Pavel Stroilov, consultant to the Christian Legal Centre, comments on the new book by ‘The Secret Barrister’ – Fake Law: The Truth About Justice in an Age of Lies.
A couple of years ago, an anonymous author published a book entitled The Secret Barrister: Stories of the Law and How it is Broken. The word ‘broken’ here is a pun: the book argued that the system of justice was underfunded and altogether ‘broken’. The book became an award-winning bestseller, and ‘the Secret Barrister’ became a star of social media.
From this elevated position, he has now published another anonymous volume, Fake Law: The Truth About Justice in an Age of Lies. The style of entertaining rants is similar to the first book. The substantive argument, however, seems to be quite the opposite. He tells us that shocking media stories about our shambolic courts are untrue. The justice system is not broken after all. The Secret Barrister claims to debunk, chapter by chapter, a wide range of ‘myths’ about the law: that illegal immigrants and foreign criminals cannot be deported because of the Human Rights Act; that people are sent to prison for defending their homes from burglars; that there is a lucrative industry of ambulance-chasing which has made the country paranoid about health and safety; that unelected judges attempted to block Brexit; etc.
The feather in the Secret Barrister’s new cap is his discussion of the tragic cases of Charlie Gard and Alfie Evans. He claims to expose the ‘fake’ notion that the British Court condemned these children to death by authorising their respective hospitals to withdraw life support against their parents’ wishes. From the very first lines of his Introduction, the author captivates your attention first by narrating the horror story told by the media, then claiming it is all untrue, then keeping you in suspense for some 30 pages, and finally narrating what he claims to be the truth about it. That particular chapter is referenced most prominently in various advertisements of the book. That is its selling point.
The truth, according to the Secret Barrister, is that the case was all about me, and the likes of me: “the Pavel Stroilovs roaming the legal wastelands, armed with their bogus advice and servicing shadowy third-party interests”. The real case of Alfie Evans, like Charlie Gard before him, was simply a dispute between parents and doctors about whether it was in the best interests of a terminally ill child to prolong his life by artificial medical intervention after all hope of recovery had been lost. A painful case to come before a court, but not extraordinary – we are all mortals. The public outrage about this case was artificially stirred up by “misleading papal proclamations and Catholic heads of state,” Donald Trump’s tweets, right-wing US senators, UKIP, and all sorts of ‘pro-life lobbyists’ spearheaded by the Christian Legal Centre. The Secret Barrister insinuates a vast international conspiracy to discredit the NHS and the very idea of socialised medicine, with the Vatican and the US Republican Party as main beneficiaries, and with me as the key operator on the ground. We allegedly exploited the family’s grief to advance our own pro-life agenda; incited them to try and kidnap little Alfie from the hospital; cooked up a “duff legal application” for a writ of habeas corpus to release him, which was then “circulated on social media as gospel” and provoked a “200-strong attempt by Alfie’s Army to storm Alder Hey Hospital.” He relishes quoting the judgments of Mr Justice Hayden who condemned me as a “fanatical and deluded young man” writing documents “littered with vituperation and bile.”
The Secret Barrister’s pattern of argument on every big issue is similar in each chapter, and simple enough. First, he gives you a digest of media reports and politician’s comments about a particular high-profile case (or several) – with a particular emphasis on simplifications and inaccuracies. Next, he paraphrases a textbook on the relevant area of law. Then, he does the same for the judicial decision on the case under discussion, adopts it as an absolute truth, and paraphrases it into an entertaining rant. Finally, he attacks the reports and the commentators for failing to engage with ‘the truth’ (i.e. the judge’s view) and rants about their ‘lies’.
So, according to the Secret Barrister, it is not true that unelected judges attempted to prevent the government from delivering Brexit. The truth is that they were duty-bound to resolve an issue of constitutional procedure – whether Parliament had to vote before giving a notification under Article 50 of the Lisbon Treaty – and were unfairly attacked for doing a routine technical job. It is not true that people have been sent to prison for defending their homes against burglars. The truth is that in each case, the jury found they used force in excess of what was reasonable. It is not true that the unscrupulous industry of ambulance-chasing is terrorising and robbing the country. The truth is that, if injured as a result of someone’s breach of a duty of care to them, people go to court and get no more than a fair compensation for their misery. And of course, it is not true that judges condemn innocent children to death. They only determine that it is not in a child’s best interest to receive life support; the fatal consequences are foreseen, but unintended.
The Secret Barrister’s mysterious transformation from a critic of the justice system to its defender has a simple political explanation. He is a left-wing pamphleteer writing for a left-wing audience. One year, he attacked the government for being Tory – caring too much for the taxpayers, and too little for public services such as the administration of justice. Another year, he defends the legal Establishment against popular discontent about what they actually do (putting left-wing social theories into legal practice). His main argument is consistent: he wants the legal institutions of the state, and the lawyers who man them, to have more power and money, not less.
In his first book, the Secret Barrister had posed as an insider with direct knowledge of the criminal justice system. Not so in this second book. He does not claim to practise constitutional law, the law of personal injury, or to have experience of ‘best interests’ cases. In his ‘Acknowledgements’, he credits a dozen other “titans in their respective fields” of law for spending hours answering his questions and reading his drafts. That includes Michael Mylonas QC (the leading Counsel who represented Alder Hey Hospital against Alfie Evans’ parents) and Katie Gollop QC (the leading Counsel who represented Great Ormond Street Hospital in Charlie Gard’s case). In effect, Fake Law is a work neither of an anonymous whistle-blower, nor of an impartial researcher. This is a collective manifesto from the top of the legal Establishment.
It is a legitimate and worthy stance to disagree with a popular opinion. However, a few rare exceptions aside, blaming the media is more or less the same as shooting the messenger. Editors and journalists may or may not have their own views, but their job is ultimately to publish what the readers want to read. The market demands that legal and other complex matters are simplified in media reports, but also, importantly, satisfy the reader as a reliable source of information. Otherwise, readers may easily turn to more interesting and accurate competitors, of whom there are plenty nowadays.
So, if lawyers find the resulting newspaper articles sensationalist oversimplifications, their irritation is in truth with the readers on the market. As a rule, a criticism of the media is simply a thinly veiled criticism of the public opinion. That is indeed the essence of the Secret Barrister’s book: an elitist rant against the stupid rabble, who vociferously protest about things they do not understand.
The public may be ignorant about certain details of the law, but justice is quite a different thing. Justice is easily intelligible to an average person’s conscience. It is wrong to say that, because the lawyers know the law best, non-lawyers cannot be right in their criticism of the legal system. What the critics are saying about the cases discussed by the Secret Barrister is this: for all we know, this outcome may be perfectly consistent with your incomprehensible statute books, but it still offends our sense of right and wrong. In a democracy, when too many people say this about too many cases, it would be wise for the legal profession to pay attention. Certainly, the easiest thing to do is dismiss such criticisms as ignorant: lawyers know best. That hardly amounts to a meaningful answer.
The public was outraged when Mr Justice Hayden predetermined the time and place of Alfie Evans’s death in Liverpool and banned his parents from taking him to Italy where another hospital was willing to keep him alive. It is plainly not the case that the public was only outraged because it was materially misinformed. It is not that the media kept people ignorant of the other side of the story. It was made quite clear in every report that the decision was meant to be in Alfie’s own best interests. Nor was anybody ignorant of the ‘medical consensus’ about his condition: that he would never recover, and eventually die anyway (just like Charlie Gard, and the rest of the humankind). That argument was made very clearly at the time, but it failed to calm the outrage – quite the reverse.
You can easily find any number of over-simplifications and factual inaccuracies in the media reports on any big story, especially a legal story, and then shout “lies, lies, lies” at the top of your voice. I can do the same for the Secret Barrister’s narrative of that case. For example: Alfie’s condition was not “most likely a mitochondrial disorder” – that is confusing him with Charlie Gard. There was no “200-strong attempt by Alfie’s Army to storm Alder Hey’s Hospital” – only a minor incident when fewer than twenty protesters ran across the road towards a formidable police force guarding the entrance, saw that nobody was following them, and turned back. The assertion that “Pavel Stroilov, undeterred by the judicial fury rained upon him, now advised Tom Evans to institute a private prosecution alleging murder,” which “foundered at the first hurdle, having absolutely no cogent legal basis” is full of inaccuracies.
First, the private prosecution was for a conspiracy to murder, not murder as such – as a criminal barrister, the author would know the difference well. Second, it concerned a very specific element of the Hospital’s ‘care plan’ for Alfie’s death: namely, the plan to suppress his respiratory function with a strong sedative while artificial ventilation was withdrawn, depriving him of a chance to breathe on his own (if, contrary to the views of the ‘medical consensus’, he was capable of that). Third, it successfully deterred the Hospital from administering the sedative, so that Alfie survived for a few days after the extubation – contrary to the earlier confident predictions from the ‘medical consensus’. Fourth, it had not “foundered at the first hurdle” – it was withdrawn once it had served its purpose, some time after Alfie’s death.
I could go on giving examples and shouting ‘lies’; but that is cheap. The real point is that whatever desperate legal manoeuvre introduced the phrase ‘conspiracy to murder’ into Alfie’s case, that phrase immediately resonated with the public conscience as an apt description of what was going on. The verdict of public opinion was unaffected by the legal detail, which few people cared about at the time, and which the Secret Barrister now gets wrong. It was based simply on the fact that a group of lawyers and medics had agreed to pursue a course of action which would lead to Alfie’s death. It is no good writing volumes now to prove that they had good intentions: the public heard all that at the time, and was not impressed.
The problem was similar, albeit perhaps less dramatic, in many other cases chosen by the Secret Barrister for discussion in this book, from Gina Miller to ambulance-chasing to the immigration industry. Rightly or wrongly, the public feels in its gut that what is going on is unfair. As a rule, the media gives it plenty of detail; but no amount of detail changes the public mind. The justice delivered to us by this legal system is seen as a fake justice.
Like many losers in broadly similar circumstances, the Establishment now complains via its Secret Barrister that the court of public opinion has been unfair and biased against them. I beg to differ. I think they keep losing the debate because they have not had much of a case, and additionally, have done no favours to their own credibility.
For example, they have been far too keen to argue their case from a position of anonymity. The doctors whose medical consensus condemned Alfie Evans and Charlie Gard to death successfully applied for anonymity orders from the Court – you would actually go to prison if you publicly named any of them. No wonder the public refused to trust their authority in such a grave matter – if they inexplicably refused to back it up with any real names. Had they been less keen to hide their identities, the case would probably look less like a conspiracy to murder to most people…
The legal system responsible for those cases now makes another attempt to defend itself – but again, only in an anonymous pamphlet.
Secret Barrister, you claim to expose “the Pavel Stroilovs roaming the legal wastelands” as the source of ‘fake law’ – but I am exposed enough without you. My name, my face, my biography are no secrets – unlike yours. Who will seriously believe your accusations if I cannot sue you for libel, or even ask you a question? You claim to do no more than state the truth and clear the confusion – why do you have to do it anonymously? What are you afraid of? For my part, and on behalf of my powerful co-conspirators in Vatican and the United States (if there are any), I assure you that you have nothing to fear – except perhaps one thing:
In breach of all standards of journalism, research, or elementary fairness, you have never offered me the right of reply. You can rectify that now. I respectfully invite you to take off your mask. Let us meet to debate these things on camera, testing my flow of vituperation and bile against your pure stream of sound reasoning. As a barrister, you know the only reliable way to test mutual allegations of falsity. Let us cross-examine each other.