‘The Secret Barrister’, Adversarialism and Sexual Offences.

Firstly, I’d like to say that this is definitely a book worth reading, and one I believe to be incredibly important to our understanding of the legal system in the UK, written by someone who clearly cares deeply about their job and their clients. There is a lot I agree with, and I am grateful for the insight into how the system is supposed to work, how it actually doesn’t work, and what the problems are. However, one aspect I can’t agree with is the author’s defence adversarialism in the prosecution and defence of court cases, especially in cases involving domestic abuse and sexual offences, and I’d like to explain why.

To be clear, the author is not even remotely suggesting that the method of adversarialism is beyond reproach, and devotes a full chapter to all the ways it is harmful. However, they ultimately conclude that adversarialism is still better than inquisitorialism. So what the heck are these methods anyway? And why do they come to that conclusion? Put very basically, if you haven’t read the book (which I recommend you do!) adversarialism depends on the prosecution doing absolutely everything within their legal power to get a conviction, and the defence doing absolutely everything within their legal power to get an acquittal. It’s based on the idea that barristers are independent advocates for their clients, and their job is to ‘win’ by being the most persuasive. Each side is expected to distort or suppress evidence that may damage their case, cross examine witnesses to make them appear to be wholesome truth tellers or fiendish liars, and to effectively tell the best story. It is not about getting to the truth, it’s about winning the argument. The defence are not supposed to make any judgement on their client’s guilt or innocence - that is reserved for the magistrate, judge and jury. The only caveat is that if your client confesses their guilt, you can’t then say they are innocent. You can, however, still question the evidence and witnesses as to how sure they are of the guilt of the defendant, and lean heavily on the ‘innocent until proven guilty’ and ‘you must be absolutely sure that they are guilty to convict’ arguments that are the basis of our judicial system to sow doubt and still get an acquittal. Or you can remove yourself from the case and make it someone else’s problem. As the job of the barrister is to work in their clients best interest, they make a recommendation as to what the defendant should plead, based on their expert analysis of the chances of conviction or acquittal, but the ultimate decision is down to the defendant. Strangely enough, it doesn’t work in exactly the same way for the prosecution, as it is not the victim who can choose to bring charges or not in criminal cases, it is the state which chooses whether or not to bring charges. Once a crime has been reported, it is out of the victims hands as to how it progresses. It is unlikely that it will progress without victim or witness testimony, however, the state can compel victims and witnesses to appear in court for cross-examination if they choose to. I expect you can already see a plethora of issues with this way of performing ‘justice’, even if all the evidence is gathered correctly, the prosecution and defence have access to everything they need, and are equally skilled at their jobs, the judge is impartial, and the jury are open minded, prejudice free saints. As you will know if you have read the book or have any knowledge of how the system actually falls down at literally every hurdle, the reality is terrifyingly incompetence and riddled with bias. *Sigh*. More on that in a bit.

The inquisitorial method however, is based upon all parties getting to the truth. The idea there is that everyone involved has a duty to find out what really happened, working together to find an objective truth that is backed up by evidence. This evidence for and against is gathered by judicial police under the supervision of the prosecutor, witnesses interviewed, put into a dossier, which is checked by the defence and then the prosecutor and magistrate  to ensure all avenues of investigation are complete, and then always taken to trial, where it is presided over by a judge or a number of judges and lay-people. The sole aim is to uncover the truth. This means there are no guilty pleas to instigate a plea bargain, if there is a confession from the defendant it will be taken into consideration alongside all the other evidence available. However it also means that the only requirement for evidence to be given is that it is relevant to the case. This means that previous convictions and past behaviours of the victim and accused will be included with the evidence, along with what we might consider to be hearsay. When the verdict is given, it is given with all the reasons why that conclusion was reached, and available for all to access, and considered to be the objective truth as to what had occured. Again, there are myriad issues within this system that can be identified immediately, and we can’t assume for a moment that they all run exactly as they are intended. The interesting thing to me is that the author would still choose the adversarial method over the inquisitorial method if it was they who were on trial. The reason for this is, broadly, that we cannot trust the state to reliably and without prejudice or political interference, actually get to the truth. Historically of course, we know that this is the case, and in many a dictatorship or even democracy, the truth is defined as being what we want it to be rather than what the evidence suggests. There is even the legitimate concern that in some cases an objective truth is not available to be found. When a conviction is at least partly based on a person’s intention, how can we uncover an objective truth when the answer exists in a person’s mind? When we have complex intentions towards people coupled with actions that often involve unintended consequences? These are legitimate concerns. 

The author concludes that they prefer the adversarial method because even within all the possible prejudice and bias floating around, it is literally someone’s job to defend you despite their own feelings. The intention is to mitigate prejudice and bias with independent advocates. What I find particularly interesting and a touch baffling, is that they don’t see that inherent human prejudice, political influence, bias, and social and cultural assumption oozing it’s way into the adversarial system despite the intention to provide independent advocates. That they think rolling the dice on a jury and a judge could provide a better outcome. That pressures to convict, horrific cuts in funding, the mistakes inevitably made by overworked and under resourced people which the author fully describes, and despairs of, create a system any better than an equally dysfunctional inquisitorial system. My special bafflement is reserved for their willingness to trust twelve random strangers, most of whom will not know about the law at all, when they spend a previous chapter furiously frustrated by the power of magistrates to make judgements when they do not have enough knowledge of the law. I understand that a jury does not control scentancing, which is down to the judge, and the magistrate does, and that is a big part of the problem. However, the idea that there can be any consistency or guaranteed quality of critical thinking and reflexiveness required to basically decide which narrative is the most accurate amongst twelve random people seems to me to be a gross overestimation of the ability of most of us to overcome the prejudices that we are socialised to believe. Perhaps this is where the conclusion lies - if it was the author on trial as a defendant, they as a professional, educated, articulate, knowledgeable person, able to construct a believable narrative for their own defence, dependant on their powers of persuasion, have plenty of reasons to believe they might fare better with our system. It is clearly stacked high in their favour. Unlucky are the people who actually have the most contact with the justice system who do not have these privileges. As far as I can see however, for most people, in most cases, they are just equally crap in slightly different ways.     

  There are a few sections of the book which particularly disturbed me, and it wasn’t the bits that are objectively awful and presented as so. It was the bits that belied a fundamental misunderstanding from the author about the social and cultural constructs we create about gender, domestic abuse and sexual offences, and how the adversarial system is specifically cruel to victims of these horrific crimes. This is at it’s most terrifying when we are talking about the most brutal acts of rape and sexual violence. In the book Understanding Sexual Violence: A Study of Convicted Rapists by Diana Scully, there is a chapter called Rape: A Low Risk, High Reward Crime. That’s right folks, even convicted rapists believe that rape is worth the risk becuase they are not likely to get convicted. Rape has lower conviction rates than other types of sexual offence, but the convictions are more likely to be custodial scentances (prison) and be for longer. Rape has a lower level of gulity pleas than other sexual offences, which contributes to the low conviction rate, and it would make sense that this is connected to the longer scentancing and likelyhood of prison. Depending on the specifics of the case, barristers may advise a not guilty plea because the client is less likely to be convicted anyway, and it may be seen as worth risking a trial as a result. As rape is also always tried in court by a jury, the myriad of prejudices and assumptions brought in by the jury and the adversarial method of trial can work in the accuseds’ favour, with the threshold for conviction being so high, that any misstep by the prosecution or a nervous or disadvantaged witness could reasult in an aquittal, even if the accused is probably guilty. One of the most harrowing stories in the book is the case where the author, as a junior barrister, helps to get an acquittal for a man he is pretty sure raped his two little girls over a period of years. Using the adversarial method ‘just doing his job’ meant that a combination of the prosecution missing historical evidence that he found but did not disclose, a relentless cross examination of the two girls (now women) to prove they were liars and had ‘bad characters’ based on their behaviour as children, and they refusal to let their mother on the stand, even though she would have sworn the accused was not guilty, because she was more likely to convince the jury that she couldn’t or wouldn’t have protected her children anyway. Despite showing genuine remorse for his part in this ordeal, and describing how it had shaken even his senior partner, the author still insists that not only is the adversarial method better than the inquisitorial one, but that justice was still done. This is something that I just can’t fathom, and can only put down to a desire to continue working as a barrister, and the consequent necessity of lying to yourself to stay sane. The argument he then gives against the inquisitorial method just doesn’t hold up in the face of being personally involved in a decision to suppress evidence that means a man you who you think raped his own children is acquitted. The author hides behind the possibility he could be wrong, and the idea that he should be independent and objective, and it is not his place to judge. That he gets a free pass on morality because it’s someone else’s job to make sure there was a conviction and if they didn’t do their job properly, that’s not his problem. That treating these cases as games where you win or lose based on your ability to create the best narrative is better than a system where at least the aim is to try to find the truth. Neither system is flawless and both are subject to the political whims and personal prejudices of the people who make up the court and the politics of the time. But only one is trying to establish what really happened. The other is the precursor to our post-truth world and the attitude that people’s lives are part of a game professionals play with the fates of the lower classes.    

One of the main problems when it comes to any kind of conviction of rape or sexual assault, is that of consent. The fundamentals of what consent entails are directly opposed to the burden of proof that is put upon the victim when there is a trial, and it is treated in a way that we simply don’t treat other crimes. Consent, as we should understand it, can only be provided by an individual, must be fully informed and enthusiastic, and can be retracted at any time. This is something we only need to spell out so obviously and clearly in the case of sexual acts, and the integrity of the person giving or witholding it only scrutinised in such a dehumanising mannor when it is about sexual acts. The author uses is Harriet Harman’s proposal to outlaw all questions about a claimants sexual history in rape cases as one of polticitions wading into law with little to know knowledge and causing havoc. Harman identifies the use of the claiments sexual history in the retrail of Ched Evens as an example of how sexual history is used to devalue women’s testemony about rape and to take advantage of what is known in feminist writing as the madonna/whore dichtomy - that women are either pure and chaste and therefore they have value and they are to be believed, or that they are whores, (which is basically any woman who shows any sexuality or sexual desire whatsoever), and the more sex they have, the less trustworthy they are, and we shouldn’t believe them. She also says that the current law allowed the use of sexual history where it has no evidential value. The author criticises this because they claim that the law expressly disallows using sexual history to undermine a claimant's case and if that is happening, then the current law is being applied improperly. He is more concerned about changes in the law resulting in innocent people being convicted than the effect of the way the law is practiced having an effect on whether people, in these cases, mostly women, will come forward at all, and their experience if they do. The truth appears to be somewhere in between the two. Although the change to the law in 1999 is supposed to ensure the madonna/whore dichotomy is not applied, it doesn’t. This is partly because it is so entrenched in our collective prejudice that it is impossible to legislate out of court proceedings - the Ched Evans case as a key example of this, as the victim had consented to sex with another player, who then texted Ched and told him that there was a girl in his room that he could have sex with. If that doesn’t already make you feel like consent was not even a passing thought in these people’s minds, I don’t know how to explain this to you. So, as a part of the burden of proof of that night’s events on the victim, she had to say that she had already had sex with a man she just met. What she said was that she did not consent to sex with Ched, the random man who was invited up afterwards by his mate and not by her. The madonna/whore dichotomy is already in place even before we get to the really unacceptable part. The evidence that was allowed, evidence that was supposed to be only admissible when not admitting it may lead the jury to an unsafe conclusion, was that two ex-boyfriends claimed that she had used the phrase ‘fuck me harder’ or ‘go harder’ when with them. Witnesses called in the retrial, but not the first trial, Ched’s brother and another man who were watching them through a window claimed that she said the same thing while having sex with Ched. I mean what the fuck even is this. She is branded a money grabbing lying slut, on the evidence of ex-boyfriends and voyeurs literally related to the accused, who claim that she must have consented because they heard her use the same phrase. A phrase which is by no means unique. Claimed by witnesses who are certainly not remotely impartial, and that is before you even consider the fact that there was a £50,000 reward on offer from the defence. So, although the unintended consequences of the law Harman wanted to bring in, like not being able to use testimony about previous abuse of a child meaning that there could be an innocent person wrongly convicted because of a traumatised and confused child’s testimony is based on a previous memory not a current abuse, are enough to make it inappropriate, the current law is not being applied properly, and it is causing miscarriages of justice. 

Which brings us back to the authors’ main concern and ideal - innocent until proven guilty is paramount, and the trauma of victims and acquittal of the guilty is the collateral damage we have to accept to ensure innocent people are not convicted. The author argues for better funding so that the criminal justice system has the resources that it needs to run properly, so that evidence doesn’t get missed or lost, so that the prosecutor and defence are equally skilled, and so each case is given the consideration and time it deserves. That would certainly make things better. But does it really provide justice? The most important question the author poses, and where I think we are getting it most wrong, is what do we actually want the criminal justice system to do? Do we want punishment? Deterrent? Rehabilitation? To simply lock away people we consider dangerous? Reparations to victims? All of the above? In order to do any of the above, and ensure we actually convict the right people, the system of course needs more money and more resources. But in order to redress the balance of care so that victims, especially already vulnerable, disadvantaged victims, are not sacrificed, we need to change the consequences of convictions, and change the way we handle cases of rape and sexual assault where the main issue of contention is consent vs the burden of proof. 

It is because prison conditions are so abhorrent, and that the loss of liberty is so materially, physically and psychologically damaging to an individual that the bar for conviction must be set so high. The cost of doing this to those we conclude are guilty is unacceptable, never mind the cost of doing it to someone who is actually innocent. One of the reasons that this system is allowed to continue in the way it has, and is rapidly getting worse, is because of the lack of privilege, the cumulative and crushing disadvantages, which those who are the most likely to end up in the system as accused or victims have to live with every day. The people who are considered to be part of the underclass of society, those who have already been failed by the state on so many levels and are just being failed again, for largely the same reasons. They are broadly seen as people who simply don’t matter, are intrinsically criminal, who never had a chance, and as a society, we are not prepared to invest the resources in social care which are required to give them a chance. This is our class system at its most abhorrent, and it is something we should be ashamed of. The author uses the analogy of the state breaking your legs, then telling you that you have to pay to have them fixed or deal with it yourself, to demonstrate the cruelty of the cuts in legal aid to those who have to pay to prove their innocence. I think it’s worth taking this analogy further. For those who are the most disadvantaged, the state not only breaks your legs, but every part of you, then tells you it’s nothing to do with them, tells you to find a way to fix it yourself, punishes you for finding a way to do so, and then tells you it’s your own fault because you are inherently a bad person. To anyone who slips through the cracks of society and ends up relying on the state for their basic human rights, the state is the ultimate abusive partner. 

Our ultimate goal should be a reduction in crime through the prevention of offending and the rehabilitation of current offenders. This is only possible if we fully invest in all social services across the board, so that people are able to gain the emotional and social literacy they need to engage in fully consensual relationships, sexual or otherwise, which is not possible if they don’t have enough food to eat, a house to live in or people to care for them. This is the fulfillment of basic human rights at its very core, and it is inexcusable that we don’t already ensure it happens. So what about the people who do have the basics, and more, and still don't understand consent? Unfortunately we are still living in a world where emotional and social literacy, self - awareness and reflexivity are seen as weak, unimportant, feminine and therefore worthless, and men in particular are still actively encouraged not to express or understand their feelings, or anyone else's. This can result in emotional volatility, and a reliance on anger as an expression of any emotion, which easily leads to violence. Combine that with the pressure to be seen as masculine - physically strong, powerful and in control - and consent isn’t treated as important because in the world of toxic masculinity, it isn’t important. This causes a range of problems from an inability to understand non-verbal cues, to a reluctance to risk rejection so a reluctance to actually check, with words, that consent is given, to the belief that real men just take what they want, to hurt from rejection being enacted on women’s bodies as punishment. 

Sacrificing victims on the altar of ‘innocent until proven guilty’ is only even mildly defensible if the consequences of a conviction are so horrific (as they are now) that morally it’s simply unacceptable to convict someone unless we can be sure beyond reasonable doubt that they are guilty. As it is, I wouldn’t want to feel even partially responsible for sending someone to prison. However, if our focus shifts from finding out who to blame and punish to preventing people from committing crimes, we can do something different that can actually make things better for everyone. This may sound like some idealistic and naive fairyland, but there has already been alternatives to the criminal justice system that show promise. One of these is community accountability, whereby communities who are vulnerable to police violence and wrongful convictions create an alternative system in the community to deal with disputes over individuals behaviour. This acknowledges that in cases of sexual violence, from harrassment to rape, we are battling almost universal cultureal norms around gender and sexuality which mean that men often genuinly believe in their right to harass women and use sexual assault and rape as a punishment, and in their entitlement to women’s bodies to satisfy thier sexual needs, regardless of what women want. This is seen in every single community all over the world, wherever there is a history of patriarchy. This is why we have such a disregard for consent in relation to sex, when we don’t have as much of a problem accepting the word of the victim in other cases. We have been historically socialised to believe in the madonna/whore dichotomy, that men have a sexual need they can’t control, and that women are responsible for controlling male desire. It takes working with an entire culture and community to unpick these assumptions and prejudices, and it’s something that the system we have simply isn’t capable of doing. When we are in a situation where most people, of any gender, don’t really understand or feel confident in giving or withholding consent, and the consequences of being convicted of rape or sexual assault can be the loss of liberty, we are setting ourselves up to fail everyone.