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We spoke to The Secret Barrister to find out everything you wanted to know about the law but were afraid to ask

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Tom Victor
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Most of us, if we’re lucky, will never find ourselves on the wrong side of a courtroom.

It’s pretty clear, however, that we’ll always be curious about what goes on behind those doors, regardless of whether we’ve experienced the setting as a defendant, witness, juror or in any other capacity.

Whether it’s TV, film or podcasts, true crime is experiencing a boom and crime fiction remains ever-popular. We’ve never been more keen to get the inside track on the former, and to test the accuracy of the latter.

The Secret Barrister has written about topics as diverse as the Ched Evans case and the Marine A controversy, using their anonymity to shed light on areas of the law which we might not even think to ask about… as well as those about which we’re very curious.

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We spoke to them ahead of the release of their eponymous book, in an effort to get the inside track on the real ins and outs of the legal system from someone forced to deal with it on a daily basis. And yes, before you ask, we did quiz them about those wigs.

Getting Arrested

ShortList: What am I supposed to do if I get arrested for no reason?

The Secret Barrister: First off, you shouldn’t be arrested for no reason - the police need to have reasonable grounds for suspecting that you are involved in a crime for which your arrest is necessary. But if you were arrested for something that the police wrongly thought you had done, you would have the right to independent legal advice when you reached the police station. I would advise that you take it.

Do you really get “one phone call” when you’re arrested?

You do indeed. Police and Criminal Evidence Act 1984 Code of Practice C, §5.6, seeing as you ask. The right to have one person contacted (and up to two alternatives if you can’t get through to that person). Although this can be denied if an Inspector has reasonable grounds to believe you’re likely to call someone to interfere with the investigation (e.g. telling your getaway driver where to hide the loot from the bank job). 

How corrupt are the police - do they really have secret vendettas/arrest people just to hit a quota?

Not that I’m aware of. Most police officers I meet are unspeakably brave and put up with far more shit than most of us could begin to imagine. There are of course some bad eggs (and I’ve met a couple), but the boring reality in my experience is that most police officers are good people just trying to keep the public safe. 

What’s the best way to get out of paying a speeding fine?

If it’s your first, then take the Speed Awareness Course. If that’s not an option, then you could try an expensive private road traffic solicitors’ firm, but even if you win your fees are likely to far exceed the cost of the fixed penalty notice.

I’ve been caught with a gram of coke on my person: what do I do so that I don’t end up in jail forever?

The good news is that possessing a controlled drug of Class A only carries a maximum sentence of seven years’ imprisonment, so you won’t be in jail forever. If you were charged with possession with intent to supply, you could theoretically be looking at a life sentence, but 1 gram is unlikely to result in that charge. In reality, if caught in possession and arrested, you would probably be offered a caution at the police station if you admit your guilt. If you were unlucky enough to be charged and taken to a magistrates’ court, the starting point on the Sentencing Guidelines is a fine, so prison is, whichever way you look at it, pretty unlikely. But even so, don’t do drugs kids.

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In court as a defendant

Is ignorance of the law ever a viable defence?

Nope. Which is why it’s so important that the criminal law - legislation and case law - is made easily available to the public. And why it’s a scandal that the government won’t fund this.

Are there any circumstances where it’s a good idea to represent yourself in court?

No. It’s like asking “Are there any circumstances where it’s a good idea to perform root canal surgery on yourself?” You really want a professional around for things that could end badly. The government’s clampdown on legal aid, however, means that more and more people are being forced to represent themselves.

Has someone representing themselves *ever* worked?

It has. Not often, but it has, often because the case against them was flawed and always likely to fail. And you will find those fine people in the BTL comments telling all who will listen how easy it is to win by yourself in court, in the same way as the tiny minority of people who have successfully dismantled and re-assembled their iMac by following a YouTube video. But you don’t want to be among the majority who don’t succeed.

Should you ever use free legal representation or is it better to pay for someone?

If you can find free, qualified, insured professional legal representation, then take it. Tread cautiously though. There are non-qualified people who hold themselves out as “McKenzie Friends” - non-qualified “assistants” who claim to be as good as lawyers, but cheaper. I wouldn’t risk my chances.

Is the legal system immediately skewed towards rich people getting away with stuff and poor getting shafted because they don’t get good lawyers?

It shouldn’t be, because in theory everybody should have access to legal representation if charged with a criminal offence. But government cuts to legal aid rates, and to the number of people who qualify for legal aid, mean we now have three tiers of defendant. Those who qualify for legal aid and get representation by good-but-underfunded lawyers; Those who don’t qualify for legal aid but can pay privately for expensive representation; and those in the middle who don’t qualify for legal aid but can’t afford to pay privately. It is that category that get screwed.

Have you noticed racial/class biases within the legal system, and if so can you give examples of how this has played out?

I personally haven’t. That’s not to say that it doesn’t exist - the legal profession, particularly among the judiciary, does not reflect the diversity of society, and unconscious bias is a well-established phenomenon. And David Lammy’s review last year into racial bias in the justice system raised some interesting and serious questions.

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In court as a lawyer

Without naming names - who is the worst person you’ve ever represented?

Probably the man who threatened to take me hostage.

What’s the worst defence you’ve heard in a courtroom?

“The blind man on crutches hit me first.”

What do you do if you’re having to defend someone that you’re pretty sure is guilty?

Quite simply, defend them to the best of my ability. My job isn’t to make a judgment on whether my client is guilty - that’s for the jury. If he tells me he’s guilty, that’s a different matter - I cannot mislead the court, so can’t stand up and say, “He didn’t do X” if he’s told me that he did. But if he says “I didn’t do X”, then my job is to advise him of the strength of the prosecution evidence and the likely outcome of a trial, and if he still says that the 50 witnesses, DNA experts and crystalline CCTV footage have all got it wrong, I put on my wig and go into battle for him. Because he may, contrary to how it appears, be innocent.

How do you sit opposite a paedophile, look them in the eye, listen to the accusations and then defend them?

Again, as above - my job isn’t to judge whether someone’s “obviously innocent”. It’s to provide legal assistance to someone who is being prosecuted by the state, and who may well be innocent. We have an adversarial system - the state says “We think you committed a crime”, and if the accused says, “No I didn’t”, we equip both sides with trained professionals to fight their corner. If lawyers made all the judgments on guilt or innocence themselves, there would be no need for courts. Of course, there are sometimes awful and difficult cases you defend that pierce the armour and strike at you on a human level (as I discuss in the book), and where deep down a part of you doubts what is being said to you, but you’re trained to put all that aside and carry out your professional duties as best you can. 

How many people literally get away with murder?

It’s impossible to say. But our system rightly prioritises the acquittal of the innocent ahead of the conviction of the guilty. For example, if we know that one alone of A and B murdered C, but can’t be sure which one, we let both go, rather than lock both up. This is why we have the burden and standard of proof - the prosecution must prove the case beyond reasonable doubt. This minimises the risk of innocents being convicted, but also means, inevitably, that some guilty people will walk free. Including murderers.

How often do you think innocent people get sent down?

More often than we like to think. And, fun fact for you: As Justice Secretary, Chris Grayling changed the rules to make it nearly impossible for people who are wrongly convicted to get compensation. Nice, no?

It was a deliberate change by Chris Grayling. It’s complicated to explain, but I deal with it in the book. In short, before 2012, you would be entitled to compensation when either (a) fresh evidence showed that you didn’t commit the crime; or (b) fresh evidence undermined the prosecution case so much that no conviction could possibly be based on it. (A) is obviously an incredibly difficult threshold - it is virtually impossible to “prove” innocence. Most miscarriages of justice fall within (b). Chris Grayling legislated to remove (b) from the scope of the compensation scheme. Unless you can prove beyond reasonable doubt that you are innocent (which is next to impossible), you are not entitled to compensation. In the book I give an example of a man whose conviction for rape was overturned by the Court of Appeal when it became clear the police had got the wrong man, who was not paid a penny for the 17 years he spent in prison.

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Chris Grayling during his time as justice secretary

And finally, all those non-legal questions which you were just curious about

Do lawyers shoot the shit in the bathrooms during courtbreaks whilst washing their hands?

On occasion we do.

What’s the barrister drug of choice? How many barristers actively take drugs?

Alcohol is the most constant staple, but cocaine gets a look-in in certain circles. I don’t know many barristers who dabble in the latter, but I hear that it happens.

Do you get corrupt barristers?

As in any profession, there are rogues. Not many, but a handful. One once tried to bribe me to drop a case against him. He’s no longer allowed to practise.

How itchy are those wigs?

Very itchy. And very hot. Summer days in non-air-conditioned courts are a hell on earth.

The Secret Barrister: Stories of the Law and How it’s Broken by The Secret Barrister is published by Macmillan on Thursday 22nd March

(Images: Getty/The Secret Barrister)