If society’s job of finding out who is and who isn’t guilty of crime is worth doing, it’s worth doing well. And this is as true for regularly convicted thugs, whose rights it is easy to disdain, as it is for you and me, who might be wrongly accused of Causing Death by Careless Driving say, and who shouldn’t have to wait several years and sell the family home in order to get a fair hearing. Lawyers are an inevitable, and sometimes valuable, part of the process.
But although persuading people to consider unattractive possibilities is something we lawyers claim to be good at, the task of engraving in the public consciousness an image of ourselves as anything other than a flange of greedy leeches has long proved beyond our capabilities.
Until, that is, the Secret Barrister came along in 2015. His carefully researched blogposts pointed out inaccuracies in Ministers’ statements and in media reports of trials and sentencings, and candidly explained the workings and shortcomings of our criminal justice system. This tireless effort led to a substantial following and a book – Stories of the Law and How it’s Broken – that has sold over 250,000 copies.
I say “his”: I haven’t myself met the “SB” as he’s affectionately known on Twitter, but for reasons I’ll withhold, so as not to add too much to the growing identification jigsaw, I am 98% sure it’s a man. (And I say that in full knowledge of tweets such as this one.)
His second book, Fake Law: The Truth About Justice in an Age of Lies, takes a different tack. This time covering not just crime but also employment, personal injury, family law and Human Rights – and there are good pithy explainers on each – the focus here is on misinformation: from the press, and from politicians.
Now, the Tories have been in power for a decade and have de-funded Justice as if it were a vice rather than a virtue, so complaints of recent political mendacity will naturally focus on them. And as for the tabloids, well, most of them are on the Right, and habitually dishonest, so that will of course be the direction the finger is pointed.
But when the Mail, Sun, and Express are lambasted at least 59 times with a further 25 separate criticisms for the Telegraph, the Star (?), and, across the water, Breitbart and Fox News, whereas the Mirror and Guardian get only seven mentions between them and two of those positive — it’s hard not to wonder whether our pseudonymous blogger has begun to loosen his grip on political neutrality.
Nigel Farage, for example, gets the law wrong a lot (evidence is provided for those in doubt), but is our understanding of Fake Law helped by being told that “anti-European sentiment [is] another tired UKIP hobby horse”? In other news, barristers shit in the Wood Green Crown Court robing room toilets (which, yes, have been leaking since the Queen Mother died).
It’s not a left/right issue, Damian. I’m scrupulously even-handed in my sneering at politicians misrepresenting or making cheap political capital out of the law.
— The Secret Barrister (@BarristerSecret) November 2, 2018
The Guardian doesn’t publish much hang-the-paedos stuff, it’s true, but they yield to absolutely no one in their misrepresentation of the law relating to sex crime. So when, in a section on that topic, an example of hysterical anti-defendant bias is required it’s a little disappointing to find it coming, yet again, from the Daily Mail.
None of this would matter much – both-sides-itis can be boring, and is usually disingenuous. But when the specific theme of a book is Fake News, any tendentiousness at all reduces the allegation to an unenlightening taunt.
Although few alter their political views when relevant untruths are brought to their attention, and although, to an extent, the Mail’s gonna Mail, the correction of falsehoods is important work. But the other side does need to be listening.
When people begin tweets with that dreadful phrase, “I don’t know who needs to hear this, but…” you can be certain that if there is anyone who might benefit from hearing it, their attention will be elsewhere. If you want to persuade people – juries, enemies, Sun readers — you need to talk to them: to them, and not just to your friends. Relentless sneering at their favourite newspapers, even if entirely justified, does not increase engagement.
Newspaper affiliations aside, a legal fact-checker must be careful not to relay any misinformation themselves. In 2018, an Irish Senior Counsel said to a jury, as part of her defence speech in a rape trial,
“Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone? You have to look at the way she was dressed. She was wearing a thong with a lace front.”
The single 650-word report of the case led to protests around the world, with doxing, vilification and serious threats for the advocate involved. A typical UK comment piece – from The New Statesman – asked “Since when did your choice of knickers equal consent?” The online mob included a good number of lawyers who ought to have known better. Others, eventually, came to her defence: the point was made that, to quote Lord Steyn’s famous line in 2001, “in law, context is everything”.
So it’s a shame to find the Secret Barrister describing the trial as “A shocking case in Ireland, in which a complainant’s underwear was reportedly paraded in court by the defence barrister”, and observing that “such behaviour [is] plainly prohibited in the courts of England & Wales”. The underwear was not “paraded”, and there is no prohibition in this jurisdiction on what she did – nor should there be. The circumstances in which that sort of point could usefully and ethically be made (with or without physically pointing to the exhibit) might be rare, but they certainly exist.
And let’s not forget: juries are discerning. I’d even say that in a single-defendant criminal trial, the cleverest person in the room will very often be a member of the jury. So even when, as will inevitably sometimes occur, Counsel make what they think is a fair point on behalf of their possibly innocent client, but is in fact on the wrong side of the line, we shouldn’t be so quick to assume it will do the defendant any good.
There is a tendency to imagine that statements we disagree with are imbued with special powers, which give them a persuasive force that for some reason can never be bestowed on statements we approve of. And this tempts us towards censorship. Better, of course, is to correct lies with facts, and unsound arguments with sound ones — as advocates in court have the opportunity to do.
When I make a defence speech in a rape trial, and a reporter new to the case wanders in, I’m not much worried about the tabloids nor their readers. But I am, sometimes, concerned at the prospect of the non-tabloid media, and non-tabloid people on social media, taking a delicate point out of context and generating a frenzy of moral outrage. Tabloid Fake Law is not the only Fake Law we should be concerned about.
Politicians, the Secret Barrister’s other target, often lie about the law, as they do about much else. But again, it’s hard to ignore a prevailing wind in the selection of examples, and also in the descriptions of the practical effect of certain pieces of legislation.
Michael Howard comes in for a dressing down over, among other things, the changes made to the right to silence more than 25 years ago. But there is in the courts today little or no sense of unfairness about those changes, even among defence-only advocates. “Instinctively,” the author writes, “the ‘nothing to hide’ mantra may be superficially attractive. But it ignores that people may remain silent for a variety of reasons unrelated to innocence or guilt.” Juries, though, are given strong warnings of precisely those possibilities (see Chapter 17-1 of the judges’ guidance) — to such an extent that in some cases a defendant might be better off than they were when the right to silence was absolute.
And when New Labour does get upbraided, there often creeps in the very sort of “confected outrage” that the book sets out to debunk. For example, until 2008, the law of self-defence was a messy patchwork of findings and phrases from appeal court judges. The Government then put it into a statute. Yes, Jack Straw disingenuously claimed that the changes would “help to make sure that the criminal justice system is firmly weighted in favour of the victim”; but to describe that useful bit of codification as “pure political conmanship” is distracting hyperbole.
The same can be said of the author’s treatment of the Tories’ slight broadening, in 2013, of a householder’s self-defence rights. It wasn’t beautifully done (Chris Grayling had a hand in it) but to call the manifesto pledge “vacuous” and the small alterations “entirely pointless” is both inaccurate and, for many, off-putting.
The Secret Barrister has become something of a venerable institution, well placed to keep up the good fight against Fake Law in the media and legislative bad faith in Government – problems which, as the Treasury Solicitor’s recent resignation over the Brexit withdrawal agreement suggests, show no sign of abating. A progressive shift over the last few years is, as per O’Sullivan’s Law, perhaps to have been expected. But more of those who need to hear the message could be encouraged to listen if a gentler and more even-handed approach were deployed.