The Secret Barrister: Stories of the Law and How It's Broken
The Secret Barrister: Stories of the Law and How It's Broken
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The Secret Barrister is a few minutes late for our rendezvous at the back of Tommi’s Burger Joint in Marylebone, central London, so I kill time by forming a mental identikit of my mysterious dining companion. He or she — I still do not know which — has chosen an Icelandic fast-food restaurant for our lunch. On that basis I entertain visions of a traditionally bewigged barrister coming as a hipster in bovver boots and a Viking beard, or vintage jeans and a lumberjack shirt.

A young man in a cheap suit pokes his head around the corner but ignores me and the copy of the Financial Times I have brought to identify myself. A customer with greying temples and a razor-creased pinstripe, looking very much the experienced advocate, does likewise. Teenagers in hoodies, millennials in jeans, dresses and shorts come and go (Tommi’s is busy and tables are hard to commandeer) but no one so much as glances at my pink paper.

The secrecy surrounding the identity of the SB is genuine, and it is not hard to understand why. On an award-winning blog and in a best-selling book, the lawyer in question — hiding in plain sight as they stand up in court almost every day — has spent the past three years aiming withering broadsides at the English criminal justice system.

Walk into any criminal court in the land, writes the SB, and you will hear complaints about the system failing at a most fundamental level thanks to “a chronic lack of staff and funding abetted by successive cynical governments... ” The verdict is damning: “Every component of the system is infiltrated to some degree by negligent, reckless or malicious maladministration.”

As the FT’s legal correspondent I am all too familiar with the critique made on behalf of the accused and victims of crime alike: they have to contend with closed courts, delays to hearings and trials, barristers (the English version of trial lawyers) given only minutes to prepare for cases, ill-informed magistrates making life-changing decisions on legally flimsy grounds, and critical evidence left unexamined because neither the prosecution nor the defence has had the time to review it properly.

The longer-term effects, such as a diminished access to justice for those without the income to afford it, and a reduced talent pool for forthcoming generations of judges, are harder to quantify but no less concerning. The power of the SB’s whistleblowing lies in depicting the growing gap between the popular view of the system — handsomely remunerated barristers who spar before a judge by referring to ancient courtroom battles, before the whole process serenely arrives at The Truth — and the reality of the tottering edifice of English justice.

At 10 past 1pm, a casually dressed individual of slight build, aged somewhere between 30 and 40, comes into view. The Secret Barrister looks me in the eye and extends a hand.

I can lay to rest the theory that the SB is a trio of bloggers, as well as the rather more outlandish one that points the finger at Keir Starmer, the bouffant Labour Brexit spokesman and former director of public prosecutions. Otherwise, it is safe to reveal only a few personal details. Comprehensive school, law degree — not Oxbridge — followed by Bar school and nearly a decade as “a jobbing criminal hack”.

Spring has sprung and Tommi’s is heaving, so we get moving on the food as soon as politeness allows. Having noted both our orders I join a queue that extends almost to the door. Both of us have opted for the “Offer Of The Century” — a classic burger with fries and a drink, upgraded with cheese and bacon (I also add avocado). The SB may have to drive later and sticks to a Diet Coke; because Tommi’s is an Icelandic franchise, I try an Einstok pale ale.

The reason for the choice of venue is twofold. First, the swanky restaurants and wine bars clustered around the Old Bailey carried the danger of our being overheard and so rumbled by a fellow barrister. Second, it was in a branch of Tommi’s in Copenhagen that the SB, in consultation with their partner, finally resolved to branch out from blog posts and Twitter threads to a full-blown book.

The SB’s warts-and-all chronicle could hardly have been better timed. It was published only weeks before criminal barristers in England and Wales began a protest against a new payment scheme that they claimed would cut the paltry fees for junior barristers such as the SB yet further. For 10 weeks, they refused to take on new cases where the defendant was eligible for legal aid — financial support from the state that enables defendants on low incomes to afford legal representation.

The rates criminal barristers get paid for taking these cases are notoriously low — often less than £100 for a day’s work, out of which come travel costs and fees to chambers for sharing clerks (who act as the conduit between clients and advocates) and office space. The bank of mum and dad and the prospect of greater earnings from wealthier private clients after several years’ experience have to sustain them through the early career stages.

That dispute was settled but the sense of outrage lingers: for two decades, the Bar Council said, the government had undermined the profession with its “destructive attitudes, neglect and lack of respect”. The long litany of grievances is articulated in relentless fashion by the SB: an overstretched, dysfunctional Crown Prosecution Service (the authority responsible for bringing prosecutions); evidence going astray; prison vans turning up late with defendants; courts falling apart or being closed; cases not being heard for months. Even the adversarial system itself — the hallowed tradition of prosecution and defence duelling in court before a judge and jury — does not escape without a salvo or two.

Would more money solve all these problems? “By and large, yes — and not much money, either,” says the SB. “But we have not had in recent years a lord chancellor [one of the justice minister’s other titles] who is willing to stand up and fight for that.”

A list of offenders follows, the length of which illustrates the way Britain has rattled through justice ministers — six in as many years. Chris Grayling offered up his department for budget cuts “like a lamb to please the Treasury”, while Kenneth Clarke before him set many of those spending reductions in train. Then came Michael Gove, who “said the right things” before losing his job in the internecine political warfare that followed the Brexit referendum.

“The less said about Liz Truss the better” — the legal profession despises her for failing to defend the judiciary after the Daily Mail ran an infamous “Enemies of the People” headline, aimed at the High Court judges who ruled that the government needed parliamentary approval to trigger EU divorce proceedings. David Lidington “seemed like a nice man but lasted for six months”; and now we have David Gauke, appointed in January, who “doesn’t seem to be doing or saying much”.

“So I’m a little bit despondent — it would have been nice to have someone who recognises the problems everyone knows are there.”

The narrative of every secret identity includes determined efforts by readers to lift the veil. The American-born blogger and writer Brooke Magnanti unmasked herself as the London call girl Belle de Jour, the subject of her two best-sellers, to pre-empt being named, while football fans have spent years trying to identify The Secret Footballer from the clues left on his blog and in four books.

How many people know the identity of the Secret Barrister? “As far as I’m aware — and for all I know there could be this huge running joke at the bar where every time I enter a room people are whispering that it’s me — nobody knows in the industry. Very close family know and a couple of very close friends, but that’s it.”

I hope that if my name came out the professional consequences wouldn’t be the worst-case scenarios that go through your head

What would the impact of exposure be? “I would hope that if it came out, the institutions that are criticised would recognise that it comes from a place of good faith — that it’s not an attempt to misrepresent or do down the system for the sake of advancing my own name or to get a book out there, but that it’s something I think needed to be said. And so I hope the professional consequences wouldn’t be the worst-case scenarios that go through your head when you’re writing it — thinking, ‘Oh gosh, will I never work again?’ ”

But the SB admits that “in reality I wouldn’t be able to keep practising and writing... I would inevitably feel compromised in the writing and would either have to jack that in altogether or leave the Bar, neither of which I want to do.”

A waiter arrives with our burgers, which are wrapped in paper and served, along with the fries, in a plastic basket, the vessel of choice for today’s fast-food hipster outlet.

Anyone with a prominent online profile and a willingness to take on Britain’s press, politicians and Twitterati has to enjoy the whiff of cordite, and on occasions the SB has been at the centre of blazing rows. Not everyone is inclined to take a dispassionate view of the legal reasoning behind, say, the parole board’s decision this year to release John Worboys, the serial “black cab rapist”. The journalist and feminist campaigner Julie Bindel called the SB an “arrogant cocking crashing bore” for posts on the issue that confined themselves to patiently explaining the process. (Worboys’ release was later rescinded.)

Only a few days before our lunch the SB had exchanged fire with Liz Wheeler, a conservative American talk-show host. Wheeler had waded into the debate over the treatment of Alfie Evans, the little boy who died of a degenerative neurological condition after spending more than a year in hospital as his parents fought a long legal battle with their son’s doctors. Wheeler opened by accusing the British government of murdering Alfie; the SB responded by branding her a “thundering halfwit”. Back came Wheeler, accusing the SB of being “willing to do battle behind the anonymity of the keyboard, but afraid to defend your views on TV”.

Is there any point to that kind of Twitter war? “I accept it probably came across in places as snarky and confrontational but some people you’re not going to win round, so the best I can do is put the facts in a way that is going to appeal to other people... I don’t have any regrets — though it was not an easy four or five days trying to scroll through notifications from everyone in the Deep South telling me that I was a baby-killer.”

A few days before our lunch, the SB canvassed views from readers of the book on what they regarded as its most shocking revelation. The verdict was the “innocence tax” — the often enormous legal costs for those accused of a crime who do not qualify for legal aid but who, if exonerated, are denied compensation thanks to restrictions imposed in 2013.

A recent case in point concerned a retired doctor who had been falsely accused of being part of a paedophile ring. Even though the case against him had collapsed, the doctor was told at the end of April that he would not be reimbursed for the £94,000 — the majority of his savings — he had spent on his defence. (The alternative for anyone whose income is higher than the legal aid threshold is to represent themselves in court, which barristers say is as advisable as performing your own heart surgery.)

The innocence tax, says the SB, is a policy “so perverse you wonder how it got on to the statute books without there being front pages saying, ‘This is insane.’ But it did. And part of the fault is ours, the profession, because although we complained as we always do, I think we should have shouted louder.”

This comes up again and again: if lawyers had done a better job of mounting their own defence, perhaps they would not now be revolting against a system that holds itself up to the world as a model of criminal justice. In 2016, a committee of MPs said that a 26 per cent cut in spending over the previous five years had left criminal justice at breaking point. Barristers say their fees for legal work have fallen by 40 per cent during the past two decades. A recent Bar Council survey found that 62 per cent of criminal barristers work at least one day a week unpaid, while more than a third are thinking of quitting.

So if the pay is lousy, the conditions miserable, the infrastructure coming apart at the seams and the tabloid vitriol unceasing, why not pack it in?

Part of it is the love of courtroom drama. “You will not find a criminal barrister who was not in am dram... If you like theatre, if you like attention, then you go to the Bar if you can’t cut it as an actor.”

But there is the sense of a calling, too. “The joy is that you get to match that with something you feel is important,” says the SB. “While my book is capable of being interpreted as a misery memoir, there’s an awful lot of satisfaction on the days when things go well. It would just be nice to have more of them.”

Burgers demolished, we step back out into the bright sunshine to get on with the day. We shake hands again and the SB heads north in the direction of Baker Street. I watch for a second, hoping for a puff of smoke and a sudden vanishing act — or at the very least a change of costume behind a phone box. But the SB simply walks on, bag on one shoulder, into the crowds and back to anonymity.

This article was originally published by The Financial Times.
Copyright The Financial Times Limited 2018.

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