The Secret Barrister - Fake Law: The Truth About Justice in an Age of Lies

The Secret Barrister is a junior barrister specialising in criminal law, and the author of the award-winning blog of the same name. The Secret Barrister writes for many publications, including The Times, the Guardian, New Statesman, iNews, Esquire and Counsel magazine.

In 2016 and 2017, the Secret Barrister was named Independent Blogger of the Year at the Editorial Intelligence Comment Awards. In 2018, the Secret Barrister was named Legal Personality of the Year at the Law Society Awards.

Their first book, The Secret Barrister: Stories of the Law and How Its Broken, was a Sunday Times number-one bestseller and has been in the top-ten bestseller list for more than a year. It won the Books Are My Bag Non-Fiction Award 2018, and was shortlisted for Waterstones Book of the Year and the Specsavers Non-Fiction Book of the Year 2018.

The Secret Barrister: Stories of the Law and How Its Broken

On 20 February 2018, fifty-two years, three months and eleven days after capital punishment in Great Britain was abolished, the state ordered that a baby be put to death.

Over the next two months, as the childs parents tried in vain to save their sons life, successive tiers of the silhouetted British and European judiciary would agree on no less than eight occasions that, notwithstanding the availability of viable medical treatment,

In another year, in another British court, a similarly out-of-touch judge acceded to the pleas of an illegal immigrant who took the stand to contest his deportation, after he committed serious criminal offences. The reason for the decision to let this man remain? It was because and I am not making this up he had a pet cat. putting British citizens at risk so that the nations migrant cats might sleep sounder in their baskets.

Outside the caprice of the courtroom, hard-working taxpayers its no wonder the nations finances are in their present state.

And, as for them, those foreign criminals and illegal immigrants, the law is of course on their side. reclining in front of free Sky TV in four-star hospitality until they are let out early.

We shouldnt, of course, be surprised. When activist judges, the lot of them.

If theres one thing you can be sure of, it is that the law, whatever it does, does not work for you.

The likelihood is that you will have heard something of the cases and themes above over recent years, whether in the press, on social media or folded into the rhetoric of an earnest politician.

Except, of course, that every legal detail in those stories is untrue. They are examples of what a marketing mogul with a keen eye for neologisms might term Fake Law: distortions of legal cases and judgments, spun and reformed for mass consumption. They represent a phenomenon that is far from new, but which, in an age when an errant headline can reach a million Twitter users in a single baited click, is becoming broader in scope, longer in reach and exponentially more difficult to counter.

And the above myths, and the thousands like them, are what this book aims to address. For, while most of us can equip ourselves reasonably well to critically assess news stories or commentary in many walks of life, legal stories throw up particular obstacles.

Law is inherently and often unnecessarily complex and alienating to a non-legal audience. Finding the answer to a straightforward question such as, What does the law say about my right to defend myself in my home? is not simply a matter of going to a conveniently labelled statute online and reading what it says.

For one, we churn out new laws quicker than the government can publish them. Unfortunately, and consequently, Thats a lot of inaccurate legislation lying in wait to trip up the casual browser.

But this is only part of the issue. Unlike civil law jurisdictions, such as France, where the bulk of the countrys law is codified, we have, since Henry IIs declaration at the Assize of Clarendon in 1166, been faithful to the common law tradition, where the senior courts (today, the High Court, Court of Appeal and Supreme Court) have the power to make law. Where a case involves an issue of interpretation or clarification of legislation passed by Parliament, our most senior judges will hand down judgments which have the effect of binding all lower courts (the doctrine of precedent). This means that, if you wish to understand what a statute means, it is not enough to simply locate an up-to-date version; once that quest is completed, you will need to know what further gloss has been coated over it by case law. And accessing case law let alone interpreting and extracting the esoteric legal principles judicially parsed within presents similar difficulties.

The official provider of free, up-to-date online case law is the British and Irish Legal Information Institute (BAILII), a charity subcontracted by the Ministry of Justice to publish the text of new case law on its website. BAILII performs a heroic task of uploading hundreds of new judgments each month from the various senior courts and tribunals from across the United Kingdom, but, as a charity dependent on donations (heaven forfend the Ministry of Justice fully fund this endeavour), it has its limits. A recent analysis showed that, while the leading commercial case law provider published 74,010 judgments between 2007 and 2017, BAILII was able to upload only 30,583 well under half.

For a member of the public, all of this means that, unless you have access to a commercial legal database, at a subscription per year running into four figures, or the updated practitioner textbooks in every legal discipline, it is virtually impossible even to locate the applicable law.

Even if you succeed in tracking down the relevant statute and case law, comprehending its application in practice presents a separate, often insurmountable challenge. The language of the law both its statutory drafting and judgments handed down by the courts can appear deliberately alienating to a citizen in the third millennium. While the civil and criminal courts have formally vowed to abstain from the routine use of Latin, some participants cling onto it. Barristers in criminal proceedings will still casually slip into res gestae, mens rea or novus actus interveniens. Old-school civil practitioners still speak in terms of ex parte, mandamus and certiorari. Abstruse legalese remains scrawled throughout the legal process. The criminal law retains its fondness for old, comfy Victorian statutes to prosecute most offences of violence being an incorrigible rogue is still a prosecutable criminal offence), and the formal courtroom exchanges between counsel and judge invariably sound lifted from another epoch. May it please Your Honour, my learned friend and I have considered the position and the view at the Bar is that this would fall within the res gestae exception is a sentence that may trip off the tongue of a criminal lawyer, but makes little sense to anybody in the public gallery. Dragging the legal system kicking and screaming into the twentieth century is still on the to-do list in the second decade of the twenty-first.

Our education system only compounds the problem. Despite the law underpinning every facet of our existence, from prior to our birth through to and beyond our death, English and Welsh schooling has historically placed no emphasis whatsoever on legal education. How are laws made? What are our rights? How does the justice system work? What is the court hierarchy? Such themes, if they are explored at all, are shoehorned into unfashionable Citizenship or General Studies curricula, rather than celebrated in their own right as a key pillar of education, as important as language or maths.