Criminal Procedure: The Role of the Barrister

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    • 00:01

      [MUSIC PLAYING][Criminal Procedure-- The Role of the Barrister]Our case begins with a phone call from a solicitor.[Adam Payter-- Barrister, 6KBW] And then hopefully,some papers will arrive.[MUSIC PLAYING][Preparing a case]When I first get the papers, I like

    • 00:23

      to sit down, read them fully.That's ideally what you should do--read them, read them twice, make sure you understand the facts.That has to be the first stage.When you receive the papers in a criminal case,you should have a charge sheet or an indictment,which is the document which formally sets outwhat your client's being charged with.

    • 00:44

      And if you're prosecuting, that'ssomething that you would prepare.But in a case like this where I'm defending,I'd first look at that document to see exactly what itis that I have to face.With that, you should have some witness statements,the accounts of the witnesses thatapparently prove the charge that your client faces.So that's what I've got here.

    • 01:05

      That's from the prosecution.I should look at all of that.I should also have a schedule that sets outany material the prosecution have got that mighthelp me defend my client.So obviously, I'd look at that and seeif there was anything else that I wanted from the prosecution.Once I've done all that, I'd start to look at the documentsthat I want to prepare for the case.

    • 01:26

      The second stage is understandingthe legal framework.What are the key things that the other side need to proveor that we need to prove?So once you have that framework, then the factscan be applied to it.And hopefully, with a little bit of analysis,you can work out what the key issues are in the case.And once you've got those key issues,

    • 01:46

      then you can have a conference with your client.You can give them some advice.You can give your solicitor some advice on howbest to prepare the case.And then you can really get going.But at the first stage, you must understand the facts.And then you must understand whatyou're applying those facts to.There are lots of research tools available.You probably see behind me, there'squite a lot of legal books.Well, that's the first-- and perhaps slightly

    • 02:06

      old-fashioned-- way to go about legal research.These days, you have the internet.And there's lots of online databases-- some of whichare free-- that you can use to do researchon precedents and case law.[Hunt monitor case]This is a case about some hunt monitorswho attended a protest at the first fox hunt of the 2014-2015

    • 02:30

      season in Surrey.They went there with a view to monitoring the hunt,to ensure that it remained within the confinesof the Hunting Act-- ie, that it was a lawful hunt.They went there to gather evidenceof any unlawful activity.During the course of the hunt, the four clients

    • 02:51

      that I represent went onto private land.They trespassed.They were told by the police to leave that land.They didn't, and they were arrestedfor an offense of failure to comply with a police direction.It's related to the defense of aggravated trespassbecause the police officer thoughtthat they were about to commit-- or were committing--

    • 03:13

      aggravated trespass.They have some arguments to make.The main argument to make is that theydidn't have a reasonable opportunityto leave the land after the police told them to.The second argument they have to makeis that they had a reasoned excusefor failing to comply with a police direction, whichis that they wanted to help a deer on the land.

    • 03:34

      When I first look at the papers, I'mlooking to see, first of all, whatis the strength of the prosecution evidence.I'm defending.It's up to the prosecution to satisfy the courtso that it is sure that they've committed this offense.So I'm looking to see where is their key evidence that theysay satisfies the elements of the offense.And once I've found that-- or not found it,

    • 03:54

      hopefully-- then I can think about whatdo we need to undermine what the prosecution aretrying to prove.So in this particular case, this is a casethat involves footage taken by the police of the protesterstrespassing on the land.But my clients who, as I said, were there

    • 04:15

      to gather evidence of potentially unlawful huntinghad their own cameras, and the police seized those.And I understand there might be footage on those cameras whichwill assist us in demonstrating that they didn't have verymuch time to leave the land.And also it might have clips of their voicesas they're talking about this deerthat they think's been hurt, which will substantiate

    • 04:36

      their claim that what they were really tryingto do on that land was not interfere with a lawful huntbut help a deer that had been attacked.So in case like this, to generate a bit of sympathyfor our savaged deer, we've got some photographswhich should be very helpful.I've prepared-- partly for the court's benefit

    • 04:57

      but also to help me understand what'shappened-- prepared several maps and mapped out exactlywhere my clients are said to have moved in order that we canunderstand where they were relative to the hunt, wherethey were relative to the stricken deer.I've also prepared a note on the law

    • 05:18

      to assist the court with the applicable legal principlesin this case.And there's an opportunity in this documentto set up a framework in the mostfavorable light to my clients.That's not to say it's inaccurate,just to say that emphasis is being placed on thingsthat are helpful to my clients.So like what the meaning of the phrase "assumes practicable"

    • 05:40

      is, because that's how quickly they have to leave the land.So I've looked at various precedentson what the meaning of "assumes practicable" is.So those are the sorts of documentsthat we as the defense team have preparedto assist us to persuade the court that in fact our clientsaren't guilty.[The burden of proof]I think it's a common misconception

    • 06:01

      in the criminal justice system about whose job itis to prove what.If you're accused of a criminal offense,then the state is bringing that case,and it's the state's responsibilityto prove it against you.The starting point is everyone is innocent.How do the state prove that?Well, they have to satisfy the court so

    • 06:21

      that it is sure of your guilt. Notthat it thinks that you might be guiltyor that you're probably guilty but that you are guilty.So you as a defendant start off as an innocent person,and you don't have to prove anything.However, in the course of a trial,you might try and prove some thingsto ultimately undermine what the prosecution are

    • 06:43

      trying to prove.So your client might give evidence, for example.That evidence will hopefully underminewhat the prosecution is saying.[Client conference][KNOCKS ON DOOR]

    • 06:56

      PAULA: Hi.

    • 06:57

      ADAM PAYTER: Hi.

    • 06:57

      PAULA: Hello.

    • 06:58

      ADAM PAYTER: Adam Payter, nice to meet you.Come in.Have a seat for a while.

    • 07:00

      PAULA: Thank you.

    • 07:01

      ADAM PAYTER: So the purpose of todayis just for us to have a chat.Get to know each other a little bit, for meto just to explain my understanding of whatthe prosecution's case is.And for us to think about the argumentsthat we want to put forward at trial.And for me to give you a bit of advice about which argumentsare perhaps the best ones and also some advice about what

    • 07:23

      ADAM PAYTER [continued]: to expect in court.It's important to establish a good working relationshipwith your client.But the most important thing is that a client wantsclear, accurate legal advice.So first of all, the prosecution case in a nutshellis that you failed to follow the police officer's direction.And they've served us with some CCTV footage,

    • 07:44

      ADAM PAYTER [continued]: which I assume that you've had a chance to look at.

    • 07:46

      PAULA: Yes.

    • 07:47

      ADAM PAYTER: Which catches the tail end of that exchangewith the police officer.But I understand you might have some footage of your own.

    • 07:54

      PAULA: Yes.So I was filming from quite a way before the arrest.And obviously, I was hearing the distressed callsof my associate in the woods who was with the deer.So I was filming all of that, and thenrunning through the gateway and into the land wherewe were eventually arrested.But my camera was confiscated at arrest,

    • 08:18

      PAULA [continued]: and I haven't been able to ascertain where that is.

    • 08:21

      ADAM PAYTER: It's referenced in the documentswe've had from the prosecution.And we've asked for it in writing,but we haven't had it yet.And often in the magistrate's court,you don't get things until the very last minute.So we'll keep trying.But at the moment, we'll just haveto prepare on the basis of what we've got.It's important for me to be able to understandwhere everyone was in this fast-moving incident.

    • 08:42

      ADAM PAYTER [continued]: So I've been trying to work it out whereyou were, and I think I've worked outthat it's along this blue line.Is that right?

    • 08:49

      PAULA: Yes.I think that's the footpath coming down to Gold's Isle.And then we split--

    • 08:54

      ADAM PAYTER: A barrister can onlymake arguments if they're well-founded in fact, accordingto law.It's often said, oh, how do you represent guilty people?Well, go back to what I said earlier.Everyone's innocent to start with.But also barristers follow their instructions, whatthey're told by their clients.But they don;t do so blindly.They're not simply a mouthpiece for their client.They have to give them realistic advice about what's

    • 09:16

      ADAM PAYTER [continued]: likely to happen, what's likely to be accepted by the court.Obviously, you come off the path at some point,and that's the point that you startto become a trespasser, which is the first thingthe prosecution need to prove.I think we accept that we were on private lands.

    • 09:29

      PAULA: Yes.

    • 09:30

      ADAM PAYTER: But what I need to understandis why you went onto private land.Can you explain that to me?

    • 09:36

      PAULA: We were trying to get to the deer.

    • 09:38

      ADAM PAYTER: One of the important featuresof the case it seems to me is-- I haven't readyour proof of evidence, which is a writtendocument with your instructions--is that once the police officer gave you the instructionto leave the land, they didn't give you very long to do that.

    • 09:52

      PAULA: No.

    • 09:53

      ADAM PAYTER: How long do you think it was that he gave you?

    • 09:55

      PAULA: It's really hard to tell at this stage and nothaving seen my footage.But I remember--

    • 10:04

      ADAM PAYTER: Did your footage have that?Do you think?

    • 10:06

      PAULA: Yes.I filmed everything-- everything until he took my camera off meafterwards.My intention was fully to leave.I just didn't understand his instructionof why I should leave or what I was doing.In the process of me trying to ascertain clearlywhy I was being arrested, it just-- then it happened,and then I was arrested.And then I looked 'round, and everybody was being arrested.

    • 10:26

      ADAM PAYTER: Well that's very helpful in termsof understanding your instructions.In terms of my advice to you about our best argumentsat trial, you know that there's a statue of defenseof reasonable excuse.And I think that we can argue that itwas reasonable to disobey the officer because youwanted to help the deer.

    • 10:46

      ADAM PAYTER [continued]: And equally, I think it's arguable--based on what you've said-- that the officer didn't give youa reasonable period to get off the land.And therefore, you haven't failedto get off as soon as practicable, which is whatthe wording of the statute is.I think those are probably our best two arguments there.

    • 11:05

      PAULA: What's the likelihood of being found guiltyin this case?

    • 11:08

      ADAM PAYTER: I don't want to give you a politician's answer,but it's very difficult to say.The prosecution have clearly provedthat you were trespassing on basically officer's statementthat you didn't leave as soon as you should have done.Having said that, on what you tell meabout what our footage is going to show,then we've got a good case to say that he didn't give you

    • 11:30

      ADAM PAYTER [continued]: enough time.I think this is the sort of case whereyou generate quite a bit of sympathy with the court anyway.Because you're otherwise law-abiding citizens just doingsomething worthy.So depending on the tribunal we getand how sympathetic they are to your general cause,that might make a difference.

    • 11:50

      ADAM PAYTER [continued]: But at the moment I'd say it was 50-50.So unless you've got any further questions,I think we're ready to go.

    • 11:57

      PAULA: Yeah.No, I think that's all clear.

    • 12:01

      ADAM PAYTER: Good.[The skeleton argument]It used to be the case that barristers would turn upto the courts, and they would just very adequately reel offa few submissions and that would do.But now everything is prepared more fully.And I find it's very helpful to have written my key argumentsdown-- sometimes in what's called skeleton

    • 12:22

      ADAM PAYTER [continued]: arguments, which is a formal document with your argumentsset out.And that helps me focus on the key issues,helps me weed out the bad points from the good ones,and is also there as an aide-memoire.When I'm in court making oral submissions,I can refer to the skeleton arguments,and I know where I am.I used to rehearse a little bit for oral arguments.

    • 12:43

      ADAM PAYTER [continued]: Depending on how serious the argument isor how much scrutiny I'm going to be under,then I will have thought through whatI'm going to say beforehand.Some of the best barristers in chambersgive the impression that they're nonchalant and haven'tdone any work.And they're kind of like those kids at school that sat out,but really you knew they had done a lot.But their great skill is being able to carry offas if it's just off the cuff.

    • 13:05

      ADAM PAYTER [continued]: [In court]Paula and the other clients have allbeen found not guilty on the basis of theyhad a reasonable excuse to go onto the landand to defy the police officers-- whichwas to help the injured deer-- and also that they didn't haveenough time to leave the land when the police officer gavethem direction.It was very helpful when we got to court, albeit late,

    • 13:27

      ADAM PAYTER [continued]: we got hold of the defense footage from the prosecution.And that showed that the police officer hadn't reallygiven them anywhere near the two minutes that he'd suggestedin his witness statements.Well, the video evidence demonstratedthat the police officer had made a mistake in his witnessstatements.Without that, the court probably wouldhave accepted what the police officer had to saybased on his recollection.

    • 13:47

      ADAM PAYTER [continued]: So it was good to have some definitive evidenceto demonstrate that wasn't quite correct.[SHOUTING]

    • 13:52

      PAULA: They're hunting illegally.[Key hunt monitor footage shown in court]

    • 13:53

      POLICE OFFICER: If you don't leave now,you will be arrested.

    • 13:56

      PAULA: Why?

    • 13:57

      POLICE OFFICER: Now!

    • 13:58

      PAULA: Why?

    • 13:59

      POLICE OFFICER: I'm telling you, you're--

    • 13:60

      HUNT MONITOR: We're protecting the hunt.

    • 14:01

      POLICE OFFICER: Leave now, or I'll arrest you.

    • 14:02

      PAULA: On what offense?

    • 14:03

      POLICE OFFICER: Five, four--

    • 14:04

      PAULA: What offense?

    • 14:05

      POLICE OFFICER: --three, two, one.

    • 14:06

      PAULA: What offense?

    • 14:06

      POLICE OFFICER: You are under arrest.

    • 14:07

      PAULA: What offense?

    • 14:08

      POLICE OFFICER: You're under arrest for trespassing.You are under arrest, and so is he.

    • 14:12

      PAULA: Take my camera.Take my camera!

    • 14:17

      ADAM PAYTER: While it's sometimessaid that barristers win no victories and suffer no losses,if you take the credit when your clients are found not guilty,then you have to take the blame when they're found guilty.But it's very satisfying, becausethese particular clients-- as the judgesaid-- make an enormous contribution to societyby protecting animals and monitoring hunt activities.

    • 14:37

      ADAM PAYTER [continued]: So I'm very happy for them.At the moment there are far more barristerswho are undertaking the legal qualificationsto become a barrister than there are places for trainingbarristers in practice.It's very competitive.So as a potential barrister thinkingabout spending a lot of money doing the trainingto become a barrister, you should

    • 14:58

      ADAM PAYTER [continued]: think very hard about whether it's the career for youand whether you have a realistic prospect of becominga barrister ultimately.So it's very important to have made surethat you have a good academic record, that you havesome experience in the field of law that you want to go into,and that you have something that makes you stand out

    • 15:20

      ADAM PAYTER [continued]: from what is a very busy crowd.[After the Court hearing]It's a very intellectually satisfying job.Sometimes the most boring cases factually throw upreally interesting legal questions.It's also a thrilling job.Cross-examining a witness or a defendantwho might be lying in front of a jury

    • 15:41

      ADAM PAYTER [continued]: can be exhilarating if it's going well.If it's going badly, it can be the worst job in the world.But the most important, I think, or the most satisfying aspectof the job is often you're helpingpeople that have nowhere else to go when something disastroushas happened in their lives.That's where either they're wronglyaccused of a criminal offense, or somebody closest has

    • 16:02

      ADAM PAYTER [continued]: died to them, or something terrible--then you can be there as a safetynet to help those people.[MUSIC PLAYING]

Criminal Procedure: The Role of the Barrister

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Abstract

Adam Payter discusses the job of a barrister and the steps he takes to prepare for court. He highlights the hunt monitor case, in which people were gathering evidence of illegal hunting and were arrested for trespassing. Payter argues that his clients had a reasonable excuse to defy the police officers who told them to leave and that they were not given enough time to leave the land.

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Criminal Procedure: The Role of the Barrister

Adam Payter discusses the job of a barrister and the steps he takes to prepare for court. He highlights the hunt monitor case, in which people were gathering evidence of illegal hunting and were arrested for trespassing. Payter argues that his clients had a reasonable excuse to defy the police officers who told them to leave and that they were not given enough time to leave the land.

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