There is an increasingly vocal
debate on the art of advocacy in the courtroom drama, with three distinct and
competing interests.
First, the Bar, that traditional
bastion of advocacy, the wig and gown brigade much loved of writers and film
makers, where the great and the good have locked antlers for generations.
Next there is the emerging
solicitor advocate, a relatively recent phenomenon. Solicitors have traditionally honed their
advocacy skills in the lower courts, where the standards demanded of advocates
are less demanding.
However, the
solicitor advocate can now apply for a Higher Courts Advocacy certificate,
which, once attained, gives him rights of audience in every court in the
land. Fortunately for the Bar, their
aspirations seem to stop at the lower end of crown court proceedings, short
trials, applications, pleas in mitigation and the like, leaving the Bar to
tackle the longer and more complicated trials.
I suspect this is more out of self interest than an acknowledgment of
their own limitations, as busy solicitors can earn considerably more back in
the office than faffing around the crown court all day.
Finally, there is the Crown
Prosecution ‘in house’ lawyer, also a relatively recent phenomenon, usually
going head to head with the solicitor advocate, and budget driven. These lawyers are employed not for their
advocacy skills, which in many cases are found wanting, but because they are
cheap.
With the recently published
consultation paper from the Ministry of Justice on yet more cuts in legal aid,
the increasingly vocal debate on the art of advocacy is reaching cacophonous
proportions, with each of the three interested groups vying for attention.
Does it matter? More to the point, is a good advocate more
likely to win the day for his client than a bad one? And who decides? In a recent speech to the Bar Conference,
Lord Neuburger, the Master of the Rolls, suggested that judges were best placed
to comment on the advocacy skills of those appearing before them, and he may be
right.
But again, so what? We have all had experiences of juries
acquitting in the teeth of the evidence where they felt sorry for the
defendant, simply because he had such an incompetent advocate.
I recall one quip that a jury is
empanelled to decide who has the best advocate, but juries can be very
stubborn, and the direction that they must be fair and use their common sense
can be interpreted very freely.
Nowadays, the art of advocacy is
all but dead on its feet. In the good
old days, when the likes of F.E. Smith and Marshall Hall used to reduce juries
to tears, and for all the right reasons, advocacy was an art, and highly
prized. Their skills were greatly in demand, and the public galleries would be
packed with matronly ladies swooning and throwing their undergarments into the
well of the court. Heady days indeed!
Sadly, with the change of
emphasis on ‘conveyor belt’ justice, advocacy is a luxury the profession can no
longer afford. Even judges are becoming
an irrelevance, as their contribution to the trial process is strictly limited
to their ‘idiot guides’ on what they can say, and when, and their sentencing
powers are set in stone by even more ‘idiot guides’ to achieve uniformity and
to avoid upsetting the powers that be.
So I say, a plague on all your
houses! Come one, come all, and if it
saves money, so much the better! What a
depressing thought!
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