Of Jurors, Part 2

It seems to be a curse of living in the modern age that, whilst pre-Twitter and Facebook, people might have had opinions on current affairs but you were unlikely to ever hear them, the advent of those two mediums mean that firstly people tend to share their opinions (whether sought or not), and increasingly believe that because they can share their opinions they are necessarily important or correct.

The irony of writing a blog is not lost on me.

Moving swiftly on, this opinion-creep appears to have started with those ghastly phone-ins on radio, which seem to appeal on the basis that they are cheap to produce. Viz the faux-sensationalism and mock empathy of the Jeremy Vine show on Radio 2, or the thought process on 5 Live which means that rather than broadcasting live sport (which is still continuing) you can instead listen to armchair pundits ringing in to bemoan their team's tactics. Rather than being some form of thought-provoking, passionate debate, you essentially end up with a pair of idiots shouting each other down. 

The inspiration for this piece is the furore about the decision-making process (or lack thereof) of the jury in the Vicky Pryce case. The robing room abounded with theories about how the jury ended up in that particular mess this morning, the most popular being two competing views: Firstly there were one or two people that had fundamentally mis-understood the whole process, and, exasperated at having tried to explain it many many times, others decided to say, "Look, fine, we'll ask the Judge to explain it." The alternative view was that there had been one or two clever dicks on the jury who wanted to play Columbo, because either they'd been watching too much CSI Miami (whatever that is), or because they thought that they knew better than those silly lawyers and the Judge.

Either way, I am still a card-carrying advocate of the jury system for all its faults, if only for the moments of inadvertent comedy (and therefore blog content). A colleague was defending out in Grimsby, and when he came to deliver his closing submissions had had with him a videotape cassette. There had in fact been no video evidence in the case at all, so his opponent was interested to see what use would be made of it (as an old silk once said to me, "Props, dear boy. Props.")

Rising to his feet, my colleague brandished the videotape at the jury:

Counsel (Rhetorically): Now members of the jury, the prosecution have to make you sure of the defendant's guilt. If I was to tell you that I had on this videotape an exact recording of the events in question, then ask yourself would you want to view it? If your answer was to be yes, then you couldn't be said to be sure of what happened, could you? This videotape, would you want to see it?

Juror (emphatically): Yes please

Not Preaching, but

It seems that the new-year cheer and hope for the future was exhausted in the corridors of power in record time this year (but a Happy New Year to you, both.) 

Not yet 24 days into a new year and the Government in the form of Chris Grayling (Justice Secretary, Lord Chancellor and Conservative MP for Epsom and Ewell) felt it necessary to decry the daily fees paid to leading criminal defence silks, as being anywhere between £1300 and £2000. The standard rationale was trotted out, namely why should the public purse pick up the tab for defending criminals?

This short-sighted statement of course pre-supposes a number of things:

1) That everyone is guilty, and that the whole trial process is some charade concocted by lawyers; 

2) If everyone is guilty then they don't need access to expensive, excellent quality advocates, because it's sufficient to just make it look like a fair trial is being conducted;

3) If it can be done cheaper, then that is necessarily better.

Dealing with those points in turn:

1) Mr Grayling would do well to have these five cornerstones of the legal system in this country in mind the next time he formulates policy: In this country you are innocent until proven guilty. You have a right to a fair trial. You are entitled to a legal representative for which the state will foot the bill if it is accusing you of committing a crime. The defendant bears no evidential burden and may remain silent throughout if he wishes. The prosecution must prove the case so that a jury are sure of his guilt.

The difficulty with his proposition is the same tired explanation I give whenever anyone asks me, "How can you defend someone when you know they're guilty?"

To which the short answer is, "You can't", before moving off to find less boring company. If someone tells me they've done it, then it's a guilty plea or walk away. IF they tell me they haven't done it, no matter how overwhelming the evidence, then it's the defendant's decision and there will be consequences in terms of sentence should he be convicted. I am only permitted by the Bar Council to advise someone of the strength of the evidence, and that they will receive credit for a guilty plea.

The other difficulty is that the statement pre-supposes that everyone that has a trial is convicted at the end of it anyway, and therefore has been "a criminal" all along-so the money has been wasted. But of course people are often acquitted after trial.

If they are acquitted does that mean it has been well spent? Does that then justify employing a silk on £2000 per day or not? How do you decide which cases will and will not get silks? Is it necessary to review the case beforehand and pre-judge the fees allowed?

My short experience (7 years in April coming) has permitted me to see cases from both sides: where I thought we were dead and buried, and the defendant acquitted, and cases where someone was convicted on very little evidence at all.  

2) Market forces are what they are. Generally if you want excellence you have to pay more for it. I'd be fairly happy to have a junior doctor stitch my arm up in A and E should I suffer a mishap (as long it was not one of my pals). I'd be less content with him performing open heart surgery on an elderly relative, due to a lack of experience and expertise. 

I don't see Jeremy Hunt MP saying that Senior Heart Surgeons are overpaid however-I wonder if Mr Grayling would like to go toe to toe on this point?

3) One of the best parts about his pronouncement was that some of the cases being undertaken by silks could be undertaken by junior barristers (in this context anyone who is NOT a silk), who might be about to take silk in a couple of months. They already have the skills but don't command the same rates. This really is excellent stuff, as many of my colleagues are looking forward to the Ministry producing the list of "People Who Will Be Silks In A Couple Of Months" list to see if their names are on it.

One wonders what we were expecting really. Mr Grayling is not a qualified Solicitor or Barrister. He has no law degree, but a background in television.

Aha, some might say! Well Mr Hunt MP isn't a doctor, and he is the Health Minister. Quite right-but note Mr Grayling is also Lord Chancellor. And the first non-lawyer in the role since 1588. 

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.