Is our criminal justice system broken?

A book recently published in the United Kingdom has created a sensation in that nation’s legal and political circles. The Secret Barrister: Stories of the Law and How It’s Broken describes the dysfunction of the U.K.’s criminal justice system. The anonymous author calls himself (or herself; we don’t know which) the Secret Barrister.

The Guardian newspaper calls the book “a plea to rescue a justice system that has become utterly broken.” The Spectator magazine said the “immensely impressive” account was “a desperate, last-ditch attempt to open the eyes of those outside the profession to the injustices which exist within our justice system.” The Daily Mail described the book as “ . . . of some brilliance, clearly explained, cogently argued . . .  Its main distinguishing quality, though, is its absolute reasonableness . . .  “

Stories of the Law and How It’s Broken was a Sunday Times top-10 bestseller for 24 weeks, selling more than 250,000 copies. A copy was given to every member of the U.K. parliament, financed by a crowdfunding campaign. This is a big book raising big ethical issues.

The Secret Barrister argues that a criminal justice system collapses when government funding is inadequate. Many of the U.K. system’s failings, they say, betray “warped spending priorities whereby politicians persuade voters that 1p [pence] off a pint of lager is a better investment than a working justice system.” (Sound familiar?)

When there is not enough money, the guilty go free, the innocent are imprisoned and the victims of crime are ignored or abused. “Serious criminal cases collapse on a daily basis because of eminently avoidable failings by underfunded and understaffed police and prosecution services . . . The bottom line is that victims of crime are denied justice, and people who are not guilty find themselves in prison.”

The criminal justice system is in the hands of the state, but, says the Secret Barrister, these are unsafe hands. Most of us think that the state is competent to find the truth and that it will be neutral in seeking it. These assumptions, she writes, are “dangerously untenable.” State competence and impartiality are myths. Incompetence, error, recklessness and malice prevail.

In a degraded criminal justice system, the lives of innocent people are easily ruined. If you are not guilty and spend time in prison before your innocence is established, “everything you have built over the course of a lifetime . . . is suddenly, without notice, snatched away from you and placed on a high shelf beyond your reach.” At the end, there is “no compensation. No assistance in piecing together, or even sweeping up, the fragments of your shattered existence. Not even an apology.”

While the innocent are imprisoned, the guilty walk free. The Secret Barrister writes: “Walk into any criminal court in the land, speak to any lawyer or ask any judge, and you will be treated to uniform complaints of court deadlines being repeatedly missed, cases arriving underprepared, evidence being lost, disclosure not being made, victims being made to feel marginalized and millions of pounds of public money being wasted. And, as a consequence, every single day, provable guilty people walking free.”

Victims of crime are treated with “institutional callousness,” the author says. Their rights are subjugated “to the interests of the court; the interests of the prosecution; and the interests of the defendant.” A 2016 study by the U.K. House of Commons Public Accounts Committee found that only 55 per cent of people who have been a victim or a witness in criminal proceedings would be prepared to go through such proceedings again. This is a stunning indictment of the U.K.’s criminal justice system.

Worst of all, says the Secret Barrister, is that no one seems to care about this state of affairs. Members of the general public, uninvolved in the criminal justice system (if they’re lucky) and observing it from a distance (if at all), pay no attention. Politicians have discovered they can win votes if they pander and “misunderstand, misrepresent and abuse” the law. The legal establishment, secure in its bubble, protected by a carefully created and self-enhancing mystique, doesn’t seem troubled by this “catastrophic dissonance in public understanding.” And the motivation of some lawyers is suspect. Lawyers have “a desperate need to be centre stage in the climactic scenes of people’s lives.” They seek “to play the action hero in the story of somebody else’s life.”

The media bear much of the responsibility for all this. Newspapers’ grasp of the law “appears looser every day. The financial strangulation of local journalism and dedicated court reporters means that national news outlets frequently rely on incomplete press releases from the police, or partial accounts from the victims. . . . Throw in a choice quote from a conveniently outraged MP, and you have a Twitter storm . . . ”

Does the Secret Barrister’s devastating analysis apply to Canada’s criminal justice system? What do Canadian prosecutors and defence lawyers, those steeped in our criminal justice system, think about what happens in this country? For that we need a broad discussion. It is not enough for the legal profession to peer benevolently at its innards or for the government to do a study destined for the shelf. The public, particularly those who have experienced the criminal justice system directly, must be involved. And the media, still society’s principal interlocutor, must be front and centre.

By the way, the Secret Barrister has an acclaimed blog. In 2016 and 2017, they were named Independent Blogger of the Year at the Editorial Intelligence Comment Awards. In 2018, they were named Legal Personality of The Year at the U.K.’s law society awards. Someone is paying attention. And there’s more to come. A new book from their pen, Fake Law, will be published in September.