The Secret Barrister – book review

When I picked up The Secret Barrister, I expected something similar to a diary – the anonymized trials and privations of a barrister working in court.

Instead, the book is a depiction of the functioning of the criminal justice system with a chapter each dedicated to the victim, the Prosecution (Crown Prosecution Service), the Defendant, the Magistrates Court, the Crown Court – you name it.

I always thought that the main difference between the UK and countries such as Poland France and Germany was that the UK follows the common law (case-led), and the other countries on the continent often follow constitutional law (statute-led). But there is a great more to it than that.

The English system is at its heart adversarial. The Prosecution and the Defence are pitted against each other: this is supposed to ensure the fair functioning of the legal process. It’s almost as if there were two completely separate inquiries – one to prove the defendant guilty, and the other to prove him innocent.

On the contrary, other countries often delegate the duty of finding the truth “inquisitorialism”, if you like  – to the state.

The author of the book takes an interesting view on the importance of truth in criminal law.

“Truth-seeking, in the way that advocates of inquisitorialism envision it, is not — and should not — be the purpose of criminal justice systems in any event. It is too much. In many cases, it cannot be done. This is not a lazy appeal to postmodernism; just practical reality. There are two many variables (…) and too many competing truths — such as two men each truly believing the other to be the aggressor – for us to be able to assert with (…)  any confidence that we have uncovered the singular truth of a scenario.

This is perhaps why, in the evolution of the legal system. we have never explicitly heralded truth as our guiding light (…) adversarial combat between two legally qualified proxies was never premised on improving the likelihood of discovering the truth of a quarrel. (…) while seeking universal truths, is for me, an ambition too far, protecting individual liberty is something that I think our system, when it operates correctly, has done quite well. ”

I am not entirely sure of this. Surely, even though finding truth might not always be possible (if witnesses have completely contradictory statements, for example), truth-seeking must be at least partially the aim of the criminal process. How else would any sort of verdict be established? I always thought that a judgment is decided based on what the judge or jury believes to be the narrative closest to the truth – if not perhaps truth itself. Surely, if the distinction between imprisoning a guilty or an innocent man matters – so does the distinction between what is untrue and what is true. Not whose lawyer can put a better spin on things.

Also no matter how contradictory the accounts of the events are – something must have actually happened. Trees still fall in a forest even if there is no-one there to see. Stuff happens, even if each person witnessing has only a partial grasp of what is actually happening.

Anyhow, I’m going off on a tangent here.

Another thing that surprised me is that the English system to this day uses some volunteers to deliver the verdict in Magistrates courts. Not necessarily legally trained volunteers, mind. People of good standing in society (who have a weekend course on law) – can sentence people to jail for up to 12 months.  Sure, there are some professional District Judges, but they are by no means a massive majority.

There is also the issue of compensation. You would think that an innocent person who has been charged by the state and has proved their innocence, will be entitled to some compensation for being wrongfully imprisoned for 10 years. Turns out, not necessarily.

The book is well-written and cohesive. Its point of view is clear. Unless the British government steps in to fund the criminal justice system better, it risks the system collapsing on itself.

“Justice? — you get justice in the next world, in this world you have the law.” (William Gaddis , A Frolic of his Own – quoted in The Secret Barrister)

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