Mountford Chambers’ Edward Henry KC won the title of Barrister of the Year at the Legal Business Awards this past September. LB‘s disputes correspondent Isabel Caine spoke with him to hear about his process, the art of cross examining, and his work on the two major cases that won him his trophy.
I’ve been very fortunate to have two of the most remarkable cases that any barrister could hope for: the Andrew Malkinson appeal and representing the subpostmasters who were destroyed by the Post Office in the Post Office Horizon inquiry. Those clients, Andrew and the subpostmasters, are remarkably wonderful people. It’s a huge privilege and honour to represent them. I don’t think I can put into words how important their interests are to me, particularly given the monstrous injustices they suffered.
The injustice that the subpostmasters suffered will never be corrected unless the government is forced to act. I think my approach to the Horizon inquiry was the same as it would be for every other case: the preparation had to leave no stone unturned. But what was very, very important – apart from getting to the truth – was communicating the plight and suffering of the subpostmasters to the wider general public in a clear, direct, and memorable way. We have seen so many public inquiries that have dragged on for years with ineffectual results for the victims of state malpractice. So, what was vitally important in advocating for the subpostmasters was to try and grab the attention of the public at large to make it memorable, intelligible and powerful to them so that they would be outraged.
In preparation for the Andrew Malkinson case, I did dry runs, with hostile questions being fired at me. We could not predict the outcome. So, in the run up to the appeal, I entered into intensive questioning. We were anticipating that I would have a hostile court: I was trying to reopen the conduct of the original trial. Since it was clear that the Respondent was not going to oppose the appeal on the basis of DNA evidence alone, we feared that the Court might question whether it was necessary to go back to the original injustice. In the end, thankfully, the Court of Appeal received my submissions with great attention and interest, but you have got to anticipate and grasp difficulty in advance. Constructive pessimism, I suppose!
It is an immense responsibility. It is also a huge privilege, but, as with any piece of advocacy, you only have one shot. You can’t ask for it to be replayed, and we work under tight time constraints. You have to be very selective and very certain of the points you are going to make. You may be able to develop the same themes with other witnesses, but the fact is you are always judged on the outcome of your efforts, and whether they were properly and fairly executed. It’s important not to take a cheap shot. It’s vital that you are fair but firm to the witnesses involved.
I hope this isn’t boastful, but people retain me on the strength of my advocacy, and my ability to communicate their concerns to the tribunal. I’ve never really specialised in one particular area. I’ve practiced in white collar fraud at a very high level, serious organised crime, public inquiries – but I’ve never actually had a niche practice in one area. I get instructed in difficult and demanding cases because of my track record. So, I might be brought in, for example, because people require my skills as a cross-examiner. I think the common denominator underlying silks at my stage of the career is that you are chosen because of your experience and the level of judgement that you can deploy in any difficult situation.
I don’t feel qualified to advise individuals on whether to remain generalists or to sub-specialise. The Bar has seen increasing specialisation and sub-specialisation, which would be alien, for example, to one of my mentors – the late Lord Griffiths, who was a generalist. But what I would advise is that people need to read the Greats. They need to understand the way in which past masters of the craft have conducted cross examinations. They need to read, for example, how Edward Carson or Sir Patrick Hastings cross examined, how the giants of the past addressed judges and juries – that’s never wasted, because it acquaints one with geniuses of the Bar from previous ages.
The art of cross-examining someone – that can be taught. Obviously, you make allowances for the way in which social and cultural norms change, but it can be learned from looking at how it was done by the best practitioners of the past.
There is a right way to do it – or an optimal way to do it – and there is a wrong – or sub-optimal – way to do it. I learnt advocacy in the English tradition, by reading Munkman and Du Cann, but was also very fortunate to be trained by American lawyers from the National Institute for Trial Advocacy. In the early 1990s, I also spent quite a bit of time in America, and I would go to the federal courthouse and watch how US Federal attorneys conducted their cases. This perception that English and American styles of advocacy are different is perhaps overstated. Where the Americans really have the advantage is in how they have analysed the techniques and can teach them effectively.
I see advocacy as a transferable skill, provided that one is supported by knowledgeable, specialist juniors. It’s something that can be utilised in different areas of practice. The most recent example of somebody who reached that level was George Carman QC, who worked across crime, personal injury, civil and commercial fraud and defamation. So, I very much see advocacy as a transferable skill, provided one has the necessary support.
Juniors must be involved in advocacy. I think that the Lady Chief Justice’s Practice Direction on this is especially important, and I’ve already followed it. In a recent terrorism application for leave to appeal, I argued ground one and my junior argued ground two. We succeeded in obtaining leave to appeal the conviction later this year. Juniors must be seen on their feet to enable career progression. And to avoid the pitfall of a successful junior who, when elevated to silk, does not have the requisite amount of experience conducting advocacy themselves.
I couldn’t possibly have accomplished anything in the Post Office Horizon inquiry or the case of Andrew Malkinson without the immense and outstanding support of those instructing me – and my juniors Flora Page and Max Hardy. It’s very important, in my view, to work collaboratively and to test ideas, working in conjunction with others. The great enemy at the Bar is complacency, and there can’t be any time for it.
Edward’s reading list:
The Art of the Advocate, Richard Du Cann
The Technique of Advocacy, John H. Munkman
Modern Trial Advocacy: Analysis and Practice, Steven Lubet
Cross Examination – Science and Techniques, Larry S. Pozner and Roger J. Dodd
Edward Henry KC is instructed by Hodge Jones & Allen in the Post Office Horizon IT Inquiry and was instructed by APPEAL in the case of Andrew Malkinson.