Showing posts with label criminal lawyer. Show all posts
Showing posts with label criminal lawyer. Show all posts

Friday 9 February 2024

Apparently I have sparked a debate!…….

Top barrister sparks debate about defending the guilty…


Wednesday 15 November 2023

A barrister’s wig in the UK criminal courts…Dominic D’Souza explains our Victorian dress and the purposes behind it!



Sunday 7 November 2021

My life in law…


 I’m being interviewed by Law Simplified for their podcast. See the above promotional poster if you feel like hearing about my years as a criminal defence barrister. 

Monday 29 April 2019

Question your questions

I started this post a couple of years ago and having seen it in my 'draft' folder decided to finish it..........
I felt I ought to update my blog as it has been a while since my last missive - not that there has been a clamour from ardent readers to know what I have been up to. Actually, I would have been gratified to detect even a whimper in that regard, but alas the silence has been deafening. I have decided that this must be due to my insensitivity to the cares of my readers rather than to consider that they have none. Or indeed that I have none - readers that is - because I have chosen to think of all those 'hits' I see in the stats analysis of my blog as countless happy perusers of my musings. In doing so I have cast from my mind the comment by an anonymous chap who informed me that although he hated to 'burst my bubble' the majority of my hits were likely to be automated crawlers - bots - rather than real, honest to goodness, flesh and blood followers.

The comfort this 'willing suspension of disbelief' gives me reminds me of something I encounter frequently in witnesses I cross examine in defending my lay clients at trial. It seems an essential facet of the human condition is the predilection to believe what is more palatable to us, to construct as recall what gives us comfort or makes sense of our interaction with the world. More than this, it is startling how difficult it is to deconstruct these constructs in a witness even when in possession of material that should rationally cause any person to consider the possibility (let alone certainty) that he is simply wrong. Some witnesses are offended, even angered at the suggestion their account is not true, even if it was an account honestly given. Other witnesses are left confused when presented with evidence contradicting something they were moments before so certain of. I have found that whatever the reaction from such witnesses, most if not all hold doggedly to the certainty of their memories to the very point when logic forces them to the concession that it is fruitless to do so. Some never let go of the creations of their minds preferring those to whatever reality is presented to them.

The most obvious example of this phenomena are witnesses who give evidence in identification cases. I cannot remember how many witnesses I have cross examined about what it is that they 'think' they saw. I do recall practically all were certain about what it was they were to tell the court before I stood up to commence cross examination. And in all cases, the witnesses were 'invested' in what they had to say; it was important to them that their accounts were as true to the world as they were to themselves. The comfort and security in things being as they chose to see them was something reluctantly relinquished if at all. And often not without a fight.

But such a fight does not necessarily mean bludgeoning a witness which is often counter productive.  Someone who feels bitten sometimes bites back.  Cross examination is not always akin to going ten rounds with Tyson.  Teasing out of a witness a concession as to the truth, although a fight, can be one the witness does not even know he is engaged in.  A moth cannot resist a light and a fly does not realise his fate until the spark of an electric wire heralds an end to its flight.  Cross examination is an art form that is never perfected.  After a quarter century at the Bar I am still learning a skill that can never truly be mastered.  What is the most important tool in a cross examiner's arsenal?  It is not in fact a facility with the English language, although this helps.  It is not an ability to create drama, or conversely to quietly push to your point.  It is not forensic and acute planning as cross examinations organically move in the direction answers from a witness take you.  It is not quick witted point scoring - as an honesty and integrity must shine through any cross examination if it is to impress itself upon a jury.  In my experience, the single most important quality that an able cross examiner must possess is an understanding of the human condition.  An appreciation of the myriad causes that lead people to behave as they do.  The most exceptional cross examiners are those who themselves have been to dark places, who themselves have experienced the anger, the jealousy, the avarice, the insecurity, the selfishness, the self deceptions and all the motivations that drive people to do and say as they do.  One. of the most famous cross examiners of our time, sadly passed, was George Carman QC.  As an individual he was deeply insecure.  He was flawed and damaged but it was an understanding of his faults that made him so brilliant in revealing those of whom he questioned.  I remember seeing Mr Carman wandering round Bethnal Green at 4am one morning.  I stopped to ask him what he was doing and if he was alright.  'Just thinking' he said to me.  'About where I can get another drink'.  I gave him a lift to Wimbledon as he was due to be in court later that morning.  On the journey he explained that he had spent the whole night in the company of some East End blaggers as there was something important in his current case that he felt he was missing.  And as I understand it that was time well spent because he won his case days later upon the cross examination he was able to conduct from what he learned that night.  Anyone who witnessed Carman's cross examination of the actress Gillian Taylforth will have seen one of the most mesmerising destructions of a witness conducted in our courts.  And that whole cross examination came from within; from a profound understanding of the human condition.

I like to think I am well regarded by my instructing solicitors not only for my closing speeches but for my ability in cross examination.  Students who truly aspire to practice as advocates have to live and breathe advocacy.  When I was a student I spent every spare moment I had watching trials in various Crown Courts I managed to get to.  Indeed when I was a pupil, doing my own cases in the Magistrates Court or short hearings in a Crown Court I spent the rest of my day watching the barristers I admired doing their thing.  In doing so I learned very early on what I thought was good and what I thought was bad.  What I thought effective and what I realised were errors of judgement.  A wise man may learn from his own mistakes, but an even wiser chap will learn from the mistakes of others.  And I soaked up what it was to be a barrister before I ever set foot in court.  I believe it may be that head start I had 25 years ago that has culminated in my being the barrister I am today.  And I am still learning.  I still pop into another court if I find myself done with my own case for the day.

Trials are not in pure terms about the truth.  It would be naive to believe as much.  But trials are indeed about a search for the truth, or an attack upon what is asserted to be the immutability of the truth.  In seeking to establish the case for your client there is nothing more important in the trial process than the art of cross examination.  And as I have said above, you would be surprised how difficult it is sometimes to prise what is a self evident fact from a witness whose brain cannot accept it.  Many years ago I prided myself on my ability to destroy a witness, to humiliate the subject of my questioning to the point he accepted defeat.  Those days are gone and we now know how wrong that type of advocacy was.  Modern legislation is designed to protect witnesses from such attacks where the playing field is anything but level.  These changes are developments that I welcome.  Rape victims for example will doubtless still be traumatised at having to relive their ordeal or be accused of lying in cross examination, but believe me, the experience is a world away from the psychological damage a cross examination could do to a person years ago.  Children too are protected by sensible safeguards as are those who are mentally vulnerable.  These legislative changes do not in fact prejudice defendants or make convictions more likely.  What they do is seek to achieve the best evidence a witness can give, be that against an accused or in concessions for him.  That is not to say that, as a defence barrister, I do not have concerns about the current restrictions imposed upon some cross examinations.  The system is far from perfect, and I believe there are miscarriages of justice that sometimes result from the restrictive parameters sometimes imposed upon questioning.  However, the state of learning in relation to the trial of our citizens is a constantly developing process and in taking steps forward sometimes steps are taken backward.  Regardless, I am confident that the way in which our trial process evolves vitiates to its continued improvement even if such improvements come at the cost to those wrongly convicted or tried in circumstances that hindsight would never have countenanced.

For us, for barristers who have spent their lives defending the innocent or prosecuting the guilty, all we can do is be as able as we possibly can within the constantly changing environment of the trial process.  We have to believe in our system or alternatively in our ability to change it for the greater good.  Those barristers who selflessly pursue appeals for years if not decades until eventually securing the quashing of convictions once a body of opinion finally acknowledges what has been the barrister's conviction all along; those barristers represent the very best of our Bar.  Some of those who follow my media postings will know I have recently agreed to act pro bono for Omar Benguit, convicted almost 20 years ago of two murders.  I took this case on having been inspired by the unfailing belief of a BBC journalist, Bronagh Munro, who has made several documentaries about the case.  For those with an interest in what it is to pursue historic miscarriages of justice cases the documentaries make for very interesting watching.  And for a barrister, if many years lead eventually to a positive outcome, I wonder what could be a more profoundly important devotion of part of your life for the life of another?  The course of history, the history of that individual, and generations thereafter to the end of time are affected by what we do as barristers.  By every question we ask and every answer we get.  It is to me the ultimate privilege and the gravest responsibility.  Such is the nature of a vocational calling.

And so it comes to this....don't come to the Bar unless you can shoulder the responsibility and fearlessly stand up for what you know to be right.  Don't come to the Bar if you plan on breezing by in half measures as this vocation demands your all.  Be the very best you can be.  How else could you sleep at night knowing you could have done better for someone who could not do anything for themselves?  The Bar is a demanding mistress.  It always must come first.  And it takes a huge toll on those of us in practice.  But its rewards are such that I cannot even express them in words.  The Bar has given me some of the defining joys of my life as well as my darkest miseries.  I guess its a tempestuous relationship.  But you don't need to cross examine to know that those are sometimes the most enduring.