Abstract
Factors behind what George Keeton described in 1943 as a “silent revolution” in advocacy over the last 50 years included: changed standards of etiquette, professional rules and greater control exerted by judges; moderation in prosecutions; conversational and matter of fact style replacing histrionic presentation; concentration more on issues in cross-examination; greater appeal to jurors’ reason; decline in civil jury trials; widening jurisdiction of jury-less magistrates’ courts; and the impact on criminal advocacy of the civil courts where the leaders of the bar appeared more often and increasingly without juries. The influence of Patrick Hastings and Norman Birkett is discussed. Suspicion of rhetoric and, very importantly, better educated and informed jurors, appreciated earlier by Giffard, Holker and Clarke, were highly significant. The decline of court reporting in the newspapers, removing much of the gallery from the stage, may well also have contributed to the more subdued form of speech.
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Notes
- 1.
G. W. Keeton, Harris’s Hints on Advocacy, Stevens and Sons, 1943, page 10.
- 2.
Certainly by the latter part of the nineteenth century most judges exerted authority over advocates in court, something not all of them had been able to do sufficiently earlier. (See George King, Lawyers and Eloquence, In William Andrews ed., The Lawyer in History, Literature and Humour, William Andrews and Co, 1896, page 264.). Contributing to deference and courtesy shown to judges by barristers was greater respect for their intellectual and practical abilities as lawyers. Beginning in the 1860s both Conservative Lord Chancellors (Cairns) and Liberals (Hatherley and Selborne) sought to professionalise the judiciary and to make merit the consideration for appointment to the bench. (Robert Stevens, The English Judges, Hart Publishing, Oxford and New York, 2005, Chapter One) The movement towards meritocracy was to some extent impeded by Lord Halsbury (Hardinge Giffard) in the seventeen years he was Lord Chancellor between 1885 and 1905. His appointments were much criticised on the grounds “he appointed to the High Court, and to a lesser extent the county court , men of little or no legal learning whose previous career in public life had been largely in the service of the Conservative Party or else were relations of his own” (R. F. V. Heuston, The Lives of the Lord Chancellors 1885–1940, Oxford: Clarendon Press, 1987, page 36.). From Lord Haldane’s Chancellorship (1912–15) legal and professional qualifications firmly became the criteria, though at first the change was not extended to the most senior appointments. However, a little later, Lord Sankey, Lord Chancellor from 1929 to 1935, when resignations occurred, replaced five Law Lords who had political backgrounds by others whose reputations rested on their professionalism as lawyers. (J. A. G. Griffiths. The Politics of the Judiciary, Fifth Edition, 1997, Fontana Press, Page 16. Also see, Shimon Shetreet, Judges on Trial, 1976, North Holland Publishing Company, pp. 70–71.)
- 3.
Great shock was felt when two barristers fought in court in 1907. The incident is described by David Pannick, Advocates, Oxford, 1993, page 54.
- 4.
Allyson May, The Bar and the Old Bailey, 1750–1850, University of North Carolina Press, Chapel Hill and London, 2003, page 242.
- 5.
William Cornish, The Jury , Penguin Books, 1971 (revised edition) page 168. See also Leo Page First Steps in Advocacy, Faber and Faber, 1943, pp. 127–128: “Years ago the name ‘Old Bailey lawyer’ was a term of reproach. It indicated the man who was out to get a conviction even if it meant that he had to descend to any trick or unworthy expedient for the purpose……………. There has been a complete revulsion from those days when conviction was the object and the methods by which it was gained were immaterial”.
- 6.
Richard DuCann, The Art of the Advocate, Revised Edition, 1993, Penguin Books, page 115.
- 7.
See Travers Humphreys, who knew him well, Criminal Days, Hodder and Stoughton, 1946, page 81.
- 8.
Travers Humphreys, ibid, page 80.
- 9.
Harry Jackson was found guilty at the Old Bailey of a charge of burglary of a house and stealing billiard balls. He received seven years penal servitude. The implications of the new technique were quickly realized in prosecutions. The attitude of some judges to fingerprints was one of distrust, but the value of this evidence was placed beyond doubt when, in 1910, the Court of Criminal Appeal upheld a conviction based solely on fingerprint evidence (R v Castleton (1909) 3 Cr App R 74).
- 10.
Richard DuCann, The Art of the Advocate, Revised Edition, 1993, Penguin Books, page 72.
- 11.
Richard DuCann, The Art of the Advocate Revised Edition 1993, Penguin Books, pp. 126–128. For that part of Muir’s cross-examination of Dr. Crippen which concerned whether the human remains found in his house were those of Mrs. Crippen, a vital question for the jury, see E.W. Fordham, Notable Cross –Examinations, Constable, 1951, Chap. XI. The influence of Edward Muir endures. Over a hundred years later his cross-examination of Crippen is still held, by authors of text books on acquiring the skills of advocacy, to be a model of cross-examination techniques for both prosecution and defence. See, David Ross QC (Advocacy, Cambridge University Press, 2007, pp. 69–70.), who quotes passages from it and Robert McPeake (Advocacy Manual, Oxford University Press, 2009, pp. 179–188.), who reproduces a sizeable part. Richard Muir’s preparatory notes for his prosecution of Crippen, commended by David Ross as “an example to us all”, page 18, were found and published. They appear in Louis Blom-Cooper, The Law As Literature, The Bodley Head, London, 1961, pp. 14–33. Also see a commentary on them by Mr. Justice JH Phillips, Practical Advocacy, (1988) 62 Australian Law Journal 627–629.
- 12.
G.W. Keeton, Harris’s Hints on Advocacy, Stevens and Sons, 1943, page 10. Nearly three decades before, in 1915, in the Foreword to Illustrations In Advocacy by Richard Harris K. C, Fifth Edition, a book mainly for aspiring and newly qualified barristers, George Elliot, K.C. wrote: “It is said by many that eloquence is not now encouraged in the courts, that the artifices of advocacy are discouraged, that a plain brief statement of fact, as concise and succinct as the nature of the case will permit, is the style which best commends itself to the Bench, and the exigencies of time, whether in civil causes or in criminal trials, do not permit of those methods of advocacy which were so effective in days gone by”.
- 13.
July 1st, 1957, entitled “The Advocate”, published in Graya, No 46, pp. 89–96. Viscount Simon, in his forward to Leo Page’s First Steps in Advocacy, Faber and Faber, 1943, pp. 7–8, wrote: “A plain accurate statement arranged in the right order is worth tons of rhetoric . Juries , no less than magistrates and judges, want to do right; they are not impressed, any of them, by blather and pomposity, but are grateful for clear exposition”.
- 14.
Leo Page, First Steps in Advocacy, Faber and Faber, 1943, pp. 20–27, considered advocates would most likely achieve success by “simplicity, sincerity and moderation” in manner and matter and that persuasiveness would be much assisted by audibility, clear articulation, inflection to avoid monotony and for emphasis and absence of studied gesture (Chapter 5).
- 15.
On eschewing theatricality, Leo Page, First Steps in Advocacy, Faber and Faber, also published in 1943, page 24 wrote: “A law court is seldom a fit place for stage business. Incidentally, the highly dramatic manner is a treacherous tool in inexpert hands. A first-class tragedian moves us with horror and emotion , but a second – rate performer excites only our ridicule. So it is in court”.
- 16.
Sir Gervais Rentoul, The Art and Ethics of Advocacy, Haldane Memorial Lecture, 1943, page 9.
- 17.
Now contained in Bar Code of Conduct para 708(j) and Written Standards para 5.10(h). Also, concerning advocacy by solicitors see Law Society’s Code for Advocacy, Part VII para 7.1 (h).
- 18.
Now embodied in Bar Code of Conduct para 708(h) and Written Standards para 5.10. See also Law Society’s Code for Advocacy Part VII para 7.1 (e).
- 19.
Mechanical and General Inventions Co. and Lehwess v. Austin and the Austin Motor Co. [1935] A.C. 346.
- 20.
Mechanical and General Inventions Co. and Lehwess v. Austin and the Austin Motor Co. [1935] A.C. 359.
- 21.
Ibid, page 360.
- 22.
Duty and Art in Advocacy, a lecture delivered at Gray’s Inn in Hilary Term 1938, Graya NoXX, Easter, page 11. Largely reproduced in Sir Malcolm Hilberry, Duty and Art in Advocacy, Sweet and Maxwell, 1946. Concerning the use of controlled emotion, Leo Page, First Steps in Advocacy, Faber and Faber, 1943, pp. 128–129, wrote: “It is legitimate for defending counsel to use pathos in order to move a jury in the interests of his client. But it is not considered to be the duty of counsel for the prosecution to be vindictive or to attempt to excite the indignation of a jury against a defendant by rhetoric ”.
- 23.
As regularly observing the performance of distinguished barristers in court was described by Leo Page First Steps in Advocacy, Page 73.
- 24.
For a closely contemporary analysis of the Act’s provisions for civil jury trials see R. M. Jackson, Incidence of Jury Trial During the Past Century, Modern Law Review, Volume 1, No 2, Sept. 1937, pp. 141–142.
- 25.
Under the present law, Section 69 of the Supreme Court Act 1981, the right to jury trial is limited to only four specific areas: fraud, defamation, malicious prosecution and false imprisonment (Similar provisions are contained in the County Courts Act 1984.) Even in these matters, the right is not absolute and can be denied by a judge, under Section 69 (i) where the case involves any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.
- 26.
The temporary prohibition on civil jury service in the Second World War was a later blow from which civil juries never recovered. J. H. Baker, An Introduction to English Legal History, Butterworths, 2002, page 92.
- 27.
A. H. Manchester, A Modern Legal History of England and Wales 1750–1950, Butterworths, 1980, page, 95.
- 28.
For more on Rigby Swift see E. S. Fay, The Life of Mr. Justice Swift, Methuen, 1939.
- 29.
In similar vein, though from the perspective of the Bar, Sir Patrick Hastings wrote: “The judge has been at the game too long. His every instinct struggles against the possibility that he may be influenced against the true letter of the law by a speech however artistically or impressively it may be phrased. The decision is to be his and his alone; he knows the law, and he desires to know the facts; and after that he infinitely prefers to be left alone”. Patrick Hastings, Cases in Court, William Heinemann 1949, page 10. Lord Bingham, before his retirement as Senior Law Lord, in The Role of the Advocate in a Common Law System, The Inaugural Birkenhead Lecture Given in Gray’s Inn Hall in 2008 (seventy years after Mr. Justice Hilberry’s lecture on advocacy), Graya, No 122, Hilary 2009, pp. 17–24, said whilst “an advocate might reasonably hope to touch the heartstrings of the jury more readily than those of a judge….. even judges were not the unfeeling decision-making machines they might sometimes appear; they responded to considerations of justice and injustice, right and wrong, human frailty and human need; there was often treasure there, which understated eloquence could unlock”. When interviewed at the House of Lords on 23rd October, 2007, Lord Bingham said it would be wrong to think that judges in earlier times were never influenced by such considerations, carefully and subtly put by advocates.
- 30.
Sir Thomas Skyrme, The Changing Image of the Magistracy, Macmillan Press, London, 1979, page. 5. See, also, R. M. Jackson, Incidence of Jury Trial During the Past Century, Modern Law Review, Vol. 1, no 2, September, 1937, page 137.
- 31.
G.W. Keeton, Harris’s Hints on Advocacy, Stevens and Sons, London. 1943, page 11.
- 32.
Hastings’s biographer, H. Montgomery Hyde: Sir Patrick Hastings. His Life and Cases, Heinemann, 1960, stated that for many years he earned more than £40,000.
- 33.
N. Birkett, Six Great Advocates, Penguin, page 23.
- 34.
Birkett, ibid, pp. 23–24.
- 35.
Richard DuCann, The Art of the Advocate, Penguin, Revised Edition, 1993, pp. 84–85.
- 36.
Brian Gibbens QC, who, early in his career, watched Patrick Hastings in court, compared him with other advocates who perpetually turned to the jury when they were examining witnesses. He recounted that the intensity of Hastings’s gaze and manner towards hostile witnesses was devastating. Brian Gibbens, Elements of Modern Advocacy, New Law Cassettes, Butterworths, London, 1979.
- 37.
Norman Birkett, Address to the Holdsworth Club of the Faculty of Law, University of Birmingham, 7th May, 1954.
- 38.
Sir Patrick Hastings, Cases in Court, Pan Books, 1954, pp. 252–254.
- 39.
Unreported in the law reports, but see a verbatim account published by the Daily Express London, 1947.
- 40.
Richard DuCann, The Art of the Advocate, Revised Edition 1993, Penguin Books, 1993, page 21.
- 41.
Marshall Hall, from whose style and approach Hastings wished to distance himself, employed this weapon only very infrequently.
- 42.
At one point DuCann describes his style as brusque and tyrannical, The Art of the Advocate, Penguin, 1993, page 154.
- 43.
DuCann, ibid, pp. 116–117.
- 44.
For a verbatim account of the case see Laski v Newark Advertiser Ltd and Parlby. Published by the Daily Express, London, 1947.
- 45.
Richard DuCann, The Art of the Advocate, Penguin, 1993, pp. 116–117.
- 46.
P. Hastings, Cases in Court, William Heinemann London, 1949, page 252. An indication of Patrick Hastings’s attitude in court towards solicitors’ views on how cases should be run was given in an interview with Angela Delbourgo, a barrister and then a lecturer at the College of Law in London. She had known an elderly solicitor who, in his youth as an articled clerk, once accompanied Hastings in court and sat in front of him. The young man was told by Hastings he had one, and only one, function – to push a big pile of precariously balanced books onto the floor when given a dig in the shoulders, so as to make sure the judge was awake when he put his best point. Interview on 31st October, 2007.
- 47.
Sievier v. Wootton, 1913. 3 KB 499. See also H. Montgomery Hyde, 1960, Sir Patrick Hastings, his life and cases, London, Heinemann, pp. 76–77.
- 48.
The Art of the Advocate, Penguin, Revised Edition, 1993, page 128.
- 49.
Richard DuCann, The Art of the Advocate, Revised Edition, 1993, Penguin Books, London, page 201.
- 50.
DuCann, ibid, pp. 191–192.
- 51.
Richard DuCann, The Art of the Advocate, Revised Edition, 1993, Penguin Books, page 199.
- 52.
Cases in Court, London: Heinemann, pp. xi–xii.
- 53.
To support himself through his studies at the Middle Temple Hastings worked as a journalist specializing in theatre gossip and reviews and in 1925, whilst contemplating an alternative career as a playwright, wrote The River, which was produced in London that year.
- 54.
Whilst as KC, his income averaged £30,000 annually: H. Montgomery Hyde, Norman Birkett: The life of Lord Birkett of Ulverston, Hamish Hamilton, 1964.
- 55.
At Northampton Assizes commencing on the 21st November, 1931.
- 56.
Birkett’s destruction of the engineer’s credibility in R v Rouse (Unreported), by asking a very basic question an expert may not remember, became famous at the Bar and the technique subsequently emulated, with varying degrees of success, in cross-examining experts in numerous fields. Indeed it is still influential. Keith Evans, in his book, Advocacy in Court, Blackstone Press, 1995, which is widely read by bar students, and recommended reading at a number of colleges where the Bar Professional Training Course is taught, uses it as an example of how to challenge a witnesses’ expertise by making an in-depth study of just one tiny area on which to question at the beginning of cross-examination: “Nobody – perhaps not even the ultimate leader in the field – knows everything about his subject”, pp. 165–166.
- 57.
H. Montgomery Hyde, Norman Birket: The Life of Lord Birkett of Ulverston, London, Hamish Hamilton, 1964, page 221.
- 58.
Delivered on 7th May, 1954.
- 59.
Birkett excelled in the ability to obtain convincing evidence from witnesses by speaking to them plainly and in simple sentences. Edgar Lustgarten, Sir Norman Birkett, BBC Radio 4, broadcast in 1970.
- 60.
In an address, entitled Advocacy and Acting, to the Oxford University Law Society, delivered in 1966, Sir James Stirling, then a High Court Judge in the Probate, Divorce and Admiralty Division, saw changes in styles of advocacy paralleling styles of acting: in both spheres the grand manner and the purple patch becoming unfashionable at roughly the same time. However he does not develop his thesis further. Verdict, VOL. 2. NO. 1.1966. pp. 7–9.
- 61.
“Weeping Plays”, The Era, 8th April 1882, p 14. Quoted by Thomas Dixon, Weeping Britannia, Oxford University Press, 2015, p. 180.
- 62.
Please find at www.Historyadvocacy.wordpress.com.
- 63.
Quoted in The Times, London, July 29th, 1879.
- 64.
Thomas Dixon, Weeping Britannia, Oxford University Press, 2015, Chaps. 14–20.
- 65.
See Michael Hyndman, Schools and Schooling in England and Wales, a documentary history, Harper and Row, 1978, especially Chapter 10, with a chronology of principal educational reforms in the nineteenth and twentieth centuries.
- 66.
In assessing factors which led to a general improvement in educational standards in the nineteenth century, Professor Rosemary Ashton (University College London, Department of English Language and Literature, interviewed on 13th November, 2007) considered publication and wide circulation of pamphlets, magazines and books, with the purpose of educating persons of modest learning, was of significance. Such works were produced cheaply by commercial publishing houses, including John Murray, exploiting contemporary advances in printing technology and distribution. Informative and sometimes entertaining, works were also published by noncommercial organisations whose aim was to promote education amongst the masses. Prominent amongst these was the Society for the Diffusion of Useful Knowledge which operated during the first half of the century.
- 67.
Jonathan Rose, The Intellectual Life of the British Working Classes, Yale University Press, 2001, based upon the evidence of almost two thousand published and unpublished memoirs from nineteenth and twentieth century Britain, portrays a picture of a working class determined to achieve self-education by reading literature, including the Roman and Greek classics, going to concerts and the theatre – Shakespeare and other classical dramatists attracted enthusiastic and rowdy working class audiences, learning to play musical instruments, setting up mutual improvement societies and establishing the Workers Educational Association in 1903. In an interview, held at the Royal Society, London, on 2nd July, 2010, Professor Rose agreed with the thesis that jurors drawn from a more educated society than previously could reasonably be supposed to have expected more of an appeal to reason and to examine evidence more closely than before. He saw working class and lower middle class self-education contributing to this.
- 68.
Thomas Dixon, Weeping Britannia, Oxford University Press, 2015, pp. 204–206.
- 69.
On the Origin of Species by Means of Natural Selection (1859), The Descent of Man and Selection in relation to Sex (1871) and The Expressions of the Emotions in Man and Animals (1872) were read by a large section of the public. Many more people would have absorbed Darwin’s key ideas from reports in the press.
- 70.
See J. F. Von Arx, Progress and Pessimism: Religion, Politics and History in late 19th Century Britain. Harvard University Press, 1985.
- 71.
Touching on this subject, George Elliot K.C., in his Forward to Illustrations in Advocacy by Richard Harris K.C. Fifth Edition, 1915, a work intended mainly as a guide to effective court advocacy for newly qualified barristers, wrote: Further it may also be remembered that the development of education amongst all classes of the people has rendered juries much less susceptible to mere tricks of advocacy and less easily diverted from the real issues before them.
- 72.
See Andrew Watson, Changing Advocacy, Part Two, Justice of the Peace, Vol. 165, 13th October, 2001, page 808.
- 73.
Very much to the surprise of counsel for the co-defendants in the much publicised Mary – Ann Leneghan case, which took place in 2005 and involved the murder by a gang of a teenage girl and an attempt to kill her friend, Gilbert Gray QC used the words God never gave him a chance – won’t you? in his closing speech for a defendant. He was convicted. Interview with Anthony Arlidge QC, who represented another defendant, held on 30th October, 2007.
- 74.
Piepowder, J. Murray, 1911, page 176.
- 75.
Famous Advocates And Their Speeches, London, Sweet and Maxwell, London, Sweet and Maxwell, 1921, page 27. Thirty eight years before, certainly not followed then by all barristers in criminal trials, more a call for it to be so, Sir James Fitzjames Stephen, wrote of advocacy: “It is impossible to be eloquent in the sense of appealing to the feelings without more or less falsehood, and an unsuccessful attempt at passionate eloquence is of all things the most contemptible and ludicrous, besides being usually vulgar. The critical temper of the age has exercised an excellent influence on speaking in the courts. Most barristers are justly afraid of being laughed at and looking silly if they aim at eloquence , and generally avoid it by keeping quiet”. Sir James Fitzjames Stephen, A History of the Criminal Law of England, Macmillan and Co., London, 1883, page 454.
- 76.
In Limine, An Address on advocacy to the Christ Church, Oxford, Law Club, May 15th, 1952, Published by the Faculty of Law, University of Southampton.
- 77.
De Oratore (translated by E W Sutton and H Rockman, Loeb edition, 1942) 1.iii.12.page 11.
- 78.
J R Lewis, The Victorian Bar, Robert Hale, London, Chap. 1. A tradition of courting the press appears to have survived until the late twentieth century. A Court of Appeal judge, interviewed on 11th July, 2007 (Lord Justice Sedley), spoke of how some barristers, at least up until the end of the 1970s, would try to cultivate interest amongst journalists in their achievements by drinking and dining with them in public houses in Fleet Street, then the centre of the newspaper industry, or sending their clerks to do so.
- 79.
In the one man show he performed in the years before his death in 2009, John Mortimer would reminisce about how his father, Clifford Mortimer, a blind divorce barrister who freely quoted poetry in court, drawing on a vast store, would demand that his wife read out detailed news reports of current divorce trials when they were traveling together in crowded railway carriages, often to the embarrassment of other passengers.
- 80.
Daily Express, February 1st, 1935. Lloyd George headed the list closely followed by Winston Churchill and Lord Beaverbrook. The other popular favourites included Gracie Fields, Bernard Shaw, Franklin Roosevelt, Mussolini, Rudyard Kipling, Greta Garbo and the Aga Khan, with whom Birkett tied for the final place amongst the first twenty.
- 81.
P. Hastings, Cases in Court, Heinemann page 12.
- 82.
Six Great Advocates, Penguin, 1961, page 9.
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Watson, A. (2019). The Silent Revolution in Methods of Advocacy. In: Speaking in Court. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-10395-8_9
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