The Unacceptable Tweet

When I was interviewed during my QC application I was asked why I thought that “Diversity” was one of the attributes that was required in aspirant Silks. Part of my answer was that, as a junior, I had looked to Silks to provide an example. That Silks were not just leading counsel but are, more often than not, the leaders in the profession.

This weekend I have spent a lot of time reflecting how best to react to a Tweet from a fellow member of the Bar, Jon Holbrook. I have debated with myself whether referring to it is amplifying the original Tweet and adds to the issues created by the original post. I have also reflected over issues surrounding free speech.

After that period of reflection I am quite satisfied that I have no choice other than to respond to the Tweet. And to make it clear that it is reprehensible and thoroughly unacceptable.

The context is that Mr Holbrook Tweeted about a case where a schoolchild and her parents challenged a school’s rule about hair which had seen her excluded from the school for periods of time. Her argument, ultimately successful, was that the rule was discriminatory.

His Tweet stated “The Equality Act undermines school discipline by empowering the stroppy teenager of colour” and quote Tweeted a short film about the original complaint.

I repeat – this Tweet is wholly unacceptable coming from a member of my profession.

I have no difficulty at all with Mr Holbrook seeking to debate the rights and wrongs of the Equality Act. I suspect he would be very wrong, yet it is an argument he can try to advance. But this Tweet has three very significant issues.

The first is that it is linked to the story of the young woman in the video. The implied criticism is, contrary to the fact that the school ultimately settled her complaint, that this was a frivolous and unfounded complaint borne out of caprice and not due to direct or indirect discrimination. Mr Holbrook, from the comfort of his keyboard, has implied that the young woman has “played the race card”.

In the BSB Code of Conduct core duty 5 states that “You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.”

The BSB have issued guidance about the use of social media and the interaction with CD 5. For my part it is difficult to see how the Tweet of Mr Holbrook does not demean the complaint made by the young woman. He has portrayed her not as a victim of some form of discrimination but as nothing more than a stroppy teenager who played the race card.

That is not acceptable.

Secondly Mr Holbrook’s Tweet links his perception of the Equality Act being used to undermine school discipline to one protected characteristic and one only. Race.

There are 9 protected characteristics. He does not complain that disabled students undermine school discipline by utilizing the Equality Act. Or students who follow a particular religion. Or male teenagers. It is “a….teenager of colour”.

Race is the one protected characteristic which is singled out as being misused by those bringing complaints under the Equality Act. We circle back to that phrase “playing the race card”. A phrase used to undermine those seeking to redress an injustice.

That is wholly unacceptable.

And finally it is the use of the phrase “stroppy teenager of colour”. It instantly sets the non-white teenager as being different. It sets them as having an advantage over their white peers by this legislation. It makes the accusation that the challenge to an unfair and discriminatory rule is based not out of legitimate complaint but a desire to cause trouble. It instantly diminishes any such complaint.

But it is so much more. “Stroppy”. It almost says “uppity”. It resonates with “know your place”.

It is simply unacceptable.

So what? Why does it matter?

I have read the Tweets that support Mr Holbrook. One of them came from someone who Tweeted that the Equality Act also facilitates BAME candidates being promoted beyond their competence, a view Tweeted by a man who also sought to justify a comparison between people of Afro-Caribbean heritage and primates. Just typing that sentence made rage creep through my body.

Mr Holbrook is not directly responsible for the views of others. His Tweet gives encouragement, however, to those who see the vital protections afforded by the Equality Act as nothing more than an unfair advantage to the undeserving. It is a fuel of racism.

Words matter. How we express ourselves matters. That an advocate should Tweet something which emboldens such a racist to add their support to the Tweet is appalling.

It is not acceptable.

And how would the teenager who is visually different from Mr Holbrook, the “teenager of colour”, who wants to be a barrister feel upon reading Mr Holbrook’s Tweet? Would they feel that this was a profession for them?

That is why it is vital that I, amongst so many others, say that this is not acceptable.

But saying is one thing. It is an important thing. But I feel that more needs to be done. Mr Holbrook has had more than enough time to reflect. He has had plenty of people point out the issues with what he has said. And yet the Tweet remains.

That is why I have decided to report Mr Holbrook to the BSB. This is something I have never done before. I don’t want to “cancel” Mr Holbrook. It is not for me to determine ultimately whether he has breached the Code we share. It is, however, vital that our Regulator examines this conduct.

Those of us that are a part of this profession are privileged. Mr Holbrook uses that privileged profession to be a “commentator” in publications like Spiked. He has a right to freedom of expression. But with that right and the enjoyment of that privilege comes a responsibility.

In my view Mr Holbrook is responsible for expressing a view which damages my profession and diminishes the standing of our profession. He hasn’t uttered a word of apology or contrition or acknowledgement of people’s concerns. Of course, that is not the way of the contrarian. He has not even responded to the repeated Tweets of the mother involved in the story, Tweets which contain a dignity which jars against the cowardice of silence in response.

This is why we have merchanisms of complaint. It may well be that I am wrong. That’s why others are in place to judge Mr Holbrook. But to stand by and not say anything, to not do anything, would be to abuse the privileged position that I hold.

I have no doubt that some will consider this approach as “virtue signaling”. I am not signaling my virtue. I am seeking to uphold the values which seem core to the bar taking its place in a modern society. With the privilege of our regulated profession comes responsibilities.

It is possible to debate the utility and purpose of equality legislation without implying unfair criticism of an individual and without a lazy generalised swipe at BAME teenagers.

Applications Open!

If you are reading this you probably know that there are three paid work placements on offer with myself, Nicholas Clarke QC and Chloe Ashley. Myself and Nick are at 9 St John Street in Manchester whilst Chloe practises at No5 in Birmingham. The remuneration is a bursary of £700 for the two weeks plus up to £300 towards your expenses. It is hoped that this will be more than just an extended mini-pupillage following people to court but will include marshalling and other experiences of life as a barrister.

This is the process by which all three placements will be selected. The initial application is by email and ten candidates will be selected for an interview by Skype/FaceTime. The ten on the shortlist will receive a signed copy of The Secret Barrister’s book and a copy of Rumpole of the Bailey.

I am afraid I am not going to be able to provide feedback to those unsuccessful and I am afraid only those invited for interview will be notified directly of the outcome. I will announce the names of the final ten on my blog and my Twitter account, so you will be able to check there. Once I know how many applications I am dealing with I will announce the date by which the successful candidates will be notified.

The initial stage will be an application by email to internship@9sjs.com. This email account will only be used for the purpose of this application and will be disabled once the shortlist is announced. Please only use this email address, do not contact my chambers as this is a personal arrangement and not something that my clerks or others at chambers have any role in organising.

The initial application should include the following details in the body of your email;

1. Full name
2. DOB (the placement is open to those who are 17 years or older on 31/07/19)
3. Postal address (if you are a student it may be best to use an address from which you can collect your post outside of term time)
4. Email address
5. Contact telephone number
6. Educational history (A-Level or equivalent onwards, just let me know what you studied and where, I don’t need grades)
7. Previous legal work experience
8. Please indicate which three of these areas you would like to have some experience of in the course of the placement Crime; Family; Employment; Civil PI; Civil Commercial.
9. Preferred location Manchester or Birmingham

None of that information will be used to decide to who is placed on the shortlist. Some of the information may become relevant at the next stage but will be explored at interview. All of that information should be provided in the body of the email. Then you need to attach a separate document to the email, either in Word, PDF or Pages format, which is a written piece by you which answers the question “Why you should be offered the placement”. The STRICT word count is 750 words. For the shortlist I will be looking at the reasons you give why it should be you AND the manner in which you seek to persuade me.

I am going to give you one or two hints and tips. This is not the X-Factor. I do not need to know the incredible journey you have been on. I want to be persuaded with reason, not with adjectives. I will take it as a given that all of you that have applied really, really want this opportunity! Stick to the word limit – concise arguments are key to the successful barrister.

My aim is to provide these placements to candidates with real potential for a career at the Bar but for whom work experience opportunities are limited.

The closing date for applications is 4pm on 17th June 2019. The dates of the placements are flexible to suit the candidates and the availability of the three of us supervising. I cannot thank Nick and Chloe enough for joining me in this enterprise. I also have to thank an anonymous individual who has provided the funding for the placement with Chloe. I also have to thank the Judges and solicitors who have assisted so far and Tim Collins, a legal recruitment consultant.

I look forward to reading your persuasive pieces of written advocacy. Good luck!

Work Experience

A little while ago I criticised a London chambers for the fact they were offering unpaid internships. I believe this to be totally unacceptable. Undoubtedly aspiring members of our profession would gain valuable experience from such an opportunity but I believe that people should be paid fairly for their work and I also believe that such an opportunity should not be dependent upon the individual’s ability to fund themselves. An unpaid internship gives someone with the money to afford to work for free an advantage over someone that does not have the same means.

An internship is more than just the shadowing type of work experience that a mini-pupillage brings. No matter how well meaning a chambers is in providing such an opportunity there will come a time when a task undertaken by the intern will be of some value to the organisation, whether it be taking a note in a conference or doing the photocopying. Yes, the intern may get the chance to see Miss Tenant doing a great cross-examination but that is not the same as paying someone for the fruits of their labour. If you want someone to do the photocopying, pay someone to do the photocopying. Any other arrangement is simply exploiting an uneven relationship. It is preying upon the desire of those seeking to get a foot in the door. It is wrong.

That is all well and good. It is very easy to be vocal on Twitter. Talking about wanting the Bar to be a diverse is as easy as saying you would like it if you could win the Lottery. Even telling an inspirational tale of your own progress through a comprehensive school education and a job in a bike shop, in the hope that others in the same position will see that it can be done, can only plant the seed. It does nothing to nurture the person coming after you.

And so, as I sent out another Tweet which explained why I was so critical of what someone else was doing, I thought about what I was going to achieve. And the answer was not very much. A few likes, a few retweets. It wasn’t even going to prompt the chambers in question to pay the next intern. So the question was – what could I do? Another talk at a school? Another blog about how my grandad was a roofer?

The answer was obvious. I had to put my money where my mouth is. Hence my offer of two weeks paid work experience. And here is more detail about what that will mean.

This year I will select someone to spend two weeks gaining an insight into life as a barrister. That is not just going to be two weeks of following me around, I want to give someone a wealth of work experience. I want to make sure that those two weeks have real value. So the two weeks will not be just spent with me telling stories of when I was brilliant in court or sitting there whilst I demonstrate that I am not so brilliant in court. I hope it will be much more than that.

Before getting into the detail of what will happen and how to apply, let’s deal with the most important issue. I will pay. For the two weeks spent with me I will pay the successful candidate £700 as a bursary. In addition I will also pay up to £300 for expenses arising out of the two weeks so that the offer is available to those who do not live in Manchester. I hope this means that those who are in a position where they would normally not be able to take a two week placement out of the necessity to work during that period will be able to apply for this placement.

I am a criminal Silk but this placement is not just for those who are interested in crime. As part of the application process candidates will be asked to identify three areas of law from a list of those that I will be able to provide experience of during the two weeks. The placement will be overseen by me but, with the kind assistance of some of my colleagues and friends in chambers, the successful candidate will have a wider experience than I can offer alone.

During the course of the placement I will undertake two sessions of advocacy training, one towards the beginning of the period and one towards the end. Tim Collins, a consultant in legal recruitment, has kindly offered to give the successful candidate a CV and interview clinic via Skype. I will then build on that session with a further discussion about applications to chambers. There will be a day spent in the clerks room, seeing how the administration of chambers works. Subject to their availability, I have also arranged that the successful candidate will spend a day marshalling with a Circuit Judge and will spend a day with a firm of criminal solicitors.

The placement is open to those aged 17 or over. There are no other requirements. Once I have selected the person to undertake the placement then we will find a convenient date (so it does not necessarily have to be over the summer).

The application process will open on 3rd June and will close at 4pm on 17th June. I will provide an email address from which those interested can obtain a relatively simple application form which will then be sent back to the same address. The applicants will also be asked to provide a 750 word explanation as to why they should be offered the placement. This will be the most significant factor in deciding which candidates make the shortlist. As well as content, the potential to communicate effectively will also be assessed.

Ten applicants will make it on to the shortlist (if there are at least ten applicants….). Those who make the shortlist will be interviewed via Skype by myself and one of my colleagues from Chambers.

From the ten we will be selecting two candidates. Yes, two. My fellow QC, Nicholas Clarke, head of the criminal team in chambers, has volunteered to replicate my offer. So I will be selecting one placement with me and also one with Nick (the details of his placement may differ from mine, it may not contain the same elements but will come with the same bursary, provided by Nick himself). I will put Nick and this second candidate in touch with each other so that they can sort out the details.

I am sorry that we are not able to offer all ten shortlisted candidates this opportunity. As a significant consolation, all ten shortlisted candidates will receive a copy of Rumpole of the Bailey and a personalised signed copy of the Secret Barrister’s book. Yep. That’s right. The Secret Barrister and their publisher, Pan Macmillan, have very kindly offered to supply personalised copies of the bestselling legal book of the decade to those who make the shortlist.

So watch this space. Make sure you are following me on Twitter @jaimerh354 or my blog, View From The North, to find out more about the application process, including the email address. Please do not contact my chambers about this process, this is something I am doing and organising on a personal level. All correspondence concerning it should be sent to the email address that I will advertise in due course.

Be The Aubergine

When I was at University a mate of mine used to wear a t-shirt that bore a picture of an aubergine and the slogan “An aubergine having fun.”  It was just a picture of a plain old, inanimate aubergine. So my advice to aspirant advocates is: Be The Aubergine. 

I am not counselling against fun. I am not suggesting adopting a purple hue. It is the inanimate, inscrutable appearance of the egg plant (as an American advocate would have it) that I commend. Lady Gaga would say Poker Face. Lord VFTN says “Be The Aubergine.”

Advocates should rarely interrupt or interject. Nothing is gained by reacting to what your oppenent is saying until such time as you get to say it in a cogent manner to the Judge. One should sit there and keep one’s own counsel. Like an aubergine. 

The rhythm of submissions is fairly easy to discern. The party making the application goes first. The Respondent (the clue is in the name) then responds. The party making the first submissions gets to respond to the response (making them the Re-Respondent, but only if they say “Bo Selecta”). The point is that everyone gets to have their say. There is no need to interrupt with heckles from the floor. This is a courtroom, not the Comedy Club. 

There may be occasions when it is necessary to interrupt. Usually if a misunderstanding is taking the submissions in a direction which is unhelpful to everyone. And the interruption should usually be prefaced by a gentle rising to the feet and a “I hesitate to interrupt but…” Very occasionally a sotto voce prompt might be necessary to your opponent. So recently I was making submissions about a defendant being sentenced for all matters at the same time. My oppenent whispered “in the event he is convicted” to me and I corrected myself. On occasion I have whispered “don’t lead” to my oppenent as a warning before the objection or something similar to head off inadmissible evidence. Like all rules, there are exceptions. 

The interruptions that I am advising against are those that either arise from intemperance or are designed for show. The latter of these two sins is by far the greater, the former the more dangerous. 

Learning the art of controlling one’s reactions is invaluable for the advocate. The tribunal should never be able to discern that you have just received the most damaging or unexpected answer in cross-examination by the look on your face. The only way to maintain this is through a calm demeanour. Never let triumph or dismay speak. Always let control speak. 

The staged interjection for the purpose of showing off to your client is the stuff of sixth form debating. You would have to be the sharpest of wit to even remotely get away with it. But cries of “outrageous” when your oppenent is making their submissions may make great pantomime but have no place in the courtroom. Even if your opponent is being outrageous do not match them by being outrageous yourself. Demonstrate your outrage with measured words, not fiery interjections.

Maintaining the dignity of the courtroom is one of the tasks of the professional advocate. Even when provoked, even when your heart is thudding in your chest at the injustice of it all. This is not the free for all of Speakers’ Corner but the precision of the courtroom. 

At all times Be The Aubergine.   

A Game With No Rules

Twenty-three years ago I commenced pupillage. It is a good job that this is being written on an iPad so the solitary tear that has just dropped from my eye has not smudged the ink. Twenty-three years ago! Where has that time gone?

I have less hair on my head and more hair on my face (more of that later). I have moved from being pupil to pupil master to three pupils, all of whom it has been a privilege and a pleasure to supervise. And yet I can recall the fear and trepidation of pupillage like it was yesterday. 

Pupillage is the strangest experience. It is part interview, part trial by endurance and part learning experience. You want to appear like you know everything so you impress and yet you do not want to come across as a know-it-all. And, of course, the reality is that you are at the bottom of an incredibly steep learning curve. You feel like Eddie the Eagle when he first stood at the bottom of the 70 metre ski jump. You are entering some weird game where everybody else knows the rules except you and, just to make things more complicated, virtually every barrister you will encounter will have their own variations on those rules. 

My beard is the embodiment of that miasma of unwritten conventions that you may transgress. I was struggling to obtain pupillage. A barrister I spoke to suggested I shaved my beard off. The very next, clean shaven, pupillage interview secured my first six. Coincidence? Well I grew my beard back when I started pupillage and was asked in the first week “Did you have that beard when the PTC interviewed you?” by a senior Silk in chambers. Off came the beard again for my pupil master to say “Glad to see the facial hair has gone, Gavin” (whilst clearly forming a view on the goatee, my pupil master always struggled with my name). 

Was this pognophobia limited to my first chambers? I went four years into tenancy (in the chambers where I did my second six with a pupil master who remembered my name and knows more about advocacy than I ever will) sporting a freshly shaved chin every single day. Then I had to have some time off to have an operation and back came the beard (I reassure you that it was no longer a goatee). The reaction of a Silk in chambers on my first day back at work was to point to my chin and utter the words “Hopefully that is just temporary…”

Enough of my beard, the point is that there are many such views on what is wrong and what is right for the putative barrister, beyond the rules of ethics they teach you on the course. And because pupillage has that element of the year long interview you are walking through a minefield wearing over sized boots. With your feet tied together. Blindfolded. 

So what advice to give the new pupil? You cannot go wrong by having a good look around you at those members of chambers who have been through this process before. I am not suggesting that you have to suppress yourself, to pretend to be someone else but you will notice that there is a certain way the majority of barristers dress, for example. No matter how free, fearless and independent you are going to be once you are a member of chambers, those electric blue flares with an embroidered flower down one of the thighs is not appropriate wear for your first day in chambers. You are not expected to be a Stepford barrister but the fact of the matter is that courtrooms are serious, somber places where the attention should be on the eloquence of your advocacy, not the flamboyance of your pocket square. 

Smart, dark suits and neatly ironed shirts and blouses are the order of the day. Clothes may not maketh the woman, but they can certainly show you have made the transition from student to professional. 

I was advised by someone the year ahead of me to say every third thing that came into my head, that pupils were like Victorian children; to be seen and not heard. That advice was along the right lines. As the pupil you have to remember that the members of chambers you go to court with are involved in cases that may well be stressful and may have nuances to them of which you are unaware. The golden rule is do not “contribute” your view unless asked to, particularly in conference, in the presence of the opponent or solicitor. By all means have a discussion with your pupil master or the person you are with that day about your approach to the case and its issues, but do it at an appropriate time. You may well feel that you have something to contribute but remember that you are there to observe and learn. There may be a very good reason why something is not being mentioned to the opponent so do not be the one to blurt it out. 

That even includes if you are dead certain the member of chambers you are with has got something absolutely wrong. Firstly, they may not have done, for reasons that you are not aware. Secondly, they are not going to thank you if they are wrong and you expose this error to all and sundry. If you think they are getting something wrong, then find a subtle way or moment to tell them. You may be able to slip them a note or begin a conversation when you are not being overheard with “I am probably being stupid, but I have had a look in Archbold and I would have said that statute isn’t in force yet. Where am I going wrong?”

Diligence and hard work will always be noted. And that includes the appearance of diligence and hard work. If your pupil master tells you they expect you in chambers at 9am there is no harm in being at your desk at 830. And the same can be said at home time. Do not be the pupil who is never seen in chambers after 430pm. This is not just a question of being chained to your desk to show you can cope with the sort of hours that City Lawyers wear as a badge of pride. These are the times, outside of court hours, when you are likely to encounter members of chambers. This is, therefore, your chance to get to know them and them to get to know you. Add to that is the fact that a career at the Bar is going to involve plenty of preparation outside of “normal” office hours. Now is a good time to get used to it. 

Pupillage is, more than anything else, your apprenticeship. There is so much to learn, so much to absorb. Take every opportunity to gain experience. And do not be afraid to ask if you do not know how something is done. Or why someone did something in a particular way. 

Try to avoid, if you can, simply asking for the answer. It is so easy to approach members of chambers to ask “how do I….” or “what is the law on….” Show people you are thinking about things and not just expecting to be spoon fed. Try saying “I think the answer is…..what is your view?” Or “I have looked it up, can I just run through what I have found? Is there anything else?” People should be generous with their time as long as they do not think this is a substitute to you doing your own work and thinking. 

Always meet deadlines set to you for work. If there is a specific problem, if you are struggling to find the answer or found yourself hospitalised when you dropped Archbold on your toe, then ask for an extension. That is what you will do when you are on your feet. Do not hand in work late, and then come up with your excuses. 

Check your written work. Then check it again. Then go away and read something else. Then come back to your piece of work and check it again. Then print it out. And check again. 

There will come the point in time when something goes wrong. Do not think that because someone gives you a piece of work back with red ink all over and corrections galore then this is the end of the world. Your work is not going to be perfect. It is going to need correcting. You are going to make plenty of errors. The important thing is to learn from them, to not make the same mistake time and time again. 

Things can go more spectacularly wrong, of course. There are a rare number of pupillages so that do encounter real problems. Make sure you work with Chambers so, should a problem be identified during a review of your pupillage, you know what is expected of you and what you need to be doing. Set a plan and work out the problem. The Bar Council run a dedicated and confidential advice service for pupils. If you encounter difficulties then use this service. 

One final word of advice. Enjoy your pupillage and enjoy getting to know people that you will hopefully spend the rest of your career working with. Do remember that you want to be remembered as the pupil who excelled at everything they did, not the pupil who photocopied their nether regions in the clerks’ room after the Christmas drinks party….

I hope someone out there will find this advice useful. Pupillage is full of highs and lows. At the start you will be desperate to get out there and begin your career. As your first six draws near to a close you will wish you could go back to the start as you will feel like you know nothing. Trust me, you know enough and you have the ability that has got you this far. More senior members of the profession will always be prepared to help. 

Twenty-three years have passed in the blink of an eye. I may moan about the job, about the MoJ, about fees and about just about everything else. But it is still great to see the enthusiasm of those new to the job. Good luck!

Silence is Golden

I am trained in the Hampel Method. This is not a type of breathing designed to allay my fear of flying, heights and unfeasibly cheery Scotsmen. It is not a method of yoghurt weaving favoured by certain sections of Chorlton society (that is a joke for only the Mancunians amongst you…) The Hampel Method is a method of training advocacy. I must confess I scoffed at the idea of advocacy being taught but the Hampel Method is actually pretty darn good at laying down the basics and improving certain areas of an individual’s advocacy.

The first thing they tell you when you are schooled in the Hampel Method is that you should leave the war stories behind. Nobody wants to know how great you once were in a case, nothing is learnt by you telling the student of advocacy of how you once demolished a witness and the tale of the set piece flourish of producing the answer the witness has just given on a piece of paper from your pocket with a “how could I have known that unless my client is telling the truth” line to the jury is the stuff of Magician School, not Advocacy School. 

So let me break the rule immediately. Let me tell you one of my favourite war stories. And I do so because it perfectly encapsulates the little bit of advice that I want to get across in this blog. It is a totally true story. I am not one of the advocates involved but I was in court and witnessed it first hand. 

There was once a PCMH, that is the hearing at which the defendant enters his plea and the advoactes tell the Judge a little bit about the case (such as which witnesses are going to be called, how long the trial will last, what matters of law can be anticipated). In fact, this was so long ago it may have been a PDH. The modern amongst you will now know it as a PTPH. But let us get over that initial detail and get on with the story. 

The case that was before the court involved a man who objected to his neighbours. He particularly objected to the children, a boy and a girl. He took the greatest offence at the boy and the girl repeatedly kicking their ball into his garden. This much, I discovered, was agreed between the Prosecution and the Defence as I listened to the PCMH meandering onwards. The issue in the case was simply this – the defendant said he had intended to shoot the ball with his air rifle and that it was an accident that he had in fact shot a child….or two. They were only flesh wounds, you will be glad to know. But the Prosecution said that he had intended that which had happened, a pellet in a buttock of each transgressing child. 

The trial was fixed for the following September and the necessary orders were made. A PCMH that had proved a brief distraction from the usual diet of burglaries and tenner bags of heroin was about to conclude. With everything done and dusted the defence barrister (who shall remain nameless and is no longer an advocate in this jurisdiction) got to his feet and addressed the Judge;

“Your Honour, with them being neighbours and all that, it is within my client’s certain knowledge that the complainant family, his neighbours, as it were, are due to emigrate to Australia in June, and that being the case, may I invite my learned friend to consider at an early opportunity the viability of the prosecution that is going to be without a single witness to events come September and that the prosecution take an early view of this matter so as not to prolong the suffering and anxiety of my lay client….”

Which goes down in history as the greatest own goal in advocacy I have ever witnessed. Prosecution counsel immediately got to his feet, thanked his learned friend for that piece of information and invited the court to bring the case forward to before the anticipated departure to Australia. Which the Judge duly did. 

This truly snatched a defeat from the jaws of a certain victory. This hearing took place so long ago that, not only is the defence barrister now overseas, the Judge has passed away and the prosecution barrister is no longer practising, but this was the days before video links and easy admissibility of hearsay evidence in criminal trials. You can tell how long ago it was by the fact that both sides were represented by barristers in independent practice.

The absence of videolinks to foreign climes and trials in the absence of witnesses means that, had the defence barrister kept his powder dry there was a prospect that his client would be acquitted in the September. As it was, he was tried in the May. Sadly I do not know the outcome. 

This war story illustrates one of my advocacy bugbears and the reason why I am right to condemn it. Just because you are an advocate it does not mean you have to go about advocating all the time. There are many instances when the greatest advocacy you undertake is what you do not say. Many of my finest hours in court have been the times when I have got what I wanted by saying very little. 

The enemy of good advocacy is the advocate who likes the sound of their own voice. There are times when it is just tiresome, the advocate who has nothing to add to the hearing but wants the client or the solicitor to see them doing their bit. Tiresome can, however, also be troublesome. Pointless advocacy can often turn the mind of the listener, the Judge or the Jury, against the advocate who drones on. If you say twenty pointless things, it is difficult to spot the one pearl of wisdom that you hit upon. This is where Ronan Keating and I have something in common, you say it best when you say nothing at all.

It is also a case of “loose talk costs lives”. The advocate who feels the need to add their two penneth when the victory has already been secured does nothing but risk undoing that victory. Whether it be the question too far in cross-examination or further submissions to a Judge who is with you, all you are doing is risking that which you have gained. You can have no idea, until it happens to you, how frustrating it is for your co-accused counsel to let the other side back in because they feel the need to have their say. 

If you have nothing to add, then keep your bum firmly on the seat. 

And the story of the over sharing advocate that I have just told you shows the value of patience. The value of not saying something until you have thought it through. The value of keeping your powder dry. A brilliant point can be the worst point, dependent upon when the point is made. Trying to keep your advocacy concise and economical is not only good advice for advocacy that is easy to listen to, it is also a good discipline to ensure that your advocacy is the result of proper judgement, not just a desire to be heard. 

All advocates should, in reality, like the sound of our own voice. But only when you are hitting the right notes. And never, never, just for the sake of it. 

Watch and Learn

A vital part of learning about good advocacy is the observation of others. It is one of the strengths of a good pupillage (and no, I am not getting into a barrister v solicitor debate here, it is just an observation on the benefit of observing). A good training for an advocate allows them to observe a wide range of different advocates with little else for them to think about other than learning from what they experience. It also allows the neophyte the opportunity to discuss the whys and wherefores of what they see with the participants. 

It is one of the great shames of current times that the opportunities for the young advocate to observe great advocacy as a participant themselves is greatly reduced by the lack of junior briefs knocking about. Within in a year of being called I had the opportunity to be the junior in a drugs importation. The cast of Silks in the case read like Northern advocacy aristocracy – Birkett, Walsh, Burke, Morris, Nolan and the late and very great Mick Maguire. 

It really was my very great privilege to sit down and talk advocacy with Mick Maguire QC, recipient of the Military Cross, Silk for almost thirty years by that stage and supreme advocate. To speak with him was an education in itself. The real lesson that I learned at the time, however, came from Anthony Morris QC (now HHJ Morris QC at the Central Criminal Court) who executed the perfect cross-examination of the officer in the case, limiting the officer to only “yes” or “no” answers and, frankly, winning the case there and then without the need to call his client. It was brilliant. And whilst I have never achieved the same dazzling perfection I learned much about what can be achieved by planning, preparation and being in control of the examination. 

Twenty-one years on from that case and I am still learning about advocacy from watching others. Good and bad. I have spent quite a lot of this year hanging around robing rooms where I am a stranger. This means I spend more time observing than I do participating. When I am in the comfort of the robing room at Minshull Street I am too busy reading the newspaper (paid for by the Northern Circuit, other Circuits please take note) or chatting to my mates (and before anyone else says it, yes, they are usually friends of Mrs VFTN who have to tolerate my sullen ways because of her) to really take note of how others conduct themselves in the robing room. 

My recent eavesdropping has brought back something that the late Mick Maguire QC said to me all those years ago. We are opponents in the courtroom, that is where you argue your case. Now no one could suggest that Mick was anything other than a fearless advocate. He did not shy away from the fight. Yet he knew when to have the fight and he knew when talk in the robing room was bluster and pointless. Save your advocacy for the courtroom.

There is no point carrying the adversarial nature of what we do into the robing room. Of course, occasionally, you have stand your ground, but I have seen so much talk in robing rooms where the two opponents have been so absorbed in being agin each other that they they seem more concerned about being at loggerheads than being reasonable, sensible or, even, coherent. 

If robing room discussion is no more than playing out the arguments in court, what is it going to achieve? If all you are doing is arguing with your opponent then leave it there. Talk about the weather. Talk about Celebrity X-Factor’s Little Voice Bake Off. Talk about anything, but do not become so lost in your case that you cannot see your way ahead.  

There are times when you can hope to persuade your opponent of the merit of something to your advantage. Calm reason is more likely to achieve that than anything else. Scorching advocacy, at that stage, is likely to achieve nothing other than the entrenching of positions and talking at cross-purpose. 

That is what I have learned recently. I have relearned something I was told a long time ago. And I have done it through watching and learning. 

Fifty Years From Now……

This month my nephew commences his GDL. We are not a family with a history of lawyers. There is me, my sister-in-law and our joint nephew. That is it. 

In fact we are not a family with a history of university attendance. My generation in the family were the first to go to University. My nephews and nieces have all gone to university. What a giant leap forward in one generation. 

And now the Bar will shrink back into the Dark Ages. In a week when the Lord Chief Justice is, I respectfully suggest, somewhat complacently suggesting that diversity in the Judiciary will work itself out in fifty years time, the reality is that the Bar is rapidly undoing all the gains made in recent times. Think not just of the gender of the upper echelons of the Judiciary fifty years from now. Think of their diversity, their ethnicity, their cultural background, their educational background. I foresee white, privately educated and, more than likely, still male. 

Why do I say this? My nephew and I are very similar. We went to the same (comprehensive) school. Our (proud) parents had not attended university themselves. Both of us have paid our own way, in conjunction with our parents, albeit his level of debt dwarves mine. 

I am not suggesting either of us were ever going to be the Lord Chief Justice. In my case I can positively rule it out. However the upper echelons of the Judiciary tend to be drawn from the Bar. It is the Bar that tends to allow people to concentrate on being lawyers rather than managers, business leaders and employers (please, solicitors, do not all shout at me at once, I know this is a generalisation but a blog requires some shorthand sweeping statements and, for the time being, the Supreme Court is likely to be drawn from the Bar).

So why am I ruling out my nephew? It is because I love him and want to see the best for him. So I have advised him against going near crime and have advised him against a career at the Bar, despite the fact that this is what he wants to do. This is not the X-Factor. Being passionate about it and “really, really wanting it” whilst going on “an incredible journey” does not pay the Student Loan and does not alter the diminishing prospects at the Bar. Not when the incredible journey saddles you with £30,000 more of debt, no pupillage and a largely meaningless post-graduate qualification. 

The culmination of various Government policies means that anyone who gives realistic advice in the best interests of an aspirant lawyer will tell them not to pursue a career in crime, not to pursue a career in public funded work and that their greater chances of a career lie with a training contract rather than a pupillage. Even the brilliant and the dedicated, and the brilliantly dedicated, need a dose of reality. And they are smart enough to make the right choice. And the right choice is no longer the Bar. And it is no longer crime. 

I have read that people predict that the Two Tier Contract system sees the death of the Criminal Bar within six months. That may be a tad pessimistic. The true prognosis, however, is that the Bar is already stricken by a terrible malaise. It may not finish us off tomorrow but it will end the profession as we know it now. An open and diverse profession. A profession to aspire to. A profession with a training regime designed in the pursuit of excellence in our traditional strengths. 

The Bar will struggle to recruit the brightest and the best, unless they happen to be wealthy. The Bar will struggle to recruit from a diverse social and cultural background. The Criminal Bar (often a way in for those less privileged) will struggle to recruit at all. Meanwhile we will struggle to retain those already practising. If you do not accept the link between retention levels and remuneration levels just take a look at what is happening with junior doctors. 

And that may be where Sumption may have got something right. Thirty years ago the problem was in male dominated recruitment. In more recent times retention levels have been lower for women than for men. Where he is wrong is in his assessment that this represents a lifestyle choice by females, a rejection of lifestyle in some way more suitable to men. For many it represents an economic necessity that they do not remain within the profession. 

Where Sumption is even more out of step is in concentrating his public pronouncement on an attack on gender positive recruitment. He needs to look further down the food chain. He needs to step into the limelight to highlight the damaging impact of Government policy on the diversity of the pool of available candidates for his job fifty years from now. Now that would be a fine example of an independent judiciary.