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A history of legal advocacy in the criminal courts is inextricably linked to the rise of the barrister. A barrister, often referred to as ‘counsel’, acts as a representative for either the prosecution or the defendant.

While advocates could appear for either the prosecution or the defence from medieval times, it was not until 1836 that the official role of the defence advocate in serious criminal trials was extended beyond the limitation of the questioning of witnesses and ensuring that court process was properly followed (Beattie, 1986). Prior to 1836, if the defendant wanted to put forward a coherent defence statement, they were required to do so themselves. From the 17th to the 19th century, the criminal trial was full of contradictions: counsel was allowed for misdemeanours but not felonies; counsel was not allowed for felony trails, but were for appeals; and counsel could speak to matters of law but not to matters of fact. There were a number of justifications for the limiting of the role of defence counsel, one of which has been identified by John Langbein (2003) as the ‘accused speaks’ trial, meaning that the prisoner was seen as the most beneficial source of information for ascertaining their own guilt or innocence. It was believed that should the prisoner speak only through a barrister, this valuable source of information would be lost to the court.

Another reason that the role of the advocate was limited within the criminal trial was public and political mistrust of barristers.

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