Monday, January 11, 2021

The Secret Barrister – ‘Stories of the Law and How It’s Broken’

Meanwhile at the National Probation Service, inexperienced, inadequately trained staff are monitoring ever-increasing caseloads of high-risk offenders in the community. One employee reported that the target culture had reduced him from seeing his offenders weekly for an hour to holding appointments once a month for an average of twenty minutes. These are the institutions we entrust to supervise and rehabilitate the most damaged and dangerous among us. At twenty fucking minutes a month. (p. 327)

It’s not why I read the book, but I worked for the Probation Service once, for about six months. Just temping, typing up Pre-Sentence Reports mostly, from Dictaphone tapes or handwritten notes, or (this seemed to be a new thing at the time) copying text that a Probation Officer had typed herself from a document on a floppy disk to the template, proof-reading as I went. There’s a job that probably doesn’t exist anymore. It’s interesting, if not surprising, to discover what happened to the service in the intervening two decades: ‘low- and medium-risk offenders’ got farmed out to private companies, in the wearyingly familiar privatisation narrative, to save the taxpayer money by sweeping the work under the carpet and ensuring it was done as badly as possible while still hitting those targets. There are plenty of other examples of this kind of corrosive neglect in the book, and it’s to the Secret Barrister’s credit that it doesn’t get overwhelming or overly repetitive: there’s always enough human interest alongside the institutional failures, not to mention a stout defence of the principles on which the criminal justice system in England and Wales rests. In a section which feels rather like being led on by a barrister’s speech in court must do, this ‘adversarial’ system is compared with the ‘inquisitorial’ one which is used widely in continental Europe. Adversarialism pits prosecution against defence in court, in front of a jury, and cross questioning is used to undermine the other side’s version of events. Which does sound a bit juvenile: the fiercest (most eloquent / devious / best prepared) cock will win the fight. Surely the inquisitorial system, where the aim of the state’s investigation is to establish the truth, rather than peck its eye out, is the more mature, responsible, balanced practice? Doesn’t this just highlight everything we know is bad about UK individualism and good about EU (relatively speaking) socialism?

Then comes a stunning about-face. Haven’t you been listening to how bad I’ve been telling you the state is? At following its own guidelines, gathering evidence, disclosing evidence, acting impartially under government pressure for certain types of conviction? Do you really want all that to go unchallenged? Yes, but you said all that about the UK state, which you’ve just spent a couple of hundred pages showing how badly it funds all those things. Surely in a grown-up country like Germany or France… You’ve seen Spiral, right? Oh, I see what you mean. If falsely accused, the Secret Barrister imagines asking themselves,

would I have faith in an inquisitorial jurisdiction where the state, with its variable competence and political vulnerability, controlled my fate throughout? Or would I trust the presentation of my case to an independent solicitor and advocate, and hope that twelve ordinary people, shown evidence that is relevant, reliable and fairly adduced, would find the prosecution insufficient to convict me?
        Every time the answer is the same. (p. 277)

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