Criminal barristers feel as if they are getting attacked from all fronts. There is the quality assurance scheme, fees are getting cut, and the work is reducing because solicitor advocates are taking it. Some barristers are leaving the bar to work for solicitors they take their advocacy rights with them.
Increasingly the CPS is using its own inhouse advocates. So there is less prosecution work, less defence work because of legal aid cuts, and what there is will be paid at lower rates. On top of this, the barristers are getting assessed to test whether they are any good. This combination of cuts in criminal legal aid spending together with the way in which English criminal procedure is being conducted, are driving the best young lawyers away from criminal work or deterring them from taking it on in the first place.
To say that the entire justice system is at risk is too dramatic, but there is little doubt that there is a downward spiral in standards.
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James Richardson QC practised in criminal law for 24 years from to He is the editor and founder of Criminal Law Week now a Thomson Reuters publication which is regularly cited in court at all levels and widely used by the profession. I believe James is correct in his assessment of the usefulness of an inquisitorial approach. Although aspects of criminal procedure are increasingly adopting an inquisitorial model, e.
Most are resolved by guilty pleas in any event. However, changes in the Criminal Procedure Act itself have given judges more direct control of proceedings through the case management system and the power to hear cases in the absence of the defendant.
Most practitioners and judges are committed to the idea that God is in the detail, i. Details in matters of liberty are fundamentally important. Unfortunately, there is a certain inevitability about that.
As competent criminal barristers abandon low-paying legal aid work to seek other more lucrative legal employment, other less competent or inexperienced counsel will simply take their places. There are many anecdotal accounts of this happening. This will have a two-fold spin-off. The legal profession will be brought into disrepute because of sub-standard defence work and criminal defendants will be deprived of competent legal representation in defending serious criminal charges.
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Of course, New Zealand has already had the debate as regards taking work from barristers in favour of solicitor advocates. In New Zealand the conflict has been between the independent criminal bar and the newly established Public Defence Service. As in England with solicitor advocates, the PDS seems destined to take. There are no assurances that this is where the colonisation of legal aid will stop. It is true to say that these changes have had a devastating effect on the criminal bar. The stress on private criminal barristers has been huge. Some have been forced to abandon criminal practice altogether.
jetshackfoodspea.tk Others have struggled to find alternative legal work to supplement their increasingly meager incomes. Some, sadly, have been hospitalized as the stress of these changes has impacted their mental health. As in England, morale at the criminal bar in New Zealand is at an all time low. While at the present time there are no proposals to introduce a quality assurance scheme, it seems most likely that that will also happen here.
The idea of judges actually judging the performance of lawyers appearing before them is odious and not consistent with any notion of fundamental justice. Yet such a proposal is likely to be seen as a natural accompaniment of the compulsory continuing legal education programme which is currently being rolled out. All these changes will add additional costs to the practice of law at a time when many criminal lawyers struggle to meet their overheads and maintain a modest standard of living. In a postmodern legal climate, characterized by incessant and chaotic legislative change, denigration of the role of experts, and a downgrading of the common narratives of idealism, morality and hope, the future for the role of private criminal lawyers looks bleak.
As in England there is evidence that some of the best lawyers are giving up criminal work. At the present time there are few incentives that would attract able younger lawyers to work in this troubled domain. He has been following the reforms in criminal procedure in England and Wales since they were first introduced. It was aimed at senior lawyers. We asked one of the judges, along with two participants to describe their experience of the workshop.
We also have the organisational viewpoint to follow! The Judge: Hon Justice Stevens, Court of Appeal The inaugural Appellate Advocacy Workshop saw 40 senior lawyers with at least 10 years post admission litigation experience hone their appellate advocacy skills during an intensive two day programme in Queenstown. Held following the World Bar Conference, the New Zealand Bar Association sponsored workshop was led by a world class international group of 10 judges and 20 coaches including leading New Zealand and international silks.
The participating Judges presented papers on the theory and practice of written and oral advocacy and then presided over morning and afternoon sessions in which participants presented oral arguments in either civil or criminal cases. Appellate advocacy focuses on both written and oral persuasion techniques, the skills needed being somewhat different from the lawyering skills needed at trial level.
On appeal, particularly in the High Court and Court of Appeal, the emphasis is on error correction, identifying where the trial court went wrong and persuading the appeal Court accordingly. All of the Higher Courts endorse the need for improved appellate advocacy. Participants were given the opportunity to prepare written submissions to be handed in and reviewed by the Judges. These became the foundation of the oral advocacy where the roles of senior and junior counsel provided the chance to put the theory and learning from the presentations into practice. Participants had minutes each to present orally followed by a short critique from the Judges.
Feedback on positive as well as any negative aspects of the oral presentation was provided. The oral advocacy was videotaped so that the participants were then given personal coaching and training and an opportunity to see themselves perform in the videotape.
The roles of senior and junior counsel were reversed in the afternoon sessions. A similar form of oral presentation and review by the coaches was followed. What was striking was the significant and in some cases remarkable improvements achieved by the participants between the morning and afternoon sessions.
Feedback from the participants and coaches was extremely positive. Several asked when the NZ Bar Association might hold another workshop.
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All involved are to be congratulated on putting together an excellent programme that attracted high quality participants. The hope is that the beneficiaries will be the clients in both civil and criminal litigation. Certainly, Judges at all levels of the judicial hierarchy will welcome the impetus given by this Workshop to improving written and oral advocacy skills.
The criminal stream attendee: April Kelland I was really pleased to be accepted onto the NZ Bar appellate training course which recently took place in Queenstown. It was an amazing opportunity not to be missed! I arrived at the Heritage Hotel on day one however, with a fair amount of trepidation - I had enough stress in my life - what on earth was I doing here!
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Before I could flee, a kind NZ Bar person had steered me through registration and the congregating legal literati and I was soon caught up in the atmosphere of meeting, chatting and keen expectation. The warm, relaxed welcome by directors Kate Davenport QC and Chris Gudsell QC then further assuaged my reservations and we were smartly into the first session of the programme. The short lectures on theory scattered throughout the programme were great. These sessions provided practical suggestions and observations on drafting the notice of appeal, submissions and on appeal strategy.
There were eight of us in the criminal stream; five from Crown Law, two Public Defenders and me, the sole representative from the independent bar. It was when we split up into groups of four to discuss case analysis and structuring of oral submissions that I realised that more preparation would definitely have been helpful. I had read through the NZ Bar material reasonably thoroughly but unlike some of my colleagues I had not pre-prepared draft submissions for handing up the next day.
The test case was one which had been before the Supreme Court last year on issues relating to sections 37, 89 and 94 of the Evidence Act I suppose I had hoped that the knowledge newly acquired at the workshop would provide the required spark to enable me quickly and effortlessly draft the submissions. The spark required was in fact the threat that I would be presenting my argument the following day.
I ordered. It was of little comfort to learn that some other colleagues had finished theirs much later in the early hours of the morning. I duly presented my pieces before Justice Moore the next morning and afternoon. His Honour asked some curly questions but in his review gave very constructive and helpful criticism. An added invaluable learning for me was observing the style, structure and presentation of my colleagues.
All too soon day two was over, the course ended and old and new friends farewelled. In retrospect, the workshop gifted me a huge amount of clear and constructive learning which I believe will provide the cornerstone for approaching future appeals with confidence.
Many thanks for this opportunity to NZ Bar.
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And to our lovely course directors, their incredible support team, and to colleagues and Judges thank you for your time, your wisdom and your support. April is a barrister from Christchurch and can be contacted at april. The civil stream attendee: Rowan Butler Like most litigation, the Appellate Advocacy Seminar in Queenstown was a heady mix of exhilaration and anxiety. The Seminar included coaching sessions; presentations from Appellate Judges assembled from all over the Common Law world ; and practical workshops spread across 2 days.
If I were to attempt to draw the strands together, then they might be summarised as follows:.
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Ideally, pause, reflect and answer the question before returning to your oral argument. This is by no means an exhaustive list as I am sure other participants will have taken away other important points.
Related The Legal Profession: Revised October 2014 (English Law Series.)
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