The Silent Revolution in Methods of Advocacy in English Courts
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Abstract
George Keeton wrote, in 1943, about a silent revolution in methods of advocacy as practiced by the English Bar over the last ffty years I
Changed standards of etiquette, professional rules and greater control exerted by judges over these years led to a vast increase in courtesy in inter-
actions with judges and between counsel. The conduct of prosecutions had also improved. They were generaly no longer carried out in a sneering
hectoring manner with witnesses mercilessly browbeaten or bullied. Dramatic pypes of] 9th Centuy advocag, in which counsel was prepared to use
mannerisms, tricks of speech and gestures to heighten the effects of their pleas to juries, was replaced by a conversational and matter offact tone. The
idea that to cross-examine meant to examine crossly had almost vanished. Appeals to juries were now to reason combined with a controlled, subtle
and focused appeal to emotion. Jury trials in civil cases had continued to decline. Advocag before judges was concerned with facts and the law, not
oratorical flourishes. Fewer criminal trials before juries took place as the jurisdiction of the magistrates had widened further. The more restrained
and conversational style of advocag before criminal juries may have been to some extent influenced by that of the civil courts, where the leaders
of the bar appeared more often and increasingly without juries. Two dominant members of the bar during the first half of the 20th Century were
Patrick Hastings and Norman Birkett. Their styles, because of triumphs linked with them, were influential on those of other barristers. Hastings
was a master of direct forcible speech without any embellishments or ornamentation and prized breviy. Unlike Hastings, Norman Birkett believed
that the advocate ought to use the full range of English speech. Other factors lay behind the mainy conversational and matter offact advocag that
had become established. These include a widely held suspicion of rhetoric and, very importantly, better informed and greater educated juries. Jurors
were less susceptible than their predecessors to theatrical gestures and melodrama, which had largely been replaced in literature and on the stage by
introspection and realism, references to God and the Bible, elegant and flowey, but empty, speech and appeals to strong emotion and prejudice. In
a more scientific age jurors expected more of an appeal to reason. The success of barristers such as Hardinge Grffard, John Holker, Charles Russell
and Edward Clarke, during the closing decades of the previous century, may have been because they appreciated eary on the changes that were
occurring to juries. Attempting to catch the eye of the press to help create a reputation, useful to generate work, was an important factor behind the
emotive, vividly worded and aggressive advocag of the early Victorian period and afterwards. The later decline of court reporting in the newspapers,
removing much of the galley from the stage, may well have contributed to the more subdued form of speech.
Key words: England; Advocag.
The silent revolution wrote about a silent revolution in methods of advocag as practised
by the English Bar2 that had taken place over the previous 50
In 1943, during wartime Britain, G. W Keeton, then Profes- years. He observed that changed standards of professional eti-
sor of English Law and Dean of the Faculties of Laws in The quette and steadily greater dignity of the judiciary3 had led to
University of London and at the University College, London, a vast increase in courtesy between the court and counsel and
Andrew Watson, LLB, MlA, MPhil (Cantab), PhD., Department of Law and Criminology, Sheffield Hallam University, United Iingdom.
G. W Keaton, Harris's Hints onAdvocay, Stevens and Sons, 1943, page 10.
2 G. W Keeton, Harris's Hints on Advocay, Stevens and Sons, 1943, page 10.
Certainly by the latter part of the Nineteenth Century most judges exerted authority over advocates in court, something not all of them had been able to
do sufficiently earlier. (See George Iing, Lawyers and Eloquence, In William Andrews ed, The Lawyer in Histoy, Literature and Humour WilliamAndrews and
Co, 1896, page 264.). Contributing to deference and courtesy shown to judges by barristers was greater respect for their intellectual and practical abilities
as lawyers. Beginning in the 1860's both Conservative Lord Chancellors (Cairns) and Liberals (Hatherley and Selborne) sought to professionalise the
judiciary and to make merit the consideration for appointment to the bench. (Robert Stevens, The English Judges, Hart Publishing, Oxford and New York,
2005, Chapter One) The movement towards meritocracy was to some extent impeded by Lord Halsbury (Hardinge Giffard) in the seventeen years he
was Lord Chancellor between 1885 and 1905. His appointments were much criticised on the grounds he appointed to the High Court, and to a lesser extent
the county courtmen of little or no legal learning whose previous career in public life had been largely in the service of the Conservative Party or else were relations of his own .
(R. E V Heuston, The Lives of the Lord Chancellors 1885-1940, Oxford: Clarendon Press, 1987, page 36.). From Lord Haldane's Chancellorship (1912-15)
legal and professional qualifications firmly became the criteria, though at first the change was not extended to the most senior appointments. However,
a little later, Lord Sankey, Lord Chancellor from 1929 to 1935, when resignations occurred, replaced five Law Lords who had political backgrounds by
others whose reputations rested on their professionalism as lawyers. (J. A. G. Griffiths. The Politics of the Judiciary, Fifth Edition, 1997, Fontana Press, Page
16. Also see, Shimon Shetreet, Judges on Trial, 1976, North Holland Publishing Company, pp. 70 - 71.)](ViewImageLocal?handle=hein.journals/jeuhisl7&div=41&collection=&method=preview&ext=.png&size=3)
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The Silent Revolution in Methods of Advocacy in English Courts
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