Monday 11 June 2012

So sorry so serious

I have just read my last post and have to apologise for the uncharacteristic gloomy and serious tone of this latest missive. Although I stand by its contents I must have been in a dark humour when it was penned! For those more used to my lackadaisical and whimsical take on life and law, the usual tone will be resumed...promise, you can trust me, I'm a liar...er, lawyer. Yep, that's it. Lawyer. TCB

Our progressive regressive Bar

For all the advances made by the Bar in the last couple of years, there is one facet of life as a criminal barrister that has certainly rolled back to the days of Marshall Hall and Norman Birkett. As cases have become more demanding and more complicated; as barristers are required to master professions other than their own - medicine, DNA, accountancy, blood analysis, fingerprint analysis, psychiatriatry, psychology - in the preparation and presentation of cases. In the face of these advances washing over criminal practitioners with the force of a Tsunami, carrying them on a wave of relentless change and development in the presentational aspects of criminal trials, one issue manages to swim against the current. And to do so with the determined obstinancy of a salmon heading for its spawning grounds. This issue? This matter resolutely marching back in time to the days of those old legends of our profession? This issue is that of fees. Our fees for practising as barristers. Our income. Our livelihood. The Bar is once again truely 'a calling'. A calling, in the purest sense, of course, is an irresistable urge to a vocation that is without consideration of livelihood. Those called to the priesthood, for example, follow that calling without consideration for matters such as income, standard of living or any of the other banal and base financial considerations of our modern age. In days gone by - long gone by - the Bar was a calling of the highest order, unconcerned with the taint of financial consideration or the requirement of regular and appropriate income. In those halcyon days, those who came to the Bar were, without exception, those who could afford this lofty calling. Those who had an independent income, or family money; certainly those who did not need 'a job'. If you needed a job, er...well, go get one. And if you wanted a job in the law, well, you could always become a solicitor. In these winsome days of the Bar, entrants to the profession were without exception from those in society who could afford a 'calling'. It seems that 'callings' in those days were the privilege of the elite, the establishment and the Old School Tie. Happily those days, and those views were discarded like yesterday's news with the progressive reforms the Bar has until now imposed upon itself. Today we like to think that the Bar is no longer the exclusive privilege of the exclusive privileged. We like to think that a career at the Bar is now open and attainable for all who are called to the profession. We, at the Bar, like to think a lot of things. Indeed, some may say that thinkers are all we have become as a profession; that we are paralysed by thought, by discussion and discourse. Some are concerned we are thinking and discussing our beloved profession to death. There has been much talk, much thought and endless discussion about the devestating decimation of earnings at the criminal Bar. Indeed the only thing worse to a criminal practitioner than contemplating his bleak financial future is to have to read or talk about it a moment more. We have been talked, lectured, analysed and bombarded into weary submission. Into paralysis actually. And with our profession thus in this morbid state, our representatives can go about doing nothing and pronouncing everything. It is a matter of intense curiosity to me that the income of criminal barristers can have been so dramatically slashed without a whisper of 'active' (as opposed to prosaic) protest, whilst in every other field of industry and commerce such a situation would be simply incomprehensible, an impossibility as immutable as a pro bono banker. And so I say again, the Bar is once again truely 'a calling'. Not a career. Not a job. How many of us at the criminal bar would advise university graduates to flock to the profession? How many would say that it was a vocation that provided security of income, let alone any income justifying the enormous demands the profession makes of us? I know anecdotally the views of my colleagues about the state of the criminal bar at present - I hear the same woeful notes played out in every robing room in every Crown Court up and down the country. It is a mournful tune, and one which has made me feel so truely sad about the morale of those esteemed colleagues with whom I practice. I remember the same robing rooms ten years ago, vibrant upbeat coldruns of legal testosterone. Talk was of cases, of cross examinations, of derring do; never then was a word said about fees. About income. Indeed surely those of us old enough to remember will recall how distasteful it was for a barrister to mention 'money' at all? It seems desperation and disillusionment trump distaste, and the extremity of the position faced by the criminal bar has forever, for me at least, changed the very essence of the robing room aura. I believe there is no other single issue that has changed the very character of what we so loved about the sanctity of robing room comradary and culture than our financial humiliation. For my part and from a personal perspective, I have for the first time found myself struggling financially. My commitments, predicated upon my income five or six years ago, have become increasingly difficult to meet. I know many at the criminal bar are experiencing the same distressing problems. Indeed, due to inexplicable bureaucracy and mind numbing accountability, barristers are having to wait ever longer to receive ever smaller fees for the cases they have conducted. Managing personal and family financial commitments is now completely impossible. Against this, the criminal barrister faces in the current economic climate an increasingly unsympathetic and unflexible financial environment - gone are the days of the large overdrafts afforded barristers by understanding bankers, getting a self - employed mortgage is an Herculean struggle and what were seen by lenders as being the benefits of practise at the Bar are now acknowledged as being detriments. Our financial standing has been ruined. This is an undoubted fact. Want financial standing? Want to be a good credit risk? Want a mortgage? Need I say it?.....don't come to the Bar. Why? Because a 'calling' to a financial instition (if not remunerated in accordance with its status) means 'don't call us, we'll (not) call you'. The objective observer might opine that 'if you can't afford to be at the Bar, you should not be at the Bar'. That may be harsh, but it certainly is true today. The problem is that I have devoted my life to my calling. After some 19 years at the criminal Bar I am as proud today of my achievements as I have always been. I could not contemplate doing anything else even were I qualified or capable of doing so. I feel let down. I have to say that I feel really let down. By whom? I am not sure as the buck is passed quicker than the flu. But I cannot escape the conclusion that we, the Bar, have been in some way the authors of our own biography. And our moments of paralysis have allowed others to write chapters of our story that were not part of the plot we envisiged for ourselves. Most of all, we have been writers ourselves. Talkers, discussers, robing room complainers. We need now to jump out of the pages of our profession and 'do' what is required to save not only ourselves but the future of the profession we have loved and devoted ourselves to. I don't want to read another word about what we may be planning or what we think...indeed this, my own written contribution to this inestimable volume of drivel I would happily see burned by those who wake up to what is infecting our profession under our very noses; on our watch. Do I have a solution? Well, I concede that 10 years ago those at the top of the criminal bar were earning very considerable sums of money. Ironically I was one of those lucky individuals who unluckily had his divorce settlement based upon those lucrative years - the Lord giveth and the Lord taketh away, I guess. But back to the issue, I agree that a measure of diminution in the income of those earning the highest fees (and therefore involved in the largest cases) is justified. Indeed according to all the statistical data I have read (and we have been deluged with more than enough of it) the largest criminal trials representing a tiny percentage of the total trials annually consume a significant percentage of the legal aid budget. I had thought originally the plan had been to curb the fees paid out in these cases without prejudice to the income earned by barristers seeking a living from the rest of the available pie? Would that were so. Instead, fees paid to criminal barristers have been dramatically and unsustainably slashed right accross the criminal spectrum. Everyone has been financially crippled. As a result, seniority of practice is no protection because the loss of income has, for every barrister, been proportional to his outgoings and commitments at that stage in his or her life. I have spoken to or heard of as many Queen's Counsel in dire financial difficulty as junior's starting out at the Bar. Surely it is uncontroversial that this is a deeply sad and very distressing state of affairs? In my view, the pendulum has swung too far against the financial interests of the Bar, and to the detriment of the community as a whole. It is my hope that if sense prevails it will swing the other way, at least to the extent that the progressive accomplishments that the Bar should rightly be proud of are not regressively consigned to paper - more discussion, discourse and diatribe. Every nation is measured by its legal system. Law pervades every aspect of the management and conduct of our lives. Law is the very basis upon which the legitimacy and authority of a community rests. The unrivalled regard in which our legal system has been held by the world has in large measure supported our authority in global issues, an authority far exceeding our small island status. Our legal system has allowed for our past glories as an Empire, but of more relevance, our present influence in global events. War crimes tribunals operate on our legal principles, financial commerce conducted upon our rules and regulations, democracies founded upon our example. When I was called to the Bar I will never forget the proud moment I first donned my wig and gown. But in any field of endeavour, remuneration is afforded according to the value of that enterprise - costs following the cause, as it were. We may like to be contemptuous of American lawyers. But why? They value our legal system and have adopted it, some may say improved upon it. But they value their lawyers too. In other Commonwealth jurisdictions such as Australia and Canada lawyers are as respected as they are here in our country, but remunerated in accordance with that value. Here in the UK we have now engineered a gaping disparity between the value we place on the criminal Bar and the remuneration we afford it. We are in a situation diametrically opposed to the value we have placed on city bankers and the income they have been given. One extreme is as bad as the other, and both likely to lead to catastrophe. The quality of our criminal Bar is essential in the administration and protection of the quality of our lives. Justice, and seeing justice being done is in some primal way important to all of us. That is why all of us find ourselves interested in such news. It is more than morbid curiosity, and such an explanation for the desire of the community to read or see news of trials is facile. We are interested in the Leveson inquiry, in the important cases of our time because these things positively re - affirm ourselves as a community. The law is the great leveller. It is my deepest desire that the community as a whole realise that an investment in our legal system and those that practise within it is, in fact, an investment in themselves and in their national identity. The public at large will not, of course, know of the malaise infecting criminal barristers up and down the country; but those who do know of this concerning state of affairs - our representatives at the Bar, our politicians - owe a duty to our public and to our community. Our legal system is the most valuable asset we have. Never before have I heard such negativity amongst those answering their 'calling'. This paradox - to be called and to complain about it - surely is, if you think about it, a contradiction of gargantuum proportions. It can be fixed. But only just. And if left too late, I fear no amount of money will paper over the damage caused to an old and noble profession by one arrogant, impulsive and avaricious generation.

Wednesday 24 November 2010

Statistics - not just a number....

I am sitting in my study snowed under with work - preparing my cross examination for tomorrow and so I really should not be sneaking time to type postings on my blog, however brief. And sadly (or perhaps happily for those who have to read my missives) this will indeed be brief as I have justified to myself this indulgence on the basis that it is a short and refreshing break from the cerebral intensity that cross examination preparation sometimes demands of me!

I have found myself unusually buoyed in the exhaustive and determined focus that I find critical cross examination preparation exacts from this mortal mind, and suddenly found myself wondering what this unusual happy excitement might be? And when I stopped to think about it, I knew immediately that these happy feelings cruising alongside my thoughts about my work were about my blog! I have always been passionate about everything I decide to do, and my blog is my new raison d'ĂȘtre! I find myself comforted by its existence just in knowing it is 'there', I guess, much like a parted couple are comforted knowing their lover is somewhere in the world, and 'theirs' though not 'there'. And to continue the syrupy analogy, my logging in at the end of the day is as exciting as the hug of the lovers reunited in the Virgin trains advert!

And best of all is that my new passion is not just (and some may say my usual!) love affair with myself! Statistics are a wonderful thing if they are positive as they are hateful if they are not - love 'em or hate 'em is funnily enough something I have heard said about myself, although at least I am not just a statistic. Yet!

Anyway, I have been thrilled to my little toes to see that I have had over 2000 views of my blog in the short few weeks that it has been up and running. And in my case this is particularly gratifying because I deliver postings for a living - the spoken rather than the written, admittedly. But the jurors who have listened to my countless speeches over the 18 years I have been making them have been forced to hear them. There is, no doubt, a pleasure in making a closing speech to a jury. In fact, I can confidently say that it has been the greatest rush I have ever experienced and an experience unequalled by anything else I have managed to do in my life. But starting this blog has made me realise there is something even more rewarding......and that is to have people listen (or read in the case of a blog) to what you have to say, not because they have to, but because they want to!

And so although I only have time this evening to say a huge 'thank you' to those who have ventured to read my contributions to our global consciousness, it is important for me to do so. If whatever you have read has in some way enriched or contributed to your thoughts about yourself or your world then that is just fabulous.

But even if you have thought that what you have read of my postings are completely unremarkable and a waste of your time, I am still grateful, because you are an important static, or at least a contributor to it.

On reflection, although I earlier insisted I was at least not a statistic yet, I suppose we all are in one way or another in this data driven world. The important thing, I have learned from starting this blog, is not to feel like one yourself. Its great to feel able to metaphorically shout like that chap in some advert 'I am not a number!' Because to say something that counts to a reader is to add to the sum of what he is in a way that mathematics or statistics will never achieve. A counting not predicated upon the immutability of a number but free to be valued by the regard you have for it, which in itself is neither calculable nor predictable.

And so I say thank you to all you statistics who are not statistics! In truth its not your number that counts to me, but that I may have in a small way counted to some of you.

That's countless.

Monday 22 November 2010

Thanks for the thoughts

A big thank you to those who left kind words or shared similar experiences in response to my posting about the burglary at my home last week - I was surprised so many felt inclined to get in touch, on my blog, by email or telephone etc.

I was very touched that I had so many messages of sympathy, and I was very smug and happy with my place in the world to think that people cared.......

I could have left my thinking there, but as those who read my ramblings may have started to realise, I can't resist the temptation to consider whether any event reveals insights that occur to me other than the immediately obvious. And this event, the size of the response to my disclosure of my misfortune last week as well as its consequences, has got me thinking in my usual perverse (although I hope sometimes thought provoking and occasionally humorous) way!

In terms of the obvious, I am so grateful that so many felt inclined to get in touch having read or heard of my miserably discovering I had been burgled. My tale of woe and hideous bad luck has been the post that has excited the largest comment on my blog, and has done so in just hours after it was published. Of course the fact that my misfortune has generated a larger response than any of my tales of triumph in the face of adversity, of court room derring do and courageous victories snapped from the jaws of defeat...well, that might be just because my kind hearted readers felt moved by my domestic tragedy and compelled to express themselves in posting replies.

My single misfortune, therefore, seems to have generated more interest than any of my (albeit occasional self - congratulatory) tales of success. And, as you no doubt have already anticipated, I got to wondering precisely why this might be.

Are we naturally inclined to be more intensely interested in our fellow man's tragedies than his successes? Do we feel better for reading of another's misfortunes than his good luck? Might it be that another's bad luck makes us feel grateful for our own happy lives whilst reading of someone else's achievements only serves to remind us of our own perceived lack of them? I'm not sure really, but I do believe that if this is indeed a true analysis of the nature of our psyche, it is not inconsistent with the sincerity of any expressions of sympathy; these can exist alongside the thought 'poor bugger - glad it wasn't me!'.

In pursuing this line of thought, I began to consider the media and what we see reported in the papers and on television daily. What is it that sells news? Which scoops are the ones the tabloids are looking for? I don't believe it cynical of me to say that it is those that expose the misfortunes of others. If not always, then most of the time. Front page news in the tabloids is more often than not an expose of some celebrity's misfortune. Under cover 'stings' are now commonplace and (in my view, sadly) acceptable forms of investigative journalism. The reading public, thirsty for stories of the misfortunes of others give little thought to the lives that are ruined in providing them with such stories to devour and then to give thanks that their misfortunes are not so similarly exposed to the nation. Admittedly, the scoop is all the more interesting if the subject's sad state of affairs is of his own making, but this is by no means a pre - condition. It seems to me that in the case of any individual with celebrity enough to merit a mention in the news columns, we are interested far more in their embarrassments, their secrets and their misfortunes than in their success or their achievements. With the exception of the treacle sweet Hello! magazine (who's success is arguably based on their intractable and immutable insistence on positive reporting) journalistic wisdom seems to be to the effect that the public are more interested in hearing about the downside of life than its occasional ups!

I am sure that if I was to report that I had won the lottery I would receive a great deal of congratulatory response. However, if I was to report that I had missed out on winning the lottery by losing what was a winning ticket, I have to wonder whether this revelation would be of more excitable interest to the same readership? It occurs to me as I write this thought that someone wins the lottery twice a week; sure they may get a mention in the news, but not nearly the privilege of the pages devoted to the criminal who is dispossessed of his winnings, or the spendthrift who squanders his fortune shortly after winning. Similarly, our MP's in parliament do numerous good deeds, both in their personal and their professional lives. But how many of those do you remember reading in the tabloids? If the answer is nil, or practically so, let me ask how many of their failings and their misfortunes you remember reading about? It seems the misfortune of others is what we want to know about. I remember being shocked at the overwhelming coverage Jane Goody's tragic final months received in the news. It was reporting to the point of saturation. What concerned me was not so much that it was being reported, but that this was obviously what the public wanted to see. To be fair to news providers, they can only achieve readership success by informing the public about what they are interested in reading. Another example that comes to mind is that, to me at least, Princess Diana's numerous achievements are not as easily called to mind as the troubles she had - with the press, with her life and so on. My recollection of her, as I think back to those years, is of the tragedy of her life rather than its triumphs. I may be alone in thinking this, but I suspect not. And my memory? Well, I never had the privilege of meeting her myself, and anything I retain as an impression is that which was put in my head by the news institutions who wrote or spoke about her.

And so, when considering the response to my own little misfortune I had to wonder, at the same time as being very happy at the extent of it, whether there was another side to the positive thought that this was just an expression of the inherent goodness of mankind? And in considering this possible other side please don't for a second think that I am in any way denigrating the generosity and sensitivity of those who chose to send me lovely messages. It is gratifying that there are people in the world bothered enough to do so. But I cannot help wonder whether the largest response I have had to a posting was also, even if subliminally motivated by some other factor that found itself an importance in those who read about my misfortune?

This is a legal blog, and I should say there is a legal (ish) point to all of the above rambling musings. In the time before television and mass media the criminal justice system was far more central to the lives of communities than it now is. In those days, the trials of those accused of crime, of those in a wretched situation and possibly to forfeit their lives were the interest and entertainment of the overwhelming majority of society. We no longer have public hangings that are the highlights of our social calendar or people to pillory in the stocks for misdemeanours we are thrilled not to have been exposed for ourselves, but what draws us together in feeling, what is the source of discussion in our pubs and parties is precisely that. The misfortunes of others. And, perhaps, the comfort in knowing they affect persons other than ourselves. Perhaps this is why newspapers report almost exclusively only those cases that result in conviction. There is not much interest, it seems, in those who are acquitted. In the 18 years I have been in practice, cases in which I have defended have been reported in the newspapers hundreds of times - I have been vain enough to retain some of the clippings, so I can tell you for certain that of these literally hundreds of articles, the reports almost unanimously relate only to the cases I have lost. Of my unquantifiable acquittals over almost two decades there has been hardly a whisper. It seems my successes are to be remembered only in my reminiscences whilst my failures recorded for all time! I say that somewhat flippantly, because of course the reports relate not to me but to my client and his case.....but you get my point.

And to me, I suppose, that is the wonderfully interesting fact of the human condition. We have at the same time the capacity for selfless generosity that humbles, and selfish preservation that astounds. We see this more than anywhere in our courts and the trials that are played out within them.

I wonder what comments this post will inspire.....

Saturday 20 November 2010

I wouldn't defend this criminal....reality bites....

I was in Athens yesterday when I was telephoned at 4a.m. to be told that my home had been burgled. The burglars had broken in through the conservatory. The police told me that it was a professional crime, with the burglars specialising in stealing high value/prestige cars. This was evident in that the criminals did not take any of the valuables clearly on display in my home (other than my computer which I think they took as an after thought). What they wanted, and obtained, were my car keys. They then drove off in my car - their intention, the police believe, being to sell it to criminal organisations who operate by exporting stolen prestige vehicles to Middle Eastern or Asian countries where there is a heavy demand for such cars.

Nine hours later, I am now home having had a traumatic and deeply upsetting journey. In the few hours since I was told my home had been violated by strangers I have had to deal with all the diverse consequences of being a victim of crime. There is the obvious financial loss, in my case more painful, I suspect than for most of those who have sadly found themselves in a similar situation. Having walked through the door, I began checking my post - a huge pile of unopened mail that never seems to diminish in its size or its capacity to terrorise me into leaving it untouched and unseen! Its usual menace was, on this night however no match for my intense need for the distraction opening mail would give me in the moments after I came through my front door knowing someone had been there rifling through my stuff. Anyway, the second letter I absently tore open was a reminder from my insurance company that my car insurance was due to expire and would not be renewed without my express authorisation. 'Gosh, I must do that, I thought, staring at the date at the top of the letter'....it took a little while before I realised that the letter was three weeks old and that my insurance had expired nine days ago....and a little longer before the effect of this began as a distant rumble somewhere in my head and then hit me with the inexorable force of a tsunami! Hmm....I was suddenly £45k out of pocket. This was something of a bitter pill to swallow, particularly as I had been darkly ruminating on the flight back to London that the locksmith who I had retained to change all the locks in my home had left me a voicemail invoicing me for £1500. At that stage, and blissfully ignorant of any other possible financial losses, I was horrified at the prospect of having to pay £1500, let alone a penny more! Little did I know that in fact the cost to me as a result of this burglary would mean an equivalent of paying forty thousand locksmiths at the rate my chap had charged me!

The loss of my computer is simply devastating to me, and I am hit every few minutes with new realisations of why this is so. My whole life is contained in it. Professionally, all the work I have done over the last eight years is lost. Eight years of financial accounts, lost. Eight years of legal software, lost. The precious personal files on the computer are even more painful to contemplate in their disappearance. Irreplaceable videos and photographs. My music collection. The huge body of letters and emails that were, in effect, the chronicle of my life...all lost. It seems an abomination that such precious and priceless pieces of my life are in the hands of....of, well, I don't know.

And as I write this, my dark and hateful thoughts about what I would like to happen to the scum who has so trespassed upon my life, my rage at the unfairness of it is like a random but insistent stream of consciousness in my head flowing by just behind the thoughts I marshall in writing this post. The random hate, rage, revenge et al is like background noise, a fuzzy mass of seething blackness like a television screen screaming chaotic buzz when a channel has gone off air.

As those who know me may attest, I have always sought to find something good to come out of any (and there have been many) of the disasters that have occasionally punctuated an otherwise wonderful life! So as I write this post, I have somewhat reluctantly let go of all the hateful thoughts I have been thinking about the nameless, faceless object of my rage. And in doing so I find myself deeply uncomfortable with the lynch mob fantasies I was engaging in only moments before. This is just one more crime in my life. The difference is that for the first time I am its victim, rather than the champion of the accused. Of the hundreds of burglars I must have defended, I have probably empathised with them all, and felt genuinely that they were in some way victims themselves....drug addicts, homeless, thoughtless, desperate and disenfranchised members of our world, individuals to whom we as a community owed a responsibility and in whose crimes we were not ourselves entirely blameless.

You know, writing a blog is quite therapeutic and, like the keeping of a diary, an excellent way in which to work out and identify the views you hold through the process of committing thought to writing. And my thoughts? Well, I can't say I am happy about what has happened, but I think now that the title of this posting...'I wouldn't defend this criminal...' would in itself be criminal were I to remain of that view. Of course as a victim I 'couldn't' defend someone who had committed a crime against me. But I am pleased that at the end of my post I have realised that, for me at least, it will always be 'couldn't' and never 'wouldn't'. My calling demands that I do my best for all those I represent, without fear or favour. I couldn't...and wouldn't...have it any other way.

Wednesday 17 November 2010

Something worth reading?

You know what? I had forgotten that I had a blog over the last few days - it takes a bit of getting used to I guess. After the novelty of it all that had generated a flurrry of posts, I seem to have gone the way of most impulsive projects and suddenly died an ignominious death. Ah! But like Lazarus (or to be less sacrilegious) like the phoenix from the ashes, my musings are herewith risen from the grave for those interested in the flames lovingly fanned from the embers of what I generously call a blog.

So. What has been interesting me of late? I have to say that the most amazing part of my week has been my perusal of my blog 'stats'. Apparently close on 1500 enlightened individuals have visited my cyber contributions to the mass of miscellanea that characterises the internet. I was thrilled until a closer inspection of the statistical data my provider discloses revealed that the grandiose figure I have quietly crowed about includes my own visits to my homily to all thoughts I have dubiously penned in my own name. Oh deceptive statistical data! You cyber sirens, you! You denizens of deceptions!! I curse thee for allowing me to believe I have anything like a readership - in the traditional sense, I mean. For I may have a large statistical perusal of my words of wisdom. Unfortunately I am of the depressing but immutable opinion that 99% of the accesses to my worthy but as yet unknown blog might be my own!! Hmm....what positive can be taken from this disappointing state of affairs?...Well, at a stretch I suppose I can at least say that my readership is of the most discerning kind! As coincidence would have it, of exactly the calibre of the author himself! With the exception of those two brave followers prepared to advertise their affiliation to my virtual offerings! Two those two trailblazing souls, I can only promise this - you are likely to remain an exclusive and prescient duo - ahead of your time, this time, and just in time to save these pages being consigned to timeless oblivion. For all time, metaphorically speaking, of course. To those of my 1500 hits not my own, I say this - why not stand up and be counted and officially follow me? You know you will be eventually discovered and proverbially outed if I remain your 'guity pleasure' (to quote one Cheryl Cole in her critique of an x factor boy band (boy being the operative word) looking every inch many miles before the age of consent!

Hmm...on reflection, I have to accept there is no point being affiliated to the blog of an author such as me - to do so would be somewhat risque as thus associated with a maverick and flawed but unique member of the bar. Not for everyone. Certainly not for those cautious and conservative majority that characterise our ranks as lawyers.

NB If that reverse psychology did not get to you, sign up anyway....;)

Finally, a word to a hoofy and very dear solicitor of mine (in the broadest sense as she never instructs me).....whatever you say, you read it! All of it!

Friday 12 November 2010

Chinese whispers

A couple of years ago I was instructed to defend a Chinese man accused of being the financier of the Snakehead organisation.  I was leading Gudrun Young from my chambers and it was during this case that we met the wonderful Richard Benson QC who was leading for the second Defendant.  During the course of the trial he wrote a poem about me.  I wish I could hand on heart say that I was re - producing it here as an homage to his literary prowess - that he is a gifted poet is doubtless true, but its the content of the poem I have to say I would like to think is timeless!!!

Here it is.....

The Greatest Living Advocate
(A poem by Richard Benson QC) 
D’Souza rose with golden tongue,
This Adonis of the Bar.
On every word the jurors hung,
Of him, the brightest star.
Whence did he come, this God – like boy?
No earthly path he trod;
To hear him speak was utter joy,
Touch’d by the hand of God.

There can be only one, we’re told,
In this our earthly sphere,
Who is so skilled and awesome bold,
We shed a humbling tear.
The Greatest Living Advocate is nigh,
We’re pleased to call him ‘Brother’.
All we can do is heave a sigh
For there’ll never be another.



 R v. Xing Cheng and others
Swansea Crown Court

This case involved Chinese defendants and mostly Chinese witnesses.  They were all from the Fuking Province in China.  As you know, Chinese names and places are often the subject of good natured humour here in the West.  This case was no exception, and I will never forget Mr. Benson asking a witness gravely whether he was Fukinese (but he prounounced it 'Fukin easy') which I thought was Fukin hard to get away with!  We had enormous fun in Swansea doing the case.

Having grown up in Hong Kong where my parents were ex pats, I speak pretty fluent Cantonese and as a result have been instructed in a number of cases involving Chinese defendants.  All have been the source of fond and mirthful memories but none beats the case of Wang Quing Chun who I defended at Knightsbridge Crown Court (as it then was).  When I called the defendant to give evidence I, of course, had to identify him as my first question.  In asking his name I said 'Are you Wang Quing (pronounced phonetically 'King') Chun?'  When he nodded vigorously and confirmed that he was, I said 'I'm very glad to hear it but its your voice I want you to keep up so we can all hear you.....'.  These moments of light relief (no pun intended) in what are otherwise stressful and traumatic trials are helpful not only for the barristers seeking to lighten the mood for a little, but I think are appreciated by jurors who are sometimes exhausted by the effort of having to listen to distressing testimony for extended periods.  Barristers sometimes forget how difficult this can be for jurors unused to dealing with matters that are the daily fare of a criminal practitioner's life.  As an advocate it is a real skill and a matter of sensitive judgement to be able to, appropriately and without affecting the dignity of the court process, break the oppressiveness that accompanies serious criminal allegations to give everybody in the courtroom a momentary and much needed 'time out'.  I am still trying to learn this skill as it is an often forgotten part of the arsenal available to an advocate.  I have seen both jurors and witnesses visibly grateful to the barrister providing a moments respite from the intense and distressing labours required of them.  And as a result jurors in particular, often feel an attraction to the advocate kind enough to provide a moments relief through a shared humorous intimacy.  I have found that this advocacy skill has been the hardest of all to perfect.  This is because it cannot be taught or practiced through a formulaic usage.  On the contrary, it is a matter of judgement and instinct.  And the consequences of getting it wrong can be disasterous for obvious reasons - humour that falls flat or is considered crass and inappropriate could not only fatally prejudice your client but also result in reprimand or worse from the judge.  Perhaps this is why so many barristers shy away from using this important technique in advocacy.

However, one only needs to see the skill utilised effectively to realise quite how powerful and important a part of the art of advocacy the use of humour can be.  For my part, I have never seen an exponent of this skill as masterful and effective as Sir Desmond de Silva QC.  His judgement and timing are simply exquisite and although it appears for all the world that his 'ice breakers' are delivered on the spur of the moment, I suspect they are carefully planned salvos primed and waiting for the right moment to be launched.  For those with the time or the inclination, much can be learned from watching those few confident enough in their judgement to effectively utilise the humorous in the midst of a trial that is anything but.

It is thus that many a true word can be said in jest.