Picador The Secret Barrister: Stories of the Law and How It's Broken

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Very interesting book, my daughter loved it! Well written and a good quality read.

Comprei na Black Friday por um preço difícil de acreditar de tão barato!! Livro ótimo.

Excellent. An informative, interesting, entertaining, page-turner of a book by a barrister working in the field of criminal law in England & Wales.I am a solicitor, currently without a practising certificate, a notary public with a practising certificate, and a Spanish lawyer. Excluding the few years when I worked as a university lecturer, I have always had some Spanish ciminal cases. Sometimes more, sometimes fewer, but there has always been some crime. Usually it is youngish British men who go out to Spain on holiday and get into trouble with the police. When they are back in the UK they get some paperwork from Spain and they need a Spanish lawyer. The vast majority are GBH, some drugs, and some sex offences, but I have, so far, never had a homicide. That is an important point, because Spain has jury trials for homicides, and, interestingly, the country seems to me to be happy with the outcome of the experiment with what is actually an English-speaking world import. The core of Spain, Castille, loathes England and the United States of America, but it does appear to have accepted jury trials for homicide ... along with music by people like Taylor Swift and Chris Martin / Coldplay, not to mention earlier pop stars / groups like the Beatles and Stones.As The Secret Barrister points out, on the Continent criminal investigations are judge-led. I don't have a strong opinion on whether the Spanish system is better than the English system or vice-versa. What I do know is that a lawyer is never, ever, put in the same space as their client. I know, because I have been there. Not often, but often enough to know that there are always either a set of bars between the client and the lawyer when a private conversation needs to take place, or there is armed police present otherwise. There are no panic buttons. You are never, ever, allowed to be alone in the same room as the client with only a table separating you from your client. I have been in English prisons to see clients, and England could learn a thing or two from Spain in that regard. English clients who have been behind bars in both Spain and in England agree that the Spanish system is better.People are only really remanded in custody in Spain if the offence is a serious one and the defendant is a flight risk. It'll be interesting to see how Brexit pans out, because a stock phrase trotted out by defence lawyers is that the defendant should be allowed to go home to England because the European Arrest Warrant makes it easy to get them back if they don't turn up voluntarily for their trial. Interestingly, the vast majority of my clients do turn up voluntarily for their trial, sometimes even when advised not to, (because they want to get it over with).As I have written above, homicides get a jury trial. The other really serious offences that carry at least five years imprisonment are tried in front of a panel of three professional judges. I'm with The Secret Barrister on that one. Given a choice of being tried in Spain by a panel of three professional judges and having a jury trial in England, I'll take the jury trial in England any day.The less serious stuff, ie the less than five years imprisonment cases, are tried by a single professional judge, much as might happen in England & Wales when facing a District Judge (Magistrates' Court). Between being tried in the ordinary Magistrates' Court by a panel of three lay people or by the professional judge in Spain, I would vastly prefer being tried in Spain. Although I haven't got a practising certificate as a solicitor and I never go on the court record as acting for anyone in England, somehow I seem to have seen enough of what happens in the Magistrates Courts over the years to vastly prefer the Spanish system in every respect.Resources in Spain are extremely tight. Legal Aid is available in Spain, but it is a pittance. How does €210.00 grab you? It doesn't, but it is €210.00 only if your office is some distance from the court, otherwise the Spanish legal aid lawyer only gets paid €170.00 per case, pretty well from start to finish. The other €40.00 is for "travelling", like I say, if your office is some distance from the court.Judges are paid very little, Prosecutors are paid very little. Defence lawyers are paid very little. Cases can take years to get to trial simply because the courts are hopelessly underfunded. At the same time, the vast, vast, majority of cases end with a result as to conviction and acquittal, and as to sentencing, if convicted, that more or less square up with what I expect to see happen. I, personally, have seen very few real miscarriages of justice.Interestingly, the two times I have seen real miscarriages of justice were in sex offence cases. One where my client got sent down for six years for a rape we all knew he hadn't committed, and the other where the clients (plural) were definitely guilty, but somehow, inexplicably, get let off ... by a court that has a conviction rate of over 90%!Both cases bug me. The first one because it was "our mistakes", if that is the right term, that got him convicted. I always work with the Spanish lawyer in Spain. I don't even try to run the case on my own from England. In England and in Spain I had put together a mountain of expert evidence that should have been enough to get the lad acquitted. The Spanish lawyer in Spain suggested that the court be asked to appoint an expert to examine the client. I agreed. I wish I hadn't agreed to the suggestion, but I did.In both civil and criminal proceedings it is possible to ask the court to appoint an expert. In a civil case in the Ebro Valley of Northern Spain we had asked the court to find a valuer to value a campsite. The Spanish civil court had found a valuer, had given the instructions to the valuer, and had paid the valuer, (albeit from money extracted from us prior to instructing the valuer). The valuer did a report, which everybody accepted. England could learn from Spain in that respect. The single joint expert of the Civil Procedure Rules is, I think, a total travesty of justice that inevitably leaves one side short of an expert. In my limited experience of civil litigation in England what happens is that a costly fight breaks out over who is to be the single joint expert and on what the instructions are to be. Spain is right. If there is to be a single joint expert, it has to be an expert found by the court, instructed by the court, and paid for by the court. The parties can find the money to pay the expert, but other than that they have no input in who is the expert, what the precise instructions are, or what the pay is going to be. The parties can cross-examine the expert at the trial, but that is all they can do.The problem, as I found out, is that you have no control over who the expert is, what the expert's qualifications / areas of expertise really are, and you don't know until too late what the expert thinks.In this rape case, all the really highly qualified and experienced experts we had found, instructed, and paid came to the unanimous conclusion that the sexual activity had been consensual and that the complainant was lysing. The very young expert the court had found, instructed, and paid thought otherwise. It had been an unforced error on our part to have asked the court to appoint its own expert in this case. Fine in the Ebro Valley case, but not in this one. The good news for me, (though not at all for the lad who really did end up serving nearly the full six years in prison), is that just about every Spanish lawyer doing this kind of work has a similar horror story to tell about court appointed experts. Some, like the médico forense, (the forensic doctor), you'll have to put up with and hope they have the relevant technical expertise, because, believe me, the court will hang on their every word.In a major civil case I had in Spain, the forensic doctor, assured the court that our client was highly likely to have fully recovered from the road traffic accident. The forensic doctor admitted that he had not examined the victim, but it was his opinion that she was highly likely, (his words), that she had fully recovered. We brought a whole raft of experts, both English and Spanish, to prove otherwise, but between believing the forensic doctor appointed by the investigating judge, and our experts, found, instructed, and paid by us, the trial judge and the judges at the next level up in the appeal process, simply preferred to believe the forensic doctor. I agree that the forensic doctor was going to be more impartial, would have had no particular axe to grind either way, and was undoubtedly giving his honest opinion, but, for crying out loud, he hadn't actually ever examined the victim.The other rape case was strange. My clients all protested their innocence, but the evidence was, I thought, pretty overwhelming that something really bad had happened. The victim said that she had gone with one lad to have consensual sex with him. His friends later arrived at the apartment, and, upon seeing her naked on the bed, decided to have their turn, or at least that is how I saw it from what the complainant said and from what my own clients maybe inadvertently told me. She, quite understandably, tried to get away. A struggle ensued that left her blood on the doorpost of the exit door, all over the walls of the apartment, and, of course, on the beds.As far as I could see, there was only one strategy that made any sense. They could either do their best to stay here in England where just 1.5% of allegations get as far as a summons or charge, or they could go to Spain to stand trial in a court that has a conviction rate of over 90%. The girlfriend of one of the men decided to seek a second opinion. The Secret Barrister bemoans the fact that there are parasite solicitors in England & Wales. Well, they exist in Spain also.The new firm had a lawyer who managed to persuade the men to voluntarily stand trial in Spain, and she would be cheaper than I was. The men were acquitted, but only just I noticed, and then came the next bit. The new lawyer then put in a complaint about me to my regulatory body in Madrid, who told her to get lost, so she complained to her regulatory body in Alicante, who did investigate me, but decided to close the file, so she complained to the Solicitors Regulation Authority in England, who also investigated me, and closed the file.There is a massive problem that afflicts lawyers in both Spain and in England. If you provide clients with a cost free route for complaints, some are going make misuse of it. Client complaints to the Law Society / Solicitors Regulatory Authority and the Legal Services Ombudsman are a one-way bet. It costs nothing to make a complaint, and it might result in a refund of money paid, plus, maybe, even some money in compensation.Spain is slightly different. The complaint to the College of Lawyers might be for a disciplinary matter, but if a lawyer is going to be sued, it is normally about the obligatory attempt at mediation prior to commencing legal proceedings. The problem in Spain is that there is no court fee payable to commence legal proceedings. I have little doubt that the new lawyer who somehow got the acquittal in the teeth of all the evidence indicating guilt reached the agreement with the men that she would take a percentage of whatever money she could extract from me. There is the little matter of costs should I win the case in court, but someone who can persuade men to go voluntarily from a country where just 1.5% of men accused of rape actually get charged or summonsed to stand trial in a court with a conviction rate of over 90% will have had an answer for any concerns the men might have raised about costs in the event of losing against me in court.The Secret Barrister talks about the problem of getting good interpreters in the English criminal courts. Spain is no different. The quality of the interpreters in Spain is extremely variable. Some are good, but recently I had a case where the interpreter was a Moroccan. It could have been a Spanish speaking Moroccan. Spain has enclaves on the North African coast. All kinds of explanations are given by Spanish nationalists as to why the Spanish enclaves are completely different to Gibraltar, but there are plenty of people in Spain who understand that if Gibraltar is Spanish, then their enclaves in North Africa are Moroccan. Anyway, the French accent of this particular Moroccan said it all. He was a guy who will have spoken fluent French and Arabic, but in this case was going to have to translate between Spanish and English. It was truly pitiful to hear. Given that English is a compulsory foreign language in school I thought that just about any Spaniard would have been able to do a better job. We could exclude the binmen, but the university students on the way to their classes will have had Spanish as their first language, and will have had several years of studies of English as a foreign language when they were at school. Anyone, really, except him. In fact, given that the judge and the prosecutor were youngish we could have run the proceedings in English and skipped the pantomine of the questions being put in Spanish and have the French Moroccan translate it all into English, and then translate the Englishman's answers back into Spanish.In conclusion, for all its faults I vastly prefer the Spanish system. I am something of a generalist. People in England will be horrified to learn that one day I might be immersed in a probate and the next day taking a flight to Spain for a criminal trial, but the spread of work that I do is narrower than tends to be done by most Spanish lawyers on the Costas. It gets worse, because I know that some of my Spanish colleagues think it heroic to be doing stuff outside their normal line of work. As it used to be with solicitors in the days of my parents, people often tend to have their lawyer, who does it all. This brings me to a point not raised by The Secret Barrister, but which is absolutely crucial.Spain is very cheap compared to England when it comes to the provision of legal services. Notaries do the Wills, Probate & Conveyancing. Their fees are centrally set. There is much to be said for fixed fees set centrally. England used to have fixed fees set centrally for conveyancing. Maybe those scale fees were a tad generous, but Spain manages to set its fixed fees at a level that has notaries living OK, but not at all lavish by English City firm standards.Abogados / Spanish lawyers are in effect direct access barristers. They take the case from start to finish, doing the work of solicitor and barrister all-in-one, and it seems to me to work just fine. In fact, England has a problem that I simply haven't come across in Spain. In Spain just one lawyer tends to be taken on. In England a firm is taken on. My experience is that in Spain I am dealing with just one lawyer from start to finish, whilst in England I might have many people to deal with. Sometimes, in England, I have no idea who really is in charge of the file. I get emails and telephone calls from a number of solicitors, barristers, paralegals, trainees. Somewhere along the line that is expensive. Each person has to get a grip on the facts, and what is on the file changes all the time. Yes, two brains are better than one, and, yes, maybe the advocacy skills of a barrister often might be better than those of a solicitor, but in an age where solicitors are no longer sitting in distant offices doing Wills, Probate & Conveyancing with only the occasional foray into civil and criminal litigation, but now doing only crime, or only personal injury, or only divorce, or only whatever very narrow field, I think that it is time to consider whether having, firstly, so many people at a solicitors' firm able to charge for working on a single file should be stopped, and, secondly, if both solicitors and barristers shouldn't really be taking cases from start to finish instead of having this double manning in the civil courts generally and in the Crown Court in particular that must be increasing the cost for someone somewhere somehow when Spain and many another country seems to manage just fine with the one person representing the client.Still, like I said at the beginning, The Secret Barrister is excellent. Well worth buying and reading.

Excellent writing, an ability to find humor in some unhumorous contexts, and detailed exposition of the current state of the English criminal courts and how they are failing in so many ways.As an American, it was instructive to read all this, both for details of how English courts work and how they are supposed to work but don't actually work. There were plenty of points at which I would have liked to say It can't happen here, but I couldn't sincerely say it wouldn't happen here.The author makes clear what the solutions are--often involving more funding and more staffing--but necessary if the system is to work the way it should work.Kudos to Secret Barrister.

Interesting insight into a not so known side of the legal system....