Geoffrey Rivlin, Q.C., was an excellent barrister. I know this because I've listened to some of his advocacy. His quieter approach has something to commend it. It's easy to criticise with the benefit of hindsight, but you could argue that at the 1986 trial Rivlin succeeded in his essential task of establishing reasonable doubt. If so, then the blame is to be apportioned among the jury, trial judge and prosecution rather than the defence barristers.
Yet maybe Rivlin's strengths were the seed of Jeremy's downfall? I am not a lawyer, but I would imagine that there are two essential strategies that a criminal advocate can adopt and which run through every criminal barrister's mind in cases of consequence like this one, though he may not say so or think about it in so many words:
(i). Innocence.
(ii). Reasonable doubt.
This is not a dichotomy. In practical reality, there is considerable overlap between the two and most trial strategies I expect include something of both.
In Rivlin's defence of Jeremy to the jury, he started with the plea of innocence (words to the effect, "Jeremy did not kill his family"), then in almost the same breath he switched over to reasonable doubt (words to the effect, "You can only convict on good evidence"). The question is where the emphasis is or should be.
I would take the view that the 'reasonable doubt' strategy is the weaker of the two, though it can be the optimal strategy in some circumstances. Personally, if I were an innocent man accused of something, I would expect my lawyers to be declaring my innocence to the court at every opportunity and I would regard anything less as rather unprofessional. However, there are occasions when lawyers have to be careful about what they say and do.
For instance, we think that Rivlin should have been more aggressive with the family and alleged that the silencer evidence was planted, but Rivlin may have quite fairly taken the view that, even on the balance of probabilities (which is the accused's onus when refuting criminal evidence), this would require a high bar to be met and would be risky for that reason. The defence case theory that Sheila put the silencer back before killing herself sounds a bit fat-fetched, but there again, Sheila was a paranoid schizophrenic and the defence are saying she killed herself in a state of psychosis, and against that background, it doesn't seem so far-fetched. And remember, Rivlin did not have to prove it happened, he only had to convince the jury that it was a reasonable possibility. If the judge then misdirected the jury by dismissing this possibility out of hand, giving wrong information about Julie Mugford's criminal record, and misrepresenting the blood evidence, etc., that is not Rivlin's fault.
I think it is quite likely that in Rivlin's case he was naturally inclined towards 'reasonable doubt' defences anyway, as it comports with a more detailed and forensic manner. In other words, he wasn't the type for extroverted theatrics and pleas of innocence, but maybe that is what Jeremy really needed in his lead counsel and the more detailed/forensic approach should have been reserved for junior counsel?
Did Kingsley Napley get it the wrong way round in selecting Rivlin and Lawson? It's pretended that Rivlin was a deliberate choice and Wilkes in his book claims that Rivlin's understated approach was chosen intentionally, but wasn't the first choice for lead counsel George Carmen, a barrister in the more Rumpolean mould, like Michael Mansfield? We shouldn't over-do the generalisations, though: successful barristers like Carmen and Mansfield still have to dig into the detail, and Carmen especially was quite forensic. They can't just wing it with theatrics alone: their extroverted performances, full of personality, are the end result and a feature of their personalities rather than something they rely on.
Carmen would have had some fun with the Bamber case and you can imagine him giving the relatives a hard time about the silencer and bringing up the 'cuckoo' taunt. I would have certainly asked them about that. My first question to Ann Eaton: "Are you familiar with the word 'cuckoo', Mrs. Eaton?"
I do think Jeremy may have been ineffectively represented at trial, but the problems were mainly to do with pre-trial preparation, especially disclosure, which is a bit more the domain of the solicitors than the barristers. This is a topic that is deserving of a much longer and more thoughtful piece, which I may do if and when I get round to it. Any discussion of the effectiveness of legal representation in an English context would, I believe, have to begin with the test in R (Aston) v Nursing and Midwifery Council [2004] EWHC 2368, which sets out stare decisis a simple test of competence in advocacy. We would then have to consider, among other things, Paul Terzeon's evidence to the 2002 appeal and any comments that Jeremy has made about his defence.
