We learn about criminal justice systems through the use of TV or by reading about them in legal thrillers. The hero moves from one court to another as we enjoy these twists and turns of the plot and find ourselves lucky that we will never be in their shoes against such criminal accusations. However, you should not take it for granted.
At some point in your life, you will find yourself or someone you care about within the machinery of your legal system. Thus, it is extremely important for us to learn just exactly how this machinery works.
The Secret Barrister aims to help people by revealing the truth behind the justice system in England and Wales. The system suffers from a lack of money and resources due to a couple of reasons; political budget cuts and general lack of knowledge about what is really going on in the system. This issue is so serious that the very foundations of the system are under threat.
England and Wales have developed its own rules and traditions regarding their criminal justice systems.
You don’t have to be born in the United Kingdom to know about a British courtroom as you’ve probably seen one in a TV show or a film. Those odd wigs and gowns they wear may even pique your curiosity.
Those wigs and gowns, together with many aspects of the criminal justice system, are part of an ancient tradition of many years. We ought to inspect the system in depth before we get into some of those traditions that need revising.
An English or Welsh criminal trial involves a judge, a jury and the person accused of the crime, similar to the justice systems of other countries. In addition, there are barristers and solicitors.
There has been a distinction made in English courts between the barrister and the solicitor since the fourteenth century. The barrister is a courtroom-based lawyer who presents the cases to the court whereas the solicitor is the lawyer who directly deals with the witnesses while giving advice to both the barrister and the client. There are good solicitors who work genuinely hard to support their clients and there are also exploitative solicitors who abuse their power and give lawyers a bad name.
Another important thing we have to consider in the criminal justice system is called Crown Prosecution Service or CPS in short. Compared to the others, this is a new addition to the system as it was established in 1985 with the Prosecution of Offenses Act. Before CPS, the police were responsible for charging suspects with a crime. However, to improve both consistency and efficiency in filing charges and preparing cases across the countries, the CPS was born. Now, every case is first inspected by the CPS before going into the hands of the barrister.
We should also take into consideration that, unlike in some other countries, the author, the barrister who handles criminal cases, serves both for the defense and prosecution, sometimes within the same day. Even though it sounds unusual, the author argues that doing so will result in you becoming a better lawyer overall. Knowing both sides of the process help you to know what to expect before the case begins.
All criminal cases come from the Magistrates’ Court, a place is known for being full of problems.
In England and Wales, there are several courts which deal with different types of crimes and problems. Even though this is the case in many places around the globe, in England, the current division of courts dates back to 1195, when Richard I provided the local communities with their own Justice of the Peace (JP), so they could deal with their own small problems like rioters and fraudsters.
Over the years that followed, these JPs started to gain more and more authority when they had to deal with petty crimes such as fine violations or jury trials involving more complicated crimes like larceny. These local JPs were also called magistrates. It was not unusual for a magistrate to hold a trial in his living room as these officials were merely local men without proper education or training.
The Magistrates’ Courts still exist even today. Some of these old traditions and together with new complications have created problems.
First of all, the courts are the first stop for any criminal case to determine whether the accused will receive bail or not. Though the Magistrate’s Court is no longer held in places like living rooms, the overseers of the cases are still untrained volunteers.
In other words, the decision to strip one of their liberties and placed in prison cells for six months or more while they await their trial – possibly losing their jobs, friends, family and so forth – are made by men with no training or legal knowledge. If this is not concerning enough, decisions on bail are made based on the information found in incomplete or inaccurate case files due to budget cuts and insufficient resources within the CPS as mentioned above before.
According to laws that originated in the seventeenth century such as the Habeas Corpus Act and the Bill of Rights, it is unjust to imprison people merely on accusations. The European Convention on Human Rights also criticizes the idea of locking up people without adequate reasons and proof. Yet, this is exactly what happens when a magistrate makes decisions based on incomplete or inaccurate evidence.
We will take a closer look at the mistakes of the CPS and their case files in the upcoming chapter.
As a result of detrimental budget cuts, the guilty are often set free.
Criminal cases are currently being pushed by in order to deal with them as swiftly and as cheaply as possible. People who work in the criminal justice system are forced to do more things while having less due to the general policy of “stack ‘em high, sell ‘em cheap,” which is born out of cutting costs.
The CPS has cut the budget by 27 percent since 2009. In addition, over the past eight years, almost a third of the staff has been fired to save more resources. Many people suggest that by digitizing the records and also using email to move files the CPS could save even more money and resources.
There are still heroic staff members in the CPS who try really hard to make things hard. However, despite their efforts, the barristers receive one out of five cases with incorrect or insufficient information on which charges were filed by the police and which are not. In one in ten cases, some critical pieces of evidence such as the accused who was acting in self-defense are being failed to be recognized. Finally, in one in six cases, the file is quickly pushed through without even reviewed by any CPS lawyer.
There is also the problem of time when reviewing cases. Barristers get their daily case assignments but they usually have to review them within hours before present it in the court. Therefore, there is a chance that a piece of important evidence could be missed or other issues regarding the case in the file. As a result, criminals might get away with their crimes because of this time issue.
For example, there was a particularly problematic case regarding a young woman named Amy. Amy was brutally beaten by her boyfriend and spotted by a passing taxi driver. She suffered serious injuries such as a broken jaw, a fractured wrist, and even a fractured eye socket. However, the critical evidence regarding Amy’s statement and her medical records were missing.
The author tried to do everything in their power and made a request so that the police could speak to Amy in order to get her statement and pick up her medical records. What they received back was surprising. They got a memo saying that the police spoke with her and that she was willing to give a statement and have her medical records checked.
Apart from the author who made the request, even the magistrate was very confused that the police professedly visited Amy but not taken her statement or picked up the medical records. The magistrate gave seven more days for this situation to be taken care of, otherwise, the case would eventually be dismissed. The author sent many more requests and used their power to solve this case. However, in the days followed, nothing came back. Unfortunately, Amy’s abusive boyfriend was set free.
Corrupt solicitors give defense counsel a bad name yet they play an important role in keeping the innocent people out of jail.
The criminal justice system was originally designed to behave in the public’s interest. This, undoubtedly, means that people who broke the law were to be prosecuted. However, it also means that people have to be protected from being falsely convicted of crimes they did not commit in the first place. This is a job for the defense counsel.
Popular belief suggests that defense lawyers are suspicious and unreliable characters who do everything in their power to get a not-guilty verdict. This is very far from the truth considering the barristers. Barristers follow a strict law that prohibits them from deliberately lying. As for the authors’, none of them would break those rules or purposefully help a guilty defendant go free.
Aside from them, there are a group of corrupt, vulture-like defense solicitors who continuously give the defense counsel a bad name. For some time, the firm of Keres & Co. was considered to be the worst of the worst. Mr. Keres would offer his services to the people who were recently arrested. He would receive the legal aid fee and disappear into thin air.
The author experienced this nefarious act up close while trying to defend a young man named Darius. Darius got into a fight with his father and in the end, he took five pounds out of his father’s wallet. His father, of course, reported this as a robbery and Darius was quickly arrested and soon put into jail. The person who was supposed to represent Darius was Mr. Keres himself. Yet, he never once showed up or explain why Darius was even in jail.
He also did not explain what charges he was facing or help him take his medication he was supposed to take. The author wanted Keres to take action and struggled to do so for many weeks. In the end, the author’s efforts were in vain.
Fortunate for other victims like Darius, Keres’ firm was shut down. However, there are still a lot of firms and people like Keres walking free. In addition, there is the issue of legal aid to consider.
People who have insufficient superfluous income are offered legal aid in England and Wales. This currently includes anyone with a disposable income of less than £37,500. Even though it seems plenty at first, we have to take into consideration that most private defense counselors demand a fee that costs between £100,000 and £300,000.
In 2016, it was revealed that 15 percent of the people who were put in jail without bail was later discharged. It is true that we cannot determine just how many people were wrongfully convicted. However, it is still possible to observe such events as we will discuss in the next chapter. The chances of this happening increase when we fail to obtain a reliable and strong defense.
The accusatorial justice system might be replaced by the inquisitorial one because of its advantages.
Almost no defense barristers enjoy cross-examining a witness who is testifying that someone sexually assaulted or abused them. In England and Wales, this tradition is a very common feature of an accusatorial type of criminal trial. The accusatorial process even demands that the victim relives their horrible experience on the witness stand in front of other people and then have their story inspected by the defense.
The author was given the case of defending Jay, a man accused of raping his children throughout their lives more than once. This revealed the imperfect and rudimentary aspect of the accusatorial which suggested discrediting the witnesses. Jay never admitted to any of his malpractices.
However, something about his odd behaviors and the way he strictly declared his innocence while his children’s eloquent claims against him made the author doubt his innocence in the end. The author also wondered if it was really okay to thoroughly examine the psychiatric history of Jay’s children to find important evidence that might clear their doubts in front of the public.
Some people argue that the inquisitorial justice system that is used in several continental European nations like Germany and France is a better alternative for the accusatorial one.
In the accusatorial process, the prosecution presents their case first and then the defense tries to weaken it. On the other hand, the lawyers are largely sidelined in the inquisitorial process.
Thus, in an inquisitorial trial, a single judge reviews all the evidence collected previously rather than allowing two lawyers to fight in order to suppress certain evidence that might damage their case. Also, the complainant is empowered in the inquisitorial process because they act as a “subsidiary prosecutor” instead of being victimized all over again before the public. While in the position of a subsidiary prosecutor, they are free to make suggestions such as helping the judge ask better questions when interviewing a witness.
The inquisitorial process tries to solve the case as soon as possible without creating too much drama instead of cross-examination questions, plea-bargaining to avoid undesirable verdicts or trying to exclude damning evidence as we can observe in the accusatorial process.
Therefore, is the inquisitorial system can be considered more advantageous than the two-sided approach of the accusatorial system? We will dig deeper and try to find an answer.
The state needs to be unbiased in order for the inquisitorial process to work, that is why we also need a thorough defense system.
Many people seem to find the inquisitorial process more appealing because of its straightforward pursuit of truth which lies at the core of the system. However, for this system to work properly and efficiently, the evidence presented by the police or the state must be adequate and successful. We do not have to look hard to see that the evidence is neither perfect nor successful.
In 2017, Chief Inspector Kevin McGinty inspected the quality of cases being prepared by the police and CPS in a joint report led by him. Only twenty-two percent were found to be “wholly inadequate,” 33 percent was considered to be “poor,” and more than half of them were inadequate in a sense that there were no apparent suggestions as to which evidence should be shared with the defense.
These can be considered honest human mistakes made by the state but they do not include the number of cases where police officers use falsified evidence to arrest someone. Even though these kinds of things do not happen as often, there is still a chance of it happening which is why we need a thorough examination by the defense in an accusatorial system so that we could keep the process somewhat honest.
The criminal justice system, conclusively, is not completely immune to biases or political influences. Because authorities are scared of the political backlashes of confronting them, many powerful men and women manage to escape prosecution.
Therefore, there are a couple of things we may be able to take lessons from the inquisitorial process. The first of them is to stop harassing witnesses in cross-examination specifically in sex crimes. Instead of making them recount the incident months or years after the fact, we could take a witness’ first statement on record as their final as the inquisitorial process does. Ultimately, distance from the event does not particularly make their memory any better.
Another advantage of the inquisitorial process is to deliver a reason for a verdict. Now, when a jury offers their final verdict, we do not know why or how they reached that conclusion. Alternatively, we are left clueless about this mysterious process to present a verdict. This mysterious process of delivering a verdict can make things even more difficult. On the other hand, in the inquisitorial process, they offer reasons for the decisions they make. We could also do the same thing and make some things easier and better.
The guidelines for sentencing are puzzling and prisons are not a deterrent factor to committing a crime.
The process is not completely over even when a guilty verdict is reached. After that, the time comes for the sentencing part of the trial. This part is very complicated due to the guidelines for sentencing a convicted criminal is a huge and mostly puzzling mess that takes up around 1300 pages. To emphasize just how complicated this process is, Supreme Court judge Lord Philips said: “Hell is a fair description.”
It is not very surprising to us to find out that sentencing a convicted criminal does not always go according to the plan in England and Wales. In a 2012 study, legal expert Robert Pranks reviewed 262 cases and found that in 36 percent of them, the sentence handed down was “unlawful” and should never have been given by the judge.
It is still not over when a person sentenced to prison as new problems occur. The prison should be a serious deterrent to crime and essentially a place of rehabilitation but sadly, it is neither of them.
For example, the statistics show that 60 percent of those sentenced to less than a year in prison will commit another crime. And among released prisoners, 46 percent commit another crime only within a year of being released. Thus, these statistics clearly show that there is something seriously wrong with the system.
There are some presumably simple steps that could be taken to improve the critical system despite all these problems. Meanwhile, the criminal justice system could also get the money and resources it needs.
First of all, the media and politicians could present a better and possibly more accurate depiction of how the system works. Most of the time, as we see in TV shows and films, they make it look as if public funding makes barristers extremely rich, gives criminals a free defense and provides prisoners luxurious things such as Sky TV.
In reality, however, a barrister makes somewhere between £9.28 to £18.95 per hour. The reality of being locked up in a prison is even worse. They stay locked up almost 23 hours a day in rat-infested surroundings while trying to eat their meals next to an open toilet.
Therefore, the public needs to be properly educated and informed by the media and politicians. Their money keeps the guilty from going free and the innocent from getting locked up. As a result, proper funding and resources would be easier to get. There is a chance that you or someone you care about may need to rely on this system some day.
The Secret Barrister: Stories of the Law and How It’s Broken by The Secret Barrister Book Review
It is true that the criminal justice system of England and Wales needs some serious changes. However, these changes should not be budget cuts or some sort of belt-tightening which the politicians urging others. Criminal case files regularly land on the hands of barristers before getting inspected properly because the budget cuts caused the system to be extremely underfunded and even understaffed.
As a result, criminals manage to slip through the cracks and the innocent people get locked up without adequate evidence. The laws which surround the criminal justice system have to adjust with our values regarding justice and fairness. There need to be revolutionary changes in how this current system works.