SJ Interview: Tom Cross

Tom Cross is a distinguished barrister at 11KBW, renowned for his expertise across seven key legal areas: Administrative & Public Law, Civil Liberties & Human Rights, Education, Professional Discipline, Local Government, Employment, and Data Protection. Lauded as "the best junior at the public law bar" by legal directories, Cross's accolades include UK Public Law Junior of the Year 2022 and Public Services and Charities Junior of the Year 2023. His notable cases span defending high-profile judicial reviews to advocating for human rights and employment law, positioning him as a highly sought-after counsel for a wide range of clients, including major corporations, individuals, and governments.

Has anything about the profession surprised you? Is a career as a barrister what you thought it would be?

It’s as much hard work as I thought it would be. But it’s not as “ivory tower.” Particularly in my areas of law, barristers today must be able to talk, in a human way, to their lay clients as well as to instructing solicitors. Barristers also need to understand the difference between being always approachable (an absolute rule) and being always available (an impossibility which will damage you if you attempt it literally). If you can manage your practice well, it’s one of the best jobs in the world.

What do you think it takes to be an effective barrister in your area of specialism?

Judgment. It’s no good having an analytically perfect ability to apply facts to law if that does not yield the result. Getting the best result in my areas means exercising a range of skills (including but not limited to court room skills) with a trained focus on the question: what will best achieve the client’s objective, and what is the most effective way to do that?

You have worked on some high-profile cases; can you tell us a bit about how you came to work on these cases and the challenges you faced?

I am lucky: I get asked to act for various different types of clients in cases having the potential for wide public impact. Earlier in my career, that developed by acting for the government or public bodies in cases like the Gina Miller litigation, the ‘Black Cab Rapist’ judicial review, or the Al-Hijrah case about sex segregation in schools. You get unparalleled insight into big policy cases that way. Now I’m as often challenging the government as defending it: taking on the NHS over its failure to prescribe medical cannabis in obviously deserving cases or challenging the rail regulator for trying to shut down the country’s biggest heritage rail company while at the same time declaring it safe. Having a background acting for different sides helps hugely: it’s a real advantage to understand in depth how the other side is likely to be thinking.

What challenges did you face in theLucy Letby v Lord Chancellorcase?

Letby brought a judicial review before her trial, wanting the State to fund a third legally-aided advocate. She had a Silk and a junior. The prosecution had a Silk and two juniors. The evidence in the trial ran to very many thousands of pages – more in line with what would be expected in a complex fraud. No one really disputed that it would be a good thing for her to have a further advocate. The problem was the legislation which, on its face, did not allow that. I acted for the Lord Chancellor. The challenge was to defend the restrictive rule in the legislation whilst not imperilling Letby’s fair trial. The client was a model of common sense. The judge agreed to adopt an interpretation of the legislation which achieved the client’s objectives, and which satisfied Letby. It caused so few ripples that the case went largely unreported. Sometimes you can have litigation which yields a good result all round. This was a case like that.

How can legal professionals remain neutral in the face of emotionally charged cases?

It’s not true that you mustn’t ever try to harness emotion. Controlled emotion can be powerful. It will communicate itself to a Court. The problem is when emotion becomes uncontrolled and gets in the way of the most effective presentation of the case. Sometimes, for that reason, acting for clients whose causes you do not agree with is easier. In all cases, the trick is to remember your function: you are not an advocate in the broadest sense but an advocate within the system. The system has a culture, and the judge is a human with a personality. Your job is to understand and then get the best you can out of that system and that judge, imperfect though each may sometimes be.

What in your opinion needs to change in regard to public law? Are any areas ripe for reform?

After roughly half a century since it began to mature in this country, public law itself is in good shape. Broadly, we have sound and fair principles applied by an able judiciary alive to the constitutional delicacies involved in certain cases. There is however a need to address the public’s misunderstanding of public law, sometimes generated by certain political rhetoric and media. The public needs better education about the value of having a system by which governmental decisions can be kept within lawful bounds by the courts, but are not taken by the courts - and about how that system works. The truth is that such a system serves the government, and therefore society, by promoting better quality decision-making. The public does recognise that value, I think: when I represented the government in the Gina Miller case, both ardent Remainers and committed Brexiteers told me that they were pleased to live in a country where a respected judiciary could examine the lawfulness of what was being proposed.

Is it necessary, and if so, how can the public be encouraged to engage with public law issues?

I haven’t found it difficult to encourage the public to engage with public law. It’s a bit like asking how you engage the public to engage in politics. The answer is: it will engage naturally, because it matters to their lives. That is in fact one of the things which distinguishes public law from other areas. We may not often be embroiled in an employment dispute or a divorce. But at almost every moment of our lives, it is likely that we are being affected by some policy or decision taken by government. There is no shortage of engaging subject-matter. My work has covered almost every conceivable field: from the environment to immigration to mental health. Most of it has involved decisions about what is in the best interests of our society as a whole. If you cannot be engaged in that, you are not engaging in society.

Why did you choose to launch the Cross Examination podcast?

Lawyers, on the whole, aren’t very good at explaining the law when we’re not being paid for it. I think we need to get better at that. And that’s all the more important for law which governs the big cultural, moral or ethical issues of the moment. Whether we like it or not, law of some sort or another provides parameters for how society arranges itself socially and economically. If we are going to debate societal changes – and we must – we need to understand how the law presently applies to the problem: be that in relation to the so-called culture wars, medical ethics, AI, school teaching, or anything else. The law may need changing, or it may not, but you can’t answer whether it does unless you understand what it is. In the podcast I try to explain it.

What makes your podcast unique?

Two things. First, it’s truly independent: it’s not associated with any organisation such as a Chambers or a firm. It is not, therefore, geared towards attracting or maintaining a particular clientele, and I have complete control over what I want to cover. Secondly, whilst the majority of each episode is a panel discussion with other legal experts (solicitors and barristers), every episode contains an interview with a non-lawyer who plays an important role, or has a story to tell, in relation to the topic. The panel will listen to the story of the non-lawyer and relate it to the legal discussion and debate - in much the same way as lawyers respond to the experiences of their clients. People tell me they like the format for its accessibility.

How do you choose what to cover in each episode?

Each episode relates to some contemporary cultural, moral, or ethical question in which the law plays an important part. There is something for everyone. Some topics could not be broader: few people will escape the impacts of AI, for instance, which I discuss in the pilot. Others are more niche: teaching about relationships and sex education in schools, for example, is likely to be of particular interest to parents whose children are of a certain age. I love that the podcast takes legal debate to new audiences with every episode. The most rewarding feedback so far has been from lay people who were recommended to listen to an episode of relevance to them, but who have told me they have gone on to listen to other episodes of no current relevance to them, simply out of interest or enjoyment.

Can you tell us a bit about the upcoming episode of Miscarriages of Justice on the Malkinson case?

Andy Malkinson’s case must be one of the most egregious failures of criminal justice in our country in the past decade. With guests including his Counsel, we use the dreadful example of his ordeal as a springboard to explore arguable flaws in the current system and what may need to change to minimise the risk that what happened to Andy does not happen again. We draw out specifically what went wrong prior to and during his trial, and how it came to be that, during the majority of the 17 years he remained behind bars, the State was in the possession of DNA evidence which could have exonerated him all along. My interviewee is the fearless investigator James Burley, from the charity Appeal, whose work led almost single-handedly to his acquittal. James’s view is that what went wrong in Andy’s case was not an aberration in a system otherwise working well: his argument, which we consider, it that it is illustrative of deep-seated flaws in the way in which we investigate and prosecute crime, and consider potential miscarriages.

Why is the Malkinson case important?

At the level of detail, it is important because it provides cause to consider, and probably review, numerous aspects of criminal law procedure, from disclosure obligations on the prosecution, to the approach of juries to (notoriously unreliable) identification evidence, to the role of the Criminal Cases Review Commission whose work it has given particular reason to scrutinise. At a more general level, it matters because it is a reminder that even in a legal system designed to deal with the more serious law-breaking of all - crime – mistakes can still be made. It is a salutary reminder to any misty-eyed defenders of British justice that even in a system as comparatively old as ours we can still get it badly wrong. We can’t rest on our laurels.

What projects or cases are you currently working on?

On my desk today I have a fairly typical range of cases. I’m acting for the Health Secretary in a case about whether persons can be sectioned under the Mental Health Act following a medical assessment done over remote technology, or whether (as I am arguing) there must be an in-person examination. I’m suing the Office for Rail and Road over its decision no longer to licence West Coast Railway Company, the country’s largest provider of heritage rail services including the Jacobite (the ‘Harry Potter’ train), Flying Scotsman, and the Northern Belle – allegedly on safety grounds. And I’m defending a well-known school, which I am unable to name because of a Court Order, over its policy of banning prayer rituals. It sometimes feels like there aren’t quite enough hours in the day.