Introduction

On 20 February 2018, fifty-two years, three months and eleven days after capital punishment in Great Britain was abolished, the state ordered that a baby be put to death.1 An unelected² High Court judge, sitting in the shadowy Family Division at the Royal Courts of Justice in London, rapped his gavel³ and ruled, in accordance with government dogma, that the life of a poorly child could not be justified within the budgetary constraints of the National Health Service.⁴

Over the next two months, as the child’s parents tried in vain to save their son’s life, successive tiers of the silhouetted British and European judiciary would agree – on no less than eight occasions – that, notwithstanding the availability of viable medical treatment,⁵ the child should die. The governmental Death Panel⁶ had spoken, just as it had, barely twelve months earlier, when a similarly unwell infant was denied life-saving treatment by a legal system prioritising its fidelity to the logical conclusions of socialised medicine ahead of basic respect for human life.⁷

In another year, in another British court, a similarly out-of-touch judge acceded to the pleas of an illegal immigrant who took the stand to contest his deportation, after he committed serious criminal offences. The reason for the decision to let this man remain? It was because – and I am not making this up – he had a pet cat.⁸ A victory for the European Union’s Human Rights Act,⁹ putting British citizens at risk so that the nation’s migrant cats might sleep sounder in their baskets.

Outside the caprice of the courtroom, hard-working taxpayers find themselves daily footing the bill for our country’s voracious compensation culture, as local authorities and our National Health Service throw millions of pounds of public money at defending ridiculous claims, from cleaners pocketing nine grand for tripping over mops,10 to the jackpot figures¹¹ paid to litigious employees aboard the gravy train¹² of the discrimination industry.¹³ Added to our unsustainable legal-aid bill – the most expensive in the world,¹⁴ most of which lines the pockets of illegal immigrants, criminals and their jihadist-facilitating lawyers¹⁵ – it’s no wonder the nation’s finances are in their present state.

And, as for them, those foreign criminals and illegal immigrants, the law is of course on their side.¹⁶ The statue of Lady Justice stands blindfolded atop the Old Bailey¹⁷ for good reason: our pusillanimous justice system turns a blind eye to those who harm us, those who walk free from court despite being convicted of the most appalling crimes. The rights of the victim are subjugated to the rights of the criminal;¹⁸ try defending your home against a burglar and you’ll be arrested for a breach of their human rights before you can pick the shrapnel out of your thigh.¹⁹ The few offenders who do go to ‘prison’ find something resembling a holiday camp – Butlin’s with bars²⁰ – reclining in front of free Sky TV in four-star hospitality until they are let out early.

We shouldn’t, of course, be surprised. When activist judges,²¹ seeking to impose their own liberal leanings upon the downtrodden denizens of our once green and pleasant land, openly declare war on democracy,²² defying the will of the people in service of the judiciary’s secret political agenda,²³ it’s a miracle that anything resembling justice is spat out of our ailing, failing legal system. Enemies of the people,²⁴ the lot of them.

If there’s one thing you can be sure of, it is that the law, whatever it does, does not work for you.

The likelihood is that you will have heard something of the cases and themes above over recent years, whether in the press, on social media or folded into the rhetoric of an earnest politician. The complaints are familiar and recurring. Unfurl a newspaper or click on a weblink, and the evidence is compelling. The law, as some angry blogger once said, is broken.25

Except, of course, that every legal detail in those stories is untrue. They are examples of what a marketing mogul with a keen eye for neologisms might term Fake Law: distortions of legal cases and judgments, spun and reformed for mass consumption. They represent a phenomenon that is far from new, but which, in an age when an errant headline can reach a million Twitter users in a single baited click, is becoming broader in scope, longer in reach and exponentially more difficult to counter.

And the above myths, and the thousands like them, are what this book aims to address. For, while most of us can equip ourselves reasonably well to critically assess news stories or commentary in many walks of life, legal stories throw up particular obstacles.

Law is inherently – and often unnecessarily – complex and alienating to a non-legal audience. Finding the answer to a straightforward question – such as, What does the law say about my right to defend myself in my home? – is not simply a matter of going to a conveniently labelled statute online and reading what it says.

For one, we churn out new laws quicker than the government can publish them. Unfortunately, and consequently, legislation.gov.uk, the official government website responsible for publishing freely accessible versions of the law, has not been up to date for decades. While there have been improvements in the last few years,²⁶ at the time of writing, 2 per cent²⁷ of the statutes and statutory instruments (laws issued by ministers under powers granted by Acts of Parliament) on the website had ‘outstanding effects’ marked on them. In other words, one in fifty of the laws on the official government website were wrong. The website boasts 6.5 million pages.²⁸ That’s a lot of inaccurate legislation lying in wait to trip up the casual browser.

But this is only part of the issue. Unlike civil law jurisdictions, such as France, where the bulk of the country’s law is codified, we have, since Henry II’s declaration at the Assize of Clarendon in 1166, been faithful to the ‘common law’ tradition, where the senior courts (today, the High Court, Court of Appeal and Supreme Court) have the power to ‘make’ law. Where a case involves an issue of interpretation or clarification of legislation passed by Parliament, our most senior judges will hand down judgments which have the effect of binding all lower courts (the doctrine of precedent). This means that, if you wish to understand what a statute means, it is not enough to simply locate an up-to-date version; once that quest is completed, you will need to know what further gloss has been coated over it by case law. And accessing case law – let alone interpreting and extracting the esoteric legal principles judicially parsed within – presents similar difficulties.

The official provider of free, up-to-date online case law is the British and Irish Legal Information Institute (BAILII), a charity subcontracted by the Ministry of Justice to publish the text of new case law on its website. BAILII performs a heroic task of uploading hundreds of new judgments each month from the various senior courts and tribunals from across the United Kingdom, but, as a charity dependent on donations (heaven forfend the Ministry of Justice fully fund this endeavour), it has its limits. A recent analysis showed that, while the leading commercial case law provider published 74,010 judgments between 2007 and 2017, BAILII was able to upload only 30,583 – well under half.29 BAILII is also unable to offer either the search functionality of commercial legal databases used by professionals, or the helpful commentary on each case explaining the relevance and significance of the decision. Therefore, unless you know exactly what you are looking for, you will soon hit a brick wall. Ridiculously, BAILII is also restricted by copyright from publishing judgments from cases pre-1996, the very text of our laws having seemingly been procured and exploited for private gain.³⁰

For a member of the public, all of this means that, unless you have access to a commercial legal database, at a subscription per year running into four figures, or the updated practitioner textbooks in every legal discipline, it is virtually impossible even to locate the applicable law.

Even if you succeed in tracking down the relevant statute and case law, comprehending its application in practice presents a separate, often insurmountable challenge. The language of the law – both its statutory drafting and judgments handed down by the courts – can appear deliberately alienating to a citizen in the third millennium. While the civil and criminal courts have formally vowed to abstain from the routine use of Latin, some participants cling onto it. Barristers in criminal proceedings will still casually slip into res gestae, mens rea or novus actus interveniens. Old-school civil practitioners still speak in terms of ex parte, mandamus and certiorari. Abstruse legalese remains scrawled throughout the legal process. The criminal law retains its fondness for old, comfy Victorian statutes to prosecute most offences of violence31 (and some of minor public nuisance³² – being an ‘incorrigible rogue’ is still a prosecutable criminal offence), and the formal courtroom exchanges between counsel and judge invariably sound lifted from another epoch. ‘May it please Your Honour, my learned friend and I have considered the position and the view at the Bar is that this would fall within the res gestae exception’ is a sentence that may trip off the tongue of a criminal lawyer, but makes little sense to anybody in the public gallery. Dragging the legal system kicking and screaming into the twentieth century is still on the to-do list in the second decade of the twenty-first.

Our education system only compounds the problem. Despite the law underpinning every facet of our existence, from prior to our birth through to and beyond our death, English and Welsh schooling has historically placed no emphasis whatsoever on legal education. How are laws made? What are our rights? How does the justice system work? What is the court hierarchy?³³ What is the difference between a solicitor and a barrister?³⁴ Or a judge and a magistrate?³⁵ Such themes, if they are explored at all, are shoehorned into unfashionable Citizenship or General Studies curricula, rather than celebrated in their own right as a key pillar of education, as important as language or maths.

Part of the blame also lies with us in the legal profession, tutting at the public’s failure to understand what we do, whilst jealously guarding our knowledge. While the social-media age has brought forth a generation of writers, bloggers and tweeters doing their best to kick down the doors to the courtroom and shine a torch on the arcane activity inside, our historically well-earned reputation as aloof keepers of the keys, cloaked in black and speaking in tongues, means that many citizens feel irredeemably disconnected from the legal system and its players. The historically well-deserved reputation of the legal profession as the preserve of the privately educated, upper-middle-class Oxbridge elite – a homogeny of plummy voices and white faces – has erected barriers to access and understanding which are only now, belatedly, being taken seriously by the profession.

Putting this all together, it is little surprise that, according to research reported in 2019, the British public is ‘dangerously ignorant’ about the law, with more than a third of those surveyed not knowing the difference between criminal and civil courts.36 Consequently, and inevitably, a report by Citizens Advice suggested that only two in five people have faith in the justice system.³⁷ And it is equally unsurprising that many people rely on secondary – and, unbeknownst to them, unreliable – sources to piece together their understanding of the law.

This disconnect, I agree, is dangerous. Because the law belongs to all of us. Society only functions if we all abide by common, agreed rules. If we don’t understand our justice system, and if our comprehension is corrupted by misinformation, we can’t properly engage with arguments over its functioning. We can’t critically evaluate its performance, identify its flaws, propose sensible reform or even participate meaningfully in everyday conversation about the stories in the news. Our unfamiliarity also makes us vulnerable to those who would exploit the gaps in our knowledge to push ulterior agendas.

That, I hope, is where this book comes in. By examining the core principles of our legal system in action in some of the flashpoints that have occupied centre stage in the news cycle over recent years, we can see where common understanding departs from reality. We will look at how the law actually works, and why it operates in the way it does, with the aim that, when confronted with the stranger-than-fiction harrumphs of the professionally outraged, we are better equipped to scrutinise their claims.

Please don’t mistake this for an apologia for the legal system. The law is not perfect. I am not proffering a full-throated defence of the justice system, its characters or how it operates. There is much wrong with the way we do justice. With criminal law alone, for instance, in which I specialise, there are enough stories of how the law is broken to fill a book. But the risk is that, by allowing our attention and energies to be diverted onto ‘the law is an ass’ outrages which have, on their true facts, entirely mundane explanations, we become distracted from the problems that really do exist with justice.

And so it often proves: amid the smoke and klaxons accompanying the Fake Law stories, we miss the plaintive cries of those truly betrayed or failed by the law.

This, I will suggest, is not accidental. The narratives that we are fed about how and why the law doesn’t work – what is shouted from the front pages and what is muted – are deliberately configured. Sometimes, the agenda will simply be boosting circulation or garnering clicks. But sometimes it runs far deeper. Sometimes, it amounts to a calculated attempt by vested interests to undermine and chip away at our individual rights and protections, the first principles that bind us together, and, ultimately, the very foundations of our justice system.

This book is about those, real, enemies of the people. What are the truths about our justice system that they are so eager to mask? What, through coordinated dissemination of half-baked half-truths, rhetorical sleight of hand and outright lies, do they hope to gain? And what are we, the people, at risk of losing?

It is not comprehensive. It cannot cover all facets of the law. But it will drill into some of the most commonly discussed aspects of the justice system, exploring the operation and (mis)representation of the law in some of the most important areas of our lives. What does the law really say about us? Our children? Our jobs? Our society?

Similarly, not every legal myth given airtime can be debunked. However, I hope that we can cover enough ground so that, when it comes to discussing some of the bigger legal stories that elbow their way into the spotlight, we are better armed to properly understand the reality behind the headlines, to recognise the myths, the lies and the agenda, and to identify the motives of those seeking to prey on our unfamiliarity.

And if that is too ambitious, then may I at least press home, at the earliest possible stage and with as much vigour as words on a page can convey, on behalf of all legal practitioners the length and breadth of our fair nation, the following central truth of our justice system: GAVELS ARE NOT, AND HAVE NEVER BEEN, USED BY JUDGES IN ENGLISH AND WELSH COURTS.38