The Secret Barrister

1. The Criminal Justice System: A Complex and Imperfect Machine

This, ladies and gentlemen, is the English and Welsh criminal justice system in action. I don’t suggest it is the finest example, but it serves as a rough extract of how contested matters of criminal law are settled.

A Bizarre Spectacle. The English and Welsh criminal justice system, with its wigs, gowns, and adversarial battles, can appear bizarre to outsiders. It's a system steeped in tradition, but far from universally adopted, with many countries employing different approaches to crime and punishment.

Historical Roots. The system has evolved over centuries, from Anglo-Saxon ordeals to Norman trial by combat, gradually incorporating elements of evidence-based trials and legal representation. Key milestones include the Magna Carta, which laid the groundwork for jury trials, and the development of common law through circuit judges.

Fairness as the Goal. Despite its quirks, the system aims for fairness to defendants, victims, and the public. This includes the rule of law, the presumption of innocence, access to legal representation, and the right to a fair trial. However, the system often falls short of these ideals, with preventable errors and systemic issues undermining justice.

2. Magistrates' Courts: Affordable Justice or a Sausage Factory?

There is, I verily believe, no people’s court on either side of the Iron Curtain or anywhere in the world which is as representative of the responsible elements of society as the lay bench of England and Wales.

Speedy Summary Justice. Magistrates' courts handle the vast majority of criminal cases, offering a supposedly affordable and speedy alternative to jury trials. Lay magistrates, assisted by legal advisors, preside over these courts, deciding both law and facts.

Representativeness Questioned. The demographic of magistrates often fails to reflect the diversity of defendants, leading to concerns about bias and a lack of understanding of the social realities faced by many accused. The system relies on volunteers, which skews the demographic.

Efficiency vs. Fairness. The pressure to process cases quickly can compromise fairness, with rushed proceedings, inadequate legal advice, and a pro-prosecution bias. The system prioritizes throughput over thoroughness, leading to potential miscarriages of justice.

3. Bail: Presumption of Liberty or a Risky Gamble?

Those on remand . . . are not inside for long enough for [work and education] programmes to make a difference – but they are there long enough to lose their jobs, their family relationships, and even their homes. This can push someone off the straight and narrow for good.

Balancing Act. The decision to grant or deny bail balances the presumption of innocence with the need to protect the public and ensure the defendant's appearance in court. However, the process is often flawed, with incomplete information and pro-prosecution attitudes influencing decisions.

Consequences of Remand. Being held on remand can have devastating consequences, including loss of employment, housing, and family relationships. For those ultimately acquitted, this period of imprisonment is an uncompensated injustice.

Systemic Failures. The bail system is plagued by inadequate legal representation, incomplete information, and a lack of resources, leading to inconsistent and potentially unfair decisions. The absence of the defendant from his own hearing has a strange effect.

4. Prosecution: The State's Duty or a Numbers Game?

The tipping point was reached in 2015, and it was one of the reasons why I decided that I didn’t want to be part of the service, because I felt it was asking too much of the people that I have so much respect for – the people I work with . . . You’re asking the more junior staff, less experienced staff, to do more with substantially less in a climate where they’re constantly under scrutiny.

The Prosecution's Role. The Crown Prosecution Service (CPS) is responsible for prosecuting criminal offenses, ensuring that cases are properly prepared and presented in court. However, budget cuts and staff shortages have undermined the CPS's ability to fulfill this duty effectively.

Consequences of Underfunding. Understaffing leads to incomplete case preparation, lost evidence, disclosure failures, and marginalized victims. The pressure to meet targets can incentivize prosecutors to pursue weak cases, prioritizing statistics over justice.

The Human Cost. The failings of the prosecution system can have devastating consequences for both victims and defendants, denying justice and undermining public trust. The system is failing to provide due process and respect for those reliant on it.

5. Victims: First Priority or an Inconvenient Afterthought?

Victims must have more help navigating a confusing and often intimidating Criminal Justice System. Too often they tell us they feel they are treated as an afterthought or that the “system” made their already horrific experience worse . . . This total revamp of the Victims Code has been one of my main priorities and I have heard from victims just how important getting this right is . . . It is one of many measures I am introducing to make sure the “system” starts to put victims first.

The Promise of Prioritization. Despite political rhetoric emphasizing victims' rights, the criminal justice system often treats victims as an afterthought. Long delays, ineffective communication, and a lack of support can exacerbate their trauma.

Systemic Callousness. The system's focus on efficiency and cost-cutting can lead to victims being marginalized, their needs and concerns overlooked. The emphasis on the defendant's rights can sometimes overshadow the victim's experience.

The Need for Change. A fundamental shift in attitude and resources is needed to ensure that victims are treated with dignity, respect, and compassion. The system must prioritize their needs and provide them with meaningful support throughout the process.

6. Defense: Champion of the Accused or Apologist for the Guilty?

To be an effective criminal defence counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesman for the despised and the damned.

Safeguarding Liberty. Defense lawyers play a crucial role in upholding the presumption of innocence and ensuring that the state's power is checked. They provide legal advice, investigate cases, and advocate for their clients' rights, regardless of their personal beliefs about their guilt or innocence.

The Importance of Solicitors. Solicitors are the unsung heroes of the defense, handling the bulk of the case preparation, client communication, and evidence gathering. Their work is essential to ensuring a fair trial.

Threats to Independence. Publicly funded defense is under threat from budget cuts, unscrupulous firms, and a lack of resources, undermining the ability of lawyers to provide effective representation. The system is failing to provide due process and respect for those reliant on it.

7. Adversarialism: Truth-Seeking or a Zero-Sum Game?

An advocate, by the sacred duty which he owes his clients, knows in the discharge of that office but one person in the world, that client and none other. To save that client by all expedient means, to protect that client at all hazards and costs, to all others, and among others to himself, it is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other.

The Nature of the Beast. The adversarial system pits the state against the accused in a battle for victory, with lawyers presenting partial evidence and challenging each other's witnesses. This process can prioritize winning over truth-seeking, potentially distorting the facts and undermining justice.

Exclusionary Rules. Rules of evidence, designed to protect defendants from unfair prejudice, can also exclude relevant information from the jury, hindering their ability to reach a fully informed verdict. The system is failing to provide due process and respect for those reliant on it.

The Need for Balance. While adversarialism has its flaws, it also provides essential safeguards against state overreach. A balance must be struck between protecting individual rights and ensuring that the pursuit of truth is not sacrificed.

8. Sentencing: Justice, Deterrence, or a Public Con?

Nearly 80 per cent of Brits believe the country is soft on crime, a shock new survey has found. The ComRes poll for the Mirror revealed there is a widespread view that criminals get off too lightly and sentences are not tough enough. More than three-quarters of all those quizzed said punishments did not match the crime. And four in five are not happy with the justice system and believe offenders are treated much more leniently than in the past. The findings come as the government promises to crack down on offenders.

Public Perception vs. Reality. Public perception often clashes with the reality of sentencing, with many believing that criminals are treated too leniently. However, statistics show that prison populations are soaring and sentences are getting longer.

Incoherent Sentencing Policy. Sentencing policy is often driven by political considerations rather than evidence-based principles, leading to inconsistent and irrational outcomes. The purposes of sentencing are often conflicting and poorly defined.

The Limitations of Prison. Prison, while necessary in some cases, is often ineffective in rehabilitating offenders and can exacerbate existing problems. Overcrowding, understaffing, and a lack of resources undermine its potential for positive change.

9. Appeals: A Second Chance or a Mirage?

It is to the glory and happiness of our excellent constitution, that to prevent injustice no man is concluded by the first judgment; but that if he apprehends himself to be aggrieved, he has another Court to which he can resort for relief; for this purpose the law furnishes him with appeals, with writs of error and false judgment.

The Last Vestige of Hope. The Court of Appeal offers a final opportunity to challenge wrongful convictions or excessive sentences. However, the process is often difficult and the chances of success are slim.

Limited Access. Many defendants lack the resources or knowledge to navigate the complex appeals process. The Court of Appeal is often reluctant to overturn convictions, even in cases where there is evidence of serious errors.

The Need for Reform. The appeals system must be made more accessible and effective, ensuring that those who have been wrongly convicted have a genuine opportunity to clear their names. The system is failing to provide due process and respect for those reliant on it.

10. The Innocence Tax: Punishing the Wrongly Accused

Upon taking office [in 2010] we had the most generous legal aid system in the world; but even after the spend and scope reductions we still have the most generous system in the world. To give you a comparator, France and Germany spend about £5 per head on legal aid, whilst we were spending £38 per head.

Financial Ruin. The "innocence tax" refers to the financial burden placed on those who are wrongly accused of crimes but do not qualify for legal aid. These individuals are forced to pay for their own defense, often incurring significant debt.

Lack of Reimbursement. Even if acquitted, these individuals are not fully reimbursed for their legal costs, leaving them financially devastated. The state effectively punishes innocent people for being wrongly accused.

A Moral Outrage. The innocence tax is a fundamental injustice that undermines the presumption of innocence and the right to a fair trial. It creates a two-tiered system of justice, where those with means are better able to defend themselves.

11. The Erosion of Public Trust: A System in Crisis

Justice? – you get justice in the next world, in this world you have the law.

A System in Decline. The criminal justice system is facing a crisis of public trust, with many believing that it is failing to deliver justice effectively. Underfunding, political interference, and a lack of transparency have eroded confidence in the system.

The Need for Reform. A comprehensive overhaul of the criminal justice system is needed to restore public trust and ensure that it is fair, efficient, and effective. This includes increased funding, greater transparency, and a commitment to evidence-based policymaking.

A Call to Action. The public must demand better from their elected officials and hold them accountable for ensuring that the criminal justice system serves the interests of all, not just the powerful and privileged. The system is failing to provide due process and respect for those reliant on it.

Last updated: April 4, 2025