How Hard Should I Try When I Am Prosecuting?

17 Oct

It may boil down to this: defending requires a measure of invention, allows space for expression, and invites passion. Prosecuting requires a large measure of tight self-discipline so as to prevent any of those things entering into the Crown's exposition of its case. Prosecuting has its art, at least to the same extent as defending, but it is an art of precision, of paring away the extraneous so that the jury is left only with fact, not opinion, with what matters to understand what happened, rather than what might have motivated it. It is more Canaletto than, say, Van Gogh. For many of us, exerting that self-discipline is at least as strenuous an activity as giving vent to the expressive artistry of defending.

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How hard should I try when I am prosecuting?

Sounds like a pretty crazy question to be asking myself alone in the privacy of my consciousness, let alone rhetorically in a blog that someone might actually read. I should set out the parameters of the question: I am not entering the whole “Mummy lets you win, darling, but if you ever beat me, you will know it was for real” debate about parenting, or indeed helping the very junior members of the Bar find their feet in a contest. Nor is there any element of the ‘Christmas bail app’ quandary in my mind.

I saw today that someone with access to the CPSUK Twitter account has been trumpeting the rise in sentences for hate crimes as though this constituted a victory for the CPS. This started me thinking about the difference in approach I have experienced between prosecuting and defending.

The old-fashioned defence style of “no point so weak I won’t take it, no witness so obviously honest I won’t harangue them until they choke” has, in all likelihood, had its day. It still has its proponents, and in their mastery of the style, one can see clearly the vestiges of the impressive, terrifying beast that once they were, but nowadays it is a bit like watching Muhammed Ali box in his second return from retirement, and the spectator in both cases is left feeling unfulfilled and a little ashamed for having watched all the way through.

It is still widely accepted that, within bounds, it is fair play for the defence in cross examination to lay traps, to twist words, to explore possibilities and to challenge witnesses by making chronological leaps and factual bounds. Should the Crown’s advocate do the same thing, as sure as eggs are eggs that advocate will be forever marked as lacking judgement or being blinkered or too prosecution-minded. For what it is worth, I wholly support that condemnation, if not necessarily the length of time for which it will follow the hapless inquisitor around.

As a relatively junior barrister I spent a fair amount of time in a concentrated spell defending driving cases, usually in the Magistrates’ Court. I became adept at spotting and exploiting procedural errors by the investigators, litigators and prosecutors. After a time it became a little corrosive on the soul, but it was a wonderful training in how to use the fine detail of black-letter law and the authorities for support, and in leading initially hostile benches away from their desire to convict based upon the facts they had heard and towards an acquittal based upon the way those facts had been adduced. I must add that when I used the word “hostile” I mean active, often sneering antagonism to me as defence advocate, from the bench itself, from the Legal Advisor, and most usual of all, from the prosecutor.

I have prosecuted as many cases as I have defended, and whatever my ability to interpret my experiences, I am confident that this has given me sufficient raw material to be able to venture an opinion, which is this: whatever the strength of the views expressed to you by the investigators or litigators, as a prosecutor, it is never acceptable to cut so much as a single corner on purpose. It is equally unacceptable for a prosecutor to conduct a case as though the end justifies the means. It is nothing short of shameful for a prosecutor ever to deviate from a dispassionate and objective approach in any case.

[That is not to say that I claim perfection in that regard. I make as many mistakes as my mortal status implies, but they are just that: mistakes.]

It may boil down to this: defending requires a measure of invention, allows space for expression, and invites passion. Prosecuting requires a large measure of tight self-discipline so as to prevent any of those things entering into the Crown’s exposition of its case. Prosecuting has its art, at least to the same extent as defending, but it is an art of precision, of paring away the extraneous so that the jury is left only with fact, not opinion, with what matters to understand what happened, rather than what might have motivated it. It is more Canaletto than, say, Van Gogh. For many of us, exerting that self-discipline is at least as strenuous an activity as giving vent to the expressive artistry of defending.

It is vital that we continue to do so, because, however pompous the old saying that “the Crown wins no victories and suffers no defeats,” it neatly encapsulates the proper ethos for prosecutors. However noble the original reason for deviating from it, over time, the inevitable outcome is that the mind-set of the individual prosecutor, or the corporate approach of a whole institution, becomes skewed and the final result is always, always injustice. As all who prosecute are reminded, we are “small m ministers of justice,” and to do that is the opposite of our duty.

Edward Elton

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