I have in the course of a long professional life been privileged to address many appeal judges in many countries – benches of seven in the Privy Council, House of Lords and the High Court of Australia, not to mention judges in the Supreme Courts of Malaysia and Mauritius and Florida, in Courts of Appeal in Kenya and New Zealand and Singapore, and a large semicircle of seventeen or so judges in the European Court of Human Rights. These are intellectual exercises, defining principles and gathering precedents in order to persuade judges who have probably made up their own minds. (My judicial nemesis, Lord Diplock, boasted that only on two occasions had he been influenced by advocacy, and on one of them he had convinced himself.)
It is a very different experience to address an Old Bailey jury, arguing for the liberty of a person in peril in the dock. You feel, as you stand to deliver your final speech, a portentous rush of power – the power of persuasion. You grab the sides of your green-baized stand and talk to them without interruption and for as long as you like on the subject of how they should go about finding your client ‘not guilty’. You have to shred the case presented by the prosecutor who has spoken before you, and booby-trap the judge, who will have the last word in his summing-up. But for most of the time – and these speeches can last for days, although my preference is for two to three hours, with a short break – you must interpret the evidence they have heard and weave it into a scenario in which your client was, for example, absent when the fatal blow was struck, or else struck it in self-defence. Factual situations are infinite: what matters is that the advocate must leave the jury with a credible version of events as they might (not must) have happened, in such a way that the defendant would bear no criminal liability for his or her part in them.
Styles of advocacy vary, and have changed with changes in courtroom architecture and jury composition. Addressing all-male juries in murder trials in the sombre and intimidating pre-war courtrooms with death sentences in prospect, advocates such as Sir Edward Marshall Hall QC could get away with emotional appeals that would not work in modern strip-lit courtrooms with young male and female jurors. Marshall Hall secured the sympathetic acquittal of a wretched woman who had killed her abusive lover by ending his final speech this way: ‘Look at her, gentlemen. God never gave her a chance. Won’t you?’ They did – but such cheapjack appeals would be laughed out of a modern court. My own preference, in the all-important last minutes of a final speech, is to play upon the rule (which the judge is obliged to explain to the jury) that the prosecution must prove its case ‘beyond reasonable doubt’. ‘How many “reasonable doubts” hang over the prosecution case, ladies and gentlemen?’ I list them (observing meanwhile the jurors who are taking notes) and try to find at least ten. Some may depend upon the forensic fallacies I discussed in my final-year dissertation; others may be of the kind: ‘Well, suppose he had committed the crime, he certainly would not have acted like that afterwards.’ (Although in fact, criminals frequently act stupidly or illogically after their crime.) When the jury members retire to their room with ten or fifteen ‘reasonable doubts’ listed in their notepads, there is a good chance that they will be persuaded that one or two of them are indeed reasonable. Finally, I give a quick reminder that ‘This verdict will be yours and yours alone’ (i.e. don’t adopt the views of that prejudiced old judge) and urge them, ‘Don’t make it something that will trouble your conscience afterwards’ (i.e. remember Penn and Mead). ‘I invite you to acquit,’ I conclude. And, quite often, they do.
Some years ago the government, in the hope of increasing the conviction rate, decided that judges should be eligible to be called for jury service. I was by this time a Recorder – a part-time judge – and shared the concern that a judge–juror might have an undue influence over fellow jurors. The Lord Chief Justice sent us all a letter advising that if we were called for jury service, we were not to let on that we were judges. I was one of the first judges to be called up, and of course as soon as we sat down in our jury room, some bright spark, said, ‘Let’s go round the room and tell each other what we do for a living.’ I described myself as a ‘grievance counsellor’, which was not entirely inaccurate. Nonetheless, the truth quickly slipped out, and I was elected jury foreman. The defendant was obviously guilty, but our number included two anarchists who did not think anyone was guilty – society itself bore the responsibility for crime. After fruitless argument, with only ten minutes to go until lunch-time, I am afraid I did use a little undue influence by reminding my two recalcitrant colleagues that unless we reached a unanimous verdict we would be locked up for lunch without access to alcohol or cigarettes. This hadn’t occurred to them and they agreed immediately to convict.
In jury trials, the final speech is the defence advocate’s most powerful weapon, and requires the skill of marshalling complex facts and weaving the evidence into a picture consistent with innocence. There is also skill in cross-examination. John Mortimer taught me that the art of cross-examination is never to examine crossly, especially when dealing with prosecution experts. He would read up on their publications, congratulate them, cosset them and soon enough have them eating out of his hand and changing their evidence – about bloodstains, for example – by the fraction that could make the difference for his client between freedom and a life sentence.
It is in dealing with expert evidence that barristers show their real ability, which is to absorb and master in a few weeks the relevant discipline or science and go head-to-head with experts who have studied it all their working life. I once had to learn how to make a nuclear bomb in order to defend a man accused of selling ‘nuclear triggers’ to Saddam Hussein. It was information I had forgotten within a week of the trial’s end: the barrister’s mind simply empties of hastily absorbed information, and moves on to the science called for in the next case. It’s like wiping clean a computer disk stored in the brain and saving over it.
You often read in books or see on television examples of dramatic, devastating cross-examination. This rarely happens – the worst liars are charming con men who readily convince jurors, and even judges, with the confidence of their answers. The witness who hesitates is often the witness who is most concerned to remember the truth. Judges, even, do not understand how hesitation in a witness can indicate an effort to remember truthfully. My favourite example comes from the obscenity trial of a book called The Mouth & Oral Sex, as author Margaret Drabble was testifying to its merits before an aggressively puritanical judge:
Judge King Hamilton: We’ve got along without oral sex for over two thousand years. Why do we have to read about it now?
Drabble (hesitates)
King Hamilton (pouncing): Witness, why do you hesitate?
Drabble: I am sorry, my Lord, I was just trying to remember a passage from Ovid.
I did once – but only once – cross-examine a witness so effectively that he fainted in the witness box. He was the manager of a once-fashionable band, whose roadie (my client) was accused of importing drugs. This manager had been rewarded with immunity for giving prosecution evidence, and I was able to demonstrate from his own diary that he was the prime offender, a man who had dobbed in even his younger brother. He struggled to explain the morality of his conduct, and when the accusations mounted, he collapsed – fell backwards out of the witness box – from (or so it seemed) horror at being confronted with his own depravity. It was a climax to a cross-examination that can be balanced by the disasters which come from breaking the golden rule – never ask a question to which you do not know (or strongly suspect) the answer. I was defending Gay’s the Word, a little bookshop in Bloomsbury, on charges of importing indecent literature, after a massive operation by British customs officers, who seemed to think that homosexuality was an alien custom. They had even seized, on the strength of his name, books by that very hetero sexual American, Gay Talese. They called this homophobic exercise ‘Operation Tiger’, and I went for the customs officer in charge of it: ‘You called it Operation Tiger, I suggest, because the name is redolent of sw
aggering machismo.’
‘Well, no, sir,’ he meekly replied. ‘Actually, I named it after my cat.’
One question barristers are always asked is: ‘How can you defend someone you know is guilty?’ It’s very simple – you can’t. If a defendant is honest enough to admit guilt, I tell him or her I will take any available legal points on their behalf but I will not defend them on the merits. I will do a great mitigation speech, if they’re willing to plead guilty; otherwise, goodbye.
A follow-up answer is that for most other cases you never really know. That was illustrated by the Arms-to-Iraq affair. In 1992 I was briefed to defend the managing director of Matrix Churchill, a company accused of supplying bomb-making equipment to Saddam Hussein, which had been used against British soldiers in the first Gulf War. I read the prosecution papers, and the evidence of arms smuggling by making false customs declarations was overwhelming. ‘How can you possibly plead “not guilty”?’ I asked my client, Paul Henderson, at our first meeting. ‘Well, I was shown how to make the false entries by Alan Clark [Mrs Thatcher’s trade minister],’ Paul said. ‘And every time I went to Iraq I reported back to MI6.’
This story seemed ridiculous – there was not a skerrick of support for it in the prosecution papers, and Alan Clark signed a witness statement denying that he had ever given such advice. I embarked on a massive disclosure exercise, which the government strongly opposed, and obtained some documents suggesting my client’s story might be true. But to succeed, I had to break Clark, or at least show him to be a liar. It was a difficult exercise (described in The Justice Game) but after fifty minutes of intense but friendly questioning, he eventually admitted that his statements were false.2 An erudite and fastidious historian, Clark could not admit that he had done anything as crude as telling a lie, and he disdained to confess, as the cabinet secretary had to Malcolm Turnbull at the Spycatcher trial, that he had been ‘economical with the truth’. This had to be perjury on an elevated plane – Clark had, he confessed, been ‘economical with the actualité’.
The prosecution case was immediately dropped, the Conservative government (which had secretly sold arms to Saddam Hussein and tried to send an innocent man – my client – to jail as a scapegoat) survived by one vote and the case mired it in ‘Tory sleaze’ from which it did not recover by the time of Tony Blair’s Labour election triumph a few years later. It is my best known cross-examination, one which not only saved my client from jail but which had vast political repercussions, yet it was conducted civilly enough for Alan Clark and Kathy and me to become friends and later to enjoy picnic lunches at Saltwood Castle, his stately home. I tell this story to make the point that the most effective examinations are not angry or bullying; they can be quite amicable. I paid Clark the compliment of treating him as an intelligent historian who did not really wish to be as dishonest as his government required: after fifty minutes, he returned the compliment. My advice to young barristers is to try to be nice to hostile witnesses, rather than to browbeat them as seen on television.
The most nerve-racking time, at least for defendants, is when the slightly bewildered citizens who will decide their fate are first brought into court. Until 1988 in England, defendants could make challenges to prospective jury members, but unlike the practice in US courts, their lawyers couldn’t ask questions to probe their prejudices. You could take a close look at them, but, as Shakespeare pointed out, ‘There’s no art to find the mind’s construction in the face.’ My only art was to find its construction from the reading matter under the arm. In a case with reasonable doubts, I really believe that intelligent jurors are more likely to find them than those who, for example, read tabloid newspapers. I’ve been known to bump off Sun readers with a ‘I challenge this juror, m’Lud’ while any with the Guardian or the Financial Times or, better still, a non-fiction book, are welcome. So are those who ask to ‘affirm’ rather than to take the oath (though many people assume that they are required to swear on the Bible); I like free-thinkers who are sceptical about the deity – they might also be sceptical about police evidence.
One of the strangest evenings I have spent was with Lionel Murphy, former attorney-general and a sitting High Court judge, the night before Murphy’s trial on two counts of perverting the course of justice. I liked Lionel, for all his faults, and spent the weekend before the trial coaching him for his cross-examination, since he seemed to have been deserted by his counsel and lawyer friends. Suddenly there was someone at the door – a rather down-at-heel fellow in an old red sweater, vaguely recognisable as New South Wales premier Neville Wran. ‘Just thought I’d drop in to give a bit of advice about the jury, Lionel. Try to avoid Christians. And middle-class women.’
Jury-rigging was common in England in the days of George III, when the government wanted convictions for sedition, and they secretly brought back ‘jury-vetting’ in the 1970s in cases involving the IRA and some concerning national security. Led by Jeremy Hutchinson QC, we exposed this malpractice in a trial, known as the ABC case, of journalists accused of unlawfully revealing the vast eavesdropping powers of the Government Communications Headquarters (GCHQ).3 It was one of the many liberties that governments thought they could take with the law at a time of terrorism, but it undermined the principle of random selection of juries if the state could investigate and challenge any juror it discovered – through its surveillance apparatus – to have anti-establishment views.
In my next ‘political’ case, I prevailed upon a fair-minded judge to extend legal aid to permit the defence to vet the jury as well. We obtained their names and addresses, but did not have the powers of the security service – all we could do was hire private detectives, who reported on, for example, the length of their hair and the number of locks on their front doors. The information was useless: the only answer was to end jury-vetting by the state.
There is an unsettling and strange period in every criminal trial. It begins when the jury is sent out to consider its verdict. Until then, you are on professional autopilot, scoring points that come instinctively to a mind immured in the law of evidence. It still falls so suddenly, that solemn moment when the talking has to stop, the summing-up ends, and the palpable silence is broken by a Bible-bearing usher, as it has been broken at every criminal trial in Britain for centuries: ‘I swear to take this jury to some private and convenient place, and to suffer none to speak to them this day, nor speak to them myself touching upon this case, except only to ask them whether they are agreed upon their verdict.’ The courtroom soon empties, and so does the advocate’s mind. There is nothing to do but wait. Sometimes a friendly usher will come up and whisper, ‘The jury have ordered lunch,’ and you feel free to leave the building for an hour and do likewise – although a friendly usher once had to pursue me with an update: ‘The jury have just seen their lunch, and have decided to bring in a verdict immediately.’
Courts offer few retreats for barristers during this limbo in their practising lives. Passive smoking in the cells with a keyed-up client soon palls for both parties, and cups of weak tea in the court canteen, with the police officers you have so recently accused of perjury joking at the next table, have limited attraction. The Old Bailey has a barristers’ common room where copies of the morning’s tabloids offer mindless diversion, but all too briefly: what you really crave is a pinball machine. I was always drawn to the library at the end of the common room, where the shelves groaned under the weight of ‘Famous Trials’, a series that chronicled the proceedings against the spies and poisoners and murderers of yesteryear, the people whose effigies were found in Madame Tussauds’ Chamber of Horrors.
Sometimes it took the tannoy to bring me out of my reveries and back to court for the final act – the delivery of the verdict. The courtroom is always tense as the jurors file in: if they do not look at the prisoner, it often means a ‘guilty’ verdict, but you never can really tell. Reactions depend on the case – an acquittal may be met with applause from family or political supporters in the gallery, and I hav
e seen defendants cry more often when they are found ‘not guilty’ than when they are convicted. The atmosphere is not conducive to displays of great emotion, and lawyers are trained never to show it when the verdict is delivered. One memorable exception was at what was known as the Anarchist Trial back in 1979, when Ronan Bennett (later a well-known author) and other defendants were accused – on the strength of their possession of weedkiller (for their garden), sugar (for their tea) and a copy of The Anarchist Cookbook (for their jokes) – of conspiring to cause explosions. They faced twenty-seven charges, including the legendary offence of ‘conspiring to commit crimes unknown against persons unknown in places unknown’, a prosecutor who vetted their jury, and a judge who virtually ordered that jury to convict. After a trial lasting three months I can remember a sense of dawning wonderment as the foreman said ‘not guilty’ twenty-seven times. Even more amazing was the reaction of my hard-line solicitor, who leapt up and kissed me – in front of a press gallery which reported the incident as if it were without precedent, which in her case it probably was. The judge, quite improperly, condemned the jury for its stupidity, but they were reacting, with commonsense and fairness, against his own bias.
Rather His Own Man Page 21
