Defending Defending

Michael Magarian QC is reported to have commented to a jury that complainants in a sex-abuse trial had falsely cast themselves as victims to avoid being known as ‘slags’. Many people on social media and elsewhere find his words offensive and have called for his head. Some of them have used equally salty language, which they must think is OK for public discourse.

It’s worth remembering that advocates operate under explicit professional conduct rules, and can be disciplined or struck off if they break them. Rule C7 of the Bar Code of Conduct states

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations…you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person.

The rules for solicitor advocates are no different.

The word ‘merely’ is important. In any type of case, criminal or civil, there will be clashes with the other side. One side may maintain that the other is lying: the point of the trial is to find out. Being called a liar is never pleasant – whether you are one or not. It may be insulting, humiliating or annoying. Calling the other side’s witnesses liars merely to wind them up would obviously be wrong: but if it’s your client’s case, you may have to. The allegation may be true. Your client may have been wronged. The advocate has to act for his client without fearing that he will be attacked – provided he keeps within the rules. We must be loyal to our clients’ instructions but we are not a megaphone through which they can say what they like.

As well as the written rules, advocacy has unwritten but equally powerful unwritten principles of ethical conduct. Tactics that may be within the rules still draw justified criticism, such too much aggression, verbosity, and pomposity. The majority of people, who thankfully never need a lawyer, may not realise that the rogues are very few in number, and are as unrepresentative of the profession as bad doctors or corrupt police officers. The press like nothing better than a lawyer to characterise as a rotter, especially criminal defence lawyers who represent society’s bogeymen.

My preference, when instructed that an opposing witness has not told the truth, is whenever possible to show, not tell: by being asked the right questions, the witness will demonstrate that their account is unreliable out of their own mouth. That makes it unnecessary to confront them with ‘you’re lying’, because they have already shown they are. If they aren’t lying, then no amount of questioning will show they are, and calling them liars probably won’t do the job either.

Judges now have extensive powers to control cross-examination of young and vulnerable witnesses: they can insist on short and simple questions: R v Wills [2011] EWCA Crim 1938; prevent the use of leading questions: R v Edwards [2011] EWCA Crim 3028; stop the advocate putting their case (eg ‘your account is a pack of lies’): R v Wills again; put time limits on cross-examination; and vet the topics of the questioning in advance. (For more detail, see the Bench Book issued to Judges by the Judicial College, and The Advocate’s Gateway.)

These restrictions are intended to facilitate vulnerable witnesses giving evidence, and to stop unfair advantage being taken of their vulnerability. Whether they erode important defence rights and stop the jury seeing through a false account is a moot point. The new system certainly favours the ‘show don’t tell’ approach to cross-examination.

Sadly and self-evidently, not every witness who comes to Court tells the truth. Some people give mistaken accounts, others make things up. Not every one who is charged with a crime is guilty. It follows from those simple propositions that in a fairly run trial the accounts of the protagonists must be scrutinised and evaluated, according to legal principles. Ask yourself this: if you had been falsely accused of a serious crime, would you want your advocate to pull his punches?

For robust and truly courageous advocacy, look no further than Ben Emmerson QC who told the Litvinenko inquiry, and the watching world, that the Russian government was a “close knit group of criminals who surrounded and still surround Vladimir Putin and keep his corrupt regime in power” and they arranged for Andrey Litvinenko to be murdered.











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Not the Global Law Summit

The Global Law Summit (GLS) is a trade fair, heavily promoted by the Ministry of Justice, which aims to display the wares of British lawyers to the rest of the world – what Mr Grayling likes to call ‘our global leadership in legal services’. London is the venue of choice for international litigants who like their lawyers and judges honest, or if not honest, at least well regulated.

It’s pointless complaining that some of the clients may have been neglecting their legal or ethical hygiene – a commercial lawyer who only advised saints would need to take up mini-cabbing to pay the rent. Lawyers have to walk down mean streets without themselves being mean. It can be done.

The trouble with the GLS is that the Ministry of Justice, under the cack-handed Chris Grayling, insisted on tying it to the 800th anniversary of the first edition of Magna Carta. That made his corporate jamboree look like a gross piece of hypocrisy. Magna Carta is in reality a dead letter in the law, but the myth persists that it delivered the English people from overbearing government. The words of clause 40 give the myth its potency: ‘to none will we sell, deny or delay Right or Justice’.

The GLS is explicitly about selling justice to the world, as a commodity. The MoJ has already done much to sell right and justice in the UK, by outsourcing swathes of the criminal justice system to the likes of G4S and Serco – bywords for incompetence and bad practice. We used to tell ourselves that criminal justice was like an elderly Rolls Royce – a bit rusty, a bit expensive to run, but a guarantee of quality and worth the effort. Now the Roller is on blocks, and Del Boy and his van are waiting to take over, if they get the chance.

The MOJ has denied access to justice (and hence, justice) to many, by taking key areas of law ‘out of scope’ of legal aid altogether, and cutting it to the bone where it remains. Kenneth Clarke, the Macavity of the LASPO cuts, said he had to do something about legal aid, because it had grown so much and ‘made the poor extremely litigious’: that casual smear stood in for the non-existent evidence for the MOJ’s ruthless policy. It has introduced fees that make employment tribunals unaffordable to most claimants, and proposes more increases across the board for Courts and Tribunals. At the same time the government has made it harder to get legal redress for administrative wrongs, by restricting the availability of judicial review – a remedy that Mr Grayling believes to be a preserve of left wing pressure groups, and therefore fit for strangulation. If he has his way, he will scrap the human rights protections given under the Human Rights Act.

His government has delayed justice by running down the whole system, so that the Courts are overstretched, underfunded and clogged by people representing themselves because they can’t get legal aid and can’t afford a lawyer. Now even the Public Accounts Committee, whose MPs nodded along when the cuts were being made, thinks they have been a disaster:

The Ministry of Justice (the Ministry) is on track to make a significant and rapid reduction to the amount that it spends on civil legal aid. However, it introduced major changes on the basis of no evidence in many areas, and without making good use of the evidence that it did have in other areas. It has been slow to fill the considerable gaps in its understanding, and has not properly assessed the full impact of the reforms. Almost two years after the reforms, the Ministry is still playing catch up: it does not know if those still eligible are able to access legal aid; and it does not understand the link between the price it pays for legal aid and the quality of advice being given. Perhaps most worryingly of all, it does not understand, and has shown little interest in, the knock-on costs of its reforms across the public sector. It therefore does not know whether the projected £300 million spending reduction in its own budget is outweighed by additional costs elsewhere. The Department therefore does not know whether the savings in the civil legal aid budget represent value for money.

400 years after Magna Carta, when Hamlet was listing the things that made him wish not to be, they included ‘the law’s delay, the insolence of office’. Anyone dealing with the MoJ will sympathise.

The destruction that has been wreaked on British Justice makes a mockery of the use of Magna Carta to adorn the GLS, and brings it into disrepute. Dr Johnson said that there few ways in which a man can be more innocently employed than in getting money – in which case the GLS delegates are thoroughly innocent. They may well also be innocent of the knowledge of what Mr Grayling and his friends are doing. In his feisty speech to the GLS today, Lord Thomas, the Lord Chief Justice, may have helped to educate them when he said ‘our duty is clear: obstructions to justice are a denial of justice, as Magna Carta teaches’. Tony Cross QC, the chair of the Criminal Bar Association, will have used all his powers of advocacy to do the same.

Asking for a decent accessible system of justice for everyone is a modest, even a conservative, demand. Having to make that demand proves how extreme, subversive and insolent the people in charge have become. This was the demand made by the participants at Not the Global Law Summit, in the freezing cold outside the Houses of Parliament today. If that demand can be met, then the next GLS will be something to take pride in, and not a grotesque embarrassment.


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They Would not Listen, They Did not Know How

Here we go again. Another legal aid consultation by the Ministry of Justice, in response to the quashing by Burnett J of the flawed decisions based on the last one: not that you’d know from the announcement that the MOJ has suffered the humiliation of having its decision described as so unfair as to be unlawful. It says nothing about the judicial review. There is no trace of contrition, regret, much less of apology for mucking the profession about, wasting time and energy, and for creating a shambles.

The MOJ press office employs no fewer than 28 people, according to its website. How many of them did it take to decide to whitewash the debacle of the Burnett judgment and pretend that it merely ‘raises some technical issues’? But then, they are only their master’s voice.

We know from evidence which Burnett J heard, that the Ministry would have paid no attention even if the reports that are now the subject of consultation had been made available when they should have been. To use the language of the Courts, the MOJ has a ‘propensity’ for not listening to reasoned responses. It was strike action by the Criminal Bar, and the threat of more strikes, that got Grayling’s attention and persuaded him to abandon one small aspect of the destruction they are determined to wreak on the legal system.

With the MOJ, the clue is not in the name. If justice involves listening, weighing things up with an open mind, and even changing your mind, you won’t see it in their dealings with the profession. They might want to think about what Megarry J said in John v Rees [1970] 1 Ch 345:

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

Instead, the Mandarins may have been studying Bleak House. Old Tom Jarndyce was talking about chancery litigation, but today it would be death by consultations:

‘For,’ says he, ‘it’s being ground to bits in a slow mill; it’s being roasted at a slow fire; it’s being stung to death by single bees; it’s being drowned by drops; it’s going mad by grains’.





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It Doesn’t Matter What You Say, We’ve Made Our Minds Up

Mr Justice Burnett has quashed Chris Grayling’s decision to reduce from 1600 to 525 the solicitors’ firms who will get legal aid contracts to act as duty solicitors. This was the centrepiece of the MOJ’s restructuring of the supply of legal aid, would have driven hundreds of dedicated and experienced lawyers, on whose work the criminal legal system depends, out of business. The Judge has ruled that the decision to adopt this policy was illegal, because the MOJ’s consultation procedure was flawed by unfairness.

This is because Grayling hid from consultees two key pieces of research that the MOJ had commissioned: ‘expert’ reports about the impact of restructuring the market for criminal legal services.  The MOJ based its plans on the reports. But the research (when eventually disclosed) turned out to be contentious and based on questionable (or just plain wrong) assumptions. Burnett J held that the failure to let the consultees see and comment on this research ‘… was so unfair as to result in illegality’ [§50], and so he quashed the decision.

There’s another intriguing passage in the judgment. The Judge received evidence from a number of solicitors, who described how they would have responded if they had seen the undisclosed material when they should have done. He also had evidence from Dr Gibby, the MOJ’s head of legal aid policy, and a very senior mandarin indeed. Dr Gibby said that the responses by the professionals, had they been known, would have made no difference to the MOJ’s decision. That, you may think, is pretty sweeping, and doesn’t say much for the MOJ’s willingness to deal with reasoned objections to its plans. But here’s the thing: Burnett J comments [§46] that

On instructions, [counsel for the MOJ] confirmed that this represented Dr Gibby’s opinion and was not to be taken as an assertion that, had he considered the representations foreshadowed in the claimants’ evidence, the Lord Chancellor necessarily would have sanctioned the adoption of the same assumptions or that the eventual decision would have been the same

What does this mean? It’s a bit Delphic, but to me it strongly suggests that the Minister is disavowing his own senior civil servant: that may have been what she thought, Grayling is saying, but I did not share that view. He is cutting her loose, and blaming her for any false impression that the solicitors may have formed about his real view of the matter.

So we have a senior civil servant saying that the informed views of those who would bear the brunt of the policy would have been disregarded in any event; and a minister apparently – and publicly – dissociating himself from her; and all in a context of fundamentally flawed decision-making. This wasn’t about some parochial matter like planning permission for a supermarket, but about whether legal services would be available to some of those most in need of them, and whether two thirds of solicitors’ firms would cease to exist: with serious knock-on effects for criminal justice and for law and order more generally.

What an almighty cock-up. This is train-crash government. It is not comforting to know that earlier in her career, Dr Gibby was the Director of the Royal Society for the Prevention of Accidents.

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Legal Aid – European Perspectives

On 25-26 April the European Criminal Bar Association held its spring conference in Warsaw, hosted by the Warsaw Bar Association. The theme of the conference was ‘Legal Aid – Privilege for Criminals or Essential for Fair Proceedings’.

The ECBA was founded in 1997 by Professor Franz Salditt, of the German Bar Association, and Rock Tansey QC from the UK, to enable criminal lawyers across Europe to meet, share experiences, and discuss matters of common interest. It has produced a large number of policy documents, which have been used to assist and inform decision-makers in national jurisdictions, and in the European Commission.

The occasion of the Warsaw conference was discussion of the Proposed Directive of the European Parliament on Provisional Legal Aid for Suspects or Accused persons deprived of liberty and Legal Aid in European Arrest Warrant Proceedings  Com (2013) 824, and the European Commission’s Recommendation on the right to legal aid C(2013) 8179/2.

 The 80 or so delegates came from 18 countries:




Czech Republic






The Netherlands









They included practising lawyers, judges, academics, and policy makers: of these, Tomasz Darkowski, a senior official in the Polish Ministry of Justice, described the budgetary implications for Poland of decisions to widen the scope of legal aid, and Michele Coninsx, the President of the EU body, Eurojust, that oversees the European Arrest Warrant (EAW responded to criticisms that the EAW is used disproportionately for minor offences and lacks procedural safeguards and proper provision for legal aid.

What was striking during the formal presentations and discussions, and informal conversations around them, was how colleagues across Europe not only face the same problems as we do in the UK, but that we have the same common underlying values.

We all perceived the decent provision of legal aid to criminal suspects and defendants as something fundamental to the rule of law, without which there can be no meaningful access to justice; without access to justice, the rule of law suffers; without highly competent and fairly rewarded defence lawyers, the state will abuse its powers; the rule of law may not be an end in itself, because we may be ruled by harsh and oppressive laws, but it is surely a necessary condition for liberty to flourish, if not a sufficient one. For the delegates whose countries have recently emerged from dictatorship and satellite status, these values must have been more potent and immediate than for those of us accustomed to a high degree of freedom.

They in particular will have been aware of how fragile liberty can be – when one of its strands is weakened, the whole thing begins to totter.

My small contribution to the work of the eminent scholars and jurists at the conference (I’m not a jurist, or a scholar, or eminent) was a paper reporting in summary form on the rise and fall of legal aid in the UK, from 1949 to 2014, and the political forces which shaped it and are now destroying it.

The UK was once looked to as a beacon of justice by providing legal aid for those who could not pay for advice and representation. I fear that it will soon be seen as a model for how to do the opposite. We must not forget that the destruction of legal aid is a political act, driven by two forces: first, the need, as Kenneth Clarke saw it when he was Minister of Justice, not to ‘leave untouched a system that has grown astonishingly, making the poor extremely litigious’; second, to claw back power to the executive, by measures such as the restrictions on judicial review and the use of secret evidence in civil cases, which put administrative acts out of the reach of proper legal scrutiny. The financial crisis was a useful but mendacious alibi to justify a massive attack on access to justice across the board, which is what cutting legal aid means.

European colleagues gasped when they heard the Clarke quote, and gasped again when told that our present Minister of Justice has no legal experience or training whatever. Poland, the venue of limitless cruelty and horrors in the 20th century, values its hard-won freedoms and knows how precious and precarious they are. Do we?


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Dallas Buyers Club

This film takes many of Hollywood’s familiar tropes and clichés, and spins them into the dark early years of the US AIDS epidemic in the 1980s. The little man who takes on the big battalions starts off as a vile, drunk, bigoted piece of Texan trailer trash; the big battalions are doctors and drug companies trying to find a non-lethal treatment for HIV/AIDS. They want a cure that makes money, and so does he, so he goes to a guru in the unlikely form of a struck-off physician practising in Mexico, and sells large quantities of unapproved but effective remedies back in Texas. He achieves the American dream – anyone can get rich and successful  if they try hard enough – but only by living through the nightmare of a terminal illness.  He keeps a pump-action shot gun in his car and a pistol on his desk, symbols of his rugged independence. He needs to test his manhood, by riding bucking broncos. He finds to his great surprise he has a gay best friend, and ceases being a heartless tin man and a brainless straw man by overcoming his homophobia and outsmarting the medical profession with his own research. He gains redemption of a kind through the love of a good woman, who also happens to be his doctor.

The authorities obstruct him at every turn: the Food and Drug Administration, the Internal Revenue Service, and the law (though the Judge is, in true Hollywood fashion, wise and compassionate).

This is a thoroughly right wing film. There is no hint that that the authorities may be right to restrict the freelance peddling of powerful, unlicensed prescription drugs by a completely unqualified maverick. The armed loner, for all his flaws, is a hero against the collective. I detect a smack in the eye for Obamacare, in which the state takes a greater role in medical provision than Americans have been used to. The concept of a benevolent, regulated, free system of health care for all who need it gets no airtime at all, and would be at odds with the film’s glorification of the individual’s struggle against the system.

Had it been made 30 years ago it would have been a sensation. Now that the menace of HIV has been largely tamed in the USA, the film is a period piece – with some lovely period touches: as Matthew McConnaughey’s character evolves into a globe-trotting freelance pharmacist, he acquires an early mobile phone the size of a housebrick. He gives a great performance, as a man whose illness reduces him to a physical wreck and – if you shrug off the film’s politics – raises him to be a moral hero.

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Righteous Among the Nations?

Francis Foley was a spy who acted as the Passport Control Officer at the British Embassy in Berlin during the Nazi era. Our immigration policy at the time prevented people who would compete with professional workers from entering the UK. The very old, the sick and handicapped, and persons associated with the Communist Party were also barred.  If you wanted to enter British-administered Palestine, you needed to prove you had £1000 available – an enormous sum of money in those days, especially for German Jews whom since 1933 the Nazi state had been plundering and driving into poverty. The British press and the political establishment opposed a more liberal approach.

Foley is thought to have issued at least 10,000 visas to Jews desperate to leave Germany. He conscientiously failed to apply the immigration rules to them, discerning their fate if they stayed. On at least one occasion he went to the Buchenwald concentration camp to hand a Palestine exit visa to an inmate in person. He drew no attention to himself, and continued his intelligence work during and after World War II, until he retired in 1949. He was not a Jew. He is honoured in Israel as one of the ‘Righteous Among the Nations’.

UK policy towards Syrian refugees is to make money available for relief in and around Syria. The government has been relatively generous, pledging £500M in aid.

But when it comes to humanitarian admissions or resettlement places for Syrian refugees, the best offer in the EU comes from Germany: 10,000, or 80% of all places offered by the EU. The remaining 27 EU states have offered 2,340 between them. We have offered none. The few who make it here will be treated in exactly the same way as any other ‘asylum seekers’.  Amnesty International’s protests have fallen on deaf ears.

There is no British diplomatic mission in Syria, no latter-day Foley can help any of those facing death and destitution.




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