As part of this year’s festival we hosted a panel called TRIAL AND ERROR: IS OUR CRIMINAL JUSTICE SYSTEM BROKEN? Chaired by NJ Cooper, the panel (William Clegg QC, Sarah Vaughan and the Secret Barrister) discussed various aspects of the law and whether it does, indeed, deliver justice.
As the Secret Barrister couldn’t be present, NJ Cooper had prepared and answered questions. We didn’t have time to cover everything SB had written, so here are the questions and answers in full:
Anonymity Why are you hiding your identity? If what you say about the criminal justice system is true, would it not have more force if you put your name to it? Forty years ago Robert Hazell wrote in The Bar on Trial ‘There is one other way in which the conventions and traditions of the Bar affect the development of the law and that is by ensuring that barristers who challenge the conventions do not reach positions of importance in which they can influence matters.’ Has career development got more to do with anonymity than the benefits of being able to be ‘candid’, as you put it in the book?
I write anonymously for several reasons. Firstly, it allows me to speak freely and candidly about criminal justice in a way that I simply would not feel able to under my own name. I can highlight problems by drawing on direct personal experience in my own cases, without fearing that I’m directing attention onto the people involved, who haven’t asked to be the subject of a discussion. So anonymity respects the privacy of those people. It also forces people to focus on the message, rather than the messenger. I cannot emphasise how uninteresting and unimportant I am, so to answer that second question – no, I don’t think my writing would have any more force if people knew who I am. I am what I say on the tin – a wholly average, mediocre criminal barrister. That’s all anyone needs to know to engage with the arguments I make. Anonymity also buys independence: it is obvious, I hope, that I am not saying the things I do to increase my professional profile, or to source new work from sympathetic solicitors, or to curry favour with judges. When I defend elements of the system – as I often do when figures in the media misrepresent or unfairly attack judicial decisions – it’s obvious to my readers, I hope, that I am doing so without any vested interest. Likewise, when I criticise the system or people within, I can do so without fearing – or without it being perceived – that I am framing my criticism with an eye on protecting my professional position. Finally – bringing us closer to the last question – I love my day job. And I’m realistic to recognise that it would be difficult, if not impossible, to carry on writing as I do and practising, if my name were known. It would be too big a distraction. I’m not interested in “career advancement” – I have no desire to be a Secret QC or a Secret Judge – but I do want to be able to carry on doing a job which, for all its frustrations, I love.
You make the point that the last Labour government invented thousands of new laws, which have had the effect of clogging up the courts. Which of those laws would you bin? What is not worth the court’s time?
A leading contender would be the Nuclear Explosions (Prohibition and Inspections) Act 1998, which criminalises detonating a nuclear bomb. We probably had enough laws – murder, manslaughter, inflicting grievous bodily harm, the Explosives Act 1875, Explosive Substances Act 1883, criminal damage and a buffet of international law – which had that mischief covered. ASBOs are another famous headline-chasing waste of time. Another would be when Labour, keen to capitalise on the myth – and it is a myth – that homeowners aren’t allowed to protect themselves from burglars in their homes, claimed to be changing the law in favour of the “law abiding citizen”. All they did was take up an extraordinary amount of Parliamentary time and effort putting the common law defence of self-defence into a statute – i.e. simply writing down the existing law. They then proudly – and falsely – claimed to have “given increased protection to householders”, which was, as the House of Lords pointed out during debates, an utter farce. There was also incessant meddling with rules of evidence and procedure, especially around sentencing, which has rendered criminal proceedings unnecessarily complex and impossible for the public – and some lawyers – to understand. It’s not a party political issue – Labour are by no means unique. Every government and every opposition convinces itself that the law is some kind of magical panacea; that the solution to every social ill is either a new law prohibiting it or Longer Prison Sentences for those who do it. That’s how we end up with politicians pushing a new piece of headline criminal legislation virtually every year, undoing or redoing something that their predecessors did.
As we have seen in several recent rape trials, the lack of disclosure by the police and CPS of evidence helpful to the defence has been atrocious. You point out in the book that ‘In 22% of cases [disclosure has been] wholly inadequate’. If it had been adequate, would these cases have come to court at all? Would that not have saved the state a fortune, quite apart from saving the unjustly accused untold distress?
In some cases it would have had that effect, yes. If the CPS had appreciated the full strengths and weaknesses of the evidence at the charging stage, it may have resulted in some cases failing the “evidential test” – which is where prosecutors ask “Is there a realistic prospect of conviction based on the evidence?” In other instances, the cases would still have been prosecuted, but the defence would have had disclosure to which they were entitled, and which could have made the difference to the outcome. And, inevitably, it means that some innocent people were deprived of the disclosure that would have secured their acquittal, with the consequence of a terrible miscarriage of justice.
Would it please the Criminal Bar if far fewer cases came to court or would the loss of even inadequate Legal Aid fees trouble you?
I can’t speak for the Criminal Bar, but I don’t have a view on how many cases should or shouldn’t come to court. Like all citizens, I’d rather crime rates decreased, and if there were fewer cases coming to court as a result, I’d be thrilled Likewise, if low-level offences – such as drugs, minor criminal damage and minor public disorder – were capable of being dealt with by public health intervention or restorative justice, satisfying the victim and achieving a constructive outcome without the need for any court proceedings, so much the better. What isn’t right, though, is what we currently see, which is fewer serious offences being charged because the police don’t have the resources to properly investigate, or serious offences not being tried in the Crown Court because they are shoehorned into the magistrates’ courts to save money.
You make clear in the book the utter injustice of the legal costs that have to be paid by the innocent who have been unfortunate enough to be wrongly accused of crime and who do not get repaid. From the way you write it seems that you think it entirely fair that barristers and solicitors should charge such self-funders a ‘market’ rate that is very much higher than that which is paid by the state in legally-aided cases. In other words, those who have to remortgage their houses or cash in their pensions to pay your fees are subsidising the legal-aid work. Do you think this is either fair or right?
This is a good question, with three answers. The first involves me pointing at dentists. Why don’t dentists offer their private services – white fillings, proper polish and scale by a hygienist etc – at NHS rates? The answer is: because NHS rates are artificially low, and it is only by charging private rates on a small proportion of their work that they can cross-subsidise. It’s the same with criminal legal aid. The second – more involved – point to make is that the Legal Aid Agency make it as difficult as possible for professionals to get paid. Not just lawyers, but expert witnesses as well. Now when you have legal aid, expenditure on things like expert witnesses requires what is called “prior authority”. You need permission from the Legal Aid Agency before you can instruct someone. For a private payer, your costs are only assessed at the end of the case. So this would make it very difficult to estimate, for a private payer, what a case on equivalent-legal-aid rates will cost. Let me give you an example. You are charged with a complicated fraud conspiracy that your crooked boss has implicated you in. The prosecution has instructed two barristers, because there is so much evidence and the case is so complex. They’ve also instructed a lot of experts. You may quite fairly instruct – on your solicitor’s advice – two barristers to defend you, for the same reasons, and you also instruct several forensic accounting experts. And you pay the equivalent of what they’d get on legal aid rates. But there’s no guarantee that the Legal Aid Agency, at the end of the case after you’ve been acquitted, will pay both of your barristers, or your experts. They can turn around and say, “We wouldn’t have given you prior authority if you’d been legally aided, so we’re paying you nothing.” Then you’re still left out of pocket – significantly so if the case was long and involved. The third point is simple and succinct: it is for the state to ensure that people it chooses to prosecute have access to legal representation. You can certainly argue, “Well lawyers should just agree to work on these cases for more affordable rates”, but that is letting the government off the hook. Why make individuals dependent on the charity of lawyers? A civilised system would ensure that there is no risk to anybody of being wrongly accused, acquitted and out of pocket.
Your account of the case of Jay, accused of sexually abusing his two daughters, makes it absolutely clear how terrible the adversarial system can be for victims/complainants, and yet you argue cogently in the following chapter against the use of an inquisitorial system. What system should we have?
As I conclude in the book, on balance, I think it is dangerous to remove adversarialism from the process. Or, alternatively, it is dangerous to vest full responsibility for the legal process in the state, which is how most models of inquisitorialism operate. The history books through to today’s newspapers are littered with examples of the appalling consequences where the state assumes responsibility for, say, disclosure, and through either incompetence or malice fail to discharge their duties. While an adversarial system cannot guarantee against these errors, it at least provides a check. A defence lawyer probing and prodding the prosecution case, testing the reliability of the evidence, demanding disclosure and robustly challenging witness evidence where the defendant’s instructions are “That person is lying”, is the best safeguard we have against corrupt police officers, malicious complaints and terrible mistakes. There should be limits to adversarialism, certainly, and the way in which adversarial proceedings are carried out today compared to only a few decades ago is very different. The experience for witnesses today, although rarely pleasant, is much more civilised. Judges are far quicker to clamp down on aggressive or unnecessary cross-examination by advocates, and the protections in place for vulnerable witnesses – with mandatory training for advocates and judges – is a good example of how the rougher effects of adversarialism can be mitigated. But I would always be resistant to a process where the state accuses an individual and the state then has responsibility for the entire legal process that follows, without a place for independent defence lawyers to challenge.
Given that a huge percentage of cases coming before the courts are sex related, do you think a) that there should be a statue of limitations? And b) that the courts are the right environment for cases where there is no scientific or witness evidence and where there is not much more than ‘he said/she said’?
I do not believe in statutes of limitations. Time should never be an automatic bar to criminal justice in serious cases. To introduce such in sex cases would simply reward predators who succeed in sufficiently traumatising or otherwise deterring their victim so that a complaint is not made immediately. I have some reservations over how cases involving allegations that are 50 plus years old can be fairly tried, given the passage of time, the corruptibility of human memory and the difficulty in the defence securing rebuttal evidence, but the courts already have the power to stop any case where they feel that the delay would make it unfair for a defendant to be tried because of the passage of time, and it is far better, in my view, for such decisions to be made on a case-by-case basis, than by reference to a blanket statute of limitations.
As for whether courts are the right environment for cases where there is little or no corroborating evidence, it’s important to remember that a case only gets to court (or should only get to court) where the prosecution assesses that there is a realistic prospect of conviction. If the CPS assess that a complainant and a defendant’s accounts are equally plausible, and there is nothing to choose between them, there should not be a prosecution. It’s not fair to either party to put them through the strain of a trial where the prosecution do not believe there is sufficient evidence to safely found a conviction.
Where there is a realistic prospect of conviction – because the complainant’s account is assessed as more credible, or because of corroborating evidence – then I think you need some forum for the evidence to be assessed. And that ultimately is what a court is – a forum for assessing evidence.
Is a prison sentence ever conducive to rehabilitation? Might those convicted of sex crimes be more effectively dealt with by education in the nature of their crimes and some form of restorative justice?
The way we do prison presently, boxing up damaged and mentally-ill people in conditions of violence and utmost depravity, no. But in principle, there should be no reason why a properly-resourced and humane prison system cannot achieve the basics in rehabilitation and address education, substance misuse and employability to lay down the building blocks for successful reintegration into society. Sexual offending is, however, difficult. Sometimes – with non-contact offences (such as possessing indecent images), or less serious contact offences, or offences committed by very young or mentally vulnerable defendants – there will be great force in administering a coordinated and intensive form of rehabilitative intervention, which is often best achieved while that person is in the community, so that they don’t lose the “protective factors” – such as accommodation, employment and family and social ties – which help to minimise reoffending. Similarly, a relatively minor sexual offence – such as touching over clothing between two adults – may be capable of being dealt with by something akin to restorative justice, if both parties consent to it. I can see how this might be preferable to formal criminal proceedings in some situations. However many sexual offences are so serious that only punishment in the form of a prison sentence is appropriate. Rehabilitation is important, but is one of several aims of criminal sentencing. For my part, I would front-end the education: many of the problems we see, in the courts and in society, stem from what boys are taught in schools and at home about attitudes towards sex and towards women. Things are better now than when I was at school, but fostering healthy understanding of relationships and consent should be a priority in early years, rather than something we emphasise only after a criminal conviction.
Do you think that those who falsely claim to have been raped or abused should be put on trial? Should they have to repay the innocent defendant’s costs?
As with all alleged criminal offences, where there is sufficient evidence to found a prosecution, and where it is in the public interest to prosecute, yes – such people should be prosecuted for attempting to pervert the course of justice, or whichever charge is appropriate in the circumstances. The consequences of false allegations – which occur, we must remember, not only in the sphere of sexual offences but in all walks of life – can be life-changing. But each case is fact-specific – there will be cases where the public interest requires that apparently untruthful complainants are not prosecuted. Where there are serious mental health issues, for instance. And we must emphasise, because it is essential that we do not deter victims from reporting, how rare it is for a complainant to be prosecuted. The reason we have seen what feels like a run of these cases in the media is because virtually every single such case is seized on, unhelpfully, as a headline story. Whereas the thousands of men convicted of serious sexual offences, or the thousands of women who make complaints which do not ultimately result in a conviction, pass without mention most days of the year. So we get a distorted picture of how common these cases are. Where a complainant is prosecuted for having made an apparently false complaint, the evidence that they have lied will usually be compelling – either admissions by them, or irrefutable evidence such as alibi witnesses or (increasingly common) mobile phone messages.
Do you think that those, e.g. police officers or CPS, who do not disclose evidence helpful to the defence, or who don’t produce what is necessary in the way of evidence, witnesses or anything else, should be named/shamed/punished/sacked? If not, what is ever going to change?
The official civil service term, I believe, is “performance managed”. They must be “performance managed”, with a big hefty stick in some cases. It’s complex and messy – I don’t pretend there’s a quick solution to disclosure. Part of the problem is resource-led – i.e. there are simply not enough police officers and prosecutors to devote enough time to cases, or training is insufficient – part, as report after report has said, is cultural. Management in the police and CPS are statistics and target-obsessed; however disclosure has been their historic blindspot, not helped by a prevailing attitude that the police have always got “the right man” in the dock, and that disclosure is just a pesky administrative task on the road to a conviction. If the prosecuting authorities focussed on doing disclosure properly as much as they do other aspects of prosecuting, things would drastically improve. Let me give you a quick example – Custody Time Limits. The law limits how long a defendant can be kept in custody before trial. 182 days in Crown Court cases. To extend this period, the CPS have to make a specific legal application, showing they have acted with all due diligence and that there is a very good reason to extend this period. So if a trial is adjourned, for example, to a day beyond that 182 days, the CPS will move heaven and earth to show that the adjournment was not because of something they did wrong. If they fail in this application, the defendant will be released on bail, even if there were really good reasons for remanding him in custody, such as a real fear he might attack prosecution witnesses. And this has happened. Custody Time Limits are therefore treated exceptionally seriously, to the extent that if there is so much as a risk that there might need to be an application to extend, it is escalated through to CPS senior management. A “CTL breach” is a disciplinary matter for CPS employees. Prosecuting barristers like me receive stern warnings from the CPS if we don’t tick boxes to confirm that we have announced the CTL expiry date aloud in court at each hearing, to ensure that no one ever overlooks it. I’ve even been instructed to abandon prosecutions where there is a risk of a CTL expiring. The CPS are utterly obsessed. And, in fairness, it has had results. It is far rarer nowadays that defendants are released on bail because of a CTL breach. Now imagine just a tenth of that laser focus was trained on disclosure. Imagine the CPS management agreed that it was as serious to the integrity of the criminal process as Custody Time Limit breaches.
Is it fair that the outcome of a trial depends so much more on the performance of the barrister than on the evidence?
In most cases (whisper this), I honestly don’t believe it does. Obviously there are degrees – if you are charged with murder, you have a much better chance with Bill in your corner than a pupil. But generally, in my experience, juries tend to reach what I would consider the “right” verdict based on the evidence. I’ve had cases where I’ve performed dreadfully, but where I’ve won because the evidence was so strongly in my favour. I’ve given the performance of my career in doomed cases where the jury reject every single thing I say
’Society needs to condemn a little more and understand a little less’ (John Major) You make it clear throughout the book that you have great sympathy for those whose childhoods and education have been so chaotic and abusive that they go on to commit crimes. To what extent do you think the state should intervene in their chaotic families? And, given that so many convicted criminals had childhoods in care, do you think that the state can ever satisfactorily look after damaged children?
This is a question better directed at a family law expert than me, so I’ll have to tread cautiously. My experience is skewed, as the only children in state care whom I encounter professionally are those for whom it has spectacularly failed. That does not mean, however, that it can never be done. My personal, probably uncontroversial, view is that of course there is a role for the state to intervene to protect children who are at risk of emotional, physical or sexual abuse or neglect; however whether the boundaries are currently correctly drawn is outside my limited area of expertise, I’m afraid.
You don’t discuss the effect of drugs in the book, but given how many crimes are the result of either drug-dealing and gang warfare or the effects of drug-taking, do you think de-criminalisation might have a beneficial effect on the criminal justice system?
I do, and I’d do it tomorrow. Prohibition is one of the most absurd policies in international legal history. It simply does not work. All it does is exacerbate the problems that are caused by drug use – forcing addicts into a deadly shadow market and lining the pockets of the most dangerous criminals in society. As with alcohol, I would bring the supply of drugs within a regulated market, and continue to criminalise those who supply outside it. This does not, as prohibitionists often claim, amount to condoning drug use. I would continue to ram home the message, as we do with alcohol and tobacco, that drug use is hideous and is liable to ruin your life, but I would deal with drug use as a health problem, not a criminal law problem.
We began with truth and I think we should end with it. If establishing the truth is not the most important aspect of the criminal justice system, does that system deserve to survive?
Oof. A nice easy one to finish off with. Thanks.
I would say yes. Just because truth is not the most important aspect does not mean that it doesn’t have an important role. We obviously hope that a verdict in a criminal trial represents the truth. But we can’t guarantee truth; that is the problem. If we set up a system on the premise that it will deliver the undeliverable, we will inevitably be disappointed, and forced to compromise the integrity of the system. But we can guarantee a fair process, by which we hope the truth is likely to emerge. That, at least, is what chimes with my understanding of criminal justice. And that’s a system worth fighting for.