Of Nose Enders, Part 2

Prosecuting a trial recently I committed one of the most basic errors when examining a witness in chief: Asking a question that you don't know the answer to. In my defence, it was a deliberate act rather than something I hadn't considered: It was an issue which the defence were going to leave alone, and unless it was explored with the witness the defence could make the point to the jury that they had heard no evidence about it. Fortunately it paid off and the witness gave the answer I had hoped for.

Speaking with my opponent afterwards, he was curious as to how I knew what the answer would be. When I told him I didn't, he looked aghast. "What would have happened?"

"Well your client would have been proved to have been telling the truth, and we would have lost probably."

In terms of tactics, the answer was either going to assist me hugely, or be the end of my case by proving the defendant's innocence, and the whole trial process is concerned with his guilt or innocence. In those circumstances why not ask it? I always try to be scrupulously fair. 

A cautionary tale of nose enders AND a question asked without a known answer: Few tales I have heard can top that of a colleague in chambers who was prosecuting a robbery trial. The complainant was in her 70's and your stereotypical robust West Yorkshire pensioner. The whole case turned on the correctness or otherwise of her identification of the defendant as the man who had snatched her handbag in the street and run off.

Having led her gently through the contents of her witness statement, during which she confirmed she was sure the man she later identified was the same man who had robbed her, my colleague noted that in her statement she complained that the incident had shaken her confidence, and she had lost her disabled bus pass with her handbag.

Sensing an opportunity to lay it on thick in front of the jury, my colleague finished, "And tell me, Mrs X, what is the nature of your disability?"

"Eeeee, I'm partially sighted."

Of Pupillage, Part Two

Having secured pupillage, your first year is then basically spent undertaking what seems like a never-ending interview: Other members of chambers will ask you to complete work, you will accompany some of them to court when your pupil master is away, and spend days in chambers preparing paperwork.

I never minded the latter so much: quite often I would be asked to help with things like research for someone in court, or moving cars in the car park, or collecting shopping. Going off to court was never too much of a hardship depending on who you went with: The general rule as a pupil is that you should never have to put your hand in your pocket for anything during your pupillage year. So lunch, drinks, coffee at court etc is all paid for by your pupil master. 

Some masters get round this by only going to Greggs for a steak slice, or never buying coffee themselves at court. I was fortunate that my pupil master was, and still is, remarkably generous (his wife used to make a spare packed lunch for me, too). The rule extends to whoever is looking after you for the day, so whilst some people would conveniently "forget", others were far too generous. Some you would remain silent and observe, others you could actually talk to as friends: every day was a school day.

A colleague of mine who started at the Bar in the mid 1980's when the drinking culture was still fairly strong fell foul of his master on the first day. At lunch, as was the norm for his master, they headed to the pub across from court for some liquid refreshment (he used to get through 3 pints by all accounts). A Professional Yorkshireman, the master addressed his pupil (from South of Sheffield) thus:

PY: "Do you want a drink, lad?"

Pupil: "Oh yes, I'll have a gin and tonic please."

The PY gave his pupil a look like he'd called his mother a whore, and went off to the bar to order. When he returned he had a pint of ale in one hand, and a pint of clear liquid in the other. Sliding the latter towards the pupil, he advised:

"We drink pints in Yorkshire."

Of Pupillage, Part One

Pupillage is partly as archaic as the name suggests, and partly not. Recently I discovered that there are whole online forums dedicated to pupillage applications, the process, previous experiences at sets of chambers etc. So, to explain:

When you leave Bar school your first step is to apply for pupillage with a set of chambers. It is a year of on-the-job training divided into two halves of six months. Your first six is spent shadowing your pupil master/mistress (yes, they are really called that). This involves becoming a 23-year-old stereotypical Victorian child: Diligent, silent and attentive, trailing your pupil master everywhere whilst making copious notes. Although it never happened to me, there is of course the anecdote of the pupil who dutifully followed his master into the toilet without realising the purpose of the visit...

The second six is when you are able to undertake work in your own name, by completing papers or appearing in court in your own right. Terrifyingly, this meant that aged 23-and-a-half I was all of sudden prosecuting in sometimes serious Magistrates' Court trials, with everyone in court looking at me like I knew what I was doing. Since then I have learnt the value of at least looking like you know what you are doing: As long as you can carry that off then most of the time people won't stop you.

Most often asked question when meeting witnesses and introducing yourself: "Are you old enough to be a barrister?"

Answer I most wanted to give: "No, I just made that bit up."

There are the usual perils: As a female pupil you can expect everyone to hit on you, be it colleagues in chambers, at other chambers, solicitors at court, witnesses and court staff. There are also a fair few female pupils, who aged 23 and rather attractive, end up romantically entangled with their (normally mid 30's, married with two children) pupil masters.

As a male pupil I can confirm, sadly, that none of the above applies.

Of Jurors

The methods of the Jury are not only a mystery to practitioners but are also meant to stay that way. The Jury Bailiff is sworn with the following oath:

Do you swear to keep this jury in some private and convenient place, to suffer none to talk to them, nor talk to them yourself concerning the trial this day, unless it be to ask them if they are agreed on a verdict?

The fact that the Bailiff then normally says, "Right ladies and gents, bring all your papers and maps with you and follow me" would appear to be in breach of that oath, but there it is.

There are always the anecdotal tales of Jurors coming out afterwards to witnesses or court staff and saying, "Eeee, we only acquitted because we liked that nice Mr X", referring to the ageing silk, with the twinkle in his eye, and the pocket handkerchief spilling from his top pocket.

Such an example recently came my way: The defendant was accused of punching a man to the floor, and setting about him with others by kicking him whilst he was down.

Silk (ponderously): So he was punching you, you say? 

Witness: Yeah, he was punching me but kicking me too.

Silk (ponderously): Yes, yes, punching you say?

Witness: No, he were kicking me too, kicking me, they all were.

Silk: Hmm, yes, punching...

Witness (irate): No, he were kicking me, kicking me

Judge (also irate): He said kicking! K-I-C-K-I-N-G.

Silk (silkily): Yes your honour. (Pause) My problem you see is hearing, not spelling

Insert Words Of The Caution Here

Unfortunately the word is out and my identity has been revealed to a select few in chambers. Although one has confidently claimed he would have guessed it was me, part of the difficulty is that my peers now wish me to share a little of my experience (see 12/11/12) rather than that of other people (perhaps unfairly pointing out that I have more than my fair share of it).

The highlight (lowlight)? came in a trial with 4 defendants in Teesside last year, 1 of which I defended, along with 2 colleagues from chambers, and a 4th prosecuting the case. As first defendant, I was supposed to have recruited the others to the criminal enterprise. It followed that if I was acquitted then all would be, and also that my closing speech would have to come first.

My style is not really to swagger and put on a great show, but as I came to an important point I was into my stride.

The point I was trying to make was that my client had been cautioned before the interview and complied fully with the officers throughout. In setting up this point I decided to stress how familiar we as the general public are with the words of the caution due to exposure to The Bill and others:

Young Rumpole (for it was he): 

Members of the jury, we have all seen The Bill. We all know the words of the caution that are used on arrest. The same words used before interview or charge. I expect you could recite them to me if I were to ask you to do so now: You do not have to say anything, but it may fail to harm your defence if your questions are...ah...

The transcript we obtained of the hearing afterwards does not record the giggling from my supportive colleagues, nor that of the Judge who appeared to be stuffing his robes into his mouth and making a noise like a motorbike starting up.

Gamely I batted on. We won.

Of Nose-Enders

Having escaped from court for today I returned to chambers, which are not a cross between a sixth-form common room and some old boys' club in London, with the ties, and the whiskey, and the rustling of copies of The Times whenever anyone enters the room.

They are however somewhere where we feel we can talk freely, bitch about opponents, judges or our lives in general. There is a lot of laughter too, even if the comedy comes from the darker end of the scale, and is closer to Psychoville/The League of Gentlemen than awful-and-not-a-lot-funny Not Going Out with Lee Mack.

Very little of the time is spent blowing your own trumpet or how you reduced an opponent or witness to tears, or your latest triumph, but about the mistakes we have made because in general they are much, much funnier. And no-one likes a show-off. Plus as a Judge once said to me, mistakes are only mistakes if you don't learn from them. Then they become experience.

I seem to have gained plenty of experience over the years, but I have yet to top the following nose-ender (a question which produces a devastating and unforeseen answer). This was also an example of asking just one question too many: Little Johnny had told the court his uncle had abused him whilst he was watching TV in his uncle's room. Defending Uncle, the exchange with my colleague went as follows:

Counsel: Were there any other TV's in the house?

Johnny: Yes, downstairs in the front living room.

Drawing a line here would have been prudent: The simple point to make to the jury in closing was that Johnny could have watched TV elsewhere, so why go to Uncle's room. He persisted however:

Counsel (triumphantly): Aha, so you could have watched TV elsewhere then?

Johnny: No because I've got MS and I'm not allowed to go down the stairs on my own.

Counsel: Ah

LSC: A joke that would be hilarious, if it wasn't so serious

About 75% of my time is taken up by either doing VAT returns, tax returns, or correcting the view held by the general public that we are all fat-cat lawyers (something which especially the print media and wider media in general seem to persist in believing too).

Frankly I'd have been better off going in for the whole corporate gig, if the experience of my friends with 9-5 office jobs, company Audi A6's and a pension is anything to go by.

Fees for criminal defence barristers are now paid directly by the Legal Services Commission. In anticipation of the change they closed many of the regional offices and opened one central office in London. With 4 members of staff.

Undeterred, they gamely batted away complaints of payments taking over a year with their spokesperson claiming that 95% of claims were paid within the target time of 3 months.

As your man on the ground I can confirm that this is complete and utter bilge.

The terms of credit for most businesses are 28 days. One might have thought that the government would be keen to assist what are essentially 8500 small businesses by trying to adhere to that timescale, but as I'm currently owed about £20000 in fees, many of which date back to last year, we can safely assume that this is not a priority.

Pulling out my handy yardstick, my fees clerk was on the phone to the LSC the other day chasing another late payment (I should say at this stage that criminal cases are divided into 3 thirds, and you are paid according to when the case is finalised). It seems there was a dispute about which "third" my case fell into. The exchange went something along these lines:

Clerk: But this is a final third case.

LSC: What's a third?

Initial Thoughts

Recently I met up with a very dear friend D whilst on my travels on Circuit. In the shadow of Clifford's Tower, D and I were passing the time in the newly-reduced robing room that had recently suffered the installation of a video-link booth to keep said court centre just about in the 19th century.

I say suffered for two reasons. Firstly considering all the rest of the unused space in the building (including the High Sheriff's Dining Room, current usage: 1 day per year) it was felt that the booths would do just fine upstairs, and to heck with the bespoke furniture and cramped surroundings; And secondly, due to the Grade 1 listed status of the building, the installation was a little, perhaps, limited. That is to say the booth could not touch the walls as a permanent structure, and the powers that be could not remove an ornate and ancient oak bookcase from the wall. So they simply put the free-standing booth in front of the bookcase, leaving the books on it. Ve-ry sensible.

But I digress. D was happy to share a tale of when he was being lead by a former luminary of circuit and the profession as a whole, WS QC. D and his leader were engaged in the defence of one of a team of pimps, who had allegedly been sexually and physically abusing the girls that they ran. One such allegation against D's client was that such abuse had taken place in a car next to a churchyard one evening.

Putting his case as silkily as possible, WS closed his cross-examination in the following way: "There is no issue that intercourse took place in the car that night, Miss X, but there was no unpleasantness, was there?"

To which the response came: "What are you talking about!? He knocked my front teeth out and then s****** me until I bled!"

Nodding knowingly to himself as he sat down, WS remarked, "I thought not."