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Name: The Secret Barrister
Rating: 4.2 (25 reviews)
Author: The Secret Barrister

The Secret Barrister

Stories of the Law and How It’s Broken

4.2 (25 ratings)

21 mins

Topics

European History UK Politics

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The Secret Barrister
Summary of 7 key ideas

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What’s in it for me? Discover the many problems facing England’s criminal justice system.

Our perceptions of criminal justice systems come from what we see on TV or read in legal thrillers. We enjoy the twists and turns of the plot as the hero gets bounced around the courts and thank our lucky stars that we’ll never have to defend ourselves against a criminal accusation or be cross-examined on the witness stand. But don’t be so sure.

There’s an extremely good chance that at some point in your life, you or someone you know will find themselves thrust into the machinery of your local legal system. So it stands to good reason that we should all know how that machinery works.

The Secret Barrister wants people to better understand the everyday realities of the criminal justice system in England and Wales, and it’s not a pretty picture. Due to politically influenced budget cuts and a general lack of knowledge about what really goes on, the system is suffering from a lack of money and resources. So much so, that the very principles of fairness and justice upon which the system was founded are under threat.

In these blinks, you’ll discover

how untrained volunteers ended up deciding who goes to jail;
why criminal case files are routinely incomplete or inaccurate;
why it’s wrong to think England’s criminal barristers are getting rich on taxpayer money.

The criminal justice system of England and Wales has its own rules and traditions.

Even if you didn’t grow up in the United Kingdom, you’ve probably seen a TV show or movie featuring a scene in a British courtroom. You may even have wondered, why are they wearing those peculiar wigs and gowns?

Like many aspects of the criminal justice system in England and Wales, the gowns and wigs are part of a long tradition going back hundreds of years. Before we get into some of the traditions that may need revising, let’s first look at what this system really entails.

As in justice systems in many other places, an English or Welsh criminal trial will involve a judge, a jury and the person accused of the crime. Then there are barristers and solicitors.

Since the fourteenth century, there’s been a distinction made in English courts between the courtroom-based lawyer who presents the prepared cases to the court – the barrister – and the solicitor, the lawyer who deals directly with the witnesses while advising both the barrister and the client. As we’ll see, there are good solicitors who advocate tirelessly on behalf of their clients, and exploitative solicitors who give lawyers a bad name.

Another important piece of the criminal justice puzzle is the Crown Prosecution Service, or CPS. This is a relatively new addition to the system, established in 1985 with the Prosecution of Offenses Act. Prior to that, the police were responsible for charging suspects with a crime, but in an effort to improve consistency and efficiency in filing charges and preparing cases across all of England and Wales, the CPS was created. Now, every case goes through the CPS machinery for preparation before landing in the hands of the barrister.

It’s worth noting that, unlike in some other countries, barristers who handle criminal cases, like the author, regularly bounce between serving for the defense and prosecution, sometimes within the same day. This may sound unusual, but in the author’s experience, doing so can make you a better, more well-rounded lawyer. After all, knowing first-hand how both sides of the adversarial process operate can only make you better at knowing what to expect before your case begins.

All criminal cases begin at the Magistrates’ Court, a place often rife with problems.

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.

Due to harmful budget cuts, the guilty can end up walking free.

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.

Some solicitors have given defense counsel a bad name, but they’re critical in keeping the innocent out of jail.

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.

The inquisitorial justice system has some advantages over the accusatorial.

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?

The inquisitorial process relies on the state being unbiased, which is why a thorough defense is needed.

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.

The guidelines for sentencing have become incomprehensible, and prisons are failing to be a deterrent to crime.

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.

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What is The Secret Barrister about?

The Secret Barrister (2019) takes a behind-the-scenes look at the often chaotic and frighteningly disorganized world of England and Wales’ criminal justice system. As revealed by an experienced criminal barrister, the current system is woefully underfunded and suffering from a lack of resources, yet is also under threat from proposed reforms that would impose further cuts. However, there are some reasonable ways for the system to improve.

Who should read The Secret Barrister?

Students of law and ethics
Fans of true crime
Advocates for prison reform

About the Author

The Secret Barrister is the anonymous pen name of someone with around ten years’ experience working in the criminal justice system of England and Wales, who hopes to make the system more understandable to the average citizen. Their writing has appeared in such publications as the Guardian, the Times and Esquire. The Secret Barrister became a Sunday Times best-seller and was shortlisted for multiple awards.

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