Monday 03 June 2013 by Craig Barlow and Jason M Hadden MBE
Television has for a number of years been a reason why people ultimately decide to become lawyers. From fictional characters, programmes such as Rumpole, Judge Deed, LA Law and Silks, we are offered a creative window into the world of the legal profession. But what about real lawyers?
The live web streaming of the UK Supreme Court sittings is not just revolutionary; it's little short of a revelation. According to the Supreme Court, some 20,000 viewers daily watch such streaming. There is a good reason for lawyers to watch the live argument. By viewing one can experience the cut and thrust of the advocacy and from the justices' incisive questioning, glean insight into the process of the court's deepest thinking.
As followers of the Supreme Court's website streaming (we really should get out more), we are confident that this is an under-utilised advocacy tool for advocates of all levels. It is an under-resourced practical learning aid for shaping and honing the skills of appellate advocacy. At present viewers can only watch these sittings live. No recording is yet available to the public. We consider this to be a matter of regret and hopefully the court can be persuaded to make recordings of the same accessible.
In the US Supreme Court, the sittings are not televised but on its website they publish not only audio but written transcripts of the oral argument hearings before the court. It's true that hearings before the US Supreme Court are somewhat different in character to those heard by the UK court. Principally in the US there is a very short time limit for oral argument, with a heavy reliance upon written argument or 'briefs'.
Unlike the US version, the UK Supreme Court does not publish on its website the grounds of appeal or the parties' rival 'written skeleton arguments'. It does however provide (1) brief details of the issues raised; and (2) cite the lower court's decision so as to generally enable the interested viewer to access the same on the internet.
The live web coverage of the UK Supreme Court sittings are remarkably deft because of their skilful rotation between images of the bench and their questioning and their coverage of the advocates' presentation and response. Indeed the visual coverage takes in the wider lens of juniors passing notes to leaders and the looks on solicitors' and clients' faces alike. For the viewer, the anxiety felt during the hearing is palpable. The truism that human communication relies not merely upon words, but also body language is made real. It is not just the words, but also the sound of the words.
This leads to real insight into the innermost workings of the justices' thought processes. Some are more proactive in questioning, others ask few questions. However, they tend to ask very penetrating questions. From time to time there's judicial humour, occasionally there's a question that hangs in the room unanswered like mustard gas. Rarely, and effectively there's an unmistakable sniper's shot that finishes one side's case. The justices have different styles in the way they ask questions. A kind few are discursive and clue up the consequence of their question in an open-handed way. Others ask short serial questions that lay concealed intellectual traps, like landmines for the unwary advocate.
Watching them in action, one gains the sense that there are occasionally both ideological and personality clashes between them. In short, they come across as real people, striving to do a difficult job. They're learned jurists, not locked in ivory towers as their critics would have the populace believe, but as realists trying to find a workable legal solution to the most testing of legal conundrums. Some lack patience and exhibit minor blazes of anger and frustration with the advocates before them. Others are the epitome of judicial patience in the face of provocation.
But individually, they do tend to disclose their predisposition to one proposition over another during argument. A classic example is Methodist Church v Preston . A case won below by the respondent in the EAT and the Court of Appeal.
Having read the lower judgments (before we started to watch the case argued) we were initially against the appellant. But by skilful oral argument and didactic explanation to the court of previous authorities by the counsel at play, we could see the appellant's counsel slowly win over the court. At the conclusion, we took the view that her arguments had prevailed. Months later, it transpired that she had succeeded by a 4-1 majority.
Too often it has been the case that some of the most talented lawyers are dreadful advocates: whilst their analysis is sound, their voices grate like nails down a chalkboard. There are also those whose arguments are lost in the drone. So it is with watching the proceedings before the court. Some are the personification of charm and seductive with everything seamlessly at their fingertips. Others seem to bumble and struggle in articulating their arguments and responses. From time to time, there can be flashes of brilliance and mercurial answers to problematic questions.
To select another example is the case of Petrodel Resources v Prest . By a majority the CA had overturned almost 40 years of practice in the Family Division. It gave rise to serious legal consequences, engaging issues of the correct statutory construction of the court's powers under the Matrimonial Causes Act 1973, ascertaining beneficial interests in trust law and piercing the corporate veil in company law in the context of ancillary relief in family law. Obviously a clear ideological schism could be predicted in advance between the former family court judges (Lady Hale and Lord Wilson) and the former chancery judges (Lords Neuberger, Walker). It could be expected that the former commercial court judges, (Lords Mance and Clarke) would join in with the chancery view accompanied by Lord Sumption so as to produce a 5-2 split, dismissing the appeal.
But during the live hearing - save for Hale and Wilson - it was not at all clear that the rest of the Supreme Court would so predictably divide. Lords Clarke and Walker voiced reservations about the lower court's analysis of 'beneficial interest' in the ultimate corporate structures and Lord Neuberger appeared interested in balancing the competing public policy issues that arose. So whilst the Court of Appeal's statutory interpretation of the Matrimonial Causes Act 1973 is likely to be upheld by a 5-2 split and piercing the corporate veil similarly, its determination of beneficial interests might be reversed by a narrow 4-3 split. At the time of writing this decision remains reserved and is not as yet due to be handed down.
What this demonstrates is that there is an intricate balance of legal experience and approach in the Supreme Court and that the court's collective mind is reassuringly not closed. It is amenable to persuasion during the argument.
The web streaming thus of the Supreme Court, and indeed, in time perhaps other courts, should provide an awakening of faith in both the judiciary and the law. Whilst for many it may not offer the tantalising drama of a Downton or a Dr Who; it does open up a world of real-life suspense and indeed theatre. It gives a reassurance that the court, at least, is in safe hands.
Craig Barlow, barrister of Ely Place Chambers, London, Jason M Hadden MBE, barrister of St Ives Chambers, Birmingham