system without which rights can never be properly upheld.
How did we let this happen? The author argues that the lack of legal education in the UK has led a distressing number of people to believe that the work of a barrister involves “strutting around a courtroom barking ‘Objection’ while spinning deliberate lies to a jury as a judge in a full-bottomed wig twirls his gavel”. (None of these things happen in the courts of England and Wales.)
But political bad faith is also part of the answer. For instance, the claim in 2010 of justice minister Jonathan Djanogly that our legal aid system is “the most generous in the world” – I remember his words well, as I was the Guardian legal affairs correspondent at the time. It sounded wrong to me then, but is now, as this book makes clear, “demonstrably, palpably false”.
The Secret Barrister writes compellingly about issues as varied as the treatment of vulnerable victims in rape trials and the state of sentencing law – no mean feat. His style is a blend of pomposity and self-deprecation that is remarkably evocative of many characters at the bar. In seeking new allies, he tends unashamedly to appeal to the middle-class, school run mother or the junior doctor – the subtext being “it’s not only those poor black people who can get caught up in this stuff”. On the question of ethnicity – the hugely disproportionate appearance made by people of colour in the system, and the historical failure of the bar itself to recruit and nurture ethnic minority talent – the book is largely silent.
But at its deepest level, it is not about the criminal justice system at all. The Secret Barrister writes about our idea of ourselves as a nation, an England still so confident in its principles and workings of democracy and justice. When in practice it is now less of a model for others to aspire to than a dire warning as to what can go wrong.
The Secret Barrister: Stories of the Law and How It’s Broken is published by Macmillan.
There are problems in every part of our criminal justice system. This, again from the Guardian, concerns the plight of solicitors in criminal practice:-
Criminal defence solicitors may be extinct in five years, says Law Society
Cuts to fees mean legal system faces cliff-edge in England and Wales, profession warns
Criminal defence solicitors may become extinct in parts of England and Wales within five years, due to cuts to legal fees that have rendered the profession unprofitable, according to the Law Society. The strongly worded warning comes as barristers have begun refusing to take on legal aid cases and are planning mass walk-outs in protest at what they say is sustained under-funding of criminal trials.
The suggestion that defendants could soon be left unrepresented highlights the crisis of confidence in the criminal courts as even the lord chief justice, Lord Burnett of Maldon, complained in a speech on Monday about under-investment. More than 80 barristers’ chambers have now publicly backed the boycott of new legal aid cases and a Vigil for Justice demonstration, organised by the Justice Alliance, is to be held outside the Ministry of Justice on Wednesday 18 April.
Data unveiled by the the Law Society, which represents solicitors across England and Wales, shows those specialising in criminal work are an increasingly ageing cohort, with few lawyers joining the relatively poorly paid branch of the profession.
“The justice system is facing a cliff-edge scenario; criminal duty solicitors are part of an increasingly ageing profession, and government cuts mean there are not enough young lawyers entering the field of criminal defence work,” said the Law Society president, Joe Egan. “If this trend continues, in five to 10 years’ time there could be insufficient criminal defence solicitors in many regions, leaving people in need of legal advice unable to access their rights.”
In Dorset, Somerset, Wiltshire, Worcestershire, West Wales and Mid Wales, more than 60% of criminal law solicitors are aged over 50, the survey found. “The data shows that criminal duty solicitors are becoming extinct,” the Law Society said. In Norfolk, Suffolk, Cornwall and Worcestershire there are no criminal law solicitors aged under 35 who are practising. A map shows the ageing profile of criminal solicitors across England and Wales. The Law Society is concerned these trends may have a “catastrophic effect” on the criminal justice system, as criminal defence solicitors retire and leave a shortage of experienced practitioners.
Everyone has the right to free legal advice if they’re questioned at a police station. Advice given in a police station is not means-tested but the number of duty solicitors available to give advice is declining. In Southport, for example, there are only two duty solicitors, in Kendal and Windermere only one and in Hinckley, Leicestershire, just three. From May 2014 to January 2018 the overall number of practising solicitors rose by 7.8%, but the proportion specialising in criminal work fell by 9.4%.
“Twenty years without any increases in fees, and a series of drastic cuts, have pushed the criminal justice system to the point where lawyers can no longer see a viable career doing this work,” Egan said. “If a suspect cannot access free advice and representation, a fair trial would be jeopardised, and cases would collapse.” The government, he said, should “conduct an economic review of the long-term viability of the criminal legal aid system and ... guarantee that criminal legal aid fees will rise with inflation”.
In separate comments about the need to modernise the justice system, Lord Burnett said: “We know that many of our buildings are in a poor state. There has been over a decade of under-investment in maintenance, amounting to neglect. I have seen for myself the leaking roofs, broken lifts, faltering or broken heating systems, overflowing lavatories and much more. At the heart of many of the things that have led to an attrition of judicial morale are questions of resources. For many things – pay and pensions, investment in the estate – we depend on government, and on those I shall continue to press our cause.”
The Ministry of Justice said: “We are clear that we have enough solicitors to fulfil criminal cases and will make sure we continue to do so. Last year, we spent £1.6bn on legal aid, just over a fifth of the Ministry of Justice’s budget. This ensured legal support was available to those who most needed it - and this will remain the case. We are already working closely with partners in the legal system to review the changes we made to legal aid in 2012, to make sure they are delivering the efficiency and fairness we need.”