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.