Hitting the wrong note

It is September, and a new academic year. Are we all chirpy and refreshed? Have we got shiny new pencil cases, sharp HB pencils and a bag of novelty rubbers shaped like hippos and penguins? New shoes, new notebooks, and, if we are lucky enough and grew more than expected, a school skirt to hitch up into a proper mini...

Wouldn't it be wonderful to feel that level of excitement about the new legal year? Not that behind bars was away for long; foolishly forgetting to remind the clerks that We Do Not Work in August we got loaded up with trials in misbegotten towns with the sort of judges who can't pull enough rank to get a decent holiday either.

If anything demonstrates that criminal law is the ill-favoured, bleak-faced poor relation of fancy-dancy civil litigation, then working through August is it. Juries are cross because they didn't have the wit to get out of the summons when all their friends are getting drunk around the barbie or sunning themselves at the seaside; judges are cross because they clearly got the short straw; ushers are cross because they get paid a measly £12,000 a year and usually are; the defence are cross because their clerks have taken monstrous advantage of their forgetfulness; and the prosecution are cross because the defence are '“ understandably '“ being quite vile to them.

And somewhere in the midst of all this is the hapless punter who has the naïve belief that he is going to get a fair trial. How fair is a trial when every person in it does not want to even be there? Apart from the defendant of course, who, in conformity with our shiny new criminal justice system, doesn't have much choice about anything.

Take note

It is impossible to be even faintly bright-eyed and bushy-tailed because things are '“ and forgive me for channelling Eeyore at his lugubrious worst '“ getting worser and worser. Take, for example, litigation support. There isn't any. There isn't any because solicitors are no longer paid to send people to court with counsel. The fee for that is buried somewhere in the litigation fee which they have already spent on luxuries like office lighting and headed notepaper. So no one gets sent. This does not merely mean that fancy-pants counsel has no one to carry his/her books or open doors, or supply the ritual flattery without which we shrivel and die '“ oddly enough, we cope with such privations. It means that there is no one to take a note. And then life becomes utterly nightmarish for the barrister and positively dangerous for the poor punter.

The days when barristers were too grand to note down evidence in chief are long gone, and quite right too, but would someone please tell me how the defence brief can record cross-examination when on their feet bleeding well doing it? The nature of that occupation does mean (but perhaps the accountants who make these appalling rules have no idea what it means, or, more cynically, perhaps they know full well and intend thereby to make cases as acquittal-proof as possible) that it is far from best practice to have long pauses while you write down the last answer given by the person you are cross-examining.

But, even if one decided that getting an accurate answer written down was worth losing every advantage of timing, pace, surprise and follow through, judges don't like it. When I tried doing it last there was a rustling of displeasure from on high, followed by an icy remark that while His Honour knew I was 'not attended' could I just get on with it? And if one 'gets on' with it, unless one has complete aural recall of hours of evidence then only the vaguest impression of the cross-examination survives.

Delicate detail

It is frequently said, and is now a tenet of how courts treat witnesses, that giving evidence is not a test of memory. A witness who cannot recall something is allowed, with barely a nod to the defence, to read original documents and refresh themselves with long draughts of their statement. But the lonely unattended brief has no such comfort '“ we must remember the subtleties and precision of a delicate cross-examination, frantically scribbling it down between one witness leaving and another entering the witness box. And the disadvantage to the defendant is obvious: how do you make a good enough speech on a vague recollection of the evidence?

The difference between conviction and acquittal can be a matter of attention. One phrase sometimes, one point, one discrepancy '“ those minor details can be the false note around which you can build a speech about dissonance, or a warped thread which when you tug at it unravels the whole. It is detail which wins cases '“ and it is detail which is lost when nothing is written down. I know some barristers who can '“ or say they can '“ jot down one word, and it triggers recollection of a whole afternoon of careful questions. For those without that Olympian skill, the situation is utterly hellish.

Lions and tigers

But are solicitors entirely innocent in this? I tip toe with trepidation into the lion's den when I ask if maybe some solicitors could afford someone at court? I don't ask for much '“ a sentient being who writes English will do just fine. Does all the money always go on preparation, with none left over for the actual trial? Because there are post box solicitors, and real ones. Real ones are god's gift: rare and precious beings, they fight like clever tigers, and work with you for the best result. Post box solicitors fax you half the documents, twice, with standard letters instructing you to do their job as well as yours. How many guesses do you need for which lot pro bonos up attendance for important court days? And a happy new term to you all...