📗 The Secret Barrister

This was a really well-written first-hand account from an anonymous criminal law barrister in England. He/she talks through how the criminal justice system works, the pros, the cons, the ways the system is changing, reform ideas, all through poignant examples which make the whole thing much more real (and a pleasure to read).

This book served for me as a crash course in Law, which I had never studied or properly read about. It introduced a bunch of concepts which I then researched and summarised below.

Two choice quotes and then we’re off:

“despite the grand principles at its heart, at nearly every stage of our prized system of criminal justice we see things going badly, and preventably, wrong.”

“You may well know a lawyer, or of a friend of a friend who’s a lawyer, who is fabulously well off. If so, I offer you an iron-clad guarantee that they are not a criminal lawyer.”

Enjoy!

Legal systems

Legal systems of the world. Source
  • The two biggest systems are common law (~80 countries) and civil law (150).
  • Common law systems: driven from case law, published judicial opinions, precedents
    • “Anglo-american adversarial proceedings”
    • UK, US, India, Canada
    • Traced back to the English monarchy. Was using formal orders but when they weren’t sufficient started to use precedent cases
    • The Secret Barrister is exercising in the UK
    • Lawyers make presentations to the judge (and sometimes the jury) and examine witnesses themselves. The judge has greater flexibility than in civil law system to appropriate remedy
  • Civil law systems: the law is largely written in codified statutes
    • “Continental Napoleonic-inspired inquisitorial proceedings”
    • Rest of the world (Europe, China, etc)
    • Generally traced back to the code of laws compiled by the Roman Emperor Justinian around 600 C.E
    • The judge is the “investigator”, establishing facts through witness examination etc.
    • Lawyers have a less important role. Less oral argument in the courtroom.

Within each system:

  • Criminal law: offense against the public, society, or the state—even if the immediate victim is an individual.
    • Examples: murder, assault, theft, drunken driving. 
    • Worst that can happen: lose your freedom, access to your kids, etc
  • Civil / commercial law: injury to an individual or other private party, such as a corporation. 
    • Examples: defamation (including libel and slander), breach of contract, negligence resulting in injury or death, and property damage.
    • Worst that can happen: lose a lot of money

Courts

  • Famous Crown Court in London is the Old Bailey
  • In the crown court, the jury is 12 people. The question they must answer: can they be sure beyond reasonable doubt that the offence occurred?
  • The jury is independent since the Magna Carta in 1215. There was a dispute, the King agreed to be bound by common law with an independent jury.
  • “94% of the 1.46M individuals brought before the magistrates court each year will never see a Crown court”

Civil courts:

  • Remand: you stay in prison until your trial. Bail: cash, a bond, or property that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so.

Roles

Barristers

  • “A type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching the philosophy, hypothesis and history of law, and giving expert legal opinions.”
    • Wear a wig to show disaffection from personal involvement with the case
  • In the United Kingdom, the term “the Bar” refers only to the professional organisation for barristers (advocates in Scotland); the other type of UK lawyer, solicitors, have their own body, the Law Society.
  • Majority of criminal barristers are self-employed. They work from the Inn’s (eg Gray’s Inn)
  • Barristers get paid by solicitors
  • They are not well paid. “In reality, a barrister is likely to get somewhere between £9.28 to £18.95 per hour.”

Solicitors

  • Barristers are distinguished from solicitors, who have more direct access to clients, and may do transactional-type legal work.
  • Analogy: solicitor is the GP doing the base work, barrister is the specialised surgeon. Solicitor mostly outside the courtroom, barrister mostly in.

CPS

  • The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions.” (Keir Starmer had that role 2008-13)
  • “The main responsibilities of the CPS are to provide legal advice to the police and other investigative agencies during the course of criminal investigations, to decide whether a suspect should face criminal charges following an investigation, and to conduct prosecutions both in the magistrates’ courts and the Crown Court.”
  • Previously the Police would fully investigate, but a separate independent agency had to be created.
  • 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.

The inadequate magistrates court

  • All cases start here.
  • Magistrates are very underqualified and make lots of errors: “Thousands of people every year are convicted of crimes by magistrates whose qualification for dispensing justice is filling out a form, passing an interview, doing some charity work and being willing to sit for 13 days a year, with 18 hours’ worth of training” (from this review)
  • “23% better chance of being acquitted in a Crown Court”
  • Trialing in the magistrates court is 50% cheaper so the government is pushing for more to happen there.

Underfunded system

There have been lots of cuts to the justice system.

  • Can wait years for a trial, and then be told on the day that the trial is postponed for lack of court time
  • 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
    • 1/5 cases arrives in the hands of the barristers with incorrect information on which charges were filed by the police
    • 1/10 cases fails to recognize critical evidence such as identifying instances where the accused was acting in self-defense
    • 1/6 cases, the file is pushed through without any CPS lawyer having reviewed the case at all
  • 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.
  • Real world example from the book, summarised here
    • In one particularly troubling case, a young woman, Amy, was spotted by a passing taxi driver being pulled out of her flat by her hair and viciously beaten by her boyfriend. Amy suffered a broken jaw as well as a fractured wrist and eye socket. Yet the vital evidence of Amy’s statement and the medical records were missing.
    • So the author did what they could and requested that the police speak to Amy, get her statement and pick up her medical records. What they received back was a memo saying that the police spoke with Amy and she was still willing to give a statement and have her medical records released.
    • Even the magistrate was confused that the police had seemingly visited Amy and yet not taken the statement or picked up the medical records, so he granted another seven days for this to be taken care of, or else the case would be dismissed. The author sent numerous requests and follow-ups in the days that followed, yet nothing came back. As a result, Amy’s boyfriend walked free.

Who has access to legal aid?

  • In England and Wales, legal aid is offered to those deemed to have an insufficient disposable income. Currently, this is anyone who has a combined disposable household income of less than £37,500. Nevermind the fact that most private defense counselors can cost upward of £100,000 to £300,000.
  • Miscarriages: 15 percent of the people who were remanded to a jail cell without bail (so, imprisoned temporarily) were later acquitted
  • Harder to get numbers on wrongly convicted.
  • “You may well know a lawyer, or of a friend of a friend who’s a lawyer, who is fabulously well off. If so, I offer you an iron-clad guarantee that they are not a criminal lawyer.”

Prisons

  • 60 percent of those sentenced to less than a year in prison will commit another crime. And among all released prisoners, 46 percent commit another crime within a year of being released.
  • “In February 2017, inspectors concluded that ‘there was not a single establishment that we inspected in England and Wales in which it was safe to hold children and young people’. Prison deaths are at record levels: 354 prisoners died in custody in 2016. Of these, 119 were suicides.”

Further reading

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