Friday 2 October 2009

Legal highs

Memoirs of a Radical Lawyer, by Michael Mansfield (Bloomsbury, 2009)

The title of Michael Mansfield’s autobiography is confusing. Throughout reading the book I was always wandering what exactly a ‘radical’ lawyer is. Then I started doubting the worth of the question. Isn’t it a bit like asking what a radical vet might be? Or a radical surveyor? Perhaps radicalism in vetinary medicine entails only accepting work from owners of radical pets, like Komodo Dragons or Great White Sharks. This definition of ‘radical’ seems to fit Michael Mansfield, who seems to be popularly perceived as radical because he represents radical clients. In Mansfield’s own words: ‘It all struck me as typically British: you show an interest or regard for other people and you risk of being branded a revolutionary’.

Luckily for Mansfield, he is very good at showing that those who are accused of being radicals are in fact less radical than they look. A bit like revealing a Komodo Dragon to be a dormouse, Mansfield was part of proving that the Birmingham Six, six young men accused of conspiring to blow up public houses in Birmingham in the name of Irish republicanism, were in fact merely associated with the IRA and had nothing to with the explosions. Then there was Sajid Badat, a co-conspirator of the shoe bomber Richard Ried. Badat was convicted of plotting to blow up a flight from Paris to Miami in 2001. Mansfield’s submissions in mitigation were based on ‘how Sajid felt “moral blackmail” to carry out the bombing, and how he was going through a turbulent time in Afghanistan’. He managed to completely divorce a young, angry man from his pent up nihilism and consequently, according to the judge, reduce his sentence by ten years. This was brilliant advocacy, but hardly radical.

Perhaps the fact that Mansfield represented these clients in the first place deserves some recognition of radicalism. These cases were extremely unpopular amongst the upper end of the legal establishment: individuals accused of terrorism, or infanticide, can expect to see many of the top QCs become ‘busy’ very quickly. But throughout the book it is clear that Mansfield’s client base is built upon his association with such cases (or otherwise eccentric cases like Mohammed Al-Fayed’s quest for an inquiry into the death of Princess Diana). Mansfield acknowledges that he carved out an area for himself, perhaps unconsciously, which allowed him a steady stream of work throughout his career. Perhaps I could believe Mansfield was a radical lawyer if I believed he had any political, as opposed to personal, sympathies with his clients.

The problem is that he is hard-wired into the political mainstream, and his ‘radicalism’ is utterly conventional. He is a keen environmentalist, believes passionately in animal rights, and has established a charity that trains young lawyers to assist attorneys in the United States, working on capital punishment. This charity has now become a rite of passage for any young lawyer wanting to work in ever growing practice area of Human Rights. Even during the chapter on his work representing striking miners in the 1980s, it is clear the Mansfield is, for all intents and purposes, politically divorced from those he represents. Tellingly, the organisation he established following his work with the miners was called the ‘Legal Observers Group’. This charity still exists today sending lawyers to attend demonstrations to give out legal advice on arrest. Although he always immerses himself in the stories of his clients (believing that it is the only route to a coherent defence), politically he remains an ‘observer’, stepping in to help those involved in the real political mess once the dust has settled.

But Mansfield’s ‘radicalism’ should not be dismissed too readily. It is arguable that he has played a part in some of the major paradigm shifts in the UK justice system. These changes come about through lawyers like Mansfield who remain ‘epistemically critical’ of the prosecution process; those who demand that the mechanisms for finding truth employed in the courtroom are always the best that they can be. It is during his contributions to such scepticism that he lands his most powerful blows to the powers of the state. His work on cases involving ‘confessions’ made in police custody during the early 1980s had an influence on the passing of the Police and Criminal Evidence Act in 1984, which introduced the compulsory audio recording of police interviews. This led (funnily enough) to a significant reduction in such confessions being adduced and used during the prosecution. He is famous for his attacks on forensic science and was a significant contributor to current air of justified cynicism that now surrounds the use of DNA evidence. He also argues against the current system of disclosure, under which the state has the majority of the control over the materials that the defence team of an accused may have access to. All of this works well to highlight how subtleties in trial procedure have weighed the trial in favour of the state. Mansfield’s unrelenting approach to epistemic enquiry, in the context of the legal profession, is perhaps the most important tenet of his ‘radicalism’.

Mansfield also displays a passion for moral argument, which is likely to become rarer and thus considered more and more radical over time, as more and more regulation creeps into the courtroom. It is unlikely that the barristers of tomorrow will dare to talk with any normative authority for fear of missing some vital detail and finding themselves debarred. Future readers of Mansfield’s memoirs could also be shocked at how he joked with an Iraqi terror suspect that the judges at the Old Bailey have decided to skip his trial and execute him outright (apparently the suspect found it hilarious) or that he decided to play graphic images of war zones to a jury during a separate terror trial. Mansfield’s style of representation seems doomed in the wake of impending quality assurance checks for advocates, which will undoubtedly frighten the majority of young lawyers into delivering dehumanised and ritualistic representation.

In the 2008 Pupilage and Training Contract manual, a guide given out by the Law Society to aspiring lawyers at the beginning of their legal training, there is a section on ‘the top 10 most important qualities to being a lawyer’. Right down at number 10 is ‘a passion for social justice’. To give some context, ‘an enjoyment of dressing up’ came in at number 9. This illustrates the projection of the legal profession, which is currently becoming weighed down in its insistence on industrious and efficient justice at the expense of big ideas. In contrast, at the heart of all Mansfield’s representations is a genuine passion for his own brand of social justice, elements of which are against the grain. Yet Whilst Mansfield’s legal career has challenged specific orthodoxies effectively, and bought about real change in the way individuals are prosecuted, there is nothing significantly radical about being chosen to represent radicals. It would be worrying if, in this climate of pragmatism and regulation, the legal profession settled on Mansfield as the benchmark of a ‘radical lawyer’.

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