William Byfield’s Secret E-Diary May 2009

29 May 2009: old questions, new answers and a face-to-face meeting


Last night I went to what can only be called “a traditional dinner party”. I knew no one apart from my hosts. “This is William,” I was introduced—and no doubt with the best of intentions—“he’s a QC”. My heart sank. I knew what would come before the end of the evening. We were actually seated at table before it came out. “May I ask you something?” I nodded. “How can you defend people when you know they are guilty?” For many years I made the mistake of believing there was interest in the answer. I would explain that I only contested cases where my lay client told me he or she was innocent. I usually omitted the “putting to proof” exception as it muddied the waters. I gave the example of the entirely innocent man who had said to his wife in the pub he “could kill” her “sometimes” and who came home to find her stabbed to death on the living room floor. He pulls the knife from her chest only to find his next door neighbour staring at him in horror…

I have come to realise that the interrogator could not care less. The question, with the implied rebuke and distaste, was all. The “DPQ” does not only occur at dinner parties. Cab drivers, relations, partners, children and godchildren, chums from the Varsity – everyone asks it. No one has ever asked me the opposite question: “how could you prosecute someone you believed to be innocent?” I leave it to you, my electronic friend, to contemplate that one.

I have had some success in the past at heading this question off at the pass by spilling something or diverting the conversation. My interrogator last night would not be diverted, so I hit upon a new technique. I smiled back with an unpleasant glint in my eye and said slowly and deliberately: “it excites me”. That shut her up.

At the risk of sounding nostalgic, the reason why the DPQ is irrelevant to us was exemplified for me many years ago when appearing in front of some delightful Circuit judge who spent most of the day contentedly asleep, thereby allowing counsel a free hand unless we quarreled. On this particular day I was defending a tetchy youth from the Isle of Dogs who said, in a mardy and petulant way, when under rather uninspiring cross-examination by my opponent: “ok, I did it…you say I did it, I’ll say I did it…I did it…that make you happy?” In less politically correct times (you will bear in mind) I indulged myself in a brief fantasy of giving him a well-deserved thrashing when suddenly the judge shot forward, galvanised by this crisis which had entered his consciousness at some animal level – “no! no!” he cried, as though a streaker had interrupted the opening innings at Lords, “you say you are innocent, the prosecution says you are guilty and the jury decides. Now, don’t be silly!” The natural order of things was resumed and the defendant was, predictably, acquitted.

However, I have often felt that the solicitors were the necessary conduit through which this delicate relationship was conducted between the parties. When an alleged burglar once wanted to become a little too communicative in a conference by telling me what, as he termed it, “really” happened, the solicitor’s representative (an ex-policeman ironically) at once said in growling tones: “not in front of the barrister, Dean.”

But juniors in Gutteridge tell me that they now find themselves face-to-face and alone with the lay client. I imagined this was happening in run-of-the-mill triable-either-way cases, but imagine my horror when I appeared at the Central Criminal Court in a kidnap and murder case today only to find myself looking into the eyes of my lay client and talking to him with no solicitor present. Worse still, my junior was in the Court of Appeal. I suppose solicitors must have to cope with this all the time, but then they have those little dictation machines and a much greater aptitude to write and talk at the same time. I suspect they also “know more” about the client so it is not an unequal relationship.

I felt something akin to panic, not unlike the sensation when, aged 14, I first asked a young lady to dance at a young teen’s disco. What if he subsequently accused me of saying things that I never said or of giving him advice I had never uttered? You simply cannot keep asking people to sign things all the time confirming your version of events. It erodes trust.

I must remember to ask the Management Committee to arrange a CPD accredited course so that we can learn how to be solicitors and keep all those detailed records without appearing rude. And I need to warn Chambers that the BSB will doubtless be entirely unforgiving if we cannot corroborate our oral advice.

William Byfield is the pseudonym of a senior member of the Bar. Gutteridge Chambers, and the events that happen there, are entirely fictitious.