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