The Secret Barrister Stories of the Law and How It’s Broken – a family barrister’s perspective.

This is a guest post by barrister Zoe Saunders. Zoe tweets as @ZASaunders.

 

Unless you have been living under a rock you will have noticed that the Criminal Bar are on strike over yet further cuts to their already inadequate pay. You may also have noticed that lots of criminal trials seem to have imploded over failures of disclosure by the CPS and this seems to have caused a bit of a fuss. You will probably have heard mention of the Secret Barrister in relation to one or both of these, so who is he / she and what do these things have in common?

 

If you follow any lawyers on twitter you will already be familiar with the Secret Barrister who is often retweeted for their insightful comments on criminal cases that hit the media, demolition of the Daily Fail’s usual headlines about X criminal ‘getting £XXX,000 from legal aid for blah, blah atrocities etc.’ not to mention amusing analysis of 80’s pop tunes.

 

I don’t know who the Secret Barrister is and anyone who does isn’t telling (yet...). Whoever they are they are going to fairly serious lengths to keep their anonymity for as long as possible (insofar as such a thing is possible these days) on the basis that they feel that what they have to say is better said from a nameless faceless everybarrister perspective rather than being connected to them and their specific practice. They explain this much better than I can here. There are already bets on over how long they can maintain their anonymity as most other ‘secret’ bloggers, commentators or authors have eventually been outed when they became sufficiently well-known, e.g. Belle De Jour amongst others.

 

Before getting into my views of the book I should probably clarify that unlike a lot of family barristers on circuit I have never done any criminal work, not even in the Magistrates Court. I knew (or thought I knew) a bit about the lot of the criminal bar generally after a stint on the Bar Council, but I am lucky enough to have never been involved in a criminal case personally or professionally and the rare occasions on which I have set foot in a Crown Court have involved family cases with prisoners which necessitated a change of venue but otherwise business as usual.

 

So what is the book about? The Secret Barrister says that the aim is ‘to explore why criminal justice matters, and to show how I think we are getting it so wrong ... my fear is that the public’s lack of insight into our secretive, opaque system is allowing the consecration of a way of dealing with crime that bears little resemblance to what we understand by criminal justice. 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.’

 

I must confess that at this point of the book I rather rolled my eyes and thought this was all a bit overblown, but I was wrong. By the end of the book I re-read that paragraph and thought it could even be seen as an understatement. I guess my view of the book as a whole was I knew it was bad, but I didn’t think it was *that* bad.

 

The book is loosely structured following the life of a criminal case and is an engaging mix of history, explanation and anecdote. It came as no surprise to discover that the Secret Barrister is just as fond of the Magistrates Court as most family lawyers and that in the criminal sphere they display the same wisdom and insight for which they are most cherished by us family practitioners. Of course the key difference is that the consequences for those who come before them in a criminal context are serious, although I am not sure that I would under-estimate the impact of Magistrates’ decisions in family cases where they control people’s ability to see their children and to raise them as well as now being empowered to deal with injunctions to protect victims of domestic abuse. Like the Secret Barrister I am afraid to say that the worst injustices I have ever witnessed have been at the hands of lay Magistrates and I entirely endorse their concerns that the growing emphasis on the use of Magistrates is about cost not justice.

 

Speaking of costs it is in bringing home the horrendous impact of cuts on the criminal justice system that this book really comes into its own. Even I was shocked by the extent to which chaos and inefficiency in the CPS and the courts is caused by resource issues and the impact that has on the system’s ability to deliver justice. For me it had uncomfortable echoes of the difficulties that Local Authorities have suffered in child protection work periodically caused by lack of resources.

 

My experience of Public Law work was a gradual decline in resources leading to problems bringing and running care proceedings until the tragic and preventable death of a child hit the headlines and then money was thrown at child protection, work loads almost doubled and panic ensued, until gradually the panic wore off and we were back to gradually declining resources. The descriptions given by the Secret Barrister of trying to get the CPS to produce basic pieces of evidence so that they could successfully prosecute a violent perpetrator of domestic violence reminded me forcefully of similar attempts to try to prevent care proceedings careering off the rails.

 

Similarly the ‘what about our statistics?’ Anecdote reminded me of the time that I insisted that if, at 19:00 on 23/12, the finance manager was the one saying that a mother and baby foster care placement was not available locally and there weren’t the resources available to fund one privately then he had better be the one to come to court and explain it to the judge, and yes that means this evening. Funnily enough the funds for a placement were suddenly made available.

 

The decimation of solicitors firms carrying out publicly funded work is a huge problem in family law as well as in criminal law work. At the moment with consolidation, expansion and diversification most firms are just about managing, but it is only a matter of time.

 

The criminal justice system is the canary in the mine for publicly funded family justice and the Secret Barrister is hammering on the alarm bell. We ignore them and the plight of the criminal lawyers at our peril.

 

Buy the book here.

Got Data Protection Rage (GDPR)

No. I won't be sending you a stupid GDPR email.

No. I won't be sending you a stupid GDPR email even though you have not heard from me for over a decade and are pretty sure you never bought anything from me in the first place.

No. I won't be sending you several reminders to check if you're really sure about the withdrawal of consent I've just pointlessly procured from you.

No. I won't be doing any of that (You're welcome).

I have (finally) added a damned cookie thing on the blog, but I hope that's a minor irritation amidst a sea of GDPR lemmingitis. I'm not completely convinced it is really necessary, but hey. Click it and it will go away for ever, I promise.

In fact I've been told off this week for NOT sending out my Monday morning emails. So Rebecca, this is your fault.

In other 'what is the world coming to' news, HMCTS security continues to delight and entertain us with it's popular confiscation roulette. Confiscation of ipad stands is last week's special - this week's was the confiscation of an advocate's high heels (and somewhat more unsually a septagenarian's cake slice). Back in the West Country however, my opponent trotted back from the coffee run in high heels with a massive borrowed metal roasting tin full of half a dozen lattes, unhindered by security staff. Neither the heels, nor the tin were confiscated as potential weapons, and nor was she required to sip or prod the froth on any of those coffees. For lawyers, who value consistency and predictability above much else, this is a cruel and unusual punishment indeed. We wince when our shoes are confiscated. We wince when they are not. These small daily trials of pointless arbitrariness and caprice have us lovers of logic and rules unhelpfully tense and ruffled before we've even crossed the threshold. The CEO of HMCTS is still gamely promising ID cards for us.

It doesn't get any better once you're in. The MoJ has put together some excellent public information materials for the unsuspecting litigant in person (pics thanks to @itsdavegreen). Of course, when I say excellent I mean utterly daft. And just plain wrong. Who knew that barristers give evidence on behalf of their clients? And who recognises the depiction of a courtroom populated with barristers AND solicitors and entirely devoid of mckenzie friends or litigants in person... Admittedly everyone is slightly green looking, but I don't think that is meant to be a visual pun...

Other obvious flaws in the poster (apart from the fact it clearly doesn't describe the shape of many family court hearings where there are more than two parties and a bench) are :

  • the fact that anyone is physically in a courtroom at all - wot no video links?
  • litigants in person will be unable to identify from the poster which of the lawyers are barefoot
  • although the posters probably meant to show equality of arms in action, there is a notable absence of any limbs at all. An armless omission perhaps...
  • I'm hoping that the fact there seems to be  single advocate for both parties is not portentous...

I wonder how many green lawyers at how many hearings the money spent on those posters could have paid for?

Anyway, in acknowledgment of the fact that this is a somewhat lacklustre blog post, do feel free to click unsubscribe if on its arrival in your bank holiday inbox you feel the need to cut me out of your life... *sniffs*

And if you have just arrived her under your own steam and think 'Meh' - well, you know... Maybe don't subscribe to my Monday mailshot.

Simples.

Left in the lurch

Last week District Judge Read (no relation) published a shocking judgment. I have been thinking about it a lot, waiting for enough quiet time to write down my thoughts about it. I am very bothered by it.

The judgment is here : JY v RY [2018] EWFC B16 (27 April 2018).

In the meantime a number of others have written their own posts on the judgment, and I link to some of those at the end of this post. The case has also, belatedly, made the BBC news.

District Judge Read was tasked with conducting a fact finding hearing in relation to allegations of domestic abuse including rape, made by a mother against a father. He had to make findings one way or another as a basis from which safe decisions about contact could be made. Neither parent was represented (they were not eligible for legal aid), and so the judge undertook questioning himself, working from pre-prepared questions submitted by the parties. Or he would have done, but for the fact that the mother was too stressed out to prepare any questions for the father, and left the witness box half way through questioning and would not be persuaded to return.

The upshot was that the judge felt unable to make all of the findings as some of the evidence had not been tested. He said this :

I am in little doubt that had one or both of these parents been represented, the fact finding process and probably the outcome would have been very different...

the lack of legal representation gravely affected the fairness and efficiency of the process of questioning both parents. So far as my role in this was concerned, although I did my best to abide by the guidance in PD12J at paragraph 28, I was hesitant about participating in this way, being reluctant to be seen to step into the arena myself. Ours is an adversarial (i.e., led by opposing parties) not an inquisitorial or judge-led legal system: judges have neither the training, tradition nor natural inclination to subject witnesses to detailed questioning...

No English or Welsh criminal court would proceed as this court had to, in the absence of representation for parties dealing with such grave allegations...

I therefore think there is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented.

He also said that there was no bundle, police disclosure was a mess and the mother had been unable to prepare questions without the help of a lawyer.

The judge did make some findings of domestic abuse, and based on those he said that :

There is always the fear in the mind of the Court that the questioning of an alleged victim about their abuse merely prolongs that abuse by other means. Given my findings in this case, limited though they are to only the first few allegations, I think that fear is borne out here.

Basically, the judge is saying that the cross examination (even through the judge) was abusive.

For me the most striking passage is this one :

I therefore think there is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented. [underlining my emphasis]

I have struggled to read this in any other way than as an acknowledgment that the judge believed (at least some of) the further (more serious) allegations, but didn't feel that he could legally 'find' those allegations proved because of the limitations of the process.

I am surprised that the judge did not give both parents permission to appeal.

When I read this judgment I immediately thought of a case last year called A (A Minor : Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam), in which Mr Justice Hayden (a more senior judge than Read) was faced with a similar situation : a father accused of domestic abuse who appeared in person, but there he permitted the father to ask questions directly (the judgment doesn't show any consideration of questions being put by the judge himself so we don't know if that was considered and rejected or if it was just not raised). At the end of the trial Hayden said :

It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.

It's not clear in that case whether the difficulty was around a lack of legal aid or a choice by the father to represent himself. There was some press coverage at the time - see for example "Judge vows to ban domestic abusers from cross-examining victims in his court". Sadly that press coverage didn't result in any change to the funding or legal position.

The predicament in District Judge Read's case was even more complicated, because the issue was not just about the father asking her questions (which Read attempted to solve by asking questions himself), but the mother's lack of legal support exacerbated matters and prevented her from running a positive case and left her struggling to deal with the pressures of cross examination.

I think it was absolutely right, and fearless of both judges to publish their judgments in the way they have. But whilst it is all very well for a High Court Judge like Hayden to stamp his feet and say "I won't do it!", that is much harder for a District Judge. Refusing to hear the case was not an option, and I can't think of much else that District Judge Read could have done to magically make this process more satisfactory - but I am deeply deeply troubled by the fact that the judge conducted the trial, made findings (including as a matter of law that some of the mother's allegations didn't happen because they weren't proved) and then published a judgment telling the world that those conclusions were probably wrong.

How is that justice to either party? And what is the point of a fact finding hearing if the court itself has to acknowledge that it is probably not an accurate reflection of the facts and the risks? How is that keeping children safe?

There is no news of a replacement for the lost Bill that fell when the General Election was called last year, which would have at least dealt with the direct cross examination point. Even if those provisions do re-emerge in a new Bill, they will not cure the difficulty faced by DJ Read - that the mother was debilitated by a lack of her own legal representation - because she did not meet the eligibility criteria for legal aid (presumably because of enhanced benefit income or the amount of capital in her property).

There has to be a better way than this. Even ignoring legal fees, vast amounts of public money are spent on fact finding hearings like this in terms of court time and judicial salaries, and on the work by other agencies that follows and is based upon the findings. It is money down the drain if the findings are as unreliable as this judgment candidly accepts they are.

[update 2 mins later : oh rats I forgot to add links to other posts...

Here Is Gordon Exall's take. I will find the rest in the morning!!]

[Further update :

See also : Matthew Richardson on Family Law Week.]