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.

Tuesday, 23 April 2019

The M word

The M word.  Murder.  I remember that when I started my career as a barrister, murder was such a rarity that to be briefed in a murder case was something that caused a professional racing of the heart.  Just to read an indictment accusing a client of MURDER was a cause of professional excitement and anxiety in equal measure.  In those days murder cases had something of an etheral feeling to them...somehow not quite real.

That was 25 years ago.  Now things are different.  Utterly different and completely divorced from the unwritten code that regulated criminality a quarter century ago.  Those 'old school' gangland bosses I used to know so well are either dead or serving long sentences.  The new generation of serious organised crime members don't seem to have a code at all.  At least not one that I understand.

I have just finished a long case in Manchester involving an organised crime group called The A Team and the essence of the Prosecution case was that the attempted murders being tried were part of a series of tit for tat murders between rival gangs in Salford.  Having finished the case, I found myself reflecting on violent crime today and how it is so different from that which prevailed when I came to the Bar.  In those early days, even the most feared of criminals had a sense of the sancity of life and a reluctance to kill, certainly to kill indiscriminately.  The Krays (one of whom was defended by Sir Ivan Lawrence formerly of my chambers) traded on the fear of violence no doubt, but murder was a last resort.  I have defended more murders in the last three years than the Krays could possibly have committed.  Murders committed for the most trivial of motives - disrespect being foremost amongst them.  These days to say something derogatory about a man could have you shot or killed.  To 'diss' a rival is to invite a threat to your life.  Indeed, the Drill rap music banned by many websites lyrically details what murderous plans the 'dissed' has for the 'disser'.  Most of the defendants I have represented in gang related murders are in their early twenties or in their teens.  Lives more concerned with dying than living. I have no doubt that those young lives - whether I have seen them acquitted or convicted are damaged beyond the scars left by gunfire or knifings.  Those lives are already a parody of death in that the kill or be killed ethos of street crime today trumps death over life.  Indeed for many young men involved in organised crime life is considered no more than a stepping stone to death.

The prevalence of knife crime in our cities is something that even I have not become inured to despite my being exposed to it in the numerous cases I defend.  I still find it shocking that the smallest disagreement, the most inconsequential spat can result in the snuffing out of a life at the point of a blade.  So pointlessly.  Gun crime too is at unprecedented levels, with firearms seemingly available to any criminal determined to obtain them.  Although it is well documented that a single gun can, over its lifetime, be used to take life time and again, I have yet to be involved in an arms importation trial. Come to think of it, I don't even know a colleague who has been involved in such a trial himself.  Policing has completely failed in tackling the importation into this country of handguns, most of which originate from Eastern Europe, manufactured during civil conflicts within those countries.  The millions spent on investigating and prosecuting drug related crime no doubt has its policy merits, but the fight against drugs is a losing battle.  Worse, far worse is losing a life.  A battle we really cannot ever accept we are losing.

So what can be done about the senseless and almost casual way in which murder is committed in this new world gang culture?  It is axiomatic that there is no simple answer nor any single solution.  But any journey no matter how long starts with a single step.  And there are many steps we might consider taking.  Just as examples, it occurs to me that stop and search powers should be extended and utilised without fear of accusations of racial bias or any form of racial stereotyping.  Quite simply high risk neighbourhoods are high risk neighbourhoods regardless of ethnicity.  Is it now so totally politically incorrect even to consider the ethnicity of, for example, killers and the killed in London?  A newspaper recently published photographs of all those young men and women murdered over the last year.  If you care to look at that montage you may come to conclusions of your own about aspects of this huge problem.  And it is indeed huge.  Our Mayor of London and MP's from all parties have conceded that London and our major cities are akin to war zones.  Certainly my view of Manchester, having finished my last gang related trial there is that such a description is apposite.  This has been the tag line of many an article by the Manchester Evening News.

So intensified stop and search is a start.  Next I wonder whether broader bases upon which police can secure warrants to secure enter and search homes might be a step in the right direction?  I appreciate that there is a correlation between increased police powers and consequent loss of rights to privacy and related protections.  But those who are not involved in serious organised crime have nothing to fear from such institutional invasion of privacy, and surely there must come a time when as a community we agree that we have crossed the rubicon, or passed the event horizon where the individual's right to privacy is acceptably and justifiably ameliorated by the need to get a handle on a spiralling murder rate.  Another possible step would be more proactive investigation and action upon intelligence.  The police, with all their resources and with all the advances in telecommunication technology receive huge amounts of intelligence on a daily basis.  The analysis of this intelligence is a key component in the prevention of serious crime.  Such analysis however requires skilled and trained personnel.  Sadly, rather than investing in our investigatory bodies, we are cutting resources and recruitment at a shocking level.  If you pay peanuts, I am given to understand you get monkeys.  How many prosecutions are reported weekly in the news that have collapsed as a result of police failings - in disclosure, investigation, or as a result of lack of training?  For my part, I would guess that 70% of the cases I defend involve my cross examining as to police misconduct, police failings, or police incompetence.  I pursue such avenues relentlessly, as I am bound to as a defence barrister.  But I take no pride in my ability to do so.  Nor do I glory in the countless acquittals I have secured through an attack on the investigation.  It is simply a fact of life at the defence Bar today.  Cases are routinely lost that should not be lost.  Killers are routinely back on the street to do what they do - kill - when they should not be.  The criminal Bar has seen its fees slashed to such a shocking extent, that this is almost criminal in itself.  I am led to believe that morale in the Crown Prosecution Service is almost as low as it is currently amongst defence lawyers.  And so those who police, prosecute and defend crime should be paid at a level commensurate with the importance of the rule of law to our nation, to our citizens, to our victims and to those wrongly accused.  There is simply nothing more destructive to life and liberty than crime just as there is simply nothing more destructive to life and liberty of those wrongly accused of it.  These are inviolable truths.  Successive governments have recklessly and perniciously eroded our system of justice, once the envy of the world.  The slashing of investment in the police and remuneration to those working in the courts is, to my mind, at the very least correlated in some way - directly or indirectly - to the deaths on our hands as a community.  Ergo my next putative step - invest in our legal system because, without meaning to be cynical, you get what you pay for.  Having devoted a quarter of a century to my calling, I have never been more disillusioned with the state of the Bar nor more concerned for its future and the futures of those who desperately seek to rely on it - whether victims or accused.

I began this rambling missive with the M word.  Murder.  And will end it with the most ardent prayer that our system of law is not killed off with the same indifference those poor young victims we read of in our newspapers.  If the public only knew of the frightening abyss into which our criminal justice system is teetering and had a sense of the calamity that would bring about, both law and lives might be saved.  Sadly, Joe Public is ill informed and understandably disinclined to invest in crime.  Until he finds himself involved in it.  But my dear Joe at that stage your concern would be like closing a door after the horse has bolted.  I could write endlessly about the state of our criminal justice system but at the risk of boring even myself let alone those inclined to read this post I will leave it here.  My last words are the time it has taken me to write this post in all likelihood someone has been killed who might have lived.

Friday, 1 June 2018

Something sweet and innocent that always makes me feel the warmth of light banishing the darkness of some of my days......reminding me that there is always goodness in the world