Comment

The Secret Barrister: A year of rubbish media reports and the public is dangerously disconnected from criminal law

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The public should be outraged by the justice system — but not for the reasons they think

The criminal law has long had an image problem.

Partly, the fault is internal: the ridiculous costume; the alienating hybrid of legalese and obsequious formality that renders court hearings nonsensical to anyone in the public gallery; the impenetrability and inaccessibility of updated statute and case law; the historic failure of those of us in the system to lawsplain to those outside how justice works and why our founding principles are so important.

But part of the problem is broader: the refusal of successive governments to provide any meaningful legal education in schools; irresponsible and inaccurate news reporting; and legal illiteracy indulged and expounded by politicians using the law as a cheap crop to beat their hobby horse of choice.

The result has been inevitable. Centuries of compounded negligence have culminated in a disconnect between the criminal justice system and those it purports to serve. And most days it feels as if it’s getting worse. No longer are rabble-rousing mis-reports of legal stories confined to a day’s news cycle before being scrunched around tomorrow’s cod-and-chips; the rags are now frequently doused in the kerosene of social media and sizzle with white hot rage for days, weeks and even months on end.

While I don’t pretend that this is a problem confined to criminal law, it is often the tales of “soft sentences” and “putting criminals’ rights ahead of the victim” that burn the brightest. The formula is predictable: there will be a headline attack on an “out of touch” judge (pictured, for enhanced ludicrousness, in their ceremonial wig), with a decontextualised snippet of the judicial remarks and a gaping absence of informed fact or sober analysis.

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And over the past twelve months, we’ve suffered 365 Groundhog Days of these. The case of Ched Evans kicked things off, with outlets eager to report the outright untruths of politicians suggesting that this case set a dangerous precedent allowing complainants in sex cases to be gratuitously humiliated in court over their sexual history. A campaign to not just reform section 41 of the Youth Justice and Criminal Evidence Act 1999, but to issue a blanket ban on any questions about sexual behaviour, is still being propelled by several MPs. It matters not that to do so would result, inevitably, in vital defence questions being prohibited and innocent people being convicted. A straw man effigy of section 41 has been hoisted onto the bonfire along with the presumption of innocence, with Harriet Harman proudly holding aloft the matchbox.

A run of sentencing “outrages” has followed.

The man who beat his wife with a cricket bat and was spared jail, because the judge deemed that the victim was “not vulnerable” (except the judge didn’t say those words, and it wasn’t the reason for the custodial sentence being (initially) suspended). The paedophile released only five years into a 22-year prison sentence (except it wasn’t a 22-year prison sentence, and he served longer than five years). Lavinia Woodward, the Oxford undergrad whose gratuitous bikini shots accompanied the squeals of horror that this rich white girl had been spared prison for stabbing her boyfriend, just because the rich white judge thought she was “too intelligent” to be locked up. Was that the reason she was spared jail? Did the judge ever say those words? Are any more rhetorical questions needed?

Rarely, if ever, is the reader informed of the Sentencing Guidelines and case law that constrain judges as to their approach in these cases, and which explain certain terms deployed in the sentencing remarks. Rarely are those remarks published in full — a flaw in the channels of official judicial communications for sure, but also the responsibility of those trained in shorthand in the press gallery. And rarely is there any voice of expertise explaining the apparently inexplicable, or offering a counterpoint to the incitement to fulminate.

Sometimes, of course, decisions will be made in court which do horrify, and for which there is no sensible justification. But most often, a straightforward, prosaic explanation exists. It’s just not reported. Neither editor nor politician will deal in full facts, whether through ignorance or malice.

The greatest tragedy is that if, instead of scything the low-hanging, rotten fruit the reporters reached a little higher, they would find that there is so much in criminal justice for their readership and Twitter followers to get angry about.

There’s the obliteration of legal aid, cutting the middle-classes out of publicly-funded legal assistance if they are wrongly accused of a criminal offence. There’s the ‘innocence tax’, which means that if, having been refused legal aid, you pay privately for your defence, you are not allowed to reclaim your full fees even if acquitted. Everyone in the system can speak for hours about the stack-em-high, sell-em-cheap model of warehouse justice in the magistrates’ courts, which is being rolled out in the crown courts under the euphemism of glorious efficiency. Disclosure — the means by which most innocent people secure the key to their escape — is found by report after report to be an abomination due to a hybrid of poor training and insufficient resources at the cut-to-the-bone police and Crown Prosecution Service.

But these problems evade meaningful public scrutiny, perhaps through ignorance, or perhaps because it’s simply far easier to report, and get angry about, a pervert getting help in the community rather than rotting in our violent, suicide-ridden prisons.

Public legal education is needed now more than ever. The Solicitor General, to his credit, appears to recognise this. His new Public Legal Education Panel is a start. Something needs to change if the public are going to have a hope of recognising where the real problems in justice lie; and who, in reality, poses the greatest threat to their rights. The thing about criminal justice is that, for all too many people, the realisation of how far basic protections have been eroded only dawns when it’s too late.

The Secret Barrister is a junior barrister specialising in criminal law, who has twice been named Independent Blogger of the Year at the Editorial Intelligence Comment Awards. Their debut book, The Secret Barrister: Stories of the Law and How It’s Broken, is available to pre-order now.

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23 Comments

Anonymous

Good points. The public don’t appreciate the main offences clogging up the criminal courts relate to drugs and burglary to feed addiction.

Blue Serge Thinker

Not sure your claim that drugs are the main source of business for the courts bears up to scrutiny…
ONS figures released this week (Nov 2017) show that prosecutions for domestic abuse-related offences in the year ending March 2017 accounted for around 16% of all prosecutions in England and Wales.
In 2016 the four offence groups with the highest number of cases at court, in order, were; violence against the person, miscellaneous crimes against society, drug offences and theft offences.

Anonymous

Superb blogger! The book is on pre-order.

Anonymous

“Superb blogger! The book is on pre-order.”

Or ‘order’, as we used to say.

We Never Forget

In 2009, Shoosmiths deferred training contracts for up to two years without compensating them. They then got a bunch of trainees to write this: https://l2b.thelawyer.com/issues/l2b-online/shoosmiths-trainees-speak-out/. Never forget.

Anonymous

Bloody hell. Something well-written and worth reading on Legal Cheek. Bravo!

@nighthawkprof

edgy comment there

the issues here would be significantly less troubling if my suggested LA training “out of school” proposal were supported and if the profession fused

an orient inspired system of community adjudicators sitting in minor offences cases would also help — perhaps they already do this in scandinavia

i know i know — it’s the continent — but we can learn much from them

i’ve lived among the people of the orient their cultures are greatly misunderstood

Anonymous

You have just described a magistrates court. Well done.

Anonymous

There are lay adjudicators either side of the magistrate in the UK?

Anonymous

Magistrates ARE lay adjudicators.

They are not lawyers, they are not judges, they are not legally qualified, they are not salaried.

They are finders of fact assisted in points of law by the court clerk who is a qualified legal advisor who has no role in deciding matters of fact to reach a verdict.

Back to school.

Ben

Bravo, a very well written blog! However, I would contest the point concerning the Oxford undergrad. If she was an ethinic minority who had the same intellectual capacity but had studied at a state school, I highly doubt the judge would have reached the same conclusion using the same line of reasoning. But except for that, great blog.

Anonymous

You state no basis for your conclusion. Your contribution therefore does no more than repeat an insult to the judge. Bravo indeed.

Legion

An excellent piece and a good read. I think referencing the Woodward case was a poor example however and the author would have been better served leaving it out. The judge was duped by her and failed to realise what an unsavoury individual she is.

Scouser of Counsel

Lots of excellent points, well made. Couldn’t agree more.

Anonymous

Conflating the news media with social media? Bad argument.

Railing against tabloid reporting? No understanding of the nature or history of newspapers (it’s always been this way and that’s how the pops work).

Not enough money in the crim justice system? Fair point.

Anonymous

I agree with a great deal of this.

But think on this. The criticism levied is that criminal justice is broken because the media (social and paper) and politicians are too eager & too willing to criticise and misrepresent it. That they fail to give the full story, preferring instead the cheap easy thrill of a twisted version, a biased slant which does not, and cannot, ever tell the full story in all its complexity. They choose to cherry pick, rather than give a full version which may offer a different, or more accurate, explanation. The public are therefore left without respect, or appreciation, for an institution they should want to work well and work properly – which they need to work well, and properly – and which they should have some respect, or belief, in.

Now, is that not EXACTLY what the author does at every turn, but with politics.

“Neither editor nor politician will deal in full facts, whether through ignorance or malice”. “…legal illiteracy indulged and expounded by politicians using the law as a cheap crop to beat their hobby horse of choice”. The ‘innocence tax’ article – particularly the first few paragraphs – is a masterclass in snide.

The language SB choses is categorical, without nuance. Politicians (and journalists), according to the Secret Barrister, are either stupid, or deliberately cruel. In reinforcing this idea at every possible turn, is SB not performing the very act he criticises? Is he not undermining politics, by way of a cartoon portrait, an institution which is full of shades of grey, competing pressures, complexities – and which, despite the rotten apples, also contains a large amount of people driven by an idea of public service, not glory – much like the criminal bar. SB tells us they are all the same – bent on destruction for their own self-serving reasons and without any good intentions unmitigated by an eye on the prize. There is one explanation for their behaviour, for the outcome, and the slant always applied is the worst possible one. Tear them down, tear them down!

At the end of the piece we are told about Buckland’s new panel. SB reluctantly admits it might be a step in the right direction, although not until after he’s landed a dig at Buckland’s perceived silence about the abhorrent DM headline, by declaring: “That he stood silent as the Prime Minister implicitly condoned the monstering of independent judges as “ENEMIES OF THE PEOPLE” suggests his commitment to disabusing the public of legal ignorance is not absolute”

Yeah well, it wasn’t *quite* like that – http://live.barcouncil.netxtra.net/media/558494/01_-_bar_council_minutes_from_the_meeting_of_21_jan.pdf

For an alternative, see https://www.linkedin.com/pulse/law-continuation-politics-other-means-article-50-press-harwood-qc.

The Secret Barrister’s complaint is that it is all too easy, and lazy, to slag off lawyers, judges and the legal system. He is right. He also asserts that those who report on the law, and those who make it, do not take enough care to provide a deeper and more balanced analysis, that they prefer cheap digs over thorough analysis – and that, in do doing, they will end up destroying the system altogether and will only realise they needed it when it is all too late. Maybe the SB should apply the same logic to his statements about politics.

Anonymous

If politics and the legal system were on a par I might agree. However I would suggest we depend on the legal system and judiciary in ways far more fundamental than any dependence on political processes and politicians.

Anonymous

It’s almost like he’s advocating for his field!

Frankly

You want journalism to be about the truth, which is quaint.

Fashion Victim Besotted by Fantastic Toppest Barrister who should be Lord Chancellor of flowing skirts and diapers

This is so passeé only a non legal site would post it.

Curious George

And who is this toppest Barrister who should be the Lord Chancellor of Flowing Skirts and Diapers?

Ciaran Goggins

Sigh. You are a diamond geezer but far off the mark in the R v Evans case. Anonymity is for both sides – or neither. Current legislation is contrary to ECtHR Strasbourg as I mentioned to Mr Evans family. The appeal in Rees and Vians v Metropolitan Police will open up a Denningeque vista to awful to contemplate. Bent plod. Which is where I came in.

Paul Murray

“Rarely are those remarks published in full — a flaw in the channels of official judicial communications for sure, but also the responsibility of those trained in shorthand in the press gallery.”

Shorthand? Shorthand? Seriously? In a world where web hosting is a few dollars a month?

Put them *all* on the web. Everything the courts do that should be published, publish it. On the internet. I’m sure there are existing mechanism to do this in print, so it’s already being transcribed to some sort of electronic document.

The trick is to start small. The other trick is to start.

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