The Work of the Criminal and Family Advocate in the English Courts in the Modern Era
An essay on the practical application of the true philosophy of English adversarial advocacy.
1. My Personal Story
I was a criminal Counsel from 1977 to the end of 1982 practising on the South Eastern circuit of London in Sir Michael Havers QC Chambers. I was called to the Bar in 1975 by Lincoln’s Inn after two years study at the Inns of Court School of Law: Council of Legal Education. I had graduated in politics and modern history Hons in June 1973 – Class II, Division I from Manchester University. Following my period as a junior Counsel I transferred to the solicitor’s profession and I was admitted to the Roll in January 1984. I was then in general practice practising in St Mary Cray Orpington in the London Borough of Bromley but I was part of a small firm which was based in Woolwich London SE18 namely Dilworth & Co. My practice was legal aid criminal and family and some conveyancing. On 1 June 1993 I declared independence and Dilworth & Co became Dilworth Lamb & Co in our St Mary Cray office rented from Michael Dilworth Solicitor. I was now a fully-fledged sole practitioner (with trainees one after the other) in St Mary Cray but we moved to larger and better offices – a purpose built suite in August 2004 also in St Mary Cray. In April 2012 we converted from a sole practice to a Limited Company practice Dilworth Lamb Limited. By now we had acquired some probate clients and a specialist conveyancer. I now concentrated on family law advocacy care work (children going into foster care) and private law Children Act cases advocacy (disputes between parents over contact, residence and parental responsibility) assisted by a newly qualified Solicitor in private law. This was effectively the heavy Children Act (Public Law) trial advocacy of our Limited Company practice that I was taking on myself. We did not instruct Counsel unless unavoidable. My supporter Michael Dilworth who took me on at Dilworth & Co in February 1984 and moved me into St Mary Cray in April 1984 permanently tragically died in March 2005 having stopped work due to a tumour of the brain in June 2004. He was an accomplished solicitor himself and much respected. After various comings and goings of solicitors and other staff we decided to close the Law practice on 25 May 2013 due to poor cash flow in children’s legal aid. We had lost our legal aid contract on 1 April 2013. We have now become Temon Estate Limited a non-law practice at the same premises as the Law firm. We stopped doing criminal legal aid cases finally at Dilworth Lamb & Co in 2000.
2. The Nature of Criminal Advocacy
In my day 1977 – 1982 the jury was empanelled to decide the facts and they really did. The intervention of DNA analysis, intensive electronic surveillance, blood tests, shoes prints, fingerprints, teeth marks, audio and visual tapes and CCTV all served to silence the conflict in Court presently. Some of these tools were available previously but audio and visual techniques came later. The somewhat sterile dispute about was said in the police station by the suspect is now easily resolved – in my day it was a fertile ground for cross-examination [both in and outside the station]. There were “contemporaneous” notes or suspects “statements” which we defence Counsel would impugn. Nothing in my eyes was too great a calumny for the police. There was no trust when I was in Court defending – even when prosecuting I had no mercy on the accused and his Counsel. The essence of my advocacy was to take on all comers including the Judge himself. No one would come between me the Counsel: R M Lamb and my quest for the truth. Not unsurprisingly I sensibly withdrew from the fray to enter the milder pastures of soliciting. The barristers in my chambers breathed a sigh of relief in 1983.
3. Solicitor Advocate
I did not begin to assail the heights again of my work as a criminal counsel which had taken me to the Old Bailey, Chelmsford Crown Court, Northampton Crown Court, Snaresbrook Crown Court, Ipswich Crown Court and the Court of Appeal Criminal Division until approximately 2009. I then appeared in a succession of Public Law Children Act care cases at the trial stage and prior to the trial discovered the secret is to reduce these cases to the kernel and not be bogged down in minutiae or put off by those who are consumed by detail. See the wood for the trees was my motto. With that philosophy the process of cross examination is made simple and to the point and very effective. The atmosphere in Court may be highly charged at the juncture of my questioning of the social worker and examination in chief of the parent. The importance of examination in chief cannot be sufficiently stressed. Its lays the ground work for your client’s case and is sometimes neglected as non-adversarial. The same principle applied to my Crown Court casework at the Bar as Senior Counsel told me (e.g. Barry Hudson QC).
4. The Function of the Advocate
The main purpose of the Advocate in Criminal and Family is to present his client’s case and properly represent his client in Court. The advocate cannot be the Judge of the case but he must press his client’s case to enable the Court to make its adjudication under the adversarial system of advocacy. Courtesy to the Tribunal is essential by Counsel and Solicitors. Others argue in favour of the inquisitional system but in England and Wales we have to work inside the adversarial process and always will.
5. The particular case of the murder trial of the Guildford Four in 1974 at the Old Bailey: Sir Michael Havers QC Prosecuting Counsel.
The question here was the so called alibi witness for Gerry Conlon (one of the four accused). The witness statement was in the prosecution papers in 1974 at the time of trial and had been taken by police officers. Sir Michael was accused of suppressing this statement and neglecting to show it to the defence Counsel for Conlon (it was said to exonerate Conlon). What do I say? First Sir Michael was an old school prosecutor and had not been inculcated in the condescending and patronising culture whereby the prosecuting Senior Counsel helps the defence Counsel to win a murder case such as this. In the adversarial system the defence should stand on their own feet and prepare their own cases and find their own witnesses. Essentially Sir Michael respected Conlon’s Counsel and Conlon’s defence team and properly wished them to enjoy the great freedom of preparing their own case in complete privacy and confidentiality. Yes, criminal justice is high risk that cannot be denied especially in 1974 but without that risk it becomes a foregone conclusion and a show trial. Sir Michael represented the Crown properly and would not be straitjacketed in to doing the Defence team’s job for them. He was there to prosecute not defend in this 1974 case. The alibi witness for Conlon may have been highly unreliable as Sir Michael recognised if called to give evidence. He should not torpedo the defence case below the waterline under the supposed guise of unwarranted disclosure. There were no Judges’ guidance in 1974 on disclosure and Sir Michael performed his duty as an advocate instructed by the Crown to secure convictions of the Guildford Four. All four accused were convicted by the Jury.
6. Disclosure by the Crown
Sir Michael took the conservative but just approach he should not be judge of the facts and evidence but he should concentrate on his allotted task to present the case for the Crown in Guildford Four trial. If he had disclosed this alibi statement he would have sullied his position as Senior Counsel for the Crown by in effect backing the defence and the Crown. You do not back two horses at the same time and thereby expect leading Counsel for the Crown to potentially damage his own case. The whole process of disclosure in the heavy cases should be handled by an independent Counsel or body. In lesser cases the Crown Prosecution Service team but not their trial advocate should manage disclosure. In the really heavy cases leading Counsel for the Crown should be confident disclosure has been properly processed and thus he may concentrate on presenting the available evidence without fear of being surprised from the rear. Leading Counsel for the Crown should not be ambushed as Sir Michael was after the trial in the 1980’s over this Conlon alibi witness affair. Sir Michael’s experience in the Guildford Four trial shows the need to respect and support the role of leading Counsel for the Crown or justice will never be properly carried out and our society will suffer. The attack on Sir Michael destabilised our Criminal Justice system for no good reason.
7. The Present State of the Criminal Justice
Basically the trust has gone out of criminal justice between Counsel and Advocates – even the Judge is left in the cold. If there was trust the whole process of disclosure could be better managed. The defence resent disclosing their defence and restrict that defence statement. The prosecution is not trusted to edit out the investigation bundle. There is enormous pressure on the accused to plead guilty. We are trying to create criminal justice without risk and trust which is impossible. Even under the inquisitorial process in France there is a risk. Human beings make mistakes. There is no crime or breach of etiquette in that. Sir Michael’s firm adherence to his instructions won the day for Justice in 1974 whatever the Appeal Court ruled with the Guildford Four. The Court of Appeal did its duty without doubt but that does not mean Sir Michael neglected his in the trial. You cannot stop children crossing the road because of the risk – with Advocates of the calibre of Sir Michael they will go to the other side unharmed. With incompetent, over attentive, weak willed, politically correct legal teams justice will not be done and the lay client will suffer in the long run. Politics should be kept out of the criminal trial advocacy and process. Justice has been brought to a halt virtually by the current disclosure rules. Sir Michael knew justice meant first and foremost fairness to the accused and he showed that belief in his advocacy and conduct of his cases be he defence Counsel or Counsel for the Crown. We may be truly grateful for his precision, expedition, thrust, insight and Judgement and lasting example of this probity to all criminal practitioners and Advocates. He was the leading criminal Counsel of his time without any shadow of doubt.