Balance of power

‘Shifting powers’ and an ‘unfair, hostile and resource-driven’ climate are sidelining the needs of vulnerable defendants and witnesses, the ICCA’s ambitious inaugural conference heard. David Wurtzel reports

The first annual conference of the Inns of Court College of Advocacy (ICCA) on 29 October 2016, organised by Bernard Richmond QC, chose as its theme the vulnerable client. 

Sprawling over Middle Temple – plenary session in Hall, refreshments in the library, and break-out groups spread over the Advocacy Suite and the Bench apartments – it was suitably ambitious. There were 18 break-out groups with a large range of topics. Drugs and violence, dealing with autism, distraught families and inquests, empowering clients with disability, pressure to plead hearings – and much more. They were led by people with considerable experience in this particular field, and who came to it with a strong sense of commitment. With 180 delegates including practitioners, pupils, academics and registered intermediaries, the groups remained small, which should have encouraged participants to ask questions and to be interactive.

Shifting powers

Dr Nicola Padfield, Reader of Criminal and Penal Justice at Cambridge and Master of Fitzwilliam College, Cambridge started the conference off by explaining that we are all vulnerable because we are in the grip of ‘power’ and by querying what the balance in the title of the conference was. She did not detect a balance of power though there were shifting powers between judges and prosecutors which tended to leave the defendant feeling sidelined. Even Crown witnesses are disempowered by the police writing their statements for them and inserting language the witness themselves would not use.

The second plenary session was a demonstration of examination of a witness through interpreters. Last year the ICCA’s predecessor, the Advocacy Training Council, produced a film of good practice on this and guidance for advocates. The conference was told that they had decided to abandon their recommendation that ‘rigamoroles’ such as ‘I am going to ask you some questions about’ should not be used. They were used, to no obvious detriment. Although there was no discussion about formulating questions, cross-examination perhaps unwittingly showed how difficult it was to live up to the ICCA’s high standards. There were a number of assertions rather than questions, metaphors (‘support each other’) and the use of lawyer’s language (‘make up these allegations’) that the interpreter did his best to translate.

Client perspective

Key perhaps to the day was the sub-title ‘The Client’s Perspective’. In ‘Communicating with Young People’ – the session about young offenders – we first learned that ‘lawyers instinctively jump in and ask for the facts they need to know’. It is essential, though, to discover the background: what had been happening to the suspect, why he was there, and indeed whether he was eligible for being diverted away from the court process. In ‘Clients Culture and Communication’ there was a useful case study about an illegal Vietnamese immigrant who was caught working in a cannabis factory. If one only asks ‘did you do this?’ one would miss the cultural background. In that instance he had, in fact, been trafficked into the country and had a defence under the Modern Slavery Act 2015. Our attention was drawn to a recent tribunal judge’s remark ‘there is a great deal of authority to the effect that the United Kingdom is not a retirement home for the rest of the world’. Even the judiciary must be alert to cultural issues.

Alert but also proactive

In the session on intermediaries for defendants, Angela Rafferty QC, vice chair of the Criminal Bar Association, asserted that the current climate is ‘unfair, hostile and resource-driven’. She described two (anonymised) cases she had done, one in which the intermediary helped to flag up the defendant’s disabilities which were at the heart of his defence, and another where the judge’s refusal to allow an intermediary was miraculously counter-balanced by the effect of late-disclosed material on the reliability of the prosecution case. In the final plenary session, Dame Joyce Plotnikoff pointed out that Intermediaries for Justice (who had a stand at the conference) were able to help with advice on the issue of intermediaries for defendants and to assist in finding one to act at Ministry of Justice rates.

More than one speaker called attention to and praised The Advocate’s Gateway as a resource open to all.

Further information

A full report detailing the primary outcomes of Vulnerability & Power – Maintaining the Balance: The Client’s Perspective will be published on www.advocacytrainingcouncil.org

Contributor David Wurtzel, member of the Counsel Editorial Board

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David Wurtzel

David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.