- Summer 2022
- The Secret Barrister, Nothing but the truth: stories of crime, guilt and the loss of innocence
The Secret Barrister, Nothing but the truth: stories of crime, guilt and the loss of innocence
The Secret Barrister is an anonymous blogger and a junior barrister specialising in criminal law in the courts of England and Wales. This is their1 third book. The first two books dealt with the many problems besetting the English criminal justice system and this is no different. Indeed, the situation in the English and Welsh courts has deteriorated to tragic farce. Members of the Criminal Bar Association – sole traders, independent practitioners not employed by anyone – have, since April 2022, been engaged in escalating industrial action to get legal aid fees raised to a sufficient level that junior barristers might earn above minimum wage.
Barristers. On strike. In order to secure funding for criminal cases in a system so broken that there is a backlog of over 60,000 cases in the Crown Court. With the consequence that increasing numbers of defendants were bailed because they were unable to secure counsel for their trials.2 The industrial dispute was recently resolved with an agreement on a rates increase, but without further commitment to the proper funding of the criminal justice system, a resumption of action has not been ruled out.3
The problem has clearly not been solved. The Secret Barrister has recently reported multiple trials from 2019 being adjourned due to ‘lack of court time’ having already been adjourned more than once. This is not due to industrial action but the combination of courts being closed and sold off, insufficient recruitment of judges and barristers leaving the profession.4
Through much of the strike period,5 the Justice Secretary was Dominic Raab. He refused to meet with the Criminal Bar Association. He was, during his tenure, fond of making comments attacking defence lawyers,6 disparaging judges for making decisions against the government,7 and criticising sentencing and parole decisions deemed soft on crime,8 all classic tropes in the genre of law and order politics.
These were views shared by the Secret Barrister during their youth and their time at university. In this book, they interrogate perceptions that the criminal justice system favours the rights of criminals over those of victims and makes society less safe, by tracking the evolution of their views through their experience working as a criminal lawyer.
Nothing but the Truth is a memoir of the Secret Barrister’s early career, commencing with the Bar Course and recruitment process, and capturing perfectly the exquisite embarrassment of early attempts at legal argument and the agonising process of applying for pupillage (far more labour-intensive and soul crushing than the Australian experience, due to the English practice of allowing several times more candidates to sit the very expensive courses than there are pupillages available).
The next sections address pupillage, and the confronting realities faced by a junior barrister negotiating for the first time the listing practices of the criminal courts, where trials are more likely not to run than to run and a significant part of a barrister’s income depends on the ‘returns’ system designed to manage the downstream effect on other barristers’ diaries. The Secret Barrister recounts the panic and adrenaline of running multiple cases unsupervised in the magistrates’ court having received the briefs moments before.
Having secured tenancy, the Secret Barrister then turns to life as a barrister proper. Amusing stories about chambers life are interspersed with accounts of some of the clients they have represented. Some deserving, some undeserving, some whose stories are funny, some devastating: for each the Secret Barrister reminds the reader that criminal justice is about people and how their lives run up against the law. The final chapter speaks to the crisis identified at the beginning of this review.
Entitled 'all falls down', it charts the decline of the Secret Barrister’s professional experience due to the increasing dysfunction at the Crown Court, the result of chronic underfunding of the police, the Crown Prosecution Service, legal aid and the court. One of the features of this is the fact that prosecutors and legal aid counsel are paid a low fixed appearance fee with no allowance for preparation, and when trials are adjourned and returned because counsel is no longer available, the preparation of that case is wholly unpaid. And the sheer number of ways that a trial can go off due to administrative failure is astonishing. Delays between alleged offence and trial are now between three and four years. Those delays cause at best inconvenience and at worst despair to the ordinary people forced into a system that barely operates.
The Secret Barrister tells of the personal responsibility they feel when accounting to the court for the latest prosecution failure, when it is not their fault, or the police’s or prosecution service’s fault, but the fault of successive governments that are wholly uninterested in funding a criminal justice system that works, and only interested in the political capital to be gained by publicly decrying that system as being 'soft on crime.'. Throughout, the Secret Barrister describes how their early perceptions about crime and punishment are demolished by their observations of how legal practice actually works and how it affects the people drawn into it. From early discoveries that 'jackpot' payouts by ambulance chasing personal injury lawyers are in fact the barest of compensation for life-altering catastrophic injuries, extracted painfully from insurers; to the shock of a first encounter with a provably innocent client, remanded for several months before his case collapsed; to indignation that the 95% of criminal cases heard in the magistrate’s courts are hopelessly disorganised while the bar for adjournments is set so high that illness and even death is no excuse not to proceed; to the realisation that for some offenders noncustodial alternatives are a better way to achieve community safety than a merry-goround of short custodial sentences, but for others, not even that will work.
What makes the book so very enjoyable is the Secret Barrister’s skill at communicating their personal experiences so as to bring the reader along with them. Two themes emerge throughout the book. The first is relentless self-deprecation: of the author (an early attempt at a plea in mitigation is described as 'something like a concussed Brian Sewell retching up a nineteenth-century thesaurus'); and of the many absurdities of their chosen profession (there are repeated vignettes of pitfalls suffered as a result of following the Crown Prosecution Service’s varied instructions about what to do with the documents they brief at the last minute). The second theme is rising awareness that justice often won’t be done. Among the many episodes of frustration at the systemic problems with the criminal justice system, the Secret Barrister recounts individual episodes in which they grappled with the moral implications of a particular outcome achieved for a client or an offender. These are the most powerful parts of the book, and strike at the heart of the tensions within the adversarial system – the idea that, even where law and principle are adhered to, the people involved in criminal trials won’t always get a fair or even a safe result.
It is too much to ask that the Justice Secretary or Attorney-General descend into the middle-tier courts and observe first-hand the collapse of the criminal justice system created by a succession of budget cuts. This book is a handy substitute – a first hand account of what it is like to try to achieve justice in circumstances that conspire against it, not by design, but by neglect. The power in the book lies in the accounts of what this does to our fellow barristers, but also what it does to regular people. People who vote.
1 In my review of the Secret Barrister’s first book I surmised that they were possibly a man. A familiar account of judicial bullying in this book leads me to believe that the opposite may be true. For safety, I will use the third pronoun.
2 Director of Public Prosecutions -v- Crown Courts at Bristol and Manchester (Minshull Street)  EWHC 2415 in which it was held that there was power to extend custody time limits in the context of counsel being unavailable due to the industrial action, but that the period in which that was a sufficient cause to extend time limits was limited to the last week of November 2022, by which time the unavailability of counsel would become ‘chronic and routine:’ at -.
3 ‘Criminal barristers in England and Wales vote to end strike action’ The Guardian 11 October 2022 https://www.theguardian.com/law/2022/ oct/10/barristers-in-england-and-wales-vote-to-end-strike-action (accessed 25 October 2022).
4 https://twitter.com/BarristerSecret/status/1584110650166763524 (accessed 25 October 2022).
5 and now, Raab having been reappointed to the Justice ministry by the third UK Prime Minister in office this year.
6 ‘Bar Council chair criticises ‘thin-skinned’ Raab for not meeting him’ The Guardian 30 December 2021 https://www.theguardian.com/ politics/2021/dec/30/bar-council-chair-criticises-dominic-raab-meeting (accessed 25 October 2022)
7 ‘Dominic Raab ‘I’ll overhaul the Human Rights Act to stop Strasbourg dictating to us’ The Telegraph 16 October 2021 (accessed 25 October 2022) https://www.telegraph.co.uk/politics/2021/10/16/dominic-raabsets-plans-overhaul-human-rights-act-reform-judicial/
8 ‘Dominic Raab rebukes Parole Board for release of Baby P’s mother’ The Guardian 6 May 2022 https://www.theguardian.com/ society/2022/may/05/mother-of-baby-p-peter-connelly-to-be-releasedafter-parole-board-decision (accessed 25 October 2022)