Legal Educators and Secret Barristers
A Review of The Secret Barrister, Stories of the Law and How It’s Broken. Macmillan, 2018. 376pp. £11.55 (HB). IBSN: 978-1-5098-4110-3.
It is remarkable how seldom Secret Barrister (SB) is able to call to aid rules of professional ethics to confront the “culture of error” (SB, 2018: 107) which, it is claimed, pervades the criminal trial process.
Indeed, anyone who has carefully followed the author’s “whistle-stop history lesson” (SB, 2018: 55), would be justified in concluding that guidance emanating from the Bar code of conduct and Solicitors Regulation Authority is as “functionally useless” (SB, 2018: 145) as was Secret Barrister in addressing those weaknesses in the criminal justice system which threaten its reputation, such as “...cases arriving underprepared, evidence being lost, disclosure not being made…” (SB, 2018: 111).
The book tells of a criminal justice system “broken” through a “decade of budget cuts” (SB, 2018: 111) which has seen, among other things, the Crown Prosecution Service (CPS) losing “almost a third of its workforce” (SB, 2018: 116) and “an average real-terms cut in legal aid of 37 per cent between 2013 and 2017” (SB, 2018: 210). Secret Barrister’s assessment of the effects of these various government interventions has been discussed by reviewers with appropriate criminal law and/or criminal justice expertise, and is not the primary focus of this review. The aim of this review is to explore the role of legal educators – specifically those involved in the provision of undergraduate legal education – in providing legal professionals with adequate tools with which to address the moral and ethical dilemmas which Secret Barrister narrates.
Whether intended or not, Stories of the Law and How It’s Broken, lends powerful support to those legal academics who have long argued that a comprehensive and applied study of legal ethics should form a compulsory component of undergraduate legal education.
When Secret Barrister can do no more than apologise “over and over” (SB, 2018: 145) and silently embrace the “guilt” (SB, 2018: 145) of the system’s avoidable mistakes, we come to a realisation of how vain is the professions’ attempt (aided for too long by the legal academy) to offer discrete rules of professional conduct as the only form of practical assistance to a legal professional having to deal with conduct as seemingly malign as the repeated failure to disclose evidence relevant to the defence of an accused person (e.g. SB, 2018: 250-256).
There are three areas of legal education and training which I suggest would have given a radically different shape to Secret Barrister’s experiences of professional life – had they been embedded as early as the academic stage of legal training. The remainder of this review draws on the book’s content to imagine a compulsory module on legal ethics. The module would be designed to encourage reflection on: (1) the ethics and practicalities of public interest disclosure; (2) the extent to which conventions of professional courtesy and collegiality should extend to the litigant in person: (3) the knowledge and skills needed to develop and sustain an ethos of law reform during legal practice.
Public Interest Disclosure
The stories themselves are an attempt at disclosure in the public interest. The form in which they appear stands as testimony to the limitations of the legal regime designed to protect those who make such disclosures. There is no doubt that the “ordinary tales of injustice” (SB, 2018:16) narrated in the book would constitute qualifying disclosures within the meaning of public interest disclosure legislation. However, the fact that so-called whistleblowing claims are on the rise in Employment Tribunals is strongly indicative of a social construction of the ‘good employee’ which is wholly incompatible with the revelation by an employee (to an appropriate body) of that which the employing institution wishes to conceal.
The stigma which still attaches to those who make public interest disclosures could be alleviated by a sensitively designed legal ethics course, which will play a part in bringing about a much needed cultural shift. Such a course would also identify appropriate avenues for disclosure, thereby opening up possibilities beyond mainstream or social media outlets. The regrettable tendency of such media is to lose all interest in the source of the disclosure once its publicity value has been exhausted. Secret Barrister was able to “write anonymously because it buys the freedom to be candid” (SB, 2018: 15), but this is clearly not an option open to the majority of those legal professionals able to bear witness to the more pernicious aspects of the criminal and civil justice process. Perhaps more pertinently, the anonymously transcribed “cases...of...incompetence...error and...malice” (SB, 2018: 16) can be all too easily dismissed by those who have “consciously enabled” the flaws in the criminal justice system (SB, 2018: 326).
However, the most pressing argument in favour of a comprehensive training in ethics – one which seeks to inculcate a duty, in given cases, of disclosure – is that certain matters of concern, such as attempts by the CPS to pursue evidently weak cases because of concerns over its “statistics” (SB, 2018: 149), ought to be disclosed in real time. Timely disclosure may being about that potentially life-altering second, third or fourth adjournment. In the case of the CPS statistics, Secret Barrister did make disclosure to the judge, but more often the legal education and legal professions’ currently incomplete conception of the ethical terrain leaves legal professionals “standing wordlessly, mouth agape” (SB, 2018: 102) when basic information, that could bring about the just disposal of a case, is not processed.
I was not surprised to find support from Secret Barrister for observations I made in an earlier blog post on the Barton v Wright Hassall  case. There I questioned the principal assumption behind the decision: that litigants-in-person, when seeking allowance for mistakes made by them during the course of civil proceedings, are seeking special treatment and not merely seeking to be given the same allowances that extend to professional litigants.
I was, however, surprised to discover the extent of professional litigants' departures from important rules of procedure. We learn of occasions when “one, sometimes even two short adjournments” are agreed in order to deal with “prosecutorial blunders” (SB, 2018: 102). Of even greater concern are the trials which are delayed “because vital material...was sat on by the prosecutor and not disclosed...” (SB, 2018: 104). Amy’s case, recounted between pages 120-127, is just one of a number in which “evidence had simply...gone” (SB, 2018: 120).
In light of these obviously costly and time-wasting incidents, which Secret Barrister is, for the most part, powerless to prevent or remedy, it must surely be down to the “prejudices” which are occasionally admitted (e.g. SB, 2018: 245) that the following indictment is made:
A litigant-in-person, unacquainted with the rules of evidence or procedure, is guaranteed to lengthen proceedings, add layers of confusion and complexity and run up far higher costs in added court time than would ever be expended on having a hack like me defend him on legal aid rates (SB, 2018: 219-20).
It seems hardly tenable that a litigant-in-person can do more damage in terms of costs and time than the professional litigators who are “fully prepared” for the first hearing in only “50 per cent of cases” (SB, 2018: 114); or the professional defence advocates who, routinely, are given no more than “fifteen minutes’ reading, preparing and sorting for trial” (SB, 2018: 77). Lurking unsaid behind the indictment of the litigant-in-person is the no-doubt sound observation that as bad as they might be when a defendant is professionally represented, prosecution practices will be even worse if the defendant is one of the “many” forced to self-represent “due to severe restrictions on legal aid” (SB, 2018: 67). Let’s take, for example, the practice of flooding the defence with useless documentation-one which Secret Barrister alludes to as the “prosecution mega-dump” (SB, 2018: 231). This is a tactic very likely to be deployed with even more malign intent against a person ill-versed in the finer details of the criminal procedure rules. If so, this is surely a matter of professional conduct and ethics? Not least of the problem with our current understanding of the scope of professional ethics is that they are seen not to extend to individuals for whom litigation and advocacy may be once in a life-time experiences.
Many Law Schools have now adopted litigant-in-person projects. These offer valuable support to unrepresented persons, but educating law students about the vital role of the litigant-in-person – not least as a counterweight to the sometimes damaging cultures in which professional litigants are embedded – is far from being a visible component of undergraduate legal education. Should this theme find a place in the Law School curricula, the fact that the litigant-in-person is an older feature of the criminal justice system than is the professional litigant should be underscored (see SB, 2018: 39-40).
The very process of legal education is an inherent feature of law reform. But arguably insufficient attention is given to the mechanisms of law reform in the compulsory elements of the Law School curricula. For example, Law Commission Reports, as objects of study, hardly compete with other primary and secondary sources.
There are many candidates for reform disclosed between the pages of Secret Barrister’s important work. For example, one desirable change would “require juries to give reasons for their verdicts; to set out clearly the findings of fact, with reasons in support of those findings, and how the law applies to them” (SB, 2018: 273). The rules governing compensation for victims of miscarriages of justice are identified as features of the system which are ripe for change (SB, 2018: 315-319). However, given this review’s emphasis on the role of legal educators, I have found most fruit in chapter two.
Just last month, the Solicitors Regulation Authority received the go-ahead from the Legal Services Board for their controversial changes to the legal education and training requirements for solicitors. For many commentators, the Single Qualification Exam regime spells the end of the qualifying law degree. I will concede to this view – to this extent only: current QLD providers will be forced to urgently reappraise their relationship with the legal profession.
Those QLD providers who sympathise with Secret Barrister’s lament over the “filtering and training process” for prospective magistrates, which “places insufficient emphasis on...vital skills of logical and critical reasoning” (SB, 2018: 69) may see an opportunity to lead reform toward compulsory undergraduate level study for those empowered “to determine law, facts and sentence” (SB, 2018: 80) in relation to increasing numbers of persons accused of criminal offences, including those for which the accused traditionally could elect for trial in the Crown Court (SB, 2018; 80-81).
Tuitt, Patricia, Satellite Litigation and Non-Cooperation, February 21 2018. patriciatuitt.com