Adversarial Trial in the Courts of England and Wales and Scotland

The trail procedure in England and Wales as demonstrated through the adversarial medium.

1. England and Wales:

The Police, Crown Prosecution Service, the Director of Public Prosecutions (Head of CPS) and Law Officers: Attorney-General and Solicitor-General may investigate and prosecute cases. The Police Complaints Bureau may investigate wrong doing by police officers. The Ombudsmen investigate maladministration. Solicitors to Customs and Excise may investigate Customs and Excise crime and VAT fraud as may Customs and Excise Officers themselves. Solicitors to Revenue and Inland Revenue Officers may look into Income Tax and Capital Taxes and Corporation Tax fraud. (Local Authorities and minor agencies may prosecute lesser statutory breaches usually in Magistrates Court). The trial process in Crown Court is adversarial still with Counsel appearing for the Crown/prosecution and defence Counsel. (The Serious Fraud Office may investigate and prosecute). Under the rules of procedure some criminal offences may be dealt with summarily or committal for trial to Crown Court. In Crown Court a jury is empanelled to decide on the verdict guilty or not guilty of Defendant.

2.

In Europe of west the Napoleonic Code prevails save in England and Wales. “Juge d’Instruction” is the investigating magistrate in France. Investigating Magistrates exist in Spain, Germany and Italy, (Ireland is adversarial). In these countries the system is inquisitorial but there may be a jury trial at the very end in serious cases e.g. France where the Trial Judge retires with the jury. The investigating Magistrate’s assembled dossier goes to the Trial Judge in France and I believe in Germany, Italy and Spain as well.

3.

In the U.S.A. the U.S.Attorney’s (Office) have the power to investigate crime and empanel a Grand Jury to consider the evidence and indict the accused. The trial process in the U.S.A. is adversarial like England and Wales.

4.

The Procureur-General in France looks into lesser offences inquisitorial) and prosecutes if need be. (A lawyer). The police act as agents for the Investigating Magistrate in France.

5.

The Procurator-Fiscal investigates all crime in Scotland (a Lawyer) but the Lord Advocate and Crown Office ultimately decides on who is prosecuted in serious cases. (He stands as an Attorney General). The Lord Advocate’s Office (the Crown Office) discharges this duty to assist him.

6.

In England and Wales the Coroner who enquires into certain deaths conducts a judicial investigation into the circumstances, sometimes assisted by a jury (no adversarial approach but solicitors and barristers may appear and ask questions by leave of the Coroner). The Coroner and this jury may bring in various verdicts including these:- natural causes, accidental death, misadventure, homicide, suicide etc. The Coroner’s Court can consider treasure trove also and award it. Coroners are lawyers with medical training.

7.

The trial process in Scotland before a High Court Judge and Jury is adversarial e.g. Patrick Meehan and the special plea that another (Meehan) had committed the murder made by Waddell who was tried later for the same murder (Ayr) after Meehan had his conviction quashed by the Court of Session. In Scotland the jury may convict on a simple majority verdict (15 man jury) and the “not proven” verdict is available. Not so in England where a 10-2 majority is acceptable if unanimity is not possible. The Special Plea available to Waddell is not allowed in England and Wales. But the alibi defence maybe pleaded in England and Wales and investigated by the Crown. (Notice of Alibi as it used to be called).

8.

In most Commonwealth jurisdictions the adversarial process applies. The essence of trial by adversary began with the gladiatorial concept of trial by ordeal in Roman times. The concept of a “champion” emerged in the medieval era whereby a high ranking woman would nominate her “champion” to fight for her – say in jousting tournaments. Thus to this day the advocate is the “champion” for his client who relies on him to sway the Court and Jury. So often in the past the Defence Advocate was not up to the task e.g. Guildford Four trial and Maguire Seven trial in 1970’s who were all convicted but released on appeal in the 1980’s. Essentially Sir Michael Havers QC for the Crown outgunned the defence legal teams in both these trials, but he did it quite fairly and effortlessly without oppression. The whole adversarial process depends on equality of arms. Without that egalité the adversarial process weakens and fails. There should always be a bountiful supply of advocates willing to go to extreme lengths within reason to defend their clients however unpleasant the crime and prejudicial the pre-trial publicity. Do not run away – there has to be a trial. E.g. Jeremy Thorpe who was acquitted (George Carman QC represented him). This is the essence of the gladiatorial contest in trial advocacy in England. May the best man win – there can be only one winner. An Advocate should bring out the best in his opponent and vice versa. They should both act in the best adversarial spirit of being “champions” for their lay clients or the police. There is no foregone conclusion with adversarial justice – it is a trial by “ordeal” – a fight to “the death” – i.e. the jury’s verdict or the Family Judge’s Order. The Judge must hold the ring and ensure fair play. His role in summing up is greatly facilitated by the narrowing of the issues by the trial Advocates (Crime and Family). In several modern trials with overwhelming scientific and technical evidence the defence are in a quandary whether to plead guilty or fight. Viz: Birmingham Six in mid-1970’s and explosive’s dust found by Dr Scuse (Prosecution Forensic Scientist) decided later said to have emanated from playing cards used by the Six on the train to Lancaster port of Heysham for Northern Ireland where they were to attend the funeral of John McDaid, (IRA operative killed in action in Coventry when his explosive devise blew up in his face). They were tried at Lancaster Castle and all six convicted of murder.

9.

In this situation the accused leads the way after proper legal counsel to assist him or her. The Advocate does not decide the case – the Jury do. However damning the forensic evidence the accused may decide to plead not guilty. It he does so decide his Advocate should not be half-hearted but put his back into defending the case, however harsh the prevailing wind. His client looks to his Advocate to raise his Standard.

10.

The same applies to Public Law Children Act cases, the Advocate should always stand up for his/her client despite the great difficulty for his client in the evidence from the Local Authority and the Experts which may hold no comfort for him in his relations to his children and his attempt to oppose Full Care Orders for those children.

11.

I am really saying this forensic/expert evidence in Crime and Family cases constitutes obstacles and it is the Advocate’s task to go through, over, under or by those obstacles for his client but never deceitfully. His overwhelming duty is to carry out his client’s instructions fearlessly. If he does not do his duty to his client justice will suffer immeasurably. The Court and Counsel should not use their power to divide the Advocate from his client. The relationship between Advocate and client is fundamental. An Advocate worth his salt will have an unbreakable bond with his client – be he a criminal client or a family client. He will represent and speak for his client to his utmost ability and willpower until the end.

12. CONCLUSION

My final warning is to always respect the Court by fidelity to your client. The Court will give you credit for arguing your client’s case in difficult circumstances whether the Court overtly concedes this or not i.e. your tenacity. Do not on any account time waste and always assist the Court be it Criminal or Family in your Advocacy. Leave the nit-picking points to one side and go to the heart of the matter without hesitation. Your main duty is to your client but you are also a minister to the Court of Justice whether the case be Family or Criminal. The two go hand in hand. You cannot win every case but never proceed into a case downcast and half-expecting to lose. As Churchill said: “Never give up”.

13. POSTSCRIPT on the second Commandment “Love your neighbour as yourself” and Adversarial Advocacy.

Truly this comes hard on the heels of the First Commandment “Love the Lord Thy God”. Yes you must obey both commandments in sincerity and the adversarial process achieves this result. You must know and understand your neighbour’s faults to properly “love him (or her)”. Without that insight you are nowhere near your neighbour. Then you must stand up to your fellow man/woman or you will apostasise and capitulate in your hypocrisy. This is where the legal adversarial process helps the accused and the victim to understand each other and resolve the stand-off. There is no hiding place in the adversarial Court room. At the end of the day the Crown seeks for the public benefit primarily to secure a conviction and the accused declares his case to clear his name. This is the Christian bedrock of Criminal Justice.

Ultimately after the Trial process the dust settles and the accused may be contrite. The whole metaphysical purpose of the criminal trial process is to induce sorrow in the accused before and after that Arraignment. Clearly if acquitted the Defendant rightfully walks free. With a Family Court the purpose is to bring about the best result for the child/children. The parent should accept the Court’s decision and work with Social Services if the child goes into care.

15. The personal position of R.M.Lamb (Advocate)

My career as an Advocate stretched from 1975 to 2013 thanks to the good humour of my colleagues and peers and the forbearance of the Judges I appeared before. No one should mistake the inner man for the public man yet the two are linked. I have analysed the “evidence” all my legal professional life and to an increasingly good effect for my clients. I have presented my case (on essays: political/modern history) more effectively even in these several essays since June 20th 2013 published on Kindle. I am no police officer – but now a mere essayist as I say. Clearly my Advocacy role in the Courts stopped at latest: 25.5.13. I have written some essays regarding my family since November 2012 until April 2013, (a few disclosed to my family and friends by me). Those essays were written in the spirit of conciliation which is the reverse of adversarial conflict. I cannot pretend to “my family” I am a “special prosecutor” – a totally preposterous idea. I am simply to them their own close neighbour! Richard Michael. Although bred in the practice of Advocacy, and having practised it all my working life, to my family I will always be their “friend” not an opponent across the Court Room floor. My family may come to me at any time and I will sincerely disclose what I have written about the Lamb family to them and explain it – in private and confidence – they have nothing to fear. There is all the difference in the world between a family such as mine living in peace on the one hand and the familial breakdown of my cases in the Law Courts (Family) on the other hand let alone in the adversarial Criminal process in England and Wales which I gave up in 1999. Yes, I cannot be “all over” my family members who would not desire that nor I. Such is the essence of tact and diplomacy. I will always treat them with due respect and affection above all nevertheless.