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A view from the middle

by Ian Kelcey
Posted: 6 March 2013

I read with interest the article by His Honour Judge Jamie Tabor QC in the last edition of this newsletter. It has been my pleasure to know Judge Tabor for the past 20 years, having briefed him both as a junior and Queen’s counsel and, of course, appeared before him as a judge. I agree with much of what is said in the article; I share Judge Tabor’s concerns about the criminal bar withering on the vine, and agree that, if solicitors are to aspire to the role of advocate in more and more trials, we have to try to ensure that there are no diminutions in standards.

However, while I am very much in favour of solicitor advocates, I am also a great fan of the independent bar. In fact, one challenge for solicitor advocacy lies in finding a way to support our young advocates as well as the bar does its own. The master and pupil relationship and the collegiality of chambers must have been of immense help to young advocates as they cut their teeth in the Crown court.

Learning curve

We must ensure that, as a core of advocates, we maintain and aspire to the highest standards of professionalism, ethics, civility and legal skills. I consider myself fortunate that, when I was a young solicitor in criminal cases, one still went to the Crown court and sat behind counsel. I learnt an awful lot from that experience. I had the great joy of sitting behind some of the other fine advocates of our generation; advocates such as Gilbert Gray QC, Charles Barton QC, Richard Ferguson QC, Stephen Batten QC, James Chadwin QC, and David Poole QC (as he then was). We would go back to the office and talk about what we had seen. I like to think that I contributed in some small part to improving the client’s case and level of representation.

Many of these luminaries have now passed on, but the lessons I learnt from each one stood me in good stead in my advocacy exploits in both the magistrates court and the Crown court. I remember the late Gilbert Gray QC telling me that he had only ever once lost his temper in court and immediately regretted it. I have to say that, in the 25 years that I briefed him, I never once observed a loss of temper. Even with witnesses, he was always firm but fair, and I often observed a witness leaving court smiling at the realisation as they reached the door that they had just been filleted in the nicest possible way. I have always found as an advocate that I gain more in court through using charm than harm.

Nowadays, however, solicitors rarely accompany the advocate to court, and it seems to me that solicitors get little in the way of feedback. In my own firm, we have four higher court advocates, and I try to ensure that, when we have been in court during the day, we talk to each other at the end of it to share our experiences.

One way the profession could formalise this feedback is through effective mentoring. Mentors need not be in the same city as their mentees (in fact, there might be advantages if they weren’t); an open invitation to phone for support could well be enough.

I would also advise all young advocates to walk before they run. I recently finished a case as an advocate in a conspiracy trial in Bristol that lasted for six weeks. It was the longest trial that I had done, and I have no hesitation in saying that I learnt an awful lot through that process. While I had done trials before of shorter duration, in the longer trials, you really do have to ensure that you master your brief.

Taking action

For solicitor advocates to take on the longer, and therefore more demanding, cases will, I am sure, require a restructuring in many firms. We will have to see dedicated advocates relieved of the pressures of day-to-day file management, thus concentrating on the job in hand without other distractions.

Advocates, meanwhile, will have to ensure that we are properly prepared – not only for trials, but for sentencing as well. Sometimes preparing a good plea of mitigation can require almost as much work as conducting a short trial. If solicitor advocates are to move on and progress to doing the longer and more involved trials, they will have to remember that serious crime needs to be taken seriously.

I hope that we can accept this challenge, which has, in many respects, been forced upon us by the government’s desire to continually cut the cost of legal aid. I think that is immensely sad, because politicians are forgetting that you cannot put a price on a fair system of justice.

About the author - Ian Kelcey

Ian Kelcey is a solicitor advocate and senior partner at Kelcey & Hall Solicitors and Advocates, a Law Society Council member, and a member of the Criminal Law Committee.

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