An English barrister wrote a book called The Secret Barrister. It is about the failings of the English justice system. It is extremely well written by someone who obviously knows his or her way around – and by someone who can see both sides of a question and be dispassionate even where a want of passion may sound criminally cold. The book is alarming and should be read not just by Australian criminal lawyers but by any Australian having any interest in criminal justice.
I am not sure how much of the book applies to us, but a lot of it looks very like some of the nonsense I had to put up with when I stopped doing crime – by which I mean stuff you could go to jail for, as opposed to the white collar stuff that has largely been quarantined in a no-fly zone – forty years ago.
I shall not review the book, but make two general comments and refer to three specific points.
First, as I follow the author, most of the decline has been caused by government cuts in spending and by a part of the press that is at best ignorant and at worst vicious. The sad truth looks to be that there are no votes in courts or jails, and therefore our short-sighted governments just cave in to what is banally called ‘populism’ and we the punters get what we deserve.
If this is right – and I think it is – this is just another structural fault in our democracy – one among a growing and worrying number. If those standing up for victims get a full whiff of any of this, they know that they will hardly have scratched the surface. On the other hand, they may see why some older lawyers have worried about the venom – and that is what it is – of the backlash.
Secondly, the book is an entire monument to the old and simple truth that you can have all the gorgeous declarations of rights and pious statements about the progress of mankind – they all mean nothing if the system does not work on the shop floor. Robespierre, Stalin and Hitler were as generous as all get out on promises, and brutal and lethal on their feet.
Magna Cara is routinely violated. The author says that ‘one bald statistic stands out above all: only 55% per cent of people who have been a victim or a witness in criminal proceedings would be prepared to go through it again.’ Allowing for some fuzziness in the question, this finding suggests that the system is wholly unfit for purpose. Part of the problem comes from adjournments and understaffed courts jamming lists to force people to settle. I experienced this in all courts in the 70’s and nothing is better calculated to destroy faith in the system. Justice is not just delayed – it is denied. My impression is that the lack of faith may be greater here because I suspect we have a higher rate of successful appeals from conviction. Whatever may be the cause, an experienced lawyer would caution any member of their family wanting to go to law over sexual assault to think long and very hard before taking a step that might involve them in misery for a very long time and perhaps all for nothing.
Then came the backlash. Not enough attention had been paid to or protection afforded to the victims. This was notorious around the world in complaints against churches. So, the English police changed tack – violently. One resolution said that it was policy ‘to accept allegations made by the victim in the first place as being truthful’. Another said: ‘The presumption that the victim should always be believed should be institutionalised.’ This passes belief. There is a fundamental error in the nature of the place of ‘truth’ in our process, and we have the moral equivalent of an AFL umpire going into a Grand Final between the Eagles and Collingwood wearing black and white. (And, yes, I can recall a barrister being done for contempt for making just that analogy.) Some nut hypnotised the English police into believing some conspiracy involving most of the government – when it blew up, the inquiry unearthed the heresy.
The author gives a very helpful comparison of the inquisitorial system. For all its faults, and they are grievous, he prefers ours. Why? At bottom, we don’t trust government to do the right thing in things that count for us personally.
The chapter on sentencing is headed ‘The Big Sentencing Con.’ And con it is. In the 1980’s I acted for banks who got sued by farmers whose farms were on the line because their bank manager had put them into foreign currency loans (Swiss Francs) that had gone bad and left them broke. You did not need honours in jurisprudence to know which side was the less likely to lose that sort of case, but I wondered about the juristic basis of the claim. The late Neil McPhee told me had been involved in a number of high finance cases, and that he was satisfied by the experts that there was no rational basis for predicting fluctuations in the money markets. He said that he thought the banks were exposed because they were making public statements that could only be premised on the proposition that we could predict fluctuations in money markets.
His insight looks appropriate to our law on sentencing. The Holy Grail is: What good does it do to lock people up? What does punishment mean or achieve? No one has even got close to a coherent answer that I am aware of. Those in the know speak of ‘warehousing’ – so does the author. The inarticulate premise is – ‘we will lock the bugger up to keep us safe and shut up the politicians and the press, and then wait for the next serve when they get out – most likely worse than when they went in.’ Warehousing is to the judiciary what kicking the can down the road is to the executive.
Then the appellate courts compound the fallacy. By saying that four is better than six, or vice versa, they are postulating that some identifiable science underpins the whole process. That science had not been discovered when I did Criminology in 1965, and I am not aware of its later appearance. Nor does it help that many of the appellate judges have never set foot in a criminal court, and not one – or scarcely any – has ever met the kind of customer our Queen confronts in her courts.
According to the author, 354 prisoners died in custody in 2016. 119 were suicides.
Prisoners are largely drawn from the most damaged and dysfunctional nooks of society. The majority have the literary skills of an eleven-year-old. An estimated 20-30 per cent have learning difficulties….Over half of women prisoners and over a quarter of men report being abused as children. Mental health problems exhibiting symptoms of psychosis are reported by 26% of female prisoners and 16% of men, compared to 4% of the general population. Drug and alcohol abuse feature for the majority and 15% are homeless. And how are these complex factors addressed?
Apparently, by judges’ composing long and boring tracts that no sane person would ever want to read that if anything just make the law more complex, and therefore worse, and that just make life so much harder for the real judges who have to try to apply these laws – and which leave about half of us swearing never to go near a court again.
The author states the issue this way.
Sentencing of offenders amounts to a giant confidence trick on the general public. The law – decades of on-the-hoof populist legislating – is impossible to understand. Sentences passed are often entirely out of kilter with public expectations, and the same criminal behaviour can be dealt with entirely differently in alike cases. Worst of all, there is an inherent dishonesty arising out of a lack of clarity as to what those setting policy want to achieve.
That accords with my understanding here. The point is serious – the legal word for ‘confidence trick’ is fraud. That is not the word we expect to find to describe a court of law. Nor do we expect to see the word dishonesty characterising the heart of our system to punish crime. What we have seen is the parliament, executive and judiciary complicit for years in creating a huge minefield to perplex trial judges and prosecutors and vex and amaze litigants, victims, and witnesses – and the whole dreadful rubric is built on sand. (And that’s the polite way to put it.)
Politicians have a lot to answer for. So does Rupert Murdoch, whose minions spin their tripe for gelt. (Someone should remind Mr Bolt, and his like, that the slammer is far more expensive than Eton or Geelong Grammar; and it would improve his credibility, among other things, if he spent a weekend or two in one.) But overall, the problem is down to us as lawyers, and this book throws a steady light on our failings.
There is one light spot. In a Crown Court in August 2016, her Honour Judge Patricia Lynch, QC, gave the prisoner eighteen months for racist abuse. The prisoner told her Honour she was ‘a bit of a cunt.’ Her Honour was evidently less sensitive than our County Court judge who was compared to a Collingwood supporter. She replied: ‘You are a bit of a cunt yourself.’ Atta girl, Ma’am – both barrels and in terms that the bastard can understand. After that, the conversation went down in tone. The bad news is that there was a regulatory inquiry. The good news is that her Honour was cleared – after saying sorry. The JCIO [the Thought Police] statement said: ‘Although the lord chancellor and the lord chief justice considered HHJ Lynch’s remarks to be inappropriate, they did not find that they amounted to misconduct or warranted any disciplinary sanction. [They] were of the view that the matter should be dealt with by informal advice.’ It’s just another piece in that ghastly Orwellian mosaic; no breach of the law but she gets a backhander just in case – this is known as the James Comey swipe.
As the author reminds us, Dostoevsky said that you can judge the degree of civilisation in a society by the way it treats its prisoners. We do not even come close.