It’s time for some Friday #FakeLaw! Welcoming back an old friend of the show, it’s...
The Mail! With its new double whammy in its misrepresentation of legal aid and the rule of law!
Buckle up, kids. [THREAD] 👇
1. Let’s start with the headline. In a fun twist on yesterday’s court judgment, apparently it was “Human rights lawyers” who “helped brand Napier Barracks illegal”, rather than, say, the Home Secretary deliberately accommodating asylum seekers in dangerous and decrepit conditions
2. Given the dubious news value of lawyers specialising in asylum and human rights law being involved in asylum and human rights cases, this little intro must serve another purpose.
Subtext: this lawyer helps people we disapprove of (in this case, asylum seekers & travellers).
3. On with the substance.
The first paragraph is, well, it’s false. Completely untrue. Put aside the infantile assumption that anybody who represents asylum seekers is “left-leaning”, the suggestion that the law firm “cost the taxpayer £20million” is false.
4. The £20m figure relates to the overall estimated cost of evicting travellers from Dale Farm. It comprised policing and council costs.
Not, as the article disingenuously suggests, costs incurred or caused by lawyers.
5. Straight in here with legal aid. Here’s the thing - when you represent asylum seekers who have no money and are prohibited from earning a living, you find that a lot of your clients need legal aid.
Although (Chapter 7 Fake Law) legal aid has now been removed from most people.
6. Another tasty morsel designed to dial up the reader’s rage, although there is no information given about the merits of these legal challenges. You are just invited to assume it is a vexatious exercise to line the pockets of lawyers and foreigners.
7. Again, if the Home Office is acting unlawfully, it is not the fault of the lawyers who represent the people who have suffered. If costs are incurred to the taxpayer, this is the fault of the minister responsible - the Home Secretary.
8. And now onto criminal law! The bad man defending murderers and terrorists.
Spoiler: everybody, no matter what they are accused of doing or have done, is entitled to be treated fairly and lawfully. This requires legal representation. This is the essence of the rule of law.
9. And now onto criminal legal aid.
“Extortionate fees paid to barristers defending criminals”.
12. But wholesale disregard for accuracy aside, it’s the message that is most important. Because it is simple, it is insidious, and it is dangerously wrong.
It is:
Lawyers representing people we dislike are bad.
Legal aid for those we dislike is bad.
13. Legal aid for those we dislike, I’ve dealt with a thousand times before, in threads like these.
TLDR: Legal aid is the (fanatically low) price we pay for justice in a democracy. Without it, innocents are convicted, the guilty go free and power cannot be held to account.
15. This is not an issue of bruised legal egos. It is an issue of safety to life and limb. As I set out in #FakeLaw, death threats have been sent to to lawyers following mendacious and misleading reports, of the same genre as this one.
16. The notion that lawyers who represent unpopular causes are “leeches”, “enemies of the people”, “left wing activists” or whatever other intended pejorative is preferred - it risks lives.
Intimidating lawyers for representing their clients is the work of authoritarian regimes.
17. Without lawyers fearlessly defending those whom the majority would rather be defenceless, the rule of law collapses into tyranny.
This should be obvious to anybody who cares to give it a moment’s thought.
But especially a journalist.
18. Such basic failures to understand how our justice system works lie at the heart of he problems with how we discuss justice.
#FakeLaw breaks down the lies and explains the truth.
You can pick up a brand new paperback today. Or post one to the Mail.
The thread offers a hypothetical of a person breaking a car window to rescue a child, only to find themselves charged with criminal damage and prevented by the judge from mentioning this critical circumstance to the jury.
Just like climate activists.
Only…it’s false.
If you’re sitting cosily for a law lecture (and who among us is not?), the issue arises from one of the legal defences available to criminal damage.
It is a defence if you believe the owner consented or *would have consented* had they known of the damage and its circumstances.
As the issue of compensation for miscarriages of justice is rightly in the news, it’s timely to note that in 2014, the government changed the law to make it all but impossible for people wrongly convicted and imprisoned to claim compensation.
Chris Grayling and Theresa May led the charge to deprive the wrongly convicted of compensation, changing the rules so that those people had to effectively prove their innocence - an impossible standard to meet.
The details are in Stories of The Law & How It’s Broken.
When this spiteful non-compensation scheme was challenged in the courts, the current crop of politicians - those who are now positioning themselves as champions of the wrongfully convicted - fought all the way to uphold it.
Can highly recommend this piece in today’s Sunday Times if you’re looking for a facile misunderstanding of what a barrister actually does.
If Mr Syed had bothered to speak to a barrister, or indulge in the most cursory research, he would have learned at least two things: 🧵
1. 90% of a barrister’s career is spent on making decisions. Advising on courses of action, of legal risk, future consequences, assessing evidence and making split-second judgement calls (both in and out of court) that can make an irrevocable decision to a person’s life.
2. It’s an obvious one, and an old favourite, but given that it seems to take Mr Syed by surprise:
BARRISTERS ARE NOT THEIR CLIENTS.
We ask questions in court and test evidence, on behalf of whoever instructs us, because that is our job.
Readers are invited to conclude that £100,000 (£100,028, to be precise) is too much to spend on this very serious case, in which an MP was murdered. A “ridiculous amount of money”, we’re reliably told by Conservative MP @nigelmills.
Well let’s see.
The first teeny, tiny point - and I really am being picky - is that, despite @nigelmills confidently asserting that the defendant “admitted the killing”, that’s not actually true. Not really.
Because the same article tells us that he denied murder and had a 7-day trial.
A final (for now) word on my colleagues who don’t and can’t prosecute criminal cases, but are performatively declaring that they *won’t* prosecute certain types of cases.
This second paragraph vividly illustrates the danger to which they are exposing us criminal practitioners.
The whole point of the cab rank rule is that it provides the answer to the question: “How can you represent [X]?”, when X is an unpopular client or cause.
The minute we are perceived to be picking and choosing between “good” and “bad” defendants, it all breaks down.
It means - as the activists explicitly state - that other barristers can be targeted. “Your colleagues refuse to represent X, so why are you?”
It aligns us personally with our clients.
It exposes those of us who defend & prosecute the most dangerous criminals to very real risk