The Theatre of Forensic Enterprise

13 Dec

The Rt Hon Iain Duncan-Smith, Conservative MP and a former senior member of Government, has written a widely-shared polemical in the Daily Mail in which he decries the Miller "Brexit" appeal as those "ponderous proceedings" in the Supreme Court...

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The Rt Hon Iain Duncan-Smith, Conservative MP and a former senior member of Government, has written a widely-shared polemical in the Daily Mail in which he decries the Miller "Brexit" appeal as those "ponderous proceedings" in the Supreme Court.

Others have already answered his outpourings (the best example probably being The Secret Barrister on Twitter - how can anyone top "Litany of Stupid" as a summary of the article?) Leaving to one side how much attention anyone should pay to the deliberately ignorant statements of a man with a series of pronounced and yet undeclared agendas, it did start me thinking about advocacy as a form of 'reality drama'.

One of the most startling pronouncements in the article was that the Supreme Court proceedings had been "like watching paint dry." Implicit within this is the assertion that advocates have a duty to entertain. I have no idea where he might have picked up this bizarre notion. After all, one would not expect to hear a surgeon dismissed as having saved the patient’s life but the performance having been a little flat. Few indeed would wish the bus driver’s performance to be any more extrovert than it is.

Importantly, if we are all to avoid hypocrisy, we must turn to Westminster. I don’t remember IDS decrying any of the speeches made by his Parliamentary colleagues for the quality of the advocacy, and only the most loyal of Party devotees could describe 99% of the speeches made in the House of Commons as being of a standard which a middle-ranking 3rd six pupil would be content to call her own. The vast majority of Parliamentary speeches that have the capacity to entertain do so despite the delivery, rather than because of it. Certainly, I have dredged the internet without success in my brief quest to discover any Duncan-Smith oratory that has been the subject of objective praise.

Speaking as one who has, more than once, lingered on the colourful margins of what is acceptable, decorous courtroom advocacy, I am more aware than many of the dangers of entertaining at the expense of informing. It is not, and never should be, the primary focus of a competent forensic advocate to amuse. There are opportunities to be found in the course of a trial to combine being diverting with putting the message across, but the second of those aims is always vital, the first merely incidental.

For what it is worth, I found some of the advocacy in the Miller case spellbinding, but then, unlike some, I understood the complexity and difficulty of what I was watching. It can take an engineer to see the beauty in the layout of an internal combustion engine. My final thought on this subject is that Mr Duncan-Smith probably didn’t appreciate the sheer amount of intellectual effort and rigour that goes into making a complicated point succinctly and clearly, as those are rarely the aims of any politician when speaking in public.

To those traduced by Mr Duncan-Smith in his Daily Mail article for being dull, I would say that those of us who saw your submissions and understood them were, without exception, captivated.

Edward Elton

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