FAKE LAW: THE TRUTH ABOUT JUSTICE IN AN AGE OF LIES
The Secret Barrister
Picador
REVIEWED BY ELSPETH MCLEAN
The dangers of ‘‘fake law’’ which turns up in exaggerated media stories, political lies and can be promoted by those with vested interests, is exposed in this offering from The Secret Barrister.
While the cases he discusses, in a forthright and often entertaining way, are British, some of them or their themes are familiar to us.
I would like to think our mainstream media are more responsible than some of the examples he cites, but he shows us how easy it is for inflammatory articles and commentary to ensure ridiculous ideas about the law take hold.
In a discussion about your right to defend your home, he raises the case of a 78-year-old who stabbed a burglar to death with a screwdriver.
He was arrested and interviewed under caution before the police investigation concluded no further action needed to be taken against him. Fair enough. Someone had died and it needed to be investigated.
However, instead of accepting that due process needed to be followed, this case prompted a Sun campaign for the police to be prohibited from investigating the death of the burglar. The Justice Secretary, also spoke out, ramping up the concern.
The Secret Barrister, a blogger and commentator who is an anonymous junior barrister specialising in criminal law, looks at how easy it is for complex issues to be portrayed simplistically. He points out that justified concerns for the treatment of complainants
in sexual cases led to a widespread refusal to acknowledge the competing interests at play in criminal trials and the strict circumstances in which sexual history might be relevant.
Then there is the issue, which we have seen in New Zealand, where people are critical of lawyers who defend people the public are convinced, in advance of any court case, have committed heinous crimes.
As the Secret Barrister says, the lawyer can never know someone is guilty unless that person says he or she is. If that admission is made, then the lawyer is limited in what they may do. Standing up in court and saying someone was innocent when they had effectively confessed to the lawyer would be misleading the court. However, if the client says he/she is innocent, even if the evidence against them is overwhelming, it is not the defence lawyer’s job to judge but to present the case to the best of their ability.
The issues raised in this book highlight the poor understanding of the law, not helped by social media braying, and the notion that judges should somehow decide cases based on what is popular rather than pay attention to the legal and factual merits.
Recently in New Zealand we had the instance where complainants about sexual assaults in Wellington were naming the alleged perpetrators on social media, before any police investigation, supposedly unaware of any legal implications of this.
The Secret Barrister says the remedy to fake law lies in public legal education (something which New Zealanders could do with too).
“Our rights can only be removed, and false narratives pumped throughout our culture as long as we lack the tools to identify what is happening.’’
If the system was working, everyone should, when ‘‘stepping into the big wide world, have a sufficient understanding of our rights and of the justice system to at least be able to identify a potential legal problem, and to know where to turn for further information’’.
Elspeth McLean is an ODT columnist and former health reporter
