Michael B. Lopez
PEGASUS TRUST SCHOLAR REPORT
THE ENGLISH SYSTEM AND ITS EFFECT ON AMERICAN LAW
To say that the English system of law and procedure has affected law in the United States would be a tremendous understatement.[1] To be sure, there are significant differences between the laws of England and the United States, and the organizational structure of the system of law is, in some ways, radically different. However, opportunities for working with British Barristers, meeting with judges, and observing legal proceedings in various courts in England, Scotland, and Northern Ireland afforded as a Pegasus Trust Scholar illuminated both the differences and similarities between the two systems, and demonstrated the strong ties that continue to exist between our common law traditions.
An effort to catalogue the myriad experiences that the Pegasus Trust Scholarship afforded would be impossible—there were simply too many—and so instead this report will highlight some of the major revelatory experiences that I had while a Scholar.
A.Cumberland Lodge, and the Art of British Legal Education
Early in the Pegasus Trust Scholarship I had the opportunity to go to Cumberland Lodge, a beautiful old lodge (once used by Cromwell) that sits on the vast Royal Windsor Estate (home to Windsor Castle). The purpose for this visit was a weekend-long stay where law students from the four Inns of Court (Gray’s Inn, Middle Temple Inn, Inner Temple Inn, and Lincoln’s Inn), senior barristers (these lawyers enjoy the prestigious title of “Queen’s Counsel”),[2] and judges, met to teach and learn trial advocacy. Unlike the usual American experience of a three-year period of legal education leading to a law degree, the majority of British law students that I encountered either studied law as an undergraduate, or were engaged in a one year course of study in law, supplemented by required courses, lectures, and dinners (involving lectures) that take place at one of the four Inns of Court. Membership in the Inns of Court for barristers[3] is obligatory, and the Inns have the sole right to call students to become members of the Bar.
From the beginning of my experience at Cumberland Lodge I was singularly impressed by the collegiality and community that the teaching experience created. Students, distinguished lawyers and judges, lived at Cumberland Lodge together over the weekend, ate meals together, and gathered for discussion over coffee, tea, and in the evenings over a glass of wine to discuss trial advocacy, real life experiences, answer burning questions students had, and to share jokes and anecdotes about a variety of subjects. An impromptu comedy/performance session was put together by a Queen’s Counsel on the last evening of the weekend, which involved bringing together the many talents (musical, singing, poetic recitation, etc.) of the attendees. The emphasis, however, of the weekend training course was on trial advocacy, and mornings were spent attending lectures by lawyers and judges, and in the afternoonstudents would be furiously scribbling in alcoves, or a side-room, preparing their written pleadings before delivering their argument in a mock exercise similar to moot court.
What was, and remains striking, was the emphasis on community that is apparent in much of British barristers’ legal training.[4] The act of taking meals together, often formally, of mixing—as much as possible—lawyers, and judges, with law students at the various tables, and the informal after-class gatherings, is a tremendous educational tool, and is one that recognizes that true legal education must prepare students to become members of a profession. Too often our U.S. legal institutions focus on educating students to “think like a lawyer,” but fail to equally acknowledge the necessity of preparing students to become members of a profession that can only succeed as a communityof professionals. In this sense, the weekend educational training course was a remarkable insight into how British legal education prepares future barristers for their chosen profession.
Equally impressive (and this was true throughout the duration of the Scholarship), is the tremendous generosity present in the British legal profession. While at Cumberland Lodge the lawyers, judges, and law students, interacted with myself, and Ryan Cicoski, fellow Pegasus Scholar, and our comments were sought out during the various in-class exercises; indeed, biographies of both myself, and Ryan were generously included in the teaching materials for the seminar. The tremendous enthusiasm our British counterparts have for understanding American law and practice is remarkable, and their inclusion of alternative viewpoints exemplifies a charity that is also present in other areas of the British legal system.
Cumberland Lodge also presented opportunities for differences of opinion. The theme of the weekend training seminar was “Gang Violence,” and because the focus inherently involved criminal law and matters of social policy, the subject matter provided ample opportunities to intellectually spar and debate important issues of criminal law and procedure. Among the areas of difference discussed are two crucial aspects of criminal procedure in American law: the constitutional right to confrontation, and the bar on prosecutorial comment on an accused’s right of silence during a police interview.[5]
In British courts it is possible for a witness to testify from behind a curtain—indeed to go so far as to even disguise their voice. Moreover, prosecutors can, and do, comment on the fact than an accused invoked their right to silence during a police interview, even under the advice of the defendant’s solicitor.[6] The differences between British and American law concerning these American constitutionally guaranteed rights provided numerous opportunities for discussion, including the fact that England does not have a constitution comparable to the United States, which ledled to an enlarged discussion of criminal law, which included one Queen’s Counsel explaining that in England conspiracy does not require an overt act. It also included spirited debates about the right to confrontation, and the fact that the Framers of the U.S. Constitution enacted many of the Constitution’s restraints on government action because of the treatment experienced by the colonists under British rule.
Indeed, the famous case of Sir Walter Raleigh provided much fodder for Justice Antonin Scalia’s opinion for the Court in Crawford v. Washington, regarding the Sixth Amendment’s guarantee to the right of confrontation for testimonial statements:
The most notorious instances of civil-law examination occurred in the great political trials of the 16th and 17th centuries. One such was the 1603 trial of Sir Walter Raleigh for treason. Lord Cobham, Raleigh’s alleged accomplice, had implicated him in an examination before the Privy Council and in a letter. At Raleigh’s trial, these were read to the jury. Raleigh argued that Cobham had lied to save himself: ‘Cobham is absolutely in the King’s mercy; to excuse me cannot avail him; by accusing me he may hope for favour.’ Suspecting that Cobham would recant, Raleigh demanded that the judges call him to appear, arguing that ‘[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face . . . .’ The judges refused…and, despite Raleigh’s protestations that he was being tried ‘by the Spanish Inquisition,’…the jury convicted, and Raleigh was sentenced to death.[7]
Despite the pleas of Sir Walter Raleigh there is still no right to confrontation in England. These differences between American and British legal perspective led to an interesting divergence in legal thought during one of the key academic exercises of the weekend, which was a mock trial regarding gang conspiracy, argued by two distinguished lawyers, and presided over by an actual judge, and based upon a real case. The basic facts involved an alleged member of a gang who may or may not have been present during an attack on an individual in a park by gang members. At the original trial the jury was hung as to whether this member of the gang had been part of a conspiracy to commit murder. The Crown subsequently retried the case, and in the actual case won a guilty verdict. At the mock trial this same case was litigated to the crowd of British law students, lawyers, and judges, and the two American Pegasus Scholars. At the close of the case the Judge asked if anyone believed the accused to be innocent—and, both Pegasus Scholars voted for acquittal. The Judge generously inquired into the reasoning that led to a vote for acquittal, and the explanation hinged on the differences between British and American law for proving a particular mental state required to convict for the alleged underlying criminal offense.
B.The Shared Space: Tradition, History, and Collegiality
The four Inns of Court are a special, indeed, remarkable set of institutions, dating back centuries. And this specialness translates into a transformative experience when you walk past the walls that guard their physical space (and which must be locked once a year to maintain the Inns’ independence from local government). Walking off of one of London’s busy thoroughfares, the moment you pass into the Inns you feel a quietudeenvelop you, and the physical and spiritual presence of history surround you. You see barristers walking with colleagues, clerks hustling with large ‘bundles’ (legal pleadings and evidence), and the occasional tourist taking in this other-world environment. Gray’s Inn has spectacular lawns, Inner has the Pegasus symbol prominently displayed—the medieval symbol of wisdom—and shares an ancient church with Middle Temple, from which organ music could sometimes be heard, a preparation for the free performance given on Wednesdays. At Middle Temple you can dine or attend a lecture in the Hall, a place indelibly united with history and literature as the site of Shakespeare’s debut performance in 1602 of Twelfth Night. And in the splendid peace of Lincoln’s Inn you can visit the old Court of Chancery, which so influenced western literature in the form of Dickens’ Bleak House.
(Inner Temple, source:
But what makes the Inns of Court especially important, in addition to their substantial and lengthy history, is the fact that many Barristers’ Chambers are located within the Inns themselves. (In the photo above one can see Hare Court, home to Barristers’ Chambers, and part of Inner Temple Inn of Court.) What this means, practically, is that many of London’s barristers work within close proximity to one another, increasing the reality of a community of practicing lawyers.
When I began my placement at 7 King’s Bench Walk, located in Inner Temple Inn of Court (an Inn which counts Sir Edward Coke among its historical membership), I developed a deep appreciation for this shared community, working in a series of buildings that included ones from the 1600s.[8] In these shared spaces lawyers work independently, and yet together. While each lawyer is “independent” they nevertheless come together in “chambers” to share expenses, and the various costs of overhead associated with a law practice. However, while each lawyer is independent, depending on which chamber—called “set”—a lawyer practices from can convey a sense of prestige. Thus, while lawyers are independent they are nevertheless, to an extent, reliant on the perception of their set, which influences, among other things, whether solicitors will refer cases to a particular barrister for representation in court. In many regards then chambers operate similarly to U.S. law firms, and in fact, many of the same issues that American lawyers face are faced by their British counterparts, including, perhaps most importantly, whether a junior lawyer will be able to have a successful practice.[9]
But the pinnacle of this sense of legal community was reached in Edinburgh, Scotland, and Belfast, Northern Ireland. In these jurisdictions, all barristers work out of a single building. The image of lawyers in Belfast at long tables working next to one another, bundles of files everywhere, gives the impression of one seamless legal entity—a multitude of lawyers working on innumerable matters, but united figuratively and literally in a single place, a source unto itself of law. Unlike the American tradition of different law firms, offices, and spaces, these jurisdictions are intimately connected in a single, shared space, in close proximity to the courts, and usually close to the administrative and legislative functions of government, which as I was told by lawyers in these jurisdictions fosters community, including dining together, going to lectures as a group, and simply knowing one another.
FAIRNESS, JUSTICE, AND BRITAIN’S GUARANTEE OF REPRESENTATION
One area of the British legal system that seriously warrants American attention, and arguably adoption, is its approach to legal representation. While many lawyers celebrated the recent 50th anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright, which established the right of indigent defendants to have government funded legal representation in certain felony matters (later expanded to cover most criminal law matters), the reality is that the promise of Gideon remains elusive throughout our system. Public defenders are routinely overwhelmed, and in some cases have refused to represent clients given their already burdened caseloads, which raises serious Constitutional concerns about our country’s promise of the right to representation for all, irrespective of ability to pay, as embodied in our Nation’s Constitution.[10]
Putting aside the current problems confronting our own system, however, the British system arguably offers a more humane, just, and fair system for accused individuals, and is one that jurisdictions in America should certainly consider adopting.
A.The Right to Representation and State Funding
Similar to the United States, an accused individual in Britain has the right to representation, and the right to state funded representation if the individual is indigent. However, what is most incredible about Britain’s system is its concern for fairness and justice, in that even those with financial means are entitled to state funded representation. Thus, both the rich and poor alike have the right to have the state fund their legal representation, with the caveat that the more financial means at your disposal the greater your contribution to your own representation. This essentially means that everyone will be able to have representation, whether they can pay or not, and more importantly that wealthier defendants will bear a greater burden of their own legal costs, if they are able to pay for them. Finally, all barristers who practice in criminal law and who take on legal aid cases are paid a specific amount of money, depending on the complexity of the case.
Another incredible feature about the British legal system is that in criminal matters the accused has the right to choose who will represent them, and that barrister cannot refuse to represent them unless they would have a professional or scheduling conflict.[11] Thus, a poor defendant could select the most celebrated Queen’s Counsel to defend him, and under British law he would be entitled to do so. The reality of this feature of Britain’s criminal justice system was made apparent to me in Northern Ireland, where I had the opportunity to view part of a criminal trial. The accused was a regular person of no apparent significant financial means, yet he was defended by an obviously talented, experienced, and courtroom seasoned Queen’s Counsel. I later learned from the judge in the case that the accused had been acquitted of the criminal offense charged. In our country there is, in my view, no way, absent some incredible circumstances, where a hugely successful partner at a criminal law firm would take on the case of such a poor, petty criminal, especially if the only fee they would receive would be the one paid by Britain’s legal aid.
There is one more innovative feature of Britain’s criminal law system that deserves mention: it used to be that if an accused is acquitted of the offense charged then reasonably expended funds that the accused incurred in defending against the charge are repaid by the Government.[12] This tremendous feature arguably deters bad prosecutions, and most importantly signifies a respect for individual rights and liberties by recognizing that an innocent person should not be forced to pay to defend against an unjust prosecution. Contrast that with our American form of criminal defense where the innocent person acquitted at trial is faced with crippling debt, especially if the accused is from the middle-class.
The combination of these factors—state funded representation for all, in spite of the ability to pay, the right to select your legal counsel and have that counsel bound by your choice of representation, and the reimbursement of certain legal costs in the event of an acquittal, are hallmarks of a system of justice that demonstrates a commitment to justice, equity, and fairness, and should be ones that our own system should strive to adopt.