The Secret Barrister: Stories of the Law and How It’s Broken – a review by Mark George QC

1 May 2018

Last summer I read a brilliant book entitled “Your Life in My Hands” by Dr Rachel Clarke.  It is a passionate defence of all that we love about the NHS as well as an attack on what the present government has done to the NHS and exposes the way in which the health service has been run-down to the point where there is now an existential crisis. The more I read the more I thought that this was exactly what the criminal Bar needed to try to educate the public as to what it is we do, what happens during the course of a criminal case, and why we should all be concerned that the entire criminal justice system is in such a crisis that if steps are not taken very soon to rectify it the system will simply collapse. Little did I know that the very book was even then being written.

Lawyers, like many professionals, have developed a language of their own which can be off-putting to members of the public trying to understand what is going on. It is one of the many achievements of the Secret Barrister to have written a book which explains the problems and why we are facing disaster in clear and straightforward language that should make this important book easily accessible and comprehensible to the general public.

After a brief introduction to the history of the English legal system, whose origins lies deep in the past, the reader will be enlightened as to the second-class nature of justice in the Magistrates’ Court, which is explained in detail. The very thought of being tried there is terrifying. Rank amateurs, still badly lacking in diversity, with little training and an inbuilt bias in favour of the evidence of police officers try 94% of all criminal cases. This isn’t justice however summary it might be. Meanwhile defence lawyers are routinely insulted by endless Ministry of Justice (MoJ) “initiatives” designed to speed things up even more than they already are, which simply means more mistakes get made.

The implication of such initiatives is that delay is all the fault of defence lawyers rather than a good illustration of what happens when the prosecuting authority is stripped of a third of its staff and a quarter of its budget in just a few years. And if you think this is as bad as it gets, well it isn’t. The senior judges have in mind to make things worse by reducing the right to jury trial, doubling magistrates’ sentencing powers and then, if you please, restricting rights of appeal. In short, justice in the Magistrates’ Court isn’t justice in the sense that any of us would understand. Justice has been reduced to a tick box exercise of getting cases marshalled and dispatched through the sausage factory.

But as the reader will find out things are little better in the Crown Court. There is more than an air of despair as the author explains why the courts system failed to protect Amy from her abusive partner because the police seemingly could not be bothered to do the most basic work such as taking a witness statement and obtaining her medical records. And it isn’t only complainants who suffer. The case of Warren Blackwell, imprisoned on the word of a fantasist for an offence he was simply innocent of is enough to make your blood boil.

Of course disasters of this kind are nothing new as the cases of the Birmingham Six, Guildford Four and many others can attest. But a system that has always had it in it to get things badly wrong has been transformed into one where it is increasingly difficult to get things right by the endless series of cuts to staff, courtrooms, the CPS, the availability of legal aid, and the rates of pay to those lawyers still undertaking the most badly paid legal work in this country.

This is a tale of courts full of the latest technology standing empty because the MoJ won’t pay for enough judges to run them so court case lists get longer and all parties face interminable delays. Meanwhile minsters who don’t even know how courts run roll out the latest initiative claiming to ‘put victims first’ when in truth ministers couldn’t care less.

We have a system in which CPS statistics are more important than justice so cases which should never have been brought in the first place and which ought thereafter to have been dropped proceed to trial, wasting time and resources when there is no prospect of a conviction. We have a system in which early guilty pleas are more important than genuine guilty pleas because dim witted judges who ought to know better mouth the platitude ‘your client knows whether he did it’, when any first year law student will tell you that was hardly the test of legal guilt. That the British justice system was ever really the envy of the world may be open to doubt. What is not in doubt is that it has become a laughing stock.

In 2015 Justice Minster Jonathan Djanogly, claimed that England and Wales had the most generous legal aid system in the world. In doing so he showed himself to be either spectacularly ignorant of the facts and therefore unfit for the job or a liar, but either way it helped the government to justify the latest round of cuts and get their friends in the press to blame greedy fat cat lawyers. Except that it is those cuts that in the end have helped to bring us to the current situation where good lawyers have given up the uneven fight and left for better paid less stressful work. At the same time all the progress toward greater diversity in the legal profession is threatened as students from less well-off backgrounds are put off from entering this part of the profession and women barristers looking to return to practice after starting a family find they have to pay more in nursery fess than they can earn in a day in court.

Those you might think ought to speak up choose instead to remain silent. When a series of cases collapsed around Christmas and the New Year due to failures on the part of the prosecution to make proper disclosure of unused material the soon to retire DPP could have spoken out on behalf of her staff and asked the embarrassing but important question of how exactly ministers expected her department to deliver a proper service after suffering such deep cuts.  But she remained silent and shortly will swan off to a well-paid job at a top city firm of solicitors. As for the Attorney-General, he ran off to Parliament to assure members that the collapse of these cases was nothing to do with government cuts. Who then will speak up for justice and our crumbling system?

You might think the criminal justice system is nothing to do with you. But unless you can be sure you won’t ever appear as a witness, or a juror or as a complainant or even as a person charged with a criminal offence then the criminal justice system should matter to you. This book will help you understand how it should work, why it isn’t working and why you should be very concerned at this state of affairs. The next Liam Allen, Oliver Mears or Samson Makele could be your son or nephew. This book will also help you to understand if in a few months time you see groups of barristers and solicitors standing outside various courts demonstrating in an attempt to bring these concerns to the attention of government ministers who are currently in denial about the crisis in the criminal justice system.

Mark George QC is barrister at and head of Garden Court North Chambers.