Danny: I see you’re wearing a suit.
Withnail: What’s it got to do with you?
Danny: No need to get uptight, man. I was merely making an observation. I happened to be looking for a suit for the Coalman two weeks ago. For reasons I can’t really discuss with you. The Coalman had to go to Jamaica. Got busted coming back through Heathrow. Had a weight under his fez. We worked out it would be handy karma for him to get hold of a suit but he’s a very low temperature spade, the Coalman. Goes into court in his kaftan and a bell. This doesn’t go down at all well. They can handle the kaftan, they can’t handle the bell. So, there’s this judge sitting there in a cape like fucking Batman and this really rather far out looking hat.
Danny: No, man, this was more like a long white hat. So, he looks at the Coalman and says “What’s all this? This is a court, man. This ain’t fancy dress.” And the Coalman looks at him and says “You think you look normal, your honour?” C*** gave him two years.
A short conversation on Twitter with @charonqc and @davidallengreen and on wigs & gowns in the wake of the niqab-wearing juror, inevitably called the immortal Danny to mind.
Advocates in the Magistrates court have never worn court dress. The Magistrates, like the Justices of the Supreme Court and the House of Lords before them, do not wear judicial robes (except the City of London Magistrates who sport fur-trimmed gowns). Advocates in civil cases have given up wigs, and now appeared unwigged and ungowned before the Supreme Court. The Crown Court has retained the full get-up for judges and advocates. Solicitor advocates felt at a disadvantage and successfully petitioned to wear wigs as well as gowns.
According to the legal outfitters Ede & Ravenscroft, gowns have been black since 1685 when the Bar went into mourning for Charles II, and wigs have been white since 1825 when the first Ravenscroft developed the current white horsehair model to replace the troublesome and skittish black original.
Now I lament the passing of Charles II as much as the next man, and in the Finsbury Park area we speak of little else but the golden days of his reign. I give daily thanks to Mr Ravenscroft for sparing me the powders and ointments necessary to keep the black wig in good order.
In moments of republican resolve I vow to do away with all flummery, wigs, gowns, bands, the ‘most gratefuls’ and ‘may it please your honours’, ‘the short adjournment’ (aka lunch), and so on. However…a defence can be mounted for these archaic forms of dress and speech.
The criminal trial is rightly a highly formal event. The formality allows all the participants to know with clarity what is happening. What is at stake makes that clarity vitally important. The process is adversarial but is conducted according to rules that subject it to reason, dialectic and civility. Thesis meets antithesis, and the jury instructed in the law produce the synthesis. There should be no room for error, and there should be (and usually there are) adequate mechanisms for detecting error. We have become utterly unused to formality in our daily encounters with one another and with those in power. First names and casual language characterise our dealings. Many people complain that the increased informality accompanies increased incivility – as though the absence of formality and prescribed modes of address and illocution makes it difficult to find a common space in which transactions can be done with comfort and confidence. It may not matter much in most circumstances, but when the stakes are as high as they are in trials of serious criminal charges, it matters a lot. We need to know where we all stand with each other. We need a framework of formal discourse in order to weigh up evidence and assess credibility.
The structures of formality are most useful in the worst of cases, where horrifying events have occurred. They have to be described, and the evidence has to be examined as objectively as possible – forensically, of course. The ability to couch the evidence, and the comments upon it, in a formal way makes it possible to draw enough of the emotion and stress from it to make clear judgment possible. I don’t mean pomposity or obscurity – they have no place in a court.
This formal level of discourse is not confined to language; it extends to the physical layout of a courtroom, in which location defines function. It includes our Courts’ abhorrence of American advocates’ habit of walking around, eyeballing witnesses and jurors, and other forms of ham-acting. But it also includes the dress. Wigs and gowns serve to define the function of the wearer. A lapel badge would do it, but the costume does more. It does more than tell the world what the function is, it shows it. The robes shows that when I ask questions and make a speech, it is not a 50 year old man with a taste for classical music and long distance running, who is talking, but merely an advocate arguing a case. To say that the costume depersonalises, would be going too far: the advocate’s personality is an irreducible feature of advocacy, for better or worse. The costume helps to set the terms in which a trial can be conducted with all due care and civility.
We probably couldn’t achieve this by wearing Batman capes and long white hats instead of Mr Ravenscroft’s improvement on Charles II’s mourning dress, as we do. It is odd, anachronistic, easy to ridicule: but look a little deeper at what it does and what it means, and you may end up thinking that it is worth preserving.