Merry Christmas, Joyeux Noël, Buon Natale, Frohe Weihnachten - It's all the same!

Last year I spent Christmas in Berlin with my German wife at her mother’s together with my English mother, Italian step-father and French brother-in-law. At one point during dinner all four languages were being spoken around the table with only my mother able to speak them all. Fortunately all was harmony and peace without any of the myriad family tensions that can turn a merry Christmas into a merry hell. But that didn’t stop me from marvelling at my mother’s linguistic dexterity. 

When your own family is the EU in microcosm it is hard not to look anxiously at the elephant trap that the ignorant and the foolish seem so intent on dragging Britain into. The world has become a very complicated place and as its complexity grows so too does the danger from clownish demagogues like Donald Trump and Nigel Farage quick to appeal to fear and a basic belief that life is and can be binary: good or bad. 

A former general wrote recently about the fall of Sangin back into the clutches of the Taliban. The futility of British military endeavour and loss there was writ large. There are many reasons that underlay Britain’s Afghan ‘adventure’, very few of them commendable. One of them was the apparently unending desire of Britain’s politicians to assert global importance through the projection of military power. Instead British military exploits of the last decade have served only to highlight how powerless Britain has become. This mania for interfering in the affairs of far off countries belies an intense ambivalence and anxiety about engagement with our nearest neighbours. 

Throughout this period expenditure on the Foreign Office has withered while in schools the number of children studying foreign languages has plummeted. This cultural and linguistic isolation is anything but splendid. When all outside is sturm und drang of course it is tempting to bolt the door shut and pull the covers over your head but then your world, inevitably, becomes the four walls around you. As someone who is in the midst of trying to remember when possessive pronouns take the accusative or dative case I feel the appeal of saying what is mine is mine and what is yours is dein, deine or deinem. 

There are of course competing economic arguments about the benefit to Britain of European Union membership and I cannot profess a great grasp of them but the symbolic and emotional arguments do resonate with me. For as long as we treat the EU like those weird cousins we visit once a year at Christmas only to condescend to them with our big city ways we will never truly benefit from membership nor play the leading role that is required and expected of us. As with the Scottish referendum this is not, anyway, just about money. 

It is so embarrassing watching David Cameron come back from European visits claiming to have obtained some hard won ‘concession’ to further the pantomime of the EU earning his support for continued membership. This is a referendum that should not be happening and it is a question that does not need asking. What is the serious thoughtful alternative to EU membership? The answer is that there isn’t one but a little Englander’s fantasy of turning the clock back. 

Britain is a great country but only when it is inclusive and looking to be included not when it shrinks into itself like a snail into its shell. Of course being European is difficult how could it be otherwise with that much shared history and that little shared language but only simpletons think the world is a simple place.

Wonder + Existence = Life

When was the last time that you truly marvelled at something? Have that in mind while I tell you something about the beautiful Mömpelgarder Altar that can be found in the Kunsthistorisches Museum in Vienna, one of the world’s greatest treasure-houses. It is a three part creation dating from 1540, containing the most panels of any altarpiece in the world it was intended to be a pictorial guide to the most important parts of Christian scripture. Most significantly the writing is in German not Latin so that the words and not just the pictures could be understood by anyone who could read. 

Martin Luther would have been horrified to learn that what he instigated, namely making scripture intelligible to the masses, set in train a very slow rise in secularism. Much of religion’s power lies in its mystery. This is something the Orthodox churches have maintained by having their priests officiate from behind an iconostasis so that the priest is completely hidden from the congregation. Once you know and understand what the priest is reading from the big book you start to question and challenge. If the priest gives an unconvincing answer to your queries your faith is shaken and eventually you form the view that maybe religion doesn’t have all, or even any, answers. 

The Enlightenment in the 18th century took a huge intellectual broom to the cobwebs of unquestioned religious belief leaving us with an inheritance of, largely healthy, scepticism. Events like the Hajj or the Kumbh Mela or indeed the Sistine Chapel are still capable of inspiring wonder but perhaps more by virtue of the extraordinary spectacle of countless humans engaged in the same endeavour in the same place at the same time or as an example of the zenith of man’s artistic capacity.

Richard Dawkins is in many respects the 21st century’s secular answer to Martin Luther. Someone intent on promulgating to the masses as accessibly as possible the rational supremacy of atheism over the superstition ridden mumbo jumbo of religion and cult. However Dawkins’ naked contempt for the faithful reveals a remarkable blind spot in his understanding and appreciation of human nature. Man longs for wonder and a sense of the numinous. Religion has since the beginning codified, structured and mediated this longing. But despite this longing organised religion has, certainly in Britain at least, increasingly losing its grip on the public’s imagination, Dawkins or not. 

But it would be a terrible mistake to determine that because we do not go to church that we have lost our capacity, still more our need, for wonder. The modern world with its screens and its flashy distractions very often obscures rather than reveals what is wonderful about existence. One of the real blessings that children confer is that they can reinvigorate our capacity for wonder. The wide eyes of a baby remind us of a time in our lives when every sight and sound was new and surprising. 

What we feel when we wonder is a sense that we are not the centre of the universe and that there are things that we do not understand but that this can be a source of joy not a reason to fear. Think of the pleasure inherent in a good magic trick, that simple pleasure is a momentary transportation back to the wonder of childhood. When we wonder we are taken outside of ourselves and this is a necessary to antidote to harmful introspection. 

That money does not buy happiness is one of the most familiar truisms of all but it is also the case that there is no wonder in a £50 note. Taking time for wonder costs nothing and paying attention to the wonderful requires no money. We don’t know it all but what a terrible world it would be if we did.

Delicate Flowers & Reasons to Live: Why IS will not be defeated by bomb & bullet.

When charismatic churches are on the look out for new recruits they energetically love bomb them into submission.  This practice involves the congregation enhancing the newcomer’s sense of self-worth making them feel better about themselves thus drawing them inexorably into the circle.  In a much less deliberate way football clubs engender among their supporters a sense of belonging but the analogy is in some respects a weak one.  Football clubs promise no more than the shared joy and sorrow of wins and losses.  They are bigger than the self but not universally bigger.  It is in this respect that there is unbridgeable divide between religious and secular communion.

Religiously motivated terrorism is the opposite of love bombing, it is, literally, hate bombing.  When gunmen rampage through Paris or Beirut or Sousse indiscriminately slaughtering the young for the sin of simply enjoying company, music and sport they send a simple message: the power of our belief and superiority is vindicated by your destruction.  Affirming power through life is undramatic often uncelebrated and, at its essence, defined by selflessness.  Declaring power through death, by contrast, is easy, spectacular and the most selfish act man is capable of.

We are better than the murderously misguided young men who drenched Paris in blood days ago but that is only because we make a choice and it is a choice that has to be made repeatedly.  Do we exhibit the supremacy of civilisation over barbarism by avenging every dead Parisian tenfold or even hundredfold?  Are those for whom IS holds a dark allure or the promise of something more than the dismal reality of their existence deterred or emboldened by retaliation?  Are the escalation of air strikes actually prompted by any strategy at all or are they simply a show of strength for voters and the media?

Nobody would dispute that the first responsibility of a government is security.   Only a fool would agitate against any action a government took that demonstrably increased security but as citizens we are entitled to an explanation of those actions.  Furthermore when those actions impinge upon our liberties or, much more seriously, the lives of others the government should be prepared to submit itself to the most searching scrutiny.

Dropping bombs is easy and it is dramatic: a visible action undertaken far away.  Determining why young people could countenance let alone act upon a desire to abandon families, friends, schools and jobs in a stable functioning democracy to join a murderous movement of misery hellbent on returning the world to the Middle Ages is far harder and is not the stuff of headlines.  Yet killing the allure of IS will surely not be achieved by the sword but by sowing more fertile seeds in those young minds.

Meanwhile what are we the private citizens to do?  The most useful thing we can do is prevail upon our governments not to shed blood like a butcher in anger but only, when absolutely necessary, like a surgeon cutting out a tumour.  We need also to realise that the merits of civilisation can not be detonated in a display of shock and awe.   Instead civilisation is a delicate flower that has taken centuries to take root and flourish and it must never be forgotten that some of its earliest roots spring from the very part of the world that vexes us now.  If we focus our energies and hearts on propagating civilisation then we will not succumb to the terrorists’ provocation.  What young man would choose death if his life was really worth living?

Games, Trickery & Getting Off - Sensible & Silly Criticisms

I don’t know if you and your colleagues have ever been accused of being weird, useless and conniving in your professional endeavours.  If you have you will know that it can be at once both a wounding and provoking experience.

On 4th November 2015 the BBC website published an article entitled: Crown courts in England and Wales ‘chaotic and archaic’.  This summarised a report published by the Criminal Justice Alliance.

I will set out the charges below:

The Crown court system is ‘structured mayhem’

Many victims and witnesses felt frustrated that they had ‘little voice within the courtroom’

Wigs and gowns created a sense of ‘other-wordliness’

Language and rules were ‘elaborate, ritualised and – in many respects – archaic’

Delays caused ‘frustration, anxiety and inconvenience’

Jenny, a fraud trial defendant, said ‘There’s just bundles of paper, box files overflowing under desks.  And it makes you think: well if there’s all this unorganised stuff everywhere, how organised are people really? That’s important paperwork – why is it just being thrown around?’

Others said the system was about ‘trickery’, ‘getting off’ and proceedings were a ‘big game’

Julia, a witness, said ‘It’s just very frightening, very daunting when you walk in and you see all the chairs and the benches and everything set out and then you see all these people with their wigs on and the gowns.  It’s just very, very frightening.’

Ron, a witness, said ‘Lawyers should remember: it’s not a game.  They’re playing with people’s emotions and people’s lives.’

Recommendations made include:

- A review of wigs, gowns and other ‘other-worldly’ court formalities by the Lord Chief Justice and court services

- Greater emphasis on lawyers and judges to use ‘plain English’ and explain technical terms to defendants, witnesses and victims

- The appointment of an officer in the court administrative office responsible for monitoring delays and communicating with court users

- Using the criminal dock only when necessary for safety reasons and instead seating defendants with their lawyers as the ‘norm’

This is in many respects a very frustrating report because some of its observations are acute and helpful and chime with the experience of professionals.  Chronic underfunding of the Criminal Justice System is causing delay and does hamper communication with victims and witnesses.  If you have been a victim of or witness to crime you should expect to know when you will  be giving evidence and not told it could be on any day in a two week window at the end of which you are told to make yourself available for another window in 6 to 8 months’ time.  This is an unacceptable way of treating often vulnerable and traumatised people and nothing could be more calculated to squander goodwill and respect for the CJS.  There should already be people in court offices capable of communicating dates and developments to court users.

Abolition of the dock is an interesting and sensible proposal and it is one that wins favour with many lawyers.  The costs of seating defendants in docks has not been calculated but it is likely to be astronomical.  When a defendant is on bail no jailer would be required in court if the defendant sat next to his or her lawyer.  Furthermore communication between lawyers and their clients is hardly facilitated by hurried mutterings through a glass partition.

I believe that it can’t be right that defendants should be required to sit in a glass box as spectators at their own trial.  In the ‘old’ 19th century courts at the Old Bailey the defendant sits on a dais surrounded by fancy carved finials slap bang in the middle of the court.  There is a very interesting article to be written about courtroom architecture and its symbolism.  In those same courts barristers face the jury box emphasising the historic importance of the advocate and eye contact with jurors.  Now the Bar and the judge face each other with the judge, as ever was, omnisciently looking down on all.  The sooner defendants sit with their lawyers the better.

This however is where the sensible and well founded suggestions and recommendations begin to peter out.  Wigs and gowns.  Of course they look extraordinary.  Of course nobody in their right mind would propose them now.  But are they really what alienates court users?  The main reason we still wear them is tradition which is the main reason anything happens the way it does in this country.  Where tradition is harmful, female genital mutilation being an extreme example, it should be ended immediately and without discussion.  Where however tradition is in reality harmless then what is the purpose of doing away with it?

This complaint is really about formality.  It is possible to envisage a trial process where all parties sit round a  circular table wearing tracksuits and in which an entrant into the room could not distinguish judge from barrister, from witness, from juror, from usher, from defendant.  Would that in reality reduce the anxiety of witnesses and defendants or is their anxiety a natural reaction to matters personal to them being ventilated in an open forum with potentially serious life changing consequences?  If it is the latter then altering appearance and the courtroom architecture will reduce their anxiety not at all.

Nobody complains that police officers wear uniforms when investigating criminal offences and wigs and gowns are just that: a uniform.  As a symbol of our profession they are known around the world and unusual though they may look it can hardly be said that they are intrinsically intimidating.

As to the complaint of ‘other-worldliness’ the courtroom is a different place.  But it is a different place in the way that an operating theatre is a different place.  The people within it are still just people doing their job.  Advocates and judges that use long words are bad at their job and bad for the Criminal Justice System.  Good advocates and judges know this.  If witnesses and juries can’t understand what you’re saying then you are not persuading and if you are not persuading you are failing.  I learnt this lesson as a pupil when I asked a teacher witness who made a note about a classroom assault whether it was contemporaneous.  The witness replied: What does contempt your anus mean?  And every barrister knows that eliciting the answer: What’s a demeanour? When asking what someone’s demeanour was like is the best lesson in using words of one syllable.

I will acknowledge that some aspects of court procedure are archaic and needlessly so.  A theologian’s library of holy books on the usher’s desk has always struck me as a very bizarre sight and it is unclear to me why judges can’t simply ask witnesses if they promise to tell the truth with a warning that imprisonment a possible consequence of failing to do so.  The usher’s oath on jury retirement does seem particularly outmoded: I swear by Almighty God that I will keep this jury in some private and convenient place.  I will not suffer anyone to speak to them nor will I speak to them myself concerning the trial this day unless it be to ask them if they are agreed on their verdict.

Complaints about tidiness of paperwork seem especially trivial and pointless.  Data protection is an extremely important aspect of a barrister’s professional obligations with swingeing fines imposed by the Information Commissioners, as exemplified by this £200,000 penalty imposed on the CPS for loss of laptops, however that can’t legitimise a moan about how beautifully counsel’s bundles are maintained during the course of a trial.  There is no evidence at all that a tidy desk = a tidy mind and some of the most brilliant people of all operate in organised chaos.  I hasten to add this is not a plea in mitigation…

But the complaint that really rankles is the one that alleges trickery, games and a focus on getting people off.  If you are instructed to defend in criminal proceedings it is axiomatic that you must do so to the best of your skill and ability.  Game playing and trickery is not merely unprofessional and subject to disciplinary sanction it could, in some circumstances, be illegal.  The whole point of an adversarial court based process is that evidence is tested.  Being tested in any forum is unlikely to be a pleasant experience but when a defendant’s liberty and reputation is at stake a degree of rigour about the process is essential.

As I have said this report contains some sensible proposals but it is sad that its legitimacy is self-sabotaged by unparticularised allegations about sharp practice and professional impropriety.  Barristers are trained to focus on detail and not rely on sweeping and unfounded generalisations.  It would help if the Criminal Justice Alliance had followed suit.

Fast Times: Slow Living

Anyone who has kept an eye on Jeremy Corbyn’s first few weeks in office can’t fail to have noticed that he has attracted some criticism and censure.  It seems for some that he can do no right with his allegedly questionable friendships, his alleged romantic history, his alleged economic recklessness and, of course, his alleged lack of support for the feminist cause demonstrated by his top shadow appointments.

Indeed in the early morning of his first full day in office he was pursued relentlessly by a Sky News camera crew taking him to task on just that last point.  Many commentators were quick to upbraid his supposed rudeness and aloofness in stonewalling the camera crew.  The message appeared to be that this is 2015 and the Leader of Her Majesty’s Opposition should be ready, willing and able at any moment to contend with a TV presenter’s questions.

It is reported that Mr Corbyn has historically been a cyclist and has never driven and that he intended to eschew an official car.  Such doorstepping may have caused him to question his resolve on that point.  Ensconced in a Merc no politician can be criticised for failing to answer questions, they probably can’t even hear them and, anyway, a car is a private place.

It remains to be seen whether Mr Corbyn’s stated desire to do politics differently will endure and succeed but I strongly feel that his silence was not rudeness but simply an assertion that while walking in the street he was under no obligation or duty to anyone to answer questions.

A 24 hour ‘always on’ rolling news media ensures that there is an insatiable appetite for stories and if they are slow to emerge then the media will inflate and in extremis create those stories.  It is not fair or right to expect politicians to speak to the media at any moment of the day or night except perhaps about matters relating to national security.  It is not fair on them and it is not fair on us.

I want politicians to have the time to think; I want their responses to be considered and informed.  I want them to have a private life that is separate to their public life.  Many of us work on our commutes and indeed there was a recent European Court of Justice ruling that in certain circumstances commuting IS work.  However there is a huge difference between choosing to work (discreetly) on a brief on the train and having to do so.  Even the most industrious barrister would not attempt to work whilst walking to court.

In that regard I actually have a great deal of sympathy for Mr Corbyn and just as the 24/7 culture damages politicians and their effectiveness so it does us.  We need to work to live not live to work even though all the trends of modernity militate against us achieving that.  A wonderful movement developed in Piedmont in Northern Italy in the mid-80s, Slow Food International, agitates languorously against the joylessness and lack of fulfillment fast food brings.

We are so much more than our jobs, a truth that men and barristers in particular often struggle to grasp, but when we do not develop ourselves away from work we and those around us suffer as, eventually, does our work.  Mr Corbyn, like all politicians, needs and deserves time to be a person not just a politician.

We could all do with living slower lives making more space and time for experiences outside the workplace.  This about sums it up:

The Butcher, the Baker and the Barrister: The way things were they will not be.

 

In July of this year an exceptionally fine pair of candlesticks called the Cremorne Candelabra sold at Christie’s for just under a million pounds.  Manufactured by John Wakelin and William Taylor in 1790 those two craftsman could not have imagined that 225 years later these objects would be valued solely for their form and not at all for their function.  There were three men in the tub in the nursery rhyme but the candlestick maker was long ago consigned to oblivion by the unforgiving and uncaring march of progress and technology.  A question well worth pondering is whether the barrister is destined to go the same way.

 

Absolutely rightly the ever more agonised negotiations between the legal professions and the Ministry of Justice have focussed on public money and the sufficiency of its supply in order to guarantee the proper functioning of the justice system.  Lawyers insist that the tipping point is long since past whereby inadequate funding means justice simply can’t and won’t be done.  Civil servants and politicians on the other hand hope and believe that more cuts can be made while keeping some semblance of a justice show on the road.  If scandal, media and public outrage can be avoided then the axe can keep on falling regardless of the real consequences.

 

However this piece is not about money and the need for more of it to keep justice alive.  That goes without saying and I have said it before, repeatedly.  Instead this is about change, the change we see, the change we ignore, the change we embrace and the change we fear.  It is a remarkable paradox that almost all politicians stand on change platforms when running for public office and yet within our private lives change is so often alarming and threatening.  What of course politicians are really selling is a belief in beneficial change, not disconcerting and uncomfortable disruption.  However this ignores that almost all change, whether for good or ill, involves a period of unsettling destabilisation.  Better the devil you know is the unconscious mantra for many, many people.

 

Every barrister in England & Wales must belong to an Inn of Court.  Only four remain, geographically concentrated they cherish their unique identities and traditions but to an outsider they are identical repositories of Hogwartian ritual and arcanum.  This connectedness to the past is comforting to many barristers whose day jobs may involve far too complete an immersion in the horrors of the modern world.  But even stupefied by the Port at the end of an Inn dinner it is impossible to ignore that pressures are being exerted on the Bar and the Inns that are far greater than whether Michael Gove will relent on two tier contracts.

 

I am amongst the last generation of barristers that, like barristers since the dawn of the Bar, undertook legal research in libraries.  As a pupil in 2004 I vividly recall queues for the photocopiers and strict instructions about magnification and not cutting off margins and page numbers.  Finding a case on point was a test of resourcefulness and diligence.  Yet now in 2015 Inner Temple is the first Inn to go public with its admission that library usage has plummeted.  Plans are afoot to reduce the library’s size and convert the space into revenue generating meeting rooms. Not surprisingly this has angered and dismayed a number of barristers who recoil at any encroachment on the Inn's learning heart.

 

Now legal research is so easily achieved via online databases that the Court of Appeal has had to enjoin lawyers not to inundate judges with every case ever heard on a particular point.  A very obvious consequence of the diminishing importance of the Inns’ libraries is that the necessity for the proximity of barristers’ chambers to the Inns is over.  How long will tradition impel barristers to feel that they must pay over the odds for the prestige of a Holborn address?

 

The concept of a virtual chambers is already well established, a more interesting question is how long bricks and mortar will endure.  The hard copy law reports in my chambers long ago stopped being an essential resource and instead became immensely expensive wallpaper.  Other self-employed tradespeople like plumbers do not clock off at the end of the day and return to a building full of other plumbers.  Why will barristers continue to do this when a chambers is just a seriously expensive place to store pointless paper briefs and conduct meetings?

 

Of course the pooling of expertise and the training and apprenticeship provided by pupillage is not something that will ever be replicated in any meaningful way virtually but the changes to our working practices, embraced or not, may inexorably lead to a dissolution of the camaraderie and fellowship provided by chambers.

Technology has long ago moved on from the manufacturing industries and made encroachments into the services.  Algorithms underlie most of the trading on the world’s stock markets.  Only the doltish or the naïve could assume that legal services will enjoy any immunity from this process. 

 

Of reassurance to barristers though is the fact that as long as oral advocates are called for it will be a long time before machines and computers are advanced enough to take over.  If barristers wish to thrive though they need to ensure that they are as unencumbered as possible.  Buildings, staff and administration are all expensive; are they necessary?  A principal virtue of self-employment should be nimbleness and agility.  If barristers voluntarily weigh themselves down they can only blame themselves when they sink not swim. 

 

By way of contrast the modern world poses a real threat to the traditional work of solicitors.  Competent and literate clients are capable of drafting their own statements, gathering their own evidence and even serving their own documents.  The importance of the ‘paperwork’ side of legal practice as a professional specialism is diminishing every day.  As long as oral advocacy remains a feature of the justice system the importance of the ‘talking’ side will be preserved.  When the tools of your trade are your mouth and your brain why are you paying through the nose to imprison them in a fancy building in the Temple?

 

I am old enough but still young enough to share the anxieties of the leaders of the Bar while feeling those of pupils.  The coming death of the Bar has been coming for a very long time and, truth be told, will carry on coming for many more years.  Young barristers are resilient and resourceful; they know the Bar they will practise at may not, should not even, look anything like that which Silks know and love.

 

The next decade will see some very significant changes.  I predict that the Advocacy Training Council will become a very much more powerful organisation and if the Inns are to maintain their traditional role as gatekeepers to oral advocacy they will have to consider opening their doors to all advocates whatever their job title.

 

Like the Cremorne Candelabra if the Bar wants to avoid becoming no more than an expensive and decorative antique it will constantly have to reassert that its function is vital.  I am cautiously optimistic that it will succeed and, thankfully, you can't put a wig on a computer.

 

Tied up in knots and choked by choice - Why less is more.

I have just moved house.  Notorious for inclusion among the three Ds of devastating stress: Divorce, Death and Decamping.  It must be a near universal experience of a house move to be horrified at the sheer quantity of stuff that has been accumulated over the years.  Perhaps there are ascetics who have forsworn belongings who manage to make moves by bus rather than groaning pantechnicon and squadron of burly men.  If there are I’m not sure they and I would have much in common.

 

A paradox in my own approach to life is that I pride myself on an ability to turn up at a departure gate with all necessary belongings in a plastic bag.  Yet in my permanent life I am dwarfed by mountains of pointless detritus.  I have twelve ‘fancy’ waistcoats for wearing at weddings.  This is not normal, it is not healthy and it is not OK.  I need a motto or slogan for my life, a Max’s maxim - Nobody’s looking at you mate.

This is not exaggeration, as this inadvertent experiment I undertook demonstrates.  The name Karl Stefanovic is unlikely to mean much to most Brits but he is an Australian news anchor who wore the same suit on screen  for a year to expose the contrast in scrutiny of men’s and women’s appearance. 

In my own tiny recreation of this endeavour I have worn this tie to work every day for the last three months:

It is a plain blue handmade tie from Paris.  I did not buy it I inherited it.  It is from a manufacturer so discreet there is no mention of it on the internet.  It is a very nice tie and was no doubt very expensive.  My reasoning was if you’re going to wear one thing it best be a very nice thing.

For three months I have got up and have not had to give a second’s thought to my choice of neckwear for that day.  It has been one less worry at a very worrying time.  You of course may feel that a normal person  would hardly have to worry about what tie they were going to put on.  But, as I have already said, I am not normal.

Now that I have been reunited with what my wife determinedly believes is the effluvia of my past rather than a jointly owned cornucopia of delights I can once again choose what message I wish to convey to the world via a scrap of cloth about my neck.

It is not an easy choice because this is my tie collection:

 
As all barristers know there some situations that are so grave that there is no mitigation so the only defence I will raise is that I inherited the vast majority of these, of this insane profusion of peacockery. 

Never have I understood better that if I want to tell the world something I can do it with my mouth, or even better my actions, rather than through some obscure semaphore of silk.  Not one single person remarked on the monotony of my tie, nobody decried my lack of imagination,  in short nobody cared.
 

 

When Gandhi died, a barrister who knew a thing or two about travelling light through life, these were all the possessions he owned in the world:

 

The moral of the story is: little but lovely.

How to be a witness: Good Looks & Fleeting Glances

We do not teach children to be witnesses.  It is not surprising therefore that the quality of witnesses varies enormously.  As patients are to doctors so witnesses are to barristers and barristers will habitually refer to good or bad witnesses.  A good witness is, first and foremost, truthful.  A good witness is clear.  A good witness is reasonable.  A good witness is accurate.

The purpose of this blog is to help you be a good witness.  This is not by way of coaching which is, quite rightly, completely forbidden.  Instead this is intended to be a general survey of matters you may want to (try to) bear in mind if you are ever unfortunate enough to be a victim of or witness to a crime.

I was prompted to write this by a recent random attack on a person close to me who was alone at night in the street.  This occurred without warning, was unprovoked and without any apparent motive.  Mercifully no injury was inflicted and the assault was short lived but great distress and anxiety were unsurprisingly caused.  As I reflected on this it occurred to me that in all the time I had known this person we had never had a discussion about what makes a good witness.

As a teenager I underwent First Aid training although have fortunately never had to deploy the skills I learnt and hope I never have to but it is a source of comfort to me that I have this essential background knowledge.  I hope that what I set out here can remain in your background knowledge, ideally never needing to see the light of day.

If you have been unlucky enough to be the victim of violent crime you will be sadly familiar with the fight or flight response triggered by the massive adrenaline rush that accompanies such incidents.  This response is very useful for the immediate preservation of life however it is unfortunately also what causes many people to be terrible witnesses.  Panic and clear thinking don’t go hand in hand and while it is easy for me typing this in comfort to say don’t be a rabbit in the headlights, if you stare into them you will be blinded and will make a poor witness.

A remarkable experience many criminal barristers will be familiar with is reading witness statements containing descriptions of robbers or assailants, sometimes quite full descriptions, which when compared with CCTV footage of the incident are completely at odds with the appearance and clothing actually worn.  It is an experience that better than any demonstrates the appalling danger of injustice posed by the honest but mistaken witness.  Such witnesses can project the powerful persuasion of a conspicuous truth teller while inflicting worse damage to the fairness of a trial than the most skilful dissembler.  You do not want to be one of these witnesses.

The case of Turnbull paved the way for recognition of the dangers that identification evidence presents and there is now a significant body of statute and case law that sets out the safeguards that must be in place before such evidence is allowed before the court, a precis can be found here.

But this is no law lecture instead here is some simple advice to ensure that you will never be an honest but mistaken witness:

1. Panic - Stop panicking; easily said but if you can maintain some focus your observations will be fuller and much more likely to be accurate.
2. DNA - If you are a victim of an assault and you have to defend yourself a grasp of your assailant’s hair or a scraping of their skin from under your nails will yield invaluable DNA evidence that can prove presence at the scene (this is obviously last resort stuff and if you can safely make good your escape without getting physical you should do so).
3. Description - You will be asked for this the moment you call the police, it goes without saying the more the better.  In our day to day lives we are not often called upon to provide full descriptions and it is astonishing how unobservant we can be.  As a witness you want to be using your full attention.  This is what the police will want: gender; ethnicity; age; height; build; hair colour & style; distinguishing features (tattoos, scars etc.); and clothing.
4. Quality – In disputed identification cases the quality of a witness’ observation of the assailant is crucially important.  The court will be concerned first with duration, many incidents are over in seconds almost all within a few minutes, the longer you have observed the assailant the less your identification can be attacked.  Under no circumstances do you want your observation characterised as a 'fleeting glance' which usually signals game over for the prosecution.  Distance is the second most important issue with face to face obviously being ideal.  Obstructions – are you observing this through twitching net curtains veiled by foliage and behind parked cars, if so you’re not getting a good look.  Lighting – is the street pitch dark or lit up like Old Trafford?
5. The face – faces are exceptionally difficult to describe but, if observed for long enough, can be accurately picked out in an identification procedure.  One problem with witnesses is that conventional social norms militate against gazing into stranger’s faces and if they have a weapon in their hand this becomes even more difficult.  Shoes, clothing and the rest can be noted in a moment but it is the face that you need to fixate upon.  Ideally you want to know it better than your mother's: sear it into your mind's eye.
6. Write it down – as soon as the incident is finished write everything down, this is obviously particularly important with vehicle registrations, you will want to include as much detail of other potential witnesses as you can, if you have any artistic ability draw a picture of the assailant.
7. Delayed recollection – the immediate aftermath of an assault is an extremely shocking period and often details of the incident will be recalled over time; it goes without saying that these must be communicated to the police as soon as possible.
8. Sure – this word carries enormous significance in a criminal trial.  The jury must be sure that the person in the dock is the person that assaulted you.  If identity is disputed the defence will be saying that the jury can not be sure.  This is important to know and bear in mind when witnessing an offence.

I readily acknowledge that much of the foregoing is obvious common sense and it would be preposterous to imagine that this blog will be at the forefront of your mind should you ever become a witness.  But if just one thought can lodge in your subconscious it should be this: Good Looks not Fleeting Glances.

By way of a brief postscript and aside a vexed issue that is occasionally aired in discussions of gendered conduct is how men should walk down darkened streets.  The sad reality is that for many women the sound of footsteps fast or slow behind them sets alarm bells ringing.  What is not so often admitted is that the same is true for many men. Whether the fear is of robber or rapist fear is fear and it behoves all of us, men and women, not to engender unnecessary anxiety when we are out and about.  Love thy neighbour and all that.