Introduction

Advocacy is at the heart of the legal role. In its broadest sense, advocacy involves the presentation of another’s case or point of view. Lawyers are often regarded as advocates in this sense, in whatever task they perform.

The rules of advocacy tend to be pervasive across different types of tribunal. Adversarial criminal trial is arguably the model on which other kinds of advocacy are based. The need to protect the rights of criminal defendants demands rigorous testing of evidence. Lawyers enjoy some latitude in how they approach the task of questioning, particularly in the cross-examination of opposing witnesses. This has caused some controversy in relation to how vulnerable witnesses are treated in the courts. Increasingly, there are limitations on how advocates approach the task of testing oral evidence.

¹ B Hollander, The English Bar: The Tribute of an American Lawyer (London, Bowes, 1964).

² Arthur J S Hall & Co (a firm) v Simons, Barratt v Ansell and others (t/a Woolf Seddon (a firm), Harris r Schofield Roberts & Hill (a firm) and another [2000] 3 All ER 673, per Lord Steyn.

In all courts and tribunals the advocate’s power and control is offset by a duty to the court. This cuts across partisan obligations owed to clients. The duty to the court partly rests on the classical role of the judge as an umpire in a clash of cham­pions. Advocates expose flaws in evidence and present legal arguments. Unclear of the details of the case, and the advocate’s instructions, judicial intervention could be totally misconceived.³ The quid pro quo for this detached judicial role is that the advocate must not deceive the judge as to the true position in the case, so that a just conclusion can be reached.

II.