Monday, 9 December 2019

Daemons of the Bar


When a barrister is new everything is new including every opponent. As you get skittishly to your feet for the first time the concept of an opponent takes some getting used to and can result in an unduly aggressive approach or alternatively unprofessional chumminess. We learn from the crib to size people up and, generally, the more faithful we are to our instincts the better we do it. And of course on the tennis court or across the chess board it's not long before we acclimatise to somebody having the opposite aim to us.

But it's when you get opponent plus client plus audience that you are suddenly confronted with the true concept of opposition. The client watches every move from behind you and the judge listens to every word in front of you. There is nowhere to hide. And when you're new to the game you find yourself looking so hard at your opponent that you often don't see them. What is more you have nothing to compare them to.

As the first series of His Dark Materials come to an end I have been thinking much about types of opponents. One of the real pleasures of Philip Pullman's novels and of the TV adaptation is seeing how the characters' characters are manifested in animal form. Such is the appeal of the idea that the BBC has a quiz that lets you discover what your daemon would be.

Once you've hacked your way round the courts of England & Wales for a good few years you begin to discover that while we are all unique there are types of opponent that crop up time and again. So without any further preamble here is my guide to the menagerie:

Scorpion
Scorpions are, obviously, dangerous opponents but they lack guile. You spot their sting as soon as you see them and you keep your distance. They don't care whether they sting you in the robing room or in the court room they just want you within striking distance. The best approach with a scorpion is to catch them under the heel of your boot but just be careful they don't get you in the ankle before you do.

Elephant
These are the biggest beasts of all, invariably QCs, you will rarely encounter them in the early years of practice, but remember, some elephants take fright at mice. They require huge amounts of feeding (fees) to keep going but once in full charge they'll obliterate anything that stands in their way.

Snake
Snakes seduce (sometimes literally) but more often by casting a hynoptic spell. Feel your anxiety about your case ebbing away while your opponent robs you blind and the next thing you know they've had the braces off your back and you're stuttering at the judge with your trousers round your ankles. Just remember when your opponent flatters you they're trying to tatter you.

Warthog
Warthogs care about one thing and one thing only: money. They want to roll around in it and jump full-bellied into it. Winning is irrelevant it's all about the fees and whether they can turn a 3 dayer into a 3 weeker.

Lion
As is sadly so in the savannah there are many fewer lions at the Bar than there should be. But they remain a magnificent sight. Their noble mien is rarely perturbed but there is no fiercer bulwark against sharp practice or a meddling judge. Easy to spot in full maturity it can be hard to distinguish the cubs from those that will grow up to be mere tom cats.

Drayhorse
Have 10,000 pages of disclosure that require reviewing? Need a 10 mobile phone case scheduled for 10 o'clock the next morning? Then you need yourself a drayhorse. These barristers make ideal juniors. They're hopeless when it comes to dressage but if you want a guarantee that every last page of unused material has been read a dray will get even the heaviest case to its destination.

Mosquito
Extremely bloody annoying. So much so you might have to restrain yourself from trying to swipe them with a copy of Archbold in the robing room. Some mosquitoes are deliberate but most are maddeningly oblivious to the misery they cause while they bombard you with constant pointless emails at all hours of the day and night.

Peacock
There are many, many peacocks at the Bar. When you begin you will gawp like a child at the zoo at their magnificent plumage getting lost in iridescent wonder. But after a while you will find yourself wondering what that terrible noise is, their squawk is no match for their display. And wait until you notice their feet...


Thursday, 31 October 2019

Decisions, Decisions - The Barrister's Burden






Google reliably informs me that there are 1.5 billion websites in the world. How many of those have you visited? On a daily basis how many websites do you use? 5, maybe 10. 1.5 billion is not technically limitless but it's a number so huge it might as well be. When you visit the cereal aisle in the supermarket is it always Kellog's cornflakes? Or have you ever wandered up and down and wondered about trying something new. The moment you look to break free from habit you are dazzled and dizzied by choice. So much cereal. So much choice.

When you really really need to get some work done, when your tax return is due in 2 hours any sane person turns the Internet off, unplugs the TV, closes the door, puts their book in the drawer. Focus, attention and clarity require the removal of distraction and the absence of choice to do anything else.

Choice enlivens, it stimulates and it renews but also it exhausts and it overwhelms. This is because making a choice requires effort and it requires a decision to be made. And every decision we make carries a consequence, sometimes those consequences are of no consequence, you switch over from the News to watch Dirty Dancing (again), some are of the utmost significance, you accept that proposal, you get behind the wheel after one too many.

Modern life bombards us with choice and therefore decision making in a way that would be unfathomable to our grandparents let alone our mediaeval forebears whose choice was between a life nasty and short or a life brutish and short. 

That being said many modern jobs do not require much in the way of decision making on a day to day basis. Office work has its routines and its patterns, predictability is the hallmark of many people's working lives. Insofar as a daily decision has to be made it's packed lunch from home or nip out to Pret. Obviously not everyone works in an office, there are farmers, soldiers, train drivers, teachers and mechanics too but even then the number of decisions to be made each day is relatively limited.

This is one of the things that makes being a barrister a very unusual occupation because every day entails scores of decisions. Some of them are fundamental and shape a case in the most basic way. What offences should I indict? Should I call the defendant to give evidence? Others are much more nuanced and finely calibrated - how forcefully should I point out the strength of the prosecution evidence to my bolshy client: is this witness being hostile or just forgetful?

Indeed when a barrister is examining a witness every single question that gets asked requires a decision. Should I ask that question at all; if so how should I ask it? Every proper barrister will have prepared their questions in advance but every decent barrister has to listen to and weigh carefully the answers that are given. There is no point having a script for cross-examination because the witness doesn't have the script and usually has no desire to follow yours.

The best barristers make this process look effortless. It is anything but as it demands the most active listening and the quickest of thinking. Having space and time to think is absolutely essential for barristers because when decisions are rushed or made on the hoof the consequences of those decisions can come as a very nasty surprise.

Although still young(ish) I remember the pre-digital Bar. Papers sent in good time once the evidence has been gathered, the client's instructions taken, so that preparation and decision making can begin well in advance of arraignment and certainly in good time for the trial. 

The modern barrister has to contend with a barrage of digital information often provided at the last minute so that the decision making process is made on a wing and a prayer.  If we don't slow things down there is a real danger that the motto of the Court of Appeal will become more haste, less speed.

Thursday, 12 September 2019

An interview with Kieron Quirke writer of BBC series 'Defending the Guilty'




Kieron Quirke was a theatre critic for the Evening Standard before he made it as a TV writer. His first show on TV was the cult mystery soap Trinity, created with Robin French. He and Robin then had a big hit with Cuckoo, which broke records for BBC3, and ran for five series, starring Greg Davies and various famous Americans. Defending the Guilty is his first show as solo writer. It stars Will Sharpe and Katherine Parkinson, and is (some might say) the best TV about barrister life for decades. 


How did you come to be involved in adapting Alex McBride's 2010 book 'Defending the Guilty’

I was asked. Big Talk productions were very rightly tickled by Alex's book (Penguin, £7.99 on Amazon Prime), and thought there was a sitcom in it. But the book doesn’t have a story and characters as such, so they needed a writer to make that jump. I was available. I thought at the time Cuckoo might not do any more series - although it did. And, I think crucially, I had some legal background. 

My dad and my uncle are both barristers in Birmingham - and at one point I got reasonably close to becoming one myself. 

When did that happen?

In the early years of the writing career, Robin and I had a terrible August where every single project we’d developed over three years of scraping by died in the dirt. I was breaking up with my girlfriend and staying out at nights, which got me sacked from my money job - so I took out a loan, rocked up at City University a week after term’s start and did the CPE. 

So I think Will (the lead character in the show, played by Will Sharpe) has this ever so slightly unfocused approach to the law that comes from how I felt on that course. There were people there SO fired up to be barristers - clever kids with big mouths and big plans - and for me it was just an escape route. Which I didn’t take in the end. I think I paid off the loan last March. 

Were you any good at it?

I was definitely the funniest guy in my EU law class. Some cracking stuff on direct effect.   

You've spent a lot of time in court, what's most surprised you about the court process?  

I was surprised when I first started attending court - it felt ramshackle. I don’t think I saw a single trial that started on time. Barristers repeatedly explaining that they only got the brief that morning, or that disclosure hasn’t been completed, or that the defendant wasn’t there. Judges looking by turns resigned and quietly apoplectic. I was genuinely concerned when I started because I wanted to give a ‘realistic’ view of the job - and too, too much of it seemed to be procedural delay. But then that began to get very funny. 

And I think the other thing I was surprised by was the bit that TV does like - how often trials would come down to a cross-examination, cases falling apart when a barrister finally got to put the facts to the defendant or complainant. I think in those moments, I picked up some taste of the appeal of the job - which on a cold morning in Dagenham can seem unclear.            

What have you made of the fabric of the court estate?

From my perspective there’s something gloriously bleak about the barrister’s daily life - the trains, the canteens they have to eat in (if they can find any that are still open), the cold corridors they have to wait in. It’s such a surprise to people, conditioned by TV drama. I think the show captures a lot of that bleakness, but in truth, we wanted people to enjoy watching, and so the court surroundings are never of the worst kind. Some of the courtrooms I sat in with trestle tables for evidence, and plastic chairs would just be nasty on camera.  

As for the wider fabric of the legal system, well I’m a comedy writer first and a hugely incisive social commentator second. The underfunding, the never-ending threats of strike action, and a certain atmosphere of desperation are all in there. But the show is mostly through the eyes of pupils - so their focus is more on their own survival than that of the system.     

What do barristers think is fascinating/hilarious about their job but actually makes terrible TV?

Ha! I thought most of the barristers I spoke to had a fair idea what played and what didn’t.

I got a lot of stories about judges, sparring with judges, beef with judges etc. and that’s a trope that feels familiar and I’m never going to match Rumpole on, so I stayed clear of that. Also, quite a lot of who’s banging who. I have got a bit of that in there. But I noticed legal twitter is NOT average barrister chat. People seem so noble online. 

What is fascinating/hilarious about barristers that they don't even notice?

First off, the truth is that a lot of barristers ARE funny. Intentionally. They’re good with words and their job is skewering people, and that’s a gift for me. And there’s unintentional ways they’re funny too. I somehow feel every time a barrister agrees with me, she starts her sentence with ’No...' 

I think barristers have to pretend a lot - keep up some kind of confident front - and pretending can turn people into funny versions of themselves. Plus it’s a job people come to with dreams - one of the special jobs - but it’s hard and the money’s getting worse and it can grind you down. So a lot of the characters in the show are trying to keep up a front - but they’re all a bit disappointed too. I hope that makes them lovable. It’s written with a ton of affection. 

Have you met any clerks/what do you make of the job?

I’ve met some clerks. And I have an agent - so I know the weirdness of employing your boss. 

Favourite American legal TV programme

'The Good Wife' is a tour de force. The 'ER' of the legal procedural. Hard to believe the standard they maintained. And David Kelley obviously.   

Favourite British legal TV programme (that's not 'Defending The Guilty')

I really enjoy the Peter Moffats. But I’m a 'Rumpole' completist. The short stories which John Mortimer cannily made out of his scripts were the first funny books I read as a kid, and he’s very close to my heart, even if the TV show's a little slow by today’s standards. 

Favourite legal word/expression

I used expressio unius excludio alterius in a script meeting once... which got laughs and won me admirers. 

Wigs?

I like them. From a TV perspective, they’re gold. 

Any final thoughts?

I suppose barristers will be reading this - so a plea for understanding. There’s going to be some infelicities and inaccuracies in the show. I think I know most of them - and they were committed in the name of clarity and fun. If you spot something that feels really wrong, please tweet me your outrage and keep watching.    
And I know you’re meant to call them pupil supervisors these days. But in the end - it’s just a better word. 

Friday, 26 July 2019

Privilege Part 3

In Lindsay Anderson's classic film If... of 1968 there is a scene in which a wide eyed new boy called Jute undergoes a test in which he is quizzed on school slang by boys in the year above. When he fluffs his answers he is shouted at because the boy responsible for teaching him gets the punishment if he flunks the real exam. This scene is based on a tradition that was still ongoing when I arrived at Eton called the Colours Test. It was the school's way of ensuring that newcomers became au fait in its bizarre lexicon as soon as possible.

Terms are halves, lessons are Divs, teachers are Beaks and so on with probably as many as 200 different words being unique to Eton. All institutions accumulate their own slang, abbreviations and acronyms but Eton went out of its way to codify an entirely different language as if it was admitting its pupils into a masonic brotherhood.

Some of this slang would have been recognisable to fathers, grandfathers, great-grandfathers and to generations immemorial. Some of it immediately marking out an OE from a particular time. When I arrived at the school in 1993 I was introduced to an insult that I had never heard before nor have heard since: goggy.

The simplest and most identifiable definition of this word would be geek, as in computer goggy. However at Eton this word had a wider application. It was possible to be almost any kind of goggy, with one conspicuous exception, you could not be a sports goggy. Eton being what it is meant that there was something of a social dimension to the insult, a sneering aspect.

To be goggy meant being too interested in something, too keen, too earnest, too removed from the calculated aloofness most cherished by the boys at the school. At the time it seemed the most natural thing in the world to scorn those unable or unwilling to participate in effortless superiority. Now I blush to recall that.

Since then I have, of course, realised that graft, determination and focus are what really separates proper people from the idlers and pretenders. Privilege is what disrupts the advancement of proper people and instead propels the charlatan and the fraud.

And so, inevitably, to the Prime Minister who even in late middle age appears never to have relinquished his contempt for the little people who strive in the detail to build and create. Nothing could be more goggy than the European Union and yet here is a fully fledged edifice the result of the industry and vision of thousands of toilers.

A hallmark of adulthood is seeing beyond the surface; in Boris Johnson's case we have a man of hidden shallows.

Tuesday, 16 July 2019

Juries abjured - Why MPs should press pause before pressing tweet


When you start out as a barrister it strangely takes a very long time to learn to speak normally in court. Very experienced and able barristers are able to conduct themselves as if in conversation. Newcomers and youngsters are most prone to falling prey to courtspeak, ten words when one would do, four syllables when one would suffice. Young or old, however, all barristers know that their words in court count and sometimes those words have to be chosen with absolute care. Mercifully, outside court, that pressure of scrutiny is lifted and barristers can speak more freely. However even allowing for that relative freedom few in number are the barristers that are prepared to comment on whether a verdict was right or wrong.

MPs bear the burden of having their spoken words weighed in every context. Of course speeches in the chamber usually bear the most significance but any chance remark can be seized upon and the MP called upon to explain themselves.

Lucy Powell, the Labour MP for Manchester Central has drawn praise and censure for commenting on Twitter in the wake of the acquittal of two boys tried for the murder of Yousef Makki in Cheshire. She tweeted: 

'You do have to ask if these defendants were black, at state school and from, say, Moss Side whether they would have been acquitted.' 

This tweet was picked up and reported by the Daily Mail prompting a flurry of commentary culminating in Ms Powell doubling down on her remark:

‘I stand by my comments on this. My point is wider: (not as judge & jury in this one) black, poor, young men - as is well-evidenced - are much more likely to get life-sentences for a peripheral, if any, role in a killing. These were acquitted.’

As far as I know Ms Powell did not attend any part of the trial. She certainly was not privy to the jury’s deliberations and therefore any comment she has made on the case will have been predicated on what she has heard and read about it.

There was a time when murder trials were reported almost verbatim in newspapers and readers could consider themselves almost as well acquainted with the evidence and submissions of counsel as the jurors. Those days are long, long gone. What gets reported today is a tiny, tiny fraction of what is said in court and in the absence of cameras only those in court get to see what is shown and how things are said.

Ms Powell’s original tweet was plainly a rhetorical question and it is clear what answer she would give. But why? How could she possibly know the answer to that question without hearing the evidence? How does she even know the ethnicity of the defendants given that they are entitled to anonymity as youths?

She assumes a great deal in her remark and most particularly assumes that the jury did not heed the judge’s directions in summing up and did not weigh carefully the evidence in determining whether they were sure of the defendants’ guilt. But maybe it’s not this particular jury’s objectivity she impugns but that of other juries. Which other juries? Which other cases?

Ms Powell has been quick to point to research and findings concerning potential institutional racial bias within the criminal justice system. There is an extremely important discussion to be had on this topic which is well served by those that have carefully researched the position. Nobody is served by a cavalier analysis of a single case where the author can’t know anything of the evidence that was called.

You can fight prejudice or inflame it by appearing to fight it. All those that work within the criminal justice system should welcome discussion and challenge but when it comes to the verdict to be reached in a particular trial there is a reason we entrust that task to a jury sitting in court not MPs who should know better.


Wednesday, 10 July 2019

Victim Personal Statements - The ins and outs

Marie Rimmer MP is in the news following criticism by her of edits made to a victim personal statement during the sentencing of a man sentenced to imprisonment for causing the death of a 4 year old girl by dangerous driving: https://www.bbc.co.uk/news/uk-england-merseyside-48915189. The victim personal statement has not been published, as far as I am aware, nor those parts that were excluded from the sentencing process.

Speaking in a debate in Westminster Hall Ms Rimmer criticised the fact that what she referred to as the victim impact statement was not read out in full apparently following application by the defendant's barrister that certain passages would be 'too upsetting' for the defendant. As always when commenting on a case without knowledge of the full facts a degree of circumspection must be applied in venturing opinions. The debate was triggered following a petition by the parents of Violet-Grace Youens. Ms Rimmer spoke in the debate which was held in response to the petition calling for mandatory life sentences with a tariff of 15 years in death by dangerous driving cases with consecutive sentences where more than one life was lost.

While one can wholly understand what motivates a campaign like this namely a hope that the severest sentence will cause drivers to think twice before taking risks that might result in death there are a number of reasons why mandatory life sentences are not appropriate for these offences. The chief reason is that the intentional causing of death (murder) does carry an automatic life sentence. If death or really serious injury was intended by the defendant then that would be the appropriate charge.

Driving offences focus on the quality of the driving. Sometimes defendants deliberately (as seems to be the case here) drive extremely dangerously where the risk of causing death is extremely high. Plainly a very severe sentence in those circumstances would be justified and it seems likely in the near future that the maximum (although not mandatory) sentence for death by dangerous driving will be increased to life imprisonment. However death can also be caused by momentary lapses of attention of the sort that every driver every day might be guilty of. Automatic life imprisonment for someone who has driven blamelessly for years, who might have the highest possible character in terms of public service and who is wracked by remorse does not, to me, seem to accord with some basic principles underpinning society's approach to sentencing.

My main topic of interest here though is the issue of Victim Personal Statements (VPS). In reporting of this case and colloquially these are often referred to as victim impact statements but there is a subtle but potentially important distinction in the official nomenclature: https://www.gov.uk/government/publications/victim-personal-statement

Victims of crime can choose whether to read these statements themselves at sentencing or have the prosecution barrister do so on their behalf. They are not produced in every case. They are often written before the trial has even happened. Sometimes a statement is made very early in the police investigation and an updated statement is made months later following a conviction. Occasionally the views of the victim can change markedly between those two statements.

In my opinion VPSs are important in a criminal justice system where victims can feel that they have very little voice. Judges should know, as should the public by reporting, what real life impacts are caused by serious cases. It is easy to make assumptions about how a particular crime may have affected a victim or bereaved person. There should be no room for assumptions in an evidence based criminal justice system.

However it is important that victims and society at large understand that judges when sentencing have to following statutory and common law authority. If a VPS calls for an offender to be locked up with the key thrown away the judge is not obliged to act upon that demand. Similarly, as sometimes happens, if a VPS calls upon a judge to show a defendant exceptional mercy and avoid imprisonment that should not be and is not determinative of the sentencing outcome.

Victims are entitled to write whatever they like in a VPS. That does not mean they are entitled to have anything and everything written in the statement read out in court. By way of extreme example if the VPS contains abusive or threatening language it would be absurd if the criminal justice system required judges to allow what may amount to a criminal offence to be committed in court in front of them.

Edits are regularly made to VPSs, what is important is that should only happen for proper reasons. Sparing the defendant's blushes or feelings is, in my opinion, very unlikely to be a proper reason. Inflaming what is in some cases a very highly charged sentencing hearing on the other hand might be. Reasons should be given and, insofar as it is possible, reasons should be understood.

Flexibility and discretion not rigidity and circumscription are what best serve justice and  best ensure that justice serves us.

Monday, 29 April 2019

The Truth Laid Bare - Mobile Phones and Sexual Offences

When something bad happens between two people in a locked room only those two people can ever know for sure what happened. That is the central, simple and fiendish problem that bedevils the vast majority of sex cases.  It is a problem that weighs heavily on every single person and agency involved in the handling of sex crime in the criminal justice system.

Being falsely accused of a sex crime and, still more terrifyingly, convicted of one means life ruination for a defendant. Being accused of lying about being a victim of sex crime is likely to be surpassed in trauma only by the actual assault and could even, in some circumstances, be more traumatising. The trial process is the imperfect but nonetheless the best system we have devised for determining how to determine fairly such allegations.

It is a fine balance and the burden and standard of proof is the safeguard against wrongful convictions. Victims and campaigners enquire what the safeguard is against wrongful acquittals and theirs is not an illegitimate enquiry. A great deal has been done in the last 20 years to try and prevent wrongful acquittals achieved by irrelevant or prejudicial attacks on the character of complainants. Contrary to some very misleading reports in the media defence barristers are not allowed to trawl through the sexual history of complainants in a muck-raking exercise.

But, because the vast majority of sex cases depend on a jury's assessment of the credibility of the person making the allegation and the credibility of person defending the allegation material which bears on credibility must be relevant and must be seized.

And so to mobile phones. It won't surprise you to hear that defendants have no power to stop police seizing and download the contents of their mobile phones. Images and communications that assist the prosecution case will be served as evidence in the case. Images and communications that assist the defence case will be disclosed to the defence.

When a complainant makes a police complaint of a sexual offence her (and it may of course be his) mobile phone is not necessarily seized or examined as a matter of course. If it is not seized or examined, however, and is subsequently lost, destroyed, sold or interacted with so that its contents are edited or deleted that can create a serious problem.

The problem is that if the defendant is charged he (and it may of course be she) may request disclosure of content from that phone.  In some circumstances a defendant may know precisely what the content is on a complainant's phone that would assist his case. For example, if messages have passed between the parties the defendant can request revelation of those messages.

However in some circumstances the defendant may not know what there is on the complainant's phone that might assist but has cause to believe that there may be content that might assist. For example the complainant may have texted/WhatsApped/Snapchatted/Facebook messaged/Twitter Direct messaged/emailed a friend after a sexual encounter in such a way that makes it plain that consensual sexual activity took place. The defendant won't know about that exchange unless the police and prosecutors look for it, find it and reveal it.

A major difficulty is the sheer profusion of messaging platform and apps contained in almost all phones. If the police do not have the phone then its contents can't be checked and at any trial that can present a problem for the defence and the prosecution also.

What the disclosure laws do not allow are fishing expeditions.  Therefore a defendant is not entitled to demand a wholesale revelation of the contents of a complainant's mobile phone. No proper prosecutor or judge should allow such a thing.  However a defendant is perfectly entitled to ask whether there has been a review of communications, images and social media activity that undermines the prosecution case.  If there has not then such a review should be pursued by the police and here we come to agreement from the complainant and the consequences of it being withheld.

We also come to money and training. Downloading mobile phones is not straightforward. The quantity of information they contain is mind-boggling, transferring that information from police to prosecution to defence is complicated. The vast bulk of that information is likely to have no possible bearing or relevance on an investigation and prosecution of a sexual offence. But some of it might. That requires police that know what the are doing and have the time and resources to do it, it requires prosecutors that know what they are doing and have the time and resources to do it and it requires defence lawyers that know what they are doing and having the time and resources to do it.

It also requires the complainant's consent. If a complainant has intimate photos on her phone that are unrelated to an allegation of sexual assault then they should not be admissible in a trial. If a complainant has social media activity or dating app activity on her phone that are unrelated to an allegation of sexual assault they should not be admissible. The stark reality, however, is that admissibility of that material is a matter for the criminal justice process and not the wishes of the complainant.

There are many aspects of making an allegation of a sexual offence that are capable of being intrusive and traumatic. Examination in a Sexual Assault Referral Centre (SARC) is a very intimate process the results of which are made available as a matter of course to defence lawyers. As criminal justice professionals we can not pretend to victims that the simple making of an allegation to the police of a wounding to their bodily integrity is the end of the matter. On the contrary it is only the beginning and it always requires proper investigation.

It is however incumbent upon all involved in the investigation and prosecution of these allegations to explain as sensitively and carefully as they can why the intrusion is necessary and justified and that the minimum amount of intrusion necessary takes place. Aggrieved voices criticising the current system are quick to point out that victims can feel that they are the ones on trial. They are not. But the credibility of their allegations are and evidence that bears on credibility should always be discovered and always be made available.