Monday, 12 March 2018

Laughter is the best medicine (& the best defence)

Nobody loves a prosecutor.  I learnt this quite early in my career when friends and family would be fascinated to hear of trips to the cells or prison visits.  But tell them you were the Crown's representative in court and there was always notably less enthusiasm.  I put this down to the secret knowledge that lies in all hearts of our own wrongdoings.  Whether that's right or wrong it is no place for a minister of justice to seek a jury's love still less to have them laughing down the jury box.

I was thinking of this reading Matthew Scott's timely repost of his excellent survey of celebrity cross-examination; in particular that of the recently departed Sir Ken Dodd famously acquitted of tax fraud and defended by George Carman Q.C.  Interestingly Carman is probably the last barrister whose name is known by a majority of the public such is the diminished prominence of the Bar in public life and discourse.

In fairness prosecuting tax cases always carries with it the handicap of persuading a jury they should sympathise with the tax man over the defendant.  When the person being prosecuted is an adored comedian even a forensic genius would struggle and, of course, every comedian feasts on a straight man.  It's a dangerous business getting into a fight with a clown.

I have, thankfully, never prosecuted a celebrity or comedian.  I have however been involved in cases involving well known people and seen first hand what a distorting effect it can have on the whole process.  Separate to the circus of celebrity is charm and humour and when a defendant or their barrister is possessed of both getting the jury to focus on the evidence can be a real struggle.

One of the biggest problems prosecutors can encounter is when defendants are extremely attractive and there are plenty of studies showing that a defendant's attractiveness can make a real difference to the outcome of trials and even sentencing exercises.  It is known as the halo effect.

There is, until AI takes over the whole process, unfortunately not very much that can be done about this.  Any system that is overseen by humans is subject to the foibles, weaknesses and prejudices which define every one of us.  We are very used to hearing in the media of prejudice against certain groups within society.  We think very much less about prejudice in favour of certain groups.

It's something for all of us who practise advocacy to think about and while doing so perhaps we can spare a thought for the unloved prosecutors.