Atticus Finch is not enough

Why the “great lawyer” theory of justice is misleading.

President Obama has provided an introduction to a special television showing of To Kill A Mockingbird. In one way, this gesture shows great taste and political savvy: the story of Atticus Finch’s battle against racial injustice is heart-lifting and remains of potent relevance today. 

Yet To Kill A Mockingbird is a story of legal failure on a systemic scale.

Finch’s defence is almost inevitably unsuccessful, and an evidently innocent man is convicted. Nothing – not even someone as attractive and righteous as Finch – can save Tom Robinson: the criminal justice system was so dysfunctional that a courageous and incisive lawyer is effectively bound to fail.

It remains a mystery why this great book and film encourages anyone to be a lawyer, so horrific are the defeatist implications of the tale for the legal system.

But the story continues its hold over popular culture. Many people, when asked who they would select as the greatest lawyer in fiction, would still choose the brave but ultimately ineffectual Finch. The reason for this is simple: Finch is a great man who happens to be is needed for a good justice system than for lawyers and their clients to be nicer people. 

In reality, few cases depend entirely on the performance of a single lawyer: it is how the lawyers on both sides and the court system work together which ensures whether the interests of justice are served.  And in criminal cases there are the wider issues of the role of the police and of the probation and prison services.  Criminal justice is complex, and so just outcomes depend on the efficient interaction of many professionals and on the resources available to them.  Injustice is what happens when this system fails or is improperly resourced.  But few politicians and their voters want to grasp at the problems of the justice system: instead, yet more laws will be passed to be enforced with less money.

And so we have a politician seeking re-election commending Finch on a television special, and everyone will then be inspired by watching a great man lose his case. If only every lawyer was like Finch, the viewers will think, and the world would be such a better place.  And the criminal justice system will carry on failing, just as before.

 

David Allen Green is legal correspondent of the New Statesman

Atticus Finch and Tom Robinson in court. Photo: Rex Features

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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The trouble with a second Brexit referendum

A new vote risks coming too soon for Remainers. But there is an alternative. 

In any given week, a senior political figure will call for a second Brexit referendum (the most recent being David Miliband). It's not hard to see why. EU withdrawal risks proving an act of political and economic self-harm and Leave's victory was narrow (52-48). Had Remain won by a similar margin, the Brexiteers would have immediately demanded a re-run. 

But the obstacles to another vote are significant. Though only 52 per cent backed Brexit, a far larger number (c. 65 per cent) believe the result should be respected. No major party currently supports a second referendum and time is short.

Even if Remainers succeed in securing a vote, it risks being lost. As Theresa May learned to her cost, electorates have a habit of punishing those who force them to polls. "It would simply be too risky," a senior Labour MP told me, citing one definition of insanity: doing the same thing and expecting a different result. Were a second referendum lost, any hope of blocking Brexit, or even softening it, would be ended. 

The vote, as some Remainers note, would also come at the wrong moment. By 2018/19, the UK will, at best, have finalised its divorce terms. A new trade agreement with the EU will take far longer to conclude. Thus, the Brexiteers would be free to paint a false picture of the UK's future relationship. "It would be another half-baked, ill-informed campaign," a Labour MP told me. 

For this reason, as I write in my column this week, an increasing number of Remainers are attracted to an alternative strategy. After a lengthy transition, they argue, voters should be offered a choice between a new EU trade deal and re-entry under Article 49 of the Lisbon Treaty. By the mid-2020s, Remainers calculate, the risks of Brexit will be clearer and the original referendum will be a distant memory. The proviso, they add, is that the EU would have to allow the UK re-entry on its existing membership terms (rather than ending its opt-outs from the euro and the border-free Schengen Area). 

Rather than publicly proposing this plan, MPs are wisely keeping their counsel. As they know, those who hope to overturn the Brexit result must first be seen to respect it. 

George Eaton is political editor of the New Statesman.