Fake Law

The famous discussion between Sir Thomas More and William Roper from A Man For All Seasons is something I'm familiar with. Every day I went to university I was confronted with it, printed in large letters on the glass barrier on the mezzanine above the campus canteen. After a while, its meaning sticks: the law is not a defence for the devil; it is a defence for you from the devil.

We are all entitled to the protections of the law, be we fresh in the cradle or seconds from the grave. It doesn't matter whether we are hardened criminals, innocent bystanders, sacked employees, black, white, disabled, straight, gay, etc. This is the rule of law: we are all protected by it and it applies to us all. Nobody is above the law and nobody should have it applied differently unless the provisions already exist within the law. We are all entitled to access to justice, which will be applied with neither fear nor favour.

Lord Bingham wrote of this in his 2010 polemic The Rule of Law. I can add nothing to his analysis - obviously, for he was Lord Chief Justice and I am unlikely ever to be so; his abilities as a lawyer and judge outstripped many even of his contemporaties in the House of Lords (now Supreme Court). It's a brilliant and seminal book. Although it isn't an easy read - particularly in the later chapters, when it tears the government to shreds over its treatment of terrorists - it is a vital one in understanding what the rule of law looks like in the modern world.

At its heart is a foundational principle: the protection of the law applies to all. Equal treatment before the eyes of the law protects those who may fall foul of it, whether they are innocent or guilty. Why, I hear you ask, should the law protect the guilty? And that would be a popular sentiment: the hang 'em and flog 'em brigade are getting increased traction.

It is into this environment that we have seen a recent glut of books for popular consumption released. The Secret Barrister's first book, Tales of the Law and How it's Broken, is just one of them, but it is the one that gained the most attention. Perhaps its the fact that it was an angry, justified polemic railing against the very serious problems faced by the justice system. Perhaps its the fact that the Secret Barrister is an unknown whistleblower. Perhaps it's the fact that on Twitter the Secret Barrister's avatar is a bewigged and gowned rabbit. Whatever it was, it was a book that raised issues in the mainstream for the first time, beyond the lesser-read online bits of the Guardian.

It's a book that I devoured. Years of work in the law meant that nothing within its pages was new, but it was refreshing to see it written down. I'd experienced the cuts to legal aid first hand, albeit in civil law. I was aware of the 'Innocence Tax'. I saw each and every day the incompetent malignance of Chris Grayling's reign at the Ministry of Justice, ensuring that justice was harder and harder to come by for the most vulnerable in society.

One thing still stands out: the idea of fixed fees for lawyers in complex criminal cases. Regardless of the work done, a firm will only get a certain sum for handling a case. Imagine, for a second, that you're accused of an offence that you know you haven't committed. Let's say, for the sake of argument, you bought a laptop secondhand online and, when you took it to an expert for cleaning and calibrating - knowing little beyond the on and off buttons - they found a number of child abuse images. They call the police. You're arrested. You want a lawyer to not be worrying about the amount of work they have to do if you plead not guilty - as you are, for you've never even turned the laptop on - and the losses that the company will take. From the lawyer's perspective, the best thing is to get the case disposed of quickly: after all, you seem bang to rights to the casual observer. It's your laptop. The images are there. The offence is made out. Pleading a defence of 'lack of awareness' (in this case, this kind of ignorance actually is a defence) would be a time-consuming, money-costing exercise to a cynical lawyer. An unscrupulous solicitor might just be persuading you to plead guilty to get it over with. And with a guilty plea comes a potential sentence of imprisonment, registration as a sex offender, the loss of your family, the loss of your job, and the loss of your home.

Criminal justice relies on certain principles. Innocent until proven guilty. The equality of arms. Guilty beyond reasonable doubt. It's obvious in this case that the fact the lawyer is getting paid £1,200 regardless of the work they're doing is not going to be helpful to any of those. So far as the laywer is concerned, he gets paid more for less work with a guilty plea. A lawyer with an eye on a guilty plea isn't going to be scrupulously analysing the evidence of Facebook messages, dates of download and building a case in forensic detail and put himself in a position to successfully defend a case - particularly if time limited because of costs, as many decent lawyers are, for to do so is to cost the firm money that many hard-pressed legal aid firms can't afford to lose. And although we see reasonably doubt on the facts presented, a lawyer isn't going to be in a position to say so when the above is all true.

Of course, I hear the cry from the Daily Mail comments section, this isn't true. Fat cat lawyers make squillions. Plus, the police made the arrest - he must be guilty. People in the courts system are guilty - no smoke without fire. And he's a nonce - hang him!

It's this attitude that means the new Secret Barrister book, Fake Law: The Truth About Justice in an Age of Lies, is so important. It explodes the myths presented by the likes of the Daily Mail in an impassioned defence of the rule of law for popular consumption. Dominant media narratives are analysed and pulled apart. What you are told is not true: certain media sources (yes, the Daily Mail; yes, the Sun) are shifting the narrative and undermining the rule of law. The Secret Barrister acts as a corrective.

Just take legal aid as an example. We are told by the government and press that we have the most expensive legal aid system in the world, costing £2.2 billion in 2010. As part of government austerity it is essential, we are told, that savings are made. This is why Chris Grayling came in to cut a whopping £350m from that bill by taking legal aid away from the undeserving. Taxpayer money saved. Achievement unlocked. Platinum trophy awarded to the balding one.

Of course, closer examination shows that the justifications presented by the government fall apart at the most superficial investigation. And this is what Fake Law is so good at, and why it is so important. It's a vital corrective to the media myths that have undermined access to justice. As we are not only having our rights undermined; we are being actively told to applaud this undermining.

Who can argue that Shemima Begum, for example, deserves the protections of British justice? Or the killers of James Bulger? Closer examination, however, shows just how important the application of the rule of law is: if these people do not have rights, then neither do we. What happens if we are falsely accused, or find ourselves in need of a lawyer to support our legal rights but are denied access?

The Secret Barrister covers all kinds of legal myths, from employment law to crime to personal injury, to one final section on the importance of the rule of law to democracy and the democratic process through the separation of powers. It's an angry book. But it's also a call for education, and one I wholeheartedly support. I have become tired and jaded from correcting the misconceptions people get from their reading of certain media sources - no, that legal aid payment wasn't made to the accused to spend on hookers and coke; no, I can't tell the court someone is not guilty if they told me they did it; no, I wasn't on a six-figure salary when I worked in the law (although if you want to donate that, feel free) - and if this kind of book leads to a greater level of legal education in the general population, that can only be a good thing.

This is an important, must-read book. Not only for the legal education you will get from it - after all, knowing the ins and outs of a personal injury claim or what constitutes unfair dismissal might come in handy for any one of us - but also as a political statement. Successive governments have played a role in undermining the rule of law, and this book makes a serious go at reclaiming it for the common man. For, as I alluded to in the first paragraph, the law is for all of us. If we burn down the law in pursuit of the devil, we lose its protections. This must not be allowed to happen.