Excellence in Advocacy at NLS

The roll- out of remote hearings was something that was initially leaped upon with enthusiasm by judges and advocates alike. I was always much more sceptical: I wrote an article about this for Counsel magazine in April 2020: https://www.counselmagazine.co.uk/articles/justice-by-av-lost-in-transmission- That was at the start of the pandemic, when courts were mainly shut, and there seemed little other alternative, if cases were to be argued, than allow something other than physical attendance at court. My Chambers, which has barristers practising in criminal defence, family, immigration, housing, Court of Protection and other specialist civil liberties areas (including Tribunals) responded to a consultation about the effectiveness and viability of such arrangements. Some were also in the cases concerning unsatisfactory and unfair decisions resulting from a desire to get the case heard rather than considering the fairness or unfairness of so doing: re B (Children)(Remote Hearing: Interim Care Order) [2020] EWCA Civ 584.

Several years on, there appears to be less judicial and administrative support for such hearings. Judges have recognised that remote hearings pose particular challenges beyond the problems that relatively elderly people tend to have in managing and using technology. Hearings often take longer, and the effects of eyestrain, being stuck behind a screen and so on have manifested themselves in a number of different ways. This was published earlier this year, written by an anonymous barrister author: https://www.counselmagazine.co.uk/articles/downsides-of-remote-hearings

So even from the purely selfish perspective of the legal professionals involved, there is much to be circumspect about before thinking that it is better to be slouching around at home rather than attending a court hearing. Even then, there are some hearings, e.g. in the Court of Appeal Criminal Division, where the expectation is that the barrister appearing remotely must nevertheless be robed: https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/Bar-Council_Guide-on-Court-Dress_July-2020-2.pdf

Most of my focus in my earlier article was on the impaired ability of the litigant to participate. Cases often concern the marginalised and ignored. Confining people to an invisible and inaudible name in the participants list, and whose ability to receive help and support from their representatives is also, in my view, significantly affected in a remote hearing. Similarly, the ability of lawyers other than the advocates to raise what may be important points with the advocate is significantly affected in a remote hearing. I propose to spend some time addressing some of the problems inherent  in this. Sometimes it will mean deciding at an early stage that a remote hearing is unsuitable, because those difficulties outweigh any benefits to the court. But for now, I am going to suggest some practical methods for managing remote hearings, including the taking of instructions and the ways most effectively to address the court and ensure the participation of those whose case this is.

It is vital that the advocate can take proper instructions and to interact with those who need to be involved, but that can cause challenges. In this day and age, almost everyone has a mobile phone, but not everyone has credit, or a workable high quality broadband connection sufficient to access the hearing or participate. Indeed, beyond the obvious spatial and technological management of the hearing, there will need to be some means of taking instructions. How can the client do that? Is the barrister prepared to share what will often be a personal mobile number with the lay client (necessary for texting, calling and WhatsApp)? How will emails during the hearing be appropriate? The danger of some detail not being communicated when the participants are not all in the same room is obvious. Of course, one simple potential solution is for your clients all to be in the same room, e.g. a room at the solicitors’ offices, or in your chambers. That brings with it its own challenges, and transfers the court’s responsibility to accommodate the parties onto the parties themselves. When parties are not together, considerable thought should be given as to how instruction- giving is managed, and the advocate must be prepared to ask for time from the court to check that there is nothing more to add. It is, at the very least, the equivalent to turning round to the solicitor to ask if there is anything else to add.

Other difficulties to be navigated include the ability to intervene in a hearing. In  a court- room, there may be occasions (one hopes, limited) where the advocate considers it necessary to object, or interject. That would normally be done by standing up and saying something. The ability to do that in a hearing where the advocates are remote from each other and from the judge is limited. This can mean that evidence is introduced, or submissions made, in circumstances where it might have been opposed. Probably, judges have little interest in addressing this, as it is in their interests for hearings to operate like that. But it is something that may mean that a tactic has to be finessed for being able to make interventions.

Also, what is obviously lost in an online hearing is the looking the judge or court in the eye. I addressed the metaphorical concerns around that in my Counsel article, but there are practical issues too. Where, for instance, a hearing is being conducted online, there will be various bundles of materials, and those will be being read on at least one screen. It obviously makes sense to have the judge and the hearing on another screen, and the instinct is to look at the screen, particularly the one with the hearing taking place.  However, looking at the judge on the screen means, ironically, NOT looking at the judge. In order to look at the judge, the advocate must look at the camera. It is almost impossible to reconfigure the camera’s location for each hearing, or type of hearing that one does. Different video platforms operate differently in where they place the participants, and that is before the court itself starts its own configuration. Accordingly, there is attention to be paid on how the normal rapport of eye contact is to be maintained through making submissions or asking questions of witnesses at a remote hearing.

There has not yet been sufficient research done on the extent to which this actually has a practical effect, as opposed to just being an advocate’s self- importance at thinking that the judge must engage with their every word. Which, of course, leads on to other, obvious points about management of technology, organisation of papers and organisation of submissions. That is in relation to printing/ division of submissions.

It may still be the case that the printing out of submissions onto separate pages, or at least, the division of submissions into separate components in a PDF that can be read from one of the screens is a crucial feature of this sort of advocacy. The court has even less ability to gauge what is going on when a barrister is lost in their submissions, or scrolling through screen after screen of material, than it would if the advocate was in court. So the core job of the advocate, being able to deliver submissions in an efficient, clear and fluent way still remains, and for many, having something on paper, printed or handwritten, with notes on may still be the most effective. But it is in this regard that the advocates of the future may be able to steal a march on those more experienced, since by training with technology from the beginning, they are likely to be more natural.

Stephen Simblet KC

Garden Court Chambers,
57-60 Lincoln's Inn Fields,
London.
WC2A 3LS

Third International Advocacy Conference

Centre for Advocacy, Nottingham Law School in conjunction with The Advocate's Gateway

Advocacy and Vulnerable Witnesses: 20 Years on from the Youth Justice and Criminal Evidence Act 1999

The Conference will be held on Friday 21 June 2019 at Nottingham Law School, Nottingham Trent University and aims to bring together all those with an interest in criminal procedure and evidence as well the teaching and development of advocacy skills. The Conference will provide opportunities for trial advocates, members of the judiciary, intermediaries, policy makers, health and social care professionals and academics from around the world to meet and share best practice.

We are delighted to welcome Sir Nicholas Green LJ, Chairman of the Law Commission and former Chairman of the Bar Council and Advocacy Training Council, as our Key Note Speaker.

Find out more and reserve your place

Call for papers

Proposals are hereby invited for papers and workshops which may include, but are not limited to:

1. restriction on the use of previous sexual history evidence, theory and practice
2. the effectiveness of special measures in achieving best evidence
3. the extent to which vulnerable witnesses (including defendants) can participate effectively in the trial
4. the fairness of the use of special measures to the parties
5. the operation of Ground Rules Hearings
6. international best practices for vulnerable witnesses
7. the use of technology to ensure effective participation and modernisation.

Guidance for submission

Advancing Advocacy: Challenges ahead in criminal evidence and procedure

The Centre hosted a one day conference on Friday 23 June for practitioners and academics with an interest in the collection, presentation and assessment of evidence within the Criminal Justice System. The event provided updates on the latest research being conducted across a number of disciplines including Law, Psychology and Linguistics. The conference aimed to help develop an understanding of concepts which will assist practitioners in presenting and challenging evidence in court.

Speakers’ Presentations:

• Dr Lucy Justice, School of Psychology, Nottingham Trent University: Beliefs about memory in the public, police and memory experts.
• Dr Heather Flowe, School of Sport, Exercise and Health Sciences, Loughborough University: Alcohol and memory for sexual assault.
• Professor Jonathan Doak, Nottingham Law School, Nottingham Trent University and Lauran Doak, Sheffield Hallam University: Non-verbal witnesses in the adversarial process.
• Dr Georgina Gous, School of Psychology, Nottingham Trent University: “That voice sounds familiar”: Errors in memory for disguised speech.
• Jeremy Robson, Nottingham Law School, Nottingham Trent University: A fair “hearing”: Voice identification, parades and PACE

International Advocacy Teaching Conference: The 21st Century Advocate

The Centre hosted the 2016 Advocacy Conference on Friday 24 - Saturday 25 June. Amongst those who attended the were HH Judge Jo Cooper, HH Judge Peter Rook QC,  Ian Morley QC, Kenneth Robinson QC, Derek Wood QC, HH Judge Michael Stokes QC and HH Judge Joanna Korner CMG QC.

Speakers' presentations:

• Alan Birbeck (LBSU Law School): Aspiring to inspire: student engagement and advocacy teaching
• Dr David Parratt (Crown Office Chambers): The training of instructors using recorded performances
• HH Judge Peter Rook QC (Central Criminal Court): Advocacy and the vulnerable
• Ian Morley QC (23 Essex Street): Teaching case concept
• Jane Jarman and Fiona Carter (Nottingham Law School): "Not only, but also": a CPD strategy for advocacy training in law firms.
• Lynda Gibbs (Inns of Court College of Advocacy): Advocacy and the vulnerable national training programme.
• Nicola Harris (Cardiff University Law School): Assessing advocacy: perspectives on live assessments.
• Adam Jackson, Emma Piasecki and Gemma Davies (Northumbria University Law School): The future of advocacy training in respect of expert evidence: no more 'laissez-faire'?

Structured Mayhem

Jeremy Robson’s comment pieces on the Criminal Justice Alliance review 'Structured Mayhem' was published in The Times and The Law Society Gazette.

Judicial appointment

Congratulations to Visiting Professor, Jo Cooper, on his appointment to the Circuit Bench. HHJ Cooper will sit in Cambridge, Peterborough and Huntingdon. He will continue to play an active part in the life of NLS.

File on Four

Jeremy Robson appeared on BBC Radio 4’s File on Four programme discussing advocacy standards in the CPS.

New Honorary Professor

We are delighted that Iain Morley QC has joined the external faculty as an Honorary Professor. Iain is an internationally respected advocate and advocacy teacher, and is author of the bestselling advocacy guide The Devil’s Advocate.

Lord Chancellor’s speech

Jeremy Robson was quoted in The Times and The Guardian following Michael Gove's first speech as Lord Chancellor. Read the article.

'Human Rights, Law and Religion: Perspectives on the Islamic Face Veil' Seminar

On 30 March 2015 the Centre for Conflict, Rights and Justice, in collaboration with the NLS Centre for Advocacy, hosted a seminar, Perspectives on the Islamic Face Veil, that explored some of the legal and human rights issues surrounding the Islamic face veil – the niqab and the burqa.

The seminar aimed to provide a forum for those with different views and perspectives to engage in the debate in a supportive and collaborative atmosphere. Eight speakers spoke from a range of perspectives over the course of three themed sessions. The day was a great success, demonstrating that even controversial issues can be debated fully and frankly but with respect for opposing views.

Presentations and Speakers

Slides from presentations can be found below:

• Felicity Gerry QC: 'Female Defendants... Perspectives on Open Justice'
• Jeremy Robson: 'The Veil and the Myth of Pinocchio's Nose'
• Professor Jill Marshall: 'Burqa bans and the control or empowerment of identities in European democracies'

Nottingham Law School hosts International Advocacy Teaching Conference

The Centre for Advocacy was launched at the International Advocacy Teaching Conference 2014, the first conference to bring together advocates, judges and legal educators from across the professions and from a number of jurisdictions to discuss and debate Advocating standards in advocacy.

Broadcaster and journalist Joshua Rozenberg was a guest speaker at the event. Read Joshua's column in the Law Society Gazette.

Presentations and speakers

Slides from presentations can be found below:

• Mr Justice Green – keynote address: Advocacy - In Peril?
• Lionel Blackman: Extending advocacy skills in the age of the "visual"
• Kenneth Campbell QC: Assessing Advocacy Skills
• Deveral Capps: Feedback to feed forward: Advocacy Training on vocational courses in England and Wales
• Kevin Crawley: An Interdisciplinary Approach to Advocacy Training
• Jeremy Robson: Criminal Advocacy Training after Jeffrey
• HHJ Rook QC: What judges will now expect from advocates in respect of vulnerable witnesses, and how this can be achieved
• Karen Squibb-Williams: One Bar, Many Careers: The A - Z of Advocacy
• Andrew Watson: Teaching Advocacy with History and in Context
• Martin McKay Smith: Preparing CPS Advocates for the Higher Courts
• Professor Robert Dingwall and Dr Sarah Seymour-Smith: Observation and Conversation Analysis

Helen Edwards and Jeremy Robson speak at International Applied Legal Storytelling Conference

Helen Edwards and Jeremy Robson delivered a presentation at the fourth International Legal Storytelling Conference entitled 'How to commit the perfect crime - Designing teaching materials which develop storytelling abilities in trainee advocates.' The presentation was well attended by academics, practitioners and judges from around the world, and provoked interesting discussions on the nature of advocacy training.

Advocacy Skills developed for Malaysian law officials

The first Masters devoted purely to advocacy skills outside of the USA has been developed by Nottingham Law School through a collaboration with the Attorney General’s Chambers of Malaysia (AGC).

On the request of the attorney general of Malaysia, the new LLM in Advocacy Skills has been designed and developed exclusively for officers of the AGC as part of their continuing legal education.

Five officers selected from the Deputy Public Prosecutors and Federal Counsel will be undertaking the one year course at Nottingham Law School, part of Nottingham Trent University, this year. A further 12 are already signed up for an autumn 2012 start.

The bespoke course will comprise a variety of practical experience, including role play and mock trials in Nottingham Law School’s own replica courtrooms – with former High Court Judge, Sir Christopher Pitchers, acting as judge in one of the trials.

The students will also take part in sessions with Nottingham Trent University’s psychology and forensic science departments to enhance their skills in cross-examining witnesses.

The Honourable Tan Sri Abdul Gani Patail, attorney general of Malaysia, said: “The principal reason Nottingham Trent University was chosen to conduct this programme is the excellent standing and expertise of its Nottingham Law School in the teaching of advocacy skills. Officers from the AGC that have had the privilege of attending other such courses organised by the university have benefitted greatly from the transfer of knowledge and skills.”

Dean of Nottingham Law School, Professor Andrea Nollent, said: “This is the first time a Masters qualification in advocacy has been offered outside America. We have an excellent existing relationship with Malaysia’s law professionals and it was a pleasure to develop this unique course to support them in enhancing their skills.”

Jeremy Robson, course leader, said: “Nottingham Law School has long been recognised as providing some of the highest quality advocacy training in the country and I am delighted that this has been recognised internationally. I am very keen that we explore the opportunity to open this course to others in due course, either in its entirety or using the material as the basis for short courses. There are various changes being made to how advocacy is conducted in court and I believe there will be greater demand for training from professions other than the Bar.”