The Secret Barrister interviews with Chambers about the state of legal aid and the content of their new book, Fake Law.
With an undercover persona instrumental in their rise to fame, the Secret Barrister is a prolific blogger, tweeter, and author behind two bestselling books, ‘The Secret Barrister: Stories of the Law and How It’s Broken,’ and ‘Fake Law: The Truth About Justice in an Age of Lies’. SB, as they're affectionately known, has become one the nation's most prominent critics of the government's eight-year cuts to legal aid and their damage done to the criminal justice system. We talk to them about the injustices, the misconceptions, a system on the brink of collapse, and of course, their identity.
Harry Cerasale, 13 November 2020
Chambers Student: Could you briefly explain why it is important to have a robust criminal justice system?
Secret Barrister: Criminal justice underpins our civilisation. It’s as simple as that. Crimes mark the most serious breaches of the code by which we all agree to live; the wrongs that strike at the heart of our society and bring pain and suffering to others. Ensuring that the criminal law is upheld - that those who commit crimes are brought to justice, and that those who haven’t committed crimes are not wrongly treated as if they have - is essential to keeping our social contract intact. If wrongdoers routinely escape justice, or the wrong people are punished for their crimes, we are a hair’s breadth away from the breakdown of social order, and the rise of vigilantism and anarchy.
CS: You argue you in your first book that, as a public, we don’t think about the way we administer criminal justice in the same way we administer education or healthcare. Why is that?
SB: I think it’s because we are encouraged to think of criminal justice as something that only affects other people; in particular, the sort of people who aren’t like us, and who probably deserve to be snared in the criminal justice system. Our political and popular culture perpetrates an infantile view of criminal justice amounting to little more than the cops catching the bad guys, and the bad guys deserving as much prison as we can throw at them. There is seldom any acknowledgment of nuance or complexity; the idea that you might be wrongly accused, for instance, is unthinkable to many people with strong views about the justice system. Likewise the notion that somebody you love might do something wrong and find themselves in court. We even struggle to place ourselves in the role of a victim, dependent on the system to apprehend the correct person and deal with them, and us, promptly and fairly. Because so many of us go most of our lives without coming into direct contact with the system, it is easy to swallow the myth that criminal justice is for other people, rather than seeing it as something fundamental to our democracy and our humanity; something which, at its core, is a mechanism by which we deal fairly with each other when we fall short.
" the idea that you might be wrongly accused, for instance, is unthinkable to many people with strong views about the justice system."
CS: You have written extensively on the subject, but could you summarise in a few sentences what you view as the most serious problems with the criminal justice system in Britain today?
SB: It sounds like a simplistic prescription, but many of the most pressing problems boil down to chronic lack of resources. The justice system has had its budget cut by a quarter since 2010, and it was hardly flush with cash before. Lack of resources mean that the police can’t investigate allegations as thoroughly or as quickly as they need to, with potentially serious consequences for victims of crime and the accused. The Crown Prosecution Service’s lawyers and caseworkers have more cases than they can sensibly juggle, meaning that errors creep in, again with serious consequences. Legal aid has been slashed, meaning more and more people forced to represent themselves in criminal proceedings, or to pay privately for lawyers – fees which, due to government reforms, won’t be reimbursed even if the accused is acquitted. Cuts to prisons mean that our prison estate is overcrowded, understaffed and rife with violence and self-harm. Mismanagement of probation services and cuts to local authorities mean that people whose offending is linked to mental health or substance misuse don’t get the help they need to stop reoffending. And, perhaps the biggest problem facing us at the moment, due to swingeing cuts to the courts budgets, and to ‘court sitting days’, we will soon have a record backlog in the criminal courts, exacerbated by Covid-19 and the government’s refusal to properly fund the courts to manage the crisis. In practical terms, it means that it is typically taking years for the police to investigate cases, and then, once the case gets to court, another two years (at least) before the case comes to trial. It is inimical to functioning criminal justice.
CS: In your second book ‘Fake Law: The Truth About Justice in an Age of Lies,’ you make the case that the justice system is frequently and deliberately mispresented by politicians and the media, and that this isn’t helped by the general public having a weak grasp of how the criminal justice system works. What do you think are the most problematic/dangerous misconceptions people have of the criminal justice system?
SB: There are too many to list exhaustively, but I think the most damaging misconception links back to my earlier answer: it’s this idea that anybody accused of an offence is guilty, and that the ultimate aim of the criminal justice system should be to convict and imprison as many accused people as possible. We see this seep into public discussions about conviction rates, and in particular when there is a high-profile criminal trial that results in an acquittal. People – whether newspaper columnists or members of the public online – who have not heard a word of evidence given during the trial will immediately reach for outrage, howling at the stupidity of the jury in refusing to convict, and imputing all manner of prejudice or stupidity to those twelve independent strangers for having the temerity to listen to the evidence and deliver a verdict. It doesn’t occur to them that the prosecution case might in fact be wrong. That the accused might not be guilty in the way the prosecution allege – or, indeed, at all. Or that the cornerstone of our criminal justice system – the burden on the prosecution to make a jury sure of guilt – means that even a reasonably strong prosecution case can still, properly, result in a ‘not guilty’ verdict. It’s a monochrome view of criminal justice, one which denies the existence of nuance or complexity.
"It doesn’t occur to them that the prosecution case might in fact be wrong. That the accused might not be guilty in the way the prosecution allege – or, indeed, at all."
CS: What are the repercussions of this?
SB: Ultimately it all serves to reinforce the misconception that criminal justice is for criminals – this ‘other’ species – rather than something that we all have a stake in. It encourages production-line justice, something attractive to governments because of its cheapness, whereby we envisage criminal justice as ensuring successful prosecutions, rather than just outcomes.
CS: There's been much press coverage of the government's rhetoric inciting violence and hostility to criminal and human rights lawyers. Is what you've heard recently exceptional, or is this the norm, where the law is constantly politicised?
SB: Something that I think became clear while writing Fake Law is how depressingly familiar the anti-lawyer, anti-rule of law rhetoric has been in our politics for at least the last three decades. Whether it was Michael Howard in the 90s, Tony Blair and David Blunkett in the 00s, Chris Grayling and Theresa May in the 10s or Boris Johnson and Priti Patel in the 20s, there have always been a ready stream of politicians eager to make capital out of blaming society’s ills on the people upholding the laws that these very politicians have created. Where I think things are different today is in the environment; our country is divided like never before, with political violence bubbling millimetres from the surface, and, as recent events have shown, there are people willing to act upon those political impulses and consequently very real risks to the safety of lawyers. It means that politicians have a duty, now more than ever, to take care with the language they use, and not to deliberately stoke tensions on false pretences.
CS: Do you share the concerns of Baroness Hale that there is a risk that the appointment of judges could become a politicised process in the UK?
SB: I do. The direction of travel is rabidly anti-judiciary. The Enemies of the People debacle was totemic, but the rhetoric of the government following Miller and Cherry was every bit as dangerous. Since then, every court decision that goes against the government is met by the famous Unnamed Downing Street Source condemning “out of touch” judges for thwarting the will of the people. That same source has been reported to have expressed a desire to “sort out the judges”, and to this end a specious commission has been established to look at whether judicial review needs reform. Given that it is chaired by the pro-government and publicly anti-judicial review Edward Faulks, the conclusions are all but written, and will doubtless bolster the insidious narrative that judges harbour some secret anti-government agenda. There are very few people around the Cabinet table who understand, let alone hold any respect for, judicial independence and the rule of law, and I would not be surprised if within the next two years the government announces a “review” into the judicial appointments process with a view to “injecting democracy” through some form of ministerial or Parliamentary oversight.
CS: Research from The Bar Council shows that the impact of COVID-19 has fallen disproportionately on barristers that are publicly-funded. Criminal barristers have suffered a 75% reduction in fee income, with 38% of them questioning whether they will still be practising in 2021. How does it make you feel reading those statistics?
SB: I want to cry. Due to the government’s refusal to fund courts to get Covid-safe criminal trials up and running, we have all been living off savings, loans or our tax accounts for nearly 9 months, while the government has refused to extend any meaningful support whatsoever to chambers or the publicly-funded Bar. Again, it boils down to the complete absence of understanding or care in government for the value of the independent legal profession or the rule of law.
CS: What do you think it will take for the government to take action?
SB: They won’t. It doesn’t matter what happens – they won’t. Whatever catastrophe befalls the system or the public, this government will lie and deny and blame somebody else.
"One reform I would like to seriously consider would be requiring juries to give reasons for their verdicts. It is an anomaly that the part of our justice system that has the greatest power to deprive liberty operates in complete secrecy."
CS: Are there any models of criminal justice in other countries you admire and think we should aspire to? Briefly, what reforms do you think are necessary to sustain a robust criminal justice system?
SB: I think all systems can learn from each other. One reform I would like to seriously consider would be requiring juries to give reasons for their verdicts. It is an anomaly that the part of our justice system that has the greatest power to deprive liberty operates in complete secrecy. In Spain, for instance, juries are required to give reasons for verdicts, setting out what evidence they did and did not accept. This not only assists open justice, but would allow us to properly assess whether juries are operating as they should, and to identify where things might be going wrong.
CS: What has inspired you to speak out on the issue so publicly? What role has your anonymity played?
SB: It was all the fault of my partner, who politely suggested that I take my nightly complaining and share it with the internet instead. I could not believe that the system could be so fundamentally broken and yet there was almost no public awareness; the public perception seemed to be that the only problem with criminal justice was those “soft sentences” they read about in the tabloids. Being exposed to the daily reality of a system that fails so many people who rely upon it became too much to stay quiet about. Anonymity has been vital in this respect. It allows me to speak freely and independently about the problems in the system in a way that simply wouldn’t be possible under my own name.
CS: Do you find it difficult to maintain? Do you have a network of people who know your true identity?
SB: It has now been five years and so has just become a part of everyday life. A very, very small number of people know – far less grand than a network.
CS: Have you been surprised at the attention your books/twitter platform has received?
SB: Constantly. That people have interest in listening to an anonymous law rabbit on the internet is a source of perennial bafflement.
CS: Are you confident that this will translate into more support for reform?
SB: No. At least, not yet. I think awareness of the problems in the system is slowly growing, but sadly I fear it’s some time before it will be on the government’s radar.
CS: What advice would you give to students seeking a career in areas of law that are funded by legal aid?
SB: Do it. Go in with your eyes open to the pressures and the risks, but legal aid desperately needs good people.
CS: What lifestyle can a junior entering criminal law expect today?
SB: Not an easy one. Especially not in London, where work is relatively scarcer and living costs far higher than out on the Circuits. I speak to a lot of pupils and tenants from across the country, and the overwhelming consensus is that you have a far better chance of forging a Crown Court practice, and enjoying some sort of lifestyle, if you look outside the capital.
The Secret Barrister's second book, ‘Fake Law: The Truth About Justice in an Age of Lies’, is out now.