Masks & Armour - Finding Your Feet

  

It's that time of year when old hands wish the fledglings well and regale them with tales of their own puking terror and early days train wrecks. There are few Supreme Court briefs as anxiously prepared as that first ever trial in the magistrates' court. If you're lucky you'll get an old lag who's been around the block enough times to make sure you don't go completely off piste.

I invariably, in no way jokingly, give the same advice: always, ALWAYS have a pee before going into court. Having to dash out of your own wedding to the loo would be more embarrassing than having to do so from court, but only just.

As the days become weeks and the weeks become months you start to find you don't need to stay up until 2 in the morning prepping an agreed bail variation. Hell, you might even find you start enjoying it. Before you know it you will begin to feel like a proper barrister. Watch out!

Here is where I will give your pristine and immaculate gown a little avuncular tug. Not to give you my top tips for advocacy. I only really have one: no counsel was ever criticised for being too brief. But to give you a kindly warning about what the Bar can do to you if you don't take care.

When your business is other people's business and, in particular, their worst business it takes a toll. It takes a professional toll and it takes a personal toll. Youthful zeal, energy and idealism means that you might not notice this at first. But in time you will and without wishing to foist a world weary cynicism on you it is important not to be taken by surprise when it does.

To succeed healthily at the Bar you will need that flimsy piece of black fabric to armour you like steel when the chips are down. Angry clients and angrier judges have the potential to really knock the stuffing out of you. That's before you have to fend off opponents looking to ambush you in the robing room.

In a similar way when a witness devastates your case responding to that careless question too many or the jury's verdict makes a mockery of your months of toil your face must wear a mask of impassivity. You will need to learn to conceal your thoughts and feelings in court. Some never quite manage this and betray their lack of professionalism in ill temper and churlish gurning that makes plain their contempt for the tribunal or the witness.

Practice at the Criminal Bar is a constant lesson in the subtle differences between empathy and sympathy and, on occasion, the calamitous consequences of confusing the two. If you are completely indifferent to the plight of the defendant or the witness that is not professional reserve it is being a psychopath. Conversely if you make your client's pain your own you will lose objectivity and diminish precisely the distance they need from their advocate.

When you have learned to put on your armour make sure you do not forget to take it off; especially when you go home. There is no full life lived without vulnerability and what confers essential protection in courtroom combat can prove to be an impenetrable barrier in personal relationships. Likewise, do not let your courtroom mask, so much more useful than your wig, become your face.

It is really important to decompress, like divers ascending with care to avoid the bends. Those cutting their teeth with you down the mags will be a lifeline in the years to come, treasure them and nurture those friendships. They 'get it', you may find your family does not.

But most of all enjoy yourself. Without enjoyment the Bar becomes just a job and justice is too important an undertaking for that.

Closing the door on rape cases - Is excluding the public the answer?

This article reports that prosecutors are to start asking complainants in rape trials if giving evidence in a closed court is something that would help them give evidence. It is reported that the purpose of this is to drive up conviction rates. 

As all lawyers know and, I hope much of the public too, there are a raft of special measures designed to try and make giving evidence easier for victims of crime. Advocates can remove court dress, the witness can give evidence behind a screen or via a live link from another room in the court building or another building all together.

Recently there has been a national rollout of something that has been piloted for some time at a few courts and that is pre-recorded cross-examination. That means that many victims of sexual offences will be video interviewed by the police and then undergo video cross-examination many months before their case goes before a jury.

If pre-recorded cross-examination becomes the default the days of rape victims giving evidence in a court room in front of a jury may be over. There is perhaps some cause for content there but there is also cause for concern. All barristers that specialise in sexual offences know that the immediacy of victim testimony from the witness box will always be more effective than watching a recording on a screen.

Something that I still do not know the answer to, and I practise in these cases, is how judges are supposed to deal with notes from the jury containing questions that they want put to the victim if the victim is not participating in the trial process as a live witness. The whole point of pre-recorded cross-examination is to minimise distress to victims caused by delay awaiting the start of the trial. This is rendered completely ineffective if the victim has to deal with a jury question that arises on the hoof once the trial is underway.

In any event shutting the court room door to the public seems, in light of what serious sexual offences within the criminal justice system really require, a negligible benefit to victims coming at the expense of open justice. Indeed in my experience the public gallery is usually deserted with many of the catastrophic problems in the criminal justice system going completely unnoticed precisely because the public are not seeing what is happening and how it's getting worse.

That said I do not doubt that the court being a public arena is, and naturally is, a significant worry to many victims. That is what the range of special measures routinely deployed are for. It may be that there are some victims for whom giving evidence by live link does not suffice to allay their anxieties knowing that family, friends, supporters or just random members of the public are watching the evidence in the public gallery. That being so cavilling at a reminder that judges have powers to address those concerns may seem retrograde but I am concerned that this is a sticking plaster when the patient is suffering mortal wounds. 

The fact of the matter is that sexual offences are difficult, time consuming to investigate and deliver high emotional and life consequences. They require and deserve the best police, the best prosecutors and the best advocates.

Being best requires training, skill and experience. The combination of those three factors creates expertise. What rape cases absolutely do not need are amateurs, however enthusiastic, and newcomers, however willing. Over the last 10 years police numbers have been devastated and the CPS budget cut to the bone and this has coincided with rape cases becoming evidentially vastly more complicated. If you lose one good officer or one good lawyer the team takes a hit but there comes a point when too many are lost that institutional knowledge and awareness goes too and that is not retrieved by one good hire or a recruitment drive.

Shutting the door is not the answer, opening the purse strings is.

Criminal Justice As Culinary Catastrophe

 

'Let's put that on the back burner' - We all know what goes on the back burner, things that don't matter. In 2020 the entire criminal justice system went on the back burner. The problem is that the criminal justice system really does matters. The other problem is that it went on the back burner long before Covid snuffed out the lamp that shows freedom lives.

I feel that I have spent quite a lot of this year, as have many other barristers, trying to explain the crisis that has befallen our profession and the system which it desperately tries to prop up. I sometimes think that a mistake we make is assuming too much knowledge of the criminal justice system. If you're not a lawyer you won't know the difference between a 1,000, 10,000 and 100,000 page fraud case.

You do however probably know the difference between making toast, cooking spag bol for your mates and the sort of meal you lay on for the woman of your dreams the first time she comes round for dinner. So here is my attempt to render the criminal justice crisis in culinary terms.

Trials, like foods, come in all shapes, sizes and flavours. They also require different levels of preparation. A CCTV based shoplifting is like a pot noodle. Instantly prepared, not something that anyone particularly looks forward to, remembers or cares about and can sit at the back of the cupboard for months on end without going off.

Other cases, involving children or death, require Masterchef levels of skill and experience. And even with that skill and experience if the ingredients go stale the dish will never come good. Witnesses, like ingredients, go off. In a culinary worst case scenario you can poison people with old food gone bad so too can trials gone wrong devastate lives, even end them.

Some cases are like souffles. They don't just require perfect ingredients the timing has to be absolutely precise. Once they pass the point of no return there is no recovery. The other problem that the ongoing court chaos has caused is that almost no barristers have any certainty about what cases they will be doing and when.

Almost all cooks can make an omelette. Very few can make a croquembouche. So it is with barristers and criminal cases. Anyone can handle an ABH. Not everyone can manage an MTIC fraud. The more uncertainty there is in the listing of trials the greater the danger is that at the last minute a carefully chosen barrister will have to give up a case to a newcomer who may not share their speciality.

It's said that too may cooks spoil the broth but that assumes there is at least a way of cooking the broth. At the moment it feels like every barrister in England & Wales is crowded around one 4 ring hob trying to get their pot on the hob. If more courts don't open soon for jury trials we'll all be in a stew.

The Other Directory 2021

 

"Not a very safe pair of hands, except at Uttoxeter Crown Court, where his father-in-law sits."

Neil Potist

"Much better in the mornings than the afternoons."

Jim Biber

"Has read the papers. If you're lucky."

Benjamin Asick

"Bonkers."

Delia Range

"Thinks he's brilliant. Juries hate him."

Hugh Jego

"Smooth as a warthog's backside."

Vincent Kors

"Eye wateringly expensive."

Luca Money-Potts

"Amazingly annoying."

Jemima Irks

"Would try to chat up the lectern if there were no women in court."

Tarquin Twice-Knightley

"Will add literally years to your sentence."

Andrew Grating

"Has come a long way from Tyneside but you'd never guess."

Eleanor Cution

"Like a fine wine gently marinating a liver."

Faye De Glory

"The usher knows more law."

Hope Less

"One of the hardest working barristers at the Bar, meticulously prepared, brilliant lawyer, never touts, doesn't schmooze. You've never heard of her."

Justina Goode

Target Justice

Politicians politick. Police police. Prosecutors prosecute. Different roles, different functions, different people. Mix them up and watch out. That is all that I think when I read in The Guardian that the government is about to set targets for the police and the CPS in relation to the number of rape cases that are prosecuted. If the reporting is accurate this will amount to the government telling the CPS how many cases of rape it should prosecute a year. In my 15 years of practice as a barrister I'm not sure I've ever seen anything like this before.

What I have seen, repeatedly, is police and CPS budgets cut again and again. So what I will say clearly and at the outset is that if you perceive there to be a problem with the investigation and prosecution of serious sexual offences look at the funding and demand more of it. Money isn't everything but enough of it means enough police officers, properly trained, properly investigating, providing proper files to proper prosecutors with proper caseloads. That's a lot of propers but if we don't do it properly we're just pretending.

Any real police officer and any true prosecutor knows that there is only one target that matters and that is a just outcome. And not justice in some of their cases or even in most of them but for all of them. If you attach numerical targets to the work of the police and prosecutors you're a long way down the track to suborning them. The electorate exerts a populising force on politicians that is far removed from the requirements of diligent detective work and at odds with prosecutorial independence.

The dizzying explosion in the quantity of digital information that rape cases now routinely involve cries out for exceptional funding and personnel. Without that investigations will take much longer than they should and charging decisions will be delayed. That is what has been happening. Imposing targets will not rectify that situation it will simply and disastrously result in cases and defendants coming before the courts that have no place being there.

This naked political interference is not normal and it is dangerous. Nobody of conscience and understanding should welcome this proposal. If it is implemented the only real target will be justice herself and she'll be a sitting duck.

I May Destroy You - A Criminal Lawyer's Perspective

It was almost mocking of the BBC, as the UK staggered into the final weeks of lockdown, to launch a show so fizzing with the excitement and potential of a night out. Just as the nation was beginning to forget what it was to head out with carefree abandon, guided only by an urge to see where the night might take you, here came Michaela Coel's devastating 'I May Destroy You'.

Devastating for so many reasons but principally in showing how quickly the carefree can be catapulted into confusion and trauma and searching. This show is a must watch for anybody who wants to understand more about what it is to be young, urban, black, female, questing, alive basically.

But for those that work in the criminal justice system this 12 part series offers much, much more than a slice of life and cracking entertainment. Coel's ear for dialogue isn't just good she serves up the kind of verisimilitude that seems born of scribbled notes of conversations actually had. Interactions don't just ring true they sound spoken as if for the first time.

Coel is being profiled the world over right now but the stand out interview with her appeared in The Vulture: https://www.vulture.com/article/michaela-coel-i-may-destroy-you.html. In it she recounts her own experience of sexual assault having been spiked. In the show the same experience repeatedly intrudes upon her character Arabella by way of flashbacks with the perpetrator's face never quite being revealed.

The show is about many things and sex looms very large as a theme but with consent as the real nub of the matter. Hers is not the only narrative. Her friend Terry has a threesome which is cast in a very different light in its immediate aftermath. Her other friend Kwame has a Grindr encounter that begins in consensual activity but concludes with a non-consensual attack. Kwame goes on to experiment with heterosexual sex without disclosing to the woman in question that he is gay. Arabella gets into bed with a professional colleague who removes his condom just before penetration and when caught laughs it off.

This show is like a criminal law lecture on the complexities and nuances of consent. At one end actions that are clearly criminal at the other actions that are morally objectionable but not illegal. Coel does not shy away from the difficult, indeed she seems to relish injecting layer upon layer of complexity arising from sexuality, race and much else besides. This is life as it is, confused, shifting, hard and yet joyful still.

She is fair and she is even handed. She shows two very different police experiences. Hers involves caring, dedicated and professional officers. They can't provide her the answer she is looking for but they explain in simple terms what they can and can't do. Kwame on the other hand tries to make a police complaint and has the misfortune to encounter an officer plainly completely out of his depth and all at sea. The contrast could not more clearly illustrate the importance of having specialist officers assigned to investigating sexual offences.

But the really bold thing Coel does during a reversion to school days episode is show a false rape complaint. It arises as a result of consensual sex that concludes with the boy taking footage of the girl in question without her knowledge and obviously her consent. The author of the complaint is clever, persuasive and profoundly damaged by her own domestic experiences. The complaint involves self-inflicted injury of a type likely to trigger certainty in most that the complaint was real. Interestingly it is Coel's character that exposes the falsehood.

Those of us that work in the system are profoundly aware of its shortcomings and our fallibilities. Likewise we know only too well how difficult it is to extract a reliable narrative as to what transpires in private places when only two people are present. Far too often TV drama insults the intelligence of viewers by burying nuance or obliterating shades of grey with bright white or pitchest black. Not this programme. If your jury have been watching this you now have a golden go to cultural reference whether you're prosecuting or defending. Miss it at your peril.

Uberrima Fides - Full Disclosure

This is a legal doctrine of particular application in relation to insurance contracts. It is Latin for 'utmost good faith', in plain English when you apply for insurance it's all cards on the table or you'll find your claim gets refused.

I'm no fan of insurance companies but I do believe it's a doctrine that could well be applied to other areas of life. It's also a doctrine that lies in total counterpoint to the prevailing ethos of social media. What photo goes unfiltered on Instagram? When I was a child art was curated now entire lives are. Companies had publicists once upon a time, now, we're all publicists.

And so to LinkedIn. Because it's the social media platform closest to money it's also the one where the urge to celebrate successes and gloss over failures is the strongest. Every post is uploaded with 'delight' or 'pride'. If a setback is cited it's only so it can be immediately eclipsed by a tale of how it was or will be overcome.  And you may say what's the point of complaining about that; it's like complaining that the sea is a bit salty.

But I do feel that if this platform is to be of any use to anybody we should be clear about not just what is said but what is left unsaid. When you're looking to brief a barrister don't look at their list of 'Notable cases' ask them to tell you about the case that wakes them up in a cold sweat. A barrister's worst loss is usually more revealing than their best win.

Silence about setbacks and obstacles means one of two things. Either the person doesn't want you to know about them or there weren't any. Both situations are revealing in their own way. Pretending that you've enjoyed nothing but success in life is, first, likely not true but it also robs you of the chance to put your achievements in context. And context is everything.

Commenting on the second scenario I posted this a couple of days back:

You never see LinkedIn posts saying:

Grew up in Chelsea. Mum's a banker, dad's a Q.C. Went to St. Pauls & Cambridge. Can't believe I've got a pupillage at a top commercial chambers first time applying!

It's not a landscape without the foreground.

The reason why you never see that post is that even the most entitled and unempathetic barrister can see how such a post might be received. But just because you don't see that post doesn't mean that candidates of that background aren't winning many pupillages year after year.

This means that if you're new to the law and all you see on LinkedIn are stirring tales of adversity vanquished you would be forgiven for thinking that the Bar was constituted entirely by their authors. This is not, for a second, intended as a criticism of people making such posts. They act as unquestionable inspiration and should be warmly encouraged. But it is important to know the backgrounds of the silent majority.

I believe that if you, like I, have been the beneficiary of privilege it is important to own that. Not so that your achievements can be marked down but so that the context which your privilege automatically makes known to you can be understood by complete newcomers to professional life.

On LinkedIn you should make plain not only where you've got to but also where you came from, especially if that shows that you lucked out.