The Secret Barrister: Stories of the Law and How It’s Broken

You arrive at dinner and find yourself sitting next to a criminal barrister, or “jobbing criminal hack”, as he modestly describes himself. He starts to tell you in a vivid, first-hand manner about the inexcusably squalid, inefficient and unjust way in which our lower courts operate.

The first five minutes of this is highly entertaining. He brings that seedy and incompetent world alive, and cannot resist a good anecdote, whether or not it took place when he was present:

“special mention must go to a defendant at Chelmsford Crown Court in August 2016, who, upon receiving his 18-month sentence for racist abuse, told Judge Patricia Lynch QC that she was ‘a bit of a cunt’. Her Honour’s reply – ‘You are a bit of a cunt yourself’ – was a little naughty, but also, in many ways, everything that could be said.”

The next half hour is interesting too. He asserts that if “the criminal justice system were the NHS, it would never be off the front pages”, because so many things go wrong, and there are, to name but one recurrent fault, so many “inexplicable blockages” in the channels of communication between the Crown Prosecution Service and the police:

“Walk into any criminal court in the land, speak to any lawyer or ask any judge, and you will be treated to uniform complaints of court deadlines being repeatedly missed, cases arriving underprepared, evidence being lost, disclosure not being made, victims being made to feel marginalised and millions of pounds of public money being wasted. And, as a result, every single day, provably guilty people walking free.”

And yet your neighbour – whose name you didn’t catch, and who, you find, is at work on a book in which he will write with the freedom conferred by anonymity – plainly loves his work. He is also actuated by a passion for justice which survives innumerable disappointments.

He admits that “the core motivation” which “lures someone to the Bar” is “the cry for attention, the desperate need to be centre stage in the climactic scenes of people’s lives”. But he also reckons that barristers possess, beneath their “sated vanity” and “affectations of brash nonchalance”, “a quiet but sincere desire to help people”.

The Secret Barrister is, in fact, more optimistic, even more conservative (with a small c), than the 12 chapters of accidents which he recounts might suggest. As he himself writes:

“For all that the preceding pages might reasonably be interpreted as a counsel of despair, there is much that is fundamentally good about our justice system. The underlying principles, accidental and incoherent though their evolution may have been, have been exported around the globe for good reason: the presumption of innocence and burden of proof, the right to a fair trial, the right to independent legal representation, equality of arms, an independent judiciary, non-partisan tribunals of fact and the other fiercely debated, non-exhaustive aspects of the rule of law on which our present settlement is premised, all stand as self-evidently necessary to our instinctual conceptions of justice.”

He is good on the impossibility of putting victims first, if the perhaps falsely accused is to receive a fair trial. And he brings out the folly of pursuing weak cases, simply to cater to public demand for something to be done:

“It is horribly difficult prosecuting sex cases. They are often compounds of the most combustible elements in the prosecutorial spectrum: extremely serious and distressing allegations; usually limited evidence beyond the word of the complainant; the complainant themselves may well be vulnerable and damaged and may have a personal, criminal or medical history which impinges upon their credibility. These cases usually invite media attention, plus there is the historical weight of state failure to act in previous such cases, and there is enormous public pressure to improve upon conviction rates perceived as historically paltry.”

It is evident that just as our hospitals get asked to look after a lot of vulnerable people who need other kinds of care, preferably administered in their own homes, so our courts are swamped by damaged and incompetent people who certainly need help, but are unlikely to have their lives mended by exposure to the rigours of an adversarial system of justice.

Anyone contemplating a career as a criminal barrister should read this book. But for the general reader, it offers too great a weight of evidence. We get the point quite quickly, but our neighbour, the Secret Barrister, proves impossible to stop, and does not in fact stop until he has written 343 pages.

He has a lot to say about the defects of our legal system, and he says it pretty well. This is the kind of book of which members of the chattering classes will know they ought to approve, whether or not they actually get round to finishing it.

But the chapters are labelled clearly enough to make it possible to focus only on those aspects of legal incompetence in which one is most interested. And one of the author’s most amiable characteristics is his love of quoting great remarks by the illustrious dead. Here is Mr Justice Frankfurter in 1950, in the United States Supreme Court:

 “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.”