Advocacy, past, present and future - constant values for a modern Bar
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Speech by Dominic Grieve QC MP at the World Bar conference
“It is fitting that the World Bar Conference should have as its theme this year - advocacy, past present and future - constant values for a modern Bar. I say that because although the members of the International Council of Advocates and Barristers cover a range of jurisdictions which place differing responsibilities on its lawyers, there is one thing that is common to all - the importance of advocacy skills.
“Advocacy, of course, is not simply the ability to stand up in front of a court and speak fluently. Nor is it confined to oral advocacy. A well-constructed written skeleton argument may win the case without an advocate having to open their mouth.
“Nor is advocacy restricted to criminal work - although the examples of great advocacy that are often quoted concentrate on that used to spare a defendant conviction or punishment.
“Having been asked to speak tonight I started to think about what advocacy is - what is this quality that defines the role of barrister advocate; what is it that a barrister is hired to do?
“In my view, at its most basic, the role of the advocate is to put the case of the claimant or respondent (or prosecutor or defendant as the case may be) as persuasively as it can be. Underpinning that is the ability to assess all the available evidence, understand the issues involved and to know and be able to apply the applicable law. Those are the skills necessary to prepare the foundations of good advocacy. But advocacy itself is the ability to persuade. To place the court in a position where it too understands the issues and is persuaded that the advocate’s propositions are correct.
“But you are all advocates and all understand the nuances of what advocacy entails so let me explore the Conference’s theme of advocacy as a constant value for a modern Bar. You will all, I am sure, know that the patron saint of lawyers is St Ivo. Ivo was a Breton born in 1252 who took holy orders and was eventually canonised in 1347. His first case in which he defended a poor widow brought him fame and thereafter he only represented the poor, widows and orphans. During his life he was known as Advocatus pauperum and after death it was said of him: Advocatus sed non latro, res Miranda populo - ‘a lawyer yet not a rascal, a thing that made the people wonder’.
“An honest lawyer? Over the years lawyers have not always received good press. With the exception of St Ivo, their reputation has not been for honesty or integrity. There is a much quoted line in Shakespeare’s Henry VI “The first thing we do, let’s kill all the lawyers” - a suggestion that through history others would support. Even honest lawyers are not always valued as they may bring with them expense and advice that is frequently unwelcome. As the government’s Chief Legal Adviser I can’t honestly say that all my ministerial colleagues always react enthusiastically to my advice.
“As lawyers we would say that honesty and integrity are the cornerstones of our profession and the very highest standards of both are expected of every advocate. But I did wonder whether some of the bad press we get is in fact down to the use of advocacy? Is advocacy always strictly honest? Of course one doesn’t lie and one doesn’t misrepresent. Both would very quickly result in disciplinary proceedings. But there are shades of grey where propriety is less clear
“The famous Roman philosopher and lawyer Cicero, once told someone he had successfully represented at trial:
Let me tell you it was I who produced the necessary darkness in court to prevent your guilt from being visible to everyone.
“Is this what the good advocate does and is this sort of conduct acceptable today? It is not necessarily incompatible with the honesty and integrity of the Bar. It may be wrong to deliberately seek to confuse a jury but is it wrong to try to make a jury think that the facts are less clear than the prosecution claim? Is it wrong to try to make a jury concentrate on parts of the case that the Crown do not consider of relevance or importance but which shown the defendant in a good light. I suppose in judging Cicero by today’s standards one would need to know what he did to create the “necessary darkness”.
“One of the most famous English advocates of the Victorian and Edwardian era, Sir Edward Marshall Hall KC, in 1894 defended the Austrian-born prostitute Marie Hermann, charged with the murder of a client. Marshall Hall persuaded the jury that it was a case of manslaughter. Although he made full use of his forensic skills, the case is best remembered for his emotional plea to the jury: ‘Look at her, gentlemen… God never gave her a chance - won’t you?’
“Clearly effective but was it relevant to the issue of guilt? Was it honest?
“If the facts are clearly laid out before the Tribunal, what is the point of advocacy if it is not to attempt to colour the Tribunal’s assessment of the evidence? In a civil case, following pleadings and skeleton arguments, there is perhaps less scope for oral advocacy and a tribunal consisting of a single judge is less susceptible.
“We have all, I suspect, in our time, been hurried along by a judge who has read the papers and is anxious to avoid flights of oratory. But in a criminal trial the opportunities are far greater. Take a plea in mitigation. The relevant facts, such as they are, will be laid before the court by the prosecution. The defence advocate may have additional material before the court but the art of advocacy is to persuade the court that even accepting the prosecution’s outline the client deserves leniency.
“One of my responsibilities as Attorney General is to consider referring unduly lenient sentences to the Court of Appeal for reconsideration. As part of that process, I often get to read the transcript of the plea in mitigation. Some are routine, many are good, and a few show advocacy skills of the very highest order. All have resulted in a sentence that at least someone has considered unduly lenient and drawn to my attention.
“In those cases has the sentencing judge been swayed by the advocacy of the defence counsel and, if so, has that advocacy served the interests of justice or the selfish interests of the defendant who has been given a sentence more lenient than he deserves? How have the rights of the victim been served by defence counsel’s advocacy?
“Is advocacy no more than an attempt to deceive - to persuade the tribunal to follow a course the facts themselves do not suggest - and the more powerful the advocacy the greater the likely deception?
“No, on reflection I think not. Saint Ivo, when approached by someone, who wanted his assistance, insisted that they first took an oath that their cause was in conscience a just one. Then Ivo would say: Pro Deo te adjuvabo - ‘for the sake of God I will help you’.
“Fortunately perhaps, we need no longer apply the same very high standard as St Ivo as if we did many would go unrepresented. But we still take on cases because we believe the cause to be a good one. Even the most evil in society need to have someone put their case to help ensure that they are punished for their actions rather than their reputation and treated fairly by the justice system. Advocacy is really all about ensuring fairness - ensuring that the person who comes to justice, whatever he has done, however unlikely his case, however distasteful his behaviour is treated fairly and receives justice.
“The poor widow assisted by St Ivo would not have received fair treatment without the Saint’s advocacy. Marie Hermann, represented by Marshall Hall, may not have received justice if the jury of middle-class men could not be made put aside Victorian prejudice and see beyond the fact that she was a prostitute.
“Advocacy is perhaps the best of the talents lawyers bring to the service of justice, as at its greatest it forces the listener to open their mind to new arguments, to abandon prejudices that may be held and reassess conclusions reached to hastily. Advocacy is the tool by which the law is leavened with equity. Its purpose is to persuade yes, but not to deceive. It is an attempt not to pull wool over the eyes but to open them. It is to persuade the court that the deeply unattractive hooligan awaiting sentence does have some mitigating quality, however deeply it is hidden. It is the advocacy of the prosecutor that can persuade a jury to see beyond the fame of a celebrity being tried for a serious offence and treat him as they would any other person. It is advocacy that persuaded the court that despite the fact that his client has a history of lying and deceit that on this occasion he is telling the truth.
“This is the invaluable and essential quality advocacy brings to the service of justice: it strives to bring fairness. And that is the fundamental aim of the justice system and of every advocate.
“So the conference theme - advocacy, past present and future - constant values for a modern Bar - is one both good and true. Advocacy is central to our role as it helps achieve justice and to strive for justice is the role and responsibility of the advocate as much now as it was in the time of St Ivo. As the years pass styles of advocacy have no doubt changed. As the years pass practice has also changed, we rely far more now, in the civil courts at least, on advocacy in the written form of pleadings and skeleton arguments. But the core principle of advocacy has never changed - to assist in getting to the truth by persuading a tribunal to assess the facts fairly, without fear or favour or prejudice. And that is more than a constant value for the Bar - it is its raison d’etre.