By the next time I read this entry: either we will be continuing citizens of the European Union or we will not and either we will be in the midst of an economic crisis or we will not. Our present Prime Minister will either still be in office or he will not. And, excluding a possible collapse of our currency, we shall doubtless feel exactly the same as the day before, waiting to see if that constitutes a phoney war to be replaced by the true one later or the reality that nothing will change that much at all.
At least that is how it will all be politically, but what about personally? I have had a sneaking suspicion for some time that the referendum north of the border left a significantly bitter taste in some mouths and also wounds that will take a time to heal. I have a much stronger feeling that things will never be the same between some of the protagonists in this argument, whatever the outcome.
Barristers necessarily find themselves on opposite sides of extremely contentious cases on many occasions. This may involve intense criticism of the ‘other side’s’ case. It can hardly fail to matter to those whom we represent. For most of them, the outcome is vital. And yet, with a few memorable exceptions, the feeling generated by these encounters rarely spills over into much more than an exchange of looks in the robing-room or a wry comment or two and in fact often results in the loser congratulating the winner and the winner commiserating with his opponent. The scene in the film version of Witness for the Prosecution where prosecuting counsel gives a smile and slight wave of his hand to Charles Laughton signifying his congratulation for Laughton’s triumph in gaining the verdict is not so far from the truth.
I am not sure people altogether understand this. It goes hand-in-hand with the classic dinner-party question: how do you defend people you think are guilty? In a criminal trial, we are there to do what the defendant cannot: to present the arguments and submissions that show the prosecution has failed in its task of satisfying the very high burden of proving that he or she is guilty. And in every area of law, before different types of tribunal, representing those seeking something, resisting something, asking for various remedies and reliefs, we are performing a version of the same exercise. The final decision is not ours. We are disinterested, although not uninterested, participants. Surprisingly few clients ever ask if you believe them and although it may seem the most reasonable of enquiries it is in fact an irrelevant question. The service provided would not be any better if you did passionately believe in your client’s innocence and in some cases it might actually be worse, because emotion is not always a good way of helping one see the best case available.
This is at the heart of the traditions operating in a courtroom. It is why barristers call opponents ‘friend’ in formal argument and use the third person when talking of each other. It is the reason that advocates sit down when an opponent rises to make an objection. It explains the prohibition on personal attacks in court, apart from badinage. These, and other unwritten rules, allow the advocate to put his or her case to its best advantage and preserve tolerable relations between the parties who need to be able to communicate for proceedings to be truly effective. These principles are understood because they are part of the essence, indeed the soul, of the profession.
The House of Commons has similar rules too. It makes debate possible when feelings are running high. But there are two key differences: first, politicians are expected to believe in what they are proposing and second, they are debating with each other as fellow decision makers and not presenting arguments as advocates.
Whatever the similarities and differences, politicians certainly forget any lessons learned at Westminster when they operate in the country. Most people regard this present referendum as very important and not well served by either side, with unnecessary personalisation and a septic mix of cynicism, falsehoods, revenge, ambition, bile and stupidity. I am writing this entry as a reminder to myself, because I fear we have only seen just the beginning – and the end may be more damaging than these ‘professional’ politicians, who did not start this campaign with the best public image in the first place, can even imagine.
William Byfield Gutteridge Chambers. William Byfield is the pseudonym of a senior member of the Bar. Gutteridge Chambers, and the events that happen there, are entirely fictitious.