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The QCs who work in the inquiry spotlight - May-17-12
Source: The Times - Law
Robert Jay has had more airtime in recent months than the Queen. So what is his job as counsel to the Leveson inquiry?
He trends on Twitter, has a fan club excited by his (non-tabloid) use of English and is, some say, the real star of the Leveson inquiry.
But comments last week by Robert Jay, QC, that Rupert Murdoch had “selective amnesia” over a lunch at Chequers with Margaret Thatcher 30 years ago came under fire, with critics saying that he had overstepped his neutral role as counsel to the inquiry. What, though, is that role — one in which Jay has enjoyed more airtime than the Prime Minister or the Queen?
Handpicked by Lord Justice Leveson together with government lawyers from a small list of barristers who specialise in public law work, his role — as the inquiry website puts it — is to “provide legal advice to the inquiry panel in any inquiry-related matters and to question witnesses at oral hearings”.
That bland definition makes light of his part as the key player in the most highly publicised public inquiry yet held — attracting huge coverage with its focus on the press and witnesses who include celebrities, editors and politicians.
The sometimes 16-hour-a-day job that has so far earned Jay more than £500,000 is not adversarial, as in standard court proceedings; witnesses are not in the dock or in any sense on trial. Low-key, laconic and tenacious rather than grand-standing, Jay is there as an inquisitor, to test the evidence and try to arrive at the truth.
As another QC put it, he must combine all the usual advocate roles in one: examine witnesses then cross-examine, “bringing out all the points the witness wants to make, put the points that other parties and the public want put and finally deal with issues as they emerge. It is very demanding.”
Ashley Underwood, QC, of 5 Essex Court Chambers and a specialist in public inquiries, said: “He is a ringmaster. He has to lead the team in collecting the evidence, then present it. He needs to understand everything, bring out the significance. There’s no room for off-the-cuff asides, smiles off- camera, none of that.”
Or, as Michael Smyth, who headed public law at Clifford Chance for many years and led the legal team at the Hutton inquiry, puts it: “It’s an odd role, an amicus curiae [friend of the court] on stilts. His function is to eludicate information, bring it into light.” After the cost and scale of the Saville (Bloody Sunday) inquiry, the Hutton inquiry (into the death of Dr David Kelly) was praised for its pared-down model, pioneered by Professor Sir Ian Kennedy and counsel Brian Langstaff, QC, in the Bristol Royal Infirmary inquiry into children’s heart surgery. It meant less scope for individual barristers to question witnesses and so a bigger role for leading counsel — in that case James Dingemans, QC.
Now, an inquiry counsel tends to do most of the questioning and other barristers feed questions through him.
In his opening, Jay made clear that he was hamstrung in that the “cart has been very much placed before the horse”. The bigger-picture issues, “themes, patterns, broken systems and cultures” that he is now probing should have come after detailed examination of the evidence. But the police investigations and prospect of criminal trials ruled that out and also limited what witnesses could say.
The inquiry’s “extremely tight” time constraints have brought their own problems. For whatever reason, ministers did not have “core participant” status and so had no advance sight of the Murdoch e-mails on the role of Jeremy Hunt. “This is extraordinary,” Underwood says. “They should have had core participant status from the start and a chance to comment on evidence that was otherwise third party hearsay. It is a sign of the need for speed.”
Crucial to the tone of an inquiry is counsel’s relationship with the judge. The chairman will choose a QC who chimes with and is sympathetic to his or her own approach, Richard Lissack, QC, says. “So in Shipman, Lady Justice Smith chose Caroline Swift, QC, with whom she’d worked over the years. The approach and tone is very much set between counsel and the chairman but the latter takes the lead.”
Hugo Keith, QC, counsel to the 7/7 bombing inquest, for instance, kept a “great distance from the judge”, another lawyer said. “He was rigorously neutral.” Observers noted that even when questioning witnesses from the Department of Transport that he could have “given a hard time”, he was scrupulously fair. Once, when he slipped back into a more aggressive cross-examination mode, Lady Justice Hallett, the coroner, hauled him back. By contrast, lawyers say, Jay’s relationship with Lord Justice Leveson is quite (although not improperly) close.
Not so close, though, that the judge holds back if he wants to interrupt Jay’s line of questioning, on occasion taking over. Smyth says: “Counsel to the inquiry is someone the judge knows and can get on with. He will spend a lot of time with the judge behind the arras, at lunchtime, sharing a sandwich, discussing the day’s proceedings. So you can understand the judge wanting someone who he is comfortable with.”
Behind the scenes, Jay is regarded as a good manager of his team and the vast evidence. “He is said to operate smoothly and well,” Underwood says, “and assimilates all the points core participants want him to make, so he adduces balanced evidence.”
But what of his comments about Murdoch’s “amnesia?” Underwood thought them surprising. “Counsel is entitled to ask questions without making a statement; and can also make statements at each phase of the inquiry. But neither of these approaches permit a personal commentary on evidence already given.” Others disagree. Jay has discretion over what to say in opening statements but should be neutral, not appearing to have reached “a concluded view”, one QC said, adding: “And I don’t believe that he has done. He’s entitled to raise questions.”
Smyth, now a member of the Press Complaints Commission, agrees. “I see it as an important part of the role of counsel to the inquiry to assess material and offer observations upon it. He will do that most obviously by way of closing statements but ultimately he’s not making the decision — that falls to the tribunal chairman.” Lissack says: “He can say what he fancies. Being neutral does not mean being weak, it means not taking sides. His role is to test the evidence, not meekly accept it. There’s no point having counsel to the inquiry otherwise.”
As for Jay’s questioning technique, legal opinion is split (and no doubt a little envious): some say he has been too aggressive or shown anti-tabloid tendencies, buying the “Murdoch conspiracy” line, others that he is too mild, giving witnesses too easy a ride. Lissack, who has wide experience of public inquiries and co-edited Public Inquiries (OUP) with Dingemans, said: “Jay is a highly regarded public lawyer. They tend to have certain style that is cerebral, careful, not flamboyant, rather understated and quite bookish.”
Another noted: “Generally journalists and the press don’t seem to have had the hard questions you’d expect. I have a sense from both Jay and the judge of that hauteur of patrician lawyers over what happens in newsrooms, a view that these are just the grubby places that we always thought they were.”
Either way Jay can rest assured that he now has a large public following, what one lawyer described as the “cult of Jay”. And short of any major blunders, his career is on a certain upwards trajectory — but it won’t always be on the front page.
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