Welcome to this edition of the The Advocacy Tutor, our monthly legal insights bulletin.

We open this issue with our Courtroom Advocacy feature, which focuses on the ongoing US trial of Sean “Diddy” Combs. We analyse the defence closing speech delivered by Marc Agnifilo, considering the arguments, the tone adopted, and the ethical issues it raises. At the time of writing, the jury have retired to consider their verdicts.

Our Spotlight On feature usually highlights lawyers practising in England and Wales. In this edition, we reached out to Professor Akin Adepoju, an academic, US federal defender and advocacy trainer, for his reflections on effective advocacy and how British barristers are viewed by US lawyers, amongst other things.

In Law in the News, we cover APPEAL’s report on joint enterprise prosecutions and a recent judicial rebuke in a remote hearing, both of which raise questions about fairness, public confidence, and courtroom standards.

Coverage of two linked appeals currently before the UK Supreme Court: R v BDN and R v ABJ. Both raise significant questions about the compatibility of section 12(1A) of the Terrorism Act 2000 with freedom of expression under Article 10 of the European Convention on Human Rights. We set out the facts, legal arguments, and the certified questions now before the Supreme Court. This is a case that we will be following with interest.

P-Diddy Trial – Defence Closing Speech 

Introduction

This month’s advocacy spotlight focuses on the high-profile federal prosecution of Sean “Diddy” Combs. Closing arguments were delivered by counsel Marc Agnifilo, a very well-known and well-regarded United States attorney. The seven-week trial in the Southern District of New York centred on allegations that Combs directed a criminal enterprise involving sex trafficking, narcotics distribution, and violence, all underpinned by federal Racketeer Influenced and Corrupt Organizations Act (RICO) charges.

Summary of the Indictment

Prosecution Case and Witness Evidence

The prosecution’s case presented Sean Combs as the orchestrator of a pattern of criminal behaviour that spanned more than a decade. Central to the prosecution theory was the use of wealth, influence, and a network of employees to facilitate and conceal a range of unlawful activities, including coercive sexual encounters, known as “freak-offs”, drug distribution, and acts of violence.

A key piece of evidence shown to the jury was closed-circuit television footage from the InterContinental Hotel in Los Angeles in 2016. The footage showed Combs dragging his partner, Cassie Ventura-Fine, by the hair along a hotel corridor. The incident followed her refusal to participate in a group sex act with a hired escort. Ventura-Fine testified that after this, Combs demanded $20,000 from her mother, threatening to publish intimate recordings if payment was not made.

Ventura-Fine also testified about a prior episode in which she obtained a second “burner” phone to communicate privately with the musician Kid Cudi. Combs discovered the phone, became enraged, and drove, along with Ventura-Fine’s bodyguard and her assistant, to Cudi’s home. Cudi later confirmed that his Porsche was destroyed by fire shortly after Combs allegedly vowed to “blow it up.”

Other evidence included travel logs, bank transfers, and text messages documenting arrangements for escort travel, payments, and drug procurement. Former assistant Capricorn Clark described being detained and interrogated for days during an internal jewellery theft inquiry. 

“Jane Doe” testified that she was coerced into sex acts while under the influence of narcotics, which Combs or his staff supplied.

The evidence presented arguably established a pattern of coercion, sexual exploitation, and violence operating under the direction of Combs.

The Defence Case

The defence case was notably brief, lasting just twenty minutes. No witnesses were called, and the defendant did not give evidence. Instead, defence counsel relied solely on three written stipulations—agreed facts jointly submitted by both parties—before formally closing the defence case. The brevity of the defence case contrasted starkly with the seven weeks of prosecution evidence, and signalled that the defence strategy would be to on attack the credibility, coherence, and sufficiency of the prosecution’s case.

Defence Closing Speech – Core Themes

In closing, defence counsel argued that the government had mis-characterised consensual and personal conduct as criminal. He denied that there was any structured “enterprise” and asserted that the sex acts described were private, voluntary encounters rather than trafficking. The violence described was, in his framing, the product of dysfunctional personal relationships—not commercial coercion. He also suggested that Combs had been unfairly targeted because of his celebrity status and lifestyle.

The Closing Speech lasted 3 hours and 49 minutes. While some parts of the closing speech were effective, other aspects raised concerns from a professional conduct perspective. Several statements would likely have drawn judicial criticism in the Crown Court of England and Wales, either for lack of evidential foundation or for the use of inappropriate tone or content. The broader discretion available to defence counsel in U.S. federal trials is evident. 

1. Advancing Illogical Arguments

In his closing speech, defence counsel sought to reframe the so-called “freak-offs” as expressions of affection, telling the jury:

“What the Government keeps calling ‘freak-offs’ were, in truth, romantic adventures between consenting adults, expressions of love, not trafficking, not crime.”

This characterisation was fundamentally inconsistent with the evidence put before the court. The prosecution presented a large volume of material indicating coercion, commercial arrangements, and violence:

• The complainants of sex trafficking described being compelled to participate in “freak- offs”
• CCTV footage shown to the jury depicted Cassie Ventura-Fine being kicked and dragged by her hair after trying to leave a “freak-off", imagery clearly incompatible with the notion of romance.
• Delta flight records, burner-phone communications, and financial transfers presented a picture of systematic, pre-arranged sexual encounters facilitated through travel logistics and payment.
• Ventura-Fine gave graphic evidence that the defendant instructed a sex worker to urinate on her, conduct not readily reconcilable with the concept of consensual or affectionate interaction.

The purpose of a closing speech is to advance the defence’s case theory in a credible and persuasive manner. Instead, counsel’s re-framing of the facts required jurors to disregard direct, disturbing visual evidence and a body of corroborated testimony. This was a mis-conceived strategy. 

Once counsel appears to mis-characterise the obvious, jurors may begin to doubt the integrity of all counsel’s remaining submissions. Remember, your credibility as an advocate can be the very thing that keeps a jury’s minds open to the merits of your case.

A More Effective Approach:

Rather than attempting to re-label the encounters as “romantic”, counsel might have better served the defence by focusing on those limited aspects of the evidence that supported voluntariness, or by highlighting gaps in the prosecution’s proof of coercion or intent. By avoiding hyperbolic or implausible characterisations, counsel would have preserved more credibility with the jury.

2. Inappropriate sarcasm and humour

Counsel mocked the government’s case against Combs by characterising it as overreach. He suggested that hundreds of federal agents raided Combs’ residences in Miami and Los Angeles merely to seize "hundreds of bottles of baby oil and Astroglide lubricant."

“I guess it’s all worth it because they found the Astroglide. They found it in boxes, boxes of Astroglide taken off the streets. Whew, I feel better already. The streets of America are safe from the Astroglide!”

“Way to go fellas, you guys just do you. They took Astroglide and baby oil and that is the evidence in this case.”

Given the gravity of the allegations, the defendant potentially faces life imprisonment, and the serious psychological and physical harm allegedly suffered by the complainants, this attempt at humour was entirely inappropriate. It trivialised both the experiences of the victims (some of which was not disputed by the defence), and the seriousness of the proceedings.

Worse still, the point made by counsel was entirely irrelevant to the core issues in the case. The raids were not conducted with the purpose of seizing personal lubricants. In fact, agents recovered firearms with obliterated serial numbers and large quantities of ammunition, and arsenal.

By focusing on a non-issue and distorting the facts, counsel not only undermined his own credibility but also risked misleading the jury.

A More Effective Approach:

Counsel should have avoided introducing irrelevant, inflammatory, or sarcastic commentary. Instead, he should have confined his submissions to the issues in the case.

Note. Matters concerning the legality, proportionality, or evidential basis of the search are questions of law, not fact, and therefore fall within the exclusive domain of the judge. The jury has no role in determining such issues. It is likely that the judge would have already heard and ruled on legal submissions regarding the lawfulness of the search.

3. Mis-stating the Law

In March 2016, at the InterContinental Hotel in Century City (Los Angeles), surveillance footage captured Combs violently assaulting Ventura-Fine, chasing her, dragging her by the hair, and throwing a vase before hotel staff intervened.

Counsel downgraded the InterContinental Assault to “Only a Misdemeanour”.

“The InterContinental beating is only a misdemeanour, nothing more.”

This statement misrepresents the legal significance of the assault. The prosecution relies on the hallway beating at the InterContinental Hotel as the "means of force" necessary to satisfy 18 U.S.C. § 1591(a) and (b)(1). Under this statute, any use of force, threats of force, fraud, or coercion to cause a person to engage in a commercial sex act elevates the charge to a federal felony punishable by up to life imprisonment. Ventura-Fine gave evidence that she was escaping a “freak-off”.

The federal inquiry does not turn on how New York State law classifies the assault (as a felony or a misdemeanour), which is immaterial to the federal charge. The relevant legal threshold under § 1591 is whether the force was used to obtain, maintain, or control a commercial sex act. 

Thus, describing the assault as "only a misdemeanour" mischaracterises its legal relevance and wrongly suggests to the jury that it is legally minor, when in fact it may constitute a core component of a serious trafficking offence.

A More Effective Approach:

Counsel should have just focused instead on challenging the link between the assault and any commercial sex act, i.e. whether the assault truly constituted the “means of force” required by 18 U.S.C. § 1591. For example, an appropriate line of argument would have been:

 “While the prosecution alleges that this incident constitutes the ‘means of force’ under § 1591, the defence contends that it was unrelated to any commercial act and had no connection to trafficking.”

4. Inappropriate Criticism of the Prosecutors: Alleging Selective Prosecution Without Evidence

Counsel said: “Ask yourselves why the mighty United States has only Sean Combs in the dock. Where are the so-called co-conspirators? They targeted him, fame makes for headlines.”

This remark amounted to an unfounded allegation of selective or politically motivated prosecution. By implying that the defendant was singled out because of his celebrity status, counsel improperly invited the jury to speculate on the motives of the prosecuting authorities, rather than focus on the evidence before them.

Introducing a claim of selective prosecution in front of the jury was inappropriate. Such commentary serves only to distract from the factual issues the jury must decide. 

In fact, after the jury left the courtroom, at the conclusion of Agnifilo’s speech, his statement about targeting drew an outcry from the prosecutor, Ms Slavik. When the jury returned, Judge Arun Subramanian had to issue a curative direction. He told jurors that “the decision of the government to investigate an individual or the decision of a grand jury to indict an individual is none of your concern.”

A More Effective Approach:

If there were genuine concerns about selective prosecution, the proper course of action would have been:

1. Raise the issue as a matter of law: Any allegation of selective prosecution should have been brought before the judge, ideally before trial, as part of an abuse of process application. 
2. Avoid reference to prosecutorial motive in front of the jury: The jury's role is to evaluate the evidence, not to assess the propriety of charging decisions or speculate on the reasons for prosecution.
3. Focus on the evidential weaknesses in the prosecution’s case: Counsel should have confined his submissions to evidence presented in court, without resorting to speculative or sensational attacks on the prosecution.
   

5. Failing to Put the Defence Case  to the Witnesses

In relation to the arson predicate offence forming part of the RICO charge, the rapper Kid Cudi gave evidence that his Porsche was firebombed. He testified that he believed Sean Combs had orchestrated the attack as an act of intimidation, motivated by Cudi’s alleged relationship with Ventura-Fine.

The forensic evidence included a partial DNA profile obtained from the remnants of a Molotov cocktail. The DNA profile was described as a mixed sample containing genetic material from a female contributor. However, no prosecution witness suggested that the DNA matched either Ventura-Fine or Combs’ former assistant, Capricorn Clark. There was no expert opinion attributing the DNA to any specific individual, nor was there any disclosure that such comparison had been carried out.

Despite this, in his closing speech, defence counsel speculated:

“Maybe Cassie or Capricorn did it.”

This submission is flawed on two grounds:

1. Lack of evidential foundation: The laboratory report offered no comparative analysis linking the partial DNA profile to either woman. There was no evidence from the prosecution, or introduced by the defence, that supported this hypothesis.
2. Failure to put the suggestion in cross-examination: The proposition that either Ventura-Fine or Clark was responsible for the arson was not put to Ventura-Fine or Clark during cross-examination. This omission breached a fundamental principle of trial advocacy. A failure to put the defence case to a witness deprives that witness—and the court—of the opportunity to address and potentially rebut it. 

In addition the Bar Standards Board, Code of Conduct, rC7 provides:

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:

.2 you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination;

A More Effective Approach:

If the defence wished to raise the possibility that someone other than the defendant was responsible for the firebombing, it was incumbent on counsel to:

• Establish an evidential foundation, such as forensic analysis comparing DNA profiles;
• Put the suggestion directly to the relevant witnesses (Ventura-Fine and Clark);
• Frame any submission in closing as a reasoned inference from the evidence, not as speculative commentary.

Hypotheses in closing arguments must arise logically from the evidence presented and be consistent with the procedural obligations of fairness. 

6. Inappropriate reference to charging decisions

Counsel improperly invited the jury to second-guess the prosecution’s charging decisions. 

“They charged arson, look at that!”

“Ask yourselves why the government chose to charge kidnapping at all.”

While arson may not be charged independently here, it likely features as an overt act in furtherance of a RICO conspiracy, which is a legitimate legal construct. Suggesting incredulity or frivolity in the prosecution's inclusion of arson misleads the jury about the legal significance of the allegation.

More importantly, charging decisions fall exclusively within the remit of the executive branch and are not a matter for the jury. 

The judge quite rightly admonished counsel and provided a curative instruction to the jury:

• Judge Subramanian: “Mr Agnifilo, those comments were grossly improper. Do not repeat them.” (Said in the absence of the jury).
• Judge (to jury): “It would be improper for you to consider prosecutorial charging decisions. Disregard that suggestion.”

A More Effective Approach:

A more appropriate strategy would have been for defence counsel to focus on the sufficiency of the evidence underlying the charged conduct, rather than questioning the legitimacy of the charges themselves. Instead of inviting the jury to speculate about prosecutorial motives, which they are neither equipped nor entitled to assess, counsel could have scrutinised whether the factual foundation for the alleged overt acts (such as the arson or kidnapping) had been proved beyond a reasonable doubt. For instance, counsel might have argued:

"You may think that the evidence connecting Mr Combs to the alleged act of arson is tenuous. There is absolutely no forensic evidence linking him to the arson, in fact, you heard from the Mr Dean, the forensic scientist, that the DNA recovered from the bottle containing the explosive substance, belongs to a female. If the prosecution wants to rely on arson as an overt act within a RICO conspiracy, the burden is on them to prove the act occurred and that Mr Combs directed or facilitated it.”

 This would have shifted the focus from the prosecutor’s decision-making to the core legal question: whether the evidence satisfies the elements of the charged offence. That is an argument within proper bounds. 

7. Unprofessional and Irrelevant Comments

Defence counsel made a series of comments that risked straying far from the permissible bounds of ethical advocacy. The following remarks crossed into irrelevant, personal, and potentially prejudicial territory

i) Sexualised Commentary

“She’s a woman who actually likes sex. Good for her! She’s beautiful, she should. She’s intense. She’s unafraid.”

Such commentary, which highlights a complainant’s physical appearance and sexual preferences, has no place in a closing speech. This is not advocacy, but personal opinion and irrelevant commentary. 

Sexualising a complainant risks reinforcing harmful stereotypes and invites jurors to view the complainant as blameworthy or complicit. It is inconsistent with principles of trauma-informed advocacy.

Counsel should simply have suggested that the sex was consensual, as evidenced by the text messages that passed between Ventura-Fine and the defendant.

ii) Mocking Tone 

“Whoooaaa! A burner phone! Cassie is keeping it gangsta!”

This statement attempted to ridicule Ventura-Fine’s explanation that she used a second mobile phone to communicate privately with Kid Cudi, fearing retaliation if Combs discovered the relationship. 

The dismissive tone diverted attention from a key legal issue, i.e. whether her secrecy was driven by coercive control. Again, this is an inappropriate comment/ opinion and completely irrelevant.

iii) Downplaying Detention as ‘Door-to-Door Kidnapping’

“A door-to-door kidnap... Anyone here feel kidnapped?” 

This remark sought to trivialise the testimony of Capricorn Clark. Clark told the jury that she was confined daily for five consecutive days in an empty office floor within Combs' Manhattan building. During this period, she was subjected to interrogation by a former FBI polygraph examiner, questioned repeatedly over missing jewellery, and warned she would be “thrown in the East River” if she failed the test.

Although Clark was permitted to return home at night and was transported by Combs’ staff, she testified that the coercive environment and threats left her feeling intimidated and trapped. Under U.S. law, kidnapping (18 U.S.C. § 1201) does not require constant physical restraint or overnight confinement. The relevant threshold includes the unlawful seizure or detention of a person against their will for an appreciable time, particularly when combined with threats or intimidation.

By likening prolonged coercive questioning to “long working hours,” counsel failed to engage with the legal definition of kidnapping and instead resorted to sarcasm. 

Arguably, in England and Wales, these remarks would breach the Bar Standards Board Code of Conduct, rC7 - Not abusing your role as an advocate.

rC7

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:

.1 you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;

A More Effective Approach:

A more effective and professional strategy would have involved focusing on whether the prosecution had proven all elements of the kidnapping offence beyond reasonable doubt. If counsel believed the detention lacked essential features, those points should have been made through legal and factual analysis. 

Ridicule and innuendo do not substitute for persuasive advocacy. Instead, they risk alienating jurors and damaging the advocate’s credibility at the most critical point in the trial.

Professor Akin Adepoju is a U.S. attorney and award-winning scholar who heads the Federal Defender Services Training Content Branch, where he directs nationwide training for federal defenders.

His career as an attorney spans complex fraud matters to capital habeas corpus cases before the Supreme Court. 

He also teaches Advanced Criminal Procedure, Trial Advocacy and Capital Punishment at George Mason University and the University of the District of Columbia, and is a sought-after national speaker on trial, sentencing and persuasive advocacy. 

Akin also serves as President of the Center for Death Penalty Litigation and has received the Champion for Justice, Gideon’s Trumpet and Feinstein Public Interest awards for his work.

The Full Interview

1. Your career spans capital defence and federal trial work. Which single case most shaped the advocate you are today, and why?

That’s a tough question, there are so many cases that stay with you. About 15 years ago, I worked on a death penalty case that changed everything for me. The client was accused of killing someone who, in every way, was beloved—what we’d call in America “salt of the earth,” a mensch, a true gem of a human being. A community hero who gave food to the unhoused, deeply mourned, married to a lawyer. The case was all over the news. Even the Attorney General attended the funeral. I felt the same horror and grief as everyone else. Weeks later, I was assigned to defend the man accused of taking that life.

When my client was arrested, there was a public outcry for his execution. Even other inmates tried to kill him. 

We uncovered years of trauma, neglect, poverty, untreated mental illness, an entire life story shaped by abandonment and pain. We told that story. We told it honestly, without excuses, people listened. Even those who had every reason to seek vengeance, members of the victim’s family, began to see his humanity and that executing him wouldn't bring justice, it would only compound the tragedy.

That case reshaped me as a person. It reminded me that we are all just a few moments, or a few people, away from despair or redemption. It taught me that justice isn’t about vengeance or victory. It's about understanding. And sometimes, when we dare to understand, we change everything.

2. In your teaching you emphasise “client-centred storytelling”. How do you train junior advocates to build a compelling bond narrative at a first-appearance bail hearing?

For me, client-centered storytelling isn’t a technique, it’s a philosophy. And it starts from the very first appearance. I tell lawyers: the earlier you begin to tell your client’s story, the sooner you earn something priceless, their trust. When a client hears you speak about them, not just the case, they start to believe that you see them. That someone understands their life, their struggles, their worth.

At a bail hearing, there’s rarely time for drama or a sweeping narrative. But there’s always time for connection, with the court, and more importantly, with your client’s humanity. So look past the charges and ask: Who is this person, really? Who are they to their children, their parents, their community? What routines will they return to if released? Is this someone who’s holding down two jobs? Someone who accompanies grandma to medical appointments? Someone who’s never missed a court date? A compelling bond narrative is about painting a grounded picture of a life that makes sense outside of custody.

When we tell our client’s story early, you’re not just fighting for their release, we’re reminding them they matter.

3. When you teach cross-examination, what is your go-to exercise for moving students from mechanical leading questions to purposeful, theory-driven questioning?

Great cross-examination isn’t just about asking leading questions—it’s about building a narrative brick by brick. My go-to exercise is what I call the “Funnel to the Fact” drill. I give lawyers a powerful fact from their case theory, something the jury must believe by the end of the cross, and I challenge them to reverse-engineer a sequence of tight, controlled questions that walk the witness straight into that fact without ever using the word itself.

For example, instead of asking, “Isn’t it true you never saw my client?” which is technically leading but totally flat. I ask them to construct a path: “You were standing at the corner. It was dark. There were no streetlights. You didn’t have your glasses. You looked left—but not right.”

It forces lawyers to think like architects, not interrogators, designing cross not just to control the witness, but to control the story. We’re pretty much storytellers with a scalpel. And once they see that it’s not about clever zingers but clarity and persuasion, their questions transform. They start crafting cross-examinations that speak to the jury, not just to the record.

4. Which advocacy skill do you still find routinely under-developed in experienced counsel?

One of the most underdeveloped skills in experienced counsel? Listening. And I don’t mean nodding politely while waiting to deliver your next brilliant point, I mean active, responsive listening in real time. Great advocacy requires agility. If you ask a question and the answer surprises you, and you don’t pivot, you’re reciting. Too often, experienced attorneys fall in love with their script and forget the magic lives in the moments between the lines.

5. What stereotypes have you encountered among US lawyers regarding British advocates?

It goes something like this: British barristers are brilliant, terrifyingly articulate, and pathologically incapable of saying anything in fewer than 300 words. You could probably deliver a five-minute cross that sounds like an Oscar-winning period drama monologue and somehow win the jury with a raised brow and a “Quite.”

There’s a running joke that British lawyers could lose a case, be denied leave to appeal, spill tea down their robes, have their computer crash, and still mutter, “Ah, well—rather a pity,” then exit with the poise of a royal.

In their minds, your cross-examinations sound like BBC nature documentaries: “Observe now as the witness attempts to evade the question... marvelous.” Calm, measured, and somehow both devastating and soothing—like being mugged by a gentleman with a thesaurus.

A general sense that British courtroom advocacy is just a beautifully spoken polite disagreement. You don’t interrupt witnesses; you simply disappoint them with elegance. You don’t attack credibility; you make it clear in the gentlest fashion that perhaps none was ever present to begin with. “I put it to you…” You then simply let silence and shame do the work while you gently polish your jewelry. (Wait, is this why my daughter thinks I might be British?)

Behind the friendly gentle mockery, the truth remains: there’s enormous respect for British advocates. American lawyers know that British advocates train rigorously, think fast, argue fearlessly, and wield language like a scalpel. 

Our system may be louder, more adversarial—more gladiator pit than chess match. Yours is perhaps more precise, more restrained. But great advocacy? That’s universal. That transcends borders. And whether you deliver it in a wig or a three-piece suit, the goal is the same: persuasion, and maybe—just maybe—a bit of theatre. And the best among us, in any system, knows how to cut through noise, tell their story persuasively, and leave everyone thinking one thing: “That’s who I’d want fighting for me.”

6. Many UK lawyers are curious about the jury selection process in American federal trials. What strategic mistakes do you see attorneys make during voir dire?

Yes, voir dire, the courtroom’s most awkward cocktail party, where you have to charm total strangers into admitting their deepest biases… all while sounding neither desperate nor condescending.

One strategic misstep I see time and again? Lawyers treating it like a pop quiz instead of a conversation. They fire off questions like, “Can you be fair?” which is a bit like asking someone on a first date if they consider themselves kind. You’ll get a socially acceptable answer, but not a shred of useful insight. 

Another misstep? Turning it into a lecture. Voir dire isn’t your time to impress, it's your time to listen. You’re not there to teach jurors; you’re there to understand them. Their values, their instincts, their blind spots, their experience, and whether your story will land with them or bounce off like a poorly thrown cricket ball. Skip the sermon, do the anthropology. What you want is insight, not answers.

7. What advice would you give a young UK barrister who is considering a sabbatical in a US public-defender office?

If you're drawn to the drama, challenge, and craft of trial advocacy, my advice is simple: go. Seriously. Stop reading. Go.

I once served as a marshal to a Crown Court judge in the UK, and it was deeply meaningful.

Public defense in America is many things: underfunded, overworked. But it’s also where some of the fiercest advocacy on the planet unfolds, day in, day out, against staggering odds.

You'll be surrounded by lawyers who show up in court fighting like it’s their own freedom on the line. The U.S. system is louder, faster, and in many ways more adversarial. 

Whether it’s cross-examining a police officer on bodycam footage or arguing for bond, trial work in the U.S. demands clarity, speed, and guts. When your client is facing decades, or even death, as many still are in parts of the U.S. there’s no time for flowery phrasing, excessive deference, or courtroom pleasantries. Juries want stories, not sonnets. 

Bonus perks? No wigs. No robes. You can wear any colour suit you want. And no bowing to judges, at least not physically. (We bow with sarcasm instead.)

8. You have one minute to pitch “Why public defence rocks” as a TED-style talk—what’s your opening line?

Public defenders: the only lawyers who prepare like scholars, argue like warriors, and get paid like poets—broke ones. 

Joint Enterprise on Trial:  APPEAL’s Report Reveals Systemic Over-charging, Racial Disparity & Heavy Public Cost

APPEAL’s report Joint Enterprise on Trial – A Wide Net Cast on Weak Grounds, analyses seventeen murder or attempted-murder trials heard at the Central Criminal Court between June 2024 and January 2025. Dr Nisha Waller and Tehreem Sultan observed every sitting day, collecting quantitative data and verbatim notes. Their sample comprised sixty-three defendants who actually faced a jury (seventy-six were indicted across related proceedings). Seventy-five per cent of those defendants were aged twenty-five or younger and about forty per cent were children. Seventy-nine per cent were from racially minoritised backgrounds and sixty per cent were Black, whereas seventy-eight per cent of the 142 barristers appearing in the cases were white.

Excessive charging and low conviction rates

The researchers document a pattern of “over-charging”: murder or attempted-murder counts were routinely preferred even where the defendants’ link to violence was thin. Only nineteen of forty-nine defendants charged with those offences were convicted of them, and more than a third of the trials produced no conviction on the lead count. In one prosecution more than fifty separate charges were laid against eight accused, yet the jury returned a single conviction. Another trial, lasting four months, attempted to criminalise seven Black schoolboys on the basis that their “voluntary presence” at a party amounted to encouragement; six were acquitted outright.

Trial by storyline in place of evidence

Where prosecutors lacked proof of assistance or encouragement they relied on what APPEAL terms “trial by storyline”. Vague expressions such as “in it together”, “force of numbers” and “backup if needed” were advanced in lieu of concrete evidence, while late-stage reinterpretations of CCTV or telephone data were introduced to rescue weakening theories. A gang narrative—sometimes explicit, sometimes disguised by words such as “team” or “territory”—was used to supply motive and intent even when no formal gang evidence existed.

Racialised framing inside a predominantly white courtroom

The study emphasises the cultural distance between largely white court professionals and the young, often Black defendants. Defendants’ clothing, speech patterns and social media use were sometimes treated as indicators of guilt rather than ordinary features of youth culture. APPEAL argues that this “institutional whiteness” makes it easier for racial stereotypes to permeate jury deliberations and harder for defendants to rebut speculative allegations.

Cost to defendants and to the public purse

Across the seventeen trials defendants spent an estimated twenty-thousand days—around fifty-four years—on remand, including some who were ultimately acquitted or received non-custodial outcomes. Using official prison-cost statistics, the authors calculate that well over one million pounds was spent imprisoning those individuals unnecessarily. The cases also occupied approximately six hundred and sixty-five court days, during a period when the Crown Court backlog has exceeded seventy-thousand cases.

In his foreword Keir Monteith KC describes the report as “seismic”. He said the report provided further evidence of institutional racism in the criminal justice system. “The CPS must stop prosecuting young Black men for murder and other serious crimes just because they are voluntarily present somewhere near the scene,” he said. “Remanding and wrongly prosecuting these young Black men for crimes they did not commit is immoral, contrary to the rule of law and costs millions. It has got to stop.”

Recommendations: 

APPEAL backs the 2023 Private Member’s Bill introduced by Kim Johnson MP, which would require that a secondary party must make a “significant contribution” to the principal offence and intend to do so. Pending statutory reform, the report calls on:

• the Crown Prosecution Service to tighten its Full Code Test so that weak secondary-liability cases are screened out;
• judges to intervene more often with no-case-to-answer rulings;
• all agencies to publish race-disaggregated data on charging, remand and outcomes; and
• prosecutors, judges and policymakers to attend an APPEAL-convened round-table later this year to agree practical limits on joint-enterprise charging.

The charity argues that urgent reform, both legislative and operational, is essential if secondary liability is to become a principled doctrine of complicity rather than a license for collective punishment.

The Report can be accessed from Appeal’s website: https://appeal.org.uk/racial-justice/

Editor’s Comment – Understanding Joint Enterprise

For practitioners seeking clear and authoritative guidance on joint enterprise, the Crown Court Compendium, (updated April 2025), section 7, provides a concise and practical summary of the relevant legal principles. It includes helpful illustrations of when secondary liability may or may not arise, and explains the evidential thresholds that must be met. The compendium can be accessed via the Judicial College website:

Remote-Hearing Etiquette: Judicial Rebuke after Barrister Appears Without Trousers!

A remote bail application at Shrewsbury Crown Court was briefly derailed when the instructed defence barrister logged on from home wearing wig, bands and gown, but no trousers. The practitioner appeared on camera in a cluttered bedroom, and audible background noise. 

Recorder Julian Taylor reprimanded the barrister, stressing that virtual hearings must be treated “as though they are in court” and noting that both the advocate’s state of undress and the untidy surroundings were unacceptable. The advocate apologised “unreservedly” and rearranged his camera, but not before Taylor delivered a parting comment—“unbelievable”—once the link closed.

Asked for comment, the Ministry of Justice referred to the Bar Council’s dress code for barristers. It states that the ‘Court Dress’ of wing collar, gown and wig need not be worn during hearings conducted remotely except in the Court of Appeal. 

Roll On Friday, 

6 June 2025.

These two linked appeals currently before the UK Supreme Court raise important questions about the scope and compatibility of section 12(1A) of the Terrorism Act 2000 with freedom of expression under Article 10 ECHR. The judgments are likely to have significant implications for how speech-related offences involving proscribed organisations are prosecuted and defended. The issues have attracted renewed public interest in light of recent events at the Glastonbury Festival, including comments made by the group Bob Vylan.

Facts

In the case of ABJ, the appellant in the first appeal, she is alleged to have expressed a belief or opinion supportive of a proscribed organisation, Hamas, contrary to s.12(1A) of the TA. This allegation arises in relation to a speech that ABJ gave in Brighton City Centre on 8 October 2023 as part of a Palestine Solidarity Campaign event. 

At a preparatory hearing in the Crown Court at Kingston on 11 June 2024, HHJ Lodder KC ruled: (i) the s.12(1A) offence does not require proof that the defendant was aware of the fact that the organisation in question was proscribed; and 

(ii) proof of the ingredients of the offence is of itself sufficient to ensure that a conviction is a proportionate interference with a defendant’s rights under article 10 ECHR. No proportionality direction to the jury is required. 

In the case of BDN, the appellant in the second appeal, he is also alleged to have expressed a belief or opinion supportive of Hamas. This allegation arises in relation to quotes written on a placard that BDN held, and a speech that BDN gave, outside the gates to Downing Street on 17 October 2023. 

At a preparatory hearing in the Central London Criminal Court on 28 June 2024 the Recorder of London, HHJ Lucraft KC, also ruled that proof of the ingredients of the offence is of itself sufficient to ensure that a conviction is a proportionate interference with a defendant’s rights under article 10. 

The Court of Appeal heard the appeals together.

Counsel for ABJ, submitted: 

i) that the trial judge ought to have concluded that the prosecution was required to prove awareness of the fact of proscription; and

ii) that the judge ought to have ruled that the jury should be directed to carry out a freestanding proportionality assessment under Article 10 as a “stand- alone” defence, coupled with a direction that the words of s. 12(1A) should be given a “heightened” meaning, including as to “recklessness”.

Counsel for BDN, submitted:

i) that the offence is incompatible with both Articles 7 and 10, 

ii) such that the court should make a declaration of incompatibility under s. 4(2) of the Human Rights Act 1998. Alternatively, 

iii) the provision should be read in a way which is compatible.

iv) in order to achieve compatibility with Article 10, the jury required specific directions concerning the approach to proof of elements of the offence: an assessment of free speech when considering recklessness, and a “heightened” meaning for the elements of the offence. 

On 24 December 2024, the Court of Appeal dismissed the appeals.  

On 12 February 2025, the Court of Appeal refused the appellants permission to appeal but certified two questions of public importance as set out below. 

Certified Questions for the Supreme Court

(1) Do the terms of s.12(1A) of the Terrorism Act 2000 (“the TA”) represent a disproportionate interference with the appellants’ rights under article 10 of the European Convention on Human Rights (“ECHR”)? In the event that they do, is it possible to read down the terms of the offence to render them compatible? 

(2) What is the mental element in relation to the offence under s.12(1A)?