Advocacy should be fearless but fair, allowing courts to develop law and establish the truth.
Last month I had to address the Court of Appeal. It was a simple enough application: journalists following the ‘Operation Cotton’ case wanted the court to lift statutory restrictions that normally prevent coverage of interlocutory criminal appeals. Because similar restrictions had been removed by the court below without any apparent prejudice to the defendants’ interests, we stood a good chance of success.
So I had no cause for concern. I had alerted the court in advance. And I have been on first-name terms with the presiding judge ever since his time at the bar. So it should have been a doddle.
And, indeed, it was. Except that as soon as I rose from my seat on the press bench and croaked out ‘My Lord’, my throat turned to ashes and my brain became putty. It was the natural reaction of any inexperienced advocate, not helped in my case by a courtroom full of practising lawyers and the journalists I had rashly offered to represent. Fortunately, nobody seemed to notice and my application was granted.
From the press bench, advocacy looks simple enough. You simply stand up, open your mouth and argue your case. Anyone can do it. But it’s only when you try addressing a court that you realise how much work goes into making it appear effortless. One of the most highly regarded advocates at the bar can reduce a complicated argument to three propositions, which he invariably reads out at dictation speed. The first point appears to be no more than common sense; the second follows logically and the third clinches the case – sometimes. By contrast, the worst advocate I have ever tried to report has a butterfly mind and is incapable of ending a sentence without first launching two or three new ones.
Good advocacy demands thorough preparation. Young barristers are taught that cases are won in chambers rather than in court. Now, though, cases may be won in law schools and the inns of court. Nottingham Trent University has just marked the launch of its centre for advocacy with a two-day conference on teaching advocacy skills. Among those speaking at the weekend was Mr Justice Green, who chairs the Advocacy Training Council (ATC) established by the inns of court.
And advocacy is taught by the inns themselves. I recently attended an excellent weekend course arranged by Gray’s Inn, of which I am an honorary member. Trainees were put through courtroom exercises by senior barristers and told where they had gone wrong. ‘During examination-in-chief, you can’t lead the witness but you must still focus,’ explained Naomi Ellenbogen QC. She showed students how to ask closed questions so that a witness would know what evidence an advocate was seeking to elicit.
Cross-examination is quite different, as I learned from an interview I recorded this month for my Radio 4 series Law in Action. What I wanted to know was whether a prosecutor in England and Wales would be allowed to ambush a witness in the way that Gerrie Nel had done in South Africa when he questioned Oscar Pistorius. The athlete, accused of deliberately shooting his girlfriend (a charge he denies), had to watch a video in which he was seen firing a gun at a watermelon.
If the purpose of introducing this evidence had been to cast doubt on his credibility, it might have been admissible. But Richard Whittam QC, first senior treasury counsel at the Old Bailey, told me it looked as if Nel wanted to prove that Pistorius was familiar with firearms and knew how to use them. Since that was part of the prosecution case, notice would have been needed before such a video could have been produced in England and Wales.
Whittam also pointed out that Nel seemed to be making assertions rather than asking questions. Could that be cured by beginning each sentence with the words ‘I put it to you that…’? ‘Not really,’ replied Whittam, dismissing it as ‘an unattractive phrase’.
And Anesta Weekes QC, vice-chair of the ATC, told me how a skilful advocate could box a witness into a corner. Most defendants will not suddenly confess their guilt under cross-examination. But if questions are carefully prepared, a series of answers leading up to the final denial may cast doubt on the witness’s credibility. Another tactic in cross-examination is to unsettle a defendant who has learned his lines too well by asking the questions in an order that the witness is not expecting.
All this may seem like a game — but it’s not. Advocacy that’s fearless but fair allows courts to develop the law and establish the truth. From time to time the system may need rebalancing, as in the case of vulnerable witnesses. But that’s all the more reason to learn how not to dry up in court.