The Secret Barrister

The Secret Barrister:  Stories of the Law and How It’s Broken by The Secret Barrister is a book written by a barrister about the state of the British legal system. The short version is that the British government isn’t providing adequate law enforcement services. The government has cut funding for the police, the courts, the Crown Prosecution Service (CPS) and legal aid (the government paying defence costs for defendants who can’t afford a lawyer). One result of the cuts is that the police and the CPS often don’t provide information that is needed to prosecute defendants so many of them are released. And since legal aid has been cut many middle class people representing themselves because they can’t afford lawyer fees. Since these non-lawyers aren’t familiar with the law or with court procedure, their misconceptions cause problems in court that make the case take longer. The incompetence of people who represent themselves also leads to more convictions. The book has lots of illustrative stories about the British justice system going wrong, as well as history and statistics illustrating the impact of the government cuts. For example, in Chapter 4, the author tells the story of a woman called Amy whose partner Rob beat her up (p. 120):

Amy had sustained a multiplicity of injuries in the course of the assault. She had suffered a fracture to the left wrist, a fractured eye-socket, a broken jaw and extensive bruising and grazing where she had been dragged through the flat and out to the front garden. And she had given her account of what had happened to the police. 

But I know this – and the details of the assault and Amy’s history as set out at the beginning of the chapter – only because it all appeared on my brief in the MG5. This is the document we encountered earlier, composed by the police and (theoretically) containing a precis of what the evidence shows. 

The problem was that the actual evidence itself – the statement presumably taken from Amy and the medical records from the hospital – was nowhere to be found on my brief. Now, evidence not appearing on a prosecution brief is far from unusual. Often it will exist on the CPS computer and will just have been missed off the brief. Other times it will still be in the possession of the police, who upon prompting will forward it to the CPS to pass to the barrister. But it became apparent upon reading the notes of the previous hearings by the in-house CPS advocates that, in this case, the evidence had simply . . . gone. It had never been served on the defence. It had never even reached the CPS.

The evidence never turned up, so Rob walked free without a trial.

The government raises money through taxation and inflation, both of which involve the use of force. If you don’t pay taxes or you don’t obey legal tender laws, then the government will prosecute you. The police and courts use force to arrest people, fine them and imprison them. The only legitimate reason to use physical force is to respond to somebody else who has initiated the use of force. Some of the existing laws are about preventing the initiation of force: laws against attacking or damaging persons or property and laws against theft and fraud. So by cutting the budget of institutions for enforcing laws so they non longer work the government is sacrificing its ability to engage in the only activities it performs that are legitimate.

My guess is that the situation would improve if the government increased the budget for the police, the courts the CPS and legal aid. With enough public pressure maybe this will happen. But it is instructive that the government is so bad at deciding priorities that it cut one of the very few activities it undertakes for which the use of force can be legitimate. This is an illustration of Mises’ argument in Bureaucracy that without the profit and loss system the government is bound to be very bad at prioritising.