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.