David Wurtzel

Edited by Chris Miele
Merrell Publishers; Hardback (April 2010); £35
ISBN: 1858945070

This book is one of the best things to come out of the transformation of the Middlesex Guildhall from a Crown Court into the Supreme Court. Lavishly illustrated with superb photographs, plans and drawings, it is also a wonderful read. There are eight essays from, amongst others, Lady Hale, Lord Bingham, and top notch art and architectural historians. Together they explain the judicial functions of the House of Lords leading to the creation of the Supreme Court, the history of the building and its predecessors on this site, the architecture of the present Guildhall together with its glorious decorative arts and sculpture inside and out, and the iconography of supreme courts in the common law world which over the decades has moved from imperial grandeur to glass box transparency.

David Wurtzel finds that the records kept in the Bar Council library contain a real treasure trove of the Bar Council’s history.

Although the law is based on precedent, the least well known part of the Bar Council premises is its library, situated in the basement and presided over since 1994 by the librarian, the splendid Rosa Munoz. “I call myself the keeper of the memory of the Bar Council. The Bar Council is a series of committees where decisions are made,” she said before I began my trawl through some of the treasures which she has preserved, conserved and kept safe for the future—Bar Council minutes, committee papers, news, notices, Bar News, Counsel magazine, historic agreements, Royal Commission reports—in fact the whole written “memory” since the original “Bar Committee” was formed in 1883. From time to time I paused to continue my discussions with Rosa about the Spanish Civil War. Rosa was born in Spain during the Franco era (“our 40 years of shame”) and grew up in an atmosphere where history books were censored, families still stood divided, and opponents of the regime were hidden for decades in order to avoid arrest. She has lived in England since the 1960s, arguably more appreciative than the barristers she came to serve of what the rule of law really means.

A starry audience matched by an equally eminent cast, writes David Wurtzel.

On Sunday, 16 May the Great Hall of the Royal Courts of Justice was packed with people who normally appear there as counsel or sit there as judges. They had come for “The Dunsinane 2”, barrister-turned-writer Peter Moffat’s take on what a trial of Macbeth and Lady Macbeth would have looked like, had it happened in 2010.

David Wurtzel reports on the latest development in the quality assurance assessment process for the Bar.

This month the Joint Advocacy Group (“JAG”) is due to publish the results of its consultation on standards in advocacy. It will be closely followed by a consultation on the next stage, namely the methods of assessment. In February the Legal Services Commission (“LSC”) produced a Discussion Paper “Quality Assurance for Advocates” which confirms that they are passing the baton to the JAG along with advice, warnings and a complete report on their own experience in running a quality assurance assessment (“QAA”) pilot which was carried out by Cardiff Law School.

David Wurtzel believes the cast deftly balances the personal with the political and imitate without mimicking the historical figures.

“The promise” is the Balfour Declaration of November 1917 which said that the British Government “view with favour the establishment in Palestine of a national home for the Jewish people”. It lies at the heart of Ben Brown’s fine play, performed in the round at the Orange Tree. For much of the action, the floor is covered by a map of the Ottoman Empire. Not the least of the many historical ironies which run through the production is the sight of British ministers, sitting in London, carving up that Empire before the First World War has actually been won.

The decision in R v Barker on child witness evidence in criminal cases establishes that the competency test is the same for children and adults, write Professor Penny Cooper and David Wurtzel.

With the decision in R v Barker [2010] EWCA Crim 4 the matter of children giving evidence in criminal trials has, so to speak, come of age. On 1 May 2009 at The Old Bailey, Baby Peter’s step-father, Stephen Barker, was convicted of the anal rape of a girl, “X”, who was less than three years’ old at the time of the offence. She was four and a half years’ old when she gave evidence. X had been living with her mother Tracey Connelly, Stephen Barker and his brother. At the age of two years and ten months X was taken into care following the unnatural death of Baby Peter. X made disclosures to her foster carer of sexual abuse by Barker and subsequently to a child psychologist who was seeing her for the purposes of care proceedings. Six months after the first allegation she was interviewed on video under “Achieving Best Evidence in Criminal Proceeding” (“the ABE interview”). The trial for anal rape of a child under 13 was postponed until after the murder trial in the Baby Peter case. X watched her ABE interview a few days before the trial; it stood as her evidence-in-chief. She was cross-examined by leading counsel for her mother and for Barker.

Following the difficulties experienced by Cardiff Law School’s “Quality Assurance for Advocates” pilot programme what are the options available for future monitoring schemes, asks David Wurtzel.

One of the aspects of being self-employed is that there is no one to appraise or quality assure you. The prospect that this might change for the Bar arose three and a half years ago when Lord Carter recommended, “A proportionate system of quality monitoring based on the principles of peer review and a rounded appraisal and should be developed for all advocates working in the criminal, civil and family courts”—and in the first instance, for publicly funded criminal advocates. This was sometimes referred to as the “Carter trade-off”: practitioners would receive more money and in return would institute quality assurance (“QA”). The money was indeed forthcoming but QA was not. Ironically, just when the government is likely to renege on most of the rise in fees, criminal court advocates finally do face the development of a QA programme. The details are very far from decided.

How has the advocacy strategy deployed by the CPS been working in practice in the Crown Court? David Wurtzel investigates.

In 2004 the new Director of Public Prosecutions, Sir Ken MacDonald, launched an advocacy strategy vision in which the Crown Prosecution Service (“CPS”) was to become “an organisation that routinely conducts its own high quality advocacy in all courts, efficiently and eff ectively”. In that first year, Crown advocates conducted 7,433 sessions; in 2008−09 it was 56,519 sessions including 8,401 trials. The aim was to achieve 25 per cent of the cost of advocacy-in-house by 2011; it is now 21.3 per cent.

What happens when the judiciary in young democracies seeks to apply result-orientated judgments to the emotional evaluation of a particular case? South Africa’s Supreme Court of Appeal has had to deal with two such cases. David Wurtzel reports on Mr Justice Harms’ speech to CEBA.

When does judging become irrational? When it reaches a conclusion and then looks for the reasons to justify it. On 8 June Mr Justice Harms, the Deputy President of South Africa’s Supreme Court of Appeal (“SCA”), gave a speech to the Commonwealth in England Barristers’ Association (“CEBA”) on how creative judging or result-orientated judgments—ie reaching a conclusion and then looking for the reasons to justify it—has been used in an emerging democracy with reference to two specific cases before the SCA. The following is an extract from his speech.