Secret E-Diary

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Should our criminal justice system be the envy of the world?


May 13, 2018:
Next time I come here,’ he said to himself, ‘I must either bring sweets to make them like me or a stick to hit them with.’
– Franz Kafka, The Trial

I do not like co-defending with either of the Twist brothers. Twist by name, twisty by nature. Their rear parts are so intimately connected with the spike on which they are sitting that to get a straight answer out of either of them is harder than cracking the toughest safe. So, it was with a heavy heart that I remembered I had three weeks ahead, co-defending in a Murder with Roderick Twist.

Arriving at our trial court, I opened my M&S bag, in which I carry my robes as a mark of solidarity with my colleagues, and wandered into the Bar Mess to see if he wanted to chew the cud before descending to the cells to take pointless instructions from our lay clients. The case for the prosecution was somewhat overwhelming.

The Bar Mess had its normal bedraggled look. Bar Mess? The name smacks of the Services and an imperial past. Surely it is just a matter of time before it is called The Lawyers’ Meeting Place or is abolished altogether as another example of elitist privilege.

Carrying a cup of murky coffee and some toast and honey to a vacant seat, I looked around to see where Rodders was. He was by himself in a corner of the room eating something that looked suspiciously like muesli from a ‘healthy options’ place up the road. I ambled over and said ‘Busy?’ ‘No, William,’ he replied, ‘just boosting my gloom factor at what might laughingly be called my instructions.’

I sat down and marvelled again how one’s fingers always become sticky when eating honey even when they haven’t actually come into direct contact with the substance. Suddenly I sensed Roderick staring at me. I wondered if honey was dripping down my chin or he had forgotten where he was or, indeed, was having a transient ischaemic attack. None of those, it appeared. He was reflecting. ‘How did we let it happen, William?’ My eyebrows indicated a query. ‘The emasculation of our trial system.’ I paused, waiting for further and better particulars. ‘Do you know that in this case, we have seven witnesses who want screens because they think then they will give their evidence more effectively, a child witness who will give evidence on tape to whom we can only ask questions drafted in advance – questions which offend every principle we have ever been taught about cross-examination and will simply strengthen her evidence and one witness who will be anonymous so that the defendants cannot even know who it is.’

I must have looked around, because Roderick next said: ‘And look at you, terrified anyone might have overheard what I just said. As if I had proposed in an Elizabethan inn that we went off to Mass or something.’ I realised I was looking around for potential agents of Francis Walsingham, so to speak. ‘It is all meant with the best of intentions, Roderick, to spare people from some of the ordeal associated with appearing in Court.’ Roderick banged his fist on the table and my coffee cup leapt into the air. ‘It ought to be an ordeal. It isn’t some kind of therapy session. They are giving evidence that will probably end up getting our clients Life with 25 years to serve.’ ‘It is hard on vulnerable witnesses,’ I pointed out, ‘who may not understand our questions in the way we put them traditionally.’ ‘Of course,’ Roderick replied. ‘Let them just give their account. I understand that. But why add on some mockery of a cross-examination that neither examines them nor properly challenges them? When did we ever properly debate this?’ I was not sure what I could do. The powerless Judge Ashley-Cooper QC, who was trying our case, would have agreed with every word Roderick said. Indeed, a famously pugnacious Justice from the US Supreme Court said much the same to me at a dinner years ago after he had changed his mind on a number of these very measures because they denied the most inalienable right of a defendant, except in extreme circumstances, to see and challenge his accusers.

I saw Roderick had tears in his eyes: ‘Is this what we came to the Bar for? Not just this. It’s part of the wholesale denigration of our public justice system. I’m 48, William. I can’t pay the mortgage this month.’ A lump came into my throat and I wished just then that I had a screen myself.

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