The Secret Barrister Read online

  THE

  SECRET

  BARRISTER

  Stories of the Law and How It’s Broken

  MACMILLAN

  For the third pig,

  who I begrudgingly concede is always right.

  For your love, strength and continued inspiration:

  as ever, that’ll do.

  Contents

  Introduction: My Opening Speech

  1. Welcome to the Criminal Courtroom

  2. The Wild West: The Magistrates’ Court

  3. Imprisoning the Innocent: Remand and Bail

  4. Watching the Guilty Walk Free: Prosecuting on the Cheap

  5. The Devil’s Greatest Trick: Putting the Victim First

  6. Defenceless and Indefensible

  7. Legal Aid Myths and the Innocence Tax

  8. Trial on Trial: Part I – The Case Against

  9. Trial on Trial: Part II – The Case for the Defence

  10. The Big Sentencing Con

  11. The Courage of Our Convictions: Appeal

  12. My Closing Speech

  Notes

  Acknowledgements

  Introduction: My Opening Speech

  ‘And so that is your defence, is it, Mr Tuttle?’

  A pause. His eyes dart to his girlfriend in the public gallery and back to me – a micro-glance, no more – but enough, I’m hopeful, for the jury to have clocked. I turn my head just slightly, crossing gazes with the lady on the front row at the far end. She’s noticed. She’s folded her arms. In fact, several of them have. The elderly chap in the navy blazer and beige slacks nudges the gingham-shirted, fabulously bearded fellow to his left, and they trade conspiratorial grins.

  The body language is not good for Mr Tuttle.

  He digs his fingers into the sides of the witness box, groping for the right response, oblivious that there isn’t one. As his cheeks flush and he shuffles his feet, he appears to look longingly at the dock at the back of court, stung with regret at his decision to leave the safety of its perspex confines and walk the long fifteen feet to give evidence in his own defence. He had to, of course. It is near-impossible to successfully run self-defence without giving your own account on oath as to why you brought fisty justice to bear upon the man next door. But it is obvious that, if Mr Tuttle could turn back time, he’d give serious consideration to exercising his right to silence.

  The double doors to my right groan. The usher slides in cradling his clipboard, pursued by a crash of law students, who are silently urged towards the public gallery. The only thing a barrister enjoys more than an audience is a bigger, more impressible audience. So I wait for them to squeeze themselves into the narrow oak pews in the back right corner. The lengthy pause, as Mr Tuttle weighs up how to answer my semi-rhetorical question, helps build the suspense. I savour it. I calmly top up my plastic cup from the water jug, and take an insouciant sip of water.

  As I do, I notice that all eyes in the courtroom are momentarily trained on a trailing undergrad who, having entered last, has managed to clout Mr Tuttle’s partner with his manbag as he climbs over her to the last space on the front row.

  She audibly mutters some choice expletives as the student removes himself from her lap. The clerk of the court, hitherto tap-tap-tapping away at her computer, looks up and stares.

  ‘What? He hit me in the face! Could have had my fucking eye out.’

  ‘Shhhh!’ the clerk hisses, waving a gowned arm towards the usher, who duly trots to the public gallery to administer a further, entirely superfluous, shhhh.

  I look up behind the clerk towards the judge, expecting some sort of judicial admonishment for these noises off, but Her Honour Judge Kerrigan QC is still leaning back in her chair and staring longingly at a fixed point on the ceiling. Now the casual observer may, quite wrongly, think this an indication that Judge Kerrigan is bored by the pedestrian advocacy of a twenty-something upstart apparently channelling an unholy trinity of the Jeremies Paxman, Clarkson and Kyle as they superciliously showboat their intellectual advantage over the bewildered Mr Tuttle. The same observer may, equally mistakenly, bolster this conclusion by reference to the way in which Her Honour appears to have been, at various stages during the twenty-six laboured minutes of questioning leading up to this point, closing her eyes and dropping her head, before jolting alert again with a quiet snort.

  But I know better. The Learned Judge is, quite plainly, bowled over by my oratory skill; no doubt mentally formulating the letter of praise that she will be sending to my Head of Chambers immediately the trial concludes. Advocacy, she will surely write, has a new champion. A golden age of justice is upon us.

  Everyone now seated and hushed, I can resume my sparring. Mr Tuttle again glances for reassurance to his girlfriend.

  ‘You won’t find the answer in the public gallery, Mr Tuttle.’ I obnoxiously smile at him.

  ‘It’s a very simple question. What you have said is what you’re honestly asking this jury to believe, yes?’

  This is an appallingly phrased, and wholly improper, question. Questions in cross-examination should strictly only be aimed at eliciting facts, not providing an opportunity for the advocate to comment. Closing speeches are where we get to make plain how preposterous we think the other side’s case is. And clearly Mr Tuttle is asking the jury to believe what he said, otherwise he wouldn’t have said it. But I’m feeling good, this is my first jury trial, and no one yet has interrupted to stop me. So I wait for Mr Tuttle’s response.

  He delivers another flick of the eyes to the gallery, and back. ‘Yes,’ he nods, any defiance long since melted.

  ‘How tall are you, Mr Tuttle?’

  ‘Dunno.’

  ‘Would you agree that you’re over six foot?’

  ‘Probably.’

  ‘And how much do you weigh?’

  It doesn’t matter what his answer is. Mr Tuttle is, at a conservative estimate, roughly the size of a supertanker, and, by obligingly wearing a skinny fit, short-sleeved white shirt, is displaying to marvellous effect every square inch of his tattooed mega-roided biceps. These questions are simply to hammer home the point.

  As he mutters estimates, I yank my black gown straight. Posturing with faux furrows, I turn to the jury and look towards crossed-arms woman. I catch her eye. She raises an eyebrow. She knows where we’re going.

  ‘And,’ I say, looking straight at the jury so as to maximize my apparent disbelief, ‘you are telling this jury that the blind man on crutches hit you first?’

  I swivel to him at those last three words and release them as slowly as melodrama allows. An audible snigger from my left tells me that Mr Tuttle’s goose is cooked.

  There is nothing he can now say to make his position seem less ridiculous. At this point in a boxing match, he would be hurried out of the ring by minders to avoid him doing himself any more damage. No answer can improve his position. One response, however, could take the goose out of the oven, elegantly carve it and serve it to the grateful cheers of the prosecution. And Mr Tuttle obliges.

  ‘It wasn’t how you’re making it sound, yeah?’

  The joy. I hear a stifled snort from the Crown Prosecution Service paralegal sitting on the row in front of me. My cross-examination, as written out neatly in the standard-issue blue counsel’s notebook perched on my lectern, was going to end on that last, over-gestated question. But now, not only is Mr Tuttle giving the jury an implausible story, he’s trying to wriggle out of it. The one thing worse than a liar is a liar lying about being a liar. So I treat myself to an encore.

  ‘It wasn’t how I made it sound?’

  ‘Nah.’

  ‘Well, we know Mr Martins is blind, yes?’

  ‘Yes.’

  ‘And you agree he was on
crutches?’

  ‘Yes.’

  ‘And you say that he hit you first?

  ‘Yeah.’

  ‘Right. So, let’s try again. You’re saying that the blind man on crutches hit you first, aren’t you?’

  ‘Umm . . . yeah.’

  ‘Right.’

  As I take a beat to work out how best to gracefully conclude, there’s a frantic scrabbling noise from the end of Counsel’s Row – the long wooden bench at the front of court, facing the judge – as Tuttle’s defence barrister, Mr Rallings, a surly old hack of forty years’ call, furiously scribbles something on a scrap of paper and thrusts it with force along the bench towards me. Up until this point, Rallings has done his best to maintain a rictus poker frown as his client merrily yanks pins out of grenades and stuffs them down his trousers. But now he’s stirring.

  I take it. This is unnerving. Why a note, mid-cross-examination? Have I done something wrong? Is he pointing out that I’ve said something that breaches a vital rule of evidence or court etiquette? The blood rushes to my face as the panic takes hold. I have not been doing this long. I don’t know what I’m doing. I’m a Crown Court virgin – no, a baby, a zygote. What fatal sin have I committed? I’ve blown it. I must have. Lord knows how, but the look on Rallings’ wizened face – that cocksure lip-curl-cum-snarl – tells me all I need to know. Carried away with the myth of my own brilliance, I have somehow fluffed it all up. I have flown too close to the sun on wings forged of a misplaced confidence in my plainly meagre ability. I’ve kicked off my Crown Court career by losing the unlosable trial, and this scrumpled grey leaf of A5 bears my epitaph.

  I try to feign composure as I unscrunch the note. Whatever it is, I silently counsel, it will be OK. I have my Archbold – the criminal lawyer’s bible – to extricate me from any legal problem. I have the warm embrace of a four-legged friend waiting at home if I’m ultimately disbarred. Things will be OK.

  I glance down at what Rallings has to tell me.

  On the paper is a really rather good drawing of a stick man in a wig. He’s sobbing into his arms. He has a little goatee like Rallings. Below the impression, Rallings has simply written: THIS IS A FUCKING TURKEY SHOOT.

  He nods grimly, leans back and looks at the jury. And, then, with an almost imperceptible glint in his eye – a comradely tell of shared ownership of a moment, a sinking defendant setting fire to his own lifeboat, that we’ll both remember for years – he turns to me, angling his head out of the line of sight of the jury. And winks.

  This, ladies and gentlemen, is the English and Welsh criminal justice system in action. I don’t suggest it is the finest example, but it serves as a rough extract of how contested matters of criminal law are settled. And it probably broadly conforms to the picture most of us in the UK immediately summon to mind when we think about justice. Whether learned from first-hand experience or absorbed from pop culture, we all share a conception of criminal justice that we have come to accept as representing the way things are done, and the way things should be done. It’s culturally embedded, like apologizing when someone else bumps into you, or avoiding eye contact in a lift.

  For some of us – if my non-lawyer friends are a reliable barometer – this mental portrait of English criminal justice fuses Judge Judy unholily with that scene from A Few Good Men. Others fall back on the home-grown motifs of Rumpole, Kavanagh QC or, lord help us, All Rise for Julian Clary.1 But whatever variants we visualize, we probably all agree on the basics: an adversarial battle – adversarialism being a loose term for the model pitting the state against the accused in a lawyer-driven skirmish for victory played out before an impartial body of assessors – comprising a courtroom, judge, jury, accused, lawyers, witnesses, questions and speeches in some sort of configuration. And plenty of wigs.

  That, for most people though, is possibly where contemplations on criminal justice end. I imagine 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.

  We are yet to find a society that does not have rules surrounding the behaviour of its members and sanctions for their transgression. Agreeing social imperatives and taboos, and enforcing them through shunning, appears to be instinctual behaviour in cooperative primates2, and the notion of a codified criminal law can be traced back to Bronze Age Mesopotamia and the Code of Ur-Nammu in 2050 BC. The precise rules have since differed across time and geography, but a mechanism for administering criminal justice always exists. To commit a crime is to break a law that offends not just those directly affected, but strikes at the heart of our communal values so deeply that we agree that organized, coercive action is required to mark the affront. Crimes are marked as the gravest breaches of our social codes which, unlike civil wrongs such as breach of contract, the state cannot leave to individuals to privately arbitrate.

  The criminal law establishes the boundaries of our humanity by identifying the no-go zones and endowing the state with unique powers of correction intended to punish, deter, protect and rehabilitate. Crimes are the legal disputes that evoke primeval, visceral reactions in people with no stake in the fight, intruding through screens and leaping off pages and into our core identity, pinching and testing the standards by which we define ourselves. If crimes are permitted to occur unaddressed, or are attributed to the wrong person, the harm extends beyond those directly involved. It means that our streets are less safe, our values are undermined and our personal liberty is at risk. A fundamental term of our social contract is that the rules are enforced fairly against us all; a breach of this term offends our innate sense of fairness like little else.

  And it is not merely theoretical. While we may not wish to think about it, for most of us the impact of criminal justice will someday be immediate and all too tangible. It is certain that at one point in your life, you or someone you love will be in a criminal courtroom; whether it is as a juror, a victim of crime, a witness or locked behind that perspex screen at the back of court, screaming your innocence and flanked by bruising security guards dragging you down to the cells.

  I can understand why people might only think of criminal justice in the abstract. Without first-hand experience of the system, it is easy to not give its impenetrable workings much of a second thought. But that first direct contact changes everything. At this point it is brought home, vividly and viscerally, what criminal justice means in practice; not abstract concepts in dusty textbooks, but a suffusion of humanity – tears, blood, anger, loss, redemption and despair. ‘Dispensing criminal justice’ means changing lives forever. The trial process and court’s judgment can tear a life apart. Families can be broken, children separated from their parents and people locked up for decades. A miscarriage of justice can leave the aggrieved confined, metaphorically or literally, in a prison from which there appears to be no escape. While in the UK the state no longer has the power to kill at the end of a criminal trial, functioning justice can still ultimately be a matter of life and death.

  Furthermore, until that first contact, you may take for granted that, much like other inscrutable fundamentals of our society such as intelligence-gathering, refuse collection or library cataloguing, when required the system will broadly, allowing for the margin of error common to all state-delivered services, work as it should, and that the right outcome will be delivered in the end. This entirely understandable complacency is, for many people I meet, what makes that first immersion in the criminal justice system so shocking, as they realize not only how strongly they disagree with the way in which our society prioritizes and dispenses justice, but how, quivering outside the courtroom door, it is now
too late to do anything about it.

  As someone immersed in the fog of the criminal courts, 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.

  When you have sat in as many decrepit court cells or tired, coffee-stained witness suites as I have, looking into the eyes of someone whose most basic sense of what is ‘fair’ and what is ‘right’ has been entirely crushed by their exposure to the criminal justice system, you can either slink into jaundiced defeatism, or you can sound an alarm.

  This is what I want to talk about: to explore why criminal justice matters, and to show how I think we are getting it so wrong.

  But first, a bit about me. I’m a criminal barrister. Not a particularly special one. My cases, by and large, aren’t the ones you’ll see on the news. I am the kind of jobbing, workaday junior practitioner whom you may find representing you if you suffer the twin misfortunes of being accused of an everyday criminal offence, and of not having available to you someone a little bit better.

  I’m a ‘junior’ barrister in a similar way that the term is applied to junior doctors. It is not a signifier of youth, rather a catch-all for any barrister, from trainee (or ‘pupil’, in the legalese) up to grizzled old warhorse, who has not been appointed Queen’s Counsel (the honour bestowed upon the most impressive in our ranks).

  Hopefully, our paths will never cross. But if they do, I can guarantee that, like an undertaker or a clinician at an STD clinic brandishing a cotton bud, it will be at one of the lowest points of your life. Ours is the trade in human misery; the grotty little cousin of the finer, more civilized, more commercial tributaries of the law.