Thursday, November 11, 2021

The Secret Barrister

It's taken a while to get through this because it's both dense and pretty grim. The anonymous author makes a compelling case about the failings of the judicial system and what and who is to blame. I worked in the House of Lords for 13 years and followed the passage of lots of legislation, so knew of some of the issues detailed here, yet much still came as a shock.

At its best, I think, the Lords could spot potential unintended consequences of proposed new law. Often, an elderly noble and learned figure would rise unsteadily to share some anecdote about a case they were involved in maybe 40 years before. They had learned from those mistakes, and hoped to spare some further unfortunate from a repeated injustice. It's a particularly insidious trick, then, to smuggle significant changes into secondary legislation where there's less chance of teasing out detail.

"The practical consequence of reforms snuck onto the statute book by stealth in 2012 is to financially punish innocent people for the 'crime' of being wrongly accused. When I explain this to non-lawyers, they assume I'm joking, or exaggerating for effect." (p. 199)

The issue here is the decimation of legal aid, the impact being what the author calls an "Innocence Tax", and entirely premised on a false narrative that spiralling costs were all the fault of the lawyers.

"In 2007, the House of Commons Constitutional Affairs Committee heard evidence that the significant rises in Crown Court legal aid costs was largely down to increase in volume of cases, propelled by the creation of more criminal offences, and concluded that 'the average cost per claim did not and has not significantly increased'. Legal aid had therefore increased not because of fat-cat lawyers exponentially milking the taxpayer, but because the state was increasing the volume of cases." (p. 208)

Too often, Governments boast that they will bring about "change", a word that is not the same as "improvement". The result is ever more tinkering, meddling, chaos.

"To try to make sense of sentencing is to roam directionless in the expansive dumping ground of the criminal law. Statutes are piled atop statutes. Secondary legislation bearing titles unrelated to the amendments they make to primary legislation and the half-baked, half-enacted and half-revoked brainchildren of some of our dimmest politicians lie strewn across the landscape, stretching out farther than the eye can see. The many hundreds of legislative provisions exceed, at a conservative estimate, 1,300 pages. If one were seeking a totem to the despair caused by the work of licentious, headline-chasing governments revelling in the ruin they wreak, sentencing law would be it." (p. 286)

We've seen it over the past few weeks: the rush to respond to some incident by bringing in new legislation, rather than ensuring that current legislation has been adequately applied - which more often than not equates to whether it's being adequately resourced. That's the theme here: the awful cost inflicted by ill-thought attempts to save money.

The grimmest thing is that, like The Blunders of Our Governments, it paints a pretty bleak picture of systematic failure - which has only got worse since publication.

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