The Secret Barrister

The Secret Barrister is a survey and critique of the criminal legal system of England and Wales. The author is an anonymous barrister who writes a legal blog of the same name (which I have not read).

A brief and simplified primer for those who, like me, are familiar with the US legal system but not the English one: A barrister is a lawyer who argues cases in court, as distinct from a solicitor who does all the other legal work (and may make limited court appearances). If you need criminal legal help in England and Wales, you hire a solicitor, and they are your primary source of legal advise. If your case goes to court, your solicitor will generally (not always) refer the work of arguing your case before a judge and jury to a barrister and "instruct" them in the details of your argument. The job of the barrister is then to handle the courtroom trial, offer trial-specific legal advice, and translate your defense (or the crown's prosecution) into persuasive courtroom arguments.

Unlike the United States, with its extremely sharp distinction between prosecutors and criminal defense attorneys, criminal barristers in England and Wales argue both prosecutions and defenses depending on who hires them. (That said, the impression I got from this book is that the creation of the Crown Prosecution Service is moving England closer to the US model and more prosecutions are now handled by barristers employed directly by the CPS, whom I assume do not take defense cases.) Barristers follow the cab-rank rule, which means that, like a taxicab, they are professionally obligated to represent people on a first-come, first-serve basis and are not allowed to pick and choose clients.

(Throughout, I'm referencing the legal system of England and Wales because the author restricts his comments to it. Presumably this is because the Scottish — and Northern Irish? — legal systems are different yet again in ways I do not know.)

If details like this sound surprising, you can see the appeal of this book to me. It's easy, in the US, to have a vast ignorance about the legal systems of other countries or even the possibility of different systems, which makes it hard to see how our system could be improved. I had a superficial assumption that since US law started as English common law, the US and English legal systems would be substantially similar. And they are to an extent; they're both adversarial rather than inquisitorial, for example (more on that in a moment). But the current system of criminal prosecution evolved long after US independence and thus evolved differently despite similar legal foundations. Those differences are helpful for this American to ponder the road not taken and the impact of our respective choices.

That said, explaining the criminal legal system to Americans isn't the author's purpose. The first fifty pages are that beginner's overview, since apparently even folks who live in England are confused by the ubiquity of US legal dramas (not that those are very accurate representations of the US legal system either). The rest of the book, and its primary purpose, is an examination of the system's failings, starting with the magistrates' courts (which often use lay judges and try what in the US would be called misdemeanors, although as discussed in this book their scope is expanding). Other topics include problems with bail, how prosecution is structured, how victims and witnesses are handled, legal aid, sentencing, and the absurd inadequacy of compensation for erroneous convictions.

The most useful part of this book for me, apart from the legal system introduction, was the two chapters the author spends arguing first for and then against replacing an adversarial system with an inquisitorial system (the French criminal justice system, for example). When one is as depressed about the state of one's justice system as both I and the author are, something radically different sounds appealing. The author first makes a solid case for the inquisitorial system and then tries to demolish it, still favoring the adversarial system, and I liked that argument construction.

The argument in favor of an adversarial system is solid and convincing, but it's also depressing. It's the argument of someone who has seen the corruption, sloppiness, and political motivations in an adversarial system and fears what would happen if they were able to run rampant under a fig leaf of disinterested objectivity. I can't disagree, particularly when starting from an adversarial system, but this argument feels profoundly cynical. It reminds me of the libertarian argument for capitalism: humans are irredeemably awful, greed and self-interest are the only reliable or universal human motives, and therefore the only economic system that can work is one based on and built to harness greed, because expecting any positive characteristics from humans collectively is hopelessly naive. The author of this book is not quite that negative in their argument for an adversarial system, but it's essentially the same reasoning: the only way a system can be vaguely honest is if it's constantly questioned and attacked. It can never be trusted to be objective on its own terms. I wish the author had spent more time on the obvious counter-argument: when the system is designed for adversarial combat, it normalizes and even valorizes every dirty tactic that might result in a victory. The system reinforces our worst impulses, not to mention grinding up and destroying people who cannot afford their own dirty tricks.

The author proposes several explanations for the problems they see in the criminal legal system, including "tough on crime" nonsense from politicians that sounds familiar to this American reader. Most problems, though, they trace back to lack of funding: of the police, of the courts, of the prosecutors, and of legal aid. I don't know enough about English politics to have an independent opinion on this argument, but the stories of outsourcing to the lowest bidder, overworked civil servants, ridiculously low compensation rates, flawed metrics like conviction rates, and headline-driven political posturing that doesn't extend to investing in necessary infrastructure like better case-tracking systems sounds depressingly familiar.

This is one of those books where I appreciated the content but not the writing. It's not horrible, but the sentences are ponderous and strained and the author is a bit too fond of two-dollar words. They also have a dramatic and self-deprecating way of describing their own work that I suspect they thought was funny but that I found grating. By the end of this book, I was irritated enough that I can't recommend it. But the content was interesting, even the critique of a political system that isn't mine, and it prompted some new thoughts on the difficulties of creating a fair justice system. If you can deal with the author's writing style, you may also enjoy it.

Rating: 6 out of 10

Reviewed: 2021-01-18