Kapil Summan, assistant editor of our sister publication Scottish Legal News, reflects on the presumption of innocence in one of the best legal books of modern times.

A presumption qualified

Addressing the judge at a murder trial in the Old Bailey in 1791, counsel for the accused, the Scotsman William Garrow, said “it should be recollected by all the bystanders that every man is presumed to be innocent till proved guilty” – and so eventually it was. But although the presumption of guilt has long since given way to one of innocence, this latest account of life at the English Bar reveals the gap between theory and practice.

The Secret Barrister is published at a time of turmoil for the English justice system. Grave failings by police and prosecutors to disclose evidence – an open secret in the profession and something that has been going on for at least 20 years – have led to the collapse of numerous prosecutions. At the same time, advocates of complainants’ rights are calling for courtroom changes in the wake of high-profile rape trials, with some suggesting that complainants receive their own legal representation and that cross-examination be tamed by installing video cameras in court so that defence lawyers, operating under watchful eyes, behave less “aggressively”.

The book is a broadside against a justice system of pervasive inefficiencies; unrelenting adjournments; beleaguered lawyers and court users treated with a carelessness tantamount to contempt. The iniquities borne by complainants, defendants and lawyers and the incompetence behind them are its dominant themes. But in a climate in which accused persons are now routinely pre-judged on social media and legal aid around the UK is in dire straits it is especially important to consider the slings and arrows dealt those in the dock.

In 2012, the “Innocence Tax” was introduced in England and Wales after a spurious study by the Ministry of Justice claimed that the legal aid system there was the most expensive in the world. The reforms meant that the state would no longer reimburse legal aid contributions or the rump of private costs for people acquitted, likening their situation to that of a private healthcare user. However, as the Secret Barrister dryly notes, the analogy fails in that “the state by and large does not intentionally hospitalize its citizens”. The situation was compounded in 2014 when a means test for legal aid was introduced in the Crown Court and, to ‘balance’ this, reimbursement for private costs was allowed again – but only up to legal aid rates, a pathetic concession as good as nothing for many. The Secret Barrister writes, “It may be lawful. But it is abhorrent. Retreating to my favoured health analogy, this is the government deliberately breaking your legs, and telling you that you must go private, but that they will only contribute NHS rates. Or, otherwise, you feel free to treat yourself.”

Perhaps even more sinister is the government’s “crushingly tight grip on the reins of compensation for the wrongly convicted”, as found in the Criminal Justice Act 1988. Section 133(1ZA) of the Act provides that there has been a miscarriage of justice only if the new fact “shows beyond reasonable doubt that the person did not commit the offence”. The Secret Barrister records that Victor Nealon, who suffered this fate after being wrongly convicted of attempted rape, languished in prison for 17 years – only to be refused compensation by the MoJ upon his release. His case was heard by the Supreme Court in May this year – we can only hope the justices make a declaration of incompatibility with the ECHR in their judgment.

A presumption forgotten

The rights of complainants, in contrast, are regularly championed and for obvious reasons. We are all naturally inclined to sympathise with anyone who claims victimhood and hold in suspicion the accused (all the more reason to have strong defendants’ rights). However, as the Secret Barrister demonstrates, what they call the “Put Victims First” mantra, beloved of politicians, has proved itself impotent. The following resources, posts and services have been created for complainants and victims: the Victims’ Code, Victims’ Minister, Victims’ Commissioner, Victims’ Taskforce, Victims’ Information Service, Victims’ Contact Scheme, Victim Support, Ministry of Justice’s Commitment to Victims, CPS Victims’ Right to Review Scheme, National Police Chiefs Council Victim Right to Review Scheme, a Victims’ Services Commissioning Framework, Victim Liaison Units, Victim Personal Statements and the Victim Surcharge.

But appearances can be deceptive. The author notes that “one bald statistic stands out above all: only 55 per cent of people who have been a victim or a witness in criminal proceedings would be prepared to go through it again”. The reason for this incredible figure is that while the initiatives cited are well-intentioned and undoubtedly do some good, they fail to address the root cause of court users’ distress, probably because this is of the government’s own making: the “under-resourcing and under-staffing of the court system” – which has resulted in incessant adjournments for complainants and witnesses. Spending cuts, we are told, have led to a massive backlog of cases and an average waiting period of 123 days from the initial appearance in the magistrates’ court and trial in the Crown Court, leaving complainants and witnesses incensed, enervated and unwilling to engage with the system again in the future.

The tensions caused by complainants’ frustration are manifesting in political cant too. In Scotland we consistently see the strange and persistent dithering between ‘victim’ and ‘complainer’ from the mouths of the Justice Secretary and Lord Advocate in Scottish government and Crown Office media releases, in contexts where they in fact simply mean ‘complainer’. We are also now seeing calls from some quarters for more convictions for certain crimes. In March this year former Scottish Labour leader, Kezia Dugdale, expressed incredulity at the conviction rate for rape, noting, by disanalogy, how it compared poorly to murder. Aside from other differences between the two, she seems to be unaware that the commission of a crime in cases of rape is often the very point of contention whereas in homicide cases a major clue of criminality comes in the form of a dead body.

This obviously does not mean the conviction rate for rape should go unquestioned, but treating the problem as the prosecutorial equivalent of low sales is anathema to the purpose of the justice system because doing so presupposes guilt; it is the thin end of the wedge. Of course rapists get acquitted but it is a first principle of our justice systems that it is better for the guilty to walk free than for the innocent to be deprived of their liberty. This, the Secret Barrister says, is a truth “too politically ugly, for all except despised defence lawyers to voice”, that victims “can’t – and shouldn’t – be put first”. Under our system, complainants who have to suffer the trauma of seeing their attacker walk free must “share that burden, and its consequences, in deference to our first principles”. Any other system, such as a politically motivated bottom line approach to convictions, would “necessitate an incursion into the rights of the accused” and see that first principle abandoned.

A presumption endangered

Proving that the road to hell is paved with good intentions, England and Wales’ Victims’ Commissioner, Baroness Newlove, tweeted in June: “I strongly disagree with judges who demand rape victims are referred to as complainants. A victim is a victim from the moment the crime is committed”.

It may come as a surprise to people who think social media corresponds to reality to learn that not every complainant is necessarily a victim and that the criminal justice system is designed with this in mind. Suppose A accuses B of rape. On the admitted evidence the jury acquits B, meaning A is not B’s victim as far as the law is concerned. Objectors will argue this merely means the charge was not proved, an obstinate refusal to see the forest for the trees, as guilt is the very thing in determination.

Suppose now A accuses B of stabbing her. A has stab wounds and therefore is clearly a victim in the ordinary sense of the word but the system is oriented towards the question whether the man in the dock is guilty (not whether he is innocent) on the evidence admitted – so it would be unjust to begin a trial by using the loaded word ‘victim’ and thereby prejudicing the jury’s view of the defendant. Instead, it is replaced in the English justice system with ‘complainant’, a term of art that gives each party parity. Guilt and corresponding victimhood are conferred, if at all, once a verdict has been delivered. Yes, of course, the verdict and the reality of what happened may not necessarily coincide, perpetrators will walk free and the innocent will be imprisoned, but only a court of law can produce a verdict with any currency, not one of public opinion – and those who are adamant that assertions of victimhood warrant their own truth are peddling what could be called, in the spirit of the times, ‘fake judgments’. It was announced earlier this year that The Secret Barrister would be sent to all MPs – hopefully that policy is extended to peers.

Whether defendants’ rights are eroded as a corollary of improving complainants’ or by diminution of the legal aid budget, which fosters inequality of arms in the courtroom, one thing is clear: theirs is a human rights cause and one without the romantic hue that makes so many others easy for us to endorse. But with humility and compassion, this book helps us to see why the rights of those whom we love to hate are sacred. A panoptic account of its subject, measured and forensic throughout, The Secret Barrister is the signal in a world of noise on justice matters and – it is hoped – a spur to action.

The Secret Barrister: Stories of the Law and How It’s Broken. Published by Macmillan, (£16.99 Hardback) 384pp.

Kapil Summan