The highs and lows of advocacy

In the latest instalment of a continuing series, Daniel Curtis offers advice on the issues which face solicitor-advocates

Q Are there any significant differences in terms of the differing standards between the lower and higher courts?

A Most lower court advocates will have spent some time, either in training or out of interest, in the higher courts and will know that the higher courts expect not only a different standard of court dress but also a greater knowledge and understanding than is generally expected in the lower courts (with, of course, the exception of a district judge's court).

The whole atmosphere in the Crown Court is very different to that of a magistrates' court, in terms of its formality and procedures and this, as a young higher court criminal advocate, was possibly the most nerve-racking aspect of appearing before a Crown Court judge and jury.

There are different pressures when appearing in the Crown Court, by virtue of the type of cases that are dealt with there.

Even an experienced magistrates' court advocate can feel a little unnerved until confidence is gained.

Even after 13 years of magisterial court advocacy, my first jury trial was preceded by an extremely unpleasant and apprehensive weekend of unnecessary preparation - the defendant failed to appear and a bench warrant was issued.

His eventual arrest and remand into custody ensured that the second pre-trial weekend was not to be one of wasted preparation.

The glorious acquittal that resulted was quickly followed with a conviction at my second jury trial.

Much is made of the differing styles of court dress and the absence of wigs.

This is a thorny political issue and one that, I understand, the Lord Chancellor's Department is about to pronounce on.

I am one of those who, as a young advocate in front of a jury being prosecuted by a barrister wearing a wig and different gown, was asked whether I was the usher prior to coming into court.

Therefore, it is perhaps unnecessary to go into my views further as to this particular inequality of arms.

Q Have any problems been encountered or obstacles presented by the courts or members of the bar to your progress as a higher court advocate?

A I am pleased to say that on the North Eastern Circuit there are but a few who voice their disdain at seeing solicitor-advocates in court.

It is perhaps an advantage that, since we have instructed various members of the local bar and continue to instruct them, they are put in a difficult position so far as expressing their true views.

I have no reason to believe that members of the bar of the North Eastern Circuit have any problem with solicitor-advocates; we of course are representing defendants and presenting cases that they would otherwise be involved in, but those who have good and successful practices have nothing to fear.

Having been in the Crown Court now for a couple of years as a solicitor-advocate, I feel a welcomed member of the 'barristers' robing room and see no reason why solicitor-advocates and barristers cannot share the higher courts in harmony.

Listing has always been a problem as no solicitor-advocate is indicated to the listing officer on the bar clerk's lists.

The result of this is that quite often cases involving solicitor-advocates go to the bottom of the list.

This can be rectified by making written and oral representations to listing officers or by enlisting the services of a helpful bar clerk.

Despite the fact that we could be seen to be taking work away from chambers when we represent individuals as higher court advocates, there are still bar clerks who are quite content to make representations in this way for those who instruct their chambers on a regular basis.

I cannot say that any member of the judiciary has made my life as a higher court advocate any more difficult than they might a member of the bar.

Many experienced advocates still fly by the seat of their pants in the magistrates' court and pick up files without reading them thoroughly.

Woe betide any higher court advocate who attempts the same before a circuit judge.

Preparation is undoubtedly the key to any Crown Court case and if a judge becomes aware that the advocate is either ill prepared or unaware of the aspects of the law, then that advocate will receive the treatment deserved.

Q Is higher court advocacy, as a criminal practitioner, cost effective?

A This very much depends on the type of work involved.

The thought of waiting all day in court to deal with a mention - for the princely sum of 46.50 - is clearly not attractive in terms of remuneration.

However, a cracked trial can make a morning at the Crown Court extremely worthwhile financially, as can dealing with substantial pleas.

My practice is not entirely altruistic, and therefore I have to be a realist and justify to my partners the mornings and afternoons I spend 'across the road'.

I try to balance remuneration with representation and this is not always easily achieved.

I think the answer is that any aspiring higher court advocate, who wishes to present to a partnership a realistic financial return on time invested, needs to set his stall out, on the basis of regular appearances, combining listings and committals at the magistrates' court with plea and directions hearings and trial dates at the Crown Court.

The golden rule is to have one or two matters (preferably three) listed on the same occasion.

This of course has a knock-on effect causing problems with listing, unless you are organised and liaise well in advance with the listing officer as to which courts your cases are likely to be in.

An advantage the bar still has over solicitor-advocates is that there are likely to be various members of chambers in any one court and briefs can be switched around - not something that a single solicitor-advocate can achieve.

One of my partners has now obtained her higher rights and I am hopeful we can work together at the Crown Court, albeit that we have a busy magistrates' court practice to contend with in addition, a barrier that I consider holds back many aspiring higher court solicitor-advocates.

On reflection, I am more than pleased by my higher court advocacy experiences and look forward to many more in the future.

I would certainly encourage those with an interest in advocacy to attain their higher rights and exercise them.

This column was prepared by Daniel Curtis, a solicitor-advocate at Leeds-based law firm Tates and committee member of the Solicitors' Association of Higher Court Advocates.

For details of SAHCA or for a membership application form, contact Sandra Dawson, tel: 020 7837 0069.

E-mail your advocacy questions to: sandra@admin4u.org.uk