Concern abounds that freedom of speech is under attack. Increasingly prescriptive
legislation allows those unwilling to tolerate criticism to silence dissenters by making
allegations of crime. Far more people will be prosecuted for speech acts. Meanwhile the
Government seeks to restrict their right to a trial before twelve of their peers. Therefore,
the ancient and excellent principle that the innocence or guilt of a subject of England and
Wales should be decided by peers who are free from Government influence, will be
increasingly denied. There are howls of protest, but they will not help those who face
prosecution.
Instead, we must put our hopes in the reliability of our own precautions rather than in the
possibility of our opponents making a mistake. Too often defendants facing serious
charges approach their defence as an extension of their personal narrative. They want to
use a criminal trial to attract the oxygen of publicity to their cause. They want their legal
team to believe in them, share their views and feel the injustice of their position. This is
understandable but it will not help in court.
What defendants need, in fact, is an advocate who can see all angles and is willing to tell
them what they need to hear rather than what they want to hear. Before any utterance in
court, a successful advocate considers who this will land before the fact finder and how it
may be used by the other side. The question is not how thing would appear if the
defendant’s account were accepted at its highest but how might it look to a hostile
onlooker.
There is no point in monomaniacal thinking that would only succeed when talking to an
echo chamber. A more rounded thinker will consider how each piece of evidence might
appear or might be used by those who are not already convinced. They will assess the
risks as a dispassionate observer would. They will identify vulnerabilities in their case and
take steps to remedy or limit them before the opposition alight upon them.
The cab rank rule that governs the Bar of England and Wales demands that barristers
accept any brief for which they are available that is within their competence regardless of
their personal views. As a result, barristers act on both sides of the court room and
develop an instinct for identifying case weaknesses. Sometimes they exploit them,
sometimes they are exploited by them.
This duality of perspective is not about switches allegiances. Counsel’s allegiance is no
use to a prosecuted person. It is not the opinion of the advocate that matters, it is his
judgement. A prosecuted person is assisted by an advocate who can see and points out
the possibility pitfalls of his position so that he can make an informed decision rather than
one who agrees with him.
To fight the coming changes, defendants need representation that can envisage the way
the fact finder, the opposition and the defendant will interpret the evidence and act
accordingly. The hostile onlooker is always with us and we need to pre-empt his view and
act to reduce it.
Jo Morris is a criminal barrister at Drystone Chambers, practising in domestic, international, and
military law.
