Counsel of Perfection
Wednesday 6 March 2024
In Defence of Jury Trial
Wednesday 28 February 2024
Why I'm not watching The Jury
There are increasingly few places that remain unviolated by TV cameras. Papal conclaves and jury retiring rooms are two that spring to my mind. You may struggle to name that many more. Is it for the best that we don't get to see the horse trading and strong arming that precedes the puffs of white smoke? What about murder verdicts: is it right that we should trust to blind faith that juries faithfully follow judicial directions and bring to bear sober and dispassionate analysis of the competing cases?
You can forget about Vegas it's what goes on in jury rooms that really stays behind. I've been at the Bar for 20 years and involved in literally 100s of trials and can't say with certainty what persuaded the jury in any of them. Like any barrister worth their salt I've obviously wondered what goes on, what gets said and what, in the end, counts.
So on the face of it Channel 4's 'The Jury: Murder Trial' ought to be an absolutely tantalising prospect. But unfortunately I can't bring myself to watch it. A real life murder trial restaged in front of two juries of ordinary people. Both hearing the same evidence. All deliberations filmed. Will they reach the same verdicts? In the absence of cameras filming the Real McCoy isn't this the next best thing? Well no, unfortunately it's not.
In any serious criminal trial there can be moments of real drama. But the purpose of the proceedings is not entertainment and nobody in court is under the illusion that it is. As anyone who has served on a real jury can attest large parts of the criminal trial process can be almost mind-numbingly dull. Try sitting through even 30 minutes of mobile phone cell site schedule evidence, sometimes this can go on for a whole day or even longer.
It is because real lives at stake and the jeopardy is real that attention is maintained. If you filmed that ratings would be through the floor. A criminal trial unfolds to a set sequence. Prosecution opening, prosecution evidence, defence evidence, legal directions, prosecution speech, defence speech, summing up, deliberation. There is a reason for that sequence and it is not entertainment.
I know, without watching the programme, that sequence is not maintained, I know that the jury's opinions on the case are filmed throughout, in a real trial juries are specifically expected to await the end of the summing up before commencing their discussions and deliberations. And there is no director or producer watching on anxiously hoping for controversy and dispute.
12 Angry Men is a classic drama precisely because Reginald Rose sat down and plotted the give and take of the jury room with that end in mind. If those behind the Channel 4 programme were faithfully and absolutely intent on verisimilitude then they would need to gamble upon the experiment making for turgid television. When money and ratings are at stake who is going to take that gamble?
And there's the rub. If this show is to entertain it will need to shock or subvert our hopes and assumptions about juries weighing evidence carefully and objectively. If this show is to reflect real life it has to be bold enough to bore. What it can't do is both and the danger that lies in making good entertainment is doing bad damage to the credibility of a system that works.
Friday 2 February 2024
A paean to pupils and pupillage
To outsiders it may seem that it's our horsehair wigs and Victorian starched collars that are the most unusual thing about the barristers' profession. As a member of that profession I would actually suggest it's our training. We call it pupillage. Securing one can sometimes seem to law graduates as unattainable as the Holy Grail.
It's a peculiar term and for a pupil barrister their job description can seem strangely redolent of childhood. Yet more so for those undertaking work experience with a barrister, who are referred to as mini-pupils. Those instructing pupil barristers were known, until very recently, as pupil masters or pupil mistresses. Now, prosaically and colourlessly, they are known as pupil supervisors. It's a term for which I feel little affection because you master an art or a skill but you supervise a process or a production line.
Periodically it is suggested that trainee barristers should be called, well, trainee barristers. That, of course, is a term that would be familiar to anyone in or out of the profession. It does not however do justice to quite what an education it is to be a pupil barrister. And what a mighty privilege and burden it is to have a pupil.
Most barristers are self-employed and most barristers belong to chambers. We don't earn a salary. We don't have a boss. When we are not in court we work when, how and where we like. If we do our best case prep up a valley without WiFi in Cumbria in the middle of the night that is where and how we will prepare a case.
Preparing cases is a very personal exercise and barristers have to work out what works best for them. But they also need someone to show them how to do it. That is where pupil supervisors come in. In taking on a pupil a supervisor is giving their pupil the most intimate access to their professional life and working practices. If you are an intensely private person or don't enjoy having your working habits scrutinised then pupil supervision is not for you.
It was not that many decades ago that pupils paid their masters or mistresses for the not insubstantial work involved in showing a complete beginner the ropes. Quite rightly that practice, representing as substantial a barrier to the profession as purchasing commissions in the army once did, has fallen into desuetude [that's a lawyer's term]. Pupils are now paid, in fancy commercial chambers substantial six figure sums, in criminal sets rather more modest amounts.
Supervisors, on the other hand, get absolutely nothing for training the next generation of barristers. And there you were thinking all lawyers are venal and grasping, for shame. In fairness that isn't actually true at all because a good pupil can make all the difference between a practice bursting apart at the seams and a well oiled machine of prompt advice and immaculate preparation. I always say a good pupil can halve your workload, although I have heard that a less good one can double it.
It has never, ever felt like work to me. If you care about the profession and you think what it does is important then having a hand in shaping its future custodians feels an almost sacred obligation. Having a pupil certainly keeps you on your toes because your every written and oral interaction has an audience and a witness. And not merely a passive spectator but someone who is looking at your professional conduct as a template for their own.
I had a number of pupil masters all of whom taught me valuable lessons about life at the Bar but the first necessarily always leaves the biggest imprint. I was fortunate that mine was Edward Henry KC who by my estimation is one of the most powerful advocates I've encountered in my 20 years at the Bar. Since parting ways he has led me on a number of occasions most notably in the appeal of Andrew Malkinson. The teacher/pupil dynamic has become one of colleague and collaborator.
If I have had half the effect on any one of my pupils that Edward had on my sense of what a barrister should be and stands for I will count myself a very fortunate person.
Saturday 25 November 2023
Anything you do say may be given in evidence.
Wednesday 20 September 2023
Counsel of Despair
I recently tweeted the following observation:
It’s important to say that the message that there’s no point in reporting sexual offences to the police is a counsel of despair. There are many police officers, lawyers and judges that make it their life’s work to take such allegations seriously and have them tried properly.
And it would be fair to say that, to some readers at least, it was neither an important nor welcome message.
A very niche benefit of Twitter to criminal barristers is that it's a reminder that when you address a jury what you think you're saying, or what you want to say, is not necessarily what the jury are hearing you say. Because juries don't provide feedback other than through their verdicts this is not a reminder often given in court.
For the avoidance of doubt here is a list of things I did not mean in that tweet:
1. That all victims of sexual offences must report to the police.
2. That if victims of sexual offences do not report to the police then they are not victims.
3. That if victims of sexual offences report to the police they are guaranteed to see their attacker convicted.
4. That all police officers are perfect. Or lawyers. Or judges.
5. That I do not think there are very serious problems with the criminal justice system, particularly in relation to sexual offences.
6. That I am oblivious to a prevailing, possibly near universal, view that reporting to the police is a futile act.
When the perception is that justice is very difficult or impossible to achieve it is entirely understandable why a victim of a sexual offence might prefer to heal privately in their own way and in their own time.
The sometimes re-traumatising effect of the criminal justice process is something that is frequently remarked upon and written about. Contending with a forensic challenge to your integrity and credibility when you have been a victim of rape must be, at the very least, a galling experience, if not profoundly upsetting and destabilising.
Acknowledging that reality while reconciling it with the need to maintain a rigorous and fair trial process is something that causes any lawyer of good conscience a great deal of concern and anxiety. An inescapable if harsh fact is that the criminal justice process is not therapy and its direct purpose is not healing. Its purpose is to correctly identify wrongdoers, hold them to account and punish them when required. Another equally difficult concept is that a not guilty verdict or even a decision not to charge does not mean that an offence did not happen, it means that there was insufficient evidence to prove that it did. Obviously when the main evidence comes from and is the person making the complaint that will feel like the most personal of judgements. But a system in which the making of an allegation of itself ensured a conviction would be a dangerous thing to have.
I have not experienced the criminal justice process as a victim of a sexual offence but I have witnessed those that have on scores of occasions. People often ask me how does it feel to defend someone I know is guilty. What I have never been asked is how it feels to sit with a distressed victim in a dilapidated room at court in the aftermath of the acquittal of a man who hours before I had suggested to a jury was a provable rapist. I can tell you how it feels. It feels really bad.
I know what is wrong with the criminal justice process and to some extent I know what is required to fix it. Money plays a very large part in that. But that's not the only part. Where Twitter and other platforms are useful is that you hear tales and narratives that rarely make it into law schools and court rooms. Social media gives victims a voice. I am always listening because without listening you don't hear and if you don't hear you don't learn.
But like a beleaguered doctor hearing about troubling symptoms I would never counsel not getting them looked at. The criminal justice process is not what it should be, too many victims are let down by the police and the courts. But disengagement from the system does not provide alternative recourse. If we don't use the system and make it work there is no other. There are people that care about it and the victims that have no choice but to use it and I should know because I see them every day.
Not every rape that gets reported to the police results in a conviction but no convictions result from rapes that are not reported.
Wednesday 9 August 2023
Just One Of Those Things - Defending Andrew Malkinson
Friday 30 June 2023
The Clink Restaurant at HMP Brixton
Same place different experience. It's a statement of the obvious that two people can be in the same place having a radically different experience. To give a really extreme example imagine a hangman and a condemned man both standing on the gallows. They might occupy the same physical space but their mental space might as well be in different universes.
It's also possible to be the same person in the same place having a radically different experience. The hospital doctor being delivered to their own A&E in an ambulance. The pupil returning to their old school to take up a teaching post. I've had this experience with my 'side hustle' as a TV legal consultant returning, after a very lengthy gap, to a closed Camberwell Green Magistrates' Court when it became the set for Landscapers. Everything completely familiar and utterly strange at the same time.
Yesterday I finally passed through the gates of the last London prison in 20 years of practice that I had never visited, HMP Brixton. Going on a 'Legal' never loses the strangeness of entering the 'secure estate' but the purpose is always the same whatever the type of case might be. The taking of instructions and the giving of advice. There is generally not much time to ponder the purpose of prison itself.
But I have been in prisons for other reasons. In 2009 I saw an extraordinary production of West Side Story in HMP Wandsworth. Pimlico Opera has been putting on prison production for years now and in 2024 will be in HMP Bronzefield: https://grangeparkopera.co.uk/pimlico-opera/. More recently I judged a debate about banning smoking in prisons in HMP Pentonville between a prison team and a visiting team from the Cambridge Union (the home team won and quite deservedly so). This was organised by Vocalise which is an excellent student led initiative run by Gray's Inn, my Inn of Court, taking debating into prisons: https://www.graysinn.org.uk/education/students/career-development/vocalise/.
Artistic expression and persuasion through words are both absolutely commendable and I would suggest essential endeavours to be encouraged within prisons. But in terms of concrete and immediately employable training in skills it's hard to see anything beating The Clink Charity. My reason for visiting HMP Brixton was to have lunch at their excellent restaurant.
It was an outing organised by Dolly Theis, wife of one of my closest friends, and whose passions for rehabilitation and food policy neatly dovetailed under one roof where food is made fresh with many of the ingredients grown in the gardens of other prisons in England & Wales. I'd heard of The Clink before but what I had not realised was that its activities extend far beyond the restaurants at HMP Brixton, HMP High Down near Sutton, and HMP Styal near Manchester Airport.
The group of policy makers, journalists and other interested people I accompanied was addressed by Yvonne Thomas the recently appointed Chief Executive of the charity. She is a persuasive and engaging advocate of its virtues and activities but, as the saying goes, the proof of the pudding was in the eating and in my case that was an impressively towering strawberry baked Alaska. Preceded by a heritage tomato tart and a perfectly cooked duck breast this was serious food, properly made and attractively presented. There was no call or need for patronising platitudes.
The restaurants are dry, the cutlery is plastic and the dire warnings about trying to enter without storing your mobile phone in a locker before entry mean you can be in no doubt that you're in a restaurant with a difference. But the most important difference is that the food is being cooked and served by people who have been presented with a golden opportunity to move on from an anti-social past to find employment in the most social industry of all: hospitality. Also, leaving a restaurant with a clear head where the meat has to be cooked perfectly and where you have given and received from your dining companion undivided attention is all a plus in my book.
For a birthday party with a twist, an unforgettable date night, or a work outing with a difference it can't be beaten. Book here: https://theclinkcharity.org/