I was put forward by the Secret Barrister to address this event and deal with the issues raised thereafter. This was my opening speech:
Thank you Young Fabian Lawyers and Young legal aid Lawyers for inviting me to speak and then chair this discussion on the book by ‘The secret Barrister – The law and how it is broken’.
It was said in promoting this event that I would talk about ‘my career and challenges faced by the CJS’. I appreciate you are here to discuss the book rather than listen for too long to me but I was put forward for this gig by SB so blame SB for having to listen to me.
Some parts of my career informed my later and present radicalism/activism in the face of the growing injustice that I saw. So when I read this fine book by SB I found myself almost punching the air with recognition. What I will try to do in a few minutes is to relate just a few aspects of my career to those problems that we all suffer from in our working lives and how in my own small way I have tried to combat this growing crisis in our CJS. But SB has exposed these issues far more effectively than I could ever do through a superbly witty, sometimes angry and sometimes sad but always informative book that has captured the times we live in through the prism of the criminal law.
The book perhaps is a commentary or at least a reflection by SB upon the impact of neo liberal economics and austerity at a time when Ulster DUP MP’s can be bribed with tax payer’s money to the tune of £1bn but HMG cannot find money to repair the criminal justice system. They could also find cash for Justice if the will was there.
I always believed in British Justice. If anything with family in the police force I was rather impatient with criticism of the police. Often I felt such criticism was driven by those with an agenda, personal or political. But during the course of and throughout my career I would be increasingly frustrated by what appeared to be judicial genuflection towards the prosecution and the police in particular. Things began to improve shortly after I qualified following the well-publicised miscarriage of Justice Maxwell Confait false confession case that led to the introduction of PACE and all its safeguards.
Just before PACE I had conduct, as a young trainee, of a murder case. My client was supposed to have thrown his partner out of the window from a block of flats. I begged my boss for this case as it ‘spoke to me’. The defendant says he locked his wife in as she was drunk and he didn’t want her embarrassing him in front of his friends. He said he was assaulted by the police to his body and his shirt was ripped. He was a Turkish Cypriot with poor English and we established that a written confession (pre- recording of interviews) which, by the rules at the time, was supposed to be exactly in the suspects own words was in fact written for him and an educational Psychologist reported to me that 60% of the ‘confession’ used words that were simply well beyond his vocabulary.
Anyway after some adventures involving climbing out on the window ledge after hearing the deceased had done this before at a neighbour’s house lower floor flat, and retracing the defendant’s steps with a stop watch to a friend’s house elsewhere he visited at the time of death (pin pointed by the time a TV advert went out) – we established a counter narrative and a strong alibi. That narrative was that he locked her in due to her being drunk. She attempted to repeat the climbing out down the drain pipe trick (she had black staining from the pipe on her hands, as I did when I held onto the pipe several floors up, on the window ledge) but she lost her footing. I didn’t so hence I am here today. It was probably an accident and yet the police say he confessed.
If we hadn’t noticed the language issue the confession might have stood and he could have been given a life sentence for a crime he didn’t commit. He was tried at the old Bailey. Our QC Brian Capstick invited me to help write his final speech. I nearly levitated like the Trump blimp so proud and puffed up was I. He even used some of it! As the Jury returned I looked at them intently for a sign. One of them caught my eye and smiled broadly. I thought ‘you callous bastard – finding him guilty and smiling about it’.
But I was wrong. The Old Bailey Jury found the defendant not guilty. You wonderful Jury I thought. The client cried as I nearly did – with relief. How US Lawyers and others cope with capital cases I will never know. (I hope.)
Interestingly at an Inns of Court dinner the trial Judge told my junior counsel ‘ah yes I am afraid I let that one get away from me with that acquittal’. I have been deeply suspicious of Judges summing up for the Jury ever since. They don’t have them in the US and I don’t feel they are necessary here.
Anyway despite the Judge we secured an acquittal. If I wasn’t hooked on criminal law before I certainly was after that case. I am still hooked. It is addictive if grossly under paid and undervalued.
But what that case taught me is that there are those in our CJS who will bend stretch and break the rules to secure a conviction.
The police in particular shocked me then as a young lawyer as I realised from that case and others they will sometimes ensure that evidence will be disclosed only where it fits their case theory. It was an eye opener. I never held naïve views again and in truth as a defence lawyer you should always be on the lookout for skulduggery. The Birmingham 6 and Guildford 4 scandalous cases reinforced that sense of caution. The need always to be conscious of the risk that there are those who would subvert justice.
For example a little which ago I casually asked a police officer why there were fewer interviews in the police station. He laughed and boasted that ‘we have found a way to get around the need for calling in you bastards – we don’t need to offer legal representation outside the police station’. I was sceptical until I looked it up. He was right. There was a loophole.
So I went to war. Together with Prof Ed Cape and Richard Atkinson my partner and chair of TLS CLC, within 6 weeks we closed that loophole because we achieved a change in the PACE Code so that (in theory at least) wherever an under caution police interview takes place whether at home or in the street the suspect must be offered legal advice. See: https://www.lawgazette.co.uk/analysis/police-interviewing-loophole-must-be-tackled-urgently/65336.article
Of course to ensure Justice the defence have to rely heavily upon the prosecution carrying out their duty of disclosure properly in accordance with the law. That includes under the legislation (CPIA) as you know that the prosecution must ensure service of evidence that undermines the prosecution case or points away from the defendant.
To illustrate how things can go horribly wrong let me tell you this. We have a recent case where a client was arrested and interviewed in relation to an allegation that he had breached a Non-Molestation Order in place against him. During the police interview he raised an alibi for the date and time alleged. He stated that he was at the particular Public House and that numerous other people were present in the public house at the time.
In spite of our client’s assertion of an alibi that could very easily have been investigated, he was simply charged and remanded to appear before the Magistrates’ Court when the CPS objected to bail and was formally remanded into custody twice. We specifically raised in court the fact that his father, had notified us that CCTV from the Public House had been viewed by the police and this CCTV had confirmed our client’s alibi, thereby exonerating him of the offence alleged. We supplied an e mail from the publican confirming this.
The case was discontinued after his being in prison for 2 weeks when the Crown had seen the alibi CCTV! A complaint is pending. We and our client would like to know why and how that happened. It was of course true that it could have been even more fatal for Liam Allen who was exonerated after 2 years on bail for very serious offences due to last minute disclosure thanks to the integrity of prosecuting counsel Gerry Hayes, and this brought the case shuddering to a halt due to the disclosure of social media that destroyed the prosecutions credibility.
There have always been problems with this but to be frank nothing like the problems we have experienced in recent years which in scale has altogether reach crisis proportions. Over 2 years ago something snapped.
At the CMH court ordered service of evidence by a certain date. The Client came for an appointment and was informed it could not be effective as no statements had been served. We sent 2 chasing e mails. Then with no response we wrote to the court asking them to list for a mention and copied the CPS in this. No response from CPS or court.
This is what the Clerk to the court said. ‘There was fault on both sides as of course the evidence should have been served, but the application for mention should have been made as soon as it was apparent the time for service had expired.’
Suddenly the CPS failure to serve or answer e mails and the courts failure to list this for a mention at our request was the defence fault because we should have done that immediately. This has its origins in past judicial comment but I was so angry I could barely contain myself. I ranted at the next CLSA meeting and found all the committee had similar experiences. We collectively drafted a protocol and I wrote articles and blogs and with commitee support created the CLSA disclosure survey cited repeatedly at the Justice select committee. It was a great moment when the late great Sir Henry Brooke tweeted I had done great service to Justice in that survey and accompanying written material about it. .
Things are happening now but rather too slowly. It is up to this generation of lawyers to keep up the fight and ensure there is no slippage in reform and improvement. In particular as defence lawyers we should pin the prosecution down like Gulliver on the beach with the law and CPRs. We use the law to force the courts to enforce the law.
If the court continue to fail to punish disclosure failure then we are no better than the old Soviet Union and other authoritarian systems where the law is set out in supportive codes but remain unenforced by courts deferring to State prosecutions. Donald Trump would like it but I don’t.
One of the many joys I have experienced in reading the book by SB is to see its massive impact in focusing attention on these disclosure scandals and the failure of the system to deal with them.
I have read some reviews that refers to the book as having an elitist view point of a barrister. Not enough class based analysis. Not enough from a BAME point of view. It is a matter perhaps for you to discuss. Personally I was struck by how much the author deeply empathised with the plight of ordinary people caught up in a complex CJS.
SB knows that I feel the chapter on Lay benches was rather too harsh and perhaps was written from a certain ‘barrister like’ position or point of view. I wrote a blog at ‘Minted Law’ ‘in defence of lay benches’ in response. See: https://mintedlaw.wordpress.com/2018/04/11/in-defence-of-the-lay-bench/. Sometimes Benches do infuriate quite recently in my case actually, when criticised for complaining too loudly in front of people over a disclosure ambush. I was unapologetic and rejected the criticism telling the Bench I will not be silenced. In court or out of it. But they are part of our democratic tradition and have been for centuries.
The answer to Lay Benches being too concentrated in certain ages or class groups is to widen the recruitment base to encompass more people from more varied backgrounds not to abandon the system. Not all trials can or should go before a jury and those that remain should not in my view be exclusively be presided over by paid Lawyers in the pay of HMG. That is not democratic and is a dangerous concentration of power in the hands on one person. At least the decision making process is spread between 3 individuals not vested dangerously with one and lay benches are not dependent upon HMG for their position or income.
By the way the piece was enthusiastically tweeted by SB which nails the lie in a recent review that SB is too sensitive to criticism. That is simply not true if critiques are fairly delivered.
All self-respecting criminal lawyers should belong to the associations like the CBA, CLSA and LCCSA. The latter should work hard to increase mass membership by e.g. allowing subs to be paid monthly with a discount if paid up front for those that can afford it. Discounts for those who belong to young lawyer groups would be good.
I was asked to join the CLSA Committee based upon campaigning work and was honoured to serve 3 years as their VC during the most turbulent time when we faced Grayling’s attempts to remove client choice of their lawyer and competitive tendering. I called and chaired the ‘Justice for Sale’ rally which was attended by over 2000 lawyers at the Friends meeting house Euston. No one who was there will forget it and the hope it offered. An old friend wrote to me and said ’at last the profession is fighting back and as my team left the meeting and we all felt like singing.’
Well we fought and delayed it. We litigated. So did firms denied contracts and eventually the Government backed off. We saved client choice and defeated competitive tendering. Our legal aid system is not perfect but when properly funded works well. Legal aid is a right not a benefit. The recent CBA action sends this message. Fight back or die. But together we could do so much better.
The associations should form a joint campaigning committee. (Like the allies in WW2) So that further action can be properly synchronised and coordinated in advance with military precision. There are fundamental areas of agreement.
- The need for more investment.
- The need for the independent setting of legal aid rates.
- The restoration of scope.
- The need to improve the listing system etc.
- I personally would support a small contribution on those convicted to be paid toward their legal aid. It will detoxify the issue in the press and draw the sting of stupid political opposition.
One thing SB has done is to help nail the myth about ‘fat cat Lawyers’ perpetrated in the right wing press and repeated parrot fashion by politicians. It is a dead parrot of an argument.
So now I will shut up so we can discuss the book. But perhaps the biggest tribute that we can pay SB is to treat the book not as an end in itself but as the touch paper that lit the fire of resistance to the destruction of legal aid, to the destruction of our CJS and to the erosion of justice that this represents.
That task began by SB in that book has just begun but is not an end destination just a launch pad.
We in the profession should and must join together and with others, to restore British justice to that rightful place where it should be – once again the finest Justice system in the world. Thank you so much for listening.
That’s quite enough from me. Let’s get on with the discussion and hear from you lovely people.