Guest Post From Nigel Poole QC. Defence Counsel’s Duty Explained

FRIDAY, 15 FEBRUARY 2013

What Are Barristers For?

 

No system of justice worth its name – be it criminal or civil – should prevent the rigorous scrutiny of evidence. Barristers who are wholly independent of the state and of any vested interest are an essential part of the administration of justice. It would be harmful to justice if, for fear of public opprobrium, barristers drew back from asking difficult, embarrassing, even hurtful questions.  

It seems necessary to give that defence of my profession because a fellow barrister from Manchester has found herself at the centre of a storm of protest as a result of what the trial judge called a perfectly proper cross-examination of a witness at a criminal trial. Tragically the witness, Frances Andrade, committed suicide some days after giving evidence. She had alleged that as a teenager she had been raped and indecently assaulted by a teacher and his then wife. The defendants were acquitted of rape but found guilty of some of the charges of indecent assault.  Much public criticism and even personal abuse has been heaped on the barrister. It is no exaggeration to say that on Twitter the barrister seems to have received more adverse comment than the convicted defendants.

Every decent person will have huge sympathy for Mrs Andrade’s family and friends. The case also raises serious concerns about the support which vulnerable witnesses should be given. Nevertheless the nature and the extent of the criticism levelled at the barrister is a challenge to all barristers, even those of us who work in the less newsworthy world of clinical negligence and personal injury law. All of us, at times, will have had to put to a witness that they were not telling the truth. It would be harmful to the administration of justice if we were cowed into not doing so.

I know Kate Blackwell QC, the barrister concerned, though not well – we were appointed QCs at the same time in 2012. So this blog might be said to be partial. She does not need me to defend her, but I do want to defend the profession.

Barristers exist to represent clients – whether the client is the state, a company or an individual. They advise clients, usually at times of stress for them, and help them reach decisions about their cases. Barristers do have responsibilities to others as well but their core role is to act in the best interests of their clients. They must do so with integrity but fearlessly.

Parties to court proceedings are, usually, too personally involved, too stressed and ill-equipped effectively to represent themselves. Barristers do the speaking for them. We do not make up the evidence but we do test it. The questions we put are not indicative of our own, private beliefs. We cannot pick and choose whom we represent. We do not decide whether they are innocent, guilty, truthful or dishonest. We are not the judge or jury. We play a part as advocates in a highly developed and continually evolving system of justice.

If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be found a very just claim.

SAMUEL JOHNSON, Journal of a Tour of the Hebrides, Aug. 15, 1773

Judges are well aware of the need to protect vulnerable witnesses from oppressive cross-examination. The jury would hardly be impressed by bullying questioning. Barristers have a professional code of conduct with which they must comply. But within these proper restraints, they must act in their client’s best interests. It would be a poorer system of justice if they did not do so.

 

Everyone is one false allegation away from being at a jury’s mercy. Imagine you were accused of an offence from decades ago and that you believed your accuser was giving false evidence in court. It is their word against yours. What kind of justice would be served by your barrister refusing or failing to challenge that witness’s evidence in the most effective way she can?

By all means criticise the way the system deals with vulnerable witnesses (an issue which I know the judiciary takes very  seriously). By all means harangue those barristers who break the rules and those judges who allow questioning to go too far. I would not claim for a moment that all barristers are saints! But personal criticism of a barrister properly carrying out her role as an advocate is, I believe, wholly misplaced.