I have had on my mind recently the old-fashioned notion of Trial by Combat, where one could elect a champion to fight on your behalf, and if your champion won, then you would win your case. Trial by combat is no longer lawful in this country, despite the noble efforts of Mr Leon Humphreys, who sought to persuade Magistrates that rather than pay a £25 fine for a trivial motoring offence, he would instead do battle with a champion nominated by the DVLA.
But of course, our British legal system, given that it is adversarial, does have an element of trial by combat to it. Both sides select their champion (or advocate), they clash swords or rather words and at the end a victor is declared.
That raises a difficult philosophical issue about justice – when the Judge makes their decision are they setting aside the performance of the respective champions and just getting to the pure Truth of the case, or could the outcome stand or fall on the selection of the Champion? If one swapped over the briefs, might the outcome be different?
It seems that in a fair judicial system, it ought not to matter very much who speaks on your behalf – the Truth should out, and the Judge get to the bottom of what really happened. But very often in care proceedings we are trying to sum up years and years of the lives of several people and reduce them down to 350 pages, and then questions are asked about those pages over three or four days. There must inevitably be a degree to which the Judge is guided by what it is they are shown by the advocates – what is drawn out and brought to life, and those aspects that are not dwindle in significance. Of course, the Court is not a rubber stamp, and will have read into the case and picked up on details and issues that neither advocate touches on, which is why they are allowed to ask their own questions.
It is really difficult to tell how much of a judicial decision is that the Truth is there and is laid bare in a judgment (just as Pythagorus’ Theorum was true before he set it out and would remain true if he had never found it and someone else had), or whether the questions are more akin to those history essays that ask you to set out the causes of World War I and there’s a range of possible Truths, possible answers – some more vivid and likely than others. Is the Truth that we find in judgments a Universal Truth, or a particular version of the Truth?
I had the pleasure, when I was training, to see a lot of advocacy – this was in the times when lawyers used to ‘sit behind counsel’ and watch the whole final hearing and take a note – that exposed me to a huge range of advocacy, and I can tell you, when you see someone really shine at it, it is a thing of beauty. I have seen Silks get brain surgeons to eat out of the palms of their hand, seen confessions gently extracted from a witness who had no idea they were going anywhere near such a thing, heard questions asked that make everyone in the court room want to mouth, in the style of Dan Maskell, tennis commentator “Oh, I say”. I’ve also seen the flip side, when blind alleys were stumbled into, points not taken, the issues not grasped, witnesses pushing the advocate around.
It isn’t always even that there are good advocates and bad advocates (though there are such creatures) – sometimes it can be good days and bad days, sometimes even that Sir Ronald Rutt is a good match for a very forensic case with lots of fine detail and voluminous notes to pore over and draw the witness into, but not such a good match for a combative witness like Mr Albert Haddock.
Sometimes I have been on the wrong side of an opponent who really sang, and for whom the Court of Appeal’s delicious phrase “The purifying ordeal of cross-examination” was particularly apposite. It can be a bruising experience watching what appeared to be a good case on paper become merely confetti.
Those are some idle musings of mine, which serve chiefly as an excuse to crowbar in a photograph of the Red Viper of Dorne, who I think would have made rather a good barrister.
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