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Fake Law: The Truth About Justice in an Age of Lies by The Secret Barrister
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(London Times)
baby is condemned to death by British judges. A homeowner who defends his property from burglars somehow ends up being the one facing prison. And when our legal system isn’t being used against the innocent like this, it is instead siding with the guilty, whether it’s the illegal immigrant who cannot be deported thanks to his pet cat, or the paedophiles who milk the legal aid system.
You probably recognise these stories. But, as the Secret Barrister outlines in this new book, they are either untrue (Despite Theresa May once reciting it, the cat story was made up) or a small part of a much bigger, more balanced tale. The book dubs this “fake law”: the mangling of reality into misinformation; the spinning of stories and the twisting of half-truths.
A criminal advocate, the Secret Barrister is essentially law’s Batman: a gowned crusader who previously exposed cuts to the justice system and now wants to combat legal lies, all under a veil of anonymity. But who is the courtroom’s Bruce Wayne? His literary agent knows, but even his publisher doesn’t. I wrote “his” because he once blogged about the possibility of growing a moustache, although that might have been a ruse. My barrister friends say only that they’re convinced he does not practise from chambers in London.
His first book, The Secret Barrister: Stories of the Law and How It’s Broken, about the dire state of the British criminal system, was a bestseller. This book is equally well written, both punchy and providing concise explanations of complex laws. This time, he is focused on the media’s failure to report legal matters accurately, taking in the Brexit-related attacks on the judiciary, a defence of the Human Rights Act and how hard it can be to access legal aid.
As a journalist, reading an attack on the media rankles a little. There are brilliant correspondents who unknot Gordian legal rulings for their readers; the doyenne of the field, Frances Gibb, who recently retired from our sister paper The Times, came to mind as I read this book. The Secret Barrister does make this point, but not until the epilogue. “Media” is really being used here as a shorthand for the tabloids, social media and the US right-wing news channels — all of which, I concede, have provided ample evidence to construct his case.
Perhaps the best example of fake law is the sad story of Charlie Gard, who died in 2017 aged 11 months. Seen through the prism of tabloid reporting, this was a tale of devoted parents who fought doctors and a cruel legal system that had conspired to let their child die.
Only, as the Secret Barrister explains, that wasn’t really true. Charlie suffered from a rare disease, infantile onset encephalomyopathic mitochondrial DNA depletion syndrome. Treated at Great Ormond Street Hospital (GOSH), he was reliant on a ventilator, suffered frequent seizures and had no usual signs of brain activity, such as responsiveness or crying. The hospital, believing he had little quality of life, applied for a court order to withdraw ventilation, but his parents wanted him to receive a pioneering therapy overseas.
So what was really going on here? And should parents have an inalienable right to determine the treatments their children receive? The Secret Barrister points out the flaw there: the state can also save the lives of children, such as those whose Jehovah’s Witness parents would refuse to allow them a blood transfusion. Our legal system treats children as though they have rights and an identity separate from their parents.
In Charlie’s case the hospital never saw this as a done deal. As GOSH’s counsel, Katie Gollop, QC, wrote: “A hospital applies to the court because it doesn’t know where the child’s best interests lie... A responsible hospital knows that the parents might be right.”
Gard’s parents had claimed that their son “had the potential to be a normal, healthy little boy”. The court determined, with expert advice, that this was incorrect and that it was also possible that Charlie was in pain.
The difficulty with stories like these is their complexity. Tabloids and social media sites will always prefer a simple tale of heroic parents versus a villainous hospital. A similar narrative emerges about homeowners who defend their property from thieves, even if they, like the farmer Tony Martin in 1999, have shot a teenager in the back. Self-defence, the book explains, provides a 'complete defence' because our right to physical security allows us to protect ourselves from threats. It just doesn’t permit you to act as an 'executioner'.
The only part where I found the arguments weak concerned the Daily Telegraph’s investigation to expose Philip Green’s alleged harassment of women. The book claims that naming Green in parliament was wrong because due process wasn’t followed. That’s a very lawyerly view; journalists like me, who have had Me Too stories thwarted by UK libel laws, may lean towards a more pragmatic approach. Parliamentary privilege put Green’s name into the world, stopped the paper’s legal bill climbing and prevented yet another case in which a rich man effectively cut out his complainants’ tongues. Defamation law needs reform, not defending, and non-disclosure agreements should not be allowed to cover potential or alleged criminality.
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