The Secret Barrister summary

In England and Wales, different types of crimes and disputes have different courts. This is the case in many places around the world, but in England, the current division of courts goes all the way back to 1195, when Richard I decided to give local communities their own Justice of the Peace (JP), so they could tend to their own small-time offenders such as rioters and fraudsters.

Over the centuries that followed, these JPs gained a bit more authority as their purview grew to include petty crimes such as fine violations and jury trials involving misdemeanors and more complex crimes like larceny. These local JPs were also known as magistrates. For a long time, it wasn’t unusual for a magistrate to hold a trial in his living room as these officials were local men who volunteered for the job and received no formalized training or education.

There’s an ongoing legislative push to process criminal cases as quickly and cheaply as possible. There’s a general policy of “stack ‘em high, sell ‘em cheap,” which is the result of cutting costs and forcing the people working in the criminal justice system to do more with less.

For example, since 2009, the CPS budget has been cut by 27 percent, and over the past eight years around a third of the staff has been let go. There have been suggestions that digitization of records and using email to move files would require less money and resources.

Ultimately, the criminal justice system was designed to act in the public’s interest. Of course, this means prosecuting people who’ve broken the law, but it also means protecting people from being falsely convicted of crimes they didn’t commit. And this is where the defense comes in.

Popular culture likes to paint defense lawyers as dubious characters willing to lie through their teeth to get a not-guilty verdict. As far as barristers go, this is far from the case. Barristers must follow strict laws against purposefully lying, and in the author’s experience, no one wants to break those rules or knowingly help a guilty defendant go free.

Few defense barristers will enjoy cross-examining a witness who is testifying that someone sexually assaulted or abused them. Yet that is an all-too-common feature of a criminal trial conducted in an accusatorial fashion, as in England and Wales. In fact, the accusatorial process practically demands that the victim relive their experience on the witness stand, and then have their story picked at by the defense.

When the author was given the case of defending Jay, a man accused of repeatedly raping his children throughout their lives, there was a sense of having to face an imperfect aspect of the accusatorial process: trying to discredit witnesses. Though Jay never admitted to any wrongdoing, something about his mannerisms, like the way he dispassionately declared his innocence, while his children were so passionate in their claims against him, made the author doubt that innocence. It also made the author wonder if it was really in the public’s interest to go through the psychiatric history of Jay’s children to find evidence that might cast doubt on their assertions?

There may be reasons why the unfussy pursuit of truth at the core of the inquisitorial process may sound more appealing. However, this process relies heavily on the evidence presented by the police or the state, and we needn’t look hard to see that this evidence is often far from perfect or impartial.

In 2017, a joint report led by Chief Inspector Kevin McGinty looked at the quality of cases being prepared by the police and CPS. Twenty-two percent were found to be “wholly inadequate,” 33 percent were found to be “poor,” and over half had no apparent suggestions as to which evidence should be shared with the defense.

When a guilty verdict is reached, the process isn’t necessarily over. Then it’s time for the sentencing portion of the trial. This is complicated as the guidelines for sentencing a convicted criminal are a massive and largely incomprehensible mess that takes up around 1,300 pages. In the words of Supreme Court judge Lord Phillips, “Hell is a fair description” of the sentencing framework.

So, maybe it isn’t too surprising to find out that sentencing in England and Wales isn’t always going according to plan. In a 2012 study, legal expert Robert Banks reviewed 262 cases and found that in 36 percent of them, the sentencing handed down in court was “unlawful” and should never have been given by the judge.