A shocking read for anyone aspiring to be a criminal barrister. It is safe to say this book was an eye-opener and made me appreciate the state of the U.K criminal justice system and the highs and lows of life as an advocate at the Criminal Bar.
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 bestseller and was shortlisted for multiple awards.
The Premise of the Book
It is a critical first-hand account of the state of the criminal justice system in England and Wales.
The Book in a Nutshell
Is a behind-the-scenes look at the underbelly of England and Wales' criminal justice system (CJS).
The CJS is severely underfunded and suffering from a lack of resources which is undermining the rule of law and public safety.
Some possible solutions are presented to improve the current state of affairs.
1. The Issues with Magistrates’ Courts
Unfortunately, 94% of the 1.46 million individuals brought before the magistrates each year will never see the inside of a Crown Court. Instead, their cases and their sentence will be dealt with at one of approximately 150 magistrates’ courts around the land, and their fate will be determined by three out of the 17,500 serving magistrates. These serving magistrates are volunteers with no formal legal qualifications, yet they have the power to send fellow citizens to prison for up to a year.
2. Inaccurate Portrayals of the Criminal Justice System
Our perceptions of criminal justice systems come from what we see on TV or read in legal thrillers. However, the realities of criminal justice in England and Wales is a very different picture. The general public is misinformed about the realities of the system which leads to politically influenced budget cuts, resulting in the system suffering from a lack of finance and resources. The spread of the “fat cat” criminal barrister myth and lies about legal aid over the past decade has contributed to the decline of the Criminal Bar. As a result, the foundations upon which the rule of law was built is now under threat.
3. Case Handling (Expectation vs Reality)
The Secret Barrister tells a story of when they first started practising in the Magistrates Court. They had a four-foot stack of files with 15 minutes to prepare before being summoned into court to start the first trial - not having a clue what any of the cases were about. Having been denied permission to look over the files, the Secret Barrister was forced to wing it. What was shocking was that this was seen as normal among junior criminal practitioners. The risk an underfunded system presents is that those accused of heinous crimes may walk free & innocent citizens can be convicted.
4. Good & Bad Solicitors
There are good solicitors who advocate tirelessly on behalf of their clients, and those that exploit their clients. There are those that will do everything in their power to get a not-guilty verdict and will even lie willingly to get it. An example of such a firm was that of Keres & Co. where Mr Keres would routinely offer his services to those in need, receive a legal aid fee, and then never follow up with the client. Fortunately, Keres' business went bust but there are still plenty of hungry wolves out there who take advantage of the system in this way.
5. Adversarial vs Inquisitorial Justice
a. In the accusatorial process, the prosecution presents their case and the defence attempts to prove it false or undermine it.
Evidence is rigorously examined in an accusatorial system.
Potential for complainants to be victimised
b. In the inquisitorial process, evidence is gathered both for and against the accused in an objective manner, and all the findings are documented in a dossier.
The prosecution's duty is to search for and uncover the truth
No demanding cross-examination
No intentional exclusion of evidence
The process heavily relies on the evidence presented by the state, which we have seen can be incomplete or biased.
6. The Sentencing Process is too Complex
The sentencing process is overly complex that defendants struggle to make sense of what is happening. That is because the many hundreds of legislative provisions exceed 1,300 pages. The consequences of this complexity can result in sentencing errors as revealed by Robert Banks in 2012 who examined 262 randomly selected Court of Appeal cases; he found that 95 unlawful sentences had been passed by the Crown Court.
7. The CJS of England and Wales Needs Reform
The system is woefully underfunded and understaffed to the point where criminal case files often appear before barristers with missing or incorrect information. Criminals are slipping through the net and innocent people are in danger of being locked up.
My Favourite Quotes
“The magistrates’ court is the accident and emergency department of criminal justice: any moment, a problem will walk through the door and the prosecutor will have to deal with it blind”
“The witness box is a pulpit of human despair”
“Stack cases even higher and sell ‘em even cheaper”
“The public is treated to oxymoronic sloganeering where a pledge to reduce prison numbers (achieved through rehabilitation, investment in prisons and a sparing use of custodial sentences) is entertained concurrently to bows of longer sentences, spartan prison regimes and bans on prisoners receiving books”
“The role of the trial lawyers evokes the romantic myth of those historical and literary crusaders for justice whose swashbuckling advocacy and fearless derring-do capture the imagination of every popular retelling of a criminal case”
“The gross hourly figure [for criminal barristers], if it bears calculation, can be less than £3”
“They are but three of many players on a stage without director, script or functioning sound and light, blindly dancing to an increasingly shrill imperative that must process more cases, more quickly, with far fewer resources”
“For me, the lesson of history is that the state alone cannot be trusted to find the truth”
“While seeking universal truths is, for me, an ambition too far, protecting individual liberty is something that I think our system, when it operates correctly, has done quite well”
Know how the CJS works in case we are ever dragged into the system.
2. Is & Ts
Don’t blindly trust that solicitors are acting in our best interests.
3. Fact Check
Get our facts straight – don’t buy into media portrayals of the CJS.
4. Lessons from the Inquisitorial Process
Stop harassing witnesses in cross-examination and forcing them to recount traumatic incidents months
the ability to offer a reason for a verdict - In the traditional system, a jury offers a guilty or not-guilty verdict without any explanation for how and why they reached that verdict
5. Reframe Media Portrayal of CJS
One way to raise funding for the CJS is to show the public an accurate picture of how the system works.
6. Simplify the Sentencing Process
“When we lose sight of justice, it unfastens and floats away, leaving us with a nominal legal system; but not a justice system”