Eighth Ebsworth Memorial Lecture ‘Getting it Right First Time’ 2013

By The Rt Hon Lord Hughes

Dame Anne Ebsworth was above all else a trial judge. She was a thorough professional - in the process of enabling the common law trial to arrive at the right answer. She understood court craft. Formal in manner, she was nevertheless good with juries and with witnesses – the two are not in the least incompatible. She knew instinctively how to let the process take its course, when to keep it under control and to prevent it from wandering about the road, but even more important when not to attempt to steer it. She knew when a steer passes from keeping the vehicle on the road, destination yet to be discovered (which is necessary) and risks becoming a satellite navigation system leading to a destination which is a foregone conclusion (a very bad idea because it seems that the destination is obvious, but it may turn out to be wrong). Anne Ebsworth had not had it easy. Her difficulties were different from those which modern advocates in publicly paid work face, but they are not to be underestimated. She entered a bar when women were not generally accepted – they were patronised and worse - and when legal aid was in its infancy – the competition was fierce; it could easily have become cut-throat. What her career demonstrates is the way in which strict professional standards, and pride in what you are doing prevented this then and can prevent it still. It sustained the advocate then and can sustain him or her now. In due time, she became closely interested in the practice and skills of advocacy. She became an energetic supporter of the then relatively new business of advocacy study and training. She put her experience and commonsense at the disposal of those learning the trade. She taught frequently for Grays Inn and for the SE Circuit at its annual course at Keble College. So all her professional life was aimed at making the trial process work – at getting it right first time.

For those of us who are no longer allowed to try cases, and have long since been put out to grass in a place where there is safety in numbers, it is a necessary discipline to keep reminding ourselves that our system of justice does not hinge on the few cases which get the full treatment in the Court of Appeal – or even beyond. These are the tiny tiny minority. Our whole system of justice, criminal and civil, hinges on getting it right first time, and on there not being an appeal because there is no occasion for it. Ours is a system which is deliberately appeal-lite. In fact the principle goes further. The law as a whole ought to be litigation-lite so far as possible. That extended principle, however, only works so far. It only works once the disputed facts are known. It must look very tempting, if you are looking over from the Ministry and under inevitable pressure from the Treasury, to think that trials, civil and criminal, should be taken as swiftly and inexpensively as possible. But that only works if you assume the outcome. If you assume, for example, that defendants are nearly all guilty, then the process seems to be an obstacle to speedy justice. But the trouble is that a trial is just that: it is an enquiry. It does not run to a pre-ordained course and if it did there would be no point in its taking place. The facts may be as they seem on paper, but uncomfortably often they are not. So we put the effort into the trial process and sorting out the facts once, and correctly; in other words in to getting it right first time. The appeals are just a necessary but occasional corrective.

So we need to be thinking all the time about ways of improving or adapting our trial system. Our way is not the only way. Plenty of people think that it has serious flaws. The common criticism is, of course, that we have made it into too much of a tournament, where artistic impression scores more heavily than technical merit. It is unscientific. I want just to think about both those criticisms. Science first.

Every now and then, science does deliver us a really important new tool in establishing the truth. DNA has obviously done this. But although CSI suggests science provides the whole answer, so often it does not. It will tell you who was where, and sometimes a little of what he did. But it won’t tell you what happened before to lead him to do it, nor who agreed or disagreed to what, nor what he was thinking at the time. For that, we still need witnesses with all their imperfections.

Science moves on. An MRI scan is a way of looking at an image of the brain. Its up to the minute latest offspring is the fMRI (functional MRI). The difference is that the MRI scan takes a still photograph whilst the fMRI takes a video. So while the MRI scan tells you if the brain has a bit missing, or if it has something in it which ought not to be there, the fMRI scan lets you watch the brain working. I apologise to scientists amongst you for the over-simplification but it works, I gather, by watching the blood vessels in the brain for oxygen content. When your neurons are active, they call up oxygen, which is delivered in the haemoglobin in the blood. Oxygenation indicates activity – it shows that bit of the brain is doing something. Oxygen-rich blood shows up differently in a magnetic field from oxygen-poor blood, so your fMRI shows you which bit of your brain is active. Bit by bit the neuroscientists have built up a picture of which part of the brain does what.

One of the more interesting experiments which has been done in Bethesda, MD has been to persuade a dozen rappers into the machine. These were talented freestyle rappers. They were improvisers. They were the ones who make it up as they go along – you see where this may be leading. The rappers all went into the machine twice. The first time they improvised – they went freestyle. The second time they recited memorised lyrics. The machine then spots the different parts of the brain where the bustle of passing oxygen shows up that work was being done. The improvisation process happens, it seems, in a detectably different place from the retrieval of memory. For those of you whose tastes are a touch more conventional, they have done the same with jazz musicians.

So? You won’t be surprised to learn that there are those who believe that the process of lying similarly involves brain activity in different places from the process of telling the truth. Interestingly, the neuroscientists suggest that lying is a more difficult process than telling the truth and it takes up more brain: you have quite a bit more brain activity to watch than you do if the chap is just telling the truth. That, you may think, confirms the experience of most advocates. There are certainly now commercial operators, in the USA at least, who offer the service of MRI lie detection – one such which advertises its machine is for example called “No Lie MRI, Inc”. The testing is reckoned to be a good deal more sophisticated than ordinary polygraph lie detection, because you are not just measuring physiological reactions such as heart rate or sweating but going straight to the control centre of thinking itself.

I may be one of the few English judges who has actually been asked to admit a polygraph in evidence. It was not a particularly good example. The case was a civil one of alleged child abuse. The alleged abuser had been roundly disbelieved by everyone who had heard his story, not entirely surprisingly because it tended to vary and was convincingly contradicted by some independent eye witness evidence. So he arrived on about the 4th day of the trial with a polygraph test report and asked to rely on it. Sadly it did not read all that well. It was a single sheet of paper. It declared that the author had received training in administering polygraph tests at a Univ in the deep South of the USA which no one in court had come across before. It said

“I met Mr X. I agreed with him the questions I was going to ask (!). I then connected him up to the machine. I asked them. There were not v many. I asked him if his true name was Mr whatever it was. He sd yes. I asked him if he had 5 children, April, Beatrice, Charlie, Diana and Emily. He said yes. I asked him if he had ever abused any of them. He said no. I can confirm that he was telling the truth.”

I cannot now remember whether I admitted this nonsense so as to be able to say in a judgment how worthless it was, or refused to admit it because it was worthless, but that was the only decision required.

That is just a bad example of the genre. But although the polygraph does have some quite interesting uses, its unsuitability for trials has been demonstrated time after time.

So, will the more sophisticated cousin the fMRI, become a means of improving the trial process? Is it a way of testing out the witness who is thought to be, like the rappers, making it up as he goes along? Not yet I’m afraid.

You can put on one side some essentially practical difficulties. By the time you had whisked him off to lie immobile in the machine, most of the invention would probably be in the past – and the idea does conjure up a fascinating picture down at the testing centre of the advocates in wigs and gowns clustered with the gentlemen in white coats around the tube in which the witness is lying (by which of course I mean he is recumbent).

But if it worked, we might overcome formal obstacles like this. Lawyers have to adapt. So is this perhaps the answer for those who are worried about the unscientific and random processes we use?

I am sorry to have to report that at present it is not. One of the more specific pieces of work which has been done on this, at Stanford University, is on recognition. As with improvisation, the scientists believe that they are fairly close to identifying the bit of the brain which responds when it recognises something it has seen before. Some of them began to think that this could be very useful in trials. One of their early thoughts was that you could show a picture of the crime scene to the defendant who says he was not there, and his brain reaction would tell you if he had seen it before. That is just an example of blue sky thinking, and probably isn’t terribly realistic. By the time you got to the stage of a fMRI test, he might well have seen the pictures anyway. But what about other applications. What about verifying identification parades? Rather better you might think. But scientists are thorough. They have discovered a big difficulty. What they have also discovered is that the brain activity which you see on the fMRI is pretty much the same when the brain thinks it has seen the object before as when it really has.

So that will not work. Or at least not yet. But it may yet. We must keep our eyes open and more important our minds. Stepping for a moment outside crime, one piece of research which may well be closer than most to practical application is some work being done in this country on chronic pain. They are not there yet, but it does look like a possibility that the time will come when they can tell, from the fMRI pictures, whether the claimant is really experiencing the chronic pain claimed or not. It may even help, one day, with the mechanics by which it is created. Whether it will ever tell us how long it might last is beyond the horizon. You can see the possible application to personal injuries litigation, even if it will not oust the occasional need for the hidden video of the claimant carrying the heavy boxes or digging the garden. Not ready yet, but watch this space.

For the foreseeable future, therefore, the science is going to stay only a part of the evidence. The trial process must still provide a reliable and affordable process of evaluating the whole of the evidence.

Leaving science on one side for a moment, you only have to look a little east to continental Western Europe to see that there are alternative ways of approaching a trial. I happen to think that we are mostly rather too insular about European experience. We in the common-law systems are – perhaps - learning to be less inward looking, but comparative work is probably not our best forte. We should be ever alert to the European experience, not just because it is bound to form the background to the approach in Luxembourg or in Strasbourg and so is certain to affect us, but also because there are things to learn and adapt.

They have proper criminal codes for a start. And they seem to have survived without the marked sentence inflation which has overcrowded our prisons to the point where we need to worry - and where the rest of the criminal justice system has to be starved of resources. What about the trial process?

Here there is a very old debate, which still gets an outing from time to time:

Here is an example:
“The adversarial system of justice is by nature unfair and unjust. It favours the strong over the weak. It accentuates social and cultural differences, favouring the rich who are able to engage and pay for the services of one or more lawyers. Our own system is better, both in terms of efficiency and of the rights of the individual.”

That is Mme Elisabeth Guigou, the French minister of justice, speaking since the turn of the century in 2000 when changes in the French system, and especially the removal of the juge d’instruction were being debated.

As you know, most European systems of criminal trial derive from the Napoleonic model. The key feature of that is that there is a cumulative process which rolls the investigative part into the trial part. The evidence is gathered into a dossier. The evidence gathering process is supervised by the prosecutor, much more than we are used to, and in some countries also, in serious cases, also by a judge: this where the system has a juge d’instruction or giudice istruttore. The trial is grounded on the inspection and evaluation of the dossier. It can, in some countries, be a distinctly disjunctive process, adjourned from time to time for more enquiries to be made, rather than a single event as our trials are. There is much closer liaison between the judiciary and the public prosecutor than in the common law systems; they work together as a team. And although there is a variety of tribunals, some all professional judges and some a mixture of judges and lay people, the role of the judge or judges is as investigative fact finder and not as an Olympian referee and legal arbiter.

But, that is a considerable over-simplification. The conventional dichotomy is no longer sound. First, continental systems are not all the same. Second, there has been a definite trend to convergence between the common law and the Napoleonic model so that the differences from our own are now less dramatic than many think. The juge d’instruction, where he or she exists, is usually confined to the most serious cases. Some systems take oral presentation very seriously: it is for example mandatory in Germany for the evidence to be given orally – though that may include some second hand oral evidence. Over the past twenty years there has been a major tussle in Italy between Parliament, on the one hand, which has made efforts to legislate for a broadly adversarial system and, on the other, the Constitutional Court which has several times ruled the changes unconstitutional. In the end Parliament changed the constitution.

On our side, there are definitely fewer exclusionary rules than there were. And we now have what the common law did not know but the Napoleonic system always provided – disclosure of the product of the investigation: we sometimes forget that this happened comfortably within the professional lifetime of those of us a little long in the tooth.

You can see an example of this convergence in an interesting and perhaps ironic background to the recent dialogue between Strasbourg and London on the topic of hearsay (‘dialogue’ is Sir Nicholas Bratza’s tactful expression). You do not have to go back further than the last war to find the English stoutly excluding all hearsay, including business records, the utterances of the dead (unless they those very few which were spluttered in a ‘settled and hopeless expectation of imminent death’), and even what came to be called – misleadingly – implied statements, like the endless telephone enquiries for heroin to the defendant’s telephone. And looking back the same distance, at that time you would have found most continental systems wholly immune to the idea that anything called hearsay existed, because statements of all kinds simply went into the dossier and the judge was under an inquisitorial duty to search for the truth using every available source. Fascinatingly, when the Italian constitutional court struck down the first parliamentary attempt to restrict hearsay, it did so on the ground that if you prevented police officers from giving evidence of what they had been told by people who were not themselves witnesses, this was wrongly to hamstring the judges’ search for the truth. [It is just a difference of perspective. That you should be able to test the evidence was not their perspective; they would say that that had been done when the statement was taken, and was done again by the judge evaluating the statement.] But Parliament has prevailed in Italy. Such has been the convergence that most continental systems have now embraced the right of a defendant to confront his accusers, and so have learned to dislike hearsay. We, on the other hand, now have a code for its admission in a great range of different situations where it can properly be evaluated and even, some seem to think (though they are wrong) on the nod. And hence Al Khawaja and Horncastle, a fascinating exchange of viewpoints, now (as I believe) reconcilable. It is always worth seeing ourselves as other see us.

That said, the trial process in most continental systems remains significantly different. It still relies in essence on the judge as a Grand Inquisitor. Here is a short picture of an ordinary enough trial in one of the countries whose rules require an oral process – so it is one of them which is closer to ours than the ones which still rely heavily on the written dossier and let it speak for itself.

I am sorry that it is a little sordid, but it is a real trial which was written up by an observer from the USA. The def was charged with rape. The offence was said to have been committed up against the wall of a public lavatory. The complainant apparently said that she had blacked out & had no memory of the event, save that her handbag had been taken. There was a single eye-witness who was a foreign national. There was a second witness, an elderly lady, who had not seen what happened but had seen the def leaving the scene. Several other people were known to have been there but were not witnesses.

The trial was conducted in front of a court of three – one professional judge and two lay justices. The public prosecutor who had handled the preparation of the case was there. The def was represented by an advocate (paid for by the State – or so it appears).

The trial opened with the PP reading the complaint (not just the charge but the outline of what is alleged; here that he hit the comp with his fist on the back of her head and then raped her before making off with her handbag containing some money and her keys,) The def is not asked to plead. [In many countries in Europe, there are no pleas of guilty: this is a principled view that all cases ought to be fully investigated by the court – although this too is changing.]

The J, however, addresses the def. This is the usual practice; you start with him. He is not obliged to answer QQ, but they are put directly to him by the J – he is not examined by his advocate. In this case, the J started with his personal circs, as you would. In other words, it is like an interview by the J. It may be kindly and objective, or less gentle and more pointed. That depends on whether the J is kindly and objective or more pointed. Not surprisingly, D tells the J his version. “I was travelling through the city in Q on my way somewhere else. I fell in with a crowd in the pub, whom I did not know, and I spent the evening drinking with them. The comp came up to us, and propositioned two of them before settling on the D. She walked up to me, put her key into her pocket and invited me to her house. Well. I followed. And she was in a hurry; she pulled up her shirt and kissed him.” After that one thing led (fairly rapidly) to another and they had enjoyed each other's attentions up against the wall. “It could have been a public lavatory, but he I’m a stranger in town and wouldn’t know.

This is all related to the J The PP interposed one Q – had he hit C on the back of her head? The interposition is fairly informal; it is not examination by first one person and then another; it is a more fluid process. Def Csl had no speaking part in this at all.

The complainant is called. The J asks her to give her account; she is left to do so more or less in her own words. She is an unemployed single woman living on benefits in a small town a little outside the city. Before she has said much more than that, the PP intervenes:
“I can smell drink. Have you been drinking?"  “Yes, 2-3 vodkas: I was nervous”.

At this point Def csl makes his first contribution. He submits that the witness is incapable of giving evidence because she is drunk. Clearly, not a man to mistake a passing bandwagon. The PP did not agree and the J allowed the questioning to proceed. It is the J who takes up the QQ, asking her directly if what D says about pulling up her shirt and kissing him is right.

No answer.

Then this:

Judge: The suspect said that you pulled up your t-shirt and walked arm in arm. Then you went behind the toilet and removed your underclothes.

Defence Csl: If she doesn't remember ... [cut off by victim].

Comp: I was at the toilet. It hurt.

Judge: What happened here? [pointing to a photo of the public lavatory].

Comp.: I tried to take my bag. I can’t remember. I was drunk. [She begins to cry]. I can't say clearly. I didn't give anyone my key. He lifted my t-shirt and took my bag away. I'm sure he took my bag....

Defence Csl: He took your money away? Was it consensual intercourse?
[this is virtually the only contribution from def csl; you may think it has its limitations as a tester of her veracity.]

By now the Comp is in tears.

Both the J and the PP then set about trying to elicit more from her. They did not, in the event, get much further for’ard, but they do it more or less in tandem. Notice that it was the PP who had first raised the Q of drink. His QQ to her at this stage were quite challenging.

The eye witness was a foreigner. He had told the police that he had “seen a rape”. On examination he was a lot less clear what he had seen. May think either he was explaining the limitations of what he saw, or he did not want to be there at all.

Judge: What can you say about how the woman appeared?
Was she drunk?

Witness: The girl was very drunk. She was in his arms... I don’t know if it was rape.. .

Judge: You only need to say what you saw. You don't need to say if you think it was
a criminal act.

[The judge begins reading part of the witness's prior statement to
the police].

"The man had pushed the woman against the wall. He grabbed her arm and then lifted her clothes high."

Witness: That is correct.

Judge: I believe you. We just need to know what happened.
…….
[The Judge continues reading from the witness's prior statement given to the police].
"He put his hands on her breasts. He left by himself with her bag”
- ok ?

Judge: What did you see of the rape? A rape occurs when someone has sex with force.

Witness: Yes.

Judge: You told the police more than you are saying here. You don't need to be ashamed to say these things. Just say what you saw. Just tell us about the crime. In this country it is a crime.

[The Judge continues reading the file].

"He kissed her on the breasts."

Witness: Yes. That is normal.

Judge: No, that is not normal.

Witness: I am a foreigner.

Judge: How was the woman standing?

Witness: Her back was against the lavatory wall. It was a rape.

Judge: [This is what you said: to the police]. "The man pushed the woman's arms away.  He opened his trousers and ……. pushed her head. . .. "

Witness: I can't say

Prosecutor: [With raised voice]. "Stop playing with us and tell us what you know."

"I can charge you with a crime. ... the failure to report a rape."

Witness: I am not a child

Judge: Just tell us what you saw.

Witness: I saw him take her arm... he grabbed her breast and pushed her head I can 't remember more ... he went away.

Well, which was he, a witness who had overstated his original statement, deliberately or otherwise, or one who was now over anxious about saying what he saw? And more interestingly, how possible was it for the minds of the J and PP to remain open on that issue, when they were constructing the QQ for him to answer?

There had apparently been several other people at the scene. No statements had been taken from any of them. One of the features of this kind of trial is that if it emerges that someone else may be a witness, the J will quite often adjourn for the extra evidence to be obtained, and the trial will start up again some days or weeks later. In countries where there is no formal requirement for all evidence to be given orally (as there is in the one from which this example is taken), the trial may consist of a series of hearings where what takes place is a mixture of the taking of statements and the examination of previously made statements. Those hearings may be separated by quite a distance.

Virtually all the QQ are asked by the J, with some help by way of interposed QQ from the Public Prosecutor. There is no stage at which there is direct xx of the complainant by defence counsel and not much in the way of xx of the defendant by the PP. The practice varies, but very often the defendant is invited to speak several times in the trial, not necessarily after each witness, but a number of times. He is, in many countries, guaranteed the last word.

In this case it may have occurred to the advocates amongst you that there might, for example, have been quite effective xx of the defendant about the key. One might ask, might one not: What did she say when she gave it to him? If she lived some way away, in a different town, why would she give him her key? On the other hand, perhaps her home was only in the suburbs, in which event the point may have counted for a lot less. The record shows that the PP relied on the key point in his closing submissions; it is not clear that the point had ever been put to the defendant.

The D will be asked QQ at several different stages of the trial – not exactly after each witness, but whenever it seems convenient. He is in many systems entitled to the last word.

So it is the process which is interesting.

1. It is a lot less structured.
2. It may be fragmented into successive examinations of evidence which becomes available bit by bit.
3. It depends quite enormously on the J. He selects the QQ and asks them. There is no-one to rule that a Q is slanted or another ought to be asked. Now he may be both perfectly balanced and extremely skilled in questioning in a way which makes no assumptions whatever, but – how often do you meet such paragons?  You have to admire the way both J and PP are striving to conduct an objective inquiry. But you cannot help thinking that it would be even better if there were advocates of more or less equal ability, each with the duty of finding and taking each properly takeable point on one side or the other.

And lastly
4. The J and PP operate to a considerable extent in tandem.

Behind this lies an interesting demographic.

The advocates on each side have very different career structures, very different organisations and very different status. As you know, judges are appointed for life more or less directly from training, in their mid-twenties. The PPs share much the same training and much the same ethos. There may in some systems be a certain amount of movement between judging and public prosecuting, but if that happens it simply underlines the point which is there in any event. Even when there is little or none of this, the PP is regarded in the systems we are speaking of as part of the judicial apparatus. The ethos of both is profoundly neutral. Both see it as their job to ferret out the truth. This is not just high-sounding but meaningless principle. The PP in Germany, for example, pride themselves, if they think there is any point which requires a second opinion, on appealing on behalf of the defendant even if the defence advocate does not.

The defence advocate is regarded very differently. He or she has a different training: they are graduates in law but have not shared the training which the judges and PPs had together. They are of course bound by professional ethics, but often they are broadly mistrusted by the judges and the prosecutors, who will have known each other from training and essentially share the same approach.

“The lawyer, he works as a liar, to see how far he can distort the law...These “Anglomaniacs” claim that equality of objectives is the same as equality of arms. But lawyers and judges are not the same. The lawyer wants to acquit the person who pays him. The judge wants to deliver justice to protect society.”

That was a French juge d’instruction answering a survey on trial systems and the rights of defendants.

The contrast with our system is marked. Our system invests very heavily in a single, oral, trial process. There is, these days, lots of pre-trial management, and there could be more. But the trial itself is a single continuous hearing, however long or short – and it is not directed by the J. As a result, it is impossible to overemphasise how much it relies on the advocates – both or all of them.

Of course, if you are out to grass as I am, one of the things you miss is examining the witness. Of course, some of us are more chatty/interventionist than others. But though I miss getting the story out of the witness, I not only do not want to have sole responsibility for ferreting out the truth, I positively know that I simply could not do it day in and day out for a judicial lifetime, without at some stage assuming the answer and so getting it – right or wrong.

Every advocate knows that the first Q of the morning on arrival at court is: “who is the judge?”. Those who have not sat as recorders may not appreciate that every judge’s first Q of the morning is: “who is in it?”

Unless we are going to adopt a Grand Inquisitor style process, we depend utterly on the advocates. We depend on them to be experienced, and highly skilled in the business of asking the questions which get to the truth by exposing doubt, or mistake, or untruthfulness (or for that matter ineptitude or stupidity); not, of course, by simple confrontation or assertion (of which there is too much; as Anne E would have said, it is the w questions which work – the ‘what’, the ‘who’, and above all the ‘why’; the advocate who succeeds is the one who lets the witness do the work.) We need the advocates to be selected on no basis other than expertise – not on the basis of who they work for, and not, absolutely not, because they have bought the work. We need them to be balanced, as between the two sides, and not to have a cosy relationship of common culture between the judge and just one of them. We are much more likely to get this if they are used to appearing one day on one side and the next on the other. We need them to respect each other, and to know that the judge respects each of them equally (at least at the beginning of the case): it must not be like the model described, accurately or otherwise, by the French juge d’instruction. Respect and pride in performance are fragile things. You can lose them without realising it. But once you do, your system is broken.

We also need them to be hugely self-disciplined. The opportunities for shading or slanting a case improperly are legion and most will never be detected. An advocate can derail a trial if he or she wants to do so as effectively as prop forward can collapse a scrum and as undetectably. Or, if your game is different and since metaphors are best mixed, the advocate batsman has to be one who walks – ie tells the court of law which has been overlooked but is against him. The difference is that is not a game, and that the advocate needs to know that he will be trusted by his opponent, and the judge, next week or next year when they are perhaps on opposite sides. Only self discipline, professional pride and peer pressure will be proof against the temptation to cut a corner. If you lose this, if you once introduce the professional foul or ‘play to the whistle’ into the advocate’s ethos, you will not know until it is too late but then we are all lost.

Only self discipline and professional pride will protect against this and make the system work. Whatever kind of business organisation the advocates may operate in, they absolutely must have not just a formal ethic of independence, but the mindset of independence.

It is no good having the best set of regulations which legal pen can devise, unless the professionals have the pride in performance and the self discipline to make the trial fair. The regulations can say that the prime duty is to the court, but unless that is the ingrained instinct all you have is trials going wrong. Occasional satellite litigation in the disciplinary tribunals in one or two standout cases is no substitute whatever for the ingrained instinct; in fact it just prolongs the agony for all the parties. That is why such conventions as the cab rank rule do matter; it is a mindset – the first duty is to the court and every defendant however repellent must be served the same. But the cab rank rule is only one example. The mindset matters much more once the advocate is in the case; it has to be there every minute and for every word spoken.

And, because it is no good forgetting that money is in very short supply and that there is no natural right to a dole-out from the taxpayer’s limited funds, it is essential to understand that good advocates save money. A bad advocate costs a huge amount; trials take too long, and things go wrong which require appeals to people like me (not one but 3 of us) to put right.

One of the cardinal features of the continental systems, depending as they do on the personality of the judge, is copious appeals. Virtually all have a system of regional appeal courts and appeals are re-trials, not the restricted reviews of errors of law or practice which ours are. They may not always hear the oral evidence again, though they do that too, but the verdict is reconsidered afresh. Everything is open to re-argument. The chief justice of a regional court of appeal once told me: “Here everybody appeals everything.” And his figures showed that if even if they were all to change the habits of a lifetime and stop, there were so many appeals in the pipeline that it would take six years for his half dozen courts working at full stretch to get through them. This is not unique. Most European appellate judges go a fetching shade of green at our system of a leave filter.

We could have such copious appeals, but it would cost a fortune. It is also the very last thing that the participants need. Litigation is seriously damaging to health, unless of course you happen to be a lawyer. Countless litigants either start it or defend it in a frenzy of righteous indignation, but only one of them can win. The victims of crime are often thought to have an interest only in the conviction of the defendant, and of course they have, but not if he did not do it, and still less if something goes wrong with the process and the question whether he did it or not has to be tried all over again. Every appellant’s search for a fresh answer is, for his opponent, a painful prolongation of the whole miserable process. If it cannot be avoided, then it is pain which must be borne rather than let an injustice lie. But if the system can get it right first time, it need never happen.

So, unless we conclude that this is a part of the continental experience which we ought to adopt, without, no doubt jury trial, this is why, as I say, we depend on the advocates to make work a system in which we can tell people that they only get one chance at a trial, that they must put all the evidence in at that one trial, and that it will cut no mustard to arrive six months later in the CA and say you wish you had run it differently or you have found a new expert who will put it better. If we do not have advocates who can be relied upon to get it right first time, appeals mushroom.

As it happens, we are noticing a worrying number of applications for leave to appeal where the grounds are in effect a complaint about the way the advocate below ran the case. Just sometimes, regrettably, they are justified. If they are, then the system has seriously failed and the cost of the appeal, the investigation and, usually, the re-trial are quite horrible to contemplate. And that is without the personal pain and stress for all the lay participants.

For other than these presently few cases, disappointed convicted defendants or disappointed losing litigants need to be advised that there will be no legal aid for a speculative general trawl through the trial and the evidence, just on the off chance that something may turn up. There must be identifiable grounds. If there are, then as advocates, if such instructions come your way, your duty is to advance the argument if it is arguable. Loyalty to a professional colleague does not come into it. But your duty to the court is to advance it only if it is arguable and you should find out, should you not, whether it truly is? There can be no reason, can there, for not giving notice to the trial advocate of what is being suggested? That does not mean a cosy chat which compromises new counsel’s position as the representative of the appellant; it means no more than sending him or her the grounds so that he can comment, within or without the restrictions of privilege depending on whether it has been waived or not. You may well learn that first impressions are not as accurate as they might be. I hope that the present trend towards these applications for leave to appeal, most of which are highly speculative, is not the result of the quality of advocacy at first instance sometimes falling. I expect it is as likely that there is something of a fashion for it. But it is a good illustration of the costs incurred if the trust which we can almost universally place in the advocates is weakened.

All of which is another way of saying that Anne Ebsworth was right. We set a great store by the single trial. The skills needed from all the participants are hard won by hard work and a lot of practice, and can be helped a good deal by the sort of training programmes which she helped to pioneer. Our system of justice is almost all about getting it right first time. And that depends on you.