The Secret Barrister
The Secret Barrister

The Secret Barrister

Table of Contents

few of us devote much, if any, time to thinking critically about our criminal justice system; to considering how and why we have this particular way of doing justice, or reflecting on the impact it has upon the hundreds of thousands of people – defendants, witnesses and victims – who pass through the system every year. Not in the way that most of us form and gladly share opinions on the way we administer or fund healthcare, say, or the merits or demerits of types of schools. And this I find odd; because criminal justice affects us all. (Location 107)

Tags: justice

Note: .justice we dont thibk about and discuss legal justice as we do healthcare and eduucation

That defendants, victims and, ultimately, society are being failed daily by an entrenched disregard for fundamental principles of fairness. That we are moving from a criminal justice system to simply a criminal system. (Location 142)

In practice, the job also requires the skills of a social worker, relationship counsellor, arm-twister, hostage negotiator, named driver, bus fare-provider, accountant, suicide-watchman, coffee supplier, surrogate parent and, on one memorable occasion, whatever the official term is for someone tasked with breaking the news to a prisoner that his girlfriend has been diagnosed with gonorrhoea. (Location 158)

In an age where juries have all but disappeared from civil courtrooms, criminal law is the last vestige of the pure advocacy tradition, where the power of persuasion and force of rational argument, its significance augmented by the historical trappings – the mode of speech, the splendour of the courtroom, the ridiculous Restoration-hangover horsehair wigs – is the tool by which liberty is spared or removed. (Location 173)

Simply put, if enough people don’t believe the state to be capable of dispensing justice, they may start to dispense it themselves. (Location 189)

This is why I have written this book. I want to shine a light on what really goes on, to take you into the rooms you never get to enter; but more than that I want to explore why we should care, and to illustrate what happens when we don’t. (Location 226)

magistrates’ court or a Crown Court. (Location 273)

Tags: courts

Note: .courts

While we have exported our treasured form of adversarial, state-versus-defendant justice around the world, usually at the end of the barrel of a colonial musket, many other countries do things very differently. The most commonly cited distinction is the rough divide between Anglo-American adversarial proceedings, and Continental, Napoleonic-inspired inquisitorial proceedings. (Location 279)

The first thing to note is that she does not have a gavel. Gavels have never been used in English and Welsh courtrooms. (Location 326)

The term ‘Circuit Judge’ refers to the six legal circuits or regions into which England and Wales have been traditionally divided – Northern, North-Eastern, Western, Midlands, South-Eastern, and Wales and Chester. (Location 330)

Tags: judge

Note: .judge

Henry II sought to introduce a ‘common law’ applicable nationwide, by establishing a cadre of judges who roamed the circuits, sitting in pop-up courts (‘assizes’) and applying the new common law. A key feature of the so-called ‘common law tradition’ is that where legislation has gaps or ambiguities, or calls for clarifying interpretation by judges hearing cases, the rulings of the most senior courts (today the High Court, Court of Appeal and Supreme Court) have the force of binding law, and must be followed by lower courts. This means that if you want to know the law on a given topic, the statute alone only tells you half the story; you will need to know what gloss has been slapped over it by court precedents. (Location 335)

Tags: commonlaw

Note: .commonlaw

There are now around seventy Crown Courts nationwide, the most famous of which sits at the Central Criminal Court in London – the Old Bailey. (Location 345)

Tags: courts

Note: .courts

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled. Nor will we proceed with force against him except by the lawful judgment of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice. (Location 393)

Today, barristers automatically enjoy full ‘rights of audience’, which permit us to appear in any court in the land, from magistrates’ courts through to the United Kingdom Supreme Court. By contrast, solicitors are only permitted to appear in the ‘inferior courts’, as they are (supposedly non-pejoratively) called – magistrates’ and county courts – unless they undertake specialist courses and qualify as ‘solicitor-advocates’. (Location 491)

Tags: barrister, solicitor, courts

Note: .courts .solicitor .barrister

In its very loosest sense, civil law encompasses a broad range of legal services from non-contentious – such as the conveyancing when you buy or sell a property, or wills and probate – to contentious, including personal injury claims, contract disputes, employment law, divorce and commercial litigation. (Location 514)

Out of the 15,000 barristers in England and Wales, around 4,000 of us are criminal practitioners, assuming one of these diametric roles in Crown Court (and occasionally magistrates’ court) cases across the country. Most of us are self-employed; hired guns, ethically obliged by the ‘cab rank rule’ to take the first case that comes calling to our clerks, regardless of its merit or our personal feelings about the parties or principles involved. And in crime, this means that most barristers both prosecute and defend (although not, obviously, in the same case). And my view has always been that doing a bit of both is good for the soul. It reinforces your independence. It sharpens your objectivity. And it helps you, in any given case, to know your enemy. (Location 532)

Tags: barrister

Note: .barrister

In 1791, in a trial at the Old Bailey, celebrity barrister du jour William Garrow sternly told the judge that ‘every man is presumed to be innocent until proved guilty’. This was the first formal articulation of what would, in 1935, be described by the Court of Appeal as ‘the golden thread’ running through the web of English criminal law22 – the presumption of innocence, and the burden of proof. (Location 572)

The Inns of Court – Lincoln’s Inn, Inner Temple, Middle Temple and Gray’s Inn – are our professional associations.

A barrister must be a member of one, and it is at the Inns’ ceremonies that Bar school graduates are ‘called to the Bar’. (Location 595)

Chambers house anything from half a dozen to several hundred self-employed barristers, and are designed to allow sole practitioners to pool knowledge, wisdom and overheads, such as rent and staff. (Location 607)

The Wild West: The Magistrates’ Court

While most of us probably think of jury trial as our most common criminal tribunal, 94 per cent of the 1.46 million individuals brought before the magistrates each year3 will never see the inside of a Crown Court. Their cases, from first appearance through to – if they plead guilty or are convicted after trial – their sentence, will be dealt with at one of approximately 150 magistrates’ courts dotted across the land, and their fate determined most likely by three out of 17,500 serving magistrates;4 volunteers with no formal legal qualifications but the power to determine both rulings of law and findings of fact, and to send their fellow citizens to prison for up to a year. (Location 710)

criminal offences are divided into three categories. The least serious ‘summary only’ offences – motoring offences, common assault, minor public disorder – can only5 be tried in the magistrates’ court. The most serious ‘indictable only’ offences – murder, rape, possessing firearms, serious violence and so forth6 – can only be tried in the Crown Court. The meaty filling of ‘triable either way’ crimes in between those two extremes – your burglaries, drug transactions, semi-serious violence and garden-variety sexual offending – can be heard either in the magistrates’ court or the Crown Court, and the first appearance is used to determine which venue is most suitable (the ‘allocation’ procedure). (Location 739)

Tags: courts

Note: .courts

Only 1 per cent of criminal cases are resolved by jury trial, (Location 756)

The truth is that the entire case in favour of magistrates’ courts, as we currently run them, is a sham. There is little sustainable rationale for their existence in principle, and no justification whatsoever for the way in which these courts operate in practice. There is no excuse for the amateur, sausage-factory paradigm of justice and ‘that’ll do’ complacency that pervades 94 per cent of criminal cases, other than that most cynical political trinity: it’s cheap, it’s the way we’ve always done it and no one who votes either knows or cares. (Location 782)

Tags: courts

Note: .courts

If you think the defendant might have done it, the defence barrister hams it up for the jury, he’s not guilty. If you think he probably did it, he’s not guilty. If you’re almost sure he did it, he’s not guilty. Only sure will suffice for a guilty verdict, ladies and gentlemen. (Location 1042)

Why is ours the only legal system in the world that empowers volunteers to send their fellow citizens to prison? (Location 1191)

Imprisoning the Innocent: Remand and Bail

One of the reasons that many defendants plead guilty only on the day of trial is that they will bide their time, hopeful that a prosecution error or a key witness losing their resolve – a crushingly prevalent problem in allegations of domestic violence – will free them at the last. (Location 1834)