The Secret Barrister

Introduction

The criminal justice system is something most of us hope we'll never have to deal with personally. We enjoy courtroom dramas on TV and in books, but we'd rather not find ourselves caught up in the real thing. However, the reality is that many of us will encounter the legal system at some point in our lives, whether as a defendant, witness, or victim. Given this likelihood, it's important that we understand how the system actually works.

In "The Secret Barrister: Stories of the Law and How It's Broken," an anonymous barrister pulls back the curtain on England and Wales' criminal justice system. The author's goal is to reveal the everyday realities of how the system operates and highlight the many problems it faces. Far from the polished, efficient process we see in fiction, the real criminal justice system is plagued by budget cuts, lack of resources, and systemic issues that threaten the very principles of fairness and justice it's meant to uphold.

This book takes readers on an eye-opening journey through the various stages of the criminal justice process, from arrest to trial to sentencing. Along the way, the Secret Barrister exposes shocking flaws in the system and shares personal experiences that illustrate just how badly things can go wrong. While the focus is on England and Wales, many of the issues discussed are relevant to justice systems around the world.

The Basics of the English and Welsh Criminal Justice System

Before diving into the problems, it's helpful to understand the basic structure and traditions of the criminal justice system in England and Wales. Some elements may seem familiar from pop culture, while others might be surprising.

One of the most recognizable features is the attire worn in court. Barristers and judges still don wigs and gowns, a tradition dating back hundreds of years. While it may seem antiquated, this ceremonial dress is just one of many long-standing customs that persist in the English legal system.

The key players in a criminal trial include:

• The judge: Oversees proceedings and ensures fair treatment
• The jury: Decides on the verdict in more serious cases
• The defendant: The person accused of a crime
• Barristers: Lawyers who present cases in court
• Solicitors: Lawyers who work directly with clients and prepare cases

One interesting aspect of the English system is the distinction between barristers and solicitors. This division of labor has existed since the 14th century. Barristers are the courtroom advocates who present cases before judges and juries. Solicitors, on the other hand, work more behind the scenes - they meet with clients, gather evidence, and prepare the case materials that barristers will use in court.

Another key entity is the Crown Prosecution Service (CPS), established in 1985. Before the CPS, police were responsible for charging suspects and preparing cases for court. The CPS was created to improve consistency and efficiency in how criminal cases are handled across England and Wales. Now, every case goes through the CPS before reaching a barrister.

Interestingly, criminal barristers in England and Wales regularly switch between working for the prosecution and defense, sometimes even on the same day. While this may seem odd, the author argues it can actually make for better lawyers, as understanding both sides of the adversarial process provides valuable perspective.

The Problematic Magistrates' Courts

All criminal cases in England and Wales begin in the Magistrates' Courts. These local courts have a long history dating back to 1195, when King Richard I appointed Justices of the Peace to handle minor offenses in their communities. Over time, the authority of these local magistrates expanded to include more serious crimes.

Today, Magistrates' Courts still play a crucial role as the entry point for all criminal cases. They make important initial decisions like whether a defendant will receive bail while awaiting trial. However, several aspects of how these courts operate are deeply problematic:

1. Untrained volunteers as decision-makers: Shockingly, the magistrates who preside over these courts are still untrained volunteers from the local community. They have no special legal education or expertise. Yet they're tasked with making weighty decisions that can dramatically impact people's lives.

2. Life-altering choices based on limited information: Magistrates often have to decide whether to grant bail or remand someone to custody based on incomplete or inaccurate case files. Due to budget cuts and staffing shortages at the CPS, crucial information is frequently missing.

3. Quick deliberations on complex issues: Magistrates typically spend just a few minutes deliberating before making decisions that could result in someone losing their job, home, or family while awaiting trial.

4. Potential violations of human rights: Laws dating back centuries, as well as more recent human rights conventions, state that it's unlawful to imprison people based on accusations alone without adequate reasons. Yet the way bail decisions are made in Magistrates' Courts often comes perilously close to doing just that.

The author argues that having untrained volunteers decide whether to deprive someone of their liberty based on often faulty information, with minimal deliberation, is a recipe for injustice. While Magistrates' Courts may have made sense centuries ago in small communities, they seem woefully inadequate for the complexities of modern criminal justice.

The Impact of Budget Cuts on Justice

One of the most pressing issues facing the criminal justice system is a severe lack of funding and resources. There has been an ongoing push to process cases as quickly and cheaply as possible, leading to a "stack 'em high, sell 'em cheap" mentality that prioritizes speed and cost-cutting over thorough, careful administration of justice.

The Crown Prosecution Service has been hit particularly hard by budget cuts:

• Since 2009, the CPS budget has been slashed by 27%
• Over an 8-year period, about one-third of CPS staff were let go
• There were claims that digitization and email would reduce resource needs, but this hasn't panned out

The results of these cuts are stark and deeply concerning:

• 1 in 5 case files arrives to barristers with incorrect information about the charges filed
• 1 in 10 cases fails to recognize critical evidence like self-defense claims
• 1 in 6 cases is pushed through without any CPS lawyer reviewing it at all

Barristers often receive case files just hours before they're due to present in court, leaving little time to chase down missing evidence or resolve issues. This rush job approach means that sometimes, criminals end up walking free due to bungled paperwork or missing evidence.

The author shares a disturbing example of a domestic violence case where the victim, Amy, suffered severe injuries including a broken jaw and fractured eye socket. However, Amy's statement and medical records were missing from the case file. Despite the barrister's efforts to obtain this crucial evidence, bureaucratic incompetence meant it was never provided in time. As a result, Amy's abusive boyfriend was set free.

This case illustrates how budget cuts and mismanagement can lead to miscarriages of justice that put victims at risk and allow perpetrators to escape consequences. It's a stark reminder that an underfunded, overstretched justice system fails to protect the very people it's meant to serve.

The Crucial Role of Defense Counsel

While movies and TV shows often portray defense lawyers as sleazy characters willing to lie to get their clients off, the reality is quite different - at least for barristers. There are strict ethical rules against knowingly lying in court, and in the author's experience, criminal barristers take these seriously. No reputable defense barrister wants to help a guilty person escape justice.

However, there are some unscrupulous defense solicitors who give the profession a bad name. The author describes one particularly egregious example: a firm called Keres & Co. The head of this firm would offer his services to people who had just been arrested, collect legal aid fees, and then essentially disappear - never actually providing any meaningful assistance to his clients.

The author recounts a case involving a young man named Darius who was arrested after taking £5 from his father's wallet during an argument. Darius was represented by Keres, who never visited him in jail, never explained the charges he was facing, and never helped him obtain needed medication. Despite the author's efforts to prod Keres into action, weeks went by with no assistance for Darius.

While Keres' firm has since been shut down, there are still plenty of exploitative lawyers out there taking advantage of vulnerable defendants. This highlights the importance of having ethical, competent defense counsel available to all.

The issue of legal aid is also crucial. In England and Wales, legal aid is offered to those with a combined household disposable income of less than £37,500. This might sound generous, but consider that private defense lawyers can easily cost £100,000 to £300,000 for a serious case. Many people fall into a gap where they don't qualify for legal aid but also can't afford adequate private representation.

The consequences of inadequate defense representation can be severe. In 2016, 15% of people remanded to jail without bail were later acquitted. While it's hard to know exactly how many wrongful convictions occur, it's clear that making it harder to obtain a reliable defense increases the chances of innocent people being punished.

The author argues passionately that a robust defense is not about helping criminals get away with their crimes. Rather, it's a crucial safeguard to protect the innocent and ensure that justice is truly served. A fair trial requires that both sides be adequately represented. When budget cuts and systemic issues erode the quality of defense counsel, it puts the entire notion of justice at risk.

Comparing Accusatorial and Inquisitorial Systems

The English and Welsh criminal justice system uses an accusatorial approach, where two opposing sides (prosecution and defense) present their cases before a neutral judge and jury. This adversarial process has some significant drawbacks, particularly in sensitive cases like sexual assault trials.

One major issue is that victims often have to relive their traumatic experiences on the witness stand, only to then have their accounts picked apart during cross-examination. The author describes the discomfort of having to aggressively question assault victims as a defense barrister, even in cases where they personally doubted their client's innocence.

For example, the author recalls defending a man named Jay who was accused of repeatedly raping his children throughout their lives. While Jay maintained his innocence, something about his demeanor made the author skeptical. Yet the accusatorial process demanded that they try to discredit the passionate testimony of Jay's children, including digging into their psychiatric histories to cast doubt on their claims. The author questions whether this approach truly serves the interests of justice.

In contrast, many continental European countries like Germany and France use an inquisitorial system. Key differences include:

• The judge takes a more active role in investigating the facts, rather than just arbitrating between two opposing sides
• Lawyers play a less prominent role, with the judge reviewing all evidence collected by the state
• Victims can act as "subsidiary prosecutors," suggesting questions for the judge to ask witnesses
• There's no adversarial cross-examination or attempts to exclude damaging evidence
• The focus is on uncovering the truth rather than winning an argument

The inquisitorial approach has some apparent advantages:

• It's less traumatic for victims and witnesses
• There's less gamesmanship around suppressing or manipulating evidence
• The process feels more focused on finding the truth than scoring legal points

However, the inquisitorial system isn't without its own potential pitfalls. It relies heavily on the state being truly unbiased in its evidence gathering and presentation. As we'll see in the next section, that's not always a safe assumption to make.

The Need for Robust Defense in an Imperfect System

While the inquisitorial system may seem more straightforward in its pursuit of truth, it has one major weakness: it relies heavily on evidence presented by the police and state prosecutors. Unfortunately, this evidence is often far from perfect or impartial.

A 2017 report led by Chief Inspector Kevin McGinty examined the quality of cases prepared by police and the CPS. The findings were alarming:

• 22% of cases were deemed "wholly inadequate"
• 33% were found to be "poor"
• Over half had no apparent suggestions about which evidence should be shared with the defense

These statistics only cover honest mistakes and oversights. They don't account for cases where biased police officers might have falsified or misrepresented evidence. While outright corruption isn't the norm, it does happen, and it's why a vigorous examination by the defense is so crucial. At its best, a strong defense keeps the entire process honest.

The criminal justice system is not immune to political influence either. Powerful individuals sometimes escape prosecution because authorities fear the political consequences of pursuing them. This further underscores the need for checks and balances within the system.

That said, there may be lessons we can learn from the inquisitorial approach:

1. Reducing trauma for witnesses: Perhaps we could adopt the practice of taking a witness's first statement as their final testimony, rather than forcing them to recount traumatic events months or years later in court.

2. Providing reasons for verdicts: Currently, when a jury delivers a verdict, they don't explain their reasoning. This can make it hard for people to accept unfavorable outcomes. Offering explanations, as is done in the inquisitorial system, might increase transparency and public trust.

3. Focusing on truth-seeking: While maintaining strong safeguards against state overreach, we could potentially shift the emphasis more towards collaboratively uncovering the facts rather than treating trials as battles to be won.

The author argues that while wholesale adoption of an inquisitorial system might not be feasible or desirable, incorporating some of its principles could help address some of the current system's shortcomings. The key is finding a balance that maintains robust protections for the accused while also serving the interests of victims and society at large.

Issues with Sentencing and Prisons

Even after a guilty verdict is reached, the criminal justice system faces significant challenges in the sentencing phase and in the effectiveness of prisons as a deterrent to crime.

The sentencing guidelines in England and Wales have become incredibly complex and difficult to interpret. The full set of guidelines spans an astounding 1,300 pages. Even experienced legal professionals struggle to make sense of them. Supreme Court judge Lord Phillips described the sentencing framework as "Hell," which gives a sense of just how convoluted it has become.

This complexity leads to frequent errors in sentencing. A 2012 study by legal expert Robert Banks found that in 36% of the cases he reviewed, the sentences handed down were actually "unlawful" and should never have been given by the judge. This means that in more than one-third of cases, defendants received sentences that weren't in line with the law - a shocking statistic that undermines faith in the system's ability to deliver consistent justice.

Once individuals are sentenced to prison, new problems arise. In theory, prisons are supposed to serve two main purposes:

1. Act as a deterrent to crime
2. Provide rehabilitation to help offenders reintegrate into society

Unfortunately, the data suggests that prisons are failing on both fronts:

• 60% of those sentenced to less than a year in prison go on to commit another crime after release
• Among all released prisoners, 46% reoffend within a year

These high recidivism rates indicate that prison is neither effectively deterring crime nor successfully rehabilitating offenders. Instead, the prison system seems to be creating a revolving door, with many individuals cycling in and out of incarceration without addressing the root causes of their criminal behavior.

The author argues that part of the problem is the public's misconception about what prison is actually like. Many people, influenced by sensationalized media reports, believe that prisons offer cushy conditions and luxuries like satellite TV. The reality is far grimmer:

• Prisoners are often locked in their cells for 23 hours a day
• Violence is common
• Facilities are frequently infested with cockroaches and rats
• Inmates often have to eat meals next to open toilets

These harsh conditions may satisfy those who want punishment, but they do little to prepare offenders for successful reintegration into society. The lack of effective rehabilitation programs, combined with the trauma of incarceration, often leaves individuals worse off when they're released than when they went in.

The author suggests that addressing these issues requires a multi-pronged approach:

1. Simplifying and clarifying sentencing guidelines to reduce errors and inconsistencies
2. Investing in evidence-based rehabilitation programs within prisons
3. Improving prison conditions to be more humane and conducive to positive change
4. Exploring alternatives to incarceration for non-violent offenders, such as community service or restorative justice programs
5. Providing better support for individuals transitioning out of prison to reduce recidivism

By tackling these issues, the criminal justice system could potentially become more effective at both reducing crime and helping offenders become productive members of society.

The Need for Reform and Public Understanding

The author argues that despite the many problems facing the criminal justice system, there are relatively simple steps that could be taken to improve it and secure the funding and resources it desperately needs. However, these changes require public support and political will, both of which are currently lacking due to widespread misunderstandings about how the system actually works.

One major issue is the way the media and politicians often misrepresent the realities of the criminal justice system. Common misconceptions include:

1. Public funding goes to line the pockets of rich barristers
2. Criminals receive lavish free legal representation
3. Prisons are like holiday camps with amenities like satellite TV

These portrayals are far from the truth:

• Criminal barristers often earn as little as £9.28 to £18.95 per hour for their work
• Many defendants struggle to access adequate legal representation due to cuts in legal aid
• Prison conditions are typically harsh and dehumanizing, not comfortable or luxurious

The author contends that if the public had a more accurate understanding of how their tax money is used in the justice system - to keep the guilty from going free and the innocent from being wrongly convicted - there might be more support for proper funding and resources.

To achieve meaningful reform, several steps are needed:

1. Improved public education: There needs to be a concerted effort to inform the public about the realities of the criminal justice system, dispelling myths and highlighting the consequences of underfunding.

2. Media responsibility: Journalists should strive for more accurate and nuanced reporting on legal issues, avoiding sensationalism and providing context.

3. Political courage: Politicians need to be willing to advocate for evidence-based reforms, even if they're not immediately popular. This includes pushing back against simplistic "tough on crime" rhetoric that often leads to counterproductive policies.

4. Investment in prevention: Allocating more resources to addressing the root causes of crime (poverty, lack of education, mental health issues, etc.) could reduce the burden on the justice system in the long run.

5. Modernization efforts: While digitization alone isn't a cure-all, thoughtful implementation of technology could help streamline some processes and free up resources for more critical tasks.

6. Regular system audits: Independent reviews of various aspects of the justice system could help identify inefficiencies and areas for improvement.

7. Listening to practitioners: Lawyers, judges, and other professionals working within the system often have valuable insights into what's working and what isn't. Their voices should be central to reform efforts.

The author emphasizes that these changes are not just about abstract principles of justice, but have real-world implications for everyone. Any of us could potentially find ourselves caught up in the criminal justice system at some point in our lives, whether as a defendant, victim, or witness. Therefore, it's in everyone's interest to ensure the system functions as fairly and effectively as possible.

Conclusion

"The Secret Barrister" presents a sobering look at the state of criminal justice in England and Wales. Through a combination of personal anecdotes, statistical evidence, and clear explanations of complex legal concepts, the author paints a picture of a system in crisis. Budget cuts, political meddling, and public misunderstanding have all contributed to a situation where the fundamental principles of justice are under threat.

Key takeaways from the book include:

1. The criminal justice system is severely underfunded and understaffed, leading to numerous errors and inefficiencies.

2. Untrained volunteers are making crucial decisions about people's liberty in Magistrates' Courts.

3. The Crown Prosecution Service is struggling to prepare cases adequately, sometimes resulting in criminals going free due to administrative errors.

4. Access to competent legal representation is becoming increasingly difficult for many defendants.

5. The adversarial nature of the current system can be traumatic for victims and witnesses.

6. Prisons are failing to deter crime or rehabilitate offenders effectively.

7. Public misconceptions about the justice system make it difficult to garner support for necessary reforms.

Despite these challenges, the author maintains hope that positive change is possible. By shining a light on these issues and advocating for reform, "The Secret Barrister" aims to spark a public conversation about the importance of a well-functioning justice system.

The book serves as a call to action for citizens, policymakers, and legal professionals alike. It reminds us that a fair and effective criminal justice system is not just a lofty ideal, but a practical necessity for a well-functioning society. As the author points out, any one of us might need to rely on this system someday. Therefore, it's in everyone's interest to ensure it operates with integrity, fairness, and efficiency.

By fostering a more informed public discourse about criminal justice, challenging misconceptions, and pushing for evidence-based reforms, we can work towards a system that truly serves the interests of justice and protects the rights of all individuals. The path to improvement may be challenging, but as "The Secret Barrister" argues, it's a journey we must undertake for the sake of our collective wellbeing and the principles of justice we claim to uphold.