SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 2012 —“THE ART OF ADVOCACY”

Citation(2013) 25 SAcLJ 1
Published date01 December 2013
Date01 December 2013

1 I am grateful for the honour that has been done to me in inviting me to deliver this annual lecture. My wife Judith and I are privileged to be here and, if I may say so, we have already been shown huge kindness and much traditional courtesy.

2 Coming here, to a country that, by its history and geography, is one of the world's great hubs of air and sea routes — small in size but vast in achievement and aspiration — reminds me of my own place of birth in a tiny island, which has for centuries been a hub and the heart of Western European civilisation, but where classical Arabic is the native tongue — the island of Malta.

3 My mother is Maltese. I was born there during the war, in the middle of a bombing raid. As she pointed out to us not so long ago — because, happily, she is still with us — that if the bomb had come 15 yards closer, we would all have been dead, and we would.

4 Once Malta, like Singapore, was part of the British Empire. Now, like Singapore, it is an independent and proud Republic. And there is an astonishing symmetry about this. I saw your flag, and the flag of Malta is also red and white with a little embellishment in the corner, only the Malta flag is the other way around. But isn't it extraordinary that I come all this way and there is this link? Now both those communities — both your community and the community of Malta, and for that matter, the community in Britain, are fortunate — the rule of law prevails.

5 I am just going to repeat those words because they can be far too easily taken for granted. In all these three communities, the rule of law prevails. Let us pause and be grateful.

6 For today's purposes I shall identify one irreducible aspect of the rule of law, and it is this: an independent legal profession appearing as advocates before independent judges, in a relationship that is marked by mutual respect. That is my thesis.

7 Advocacy is not a matter of nationality. Every community throughout history has found its great advocates. You all remember ancient Greece, Demosthenes teaching himself to be an advocate by going down to the seashore and speaking with pebbles in his mouth, above the sound of waves so as to make sure that his voice could be heard in the assemblies in Athens, where thousands of people would meet. He appreciated that the advocate's voice was a weapon that would be absolutely useless if it could not be heard.

8 But why I was asked to speak about advocacy baffles me. I once went to the House of Lords. I am going to use words that no advocate should ever use but I did to myself then, and I say again, I went to the House of Lords with a cast-iron winner, on a point of statutory construction that I could not lose. My opponent stood up (he was the appellant) and within one minute, certainly no more, one of the learned Law Lords leant back in his chair, opened his arms wide, yawned slightly and said, “When I was on the Law Commission, what we [had] meant [for] this statute to provide was …”, then he went on with a meaning that was the precise opposite of what the statute said. In this way, I lost to a certain winner, and I lost it five–nil. Within two years, the House of Lords, some of whom were the same members who had thrown me down five–nil, said that the decision was to be confined to its very narrow and particular facts. In other words, they had been talking rubbish two years earlier. But on that occasion, I was not the advocate. So what it comes to is that the person addressing you today lost a certain winner, which two years later the House of Lords said he should have won. What sort of advocate is that? So I went and became a judge. And having established my absence of credentials, I think I'd better go home now. So I will. Cheerio!

9 Well, I have decided to stay. You have been kind to us; I'd better give the lecture. Just a word or two about context though: wherever I use the word “his” or “her”, I always include “she” or “he”; and “court”, where I use it, includes arbitration or tribunal. Although the programme refers to five separate headings in this lecture, I am dealing with them compendiously.

10 So let me come back to my basic thesis. Great damage to the administration can be done when there is an absence of mutual respect between the judge and each of the advocates. Of course, we all know, you all know, some advocates are better than others. You can't say, but I can. But we also all know that some judges are better than others. That's the reality of life. We also know — do we not? — that there are sometimes personality clashes between advocates, just as there are, on occasions, personality clashes between a judge and an advocate. Of course, all this is true: we are dealing with human beings. But the essential feature that I am driving at is this: there must be what I shall describe as “institutional respect”. Justice is better served when there is a degree of professional harmony between the legal profession and the judicial office holders.

11 Lord Bingham of Cornhill, one of my predecessors, went rather further than I would have gone, quoting an observation of the philosopher, Piero Calamandrei:1

The judicial process will have approached perfection when the discussion between judge and lawyer is as free and natural as that between persons, mutually respecting each other, who try to explain their points of view for the common good. Such an arrangement would be a loss for forensic oratory but a gain for justice.

12 Now you don't very often disagree with Lord Bingham — certainly I don't. But I respectfully disagree that there can be a discussion of the kind envisaged in this quotation. There are, of course, formalities within the processes of law that are essential to the orderly discharge of business. More importantly, whether in a criminal or a civil case, the advocate is acting for a client. The judge has to listen to rival cases and make up his mind between them. The role of the advocate is dual. The advocate has obligations to the court but it is the undoubted responsibility, as your Chief Justice has just indicated, of every advocate to advance the case of the client — however unpopular it may be — in its best light and to the best of the advocate's ability. The judicial objective is different. It is a process involving high-quality advocacy on both sides of the case — the prosecution and defence, plaintiff and defendant — that produces the answer required by truth and by law.

13 So the crucial words in the quotation are “mutual respect”. That is an expectation that the judge is entitled to have from every advocate, and every advocate is entitled to receive that from the judge, an expectation based on the clear understanding of each other's different responsibilities in the administration of justice, but not too cosy, not as cosy as Piero Calamandrei had implied.

14 Perhaps, in the end, he overlooked that litigation is not a symposium between distinguished commentators in a great academic institution, but a legal process that, so far as the parties involved are concerned, will involve answers that provide life-changing consequences such as the deprivation of liberty and punishment, financial disaster, the removal of children from one or the other parent.

15 And as judges in this overall context, we have to remember that the simultaneous duties of the advocate — to the court and to the client — can create very difficult problems of professional judgment, and that in any event there is a principle of legal professional privilege, which means the judge cannot know the whole story or the particular pressures under which the advocate is working. Before we seek to

criticise the advocate, we need to remind ourselves not only of the problems that we can see for ourselves, but also more importantly that we probably do not have the fullest idea of all the problems the advocate is currently facing. As for the advocates, there are advocates — might I possibly suggest with the greatest possible respect — who, perhaps on occasion, fail to appreciate that the answer to many cases is neither as straightforward nor as simple as the advocate on one side or the other thinks that it really must be. Perhaps all the advocates here will respect the problem identified by King James VI. It's a lecture in itself. But at the early...

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