Review: The Secret Barrister, Stories of the Law and How It's Broken

by James Burley

The Secret Barrister’s Stories of the Law and How It’s Broken is a timely, powerful book. Written by an anonymous criminal law barrister, it exposes many of the flaws in our criminal justice system and the routine injustices that result.

The “wild west” of magistrates’ courts; the remorseless processing of cases with no regards to the quality of justice; the widespread failures by police and prosecutors to disclose key evidence; the “perverse” legal aid incentives which discourage proactive, quality defence lawyering – the Secret Barrister blows the whistle on all these failings and more.

Tapping on stories from their own first-hand experiences in the criminal justice system, the Secret Barrister also makes a strong case for why its deterioration should concern everyone. The book continuously points out that the system’s failings come at a steep human cost in the form of miscarriages of justice. And it challenges the widespread belief “that it will never be me”.” It in fact easily could be you, the Secret Barrister explains, or someone you love. Anyone can say they will never commit a crime. No-one can say that they won’t be falsely accused of one.

The book offers a much-needed dose of reality for those who proclaim that British justice is the best in the world. It’s good to see then that, thanks to a successful crowdfunding campaign by Young Legal Aid Lawyers and the Criminal Bar Association, all 650 of our MPs will have a copy.

What kinds of changes do those MPs need to make? Besides increased resources, they should pass reforms that reinforce open justice and equality of arms. The book’s critique of the inquisitorial criminal justice system used in some other jurisdictions condemns the idea of entrusting the investigation of crimes exclusively to the state. Yet that same argument could be levelled against our adversarial system: here, the police are tasked with impartially seeking evidence that leads both towards and away from suspects. In reality, of course, this doesn’t happen (see the Henriques report) and can’t reliably happen (see academic literature on confirmation bias and tunnel vision). Unlike in the United States, though, here there is no established profession of criminal defence investigators to act as a counter-balance.

The Secret Barrister also laments the decline of experienced court reporters and the knock on effect this has had on the public’s understanding of what goes on in our courts. There is of course a potential solution to this problem, namely the use of technology to make verbatim trial transcripts more accessible. Currently, transcripts are unaffordable and irresponsibly destroyed after just 5 years

The criminal justice system is of course vast and the Secret Barrister only ever claims to offer a “severely cropped snapshot” of its problems.  One issue the book’s scope does not encompass is the current state of the Criminal Cases Review Commission – the public miscarriages of justice watchdog that is supposed to act as a safety net for the wrongly convicted by referring their cases to the Court of Appeal.

As with the rest of the criminal justice system, the CCRC has been hit hard by cuts, with its budget being slashed by a third alongside a 70% increase in its workload. Unsurprisingly, this – along with a shift in emphasis towards processing cases more quickly – has negatively impacted on the depth and quality of the CCRC’s investigations.

Indeed, statistics suggest that the CCRC may be less able than ever to reliably identify miscarriages of justice: the proportion of cases it refers for fresh appeals fell from a historic average of 3.3% to an all-time low of 0.77% in 2016/17. Things are so bad that a recent BBC Panorama episode has questioned whether the body is still fit for purpose.

The Secret Barrister’s account of the appalling wrongful conviction of Victor Nealon omits just how seriously the CCRC let Mr Nealon down. Appallingly, Mr Nealon spent an extra decade in prison because in two separate reviews the CCRC refused to conduct the DNA testing that would eventually exonerate him. The body had dismissed carrying out the testing on the grounds it was “speculative”.

The book is a damning indictment of our criminal justice system and forcefully makes the case that all of us should care. Our newsfeeds abound with stories of how the law is broken – but the Secret Barrister makes clear that nowhere is this more true than in our criminal justice system.

James Burley