Champions past and present

Cross-examination remaining at the heart of the criminal justice system; the Bar’s great advocates; its international reputation for excellence; and the work of the ATC.

I had intended to begin this month with a reference to the Congress of Vienna, which began 200 years ago, and at which Prince Metternich, Viscount Castlereagh, Talleyrand et al. settled the future of European international relations for a century. However, I have just received the news that Yorkshire County Cricket Club have won the County Championship, and can talk of little else.

In the 1960s the Yorkshire team contained Brian Close, Fred Trueman, Raymond Illingworth and Geoffrey Boycott, all four of whom were playing for the county on my birthday, when they came within a whisker of beating Gloucestershire by an innings. That team won the Championship five times in ten years, and it was natural to believe that we would never see its like again. Yet this summer a Yorkshireman, Joe Root, scored 200 for England at Lord’s, and two other Yorkshire batsmen, Adam Lyth and Gary Ballance, scored more runs than anyone else in first class cricket. And now Yorkshire have won the County Championship for the 31st time, with 8 wins out of 15 games, including 5 wins by an innings.

In the same way, at the Bar, we should resist the temptation to look back on the days of, say, Marshall Hall, Norman Birkett, Patrick Hastings or Hartley Shawcross and think of them as advocates whose stature will never be matched. Conditions have changed, in court as on the cricket pitch (where, for example, it is difficult to imagine Brian Close wearing a helmet), but excellence remains the hallmark of the Bar. While Marshall Hall’s flamboyance may have gone out of fashion, effective cross-examination remains at the heart of our criminal justice system, and there are plenty of effective cross-examiners at the Bar, just as there are those who are unrivalled at presenting cogent legal argument to a judge or making an attractive and winning speech to a jury.

The Bar’s international reputation for excellence is a considerable, and well-deserved, asset. Effective advocacy training I was invited to the South Eastern Circuit’s Advocacy Course at Keble College, Oxford this summer and saw both how much effort goes into advocacy training and what benefits it brings. When I was called to the Bar, there were many who doubted that advocacy could be taught, but experience over the last 20 years and more (including 21 years of the Keble course) show that the skills and techniques of advocacy can be taught and are being taught very well, both here in England and elsewhere. The Inns and the Advocacy Training Council (ATC) have taken advocacy training all round the world, including to many places in Africa, Asia and the Caribbean. Repeated visits to Zimbabwe deserve particular mention.

The ATC has already published (on www.theadvocatesgateway.org) much useful material concerning the handling of vulnerable witnesses and defendants and it is currently working on a project to devise a form of common training for all advocates retained in cases involving vulnerable witnesses and defendants. HHJ Peter Rook QC chairs a working party which includes representatives of the Bar Council, the Law Society, the Crown Prosecution Service and the Judicial College and which has invited contributions from charities who work with victims and witnesses, including Barnardo’s, Victim Support, NSPCC and Prison Reform. Their aim is to promote high standards in the quality and consistency of advocacy by all advocates involved in cases involving vulnerable witnesses and defendants, to raise awareness of the problems which exist in this area and to provide a focus for best practice in the handling of vulnerable witnesses and defendants. As part of a package of measures announced on 14 September 2014 in relation to the victims of crime, the Government have stated its intention to “devise a requirement that to be instructed in cases involving serious sexual offences, publicly funded advocates must have undertaken approved specialist training on working with vulnerable victims and witnesses.” This proposal would extend to defence advocates a requirement of the kind which already applies to prosecution advocates. If this proposal is to be implemented, then there will be a number of practical issues to be addressed, but the ATC’s work will surely provide the foundation for any training courses.

The plight of unrepresented litigants Sadly, the Government’s changes to legal aid mean that too many people are having to do without an advocate at all when they find themselves in court. On 18 September 2014 the Bar Council published LASPO: One Year On, which sets out the results of research into the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 since it came into force on 1 April 2013. Unsurprisingly, a majority of respondents reported that since April 2013 they were undertaking less legal aid work and seeing more litigants in person. Meanwhile, one of the principal alternatives to legal aid in civil cases, i.e. the conditional fee agreement, has become less viable as a result of other provisions of LASPO (i.e. precluding recovery of the success fee and the after-the-event insurance premium from the defendant).

The report contains one particularly vivid example of what may befall unrepresented litigants. The mother accused the unrepresented father of raping her, and might well have been believed had the barrister sitting as a Recorder not found (in papers received on the day of the hearing) evidence which showed that she was lying. Unable to represent himself effectively, the father had not drawn this crucial evidence to the court’s attention. Cases like this are sure to lead to miscarriages of justice.

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