The meaning of justice

This will be (for now) my last word on the Tommy Robinson appeal. My legal analysis based on the facts as we now know them deals exhaustively and exhaustingly with the law; my reflections at the conclusion of that piece on whether I was too hasty to assume the correctness of the procedure, I stand by. Being quick to form views in the absence of the full facts is a bear trap I haughtily deplore when others fall in; it is only right to acknowledge if and when I teeter on the brink myself.

But I want to say something, for what little it is worth, about our understanding of justice. And my leaping-off point for this is something that a number of people have drawn my attention to today – this leader in The Sun.

The tweets to me accompanying this photo have been almost uniform: Who’d Have Thunk it, The Sun sticking it to Robinson and Co, Good On ‘Em.

And parts of this leader are indeed brilliant. Whacking to pieces the myth of this oppressed citizen journalist is vital, and needs doing as often as the piñata is reassembled by far-right agitators. Pointing out that the reporting restrictions that Robinson breached have nothing to do with political correctness and everything to do with ensuring a fair trial – the genius is in the simplicity of its expression. Spelling out in equally simple and clear terms the danger that such actions pose to victims of crime receiving justice – [INSERT MERYL STREEP APPLAUSE GIF].

But there’s a line buried within which troubles me, and echoes a sentiment that has been tweeted at me a lot in the erroneous assumption that I share it:

“His many convictions stretch from violence to fraud. We have no sympathy.”

This ugly and unnecessary throwaway reveals one of the biggest problems we have with our understanding of justice; the same problems that many of us are quick to highlight in our opponents. And that is that Robinson’s character, conduct and previous convictions, as reprehensible as they may be, are utterly irrelevant to the issue determined at the appeal, namely whether he received a fair hearing. If he did not – and he did not – he is as entitled as any of us to redress, or at the very least to an acknowledgment of being wronged. The attitude of “Who cares? He’s a criminal” mirrors the exact sentiment that has left the criminal justice system – from legal aid through to prisons – in its present desperate state.

It is immaterial whether Robinson has committed horrible crimes. Many people who appear before the courts have, especially in my line of work. And rights, if they mean anything, have to apply to everyone. It’s an obvious point, but this fundament of the rule of law is too often forgotten when we are confronted by society’s most unlovely.

If we neglect our first principles of justice, we fall into the trap carefully lain by the far-right. Their entire, dishonest thesis – from Trump through to Robinson – is that they are deprived of natural justice by its unequal, unprincipled application at the hands of liberal enemies of the people. By denigrating and distorting the rule of law they aim to undermine and ultimately destroy it. Implying that Robinson’s previous criminal record renders him less deserving of justice than the rest of us hands the far-right the prize they crave.

Don’t be fooled by the strained triumphalism of the far-right over yesterday’s outcome. This result is a disaster for them. It categorically disproves to a global audience every conspiratorial tenet of their religion. The liberal judges are not locking up political dissidents. There is no state cover-up. Mistakes, when made in the legal system, can and often will publicly be righted.

They may be proclaiming that they fought the law and won, but for the truth just ask The Clash. The winner, if we must talk in such terms, is justice.

Which moves me back to The Sun, and the risk of an equivalent false triumphalism on the other side. For just as the far-right mendaciously spin this righting of a procedural wrong as a “victory for free speech” – by which they mean the right to hound Asians accused of criminal offences – so we risk self-denigration by dismissing, or worse revelling in, the punitive effect of the court’s error. The joy that some are taking in the notion of Robinson’s imprisonment borders on the macabre.

I’m afraid if you’re supportively tweeting me amidst the blizzard of the racist bots to share a gloat that Robinson has maybe spent more time in prison than he should have, or to gleefully cross fingers that he gets longer next time, I’m not your ally in this cause.

It may be, when the contempt matter is dealt with anew by the Old Bailey, that a sentence is passed which matches or even exceeds what Robinson has already served. But at present, he served a sentence that followed an unlawful procedure. That shouldn’t happen. To anybody.

And if he does receive a lesser sentence – if the court, after a full and leisurely hearing at which all mitigation is made available finds that the appropriate sentence is much lower than he received first time round – and if it means he has therefore served longer than he should have, all the arguments I’ve made in my book about miscarriages of justice apply. It’s wrong. He should be entitled to an apology, and recompense, and all the other make-goods I demand on behalf of others. His perceived or actual shittiness is not material. If he has been imprisoned when he should not have been due to state error, it’s as much a problem as if it happened to “one of the good guys”.

So those are my closing musings. I have no issue at all – and nor should any of us – with Robinson seeking to and succeeding to challenge the lawfulness of his treatment at the hands of the courts. We are all entitled to due process, and should all expect, however abominable others may consider us to be, that the law will be applied fairly and correctly. My concern, contrary to what the Breitbarters would like to pretend, has always been the mob lining up behind Robinson to spread lies and quite literal fake news as to what took place, what the factual and legal issues are and how the law operates. Those peddlers of hate and deceit – the UKIPs, the Breitbarts, the Rebel Media, the Infowars, the unmentionable Twitter favourites – I will continue to resist as long as I keep up this vainglorious mission to bring law to the people who own it.

But as for what happens to Robinson now, all that should matter is that he gets justice. If, in his righteous pursuit, he encourages his supporters to continue their threats to the rule of law, their riots, their organised campaigns of racialised misinformation, I will be there waving my tiny paper sword on the front line.

But taking any sort of pleasure in anybody being failed by the justice system? We’re better than that. Let’s show it.

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How would ‘The Staircase’ murder trial be different in England and Wales?

I wrote a piece for Esquire on the Netflix true-crime drama The Staircase, looking at how the trial might have been different had the case taken place in our fair nation. You can read it here.

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Netflix

 

Why Criminal Justice Matters: Live Event at the RSA

On Tuesday evening, the RSA (Royal Society for the encouragement of Arts, Manufactures and Commerce) hosted an event, “Why Criminal Justice Matters“, at which a panel of industry experts (plus me) discussed the plight of the criminal justice system, and what can be done to remedy its failings.

The discussion was chaired by Joshua Rozenberg QC, and the panel featured:

  • Penelope Gibbs, Founder of Transform Justice
  • Angela Rafferty QC, Chair of the Criminal Bar Association
  • Jonathan Black, Partner at BSB Solicitors
  • Nazir Afzal, Former Chief Crown Prosecutor for Northwest England at the Crown Prosecution Service
  • Me, via live Twitter feed.

It was a thoroughly enjoyable event, and I am extremely grateful to all  concerned for their participation and support. Tickets sold out quickly, I’m told, but for anybody who wasn’t present and didn’t catch the live-stream, the event can be watched for free here:

 

What’s in a name? Anonymity and me

“There are plenty of other practising lawyers who put their names to their opinions. Why should you be different?”

This, entirely fair, question has been put to me in several interviews I have given in the run-up to the release of my book. It often tops or tails chains of correspondence between my publicist and intrigued media outlets, and has in some cases proved a stumbling block for those displeased with my response and insistent on my revealing my wholly uninteresting real self as a precursor to the grant of publicity.

But despite its ubiquity, I have still not yet properly got a handle on answering the question. At least not as succinctly and pithily as I would like. This is almost certainly a fault of my own solipsism; of my failure to appreciate that just because I instinctively know why anonymity (or pseudonymity, as I suppose it is) is so important to me, it is not necessarily self-evident to others. No doubt I haven’t properly considered how best to explain to an understandably curious audience why, unlike other barristers brave enough to speak out under their real identity, I insist on keeping the mask on. Why, as it is properly wondered, I should be different.

So today, the date of publication of my first pseudonymous book, seems as good a time as any to try to explain.

Put simply, anonymity buys me the ability to speak plainly, frankly and without fear or favour about the problems that I see in the criminal justice system, in a way that I don’t think I could under my real name. It respects and protects the identity and privacy of the individuals concerned where I draw on real-life examples of cases from professional experience, none of whom have asked for the attention that I might otherwise unwittingly direct their way. And it protects, albeit not inures, against any perception that I am tempering or modifying my opinions out of a desire to preserve my professional reputation or my income stream. I have no need to pull punches or defer to authority when mounting my high horse to decry the ruin of criminal justice, nor do my colleagues or chambers have to fear or suffer the consequences of my chippy activism. By the same token, when I speak out in partial defence of the system – for example, to stand up for a judge being unfairly demonised in the tabloids – it is clear (I hope) that I do so without a dog in the fight. There is no benefit to me in adopting any particular stance on any given issue. I will not be a Secret QC on the back of my writing, and I have even fewer pretensions at becoming The Secret Judge. When I cheer the valiant, Sisyphean efforts of overworked CPS caseworkers or underpaid defence solicitors, I do so not in the hope of sourcing sympathetic new instructions, but because they damn well deserve the praise.

My hope is that anonymity preserves, even bolsters, my independence in a way that I think is difficult to achieve writing under one’s real byline. Even if you are as scrupulously fair and even-handed as most named legal commentators undoubtedly are, treading onto any politically sensitive topic forces them to contend in the first instance with a barrage of irrelevant and groundless accusations of self-interest, bias or unchecked privilege. By taking my identity off the table, I hope to keep the focus on the issues, rather than the speaker. I am exactly what I say on the tin – a jobbing junior barrister; nobody that anyone will have heard of, certainly not (as I’ve heard suggested) Keir Starmer (!), nor indeed anyone with any sort of public profile. And that – my mundane existence as a practising criminal barrister – is the only fact which I think a reader requires to engage with what I write. Most people who interact seem to accept that premise; that the only information of relevance is that I am a junior barrister who specialises in criminal law, and therefore have a vague grasp on the subject matter I’m dealing with. Being able to identify and attach a non-descript name and face to my posturing will not assist anybody’s understanding of the arguments I offer or the opinions I spout. If the former are misguided or the latter half-baked, they will fall on their demerits, rather than crumble under the weight of bogus assumptions.

More than this, anonymity allows me to discuss cases handled and things seen and heard with a frankness which I fervently hope is helpful to a non-legal audience. When asked how it feels to defend an alleged paedophile in whose guilt you secretly believe, I don’t have to rely on the abstract; I can speak openly from personal experience to demystify and discuss the issues raised by that question, without any fear of the involved parties being identified. I can walk a lay reader through the criminal process, describing the flaws and pitfalls by reference to things I have seen, without feeling obliged to sugar coat or descend into generalities. The driving purpose behind this blog and the book is to try to open up the dusty legal system to the public who owns it. Anonymity, when I was starting out three years ago, struck me as the simplest and easiest way to achieve this.

And finally, the last reason I offer up is perhaps, to me, the most immediately important. My desire, from the day I wrote my first blogpost, has been and remains simple: to be able to continue to practise in a job which, for all its frustrations, I love, while drawing attention to the problems in the system. This arrangement allows me to do just that. While I would hope that, in the event of my unmasking, there would be sufficient recognition of my good intentions to allow me to continue to practise, it would be naive to suppose that I could carry on writing as well. At least one would have to fall. I would, in reality, either slink back with sun-burned wings into a muted practice; or walk away from the Bar and contemplate another life altogether. That is a choice which I know that ultimately I may be forced to make. But it’s not one I want to. Not while I still hope I have a contribution to offer to both.

Love In The First Degree: Analysing the legal misconceptions of Bananarama

This weekend’s Twitter thread, which has received a surprisingly warm reception (even from Bananarama themselves), is as below. It is important, it struck me as I sat stationary on a snow-stranded train, that we always hold (girl) power to account and challenge legal myths wherever they arise, however difficult that may be.

🎵And the judge and the jury, they all put the blame on me

They wouldn’t go for my story, they wouldn’t hear my plea…

Only you can set me free, coz I’m guilty, guilty as a girl can be

Come on baby, can’t you see, I stand accuuuused of love in the first degree🎵

[THREAD]

There are many legal inaccuracies and errors that Bananarama fall into here. I think it’s important that we address them.

 

Firstly, Bananarama erroneously assume that the judge AND the jury are judging the merits of the defence. This is simply not true. Judges in Crown Courts, even Courts of Love, are judges of law alone. The verdict is for the jury.

 

The ONLY way this would stand up to scrutiny is if the judge had ruled, as a matter of law, that a particular defence was not available, and directed the jury in such terms. Absent further detail, we cannot assume that this happened.

 

Secondly, the existence of a jury indicates that there is a contested trial to determine guilt. HOWEVER…

 

…Bananarama confess – openly – that they are not only guilty, but guilty as a girl can be (by which they are presumably accepting a degree of culpability placing them at the top of the range of the highest category on the relevant Sentencing Guideline).

 

In such circumstances, it is nonsensical for them to express surprise or complaint at the jury rejecting their “plea” (by which they presumably mean defence). They are to blame for admitting guilt in front of the jury and for wasting scarce court resources on a needless trial.

 

If Bananarama simply wanted to contest the *factual basis* of their admitted guilt, then they should be having a trial of issue (“Newton hearing”) in front of a judge alone. Their advocate should have advised them as such. This is plainly negligent.

 

In any event, there are live criminal proceedings and Bananarama are imploring the key witness (“only you can set me free”) to intervene to prevent the consequences of their admitted criminality. Bananarama are shamelessly attempting to pervert the course of justice.

 

In these circumstances, it is frankly unsurprising that, at the start of the song, Bananarama are “locked in a prison cell”. The judge was clearly right to withhold bail given the substantial grounds for believing that Bananarama would interfere with witnesses if granted bail.

 

In practical terms, Bananarama would be properly advised to spend less time imploring the complainant to help them, and seek advice on the merits of an appeal against conviction. That they haven’t is almost certainly down to savage legal aid cuts depriving them of representation.

 

My view, for what it’s worth, is that such an appeal would have merit. Because, and I have reread ALL my law books to make sure I’m right on this, there is NO criminal offence in England and Wales of “love in the first degree.” This is simply a common tabloid misconception.

 

That the CPS charged this case at all is a damning indictment on its chronic lack of resources and obsession with targets above all else. Far better, I would advise, to concede the appeal and bring new charges for the perverting the course of justice (above).

 

In conclusion, nothing about this Bananarama trial sits right with me. While we must be calm and not jump to conclusions without knowing the full facts, I am deeply troubled that something has gone badly wrong. Or that Bananarama’s legal research is not what it should be.

[ENDS]

 

Next Friday (assuming the trains are still not moving): “Was Meatloaf being incited to commit a criminal offence, and therefore well within his rights to refuse to do *that*?”

An idiot’s guide to navigating pupillage interviews

The Times has today published a fine piece on applying for pupillage, reflecting the advice and experience of some survivors of the process, both applicants and interviewers. Having had the privilege of seeing life from both sides of the interview table, I thought I’d offer my own, largely worthless musings on the things I have learned.

A stock photo entitled “three women in suit sitting” which could also feasibly depict an interview.

  1. Have a good answer to the inevitable.

You will be asked why you want to be a barrister. You will be giving a variant of an answer the panel has heard a thousand times before. That is unavoidable. So don’t strain yourself stretching for originality; aim for simple honest sincerity. At my first ever interview, I span a fluffy cat story about how I was inspired by the story of somebody I met on a mini-pupillage, and how I aspired to tread in their footsteps. The disdain from the panel was palpable. For several interviews thereafter, I cleared my throat and proudly declared my thirst for justice, passion for advocacy and burning need to help the helpless, voice the voiceless and improve the unimprovable. Looking back, I was fortunate not to have a chair thrown at me. Forget cliché and invention and speak plainly. If I were transported back and asked once again why I want to be a barrister, my answer would be simple: because I want to do something exciting with my life. And at the criminal Bar, whatever brickbats we throw at the system and the punitive lifestyle the Bar engenders, life is never, ever dull.

 

  1. Why did you apply to this chambers in particular?

For the most part, the truthful answer will be: “Because you are a chambers, any chambers, and I would literally accept a pupillage in a chambers run by bees at this moment in time.” Again, it’s a nasty question that interviewers know is near-impossible to answer. If you’ve done a mini-pupillage at that chambers, that will help formulate a complimentary response. If not, scour the chambers website for self-congratulatory guff about “ethos” and “values” and try to pass those off as your own. Failing that, tickling the ego of your interviewers with a non-grovelly acknowledgment that the chambers is a “leading set” (all sets like to consider themselves leading) in the particular area of practice is a reasonably safe line.

This outstanding design is the talent of @teaforpterosaur

  1. Have something memorable or quirky on your CV or application

The blunt fact is that everybody being interviewed will have a good 2:1 or 1st class degree. Many will have Master’s degrees. All will have (or will shortly have) at least a Very Competent mark on the BPTC. All will have done debating, mooting and other forms of public speaking. Presidents of University Law Societies are ten-a-penny. The well-advised will also have squeezed some pro bono legal advisory work into their non-existent free time. These are all necessary but insufficient. None, I’m afraid, will stand you out in the memory of the panel. However, the fact that you are a decorated Morris dancer, or were thrashed by Daphne and co on Eggheads, or once interviewed Mike Tyson for your student newspaper with the opener (and closer), “For our readers who may not have heard of you, what do you do?” – these will remain with the panel afterwards. They show that you are human, intriguing and the kind of person that the interviewer actively wants to find out more about. And that is the very best impression you can leave.

 

  1. Have a non-legal topic in mind that you can talk about freestyle

Linked to the foregoing, make sure you have prepared to talk about something – anything – that is not law. There will be a lot of law chat. But there will almost always be a tangential diversion into matters of non-law, often preceded by a vicious, “Tell us more about yourself”. One interview I attended was even more brutal; we were given five minutes to think up a 2-minute presentation on a topic of your choice. Line up a few of these during your interview prep. Think of something non-legal (to demonstrate your glorious diversity) on which you have personal experience or strongly-held views, and have it wrapped up and ready to fire in the event it is called upon.

 

  1. Immerse yourself in current affairs

 Again, an interview staple. Read the newspapers. Gobble up Times Law, Legal Cheek, Legal Twitter, and blogs by proper lawyers and academics for hot takes on vexed issues of law and politics. A common interview trick is to ask you to argue one side of a debate, before immediately inviting you to argue the opposite. Draw up a list of likely topics and think about your arguments in advance. Also be aware of industry-specific issues that are of no interest to anybody outside the Bar, but of enormous importance inside our bubble. If you’re interviewing for a criminal pupillage, be prepared to answer, “What are the biggest challenges facing the criminal Bar?” Be opinionated without being obnoxious; political without being partisan. Stand your ground under pressure from smug interviewers, but be prepared to make concessions if your argument is expertly blown apart.

 

  1. Don’t be intimidated by chambers profiles.

Looking at the profiles of other junior tenants on the chambers website can be a sobering experience. You will read how your contemporaries spent a year as an intern on an international human rights case, or have written starry and brilliant articles, theses or even books on esoteric and impressively complex aspects of your chosen legal field. Many will have impressive previous careers, either in law or outside, and as a twenty-something BPTC graduate, it is easy to be gripped by inferiority. Don’t be. Your CV counts for absolutely nothing when you’re sitting in a cell opposite a screaming heroin addict who has stabbed his cellmate in the eye and is threatening to exact upon you his frustration that his solicitor hasn’t been to visit him. Nor does it matter a jot when you’re in front of a judge or jury pleading the unwinnable case (or worse, the eminently winnable). Your judgment and powers of advocacy are the skills that can’t be reflected on pornographic CVs, and are the ones that matter most. Practise on demonstrating those in interview.

 

  1. Don’t gabble

It sounds obvious, but nerves in interview upend the most poised performers in your advocacy classes. Your interview is a chance for you to demonstrate advocacy under pressure. Deep breaths, slow and considered responses and substituting a brief pause for “umm” or “err” or, heaven forfend, “like”, are mandatory habits. Even if the topic is your Mastermind subject, you win no points for speed.

 

  1. Prepare for the unexpected

Some chambers do things the old-fashioned way. China tea-pot, warm smiles, civil conversation. Some take a sadistic pleasure in setting you Total Wipeout style obstacle courses at a second’s notice. Impromptu presentations on random subjects; a Dragon’s Den pitch on something I had two minutes to invent; idiotic Oxbridge-interview questions (“If you were a banana, what car would you drive?” etc); deliberately confusing written exercises and needlessly aggressive interview styles were, and probably still are, all common features. In reality, “prepare for the unexpected” is fairly useless advice; the best antidote for this kind of stuff is experience. But try not to be fazed.

 

  1. Do have a question at the end

You will hear competing theories over whether you do in fact need to have a prepared response to the final, dreaded, “Do you have anything you’d like to ask us?” My advice is to have at least three questions in your back pocket (just in case the panel unhelpfully answer one or two of them in the course of the interview). Even if it’s something as simple as, “Roughly how long does it take for your junior tenants to start appearing regularly in the Crown Court?” If you really can’t think of a good question, don’t ask a bad one. But it shouldn’t be beyond your wit to come up with a couple, just to keep the conversation flowing. Oh, and under no circumstances ask, “Did I get the job?! LOLZ!” You will deserve everything you get.

 

  1. It all comes down to dumb luck

This, I’m afraid, is the reality. The pupillage statistics speak for themselves. Your odds are slim, and unless you are particularly brilliant (and most of us aren’t), you are competing against hundreds of people of comparable ability, intellect and experience. What separates you from the herd in the eyes of the interviewers is often wholly arbitrary and unexpected. I was lucky enough that a flippant topic I’d picked up on was of enormous interest to a wonderfully fun and quirky member of chambers on the panel, who quickly turned the conversation round to 1980s power ballads. That, I was later told, was the clincher. Others will have friends or family in chambers, or relatives in the judiciary. Nepotism and inherited privilege shouldn’t have their place at the modern Bar, but they linger. There are a million variables that may influence your chances in any given interview. Ask for feedback from unsuccessful interviews, and use anything constructive, but don’t let a run of rejections cause you to lose heart. All it takes to break a losing streak is just one lucky win.

Some thoughts on Dr Bawa-Garba and our faith in the jury system

I’m loath to tread onto terrain that I do not usually cover in my modest knockabout criminal practice, but the case of Dr Hadiza Bawa-Garba has caused such tremors in the medical profession that I thought, vainly, that I might throw my two pence in.

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Misery is so ubiquitous in the criminal law that it feels trite if not otiose to start with the observation that this – as inevitably with any that makes the news – is a very sad case, but there is something about the cumulation of tragedies spinning out from Bawa-Garba that stands it out as particularly upsetting. A seriously ill six year-old child, Jack Adcock, died in hospital on 18 February 2011 after what were alleged to be  – and accepted by a jury as being – serious failings in diagnosis and treatment by Dr Bawa-Garba, the responsible doctor.

On 4 November 2015, she was convicted of gross negligence manslaughter and sentenced to a suspended sentence of imprisonment, having been initially informed by the CPS in 2012 that she would not be prosecuted at all. Her fitness to practise was found to be impaired by the Medical Practitioners Tribunal in June 2017, and she was suspended for a period of 12 months. Last week, the High Court ruled, following an appeal by the General Medical Council, that this sanction was insufficient, and substituted the sanction of erasure from the medical register – effectively ending Dr Bawa-Garba’s career.

I shan’t rehearse the complex medical evidence and arguments advanced at Dr Bawa-Garba’s original trial; a summary of the arguments can be found in last week’s judgment here (and in the judgment from the Court of Appeal dismissing her application for leave to appeal against conviction, here). But, reducing the arguments down to a digestible core, the prosecution, relying on the testimony of medical experts, argued that the decisions and omissions of Dr Bawa-Garba were so serious, and her conduct fell so far below the standard of care expected by competent professionals – “truly exceptionally bad” being the test set for the jury – that she was guilty of manslaughter by gross negligence, it being said that these failings caused Jack to die significantly sooner than he would otherwise have done. Dr Bawa-Garba, for her part, denied gross negligence, arguing (also with the support of expert evidence) that Jack’s case was complicated, and that excessive demands placed upon her by a multiplicity of systemic and (other) individual failings meant that she had done her clinical best in difficult circumstances.

The jury returned a guilty verdict, and professional disciplinary proceedings followed. The decision by the High Court last week to allow the GMC’s appeal has caused widespread upset among the profession (see this excellent blog by Dr Rachel Clarke for an explanation).

The reason for the High Court’s decision was that it found that the Tribunal had, in imposing a suspension instead of erasure, attached significant weight to the aforementioned “multiple systemic failures” at the hospital at the time, which included

“failings on the part of the nurses and consultants, medical and nursing staff shortages, failings by nurses and consultants, IT system failures which led to abnormal laboratory test results not being highlighted, deficiencies in handover, accessibility of the data at the bedside, and the absence of a mechanism for an automatic consultant review.”

What is the problem with this? Well, the High Court ruled that these systemic failures had already been considered by the jury at the criminal trial, and that the jury’s guilty verdict represented their finding that Dr Bawa-Garba’s mistakes were “truly exceptionally bad”, even taking into account the conditions in which she was forced to work. Therefore, the High Court concluded, the Tribunal fell into legal error in effectively disregarding the verdict of the jury and reaching its own views as to the level of culpability. If a jury has found Dr Bawa-Garba’s actions to be truly exceptionally bad notwithstanding the systemic conditions, it’s not for a professional disciplinary tribunal to try to form its own opinion based on the systemic failings and downgrade the doctor’s actions to only ‘really quite bad’, in other words.

Doctors who are plunged regularly, if not daily, into the type of systemic chaos that prevailed on that fateful day are now understandably panicked about the ramifications in the event of an avoidable tragedy. Not only, it seems to them, is there a risk of criminal sanction, but the professional regulator – the GMC – will seek to have doctors struck off for what are partially – if not mainly – failings caused by understaffing, lack of resources and defective working practices. What, it has been asked, is a doctor to do upon arriving at work to find themselves in Dr Bawa-Garba’s position? Do one’s best to help patients and risk the same fate? Or down tools citing unsafe working conditions?

For what little it’s worth, I understand the anxiety entirely. But I do wonder whether the consternation in fact burrows deeper than last week’s decision. Because there’s an undeniable logic to the High Court’s judgment: If a criminal court has found, beyond reasonable doubt, that someone’s actions are truly exceptionally bad, it’s a bit off for a different legal tribunal to decide that, actually, the actions were simply honest mistakes. And while anger at the lack of sympathy displayed by the GMC is natural, the ultimate “fault” lies a few stages back – with the verdict of the jury.

It was after all the jury that heard all the evidence of the systemic failures, the clinical decisions taken and not taken, and the errors on the ground, and was still sure of Dr Bawa-Garba’s extremely high personal culpability. It was the jury that weighed the competing expert evidence as to best clinical practice and concluded that these were not simple honest errors but something far, far more serious. And while I don’t seek to second-guess the verdict, nor the competence of the twelve men and women who tried what was no doubt an extremely difficult case to the best of their ability, this case provokes difficult questions as to the suitability of a lay jury to determine complex matters of professional competence.

Trial by a jury of one’s peers is one of the most proudly-hugged rudiments of our criminal justice system – Magna Carta and all that jazz – predicated as it is partially on the notion that disputes of facts falling within the experience of everyday folk should be settled by everyday folk. But where criminal liability hinges on competing interpretations of professional standards, we can see a tension rippling across the surface of our definition of “peers”.

There has been online debate among medics as to whether, based on the evidence summarised in the publicly-available judgments, Dr Bawa-Garba’s conduct was correctly determined to be grossly negligent. Clinical opinions have clashed and war stories of identical climates and narrowly-averted tragedies have been traded as doctors re-litigate the nub of the criminal trial, and in particular the question over whether the jury did, or could, fully appreciate and understand the reality on the ground. While I ordinarily fall into reproachful tutting at armchair juries, there is something about all of this that resonates, louder and more violently than I expected.

I think it’s because, for me, the thought of 12 non-lawyers being called upon to make judgments on my professional standards fills me with horror. Working in the criminal justice system on any given day is, I have no doubt, akin to working in the climate of systemic failure suffered by Dr Bawa-Garba and her colleagues. There is insufficient everything, both material and temporal. What there is, doesn’t work. It is often a miracle that anything resembling justice is fired out at the end of the production line of disorder that comprises many criminal cases. I worry about every single case I have – not simply because of the high stakes or the complexity, but because I cannot trust a single other element of the system to work as it should. Disaster is a heartbeat away at every turn. If I avoid its icy grasp, it’s been a brilliant day. When mistakes happen – and they do, for all of us – it is our individual responsibility of course, but I would plead that they usually arise against that backdrop. And if I found myself in a court of law, trying to convey that reality to twelve laypeople, I know for a fact that I could not even begin to make them understand. Neither could any expert, nor any other witness, no matter how eloquent.

I couldn’t do justice in words to the panic of having several hundred pages of tardy disclosure dumped on you by the indolent prosecution on the morning of a trial where your client is facing a possible life sentence, and having to take full impromptu instructions in the court cells as your violent, psychiatrically unwell client screams and smashes his head against the cell door, while the unsympathetic judge, conscious of the need to “get things started”, tannoys every ten minutes for you to return to court. I cannot paint an adequate portrait of the problems posed when the Crown Prosecution Service instructs you the night before on a trial that they have hitherto kept in-house, and which has not even been looked at by the CPS advocate, and the thudding pressure of arriving at court with a shopping list of urgent missing evidence, disclosure and legal applications, to find that the court WiFi is down, the CPS caseworker assisting you is covering two other courtrooms, the court forgot to book an interpreter for your witness  and your police officer in charge of the case has phoned in sick and sent a replacement bobby who knows nothing about the trial. I cannot convey to a layperson the sheer madness of the magistrates’ “list” system, where the most junior lawyers are dumped at a few hours’ notice with half a dozen badly prepared trials, all listed in the same courtroom before a bench of three non-legally qualified magistrates, and expected to prepare the trials, plug the gaps, chase the missing witnesses, advise and take instructions from overwrought CPS lawyers over the crackling phone lines, soothe the impatient bench and somehow run a series of seamless, effective, just trials.

 Unless you’ve been there, you simply can’t understand.

It is no different, I expect, for NHS staff. Unless you have been there, unless you know, you cannot absorb the experience vicariously. And if you don’t understand the reality, how can you properly, fairly, judge standards of competence exercised by someone ragged in the winds of unpredictability and chaos?

I make clear-  I am in no way doubting or otherwise seeking to undermine the verdict in this case. I was not present at trial, I was not privy to the evidence that went before the jury, and my personal knowledge of matters medical is at best below average. I am confident that the complexities of the evidence and the conflict between the competing experts was clearly explained and made intelligible to the jury by the highly experienced counsel and judge. Furthermore, Dr Bawa-Garba’s conviction has been considered by far better informed and brighter lawyers and judges than me, and has been upheld as safe. Nor am I calling for an immediate revolution in jury trials on the back of this single emotive case. But I do think this raises provocative questions that we in the system perhaps do not pause to examine.

Maybe it’s simply special pleading. Maybe I’m guilty of rank arrogance in assuming that mere members of the public can’t begin to understand the pressures upon us in the ‘traditional professions‘, and am dismissively oblivious to the extraordinary strains placed upon all manner of people outside of law and medicine, and the ability of juries to digest and empathise. I may well be – subconsciously or otherwise – simply writing out my mitigation, or my excuses, to be relied upon at a later date when my professional competence is held up to scrutiny and found wanting. I don’t know. It’s difficult to write objectively about these things.

But what I think I do know is that, while the virtues of jury trial are drummed home from first-year law school, we shouldn’t be afraid to re-examine our shibboleths, particularly when the underlying concepts – juries of our peers – are stretched and strained. I like to think that the expert presentation of complex criminal cases is sufficient to ensure that juries have all the tools to arrive at informed and just verdicts. But I do have sympathy for the anxiety of those who feel that explanation and experience are too different, too far apart, for the former to be a proper substitute for the latter.