Advocacy-LLM Criminal Litigation - Essay Example

? Advocacy-LLM Criminal litigation a) What in your opinion are the most important qualities of the effective criminal advocates? Criminal Advocates and the Necessity for Accreditation Program in UK In UK, more than 3600 legal professional are enrolled with the Criminal Bar Association (CBA) who either directly employed or under self-employment. These criminal legal professionals help to defend and prosecute particularly in the most serious criminal cases. The legal practitioners in UK have to demonstrate high magnitude of commitment, professionalism and ethical norms since UK has earned high reputation for its criminal justice system on the international level. To guarantee the delivery of high quality of criminal justice in UK courts, criminal advocates have to demonstrate higher advocacy and great technical knowledge skill. The criminal advocates help to ensure that all citizens receive a fair trial in the adversarial legal system, which is the backbone of the nation’s criminal justice system1, It is widely accepted that a huge sum is being spent as criminal legal aid in UK, pubic expects an efficient and effective advocacy from criminal advocates and if any poor standards will definitely not only have an impact on the quality of criminal advocate profession but also on the overall legal profession in UK. The Law Society in UK affirmed its pledge to enhancing advocacy norms which it regarded as to be must for the efficient functioning of the criminal justice system in UK. In view of the same, the Law society strongly recommended to create a certification scheme for solicitor advocates with the main spotlight on enhancing the knowledge update and training available to solicitor advocates in UK. In Scotland, in 2010, the study undertaken by the Thomson Review of higher Rights of Audience suggested that for all Scottish pleaders, there should a re-certification program once in five years. On the lines of the same, the English Bar has acknowledged that under the Quality Assurance of Advocates Scheme which is to be introduced shortly, there should be a re-accreditation program once in five years, and it should also be introduced for criminal advocates in UK2. It is argued that recertification is needed to enhance the knowledge, training and etiquettes for a criminal advocate as for instance, there had been severe criticism in the Milly Dowler3 trail against the counsel in 2011 for the treatment received by the victim’s family when they were in the witness box, and it is an obvious signal that even in criminal cases, antagonist backing has its limits4. The most significant traits of a criminal advocate can be summarised as follows: He should have adequate knowledge and appropriate qualification in criminal law and criminal justice system. The criminal advocate should always work for to safeguard the rights and interest of his client and should have strong fervent for justice. While in court, he should be confident and bold and should have a strong presence and should be capable of intimidating the prosecution. He should be a great performer with emoting talents to attract the jury’s attention and be able to influence them of the defendants’ misery or innocence. He should have more confident and should have conducted many analogues’ litigations and should have good success rate. He should have adequate courage and more capable of facing the judge and cannot be either browbeaten or humiliated. He should have adequate knowledge of how the police functions and should be capable of detecting out facts and clues. He should have sound, deep knowledge in hidden components of law and during court hearing; he should be capable of spring surprises when never anticipated. With a client, a criminal advocate should always be fair in his professional dealings and also be honest and should brief his client the status of the case and what one can anticipate. He should be sociable in character so that he can have good relations with police, other advocates so that he can search for information from them to help his client5. The Demeanour and Morals of a Criminal Advocate All lawyers either civil or criminal are bound to the normative restrictions of their profession. Out of these restrictions that ban demeanour which is regarded unethical by society in normal parlance, like corruption, fraud and stealing. A criminal advocate should avoid conflicts of interest, antagonism against professional colleagues and illegitimate way of obtaining business. It is to be noticed that the advocate’s demeanour and moral will be influenced by the legal aid that the client is entitled to receive. DPP v Morgan6, was widely criticised due to the argument forwarded by the defendant advocate that defendant was under the impression that the victim was assenting so as to achieve an acquittal in a rape case which the House of Lords never negated in this verdict. The unethical demeanour of the criminal advocate in advancing the complainant’s sexual past was widely censured7. A Scottish study exposed that obvious ill-treatment of victims in rape cases by defence counsel by employing of evidence about the complainant’s earlier sexual track record and acquiescent demeanour on the side of judges and prosecution. A research study conducted by Sue Lees expose that women who were victims in rape cases, were methodically disgraced in UK courts particularly by defence criminal advocate. Experience in the relevant field of criminal law will always decide the success of the case handled by an advocate. For instance, in rape cases, there is low conviction rate and this is mainly due to handling of rape cases by inexperienced criminal advocates or by employing inappropriate tactics by defence advocates. It is argued that an inexperienced advocate is unfit to draw a conclusion from unwilling complaints in examination-in-chief stage. One of the reasons for engaging less-experienced advocates in rape cases is to minimise the cost of legal aid, and this has proved to be drastic as the conviction in rape cases had fallen drastically. According to Rock, the prescribed nature of defending in criminal cases is that both prosecution and defence advocates do not plan any new forensic tactics for each and every trial in UK, particularly in rape cases, and they foot on standard tales, stories in which they might in reality have no confidence by themselves8. Defense advocate in a rape case will always attempt to portray the victim as an imprudent young woman, who has only herself to censure for what occurred to her , who has either assented to ,’ tart ‘, and proponent of modern lifestyle - has raised series ethical issues in criminal advocacy . Majority of the defence advocate had no ethical dilemma in attempting to portray women as ‘sluts’ so that verdict will be given against the victim by the jurist or in producing a videotape of a black woman dancing at a party to appeal to racist stereotypes to the analogues’ impact. Under the rule of law, an accused has to be established guilty of the offense with that of he is complained of. An accused in criminal proceedings must be proved in precise in conformity with the rules of criminal procedures and evidence, to fall within the four borders of that criminal offense, and evidence must be beyond reasonable doubt. The Criminal bar code says that “a practicing advocate must support and safeguard without fear, and by all lawful and proper ways his gullible clients in best interest and in carrying out the same, he should avoid his own interest or to any outcome to himself or to any other individual.” However, there are restrictions to what is proper for an advocate to carry out in support of his client and the relevant Bar Code explains that a practicing advocate has a paramount obligation to make sure in the public interest that the efficient and proper administration of justice is accomplished. The above provision makes obvious that finally the defence advocate has an obligation to the court which surpasses his duty to his client. As per Lord Morris verdict in Rondel v Worsley9, each and every advocate is amicus curiae. According to Lord Pearce, an advocate should work hard for the interest of his client only as far as public concerns permits. An advocate is not required to argue the cases in the style the client wishes. Advocate must adhere to the instructions of the client about the reality and must discuss with him the case as he deems it proper and in the best interest of his client. In “Re G. Mayor Cooke10 case”, Lord Esher observed that an advocate is not required to disgrace himself so to win the case. According to Pannick, the advocate when counselling the client should bring out his frank outlook about all features of the relevant case covering both ethical and legal points. George Wright explains that an advocate’s quality can be deteriorating on the exploitation of trial witnesses on cross-examination. He cites that degrading and humiliating cross –examinations of the accused where the advocate is well aware that the impacts of that cross-examination are not likely to poignantly produce the exact resolution any particular subject in the case. He put forth that for moral grounds, there should be a change in the institutionally allowed demeanour of the advocate and that the advocates are accountable morally for involving in such an offensive demeanour. Blake and Ashworth are of the opinion that advocates should give more attention to the effect of their cross-examination on the accused since it can be extremely distressing11. b) How would you advise trial judges to evaluate these qualities in the advocates who appear before them? The central feature of the” Quality Assurance Scheme for Advocates “is to have judicial evaluation of advocacy at periodic intervals by a trial judge. According to Joint Advocacy Group, there should be an evaluation at four levels of experience of all advocates against a general set of norms and with reviews at periodic intervals. The members of the judiciary will assess the performance of those advocates who seeks accreditation to the top two higher stages. Bar Standards Board (BSB) recommends that advocates should be evaluated in real life-scenarios by judges instead of in role-play exercises. The quality assurance scheme for advocates should be advantageous to clients and deliverance of justice12. The Criminal Bar Code warrants that an advocate should not mislead or behave irresponsibly or frankly mislead the court. According to Pannick, an advocate should not collude with his client to mislead the court. Luban is of the view that an advocate should rebuff the employment of statements, which would highly mislead but may be literally true. In R v Ensor13, it was held by the Court of Appeals that unless there had been ‘deliberately ineffectual advocacy, it will not confront the choice of an advocate as to how to run the case. Sir Reginald Manningham Buller in his remark in a performance pointer about advocates commented that they reveal a responsible and a judicious method throughout their advocacy. Likewise, Sir Walter Monkon Buller in his remark in a performance pointer about advocates commented that they were able to preserve composure even under most hostile scenarios and work pressures. There is a strong belief that without active participation of advocates, criminal justice system in UK would fail. Hence, an important question arises whether the system of evaluation of the performance of an advocate in criminal cases by a trial judge could be contradictory to and probable to hamper the Quality Assurance Scheme is intended to accomplish? In the proposed scheme, there will be two tire evaluation of performance viz. judicial assessment The evaluation of criminal advocates by trial judges will facilitate to offer good services to the clients as it reposes the public interest as the principal notion of the scheme. As per BSB, the advocates should be graded into four levels with level 1 denotes the junior level whereas the level four denotes the most senior rank who could be associating in most intricate sexual offenses and homicide cases. According to the trial experience of the barristers and advocates, grading will be carried out. The above scheme will substitute and support an analogues’ scheme manoeuvred by the Crown Prosecution service. The evaluation of advocates will be entrusted with the judges who bank upon the good advocacy which makes the court to function well, and the judges will be requested to extend their support for the new scheme with the assessment of the calibre and performance of entire advocates and initiatives will be introduced to assist those who are not up to the mark of the judges to enhance their skills14. Under QASA, judges will have to assess the advocate arguing before them under 161 separate standards. However, Lord Justice Moses is of the view that criminal advocates were being depicted as ‘cavia cobaya’ for the rating scheme. He also cautioned that the criminal advocates’ new rating scheme in UK will boost more criminals to appeal against their sentence and will generate a generation of backslapping advocates fraught with to astound the judges at the cost of their client’s resources. He is of the view that the new rating system for criminal advocates should be discarded. Lord Justice Moses is of the view that those accused who had a desire to appeal against their conviction would grab upon the finding that their advocate had demanded for their functioning to be evaluated during their trial and will be attempting to employ the judge’s ratings as footing for further appeal. Mr. Mosses also insisted on that the Inns of Court to conduct training to enhance the skills of advocates and also for judges to testimony the advocate’s pitiable performance when they see it15. The trial judges should look into the following traits with the advocates who appear before them. For the prosecution side, it should make its best endeavour to establish its case beyond reasonable doubt whereas it is the duty of the defence advocate who will attempt to destabilise the prosecution’s argument and to establish a rational suspicion over prosecutions presentation of a case. The trial judge will evaluate a defence advocate, whether he engages himself to bar the prosecution for establishing the guilt and the manner in which he involves in establishing the innocence of the defendant. The trial judge will expect from the defence advocate whether they exhibit a fair play and protect the interests of their client. The trial judge will also look into the fact, whether the defence advocate has gone through the dossier completely and will have a gamut of knowledge on all the evidence in the possession of prosecution side16. A trial judge will expect from a criminal advocate while he making an opening statement, he must avoid to express his personal opinion or information pertaining truths in issue concerned. A criminal advocate should avoid making misstatements of a point of a law or a fact. A trial judge will expect from a criminal advocate to address his arguments to the court and not to the prosecution side. He should avoid making any derogatory comments to the prosecution side advocate. Further, a criminal advocate is expected to call an adult witness only by their surnames. He should not make any gesticulations of either disapproval or approval, particularly during testimony of a witness. A trial judge will expect from an advocate that he should not engage in articulating his personal opinion about the innocence of the defendant but should argue that because of the available evidence, the defendant can either be acquitted or found to be innocent. Further, an advocate should desist from making any flattery or other observations intended to obtain a favour from a juror. From the trial judge side, it goes without saying that he should maintain a status of decorum and neutrality during the entire course of the trial of a case. It is to be noted during a trial, emotion may run high, and it is the duty of the trial judge to remind about the decorum of the court to the advocates of the both sides. There may be an occasion where a court may restraint a high tempered advocate who refuses to follow by these rules. An aberrant advocate may be fined by a trial judge for contempt of court, and this will definitely may impact his grading. A trial judge may avoid reprimanding an advocate, especially the defence advocate, in the presence of a jury as it would result in adverse impact on a case. Where an advocate intentionally makes bogus statements ,wantonly betrays the court , or submits a fraudulent document or withholds vital information improperly that causes grave damages to the party or a poignant negative impact on legal proceedings , in such a scenario , he may be reprimanded publicly or even debarred or be suspended from the bar association17. c) How could non-legal professions contribute to improving the quality of advocacy for the stakeholders in the Criminal Justice System? Under English criminal justice system, there is a wide-spread use of non-lawyers in the system. For example, non-legal professionals are allowed to function as Magistrates (Justice of Peace) or as jurors or as members of the tribunal. In R v Abdroikof18, the significance of jury had been emphasised. In certain scenarios, there is a provision for non-jury trial in certain cases only under the Criminal Justice Act 2003. Under English criminal justice system, the presence of twelve ordinary lay citizens, who are at random brought into the trial procedure to be judges of the facts of the case, reinforces the authenticity of English legal system. Thus, the participation of non-legal persons into the English legal system by introduction of a democratic improving element into the abstract distant trial process has enriched the system thereby minimising the sole dominance of the legal professionals in the English legal system. As per EP Thompson, the English common law balances upon a bargain between the people and the law. A jury participates in judgment not only for the accused but also for the humanity and the justice. As per Penny Darbyshire19, the jury system has received the most appreciation and satisfies the bare minimum of the theoretical analysis of any part of the criminal justice system. Thus, jury equity is the process of legal system where the jury disregards the law in search for justice. However, it is to be remembered that jury system is not exempt from criticism. The critics are of the view since jurors are non –legal professionals; it is like a double –edged sword, which could at times may convict the innocents also. In Clive Ponting case, there had been allegation that there was chain of miscarriages of justice pertaining to suspected terrorists in which the role of juries was also condemned20. Immediately, after the briefing up by the judge, the jurors, who are ordinary people (non-legal), will assemble separately, and will discuss in detail about the case to find their decision, whether the defendant is guilty or not. In intricate cases, the process may involve more than a day. In the English trial system, the jury is regarded as “jewel in the crown”. “Trial by your peers” is the embodiment of the common law customs which is being followed from the middle ages in UK. A research carried out by Baldwin and McConville (1979, p.67) which studied about 370 jury trials in Birmingham Crown Court exposed that “trial by jury is the comparatively simple method of unearthing the truth.” In the majority of jury trials, evidence available in a case played a crucial role in delivering their verdict. The main consideration of jury trial is that it is an essential element of the adversarial system21. Even though the jury system in UK consists of non-legal professionals, there have been many rules and regulations as regard to concerning the disqualification and qualification of jurors; the privilege of the defence and the crown to confront the individual jurors , the procedure for their selection and appointment , the administration aspects of trial ; whether the juror is authorised to hear the evidence , the terms and conditions on which a judge should render his direction to the jury about the facts and law of a particular case; the safeguarding of the jury from the superfluous materials which might influence its verdict ; the demeanour of the jury both in the court and outside the court; the remission of a jury from the duty ; the envelopment of confidentiality over the juror’s discussions ; jurors’ decision is obligatory on other legal decision makers and the jurors’ decision is given immunity from all personal obligations due to their findings. A research study carried out by Zander et al exposed that the jury institution in UK had the support of the vast majority of the public. As per an opinion poll conducted in January 2002 by the Times Newspaper, about 84% of the public is supported the jury system. In 2002 survey, it was observed that there has been great support from the public for the jury system in UK as they felt that a verdict by a single judge or a judge aided by two magistrates may be biased, and they believed that jury of 12 citizens is likely to mirror their own personal but also the values and views of the society. About 85% of the interviewed opined that they trust that juries will always take right decisions , about 82% were of the opinion that they would likely receive a fairer trial from a jury than from a judge and 81% were of the opinion that the quality of justice system is enhanced when it includes jury trials. It is to be noted when there is a proposal to ditch the jury system on the footing of high costs involved by the UK government, the law society, the Criminal Bar Association and the Bar Council were joined together and raised their voices vociferously against the same. Due to severe criticism, the UK government later changed its plans to ditch the jury system in UK22. Thus, the jury system in UK that is prevalent from the middle ages is no doubt a team of non-legal professions, which contribute to improve the quality of advocacy for the stakeholders in the Criminal Justice System. Bibliography Bakshi, C, ‘Neuberger Endorsees Accreditation Scheme,’ Law Society Gazette, 10 November 2010. Baksi C, Judicial Evaluation Key to Quality Assurance, Law Society Gazette 2012, retrieved 23 March 2012, < http://www.lawgazette.co.uk/news/judicial-evaluation-key-quality-assurance-sra-says>. 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Scheb J M, Criminal Law and Procedure, Cengage learning, London, 2010, p.565. Selfe,D W & Burke, V, Perspectives on Sex, Crime and the Society, Routledge Taylor & Francis Group, London,2011,p.66. Slapper G & Kelly D, The English Legal System: 2009-2010, Taylor & Francis, London, 2009, p.285. Taylor, R , Rating Scheme for Advocates will be Misused by Criminal , Judge warns, The Guardian , 13 February 2012, retrieved 23 March 2012, < http://www.guardian.co.uk/law/2012/feb/13/advocates-ratings-scheme-appeal-convictions?INTCMP=ILCNETTXT3487>. Wright, R.G, ‘Cross –Examining Legal Ethics: The Roles of Intentions, Outcomes, and Character’, 83, 1994, Kentucky Law Journal, pp.802. Read More