What happens when Barristers cross the line?

Added: 2026-05-10

[00:00:00]So, how far can barristers actually push it? Well, what's brought this on? Well, you may have seen in the news that people are talking about an unprecedented step in that a barrista is about to be prosecuted for contempt of court. And what gave rise to this? Um this was in relation to the uh Palestinian um action people uh breaking into that factory as it eling speech the barrista had been told by the judge you can't express what the motivation is so you mustn't say oh well you know this is all sort of a protest against Israel because Israel is doing and also you can't mention to the jury that they have an absolute right to acquit in accordance with their conscience regardless of the evidence.

[00:00:54]So, what I'll do is I'll give you a little bit of brief background about that and then like I'm not going to get into I'm not going to express any of my own opinions in this uh but I'll be very interested to see what you think in the comments, but I'll sort of explain the sort of pros and cons and the justifications and rationalizations for, you know, the way we do things in court because it's very interesting. we often say about trials. Trials are not a search for the truth. Um, and we know that because let's say for instance, somebody confesses to something. Um, if that confession was obtained due to threats or inducements, the law says section uh 76 of PACE says it must be excluded, quotes, notwithstanding, it may be true. So, obviously, we keep that out. Similarly, you couldn't be on a jury if you'd actually witnessed the events, even though you'd probably be in the best place to decide what actually happened. I mean, there's a a quote where um I don't know if it's apocryphal or not, where somebody a judge was getting very frustrated with various objections and said, "Am I not entitled to hear the truth?" And the barristister said, "No, you're entitled to hear the evidence." Um I mean, that does actually sum it up. So, first of all, um what about sort of explaining motivation?

[00:02:02]Well, the thing is motivation isn't actually a relevant condition, a relevant factor for what the jury have to consider generally. Now, it can be in some situations. Say for instance, you're up for criminal damage because you broke a car window, but your justification is, well, I did this because, you know, a dog was in there suffocating.

[00:02:22]Well, that's not really your motivation.

[00:02:23]That's your rationalization. And in that case, you'd have a defense of what we call necessity. Necessity is where you commit a crime, but in order to prevent a bigger suffering, it doesn't actually have to be a crime, by the way, the thing you're trying to prevent. Um, it also doesn't matter if there are alternative ways of doing it. So, to go back to our classic dog example, the mere fact you could have called a locksmith out, um, and they could have got there quite quickly. You still in saying, "Well, no, I didn't want to do that. I just broke the window." Also, it doesn't have to be your efforts don't actually have to be successful. uh you just it's just your uh explanate, you know, that's that's that's why you're doing it. But that is slightly different because there you're raising a defense and the defense is one of necessity. And like I say, it's a four-part test which I've just gone over. Uh prevent a greater wrong. Um you know, acting with your sort of, you know, with a clear conscience. Uh like I say, it doesn't have to be no other way of doing it, but the idea is you're doing it prevent a greater wrong. But that actually goes to the offense, the elements. Whereas, let's say you're up for assault and you just say, "Look, the reason is the guy's really really annoying." Well, that's not a defense to it. That's not a defense. Um, even if there were being um, you know, provocation, provocation is it's a partial defense to murder. And I'll come back on to that if you remind me my one House of Lords case as it was back then, that was all about provocation. Uh, so that you know, those background facts be relevant. But generally speaking, uh, it's got to be something that is actually relevant. Now whether something is capable of amounting to a defense of necessity is a matter of law for the judge. The judge can say well no even taking it highest this wouldn't amount to a defense this isn't something where necessity applies.

[00:04:02]But if they get over that threshold if the judge says this is capable of amounting to a defense of necessity it's up to the jury as to whether or not it does amount to a defense of necessity.

[00:04:12]But in this particular case the judge has said well look none of your reasons for doing this are actually relevant.

[00:04:18]The only issue here is did you commit criminal damage? Did you commit GBH and why you did that? That might be relevant in mitigation when it comes to any possible sentence if you're convicted, but it's not relevant at this stage. So, that's one element. What about the telling juries? They got a right to a quit. I've done a couple of videos on this and if I remember, I'll link to a sort of fuller one um in the description, but this is from a case called Crown and Pen and Me.

[00:04:44]uh pen and me were Quakers and they were preaching in the street at the time. Uh such things were illegal. It was an unlawful assembly. So they were duly prosecuted. That said, if there's more than five people assembling in the street and preaching or talking or doing any sort of public thing for public order reasons, that is an offense. So they were prosecuted. Now it's often said that the judge penalized them for, you know, saying not guilty. That's not technically true. What actually happened was the jury initially came back and said we find the facts that the prosecution set out are true. They effectively return what used to call a special verdict, a narrative verdict, which used to be sort of relatively common back in the old days. The jurors would say this is what we find as a matter of fact and then they would apply the law to that or sometimes a judge would apply the law to that. I mean when I do my I'll do a thing on my famous you know the cannibal case that I'm sort of quite obsessed with and I want to write the screenplay about because um you know that that that sort of featured um in that a little bit but this particular because they just gave a narrative verdict but then they wouldn't convict and then eventually being lent on they did say well okay all the offense elements of the offense approved we we convict um but I I'll talk about that on another occasion it's quite fascinating um so where were we oh yeah so basically in that case they came back and said we find that all the elements, you know, they were there, there were more than five of them and they were preaching. So just said, okay, so what is your verdict? You know, have you found this to be an unlawful assembly? So they sent them away. They came back said, "Yes, we find this was an unlawful assembly." And the judge said, "Well, okay, having found all the elements approved. What is your verdict?" And it's the fact they wouldn't return a verdict that he effectively, the judge said, "Right, that's it. I'm banging you all up without um, you know, warmth, you know, heat, light, or food." Um, so basically just like, you know, being in any crown court these days. Um and he fined them.

[00:06:35]Uh he eventually released them after two days, but he fined the jurors. But one guy said, "Um Mr. Bushel said, "I'm not paying it." No, I you know, you said I can return a true verdict going to the evidence. Um I think on this they shouldn't be convicted. So that's and eventually that all went off to appeal and the court said, "Look, you know, there is a right even if all the elements approved, the jurors can uh acquit in accordance with their conscience. However, you're not allowed to tell jurors that as a barristister in your closing speeches. Now, I do must confess, and I suppose I'm expressing an opinion here. I do find that a little bit arbitrary because it's it's purely random as to whether you know about this. If you've seen my videos, then you will know you have a right to do that.

[00:07:16]And also, uh that jurors have a right to return a not-uilty verdict at the close of the prosecution case. they don't have to hear the defense evidence if they think well the crown haven't um proved to the requisite standard so that we are sure so there's nothing the defense need to say about this and again that's something that jurors aren't routinely told so in this particular case the barristister though despite being you know the rule is we're not allowed to say this he he said it um so that's what he's in breach of it's like you know whatever the underlying arguments one way or the other are as to whether jurors should be told and I I do I do think because it's quite random I mean you get people in America wearing those asked me about jury nullification t-shirts but it's the same rule they can wear them generally but they can't wear them in the precincts of the court and it's a bit like when that last got done for holding up a sign although they actually said uh no she was entitled to do that because she was on the pavement she wasn't approaching jurors she wasn't specifically referencing any case so she was just stating a fact but obviously that's different you know your article 10 rights as a civilian are obviously a lot less restricted than they are as an well actually barristers aren't officers of the court solicitors But barristers aren't rather weirdly. But we still our primary duty is to the court. So in this particular case, he went directly against the judge's ruling and that is why he is being prosecuted for contempt.

[00:08:33]I mean I suppose theoretically in some ways he's lucky. I suppose a judge could have declared a mistrial and then done what's called a wasted cost order. It's like okay abandoning this trial. We're going to have another trial, but all the wasted cost to the public purse of this, you know, in terms of prosecution, you know, fees and, you know, legal aid and just the cost of running the courtroom.

[00:08:52]Um, you should pay that, Matey. Uh, they didn't in this particular case. They went on, the jury came back. Um, and generally speaking, they convicted the guy on GBH. He got done for section 20, not section 18. So, that's the reckless, not the intentional one. Um, but they were all convicted. Uh, so there was no mistrial, but yeah, he's been prosecuted. Um, no. So, I'll I'll watch that and I'll report back because it is very interesting. And yes, like I say, he'll no doubt argue article 10 rights, but arguably they don't overrule the rules of the court. So, let me explain some other rules about what we exclude because we exclude lots of evidence like I say. Um, now the argument is you should be allowed to say what you want to the jury and leave it up to them. But say for instance, uh, previous convictions of either defendants or indeed uh, witnesses. Generally speaking, I mean, a lot easier to get in now when it comes to previous convictions of defendants than they used to be in the olden days, but we still sometimes exclude them on the grounds they're more prejuditial than probitative. Look, you know, he might have a string of convictions for burglary up his arm, but now he's up for sort of, you know, GBH. Why are those relevant? You know, just sneaking into premises at night and swiping things is completely different to attacking somebody. So, the mere fact they've got a criminal record. So, that wouldn't normally go in. So, but what if in a closing speech a juror, you know, a barristister said, "Well, one thing you haven't heard is that he's got loads of previous convictions." I mean, then we'd certainly get dumb for contempt of court. Also, there's a similar thing about in raso cases, that's the rword, grape, as you know, the algorithm insists and serious offenses. Um, in those cases, generally speaking, you're not allowed to aduce any evidence as to the complainant's previous sexual history with anybody other than the accused. Because the idea is the mere fact that somebody, you know, as we say, women are judged on their past, men are judged on their future. But, you know, the mere fact that somebody, you know, might, you know, enjoy themselves and might go around and might have had sort of lots of consensual encounters with people, that's irrelevant to what happened with this person. But, you know, it used to go in um you know, that's why the rule came in. And the argument was that was just prejudicing a jury because there sort of, you know, there were you you had to sort of be of a certain virtuous standard before you could be the perfect victim. But what if somebody said, well, you know, this is clearly something the jury might find relevant. So, regardless of what the rules of the court say, I am going to allude to this. Then, of course, you'd get dumb for contempt. So, that's the argument. Do you throw everything in? Do you let people allude to anything? or do you have these restrictions? Um, you know, is there a good reason for these restrictions and what should be the penalty for people breaching them? So, that's the idea basically that look, we have these rules and whether you agree with them or not, one of the things you have to do as a barristister is um abide by them. So, I'll watch that. So, uh what else I was going to talk about? Uh oh yeah, my one House of Lords case because that's about provocation. Um, in some American jurisdictions, it's a defense to just their equivalent of common assault. It's not serious assault, but like, you know, just giving somebody a bit of a slap or a punch.

[00:11:52]It's a defense that just immediately prior to that, somebody spoke, you know, words that would wind you up. You know, fight the fighting words doctrine. And it's interesting because I have, I must confess, I've always thought this should maybe be a sort of you were cruising for a bruising defense, you know, not not generally. I'm not one for big, you know, punch-ups in pool holes or anything, but, you know, when you see people deliberately winding people up and trying to provoke them. I mean all interestingly um it's a rather weird thing that with breach of the peace people can be arrested for breach of the peace just because somebody's having a go at them.

[00:12:24]Now arguably I don't think that is correctly interpreted the law there's a call called Redmond bait um which is the one that you know the freedom to be non-offensive is not worth having and all that and that was somebody he was preaching and all the crowd getting riled up and they're going to beat him up. So the police arrested him to prevent a breach of the peace and he said well no I should be allowed you should be arresting them and that's what the court of appeal came back and said actually yeah um you know people are allowed to exercise their freedom of speech and the mere fact that other people get rattled that's not a reason for nicking them but we have seen that now more and more with people going like you know your presence here is provoking these people and while you generally have a right to be about and be yourself um you know it's kicking off leave the scene I suppose the argument would be it's a bit like you know if you wore a Celtic in a ranger pub or something like that. Um but you know that that's the general thing. So anyway, so where were we? Oh yeah, provocation. It's partial defense to murder. So I our client now I was just second junior on this one. I was only drafted into this because there was lots of peripheral nerdy research that might crop up. So I was sent off to research like the laws in various other common law jurisdictions. And I remember actually I found there's a reported case from Malta. I remember actually when I that is often cited but when I actually looked at the law report the quotes in all the textbooks were getting it wrong as to what actually the judge said in that case. So it wasn't quite the authority for what people said. So you know it's amaz what you do find out. But anyway um just to explain so my guy um he was sat with a friend and they were all drinking. Um, my guy was like a handyman, you know, or jobman, but he was with a friend who he had previously lent all his tools to, but his tools, those tools had then been stolen. So, it was in pretty dire straits because he'd lost his ability to earn an income. And the only thing he had left was like one rusty screwdriver. So, they were all drinking. And then the guy actually sort of admitted that actually he'd sold the tools just to buy alcohol. Uh, they got him a big row. Um, my guy picked up the screwdriver. Bang. So he was he was prosecuted he was prosecuted for the for maida and he was convicted but then went to the court of appeal and said like this is provocation and the court of appeal actually agreed and they said no this is not mida this is just merely manslaughter because the provocation but then the prosecution appealed that and that went all the way to the house of lords and by the time actually I mean I in the in in the actual appeal itself it was just scary I think it was Anthony who was leading and he was just amazing because we had like these seven bundles of documents and It's very in those days the the the the the House of Lords as the sitting as the court was the judicial committee of the House of Lords. So it wasn't technically a court and you just went down this corridor to this room and they were all sitting around just lounging around in lounge suits. You have to all robe up and everything but it's really it's very dynamic a house of lords stroke supreme court as it would be now case where it's very it's like a dialogue. It's like, well, what about this? Take us to this.

[00:15:18]Well, what about this? And what's amazing is how people go, oh, yeah, yeah, that's in bundle six, tab 19 behind page 377A. You know, it's just scary how good people were. So, we did the um did all the submissions, but when it comes time to actually get the result in those days, you would walk into the chamber of the House of Lords and they would effectively vote. They'd do it as a vote. Uh, you know, it's like there were five of us and we voted three to two that the appeals, you know, the appeal succeeds or fails or whatever.

[00:15:46]but they give you the um decision in advance. So, of course, I just opened it instantly. I'm on the phone to the solicitor. I skipped to the end and it just said, "This appeal is dismissed."

[00:15:57]Wow. So, I'm just about to say, "Oh, well, sorry. Yeah, he's going to be bang banged up for life." Blah, blah, blah.

[00:16:02]And then my lovely prosecutor said, "Alan, this was our appeal. That means you've won." So, oh yeah, cuz I'm so used to being like the respondent in appeals. Like I said, I've never been a House of Lord's case. The other interesting thing is when you go in the chamber, you cannot hear anything. The acoustics are terrible. And that's why when you think they're actually asleep, there's little speakers in the chairs and that's what they're actually listening to. Because when you go in there, they give you a script so you know what everybody's going to say and you've got to stand on this plinth while they announce it and then you step backwards and you bow and they say be careful when you step back that you don't just disappear off you know the edge of the platform and all that sort of thing. So it was very very you know it was very interesting and exciting.

[00:16:39]Um, so yeah, my one House of Lords case, which unusually about two years later, the House of Lords overruled it. They never do that. They never go behind their own decisions. So yeah, briefly were in the textbooks. It's like, wow, key case. This is great. If you Google this, you'll see my name somewhere in it. And now it's like, no, no, forget all that. That we got the law wrong. Um, so you know, that was quite an interesting one. Anyway, but there you go. As always, hope you found that vaguely interesting, vaguely accurate, vaguely informative. And like I say, I'll be very interested in your opinions on this and I will report back when we know more about it. So where am I today?

[00:17:11]I am at a place called Puran Round and I'm going to spin round. This is a placen in Cornish which means playing place because it's where they used to perform all the old mystery plays. Uh now all the archaeologists out there might be saying hm this looks suspiciously Roman anstroke iron age and there is actually a theory that perhaps this started life as an iron age enclosure and then was modified to be a Roman amphitheater.

[00:17:46]Um and you know the the I don't know which they've done a lot of archaeology here but it's a bit like you know that stone circle I like uh Bosan where they I said they do the Gorsed that's the Cornish equivalent of the anford. Well they also do that here sometimes and this thing here this is the the devil's frying pan they call it and you'll see a little trench and a hole and what they would do is um in the plays that's where the devil would pop up in the mystery plays. Um, so yeah. So I mean I should do my usual walk around it wides three times. I would go up on the embank on on the bank. Um, but it's actually quite tricky because there's only like two places you can sort of readily access it. Um, and I don't particularly fancy doing that uh with the tripod. But if I come here and just uh set up again and like spin that round, you'll just get sort of a rough idea. So, like I say, it's got the classic sort of two entrances, uh, which is sort of very, very Neolithic stroke iron energy. Um, it's just got a bank. Now, actually, when you you can walk around the outside of this, but I don't think it's a ditch.

[00:18:57]I just think it's the fact that it's a pavement that it's a path that's a lot of people have walked on and they've effectively turned it into a hollowway.

[00:19:03]Oh, face track enabled. Stop that. Oh, I'll leave it there for now. Um, so I don't think it's a henge. I mean, there aren't many henes in Cornwall. I mean, the used there was only one, but now we found a couple of other ones. Um, interestingly, the definition of a henge, it is uh a circular enclosure with uh at least one or more entrances uh with a bank and an internal ditch.

[00:19:27]So, the interesting thing is although all henes are named after Stonehenge, Stonehenge itself is technically not a henge because it has an external ditch.

[00:19:36]Uh, so there you go. a little bit of nerdery. Um, but uh yeah, sorry again.

[00:19:40]Sorry for the der of videos. Like I say, just been busy, busy, busy, busy. H work getting in the way uh and everything.

[00:19:47]But I do enjoy doing these little videos for you. So, while I'm out and about doing my shopping, I thought I would just dive in here and um do you this quick video. See you next time.