Holding court

29 August 2011 - The art of the advocate

It is often forgotten that a criminal case is only as good as the investigation and presentation. The rest is administration which might produce the paperwork but cannot further justice. The news last week was full of the revelation that a junior diplomat at the Libyan Embassy is suspected of being responsible for shooting PC Yvonne Fletcher in 1984. Scotland Yard has kept the case open and is apparently planning to send officers to Libya in the hope of bringing the suspected killer and his alleged accomplices to justice.

Assuming an investigation is possible and extradition is successful, fast forward a few years to the trial at the Old Bailey. Who will be the advocates and what quality of advocate will be available after advocacy assessments and legal aid cuts? Will the new CPS Grading Scheme remove work from quality silks? Will the proposed Quality Assurance Scheme for Advocates (QASA) create uninspiring automatons? Will the latest round of fee cuts sound the death knoll for criminal advocacy as the profession fails to attract stars and loses those it currently has? Advocacy is an art not a method. Jury advocacy has at its heart the human process of persuasion. Effective jury advocacy can inspire a jury to properly evaluate evidence rather than leap to conclusions.

MoJ investment in computers will never replace the people that are needed to present a case properly. As Hunt J said: 'No great circus ever crept into town.' Big cases create a media circus which will still need a headline act to master the evidence, ignore the press and get on with the job of presenting the case for the prosecution or the defence.

These days advocates are both men and women and Crown Court advocates are particularly diverse. People from all walks of life have found themselves on the receiving end of a blunt submission from someone who could not be more personally dissimilar but nonetheless stands in the ranks of the same profession. After the fallout from the Bellfield trial where defence counsel was pilloried for proper presentation of an extremely difficult case, what is really important is for people to recognise that advocacy is a tough job, you have to have the skin of a rhino and most people couldn't do it if they tried.

In the week where the deadline for my CPS grading falls and the client I was defending was acquitted having proved his alibi when witnesses agreed in cross-examination that he was in prison at the time of the alleged offences, I reflected on how important it is for there to be decent advocates who know what they are doing. There are, of course, different types of advocate who have differing effects; from the brilliant junior who will get silk, to the silk who shows everyone how it's done. Equally there are toe-curlingly dreadful advocates (silk or junior). The worst, however, is the paper advocate whose grading form is better than anyone else's but lacks the essential art in court. Pity us all if the rare advocate everyone wants to watch becomes extinct.

These days, with an ever-increasing burden on the advocate in terms of written submissions and form filling, to hear a genuinely skilled advocate (regardless of their grade on paper) is a joy. Quality comes in many forms and should be allowed to flourish. I hope that the diversity of background and personality of great advocates will not be diminished by the QASA and the grading scheme, and that the government realises the importance of investment in people rather than machinery before it is too late.

To quote Richard Du Cann QC: 'The English advocate appearing in international courts... is recognised to be the finest in the world. This should be the aim of all advocates, no matter how small the cause.' In a cause as well known and as complex as the trial of a Libyan on UK soil, Yvonne Fletcher would expect nothing less and neither should we.

23 May 2011 - She's still Gerry from the block

This week I was contacted by a young student just about to start her training contract. With the pupillage deadline passing, this got me thinking back to what it was like when I was a baby barrister.

I will leave it to the readers to decide whether anything has changed. Stretching my memory back 17 years, I realise how lucky I was to have the opportunity to train to become a barrister. I went to Bar School when there was only one in London. About 900 people qualified and there were about 600 places so it was a race to the finish against fellow students. I made 77 applications under the old direct system, received only 12 replies, had four interviews, got through to three second rounds and was offered one place in provincial chambers which I took. Years later I found out that it was not my answers to the questions from a 13-member panel in chambers but, for at least one member, my choice of unusual Hobbs shoes. Such is the rich tapestry of life!

I thought my shoes were lovely but it just shows how staid the Bar can be. I spent the summer walking the Cleveland Way and was told to phone chambers the night before my pupillage was due to start. I had a letter with the name of my pupil master on it but had never met him. I was to arrive at Market Harborough Magistrates' Court on the Monday by 9am. Apparently I passed some sort of test by admitting I didn't know where it was but being confident that I would find it. That is where the rollercoaster of my life at the Bar began.

I boarded the train in plenty of time only to be massively delayed. In the days before Google Maps and with no money to buy a paper map of every county I had wrongly assumed I would have time at the other end to locate a court in a small market town. No such luck. I arrived at the station at 8.55am with no idea where I was meant to be. I called a cab and blurted out my woes. The local cabbie said he would be there ASAP. He had been doing the school run. Little did I know that this meant he had taken a group of children to school in a 16-seat minibus. I arrived in style to a live committal in a multiple murder by poisoning in a Victorian courthouse. Had I been propelled back in time? No. This is how it really was.

My pupil master was being led by James Hunt QC, later to become Hunt J, probably the most impressive and entertaining advocate I will ever see and much missed on the Midland Circuit. As the defendant's wife was being cross-examined in relation to his possession of the poison, I realised I had not just arrived but I had ARRIVED and was witness to the greatest advocacy one could ever see.

The next 12 months passed faster than I could have ever imagined. My first brief came at court on the first day of my second six. Ten minutes after receiving the papers I was in court asking for an injunction. And so it went on. I was paid £250 a month and my rent was £250 a month. Since I had £20K training debt already, things were a little tight. The upside was that I lost three stone, although that meant I had to take another loan to buy smaller suits.

Fortunately on circuit the opportunities for pupils were quite good and with a lucky break in the youth court I had some work. I did the donkey work for my pupil master including schedules in a car, ringing while he was in Portugal on the golf course (as you do). When I accepted an offer of tenancy there was a ceremonial turning round of my desk so I no longer had to face the wall and I have never looked back.

These days I am in London chambers, my briefs arrive by email and I deal with serious cases myself. I have even had my own pupil. For those successful trainees and pupils who feel like rabbits in the headlights, rise to the challenge; although there are always stresses and strains, it is a bizarre but rewarding life. Make sure you know where you're going, take the opportunity to watch the best in the business and don't forget to wear a good pair of shoes!

11 April 2011 - A judge by any other name

Last week I attended the Bar Council's inaugural 'Bar Debate' in the iconic Court One of the Old Bailey under the title 'Bang 'em up Britain: Are we taking a rational approach to sentencing policy?' Chairman of the Bar, Peter Lodder QC, hosted a lively evening.

A diverse panel debated issues of sentencing policy and an invited audience tweeted their views to those followers who tuned in under the hashtag #BarDebate. Hughes LJ, deputy chairman of the sentencing council and vice president of the criminal division, stole the show. Short of spinning in a telephone box and changing his costume he could not have said much more to convince the audience that sentencing is hard and he does it every day. He is undoubtedly a great judge, but is he unique?

It occurred to me that living with judges as part of daily professional life is like living in fear of a troublesome toddler: he's the boss and there's nothing you can do about it. Recently, I read an article by Danny Wallace where he said that having a toddler is like "someone's thrown an Ewok through your window and it's found its way to the redbull in your fridge". Since most judges are men and most men would probably agree they are big children, this got me thinking about 'judgitis'.

'Judgitis' is a common disease of the mind that occurs in the newly appointed and develops greater symptomatic presentation throughout a judicial career. Perfectly normal, friendly and sensible members of the Bar are infected on appointment to a greater or lesser degree. I appear in Crown Courts across two circuits in serious cases in front of many judges. Putting my future career at risk, here are a few stereotypical examples (any reference to a judge you know is entirely unintentional):

'¢ The smug judge who knows who the latest pop group are because he can Google them from his laptop in court and delights in telling the jury (who must not Google).

'¢ The demanding judge who never reads the papers and demands to know what the issues are at every stage of the proceedings so that you tell him what the case is about.

'¢ The new judge, usually from a civil background, who has no real feel for criminal law and treats all advocacy with contempt.

'¢ The new judge, this time from a criminal background, who is so pleased he's not self employed anymore that he's like the cat who's got the cream.

'¢ The unofficially part-time judge who cracks or adjourns everything by lunchtime.

'¢ The bad-tempered judge who reads everything, expects answers to a thousand questions and has no sympathy for human error.

'¢ The inflexible judge who hands out text book sentences regardless of mitigation.

'¢ The bookish judge who micro manages his list.

'¢ The smooth judge who insists on asking witnesses questions just to prove he can do it better than both advocates.

'¢ The gentleman judge who would rather be out hunting/shooting/fishing/sailing etc.

'¢ The lady judge '“ rare but real.

Since the CPR gave them powers of case management, such personalities can border on the insane. Ultimately, many believe that the system is only inefficient as it has too many rules. Fortunately, there are some sensible judges and, as more women come through this system, this can only improve.

Ultimately, keeping to the theme, coming in front of some judges feels like Princess Leia chained to Jabba the Hutt with no hope of escape and where legal submissions are never rescued by Harrison Ford in an open shirt: a horsehair wig does not have the same effect as Leia's bikini. Ultimately, one has to find distractions - like the fact that my iPhone spell checker reminded me to put a capital letter on Ewok proving that those clever guys at Apple are Star Wars freaks and making me conclude that most barristers would rather be in a galaxy far far away.

21 March 2011 - Guilty pleas cannot save us

A recent murder resulted in a 15-year tariff where the best mitigation was the trial which gave the High Court judge a proper understanding of the family circumstances involved. In the absence of categories of murder, sometimes the only way to get your case across is to call your client, not to sign him up on a Goodyear indication. It takes some guts by both defendants and advocates to pursue such a course, and many fold at the thought of double figures, but my decisions are never made on the MOJ's expectations or robing room banter. I recently prosecuted a multiple rape of a ten-year-old girl with learning difficulties by her step father.

The rules say he can have a shorter sentence if he pleads guilty but he won't do that; either because he is not guilty or because he doesn't want to go to prison or be on the sex offenders register. He also knows that whether he pleads guilty or is convicted, if the judge thinks he's dangerous (which, let's face it, he is, if he likes raping children with special needs) then even on a guilty plea he will be given an IPP sentence where he will have to apply to be released and no one can guarantee he will ever be let out.

There is a specific allegation of rape on one occasion when there is also computer evidence that he has shown her pornographic material and his semen is found in her knickers. A case where the MOJ might think there would be a guilty plea but we know different. We break off the evidence every 20 minutes for the girl to have a rest. The police officer asking the questions on the DVD has failed to ask any detail about her assertion that he'd 'done it before'.

This means that pretty much everything the girl says about other occasions is new. She needs a speech therapist to help her communicate. The jury get confused and we are all exhausted. Later he is acquitted of other occasions and convicted of the one time that there is other evidence. Some would argue that it was worth him having a trial as the result means that the judge has to sentence him as if he only did it once. The trial takes six days. I worked it out once that, after expenses, tax and child cares, prosecuting a 'standard' three-day rape I make £80 profit.

I travel to this rural court by car. It takes two hours each way. At some courts they don't pay travel. At this court there are no lunch facilities. Obviously this is a grim case but barristers have good separation abilities: as members of the public are shocked by such cases, I wonder why we can't do food like the French? Ultimately, the system relies on good will and the fact that I enjoy being a barrister. To save money on committals, for which I know solicitors are only paid a few hundred pounds, there is a scheme currently being tested in Chelmsford aimed at improving efficiency in regard to guilty plea cases.

In Chelmsford, two dedicated CPS lawyers look at all section 51 and either/or cases before they are heard at the magistrates' court to decide if they think the cases are likely to be a guilty plea. If so, then they ask the defence if they wish to enter an early guilty plea. The case is then committed on the advance disclosure papers. Statistics have apparently shown that about 50 per cent of defendants have opted into the new scheme and then about 80 per cent or 90 per cent pleaded guilty at the Crown Court. This obsession with statistics puts prosecutors under pressure to accept guilty pleas to lesser offences and means that pleas are entered without full evidence. Logically the stats must also mean that ten per cent to 20 per cent then do not plead guilty as they have indicated.

My instinct indicates that neither victims nor defendants are properly represented by such procedures. In some cases, offers of guilty pleas are rejected. Some time ago I defended a man for child abduction. He had apprehended a boy who had stabbed his son. The stabber was not prosecuted. The man was arrested at the hospital where his son's wounds were being treated. At court the Crown rejected the man's offer to plead guilty to a common assault on the basis that he poked the stabber with a torch to make him get into the car to report the matter to police. I represented him on legal aid.

Under new regulations he would have to pay for representation or represent himself. The trial took four days. The stabber gave evidence and lied about the stabbing but confirmed he was unharmed as he was 'abducted' from the shops by the man. Legal argument established this was not a lawful citizen's arrest as the stabbing was not ongoing. The defendant decided to ignore the law and take his chances with the jury's sympathy. He was unanimously acquitted and went home to his family. So did I, although mine are 100 miles from this court centre and I hurl myself home to emails and voicemails about other cases, the cat's food and my son's rugby kit! I move on to an historic rape of a child by her step father 30 years ago.

He has also decided not to plead guilty, taking his chance that she won't be believed as she is now a prostitute. One of her pre-recorded DVDs has been mislaid so she gives evidence from scratch. All in court deal with these cases without emotion, which is quite bizarre considering. He is convicted. She cries. I go home and put the washing on, with no credit for plea.