AT FIRST INSTANCE

IF THE AIM of advocacy is ‘to seduce, to seize the mind for a predetermined end’,^[181] the legal representative and the decision­maker share a fundamental role as vicarious voices in the court­room - the advocate speaks on behalf of his client-litigant, the judge speaks on behalf of the citizenry interested in an efficient system of justice.

Birmingham Crown Court in 1972 was the scene of one of the ear­liest trials involving Irish terrorists, that subsequently disfigured the criminal justice scene for three decades.

The prosecution alleged a conspiracy by two men to effect the escape of IRA prisoners housed (or warehoused?) initially at Winson Green Prison, Birmingham’s local prison, which was typical of the penal institutions erected in the nineteenth century to meet the demands connected with the ending of transportation. One week­end, the prison service had got wind of suspicious activity sur­rounding the prison, so that the prisoners were instantly transferred to Bedford Prison, a smaller (Class B) institution famed, a decade earlier, for having imprisoned and executed James Hanratty for the A6 murder. When police officers raided my client’s house they uncovered an amateur drawing distinctly replicating the exte­rior of Bedford Prison. This piece of circumstantial evidence justifi­ably prompted a separate charge of a conspiracy to effect the release of the IRA prisoners from that penal establishment of historical fame.

The prosecution was led by Mr Harry Skinner QC (a delightful opponent, and later an outstanding judge who died much too early for the good of criminal justice) and his junior, Mr Igor Judge (later the formidable Lord Chief Justice).

At the conclusion of the day’s hearing, with the jury retired for the day, Harry Skinner rose and politely asked Mr Justice Kenneth Jones for guidance. The Crown, he said, was not prepared to yield to my request. The judge was anything but sympathetic to my pre­dicament of being in a position sensibly to cross-examine the prison officer without having a sight of the actual layout of the prison. Indeed the judge was near-apoplectic, as if he had been bitten by a nasty mosquito. How dare a responsible member of the English Bar, the judge expostulated, think it right to issue a subpoena, knowing full well that there was a complete bar to disclosure of such a sensi­tive public document! Without providing me with an opportunity to address the judge in court, the proceedings were adjourned to the judge’s private room to heap further judicial execration on defend­ing counsel. Even then my efforts to explain my position were brushed aside. The judge would simply require an explanation from me by the next morning, after which he would decide whether to report my conduct to the Bar Council (my professional association) with a view to disciplinary action.

What Mr Justice Kenneth Jones did not know was that at that time I was a member of the Home Secretary’s Advisory Council on the Penal System, and in that capacity I had regular contact with the senior civil servants at the Home Office and members of the Prison Service. My remedy was close at hand. Leaving the judge’s cham­bers, only mildly infuriated by the injudicious, not to say injudicial conduct of the judge, I immediately contacted someone in the works division of the prison service. There was no difficulty in persuading an official - indeed the willingness to help was entirely forthcom­ing - to come to Birmingham the next morning, along with the plan of Bedford Prison for me to have in front of me to cross-examine the prison officer. The official sat behind me, recovering the disputed document on completion of my forensic task.

The exquisite moment arrived when I rose to cross-examine the prison officer. It was immediately obvious that I was in no difficulty in conducting the questioning of the prison officer. The judge, not perceiving the foolishness of his exposed position, asked me in hos­tile fashion what it was I was reading from. I answered, defiantly I now assume: ‘My Lord, a plan of Bedford Prison.’ Judicial deflation was complete and composure distinctly ruffled. But the scene was climactic. Thereafter the exchanges between judge and defence counsel were polite, even decorous. The judge knew that I had scored a bull’s eye, although judicial pomposity denied me any apology. I relished the moment and did so thereafter whenever I retold the story. The case was made even more memorable, because my client’s appeal to the Court of Appeal (Criminal Division) against his conviction at Birmingham Crown Court was successful. Lord Widgery, the Lord Chief Justice, and his two judicial brethren said that Mr Justice Kenneth Jones had wrongly left to the jury the issue of conspiracy by my client with an unknown individual to effect the prisoners’ escape from Bedford Prison; the two defendants had been acquitted by the jury of attempting to ‘spring’ the prisoners from Winson Green Prison.

The second tale also demonstrates judicial hostility unbridled by a sense of fairness to a defendant. The culprit was Mr Justice Lawson, a lawyer of academic renown but lacking in a display of humanity. The case was complicated by the existence of conflicting expert evidence from two rival forensic pathologists on the time of death of a very young child who had been brought early one morn­ing by his mother, an intelligent Sierra Leonean, to a recently con­tracted carer, a West Indian woman living in Stockwell, South London with her own two young children. The child was delivered after breakfast time, wheeled into the carer’s flat, wearing a floppy headgear, in a carry-cot or ‘buggy’. The mother duly left for work, her child, apparently asleep, in a side room. There the child remained undisturbed until midday, when the carer went to see the child and discovered a moribund child with a head injury. The emergency services were called; the child was hospitalised and put on a life-support system where it was declared dead 72 hours later. The cause of death was a multiple fracture of the skull.

When was the fatal injury inflicted? If it was at any time after 8am, it had to be at the hands of my client. The Crown’s expert, the late Dr Keith Mant, insisted that the severe blow had occurred not more than four hours before the child reached hospital at midday. My expert, Mr Iain West, (now deceased, but famous for his opinion about the death of Robert Maxwell) disagreed.

Cross-examination took place after the jury had heard Dr Mant, but Iain West’s contrary opinion had not been heard. The forensic situation presented a challenge. The cross-examiner was bound to throw suspicion on the witness or her husband as the only other member of the deceased child’s household. A preliminary skirmish with the witness, questioning her without coming to the point of accusation, seemed the sensible course to adopt. It involved a series of meaningless questions about the movements of the child’s buggy on arrival at the carer’s premises, before the child was left in the side room. At this point the judge, no doubt frustrated at seemingly irrelevant questioning, intervened: ‘I suppose, Mr Blom-Cooper, you will soon be suggesting that the ceiling fell on to the child’s head and fractured his skull.’ Without a moment’s hesitation (it was a characteristic of mine that I often spoke before thinking) I answered the rhetorical question by saying ‘My Lord, that is the kind of flip­pant remark that ill-befits a High Court judge.’ The moment I uttered those words, I sensed that I had overstepped the mark of permissi­ble advocacy. But the die was cast. Thereafter the judge and I were at hammer and tongs; it lasted throughout the trial. So much so, that when it came to the judge’s summing-up, I urged him to tell the jury that it was either a verdict of guilty or an acquittal; the severity of the blow was such that it was not possible for the jury to bring in a modified verdict of manslaughter. I was very conscious that a jury, uncertain about which of the two experts to believe, might reach for the compromise - reject a verdict of murder, with its mandatory penalty of life imprisonment, and bring in a verdict of manslaugh­ter. Disregarding my plea, Mr Justice Lawson firmly told the jury that they could find the accused guilty of manslaughter. They did as bid. The judge gave my client six years’ imprisonment, a relatively light sentence for inflicting serious harm and killing the child in her trust. An appeal proved prospectively hopeful, on the basis that the judge had seriously underplayed Iain West’s evidence, to the point where he had misdirected the jury. And so it proved to be the case. In front of the Court of Appeal, my task was made easier by a robust approach by Lord Lane, Lord Chief Justice at the time. When I had concluded my submissions on the expert evidence, I was about to sit down, confident that the appeal was about to succeed. But Lord Lane immediately pointed out to me that my grounds of appeal had included a submission that the trial judge had exhibited such hos­tility towards me that it amounted to bias, and on that ground, the conviction should be set aside. Tactically, I decided that it would not help to further my submission on the judge’s behaviour, mainly because on reflection, and having read the exchange between the judge and myself on the transcript, I thought that I was at fault in my response: to which Lord Lane replied that he thought that the judge and I had traded remarks that the jury would have considered a fair battle of opposing attitudes. At that point, I responded that there was no such balanced judgment; in the eyes of the jury, there is no equality of arms as between judge and counsel. My point was immediately taken by the court. In his judgment allowing the appeal, Lord Lane found a misdirection by the judge on the expert evidence. He also heavily criticised the judge for his unseemly remarks during my cross-examination of the child’s mother. A fair trial includes fairness to the accused’s counsel as well as to the accused.

For the English lawyer, reared and nurtured in the adversarial mode of trial, advocacy is almost entirely an exercise in fact­finding. To the extent that there will be issues of law in applying the facts as found (or in interlocutory matters, where the facts are as pleaded) advocacy on legal issues is determined by established principles: a judge at trial is not expected to act creatively, his task being to find the law as it is. Creativity (if at all permissible) is for the appellate judge, although the development of public law since the mid-twentieth century, with its emphasis on written statements and largely without any cross-examination, does lend itself to law-making in the general sense. But apart from the process of judi­cial review of ministerial and administrative decisions, Justice Frankfurter’s injunction to the advocate ‘not to enlarge the intellec­tual horizon’ is entirely apt for the trial lawyer. To argue the client’s case successfully requires an unalloyed attention to the evidential material and the logical conclusions to be drawn from it. The advo­cate will always have to bear in mind the legal context into which he will steer the factual material. But to engage in urging law reform in the instant trial must be a rare adventure for the advocate. The creative advocate will have to reserve his or her leanings for law reform to the appellate stage.