Nigella Lawson – court celebrations, media comment and the modern Bar

Nigella Lawson – court celebrations, media comment and the modern Bar

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Elisabetta and Francesca Grillo have been acquitted of defrauding Nigella Lawson and Charles Saatchi of over £600,000 in case you haven’t heard. It was the most sensational and high-profile trial of 2013 and the result is sure to be boon for the defence advocates involved; Anthony Metzer QC and Karina Arden. Well done to them both.

One of the things that caught my eye though was the comments attributed to Tony and Karina after the trial had concluded. According to reports, Karina Arden acting for Francesca Grillo, called out “C’e u Dio” (“there is a God”) upon the Not Guilty verdicts being read out, a phrase which was taken up by her client.

Tony Metzer was more restrained at the time but said afterwards “I’m just delighted and thrilled that what I believe the right verdict was returned by the jury”. It is not clear whether this was a comment to the press or made privately and passed on.

The reason I mention these comments is because they touch on a central element of the professional duties of a barrister and are related to the question that invariably confronts any criminal barrister on revealing their profession to a stranger: “How do you defend someone you believe to be guilty?”

We’ve all got stock answers to that one but one of the ways in which a barrister resolves such an ethical conflict is because whenever you are defending someone in court and making a speech on their behalf, you are making objective submissions as opposed to giving the jury your personal opinion. So, a defence barrister should make his speech in terms such as “You’ve heard the evidence but I suggest there are some key weaknesses in it…”, as opposed to “Members of the jury, you’ve got to believe me when I say I don’t for one moment believe that my client….”

This way of approaching the task of defending someone accused of a criminal offence is enshrined in the Bar’s Code of Conduct, paragraph 708 of which provides that “A barrister when conducting proceedings in Court….must not unless invited to do so by the Court…assert a personal opinion of the facts”.

To exclaim “there is a God” after hearing a Not Guilty verdict is to imply pretty strongly, I’d say, that in one’s opinion the verdict returned was the correct one. Karina’s reported exclamation came after the verdicts had been delivered so she cannot be accused of trying to influence the jury. No doubt she had built up a close relationship with her client during the long and gruelling case, and no doubt she was personally very happy to have secured a good result, but I’d suggest that while she was still in court she was still representing her profession and therefore with hindsight it would have been better had she remained calm and collected, at least until she got into the privacy of a conference room, because doing otherwise tended to chip away at the professional distance between a defence barrister and their client, which protects all defence advocates during their careers in which they will inevitably represent some pretty reprehensible individuals.

As I say, Tony Metzer reserved his comments until after the hearing had concluded and expressed his thoughts in more measured terms. The duties of barristers in relation to commenting to the press are in the process of changing. Up until recently there was a rule that a barrister should not express any opinions on the facts of a case in which they were instructed when speaking to the media. That would encompass expressions of opinion about the correctness or otherwise of a verdict. Again, that rule existed in order to maintain the professional distance between a barrister and his client and the independence and integrity of the barrister regardless of whom he was representing.

The prohibition on commenting to the media has occasionally been broken by barristers in high-profile cases unable to resist the lure of the TV crew microphone but even so, generally although we might read reports of the closing speeches of counsel in court, we did not see them answering questions on the steps of the courthouse afterwards.

Now the Bar Council has decided to relax this prohibition. It is understandable when everyone is under pressure to be more commercial and barristers are in direct competition with solicitor advocates who have a different code of practice.

However, I for one am sorry to see the old rigid rules passing away because they served an important purpose, to maintain the role of a defence advocate as an officer of the court, with a duty to serve the interests of justice as opposed to being an entirely partisan mouthpiece of their client. By preserving the difference, these rules helped all criminal advocates answer honestly and proudly that question: how do you defend someone you believe to be guilty?

By David Allan

Twitter: @DavidAllanLegal

Senior Advocate with the Crown Prosecution Service, his views expressed are his own.

27 COMMENTS

  1. I was also concerned to see the CPS commenting on what would be a suitable sentence for that revolting man who did unspeakable things to babies – not for them to comment on.

  2. I meant the chap on the steps of the court after the man pleaded and before he was sentenced. He should have kept his opinions to himself.

  3. Sorry, misunderstood your comment the first time, thanks for the clarification. I missed the case you’re referring to (sadly, your description fits more than one). All I would say is I wonder if the person doing the commenting after a case to was a CPS lawyer or senior manager as opposed to the actual advocate in the case. I don’t think I’ve ever seen the prosecution advocate themselves giving their views on their own case outside court. Under the new code of conduct for the Bar I don’t believe that would be absolutely prohibited but it certainly would be a departure. As to the rights and wrongs of the CPS commenting on sentences passed – that’s a whole other article!

  4. It was the chap from the boy-band, Watkins? I think that was his name. It was someone from CPS – not counsel. I don’t want to hear what either of them thinks the sentence should be in any other form than that of an A-G’s reference.

  5. Most of the press reports I have read indicate that Ms Arden made her comment (which is misspelt in David’s account – it should read “C’e un Dio!”) in the court lobby to her client, who replied the same thing. This makes sense – as the two defendants were in another room when the verdict was announced. This version, which seems very much more plausible, casts the comment in an entirely different light than that David seems to be seeking to portray it in.

    A private (albeit overheard or lip-read) comment,which may refer to previous conversations between the two) is a very different matter than a public pronouncement made in open court as suggested or implied by David (especially following such a questionably conducted prosecution).

    As ever, it’s very difficult to comment meaningfully if one wasn’t there oneself. But if indeed the comment were made privately by the advocate to her client outside the courtroom, I’d suggest that David owes Ms Arden a very public apology.

  6. Thanks for your comment polruan, re-reading the Guardian article you are correct – the report is that this was something Karina called out in the court corridor when with her client. I thought I had read a different report but since, as you say, the Grillo sisters were not in court at the time of the verdict being handed out you’re right – this version does make more sense and I agree: it puts Karina’s comment in a different context.
    However, I would still say it was an inadvisable statement in a public setting. If this had been a private comment picked up by a reporter I’d completely agree with you but that is not what happened according to the report. My article makes clear I am going on the press reports and not professing to have been present myself.

    I apologise to Karina for wrongly suggesting that this was something she said in court.

    I’d say my wider point about the importance of barristers maintaining a professional distance form their clients, and about the change in the guidelines on barristers commenting in the media stands. I hope this satisfies you?

    My Google account is playing up at present but rest assured this is me, David Allan

    • @David Allan Thank you for this very prompt correction.

      I should stress that I neither know nor have any connection with Ms Arden (nor her Chambers), and made my own observation in a purely personal capacity.

      For my own part, I had wondered in passing whether this comment might have been an allusion to the well-known Franco Califano song “Se E’ Vero Che C’E un Dio” (http://www.testimania.com/testi/testi_franco_califano_3923/testi_giovani_uomini_27392/testo_se_e_vero_che_c_e_un_dio_299612.html), especially given Ms Arden’s reported “penchant” for all things Italian (http://www.dailyrecord.co.uk/news/uk-world-news/two-former-pas-nigella-lawson-2946158). This is of course pure and totally unsubstantiated speculation!

      I do also find myself very largely in agreement with the main thrust of your argument.

      However, this is but part and parcel of a wider trend, and my own chief concerns relate perhaps rather less to the public perception of the individual relationship between advocates and their clients (important though that perception is – and one ignores such ‘details’ at one’s peril) and much more to the public’s perception of real judicial independence as a result of certain judges’ apparent inability to resist the “lure” you rightly refer to.

      I very much share (Sir) Nicolas Bratza’s “disappointment” at the manner in which a number of senior judicial figures have seen fit to comment recently publicly on highly topical judicial issues in ways that could well be seen by the woman or man on the Clapham omnibus as bringing into question their perceived independence (http://www.theguardian.com/commentisfree/2013/dec/10/human-rights-day-britain-european-convention).

      (A small footnote, I was also disappointed that Sir Nicolas’s own outstanding contribution to human rights and to the much-needed reform of the workings of the ECtHR should not have been properly recognised by his ‘conventional’ elevation to the Lords. That place missed out thereby from having in its midst one of the best informed and clearest minds on the subject at a time when such lucidity is in very short supply.)

    • David, I responded to and acknowledged your very prompt apology and correction yesterday shortly after you posted it, but my comment is unfortunately still awaiting moderation… I added, for the avoidance of doubt, that I neither know nor have ever had any dealings with either Ms Arden or anyone from her Chambers, and made my observations on a purely personal basis.

      I wouldn’t want you to think that your acknowledgement of the need for precision had passed unnoticed.

    • One of them is reported to have had a panic attack the night before, and they were both apparently (& very sensibly) allowed to sit in an anteroom with a video-link.

  7. A not guilty verdict does not mean there wasn’t guilt just that it was not proven and I realise the reverse also applies. What worries me is that this appears to be a moot point in most criminal cases c/f “can I get them off or not”. Where’s the morality?

    • Happy new year to you too. Correct about the football I avoid it at all costs. I like shopping during world cup matches because the roads are quiet. One year my water hose split during a crucial England match. The breakdown guy didn’t look awfully pleased when he rolled up at Waitrose the good thing was he was with me in no time.

  8. More to the point, sister, what’s your alternative? To have defence counsel take over the role of the jury or the magistrates and refuse to act if s/he thinks the client is guilty?

    • I don’t know of the alternative maybe be adversarial system isn’t the best however as I have no idea how the Napoleonic code works I’m not going to plump for that either. However the actual guilt or innocence of the accused appears to be an irrelevance surely that can’t be right.

  9. Sister: my remark about football was not a bow drawn at aventure – I saw you on the BBC site and I know the style!

    I share your opinion on the point which I extend to all organised professional sport. I like Radio 4 Extra because it has neither news not sport. Ever.

    The guilt or otherwise of the defendant is not an irrelevance – it’s just not for the advocate to judge it. Not under the Code Napoleon either.

  10. Memory does indeed serve. It was I who pointed out – correctly – that you could stay away from football if you chose.

    But I can see that having the Den for a near neighbour might be unattractive. I would ahve no difficulty in closing down clubs whose matches regularly led to serious disorder and crim outside the ground.

    • I know we’re slightly straying off topic here but seriously it’s not just the violence at football matches though that is bad enough, it’s the behaviour of groups of men, I’m going to be gender neutral, who think it’s funny to make up chants about people dying, crushed to death at a football game. What is wrong with the mentality of these people and the bad behaviour is seen on the pitch too. Why can’t they conduct themselves, fans and players, in a civilised manner. The violence is not isolated it’s prevalent witness the heavy policing.

  11. “I’m going to be gender neutral”

    Are you sure you didn’t omit a “not” there, sister?

    There is nothing – absolutely nothing – that some people will not think suitable for a sick joke – and I am using the gender-neutral word “people” deliberately. More men than women follow football, so more male than female will choose that as the subject for their sick joking.

    I only remember one case about a female football hooligan, although I am sure there are a few more. She was photographed as one of a gang of England fans who were exercising their own brand of diplomacy in some European capital (oh for a squad of European riot police exercising their own brand of crowd control, eh?) and the reason it made the press big-time and sticks in my memory is that she lost her job when she was recognised by her colleagues. She and they worked for the CPS!

  12. I did omit the word not in error, as you know, I rarely do gender neutral. However show me anywhere you see women behaving en masse the way men do at football matches. They don’t. So my eternally unanswered question is: what the eff is wrong with men.

    • I’m not disagreeing with you. It’s because she was so unusual (and amusing!) that our friend from the CPS sticks in the memory.

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