Save for exceptions, such as complainants in sexual allegations whom the judge can allow to testify over a video-link from outside the courtroom, it is from the witness box that live evidence in a trial emerges. Uncontroversial witnesses can have the witness statements that they made to the police read to the jury, saving them the hassle of attending court. But the main evidence will be given live. It will often be supplemented by exhibits, such as documents and photographs, and the parties may produce a list of ‘agreed facts’ to fill in the background, but the hallmark of criminal trials is the oral tradition.
Oral evidence is assumed to be intrinsically superior to written evidence. The idea is that a living, breathing, sweating witness standing a few feet away from the jury and testifying in their own words to what they have personally seen or heard affords the jurors the best chance to get the measure of a witness. It is far easier to embellish, lie or commit to a mistake in a written statement; having your words forensically jabbed and teased as they fall from your lips is apt, the theory runs, to bleed out the inconsistencies and half-truths.
The value attached to oral evidence is such that this alone can prove someone guilty. Unlike in Scotland, where the rule of ‘corroboration’ requires two independent sources of evidence before a jury can convict, the word of one witness will suffice (except, curiously, in prosecutions for perjury and speeding). Often defendants will complain that there is ‘no evidence’ against them. What they usually mean is that there is no evidence to corroborate what a witness says. A single sworn oral account is itself evidence, and if the jury are sure that it is true and accurate, it can be decisive.
It should be emphasized that all sworn evidence, whether given by prosecution witnesses, the defendant or defence witnesses, carries equal weight: just because the defendant stands accused, his evidence and that of his witnesses is not automatically worth any less (although it may be after it has been shredded in cross-examination).18
The CPS
Sitting at the long bench directly in front of me is Megan, the Crown Prosecution Service caseworker, who is the incourt representative of the prosecuting agency instructing me as their advocate to take down Mr Tuttle. Once upon a time this would have been a CPS lawyer, but repeated budget cuts mean that there is now usually a single administrative caseworker covering multiple courtrooms and rushing around to tend to the demands of multiple barristers and multiple judges.
The CPS is a relatively modern invention. Until 1880, there was no public prosecutor; a victim of a criminal offence seeking to prosecute had to either pay their own lawyers or present the prosecution case themselves, save for the most serious cases in which the Crown would take the lead and instruct counsel.19 Between 1880 and 1986, the state took control of prosecutions, with nearly all decisions made by the local investigating police force. However, nationwide inconsistency and a succession of weak cases being booted out of court by judges raised questions over whether police officers were best placed to make fair and objective calls on whether cases they had painstakingly investigated and glued together should be prosecuted or binned. So it was that 106 years and two Royal Commissions later,20 the Prosecution of Offences Act 1985 gave us the Crown Prosecution Service; an independent authority headed by the Director of Public Prosecutions, which would be split into geographical regions and provide independent, expert legal advice to the police, and take charging decisions – that is the decision whether to charge a suspect and, if so, with which offences – in all but the most straightforward, minor cases with which the police could be trusted. This would theoretically lead to uniformity of charging decisions, improve the quality of the decisions taken and ensure that prosecutions were prepared fully and efficiently for court. We’ll look in due course at how those good intentions are playing out in practice.
The Solicitor
Further along the same row as the CPS caseworker, perched in front of Mr Rallings, a pin-striped young man with glasses and designer stubble takes notes. This is Mr Tuttle’s solicitor. In most Crown Court trials, a defendant has a solicitor responsible for the conduct of litigation – trial preparation, management and client care, put very loosely – with the barrister instructed by the solicitor to provide specialist advice and present the case in court. The common, if slightly tortured, analogy of the solicitor–barrister relationship is that of the relationship between a general practitioner and a consultant surgeon. With which solicitors would probably agree, if the GP diagnoses the problem, tells the surgeon exactly what needs doing and sits forbearingly in silence as the surgeon brags to the patient about how his surgical skills have saved the day.
The distinction has existed since the fourteenth century, when lawyers were categorized as either behind-the-scenes ‘attorneys’ or courtroom advocate ‘pleaders’. Today, barristers automatically enjoy full ‘rights of audience’, which permit us to appear in any court in the land, from magistrates’ courts through to the United Kingdom Supreme Court. By contrast, solicitors are only permitted to appear in the ‘inferior courts’, as they are (supposedly non-pejoratively) called – magistrates’ and county courts – unless they undertake specialist courses and qualify as ‘solicitor-advocates’.
The importance of a good criminal solicitor cannot be oversold. Not just because their faith in my limited abilities pays my mortgage, but because their role, unlike the aloof barrister who will rarely even speak to you directly, except at intimidating ‘conferences’ in their chambers where you sit around an antique table sipping Assam tea from bone china, infiltrates every part of the criminal process. The solicitor will be squatting in your stinking police cell post-arrest, advising you on your rights, the nature and strength of the allegations against you and how you should approach the impending police interview, during which they’ll sit dutifully alongside, barking at any sneaky trick questions from the officers. After you are charged, your solicitor will usually be the one representing you at the first appearance before the magistrates, advising you on the initial evidence, the appropriate plea and whether to opt for trial before magistrates or jury. If it’s a Crown Court case, they will handle the heavy-duty defence evidence-gathering: taking witness statements, pursuing lines of inquiry, demanding undermining disclosable material from the CPS. They will instruct an expert to challenge the Crown’s mistaken DNA evidence, prepare the various administrative documents that the court requires and ensure that you get as much face-to-face contact as you desire, whether at their offices or in one of Her Majesty’s salubrious remand prisons. They will analyse the evidence and devise strategy, tactics and presentation with the barrister, or if the case is a magistrates’ trial, they will usually do all the courtroom advocacy themselves as well. In the Crown Court, the best solicitors will attend throughout your trial to offer moral and practical support to you and your barrister. They will help you get your belongings back from the police if you win your trial, and will visit you in prison to advise on your appeal if you finish runner up. Good solicitors will be your first and last point of contact, on call twenty-four hours a day; their raison d’être being to protect you from the merciless swing of the prosecution scythe.
The Barrister
Standing up and engaged in polite, overly formalized exchanges with the judge are myself and Mr Rallings – the barristers. Our role is to present our respective clients’ cases as persuasively as possible, by adducing evidence, arguing over the applicable law, questioning witnesses and persuading the jury of the virtue of our cause in chest-beating speeches. This is the nub of the adversarial criminal trial.
For many, an air of mystery hangs over what we actually do. Partly this is because many people’s experience of lawyers will be limited to civil, as distinct from criminal, law. In its very loosest sense, civil law encompasses a broad range of legal services from non-contentious – such as the conveyancing when you buy or sell a property, or wills and probate – to contentious, including personal injury claims, contract disputes, employment law, divorce and commercial litigation. I
f this is all you have encountered of the legal system, you will invariably be dependent on second-hand accounts, TV shows and guesswork to cobble together an understanding of the alien world of criminal litigation. Public unfamiliarity may also be because the Bar is traditionally a ‘referral profession’; individuals have to go through a solicitor to instruct a barrister, meaning most contact is at arm’s length.21
But mostly, it’s our fault that the public doesn’t know what we do. We glide by, certain that our professional heritage gives us a self-evident importance requiring no introduction, with the result that not many ordinary people know much about us. No one needs a primer explaining the difference between a GP and a surgeon. But ask your average jury to delineate titles tossed around by the legal industry, and most would fumble in an indistinct haze of barristers, solicitors, lawyers, advocates, attorneys, paralegals and briefs, before volunteering a tentative jumble of words ending with a rising inflexion on the word ‘Rumpole’.
Put into the criminal context, our adversarial justice system pits the state against the accused. A publicly funded prosecutorial office (usually the Crown Prosecution Service) instructs a barrister to prosecute those accused of criminal offences to persuade a jury that the case is proved on evidence beyond reasonable doubt. The prosecuting barrister will advise the CPS on what further evidence is required and on any complex legal matters arising, and will present the prosecution case at trial. The accused is in turn defended by (theoretically) equally competent legal counsel, instructed by defence solicitors, advising the client on the evidence against him and, if the client denies guilt, fighting to ensure that the law is applied in the client’s favour, cross-examining the prosecution witnesses and trying to persuade the jury that the prosecution case has not been made out. If the client pleads guilty or is convicted, the defence barrister will present his mitigation at the sentence hearing before a judge.
Out of the 15,000 barristers in England and Wales, around 4,000 of us are criminal practitioners, assuming one of these diametric roles in Crown Court (and occasionally magistrates’ court) cases across the country. Most of us are self-employed; hired guns, ethically obliged by the ‘cab rank rule’ to take the first case that comes calling to our clerks, regardless of its merit or our personal feelings about the parties or principles involved. And in crime, this means that most barristers both prosecute and defend (although not, obviously, in the same case). And my view has always been that doing a bit of both is good for the soul. It reinforces your independence. It sharpens your objectivity. And it helps you, in any given case, to know your enemy.
As for what causes a law graduate to swallow the red pill marked ‘Barrister’, we all have our official stock answers gathering dust from our days interviewing for pupillages. A thirst for justice. A passion for advocacy. A need to help the helpless, voice the voiceless and improve the unimprovable. (If you think that last one is particularly cringeworthy, you’d be right. But, believe it or not, for my first five interviews, I actually thought it sounded impressive.) Sentiments which are all, in their essence, both necessary and true. But most applicants are too timid to admit the core motivation that lures someone to the Bar: the cry for attention, the desperate need to be centre stage in the climactic scenes of people’s lives. A combination of sated vanity and, buried deep below the affectations of brash nonchalance, a quiet but sincere desire to help people tends to be the unifier among most criminal hacks.
Up until the eighteenth century, however, Mr Tuttle would not have had the advantage of an advocate to plead his case to the jury.22 Despite the legal profession having been recognized in law since 1275,23 it was simply not the practice, until the 1700s, to sully us with the criminal process, with pleaders confined to civil proceedings. Instead, the ‘altercation trial’ that emerged in the sixteenth century pitted the alleged victim, who was also the prosecutor, directly against the defendant in a daytime TV-inspiring confrontation, while a jury determined guilt according to the defendant’s often-inarticulate responses to the prosecution’s allegations. It was something of a free-for-all, with no rules of evidence, and no lawyers.
Barristers first started traipsing into criminal courts towards the beginning of the eighteenth century, when the Crown, having up until now nominally prosecuted in the king’s name but outsourced the grubby work to the complainant, decided to instruct lawyers to prepare and prosecute their cases in court. However, there persisted an institutional, judge-bolstered resistance to allowing the defendant to be legally represented. This was, rather splendidly, justified in terms of concern for the defendant, who, it was considered, would make a much better fist of telling a court about matters that he had witnessed first-hand than if he had some stuffed shirt distilling his words for him. The defendant’s interests, it was said, could be adequately protected by the judge ensuring that the trial was conducted fairly.
Such was the ‘disadvantage’ of being legally represented, that, by the early seventeenth century, though it was not uncommon for defence lawyers to be permitted to act for people accused of trivial misdemeanours, judges insisted that their courtrooms remain defence-lawyer free in serious felony cases of life and limb, purely for the defendant’s own benefit. Cynics of the age suggested that the prohibition on defence lawyers was simply to make it easy for a bumbling, vulnerable accused to unwittingly inculpate himself. It simply wouldn’t do to have lawyers distracting the jury when the ‘truth’ could so easily be extracted from an unrepresented defendant.
To an extent, judges were right. Once the Treason Trial Act of 1696, which guaranteed the right to defence representation in treason cases, nudged the door ajar, beseeching lawyers persuaded judges to incrementally extend the right to representation in other, serious trials, until, by the end of the eighteenth century, defence advocates were a regular presence in the criminal courts. And, as feared, they ran riot over the settled production line of convicting miscreants. At first the barrister’s role was strictly limited: he (for it was always ‘he’ until Helena Normanton smashed the glass ceiling in 1922) could address the court on matters of law. And he could cross-examine the prosecution witnesses. He was not permitted to assist in the presentation of the defence evidence, and was not allowed to address the jury. The theory was that defendants would continue to be obliged to speak in their own defence, from which the truth would emerge.
Inevitably, lawyers pushed the envelope. Matters of facts were spuriously recast as matters of law. They used cross-examination to indirectly address the jury. Some of them resorted to outrageous acts of intellectual – and actual – dishonesty to save their clients. But, most importantly, it was thanks to their ingenious arguments that courts found themselves railroaded into developing laws of evidence – such as the rule against hearsay (things said out of court being relied on as evidence in court), designed to protect defendants from being convicted on the basis of untested second-hand gossip.
In 1791, in a trial at the Old Bailey, celebrity barrister du jour William Garrow sternly told the judge that ‘every man is presumed to be innocent until proved guilty’. This was the first formal articulation of what would, in 1935, be described by the Court of Appeal as ‘the golden thread’ running through the web of English criminal law24 – the presumption of innocence, and the burden of proof. Its application in practice – that the prosecution must prove its case beyond reasonable doubt (or, as it is nowadays phrased for juries, proved so that they are ‘sure’ of guilt) – is without question, as you will hear in every defence advocate’s closing speech to the jury, the greatest protection our system offers. No one shall have their liberty infringed on the basis of guesswork or supposition.
The Trials for Felony Act 1836 gave all prisoners on trial for felony the right to be represented by defence counsel, and granted defence counsel the same right as the prosecution to address the jury on matters of fact. That was the final piece of the jigsaw. Belatedly, we had arrived. Complainant-led altercation had given way to lawyer-dominated adversarialism.
It should be said that professional ethics have improved since the nineteenth century. Many people today might assume from popular culture that the famous complaint from the Law Times in 1844 that ‘An Old Bailey Practitioner is a byword for disgrace and infamy’ still holds true, and there undoubtedly persists a media-reinforced image of defence lawyers breaking whatever codes of morality or law are required to secure the acquittal of clients whom they know are guilty. But in reality, our professional obligations are strictly prescribed.
The Bar Code of Conduct imposes a duty on the barrister to ‘promote and protect fearlessly and by all proper and lawful means his lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person’; but the key is ‘proper and lawful’. Our overriding duty is to the court. We cannot mislead the court by saying something that we know to be untrue. So, for example, if my client tells me he scrumped an apple, I can’t stand up and suggest to a jury that he didn’t, or that the witnesses who saw him scrumping are lying. But if he insists that, notwithstanding the compelling testimony of the two hundred witnesses in the orchard, he is an innocent man, I roll away my personal views on the veracity of his tale, put on my wig and get ready for battle. We do not judge. We don’t know the truth of our clients’ situations, and it’s not for us to guess. All we can do is advise and advance their instructions as best we can, even where, as with Mr Tuttle, it might appear obvious that the client is as guilty as original sin.
The Secret Barrister Page 4