The Secret Barrister - Village Magazine

HE RAGE of London at the moment is a self-consciously

anonymous blog called “The secret barrister” which is

an exposé of the profession of a criminal barrister and

indeed of the criminal justice system written by a junior

counsel specialising in criminal law. This blog aims to

provide a fly-on-the-wall view of the criminal justice system, and

of life at the Criminal Bar in general. He writes for the

New States-

man

The Sun

The Mirror

and

Huffington Post

. His first book,

‘Stories of The Law and How It’s Broken, published in March, is a

bestseller.

If the author had named himself the professional repercussions

would not have stinted so, sagely, he has not. The book is writ-

ten with an avowed sense of sadness, indignation and anger

grounded in an overarching desire to secure a measure of fairness

within the criminal justice system. The morphology of the book is

to take a criminal case from inception to conclusion to show what

goes wrong – to demonstrate that which is unfair.

The book’s argument, delphically stated and perhaps not fleshed

out in the detail it should, is that we are moving from a criminal

justice system to a

criminal

system which risks presumptions of

guilt. The presumption of innocence which is a British creation is

central to justice in a civilised system. But the scruple-based pro-

cess has become telescoped and mere accusation is now

criminalisation. The hallowed, flawed system is losing its protec-

tions and safeguards.

There is, in criminal justice possibly more than any other sphere

of public life, a devastating lack of public education, exacerbated

by inaccurate, ill-informed media reports and political pronounce-

ments that betray an ignorance of the legal system that stretches

up to the very top of government. This lack of understanding

means that politicians escape scrutiny when terrible things are

wreaked upon criminal justice –

such as the policy that you can

be wrongly accused of an off ence,

denied legal aid and then denied

the cost of your private legal fees

even when acquitted – and that,

when we see a legal story

reported in the press – such as

the latest ‘look at how much

legal aid this murderer received

from your taxes' – we often lack

the tools to critically evaluate it.

Now I agree with all this and it

corresponds with my professional experience in Ireland and the

United Kingdom. We are not far from the point that corrupt and

(in Ireland) criminal state authorities use an accusation to create

a snowball ef fect, Often an accusation alone touted and reinforced

by a dirty and compliant media is enough to destroy. Once the

machiner y of mediocrit y and state incompetence gets a half baked

sense of an accusation the whole thing trundles along and guilt

or innocence are merely matters of happenstance. This is aug-

mented by the cult of the pseudo-expert: a three-week training

course alone underpinning the pontificator’s cant.

This is accentuated in Ireland by our deeply corrupt and crimi-

nal professional classes and as we have seen the toxic relationship

between TUSLA, the Department of Injustice and the bar with its

illusory independence. In the UK I have not seen not overt state

criminality though I recognise the book’s theme of derelict state

disclosure of favourable unused material in the practice of the

criminal bar here in London where I am now working. In an extraor-

dinary 87 per cent of cases audit trails show the disclosure of

evidence to defence lawyers from the police or Crown Prosecution

Service to be unsatisfactory,

In my view this is systemic, as the police, social services, aca-

demics and an over-burdened professional class are making

decisions in conditions of radical uncertainty and often with lim-

3 2

July-August 

Only a covert counsel can splash the dirt as the presumption of

suspects’ innocence takes a popular pounding

The Secret Barrister

Pan Macmillan

Published March 2018

Reviewed by David Langwallner

POLITICS

An Irish book would

be much more

depressing. At

least here in the UK

outcomes are not

predetermined

July-August 

3 3

ited training.

Putting victims first, witness protection and the prohibition of

hard and intimidating cross-examination is very dangerous. It pro-

tects liars and fabricators. A cloak of protection engineered by

police, social workers and a dumbed down culture protecting those

who enlist the nanny state of the semi competent.

Advocates have a right to annihilate people and not to be

stopped in their tracks, as I was recently, if they reduce someone

to tears where necessary.

Through lack of training, under-resourcing, lack of motivation

and a drop in standards the system is descending in both jurisdic-

tions into chaos.

The system’s flaws are not those of the people who work within

it, but are imposed: by the State. Each flaw is:

“...either deliberately designed – such as the Innocence Tax, (the

Legal Aid Act 2012 under which defendants find themselves mas-

sively out of pocket even when found not guilty) or the restriction

of compensation for miscarriages of justice – or is the product of

populist, tough-on-crime, anti-defendant posturing, or betrays

warped spending priorities where politicians persuade voters that

one penny off a pint of lager is a better investment than a work-

ing justice system”.

Moreover, as the Secret Barrister notes:

“Part of the problem, as well, is the legal profession. We do a

stunningly poor job of explaining to people what the law is, and

why it matters. Too many of us are content to busy ourselves in

our own work, safe in the knowledge that what we do is impor-

tant, but without feeling the need to deconstruct for the man on

the street why two wigged figures incanting Latin before an old

man wearing a giant purple robe, and the obscured codes and

rules governing this mediaeval ritual, has any relevance to their

everyday life. We then wonder why there is an obvious disconnect

between the legal system and the people it exists to serve and

protect”.

He is concerned about the ethical compass of vulture solicitors,

as am I.

He does not say much about the art of the advocate per se but

much about how cuts over time and an increasing workload have

diminished the quality of justice and the profession. He is scath-

ing of minor prosecutions: “Much prosecuting in the magistrates’

court takes the form of someone getting to their feet and present-

ing a case they have never set eyes on before”.

In a sense being an advocate is a vocation and a truth-telling

and truth-eliciting exercise. The object like an artist is to estab-

lish the truth or as near an approximation of it as possible or at

the very least to trade in ambiguity and complexity to create ascer-

tainable and, what is still the hallmark of the jury system,

reasonable, doubt.

Initially

Stories of The Law and How It’s Broken

shows that such

matters as trial by jury and the presumption of innocence, so central

to British and Irish justice, are not as sacred as is of ten assumed but

rather are relativistic cultural practices, constantly eroded, and that

the inquisitorial system, favoured in mainland European countries,

where a case-hardened judge with the assistance of a prosecutor

builds up a ﬁle over a number of years provides a more obvious route

to the truth. However, ultimately the book rather hedges its bets on

that. Yes an inquisitorial system is more likely to get to the truth in

theory. The opposite will be the case if the inquisitor is a compro-

mised state ofﬁcial and neither neutral nor objective but subject to

political inﬂuence. The book also addresses very markedly the dan-

gers of political inﬂuence in engineering a prosecution or an outcome.

So the attempt to prosecute the organiser of the Catalan referendum

Puidgemonte for treason or the prosecution of the Anti Austerity Alli-

ance in Ireland for ‘false imprisonment’ arising out of a water protest

are politically motivated, with the criminals the state.

In my experience of the respective systems, the UK is better: its

judges independent unlike in Ireland where an exclusively inquisito-

rial system would be a disaster as our history of witless public

Inquiries show. English inquiries are typically shorter in time than

ours and actually get to the truth in the face of the non-disclosures

and deceptions of the state.

Inquisitorial and adversarial systems are not of course the only

systems of justice. The author also instances historic and contempo-

rar y practices of other systems such as the payment of blood money

or in medieval times the wergild involving paying the victim off.

The mysterious author sides ulti-

mately with the right to trial by

jury. Despite its deﬁciencies, he

argues, at the ver y least the jur y is

an independent non-state actor,

recalibrating the process in favour

of fairness. Ultimately the evidence

can be tested by independent bar-

risters unleashing the forensic

voodoo arts of cross examination

and the alchemy that is advocacy

and, in particular, a closing speech.

He is unduly critical of the dis-

trict judges I have seen and appeared before in England many of

whom are very conscientious and certainly much better, in my view,

than most sectors of the Irish judiciary where summary justice is

increasingly evident at the higher levels and our political appoint-

ments structure has not led to the elevation of highly qualiﬁed and

independent judges.

He closes the book warnings of the incoming juggernaut of US liti-

gation practices, increasingly evident in Ireland, of a total disconnect

between the greedy pursuit of self interest and justice. Among

lawyers.

It is jaw dropping but an Irish book would be much more depress-

ing. At least here in the UK the state, the police force, the justice

department, and usually the lawyers are not intentionally crimi-

nal. Outcomes are not predetermined.

The rule of law, fair procedures and the presumption of inno-

cence in a system creaking at the edges are still in evidence

whereas in Ireland it has simply broken down, already.

Ireland awaits its own Secret Barrister.

And a proper system of criminal justice for those with the least

in this unforgiving society.

David Langwallner is an Irish barrister, founder of Ireland’s Inno-

cence project, who now practises from Great James St chambers

in London.

We are moving from

a criminal justice

system to a criminal

system which risks

presumptions of guilt